to Ban on Non-Resident Weapons Permit Fails
New York Law Journal
October 3, 1:58 am ET
a position that the Second Amendment of the U.S. Constitution
does not protect a fundamental individual right, a Northern
District judge has held that a U.S. naval attorney with
top-secret security clearance can be barred by New York
from carrying a concealed weapon while visiting relatives
in Ulster County, N.Y.
David D. Bach, who lives in Virginia Beach and occasionally
visits family in Saugerties, N.Y., challenged a state law
that effectively bars him from obtaining the requisite license
to carry a pistol or revolver when he travels within New
York. Under state law, since Bach lives out of state and
has no employment or business interests in New York, he
is ineligible for a pistol permit.
the United States is in a state of war at home and abroad,
and thousands of citizens have been slaughtered by foreign
enemies in New York, Virginia and Pennsylvania, I continue
to maintain a heightened concern for the safety and welfare
of my family," Bach said in an affidavit. "[B]ecause
New York State law prohibits me from obtaining the required
license ... I am deprived of the only rational and effective
means I have to repel an attack from a violent criminal
a commissioned officer in the Naval Reserve now serving
in the Office of the General Counsel, is a former Navy SEAL
who was on active duty throughout Operation Desert Storm.
His parents own a small farm in Ulster County, which he
occasionally visits with his wife and three young children.
Bach said he is uncomfortable traveling unarmed.
of my occupation within the Department of Defense and Naval
Special Warfare, I believe my family and I are at greater
risk of being targeted by those seek[ing] to carry out symbolic
acts of terror," he said in court papers.
complained that New York law has effectively left him defenseless,
and to add insult to injury, "the state would be immune
from liability should my family or I be harmed by criminals,
even if the state were found to be grossly negligent."
sued Governor George E. Pataki, Attorney General Eliot Spitzer,
former State Police Superintendent James W. McMahon and
Ulster County Sheriff J. Richard Bockelmann. His suit in
the Northern District of New York rested primarily on the
Second Amendment right to keep and bear arms.
in a recent decision, U.S. District Judge Norman A. Mordue
of Syracuse rejected Bach's claims and dismissed the suit.
view of the weight of authority, including the present state
of Supreme Court and 2nd Circuit jurisprudence, the court
adopts the view that the Second Amendment is not a source
of individual rights," he wrote.
said that even though there is "sparse Supreme Court
guidance on the question," the seminal case, United
States v. Miller, 307 U.S. 174 (1939), "is almost invariably
read as demonstrating that the Supreme Court does not view
the Second Amendment as safeguarding a fundamental individual
right." He said the lower courts, including the 2nd
U.S. Circuit Court of Appeals, have consistently held that
the Second Amendment secures a collective right only.
Supreme Court's few subsequent references to Miller offer
little further guidance as to the Supreme Court's view of
the Second Amendment," Mordue wrote.
in light of the usual reading of Miller and the fact that
the Supreme Court has never disavowed that common reading,
the Northern District judge agreed with the state that Miller
supports the defendants' position "that the Second
Amendment does not secure an individual right."
Mordue rejected Bach's argument that New York law infringes
his right to travel, as protected by the Privileges and
Immunities Clause of Article IV of the U.S. Constitution.
He said the clause generally guarantees visitors to a state
the same privileges and immunities as residents, but it
does not entitle them to all the rights of residents.
court finds that New York's permit scheme bears a close
relationship to substantial and valid reasonsfor the disparate
treatment of nonresident travelers, beyond the mere fact
that they are citizens of other states," Mordue wrote.
administrative problems in investigating, monitoring, enforcing
and revoking permits where the applicant does not have residency,
employment or business ties with New York and the resultant
likelihood of errors, would be inimical to New York's scheme
of licensing firearms as a means of controlling their possession
for the public good."
appeared pro se. Assistant Attorney General Gerald J. Rock
defended the state defendants. Francis T. Murray of Kingston
appeared for the Ulster County sheriff in Bach v. Pataki,
is outrageous that a court dismissed a lawsuit brought
by a Virginia man who contended the New York pistol
licensing system is discriminatory. New York's Sullivan
Act was designed from the start to discriminate against
those the political elite in New York City thought
were beneath them.
1905, the New York Times candidly editorialized: "[The
proposed gun control] measure would prove corrective
and salutary in a city filled with immigrants and
evil communications, floating from the shores of Italy
and Austria-Hungary. New York police reports frequently
testify to the fact that
the Italian and other south Continental gentry here
are acquainted with the pocket pistol, and while drunk
or merrymaking will use it quite as handily as the
stiletto, and with more deadly effect. It is hoped
that this treacherous and distinctly outlandish mode
of settling disputes may not spread to corrupt the
native good manners of the community."
is why we have handgun licensing in New York, because
the liberal bigots of the day didn't like Italians
having guns. A hundred years later, we have another
bunch of liberal bigots led by Eliot Spitzer and the
state Assembly doing their part to keep and promote
discrimination in New York.
J. Rieper, Legislative Director
New York State Rifle & Pistol Association
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