New York Law Journal Column on Second Amendment by Steve Wasserman

Steve Wasserman, a staff attorney in the Special Litigation Unit of the Criminal Practice, has a column in today's New York Law Journal on "The Emergent Second Amendment."

The Emergent Second Amendment

NY Law Journal
October 07, 2008
By Steve Wasserman

The U.S. Supreme Court has declared that Americans have a Second Amendment right to keep handguns in their homes that are ready to be used in self-defense. District of Columbia v. Heller invalidated a District of Columbia (D.C.) statute that banned possession of handguns in the home that are assembled and loaded. The Court reasoned that "the inherent right of self-defense has been central to the Second Amendment right, [and] extends, moreover, to the home, where the need for defense of self, family, and property is most acute."1

Extends to the Home

The Court associates the Second Amendment right of self-defense with a preconstitutional right of English subjects, described by Blackstone as "having and using arms for self-preservation and defence."2 The Court thus overrules its 1939 opinion, United States v. Miller,3 which interpreted the right to keep and bear arms as being subject to service in the militia. Heller confers a free-standing right to have a gun "held and used for self-defense in the home . . . . [The right] was clearly an individual right, having nothing whatever to do with service in a militia, . . . protecting against both public and private violence." Heller, 2798-99; 2822.

This is a ground-breaking decision that launches a new body of Constitutional law - not an attempt to state the last word on the meaning of the Second Amendment: "Since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." Indeed, Heller decidedly raises more issues than it resolves.

This article explores three principal issues raised by Heller: The extent of the distinct rights to keep, to bear, and to use guns in self-defense. Each of these will dramatically affect New York law. But two preliminary matters must first be addressed: Whether the Second Amendment is binding on the states, and, if so, what standard of constitutional review applies to state and local laws affecting the Second Amendment right?

The applicability of the Second Amendment to state and local governments is not presented by Heller, a federal class action brought in the U.S. Court of Appeals for the District of Columbia. The question of incorporation has been squarely raised by a subsequent challenge to a similar Chicago ordinance.4

The Second Circuit recently ruled that the Second Amendment "imposed a limitation on only Federal, not State, legislative efforts."5 The holding in Bach v. Pataki rests upon two 19th century Supreme Court precedents that flatly deny that the Second Amendment is binding upon the states: "The Second Amendment means no more than that it shall not be infringed by Congress. States, we said were free to restrict or protect the right under their police powers."6 However, as the Second Circuit observes, both United States v. Cruikshank and Presser v. Illinois are dubious precedents on this question, because they were decided prior to development of the doctrine of Selective Incorporation.7

Despite these precedents, Heller raises a likelihood of incorporation of the Second Amendment Right. Heller lists numerous state constitutions that categorically protect the "right to bear arms for the defense of themselves and the state." Heller, at 2794, fn 8. Other state constitutions, such as Illinois', make the right subject to the police power.8 Every state authorizes or decriminalizes to some extent the use of guns in defense of the home and the person. Thus, state criminal laws that excessively limit gun possession, or that criminalize the protected use of guns in self-defense, may infringe upon the Second Amendment.

Heller does not specify the standard of review for government regulations affecting the Right to Keep and Bear Arms. Heller does observe that a total ban on loaded guns within homes is unsustainable, even under the least-exacting standard. Moreover, there must be more than a rational basis for a law that curtails the exercise of a fundamental constitutional right: "The ['rational basis'] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms."9

Right to Have a Gun

Second Amendment scrutiny of gun-licensing regulations poses a problem for New York, which does not recognize an individual right to have a gun, even in defense of the home.10 Rather, New York regards a "premises license" as a "privilege" extended by local law enforcement authorities that may be withheld for lack of "good moral character" or denied for "any good cause," defined as any reason that is not arbitrary and capricious.11

A local licensing regime that requires all successful applicants to be of "good moral character" is too vague to withstand any level of constitutional scrutiny. Moreover it confers overbroad discretion on local police to disqualify unpopular or troublesome applicants. It would be unthinkable to deny comparable rights, such as parade permits, jury participation, or access to abortions on this amorphous criterion. Moreover a right that can be denied for any "good cause" is a contradiction in terms.

