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 Jonathan Corbett, Civil Rights Advocate

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Gun Rights

Peruta v. San Diego — Another Side-Step of Whether We Have the Right to “Bear” Arms

2agoodreason

In preparation for my lawsuit as part of my exposé on gun rights in NYC (Part I, Part II), I’ve been watching Peruta v. San Diego.  The reason is that the federal courts of appeals, divided into 13 circuits that each have jurisdiction over a different chunk of the United States, have been struggling to determine to what extent the Second Amendment (“…the right of the People to keep and bear arms…”) guarantees the right to not just keep (own guns in your home), as the Supreme Court made clear is covered by the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), but the right to bear arms — that is, the right to carry them around with you.

Here in New York, the 2nd Circuit Court of Appeals has ruled that to whatever extent the Second Amendment gives us the right to bear arms, that right is not “fundamental” and is therefore subject to any restriction that furthers a government interest, subsequently concluding that a state may restrict the right to bear arms to those who show a “good reason” to carry them.  Kachalsky v. Cacace, 701 F.3d 81 (2nd Cir. 2012).

However, in the 7th Circuit Court of Appeals, legendary judge Richard Posner wrote the majority opinion invalidating an Illinois statute that required a “good reason.”  Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).  And, judges in several other circuits have suggested, without ruling, that they would lean the same.

Peruta was another court upholding the right to bear arms, the 9th Circuit Court of Appeals.  But, after a 3-judge panel upheld that right, the other judges in the court voted to rehear it en banc — in front of 11 judges — and last month overturned the 3-judge panel and allowed California to require a “good reason” before issuing a carry license.

The biggest problem with Peruta is that the judges, in their 190 page (!!) opinion entirely side-stepped the question.  You see, courts have been fairly consistent in ruling that a state may restrict open-carry, or restrict concealed carry, but they have not typically allowed a state to restrict both.  In other words, the general rule, save for the Kachalsky aberration in the 2nd Circuit, was that a state must guarantee your right to bear arms, but can tell you whether you must conceal your handgun or make it visible.  And so, the Peruta en banc court once again said that a state may ban concealed carry without deciding whether it may simultaneously ban open carry.  The attorneys in Peruta clearly argued the point that they are seeking the right to bear arms (either open or concealed), and felt compelled to spend 190 pages without ruling on that point.  (Peruta’s attorneys have moved the court to re-hear arguments and consider the true question, a motion likely to be declined.)

In fairness, of those 190 pages, many of them are written by 4 judges of the 11 that dissented from the majority opinion, and given the split in this case, plus the circuit split (2nd & 9th Circuits vs. 7th Circuit), the Supreme Court may hear it (and Peruta’s lawyers almost certainly will ask them to).  I have to ponder whether I want to file my case in New York before that happens or right now.  I shall give it some thought.

Is It *Really* Impossible To Get A Gun License in NYC? (Part II)

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Not so fast, Mr. Corbett…

In March I wrote Part I of my journey to see if the rumors are true that it’s impossible for the average citizen to get a license to carry a handgun in New York City.  Part I described the application, $430 filing fee, and then the follow-up where the City asked for more than 2 dozen additional pieces of documentation, all of which I provided but could not seem to get in touch with the NYPD officer assigned to investigate my application.

Well, just a day after posting and sharing on Twitter with a tag to NYPD’s official @NYPDnews account, which spiked traffic to the blog on the order of several thousands of viewers, I suddenly got an e-mail from the licensing officer saying that he noticed we had difficulty reaching each other and scheduling an interview.   I’ll never know if making it public was what did it, but I suspect it may have helped.  (BTW, if you don’t yet follow me on Twitter, add me!)

I met with Officer Barberio, who was a friendly guy and took only a few minutes of my time to tell me that my background was clear but my “reason” for wanting a license probably wouldn’t make it past the higher-ups that would have a look at the application.  You see, New York law requires people who want to exercise their right to bear arms to give a reason.  The reason can be self-defense, but the applicant, apparently, must show a need for self-defense greater than the average citizen.  Gun licenses in New York are issued by county, and many counties apparently are lenient on this requirement, but not those comprising New York city.

Officer Barberio also clarified a few anomalies regarding the paperwork.  He explained that despite the forms available from the NYPD stating that one must have a business reason for applying to carry a handgun, you can ignore that part and state a personal reason.  He explained that the requirement to have your roommate’s consent, if you live with someone else, isn’t a bar to getting a license, but would result in them interviewing your roommate.  And, he explained that reference letters are no longer required, even though his form letter to me weeks prior insisted that they are.

