Bach v. Pataki

Decision Date06 May 2005
Docket NumberDocket No. 03-9123.
Citation408 F.3d 75
PartiesDavid D. BACH, Plaintiff-Appellant, v. George PATAKI, in his official capacity as Governor of New York, Eliot Spitzer, in his official capacity as Attorney General of New York, James W. McMahon, in his official capacity as Superintendent, New York State Police and Richard Bockelmann, in his official capacity as Ulster County Sheriff, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Kevin J. Miller (David C. Frederick, on the brief) Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, District of Columbia (David D. Bach, Virginia Beach, Virginia, of counsel), for Plaintiff-Appellant.

Frank Brady, Assistant Solicitor General of the State of New York (Eliot Spitzer, Attorney General, on the brief, Daniel Smirlock, Deputy Solicitor General, Nancy A. Spiegel, Senior Assistant Solicitor General, of counsel), Albany, New York, for Defendants-Appellees.

Before: NEWMAN, McLAUGHLIN, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge:

"The powers delegated by the . . . constitution to the federal government[] are few and defined. Those which are to remain in the state governments are numerous and indefinite."1 This case concerns whether the Constitution requires New York to offer handgun licenses to visitors.

I

David Bach, a Virginia resident and domiciliary, wants to carry his Ruger P-85 9mm pistol while visiting his parents in New York.2 He has a permit from the Commonwealth of Virginia to carry a concealed weapon. Bach is a model citizen — he holds a Department of Defense top secret security clearance, is a commissioned officer in the United States Naval Reserve, a veteran Navy SEAL, a lawyer employed by the Navy's Office of the General Counsel, a father of three, and, perhaps most laudably, a son who regularly visits his parents in upstate New York. "During the ten-hour drive between Virginia and Upstate New York, [his] family and [he] travel on dimly lit rural roads and busy streets and highways[,] some of which are in densely populated areas that have extremely high violent crimes rates."3 Bach has read "about unarmed, law-abiding citizens being slain by sadistic predators despite the exceptional efforts of law enforcement" and believes that carrying a pistol will help him protect his family.

However, as a nonresident without New York State employment, Bach is not eligible for a New York firearms license. The State Police informed Bach that "no exemption exists which would enable [him] to possess a handgun in New York State" and that "[t]here are no provisions for the issuance of a carry permit, temporary or otherwise, to anyone not a permanent resident of New York State nor does New York State recognize pistol permits issued by other states." The State Police further explained that persons "who maintain seasonal residen[ce] in New York State likewise are not eligible for a New York State Pistol Permit" and warned Bach that if he were found in possession of his pistol in New York he "would be subject to automatic forfeiture of the firearm in question and criminal prosecution."

Bach filed this action against State and local officials to contest his exclusion from New York's licensing scheme. His complaint requests that the district court declare New York's licensing laws unconstitutional, facially and as applied, in violation of both the "right to keep and bear arms" set out in the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.

Defendants moved to dismiss, and the district court granted the motion. The court concluded Bach had standing because he "ha[d] made a substantial showing that application for the permit would have been futile." Bach v. Pataki, 289 F.Supp.2d 217, 223 (N.D.N.Y.2003) (citing Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir.1997)). The court held that Bach could "prove no set of facts which would entitle him to relief." Id. at 229 (citing Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994)). Specifically, the court explained that Bach could allege no constitutional "right to bear arms" because "the Second Amendment is not a source of individual rights," id. at 225-26, and that New York's licensing scheme did not violate the Privileges and Immunities Clause of Article IV because "the factor of residence has a substantial and legitimate connection with the purposes of the permit scheme such that the disparate treatment of nonresidents is justifiable," id. at 228 (citing People v. Perez, 67 Misc.2d 911, 912, 325 N.Y.S.2d 183 (Onondaga County Ct.1971)). The court rejected Bach's remaining claims as meritless, id. at 228-29, and entered judgment for the State defendants. Bach seeks review of the dismissal of his Second Amendment and Article IV Privileges and Immunities Clause claims. We affirm.

