New York Civil Rights Law article II, § 4 provides that “[a] well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.”

New York courts have held that the rights conferred by this provision are co-extensive with the rights conferred by the Second Amendment to the U.S. Constitution.1

In 1943, an appellate court in New York affirmed a trial court decision denying petitioner’s application for a concealed carry license.2 The court ruled that “authoritative Federal decisions construing the Second Amendment may properly be applied to the State statute,”3 and noted that “local authorities, having in view considerations of public safety and the maintenance of law and order in their community, shall ascertain whether ‘proper cause exists for the issuance’ of the desired license.”4

More recently, in the 2009 case People v. Perkins, a New York trial court rejected a section four challenge to New York’s pistol permit requirement.5 The defendant relied on the Supreme Court’s decision in District of Columbia v. Heller, which held that the District of Columbia’s ban on handgun possession in the home violated the Second Amendment.6 The court rejected this challenge to the state permit requirement, pointing out that the defendant in this case was not in his home at the time of the crime, and did not have a valid pistol permit.7 According to the court, the right conferred by the Second Amendment—and, by extension, section four—“is not absolute and may be limited by reasonable governmental restrictions.”8 The court reasoned that the state law “does not effect a complete ban on handguns and is, therefore, not a ‘severe restriction’ improperly infringing upon defendant’s Second Amendment rights. Moreover, in our view, New York’s licensing requirement remains an acceptable means of regulating the possession of firearms … and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner.”9

Second Amendment challenges to various New York gun laws have been rejected in recent years.  For example, in the 2012 case Kachalsky v. County of Westchester, the Second Circuit upheld  the “proper cause” requirement of New York’s concealed carry permitting laws.10 Noting that there was “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety,”11 the court applied intermediate scrutiny, and found that “[r]estricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention.” As such, the court concluded that the challenged law did not violate the Second Amendment.12

Similarly, in 2013, the Second Circuit held, in Kwong v. Bloomberg,13 that a statute requiring a fee for a residential handgun license was constitutional.  Among other reasons, the court found that the $340 fee for a three-year license was nothing more than a “marginal, incremental or even appreciable restraint on [plaintiff’s] Second Amendment rights.”14  The court found that “the licensing fee is designed to allow the City of New York to recover the costs incurred through operating its licensing scheme, which is designed to promote public safety and prevent gun violence.”15  In light of this, the court concluded that the challenged fee “easily survives intermediate scrutiny.”16

For more on how federal courts have interpreted the scope of the Second Amendment, see the Law Center’s Post-Heller Litigation Summary.

Notes
  1. See, e.g., Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 198 (N.Y. Sup. Ct. 1994) (noting that the Second amendment is identical in its language to article 2, section 4 of the Civil Rights Law, and that the Second Amendment “should be used in interpreting the provisions of this State law); Guida v. Dier, 375 N.Y.S.2d 826, 828 (N.Y. Sup. Ct. 1975), modified on other grounds, 387 N.Y.S.2d 720 (N.Y. App. Div. 1976) (noting that the “right guaranteed by the Second Amendment” is “further defined in section 4 of article 2 of the Civil Rights Law”). ⤴︎
  2. Moore v. Gallup, 45 N.Y.S.2d 63 (N.Y. App. Div. 1943). ⤴︎
  3. Id. at 66. ⤴︎
  4. Id. at 67. ⤴︎
  5. 880 N.Y.S.2d 209 (N.Y. Sup. Ct. 2009). ⤴︎
  6. 554 U.S. 570 (2008). ⤴︎
  7. 880 N.Y.S.2d at 210. ⤴︎
  8. Id. ⤴︎
  9. Id. ⤴︎
  10. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). ⤴︎
  11. Id. at 94-95. ⤴︎
  12. Id. at 98. ⤴︎
  13. Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013). ⤴︎
  14. Id. at 167 (quotations omitted). ⤴︎
  15. Id. at 169. ⤴︎
  16. Id. (quotations omitted). ⤴︎