In the eyes of the NRA, only three places in America “completely [prohibit] carrying firearms for personal protection outside the home or place of business” — the state of Illinois, the city of Washington, D.C., and New York City. Compare that to Alaska, Arizona, Vermont and Wyoming where you don't even need a permit to carry a concealed weapon.
At least in New York, the NRA's description is not quite true. According to court documents filed in 2011, the NYPD counts 31,000 active handgun licenses and 21,000 permits for shotguns and rifles.
But it is true that New York City has a rigorous review process for handgun permits. In Kentucky, a person wanting a concealed carry license for a handgun fills out a form at their local sherriff's office, pays a $60 fee and takes a firearms safety course. As long as they haven’t committed a crime or been judged mentally defective, the applicants gets their permit. That's because Kentucky is what's known as a “shall issue” state, meaning the authorities grant applicants their concealed carry permit unless a specific reason surfaces for them not to, like a past criminal conviction.
In New York City, after you fill out the three-page application that, among other things, asks you to list your employment and residences over the past five years, turn in two affidavits, get someone to promise in writing to take charge of you weapons if you die or are incapacitated and pay $431.50 in fees, the police may issue a permit to keep a gun in your house or business, or even to carry it. Or they may not. Because New York is a “may issue” state, with permitting authority delegated to the counties, it's up to local officials whether to give you a handgun license. As the NYPD puts it on its website: “If your investigation results in a determination that you lack character and fitness for a license or permit, your application will be denied.”
This is why most handgun licenses issued in New York City are for retired police officers or for people who want to keep a gun in their house, not people who want to carry their guns with them as they move about. Only about 4,000 licenses in 2011 were for “carry” outside a home or business.
When the Supreme Court in its 2008 Heller ruling for the first time interpreted the Second Amendment to protect an individual right to bear arms in a case that shot down part of Washington, D.C.'s gun ban, and two years ruled in theMcDonald case (which was about Chicago's gun rules) that the Heller decision applied to the states as well, it seemed like just a matter of time before New York State's gun laws faced a serious test.
New York City — where even rifles and shotguns must be registered, an unusual requirement — appeared especially appealing as a target. Wayne LaPierre, the executive vice president of the NRA, told this year's NRA convention, “the elites of New York City have their guns — 35,000 permits have been issued there to the celebrities and the rich and the connected. You and I couldn’t get one. Neither can 99 and a half percent of New York residents, left unarmed and defenseless against the repeat offenders let loose by Bloomberg’s 'Let’s Make a Deal' criminal justice system.” His assertion, based on tabloid reports that folks like Robert DeNiro and Harvey Keitel have permits, ignored the fact that many permit holders in the city are retired law enforcement — hardly elites — and that Bloomberg has been anything but soft on crime.
But factual errors aside, with D.C. and Chicago already tackled, New York looked like a logical next lawsuit.
“I think when Heller and McDonald came down,” says David Jensen, a gun rights lawyer based in Manhattan, “I definitely had the sense dealing with the city that they had the sense that there were going to be attacks on this system.”
For the moment, however, the city's been able to defend its gun regulations, which are among the strictest in the country.
Less than a month after the McDonald case, a group of plaintiffs who had been denied concealed carry permits by Westchester County challenged in federal court the state law that gave the county the right to say “no,” –or, as a judge put it, to make “individualized, case-by-case determinations regarding whether full-carry permit applicants have an actual and articulable — rather than merely speculative, potential, or even specious — need for self-defense.”
If you're having trouble viewing the image, you can see the pie chart here: “Source of crime guns recovered in New York State.”
In a separate case filed in federal court last spring, several defendants challenged New York City's licensing scheme — specifically the $340 fee, which they argued placed an unconstitutional burden on would-be gun owners.
Federal judges backed both the state and the city. In the Westchester case, the judge relied on the Heller ruling itself, which had noted, “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
And in the case concerning the city's fee, the judge ruled that, “while the Government may not tax the exercise of constitutionally protected activities, it may impose a fee designed to defray the administrative costs of regulating the protected activity.” Both sides in the case admitted that the fee, while far steeper than what's required elsewhere in New York State, didn't come close to covering the cost born by the city for processing handgun permit applications.
However, both cases are now on appeal in the federal second circuit. Other federal courts are still figuring out how to use Heller and McDonald to evaluate city and state gun laws. As that legal territory gets mapped case by case, it's possible the state law and the city's process might run afoul of a judge's interpretation.
While some gun rights supporters have called for a full-on challenge to New York's gun laws, gun-rights litigator Jensen is skeptical that approach will work. “As a general proposition, the fact that something is protected by the Constitution does not mean licensing is impermissible. Certainly courts have upheld registration for voters and you have a fundamental right to vote. They’ve upheld permits for large assembly on the rationale of 'Hey, what if this becomes a riot?' I would not say there's any categorical ban of licensing.”
This article was reported in partnership with The Investigative Fund at The Nation Institute, now known as Type Investigations and is the sidebar to the story, “How the Gun Industry Got Rich,” published in the Nation.