Monday, June 30, 2008

New York City Post-Heller

Dave Kopel, writing in today's the NY Sun, discusses possible ramifications of Heller to New York City's gun laws, in particular with respect to NYC's ban on airguns, magazines that hold more than 17 rounds, and the carry permit system:
The New York City law which most obviously violates the right to arms is the complete ban on air guns. The venerable Daisy Red Ryder BB gun is contraband. Heller and the Supreme Court's previous major Second Amendment precedent, United States v. Miller (1939) forbid the prohibition of arms "typically possessed by law-abiding citizens for lawful purposes."

Air guns are ubiquitous almost everywhere except New York City, and are used almost exclusively for law-abiding purposes. Pursuant to Heller, regulation of air guns might be fine, but prohibition of all air guns is not.
New York City bans magazines (ammunition clips) which hold more than 17 rounds. Whether the ban is consistent with Heller is debatable. Clearly inconsistent is the ban on any magazine which protrudes below the grip of the gun. The most common handgun in the United States is the Colt 1911 pistol, and the variants made by many other companies. The pistol's magazine holds 7 rounds. Some after-market magazine companies make slightly larger ones, which hold 8 or 9 rounds. These magazines extend a half-inch or less below the grip.
Regarding gun carrying, Heller might, arguably, mean that New York City would have to follow a similar policy to Connecticut (and 39 other states): issue permits to carry a concealed handgun for lawful defense if the applicant is over 21, and passes a fingerprint-based background check and a safety class.

At the least, Heller indicates that gun carry licensing may not be "enforced in an arbitrary and capricious manner." This is a problem for New York State's carry licensing law, as Suzanne Novak detailed in a 1998 article in the Fordham Urban Law Journal. New York state law sets essentially no standards to guide local officials in deciding whether to issue carry permits.

The problem is acute in New York City. Celebrities, the ultra-wealthy, and the politically influential get carry permits. But many of the people who need them the most — such as stalking victims, or crime witnesses who have been threatened by the criminal's friends — often do not. Even if New York City is not required to go as far as Connecticut, the City does need much less favoritism and much more objectivity in its administration of carry permits.
Read the article here.

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