Judicial interpretations of the "good cause" requirement defer to local licensing authorities, and nowhere suggest that local police need more than a rational basis for denying or rescinding a gun license. Licenses have been denied and rescinded on the basis of traffic summonses,12 "lack of requisite maturity, good judgment and temperament,"13 angry words,14 "a small child at home"15 and "unstable employment."16

Right to Carry a Gun

While Heller speaks directly to the right to "keep" a gun at home, where the need for defense is "most acute," the Court is clearly committed to a more qualified right to "bear" or carry a gun. The majority and dissent engage in contentious interchange about a distinct right to "bear arms," defined by the majority as a right "to carry guns on the person for the purpose of being ready for a conflict for the purpose of confronting an attacker." Heller, at 2792-93 The Eighth Circuit interprets Heller to include "the individual right to possess and carry weapons in case of confrontation."17

On the other hand, Heller does not place the right to carry a gun on an equal footing with the right to keep a gun at home. The Court cites venerable state constitutional opinions upholding broad bans on carrying concealed weapons in public. Heller at 2816. The most frequently cited passage in Heller assures the Second Amendment validity of a nonexhaustive list of regulations in the Federal Firearms Act,18 that prohibit certain offenders from carrying guns, and that ban guns from schools and government buildings: "Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Heller, at 2817.

New York City's extremely restrictive criteria for issuance of a "carry permit" may be the rare regulation that is irreconcilable with the right to bear arms. The city rules disqualify all applicants, however law-abiding, except those facing "extraordinary personal danger."19 Only a statutory "peace officer"20 has an affirmative right to carry a gun in New York. Other applicants to carry a gun must craft a "letter of necessity" that demonstrates "proper cause."21 "Proper cause" means a "special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession . . . . That the applicant has been the victim of a crime or resides in or is employed in a 'high crime area' does not establish 'proper cause' for issuance of a carry or special handgun license."22

Thus, the average person, exposed to the ordinary dangers of street crime, is ineligible to carry a handgun in New York City. This regulation, however reasonable, may be antithetical to a federally protected right to "bear arms."

Right to Use a Gun

A straightforward reading of "having and using arms," would seem to encompass the right to shoot at an antagonist in self-defense. Does the constitutionalization of Blackstone's formula portend federal review of state penal statutes that define and delimit the use of deadly force in self-defense?

The Court's commitment to a federally protected right to defend the home may oblige the Court to wade into these waters.

It is difficult to uphold a meaningful federal right to keep deadly weapons at the ready in the home, while deferring to all state laws that criminalize and imprison for pulling the trigger. This question is addressed in Heller's reference to an obscure 1849 commentary on the Second Amendment: "The right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed." Heller, at 2807.23

State laws on the use of deadly force in defense of the home have grown increasingly schismatic in recent years. More restrictive states such as New York adhere to the American Law Institute's 1962 Model Penal Code, which reflects the consensus of American jurisdictions at that time. The MPC authorizes deadly force to protect dwellings only if it is reasonably believed necessary to protect the people within, and proscribes deadly force to prevent mere trespassing or theft.24 The MPC is more restrictive than federal common law, which has long permitted deadly force to be employed to terminate rustling or poaching on private land.25

Like the MPC, New York authorizes deadly force to defend a residence or dwelling if it is "reasonably believed to be necessary to prevent or terminate the commission of arson [or] burglary."26 "Burglary" and "Arson" are strictly construed against the accused.27 Deadly force may not be employed against trespassers or thieves, absent an imminent home invasion and a credible threat to the inhabitants.28

But a growing number of states including Florida, have abandoned the MPC in favor of the "castle doctrine."29 Described by its advocates as "a common-law doctrine of ancient origins," and by its detractors as the "shoot-first" rule, it raises a presumption of justification where deadly force is employed to repel any unlawful entry of a home or occupied vehicle.