II
A

New York State has regulated the possession of weapons since 1849. That year the State criminalized possession of the "slung shot."4 See 1849 Laws of N.Y., ch. 278, § 2, at 403-04 (repealed 1886). Thirty-five years later, New York instituted a statewide licensing requirement for minors carrying weapons in public, see 1884 Laws of N.Y., ch. 46, § 8, at 47,5 and soon after the turn of the century, the State expanded its licensing requirements to include all persons carrying concealed pistols, see 1905 Laws of N.Y., ch. 92, § 2, at 129-30. With the passage of the Sullivan Act in the spring of 1911, New York's licensing requirement applied to all persons possessing pistols or any other firearm small enough to be carried concealed. See 1911 Laws of N.Y., ch. 195, § 1, at 443 (codifying N.Y. Penal Law § 1897, ¶ 3).

The State's earliest firearms-licensing statutes delegated licensing to municipalities. See, e.g., 1884 Laws of N.Y., ch. 46, § 8; 1905 Laws of N.Y., ch. 92, § 2, at 242-43; 1908 Laws of N.Y., ch. 93, § 1. When the State first established statewide application requirements, it limited licenses to "have and carry concealed" to those "citizen[s] of and usually a resident in the state of New York," but permitted the licensing official — judges in most parts of the State, but the police commissioner in New York City — to make an exception, so long as the officer received certificates of good moral character regarding the applicant and the official "state[d] in such license the particular reason for the issuance thereof." See N.Y. Penal Code § 1897(9) (1927).

In 1963, New York altered its statewide licensing procedures, making two significant and related changes. First, it granted licensing officers the authority to revoke licenses "at any time." See 1963 Laws of N.Y., ch. 136, § 8 (codifying N.Y. Penal Code § 1903(11), now § 400.00(11)). Second, it limited carry licensees to New York residents and in-state employees. Id. (codifying N.Y. Penal Code § 1903(3), now § 400.00(3)). As explained below, the licensing officers' revocation authority and the residency requirement remain features of the current statutory regime.

B

Today, New York regulates handguns primarily though Articles 265 and 400 of the Penal Law. Article 265 creates a general ban on handgun possession, see, e.g., N.Y. Penal Law §§ 265.01(1), 265.02(4), with specific exemptions thereto, see N.Y. Penal Law § 265.20. The exemption at issue here is a licensed use exemption defined in Article 400: "[the p]ossession of a pistol or revolver by a person to whom a license therefor has been issued." N.Y. Penal Law §§ 265.20(3) (referencing sections 400.00 and 400.01).

Article 400 of the Penal Law "is the exclusive statutory mechanism for the licensing of firearms in New York State." O'Connor v. Scarpino, 83 N.Y.2d 919, 920, 615 N.Y.S.2d 305, 638 N.E.2d 950 (1994). Licenses are limited to persons over twenty-one, of good moral character, without a history of crime or mental illness, and "concerning whom no good cause exists for the denial of the license." N.Y. Penal Law § 400.00(1). There are several types of pistol and revolver licenses, including licenses for household possession, see N.Y. Penal Law § 400.00(2)(a), for workplace possession, see N.Y. Penal Law § 400.00(2)(b), and to "have and carry concealed," see N.Y. Penal Law § 400.00(2)(f). The last, a carry license, may issue only for "proper cause."6 Id.

Licensing is a rigorous and principally local process that begins with the submission of a signed and verified application to a local licensing officer. See N.Y. Penal Law § 400.00(3). Applicants must demonstrate compliance with certain statutory eligibility requirements as well as any facts "as may be required to show the good character, competency and integrity of each person or individual signing the application." N.Y. Penal Law § 400.00(3). Every application triggers a local investigation. See N.Y. Penal Law § 400.00(4). "[T]he police authority of the city or county where the application is made is responsible for investigating the statements in the application." 1986 N.Y. Op. Atty. Gen. (Inf.) 120, 1986 N.Y. AG LEXIS 26, at*1-*2. Local police, therefore, investigate applicants' mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause. See N.Y. Penal Law § 400.00(1)(4). Police officers also take applicants' fingerprints and check them against the records of the State Division of Criminal Justice Services and the FBI. See N.Y. Penal Law § 400.00(4). Upon completion of the investigation, the police authority reports its results to the licensing officer. See id.

