A District Court judge in New York has ruled that the state’s restriction on concealed carry by nonresidents violates the Second Amendment rights of visitors to the state.
On August 20, Judge Mae D’Agostino of the U.S. District Court for the Northern District of New York weighed the standards set down in the critical 2022 case New York State Rifle & Pistol Association v. Bruen and determined that the law doesn’t meet legal muster. Incidentally, Judge D’Agostino was appointed to the court by President Barack Obama.
In his ruling in the case Higbie v. James, Judge D’Agostino wrote: “Guided by the Supreme Court’s holding in Bruen, the Court grants Plaintiffs’ motion for summary judgment and concludes that the New York firearm statute is unconstitutional under the Second Amendment as applied to Plaintiffs Votruba and Harris. As noted by the district court in California, ‘the State cannot point to a single law from the Founding or framing tradition that wholesale blocked nonresidents from participating in a general firearms licensing scheme.’ The Court agrees that ‘[o]pening the application process to nonresidents does not limit [New York’s] ability to regulate who receives a license based on other measured parameters. Nonresidents are simply afforded the same chance guaranteed to residents to exercise their Second Amendment rights.”
Also in the ruling, Judge D’Agostino chided anti-gun New York Attorney General Tish James for not being able to prove a historic precedent for the law—the second requirement under the Bruen standard.
“Defendant James has not presented any legislative history which supports restricting nonresidents from applying for a firearm license in New York,” Judge D’Agostino wrote. “Contrary to Defendant James’ argument, an ‘in-state residency or employment requirement for firearms licensing,’ is not entirely ‘consistent with this Nation’s historical tradition of firearm regulation.’ Defendant James contends that for the Court to reach this conclusion, it ‘would need to adopt an interpretation of Penal Law § 400.00(3)(a) that is contrary to both New York’s position and controlling precedent from the New York Court of Appeals’ because ‘New York’s licensing law does not contain such a[n in-state residency or employment] requirement.’”
The New York ruling follows a similar decision regarding non-resident concealed carry permits in California. On July 1, a federal district court judge in California ruled that state’s law to be unconstitutional and issued an order granting final summary judgment to the plaintiffs.
In her opinion in Hoffman v. Bonta, District Court Judge Cathy Ann Bencivengo stated: “A violation of a fundamental right is sufficient to show irreparable harm. Even a brief violation is sufficient. And it is generally recognized that there is no adequate remedy at law to rectify a constitutional injury.”
The ruling further stated: “Although California identifies a regulatory burden from potentially tens of thousands of new applications, the constitutional infringement pushes the balance of equities in Plaintiffs’ favor. (A plaintiff who can show a statute violates the Constitution will also usually show that both public interest and balance of equities favor an injunction.) Finally, the public benefits from the expanded access—through appropriate state oversight—to a fundamental right.”
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