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Column: Guns, Guns, Guns and the First Amendment (New York Law Journal)

By Christopher Dunn

Following the U.S. Supreme Court’s controversial 2008 decision in Heller v. District of Columbia holding that the Second Amendment confers on individuals – as opposed to state militias – a right to possess handguns, the federal courts have been awash in disputes about the boundaries of this newly minted constitutional entitlement. Other than extending Heller from the District of Columbia to states and municipalities, the Supreme Court has not revisited the issue, leaving it to the Courts of Appeals to construct an entirely new area of constitutional law.

Since February, when I last wrote about Second Amendment developments, the Second Circuit has issued a significant decision examining the interplay between Second Amendment and First Amendment rights, and the Supreme Court has denied review in another important gun rights case from the circuit in which First Amendment concerns played a key role. In yet a third case, the Second Circuit rejected an effort to invoke the Second Amendment to immunize a criminal defendant from prosecution for possessing a lawfully purchased shotgun. Taken together, these decisions point to a relatively narrow approach to gun rights in the Second Circuit — at least for now.

Gun/Parade Permit Fees
For civil rights advocates concerned about burgeoning gun rights, Heller poses a dilemma because efforts to limit Second Amendment protections run the risk of creating doctrine that could be used to limit protections under other provisions of the Bill of Rights, including the First Amendment. Aptly illustrating the perils of Second Amendment controversies for First Amendment rights is a case involving gun permit fees — think “parade permit fees” — that the Second Circuit decided on July 9.

At issue in Kwong v. Bloomberg was a $340 fee that New York City imposes for renewal of 3-year hundgun permits pursuant to a state statute allowing it and Nassau County to set fees beyond a $10 limit imposed on every other locality in New York. Among other claims, the plaintiffs — including two gun-rights advocacy groups — asserted the fee excessively burdened their Second Amendment rights.

Challenges to permit schemes have been a staple of First Amendment skirmishes for decades, with the Supreme Court long ago having recognized that permit requirements on protest activity are a form of prior restraint that require close judicial scrutiny. Typically, these challenges focus on content or viewpoint discrimination in permit schemes or on excessive discretion given to officials administering the schemes, including in the setting of fees. For instance, in 2003 the Second Circuit (in a case I brought) invalidated New York City’s fee scheme for political events in City parks on the grounds that the scheme gave City officials too much discretion in setting the fees.

In resolving the Second Amendment fee challenge brought in Kwong, the Second Circuit relied entirely on First Amendment doctrine, with the panel splitting over application of that doctrine in a way that illustrates the tension between Second Amendment and First Amendment rights. Writing for himself and Judge Richard Wesley, Judge Jose Cabranes first held that “the Supreme Court’s First Amendment fee jurisprudence provides the appropriate foundation for addressing plaintiffs’ fee claims under the Second Amendment.” This was not particularly surprising given that the Supreme Court in Heller had connected Second Amendment and First Amendment doctrine. What proved more difficult was specific application of First Amendment fee law to New York City’s $340 fee.

As with many areas of constitutional law, the pivotal issue before the Court was the correct level of scrutiny to be applied to the fee. Arguing that it substantially burdened their Second Amendment right to possess a gun, the plaintiffs contended the fee was subject to heightened scrutiny, rather than the minimal rational-basis scrutiny. Judges Cabranes and Wesley rejected this:

[W]e [have] held that the appropriate level of scrutiny under which a court reviews a statute or regulation in the Second Amendment context is determined by how substantially that statute or regulation burdens the exercise of one’s Second Amendment rights. We further explained that where the burden imposed by a regulation on firearms is a “marginal, incremental or even appreciable restraint on the right to keep and bear arms,” it will not be subject to heightened scrutiny. “Rather, heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes).”

On the facts of this case, we find it difficult to say that the licensing fee, which amounts to just over $100 per year, is anything more than a “marginal, incremental or even appreciable restraint” on one’s Second Amendment rights especially considering that plaintiffs have put forth no evidence to support their position that the fee is prohibitively expensive.

Hedging their bets, however, the two judges added that the fee would survive even heightened scrutiny in light of the fact that it coincided with the actual costs of processing renewal applications and because of the important governmental interest in regulating guns: “We recently observed that ‘New York has substantial, indeed compelling, governmental interests in public safety and crime prevention.’ Because the record demonstrates 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, we agree with the District Court that [the fee] easily survives ‘intermediate scrutiny.’”

Invoking the December 2012 massacre of 20 school children in Newtown, Connecticut — the state in which he resides — Judge John Walker took a different approach in a concurring opinion. Though he did not dispute that First Amendment fee doctrine applied to the gun dispute before the Court, he viewed the $340 fee as imposing a substantial burden on Second Amendment rights, thus necessitating intermediate scrutiny. And while agreeing the fee “easily survives intermediate scruity,” he was prepared to be more aggressive than Judges Cabranes and Wesley in describing the weight of the government’s interest (with the reference to Newtown being added by Judge Walker): “Indeed, I would go a step further. As we recently noted, ‘[t]he regulation of firearms is a paramount issue of public safety, and recent events in [Newtown, Connecticut] are a sad reminder that firearms are dangerous in the wrong hands.’ Because of the heightened safety concerns in the Second Amendment context, I would find that handgun licensing fees tied to and limited by cost recovery are generally constitutional under the Second Amendment.”

These two approaches highlight the potential risks that Second Amendment cases pose to the First Amendment. As a threshold matter, free-speech advocates always seek to characterize burdens as being substantial so as to trigger heightened scrutiny, and in this respect Judge Walker’s approach is better news for the First Amendment. On the other hand, free speech advocates vigorously argue that permit schemes subject to heightened scrutiny rarely can survive, and in this respect, Judge Walker’s conclusion — and the similar dicta from Judges Cabranes and Wesley — that the gun permit fee “easily” meets heightened scrutiny could be somewhat unsettling.

At the end of the day, however, Kwong appears to pose little threat to the First Amendment. In upholding the $340 fee, the majority emphasized that the plaintiffs had failed to make a showing that the fee placed any burden on them, a situation that makes this case very narrow. More importantly, all three judges emphasized the government’s compelling interest in regulating guns, an interest that is unique to the Second Amendment.

Concealed Weapons
The second important and recent guns-rights development concerns a November 2012 Second Circuit decision that Judge Walker quoted and cited in his concurring opinion in Kwong in support of his assertion the government has a compelling interest in gun regulation. That decision was Kachalsky v. County of Westchester, in which the court rejected a Second Amendment challenge to the New York statute that substantially limits the ability of people to obtain permits to carry concealed weapons outside their homes. (New York generally prohibits the carrying of unconcealed weapons.)

In upholding the statute at issue in Kachalsky, the Second Circuit in an opinion by Judge Wesley made a notable effort to separate First and Second Amendment doctrine, rejecting a claim that the permit requirement at issue there was akin to a First Amendment prior restraint. As Judge Wesley observed, freely importing First Amendment doctrine into the Second Amendment context “would be an incautious equation of the two amendments and could well result in the erosion of hard-won First Amendment rights.”

Kachalsky appears to have been a test case, having been brought by a lawyer who successfully got the Seventh Circuit to invalidate Illinois’s ban on concealed weapons. Following the Second Circuit’s rejection of the New York law, the lawyer sought Supreme Court review. On April 15, however, the Court rejected the petition, leaving intact the New York law and the Second Circuit’s analysis.

Lawfully Purchased Shotguns
In a third significant development involving gun rights, the Second Circuit in April addressed the question whether the Second Amendment shields a person from prosecution for having a shotgun in his home when the gun had been lawfully purchased for self-defense but was being used for unlawful purposes. The defendant in United States v. Bryant was involved in selling cocaine out of his home in Rochester. After being robbed, he legally purchased a shotgun, which was discovered when the police executed a search warrant at the home and recovered drugs. Among other things, Bryant was federally charged with unlawful possession of a firearm “in furtherance of a drug trafficking crime.”

In the Second Circuit Bryant argued his conviction was invalid because he had a Second Amendment right to possess the shotgun for self-defense, even if it also was used as part of criminal activity. In a per curiam opinion, Judges Rosemary Pooler, Peter Hall, and Debra Livingston rejected this claim. In doing so, they construed Heller and its progeny as limiting the right to bear arms to law-abiding persons and activities:

[W]e hold that the Second Amendment does not protect the unlawful purpose of possessing a firearm in furtherance of a drug trafficking crime and that 18 U.S.C. § 924(c) as applied in this case does not violate the Second Amendment. Here, Bryant may have purchased and possessed the Remington shotgun for the “core lawful purpose” of self-defense, but his right to continue in that possession is not absolute. . . . . [O]nce Bryant engaged in “an illegal home business,” he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.

Looking Forward
As Judge Walker noted in his concurring opinion in the gun permit fee case, Second Amendment jurisprudence remains “opaque” pending further clarification from the Supreme Court. For the time being, however, the Second Circuit has taken a relatively narrow approach to gun rights and seems to be cognizant of the threat that Second Amendment challenges may present to First Amendment rights. And the Supreme Court’s decision not to review the Circuit’s decision upholding New York’s concealed-weapons scheme is encouraging. Nonetheless, the cases presented to the Second Circuit so far are just the beginning of what is likely to a wide range of cases testing the boundaries of the Second Amendment.

*Christopher Dunn is the associate legal director of the New York Civil Liberties Union and is an adjunct professor teaching in the Civil Rights Clinic of the NYU School of Law. He can be reached at

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