Local licensing officers, often local judges,7 have considerable discretion in deciding whether to grant a license application. See, e.g., Vale v. Eidens, 290 A.D.2d 612, 735 N.Y.S.2d 650 (3d Dep't 2002); Kaplan v. Bratton, 249 A.D.2d 199, 673 N.Y.S.2d 66 (1st Dep't 1998); Fromson v. Nelson, 178 A.D.2d 479, 577 N.Y.S.2d 417 (2d Dep't 1991); Marlow v. Buckley, 105 A.D.2d 1160, 482 N.Y.S.2d 183 (4th Dep't 1984). The...

To continue reading

Request your trial
84 cases
  • Berman v. City of N.Y.
    • United States
    • U.S. District Court — Eastern District of New York
    • 29 Septiembre 2012
    ...have failed to argue—that the statute has no conceivable constitutional application under these Clauses. See Bach v. Pataki, 408 F.3d 75, 89 (2005) ("'A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establi......
  • State v. Sieyes
    • United States
    • Washington Supreme Court
    • 18 Febrero 2010
    ...directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Id. at 59 (quoting Bach v. Pataki, 408 F.3d 75, 86 (2d Cir.2005)). Again Presser predates the incorporation doctrine and "said nothing about the Second Amendment's meaning or scope, beyond the......
  • Kachalsky v. Cacace
    • United States
    • U.S. District Court — Southern District of New York
    • 2 Septiembre 2011
    ...75 A.D.2d 793, 428 N.Y.S.2d 256, 257 (1st Dep't 1980), aff'd, 53 N.Y.2d 685, 439 N.Y.S.2d 108, 421 N.E.2d 503 (1981); see Bach v. Pataki, 408 F.3d 75, 80 (2d Cir.2005). The application process for licenses under Section 400.00(2)(f), often called “full-carry permits,” is administered locall......
  • Aron v. Becker
    • United States
    • U.S. District Court — Northern District of New York
    • 22 Septiembre 2014
    ...firearms in New York State.” O'Connor v. Scarpino, 83 N.Y.2d 919, 920, 615 N.Y.S.2d 305, 638 N.E.2d 950 (1994) ; see also Bach v. Pataki, 408 F.3d 75, 91 (2d Cir.2005),13 overruled on other grounds by McDonald, 130 S.Ct. at 3026. Licenses are limited to persons over twenty-one years of age,......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • The Path of Constitutional Law Suplemmentary Materials
    • 1 Enero 2007
    ...468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), 909-11 Bach, United States v., 400 F.3d 622 (8th Cir. 2005), 1282 Bach v. Pataki, 408 F.3d 75 (2nd Cir. 2005), cert. denied, 126 S.Ct. 1341 (2006), 987 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), 1192 Baggett v. Bullitt, 377 U.S. 360, 84 S.C......
  • Second Amendment redux: scrutiny, incorporation, and the Heller paradox.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 33 No. 1, January 2010
    • 1 Enero 2010
    ...Heller, 128 S. Ct. at 2813 n.23. (36.) Id. (37.) Silveira v. Lockyer, 312 F.3d 1052, 1067 n.17 (9th Cir. 2002). (38.) Bach v. Pataki, 408 F.3d 75, 84-86 (39.) 554 F.3d 56 (2d Cir. 2009). (40.) NRA v. City of Chicago, 567 F.3d 856, 857 (7th Cir. 2009), cert. granted, McDonald v. City of Chic......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT