A rule might be “discretionary” rather than “arbitrary”, but then you get into weasel words that allow the issuing authority to do whatever it likes. If the rule is that issuers can deny a permit “in the furtherance of public safety” for example, and you’re denied, how do you dispute the denial? I’m reminded of Soviet Union laws that were so broadly worded that they allowed the authorities to arrest and imprison anyone for any perceived opposition to the state.
ETA: we wouldn’t have come to this pass if for decades it hadn’t been the policy of police and public officials to simply conclude that fewer guns was always better.
The number of permits issued must be measured against the number of applications, and the reasons given for denial. Perhaps only ex-cons are applying for carry permits in New York. Unlikely, of course, but not impossible. The numbers might be covered in the lower decisions but I don’t have time to look through them.
As I pointed out, the NY law requires the issuing agency to specify the reasons for denial. If the reasons being given are weaselly, then sue the agencies.
That’s what’s happening now, agencies getting sued, hence the cert petition 
I agree if only felons and insane people are applying for permits then you’d expect mostly denials. I strongly believe that’s not the case. I don’t have the numbers on hand, but they don’t bode well for a transparent process if I recall correctly.
Only tangentially related, since if this is ruled favorably then it would affect CA, but there are several counties in CA where people are discouraged from even applying. You are told it’s not worth it because you will be denied. In looking at the county by county breakdown, it’s obvious that there are counties that are virtually “no issue”. San Francisco County, with a population of over 800K people, has less than 5 people with a CCW permit. Contra Costa County, with a population of over 1M, has less than 100 people with a CCW. If any of these types anomalies (vastly lower issuance rate as compared to population density) existed in a sort of disparate impact test, it would be obvious that something is wrong with the issuance numbers.
But the agencies aren’t being sued here; that would be a challenge to the agency procedure, and would be handled by a New York court (or probably an administrative tribunal). Instead, the petitioners are challenging the constitutionality of the legislation itself.
Because the petitioners are claiming that the may-issue laws are enacted arbitrarily. Remember that Brown v. Board of Education overturned the Plessy v. Ferguson ruling precisely on the grounds that the theoretical “separate but equal” principle of Plessy v. Ferguson was found to be a legal fiction that never actually happened in real life. The court does occasionally look at the actual results of a law instead of how it’s supposed to work in theory.
Brown v. Board didn’t overturn Plessy*, and was premised on the fact that separate education was inherently harmful regardless of whether the facilities were equal. Similar cases have been decided on the basis that certain procedures were essentially legal fictions, of course, and I take your point.
That’s not the issue here, though. This case, unlike Brown, involves administrative law. The legislature has the authority to delegate power to the executive to carry out government functions. When it does so, anyone challenging an agency action is generally required to exhaust administrative remedies before challenging the action in the courts.
The petitioners are not claiming the laws are “enacted arbitrarily”. They are claiming they are being enforced arbitrarily.
*all Plessy did was establish that separate but equal railcars were permissible. Brown distinguished Plessy in the area of public education.
Incidentally, the trial court decision at issue (Kachalsky v. Cacace, 817 F. Supp. 2d 235 (S.D.N.Y. 2011) aff’d sub nom. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)) indicates that the plaintiffs did appeal the denials under NY administrative procedures, and lost.
It is. Don’t understand why the “original intent” SCOTUS justices have forgotten that. The politicians of the time added the Second Amendment because they wanted the U.S. to have a small standing army, and a large militia ready to be mobilized quickly in an emergency, bringing their own muskets from home, to serve the state, not to fight it – remember how George Washington responded to the Whiskey Rebellion.
Eventually, it developed that that is not a good model for national defense, and that a large standing army is not the threat-to-liberty it appeared to be in the 18th Century. Now we have a large standing army, backed up by quasi-professional National Guards who do not supply their own weapons, and it all works very well regardless of whether anybody has firearms at home or not.
So the right is a “natural” one and constitutionally protected independent of constitutional provisions? Sounds like a Ninth-Amendment/Tenth Amendment argument; those are usually bullshit. “Natural-rights”/“natural-law” arguments always are.
The intent of the amendment seems pretty clear to me: keeping and bearing are listing distinctly, which I feel means people have a right both to own firearms and to carry them. Like other constitutional rights, it’s not absolute but it should be interpreted broadly. And the laws in question don’t come close to being within the scope of this broad right. I’d rule them unconstitutional.
I agree. I think the Second Amendment is a bad idea given the changes that have occurred in firearms technology since it was adopted. But you should repeal a bad law not pretend it doesn’t exist.
Slavery and prohibition were also bad ideas. But we acknowledged that and rewrote the Constitution.
So let’s repeal it. Once again: For my part, I accept as a fact that America will never in your lifetime or mine or our grandchildren’s be a disarmed society to the extent of the UK or Japan. I do not even have any brief for any particular gun-control regime (though I think Canada’s is at least worth studying and learning from, the culture and conditions being so very similar to ours).