A presumption of justification obviates the need to produce hard evidence of "imminent peril" to a dwelling or its inhabitants. If the right to defend the home entails a presumption that its exercise is justified, New York will be hard-pressed to demonstrate that the MPC strictures are "necessary" to meet a "compelling need" of government. Furthermore, the right to bear arms may call into question the time-honored "duty to retreat" in the face of confrontations that occur outside the home. Perhaps the Court will declare there is no compelling need to require retreat in lieu of employing deadly force, and therefore there is a constitutional right to "stand your ground."


Heller concludes with a ringing reaffirmation of the Court's traditional role as guardian of the Bill of Rights: "The enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller has ruled out the policy approach counseled in Justice Stephen Breyer's dissent, which would weigh, case-by-case, the value of the right of self-defense against collective considerations of public safety. The dissent would have upheld the D.C. statute, owing to record evidence of an overriding need to prevent accidental domestic fatalities and to protect children.

The majority in Heller notes that First Amendment jurisprudence was also preceded by a long period of dormancy: "This Court first held a law to violate the First Amendment's guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified.30 After 80 years, the full import of the Right of Free Speech is still emerging. It may take 80 years or more to fully reveal the import of the Second Amendment imperative of self-defense."

Steve Wasserman is a litigation attorney with the Legal Aid Society criminal practice and an adjunct professor at John Jay College of Criminal Justice.


1. Dist. of Columbia v. Heller, - U.S.; 128 S.Ct 2783, 2817 (2008).

2. 4 Blackstone, Commentaries on the Laws of England 140 (1768).

3. United States v. Miller, 307 U.S. 174 (1939).

4. McDonald v. City of Chicago, 08-CV-3645 (ND Ill.).

5. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2006); cert. den. 126 S.Ct. 1341.

6. United States v. Cruikshank, 92 U.S. 542 1876); Presser v. Illinois, 116 U.S. 252, 265 (1886).

7. See Chicago Railroad v. Chicago, 166 U.S. 226 (1897).

8. Illinois Const. Art 1 §22.

9. Heller, fn 27 supra, citing United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938).

10. United States v. Toner, 728 F.2d 115,128 (2d Cir. 1984).

11. PL §400.00(1)(a) and (g); RCNY §5.02; Papaioannou v. Kelly, 14 A.D.3d 459, 460 (1st Dept. 2005); CPLR Art. 7803(3).

12. Minervini v. Kelly, 22 AD3d 238 (1st Dept. 2005); Application of Gutierrez v. Safir, 280 AD2d 263 (1st Dept. 2001).

13. Dorsey v. Teresi, 26 AD3d 635 (3rd Dept. 2006).

14. Gerard v. Czajka, 307 AD2d 633 (3d Dept. 2003).

15. Davis v. Clyne, 58 AD2d 947 (3d Dept. 1977).

16. Klapper v. Codd, 78 Misc.2d 377 (Sup. Ct. N.Y. Co. 1974).

17. United States v. Fincher, F.3d, 2008 WL 336573, p.4 (8th Cir. 2008) (citing Heller, 128 S.Ct. 2797).

18. 18 USC 922 ff.

19. 38 RCNY 5-03.

20. NY CPL §2.10.

21. NY PL 400.00(2)(f); 38 RCNY 5-05(b)(8).

22. Matter of Klenosky v. New York City Police Dept., 75 AD2d 793 (1st Dept. 1980); aff'd 53 NY2d 685 (1980).

23. Tiffany, "A Treatise on the Unconstitutionality of American Slavery", 117-18 (1849) American Law Institute, Model Penal Code, §3.06 (3)(d).

25. See Beard v. United States, 158 U.S. 550 (1895).

26. NYPL §35.20(1) and (3).

27. People v. Petronio, 34 AD3d (2d Dept. 2006); app. den., 8 NY3d 948 (2006).

28. Magar v. Hammond, 183 NY 387 (1906).

29. Fl. St. §776.013 (Laws, 2005, ch. 2205-27).

30. Heller, 2816 (citing Near v. Minnesota 283 U.S. 697 (1931)).