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Wednesday, April 4, 2018

Appeals Court Rejects Man's Second Amendment Challenge to New York's Handgun License Requirements

A state appeals court on Tuesday rejected a man’s constitutional challenges to New York’s legal requirements for getting a license to carry a firearm, writing that the state’s “proper cause” requirement is “substantially related” to protecting the public and that the broader licensing scheme doesn’t impose a “blanket ban” on gun ownership.

A unanimous Appellate Division, First Department, panel knocked down plaintiff Jonathan Corbett’s requests for (1) a declaration that the state’s “proper cause” requirement for getting a gun license was facially unconstitutional, and (2) a declaration that three background questions posed by the New York City Police Department on its concealed-carry license applications were unconstitutional. The appeals court also denied Corbett’s request for an order directing New York City to issue him a concealed-carry gun license.

Corbett, whose website touts his “civil-rights advocacy” while describing his history of launching civil-rights actions against various institutions, apparently brought his gun-license lawsuit as a way to test and potentially challenge New York’s licensing rubric. A portion of the website is labeled, “Is It *Really* Impossible To Get A Gun License in NYC?”

Justices David Friedman, John Sweeny, Ellen Gesmer, Cynthia Kern and Anil Singh made relatively quick work of of Corbett’s arguments, which he made pro se.

Proper cause must be shown under state Penal Law § 400.00[2][f] if a license applicant wants to carry a concealed firearm. And while the term is not defined in the statute, it has often referred to showing a business need for a gun when people are exposed to safety risks.

According to the panel, Corbett argued that mandating a proper-cause showing was facially unconstitutional to the extent it is interpreted to mean that one citizen must demonstrate a greater need than that of an average citizen and when combined with the state’s blanket ban on openly carrying handguns.

The justices disagreed. They said that the element passes intermediate constitutional scrutiny because it is  “substantially related to the state’s important interest in protecting public safety.” They further noted that “viewed as a whole, New York’s handgun licensing scheme does not impose any blanket or near-total ban on gun ownership and possession.”

Corbett further challenged, and had refused to answer as an applicant, three NYPD license-application questions, according to the panel. They related to (1) whether he has been discharged from any employment; (2) past use of narcotics or tranquilizers; and (3) past testimony before an executive, legislative or judicial body.

“These questions are designed to elicit information that can assist the background investigation that is undertaken by the New York Police Department [and …]are justified because they serve to promote the government’s ‘substantial and legitimate interest . . . in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument,’” the panel wrote, quoting Matter of Warmouth v Zuckerman, 138 AD3d 752, 753 (2d Dept 2016).

The panel’s opinion affirmed Manhattan Supreme Court Justice Carol Edmead’s 2017 decision in Jonathan Corbett v. City of New York, 158273/16.

Corbett could not be immediately reached for comment, nor could the city Law Department, whose senior counsel Elina Druker handled the appeal for the city.





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