No, my position is simply that gun ownership is not a matter that merits constitutional protection. It should not be regarded as a “right” in the sense that free speech is a right. It does not deserve to be set above-and-beyond the reach of the ordinary legislative/political process in that way. Gun control should be merely a political issue, to be threshed out at the polls and in the legislatures, not in the courts – and, of course, American gun owners and gun-rights activists will for generations to come be very strong at the polls and in the legislatures. So what? Legislatures can look at policy studies, evaluate gun-control efforts on their merits and effects, try things and reject what turns out not to work in practice, and be accountable to the voters for the results. That is good enough, it is how reasonable public policy can and is and should be made. But we do not have any good or rational use for the Second Amendment in this day and age.
My position, also, is that gun control in and of itself is not all that important, compared to other issues facing our society, like the distribution of wealth. It’s like gay marriage – I’m all and unreservedly for it, but, if I were a politician, I would not give it a very high priority compared with a lot of other things. The lack of it is no existential threat to our society, no more than the presence of it; and likewise with guns. They kill a lot of people needlessly, but in terms of the general health of American society, guns are like a flu compared to cancer.
Again, I agree. I think the Second Amendment should be repealed and gun control should become an issue for the legislative process. (I personally would not support a general ban on fire-arms. I’d like to see them regulated by a process similar to what we use for driving a car.)
But the topic here is how the court system should rule on what the Constitution is now not on what we’d like it to be.
I was going to say - they did sue the right people up the chain. This is a step in a long series of strategic moves. Consider that Gura and the SAF were the ones who won in the 7th circuit in Moore, creating the current split with the 2nd circuit which increases the chances that SCOTUS will hear it. These cases, along with McDonald and Heller before (both Gura and the SAF) were chosen precisely. Each builds on the other and my hope is that the long term strategy pays off in breaking down years of bad law. After this, there are many other strategic cases in the works. People focusing on the legal strategy often say, this is chess not checkers.
That may be true in **BrainGlutton **fantasy land, but it’s not the law of the land in the US. You can ignore Heller and McDonald and insist on something else, but it would not be reality.
Great. You do that. In another thread, you know, that’s about repealing the 2nd amendment. This one is about a particular case and discretionary issue of CCW permits.
Right, but the fact that New York courts ruled against them may foreclose on the whole issue. As far as I can tell, they have not argued that the NY law is an impermissible delegation by the legislature (at least, any such assertion does not appear in the petition). That appears to be a glaring omission. SCOTUS isn’t supposed to rule on constitutional grounds when it can dispose of a case some other way.
[QUOTE=BrainGlutton]
So the right is a “natural” one and constitutionally protected independent of constitutional provisions? Sounds like a Ninth-Amendment/Tenth Amendment argument; those are usually bullshit. “Natural-rights”/“natural-law” arguments always are.
[/QUOTE]
I agree, but that is definitely for another thread.
I admit I may be ignorant of some of the procedural machinations, but my take was that the denial of the ability to exercise the right is a constitutional question. The case went to the state, then was lost at the federal appellate level. I would presume that if there was a venue issue that would have been addressed and resolved at the 2nd circuit. That and the fact that the 7th and 2nd circuits are now split makes this ripe for SCOTUS. I think. Are you thinking that SCOTUS will deny cert?
Be careful here. New York’s CCW laws are complicated. As you have stated, they are “may issue” statewide, but they range from permissive in some counties to restrictive in others. Outside of New York City, they are much like California’s hodgepodge.
Once you start talking about NYC, however, it all changes. Unless you are one of the elite few, NYC is essentially “no issue”. Also, they do NOT recognize anybody’s permits, including those of New York State. In other words, to carry concealed in New York City, you have to be approved by the authorities in New York City, which is approximately as likely as you winning the Powerball and probably would actually require exactly that.
The state itself isn’t bad. Upstate you’re almost guaranteed approval barring some sort of blip on your background check. It gets harder the closer you get to NYC, and then becomes essentially impossible.
CA is the same way. The majority of land in CA falls under counties that issue regularly. Nearly all the populated counties are no-issue counties, unless you are a celebrity, or donate a lot of money to the sheriff’s re-election campaign.
Right, but the fact that the law is incorrectly applied doesn’t mean the law is a constitutional violation. Rereading the petition, however, I note that I might have missed something in the second question presented:
I originally read this as saying the “proper cause” standard was invalid (based somewhat on the wording of your OP), but it sort of conflates both the validity of the statute and of the denial of the license. So maybe there’s room for SCOTUS to rule that the denials were invalid but the statute isn’t.
Agreed.
The idea of the second amendment or private gun ownership being necessary due to crime is quite modern.