Court rejects First Amendment concept in Second Amendment case

Wednesday, November 28, 2012

The First Amendment’s presumption against prior restraints should not be used in Second Amendment cases, a federal appeals court has ruled in rejecting a constitutional challenge to New York’s restrictive handgun-permit law.

Five people — Alan Kachalsky, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance and Eric Detmer — challenged the state’s restrictive handgun-permit laws on Second Amendment grounds after they were denied full-carry licenses to carry concealed handguns.

Part of the law provides that a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof.”  This provision has been interpreted to mean that individuals can obtain permits for limited purposes, such as hunting or target practice.

However, the state law also says individuals can show “proper cause” to obtain a full concealed-carry license for self-defense only if they can demonstrate a “need for self protection distinguishable from that of the general public.”

After a federal district court upheld the law in September 2011, the plaintiffs appealed to the 2nd U.S. Circuit Court of Appeals. On Nov. 27, a three-judge panel of the 2nd Circuit in Kachalsky v. County of Westchester affirmed the lower court and upheld the law.

The plaintiffs sought to invoke the First Amendment’s presumption against prior restraints — laws that impose hurdles on speech-related activities, such as licensing laws. They argued that just as the First Amendment generally forbids the government from requiring anyone to obtain a license before speaking, the Second Amendment also should forbid government from making individuals obtain licenses before exercising their fundamental right to “keep and bear arms.”

“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence,” the appeals court panel wrote.

The court recognized the Supreme Court drew analogies between the First and Second Amendments in District of Columbia v. Heller (2008), in which the Court first ruled that the Second Amendment protects an individual right to keep and bear arms, as opposed to a collective right of maintaining a militia.

“But it would be as imprudent to assume that the principles and doctrines developed in connection with the First Amendment apply equally to the Second, as to assume that rules developed in the Second Amendment context could be transferred without modification to the First,” the appeals panel reasoned.

Furthermore, the appeals court noted that the New York law on issuing full-carry permits was not without standards. It was not an example of a law that vests government officials with “unbridled discretion” — a very negative term in First Amendment law — in deciding whether to issue or deny permits.

Even though the appeals court rejected the prior-restraint concept, it did embrace analogies to other parts of First Amendment law. The court said the highest form of judicial review in free-speech law was reserved for the core types of speech the First Amendment was designed to protect – such as pure political speech — whereas a lesser form of judicial scrutiny is used to review restrictions on commercial speech (advertising). The panel reasoned that a higher form of judicial review should be reserved for restrictions on handgun ownership in the home as opposed to carrying a handgun in public.

The opinion shows a continued trend in the courts to discuss First Amendment free-speech precedents when evaluating Second Amendment claims.

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