About 3 weeks later, a letter appears from the NYPD.  Its title was “NOTICE OF DISAPPROVAL,” and explained the NYPD’s position regarding the requirement of showing a need.  The letter cited Kachalsky v. Cacace, by which it really meant Kachalsky v. County. of Westchester, 701 F.3d 81 (2d Cir. 2012), wherein the U.S. Court of Appeals for the Second Circuit upheld the provision of New York law that allowed the state to demand a “reason.”

The only problem?  In the meantime, two other circuits of the Court of Appeals have ruled otherwise.   Middle America got its decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012, Posner, J.) and the west coast got it in Peruta v. San Diego, 742 F.3d 1144 (9th Cir. 2014).  Peruta is pending an en banc (larger set of judges) review that should be (re-)decided any day now.  I shall wait for that decision before I file suit, and in the meantime have filed an administrative appeal with the NYPD.

Stay tuned for Part III this summer… 🙂


Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Is It *Really* Impossible To Get A Gun License in NYC? (Part I)

If you ask a random person living in NYC how hard it is to get a gun license, they will probably tell you that if you want a license to carry a gun, you have to be a cop, work as a security guard, or “know someone” (i.e., be rich and have donated to the right politician or organization).  The thing is, I couldn’t find anyone who didn’t fit into one of those categories who had actually tried, and in light of semi-recent Supreme Court rulings that the 2nd Amendment is an individual right, not limited to “militias,” I figured it was about time to put it to the test.

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What you need to apply for a NYC gun license — to start!

I gathered all the forms together, went down to “1 Police Plaza” — the NYPD headquarters in lower Manhattan, and was promptly told I could not apply because I didn’t have an ID card issued by the New York DMV.  Apparently a Florida driver’s license, a social security card, and a U.S. passport were insufficient to prove who I am, even though all of those are sufficient to get the New York DMV to give me an ID card.

But, no problem.  A New York ID lasting for 8 years turns out to be a $12 investment.  My complete, “accepted” (as in, they were willing to consider it) application is pictured above: 1 three-page application, 1 letter of necessity, 1 letter explaining any checkboxes you may have checked that need explanation (Ever had a speeding ticket?  That needs to be explained!), 1 letter from your roommate approving of your license or an affidavit that you have no roommate (My 2nd Amendment rights are contingent on my roommate’s permission?), 1 affidavit from someone willing to take possession of my guns if I die, 2 photos, 1 New York ID, 1 U.S. passport, 1 social security card, and $429.75.  Oh, and a copy of my business tax return.

Business tax return?  In order to apply to carry a firearm in New York City, you must provide a business reason.  This seems likely to be ruled unconstitutional if challenged today in light of the new Supreme Court rulings, but I happen to run a business for which I have the necessity to get a gun license: I am a civil rights advocate, I need a license to exercise my civil rights, and thanks to your donations over the last 5+ years, I file a business tax return annually.

The application also asks a lot of extremely personal and seemingly irrelevant questions.  Have you ever been fired from a job?  Taken a sedative medication or pain killer (you’re checking yes if you’ve ever had surgery)?  Testified before Congress?  The NYPD wants to know.  If your answer to any of the above is yes, add that to your explanation form next to your speeding ticket explanation.  For all of these questions, I checked no box and explained on the form that I refuse to answer because they are irrelevant.

But, apparently that’s good enough to get the app in processing.  After everything is paid for, fingerprints are taken (included in that $429.75 fee, which, by the way, is non-refundable if you are denied a license, and lasts for only 2 years assuming you do).  A few days later (shockingly promptly), I get a letter from the officer assigned to examine my case:

Corbett Gun License App Reply (.pdf)

The reply is a request for *25* more documents that the NYPD needs to complete my application.  Some of the highlights include:

  • 3 letters of recommendation, notarized and signed by people who know you for at least 5 years but are not family members
  • The original court records for any of those speeding tickets you listed on your application
  • A letter from your doctor describing your mental illness (funny, since I checked “no” on the “is a doctor treating you for a mental illness” box on the app)
  • 6 months of bank withdrawal slips
  • Pictures of your business, inside and out
  • A whole lot of tax records

I’m really good at paperwork, so I compiled everything (or explained why I cannot, or will not, be getting them a particular document).  The letter says that once I do that, I should call Police Officer Thomas Barberio.

So I called.  And I called.  And I called…

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No less than 10 times on 7 different days.  Officer Barberio is, it seems, never around.  So I sent a fax.  No reply.

For Part II of my journey, I head back to 1 Police Plaza to see if we can find Officer Barberio or his supervisor.  Stay tuned.


Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

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