Is the Second Circuit finally getting the message from the Supreme Court that the Second Amendment isn't a second-class right?
That might be too much to hope for, given the appellate court's track record of upholding almost every gun law that comes before it. But a new ruling out of the notoriously gun-unfriendly Second Circuit offers at least a glimmer of hope that some judges are taking the Supreme Court's Bruen decision seriously.
In Mills v. New York City, a three-judge panel has revived challenges to several of the Big Apple's restrictions on lawful handgun owners, including its one-gun-every-90-days purchase limit and its prohibition on carrying more than one handgun at a time. The panel concluded that a lower court was wrong to dismiss those challenges without requiring the city to justify its restrictions under the nation's historical tradition of firearms regulation.
Today's decision doesn't mean the restrictions have been struck down, or that the Second Circuit has suddenly become a champion of the right to keep and bear arms. But it does mean New York City won't be able to avoid answering some uncomfortable constitutional questions simply by insisting that its restrictions don't implicate the Second Amendment in the first place.
Honestly, this should have been an easy call for the Second Circuit. Limiting the number of firearms that can be carried at one time, rationing how many firearms can be purchased within a particular time period, and arbitrarily limiting the number of handguns that can be registered to carry all clearly implicate the right to keep and bear arms.
The district court made two errors, according to the Second Circuit. First, it held that none of the rules at issue “operates to permanently deprive applicants of their right to own and carry firearms.” As the appellate panel pointed out, the Second Amendment doesn't only protect against permanent deprivation or infringement of our right to keep and bear arms.
Certainly, none of the Supreme Court cases cited by the district court references the permanent/temporary distinction drawn by the district court, much less does any do so in identifying conduct covered by the Second Amendment. Rather, the Supreme Court having identified the Bruen step-one analysis as textual, it has rejected atextual distinctions in identifying what conduct is covered by the Second Amendment. Thus, just as the Court has observed that “[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms,” Bruen, 597 U.S. at 32, we are obliged to recognize that nothing in the text draws a temporary/permanent distinction with respect to the right to keep and bear arms.
The second error noted by the Second Circuit was a fundamental misreading of the text, history, and tradition test laid out by the Supreme Court.
“[T]urning to step one” of the Bruen analysis, the district court rejected plaintiffs’ argument that because the “challenged regulations all impact and implicate their right to keep and bear firearms,” (Bruen step one), it was the City’s burden “to show that these challenged regulations are consistent with the Nation’s historical tradition of firearm regulation” (Bruen step two). Observing that the “specific right” protected by the Second Amendment is “to possess and carry weapons in case of confrontation,” and that the right “has been recognized to coexist with ubiquitous local and state licensing regulations,” the district court dismissed plaintiffs’ claims because “plaintiffs have failed to show that the challenged regulations are foreclosed by the text of the Second Amendment.”
The Second Circuit points out that the Supreme Court has been pretty clear about this. If the plain text of the Second Amendment is implicated by a regulation, then the burden falls on the defendants to justify it based on history and tradition.
The district court’s observation that the Second Amendment has been recognized to coexist with ubiquitous licensing regulations derives from a footnote in Bruen stating that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which a general desire for self-defense is sufficient to obtain a permit.” The rules here at issue—limiting the number of guns a person can carry on his person, purchase within a 90-day period, or register to a carry license—are not akin to the shall-issue licensing regimes referenced in this footnote. In any event, that footnote is located in the part of Bruen’s text discussing the second step of analysis, not the first.
Unfortunately, the Second Circuit upheld the district court's dismissal of a challenge to the $340 application fee New York City charges for concealed carry permit applications, as well as the $88.50 fingerprinting fee. In doing so, the appellate panel pointed to a 2013 Second Circuit decision in Kwong v. Bloomberg on the grounds that "a firearm licensing fee does not implicate Second Amendment rights so long as it is (1) 'designed to defray (and does not exceed) the administrative costs associated with the licensing scheme' and (2) does not place 'anything more than a marginal, incremental, or [] appreciable restraint' on an individual’s Second Amendment rights."
Of course, Bruen said that exorbitant licensing fees can render a "shall issue" system unconstitutional, but the Second Circuit has tried to reconcile that language with Kwong by concluding that a licensing fee that is “both calibrated to only defray administrative costs and is not prohibitively expensive does not meaningfully constrain an individual’s ability to exercise his Second Amendment rights.”
That is this case. While plaintiffs emphasize that City licensing fees are higher than those in other parts of New York State, they do not assert that the fees are excessive in relationship to the City administrative expenses they defray. Insofar as they attribute the high expenses to City administrative inefficiencies, they have not pleaded facts plausibly alleging that the licensing scheme has been “put toward abusive ends." In any event, as recognized in Kwong v. Bloomberg, the challenged fees actually fall well short of the full administrative cost of licensing. Plaintiffs also do not allege that the fees are so exorbitant as effectively to deny ordinary citizens the right publicly to carry in every circumstance. Nor does it appear that they could plausibly do so. As the district court observed, the City’s challenged fees have not increased since 2013, when they were upheld in Kwong, despite inflationary pressures over the last decade.
The judges seem to believe that so long as the city can attribute these fees to administrative expenses, there's no constitutional problem. But since when does the government's inefficiency justify making the exercise of a fundamental right more expensive?
New York City shouldn't be able to charge hundreds of dollars for permission to exercise a constitutional right simply because it's created an expensive bureaucracy to administer that permission. And the fact that the fees haven't increased since 2013 doesn't make them reasonable today. A fee can be excessive even if the government hasn't raised it in thirteen years.
The court also sets an unreasonably high bar by suggesting that licensing fees must effectively prevent ordinary citizens from carrying before they become constitutionally suspect. The Second Amendment protects individuals, including those of modest means. A fee doesn't have to price everyone out of exercising their rights to impose an unconstitutional burden on those who can't afford it, but that's essentially what the Second Circuit has set as the standard when it comes to a facial challenge of the fees.
Even with the appellate court's refusal to take a second look at these sky-high fees, the panel's decision reviving most of the plaintiffs' claims is a refreshing change of pace for the Second Circuit. Whether it survives a potential en banc review remains to be seen, but this is real progress in a court that's often incredibly hostile in its treatment of our Second Amendment rights.
