Federal Judge Affirms Second Amendment Rights Cross State Lines

We don’t lose our First Amendment, Fourth Amendment, Fifth Amendment, or any other enumerated rights when we visit another state, so why should our Second Amendment rights stop at the border of the state where we live? 

A federal judge in New York has reached the obvious conclusion in a case dealing with the inability of non-residents to lawfully bear arms in the state: such a policy baldly violates the right to keep and bear arms. 

The case, which features Newsmax host Carl Higbie as the named plaintiff and is supported by Gun Owners of America, was filed last February. Today, U.S. District Judge Mae A. D’Agostino largely sided with Higbie and his co-plaintiffs, concluding that New York must offer lawful gun owners a way to keep and bear arms in the state, no matter where they live. 

In this case, there is a lack of historical tradition to support the notion that states can exclude out-of-state applicants and none of the Plaintiffs fall into any of the aforementioned exceptions. There is no dispute that Plaintiffs are not dangerous felons, nor are they subject to restraining orders. It is also uncontested that Plaintiffs do not seek to carry an uncommon, dangerous firearm, nor do they seek to carry a firearm in an established “sensitive place.” Finally, it is undisputed that Plaintiffs have good moral character. Given the lack of supportive historical tradition for restricting firearm licenses to out-of-state residents and the fact that Plaintiffs are not otherwise exempt from carrying a firearm, the statute is unconstitutional as applied to Plaintiffs, who were denied and prohibited from getting a license in New York.

D’Agostino’s opinion is worth reading in full, as she goes into some detail about the lengths that New York went to in its attempt to moot the litigation, including changing the language on the forms applicants must fill out. Despite those attempts, D’Agostino pointed out that those changes could just as easily be undone, and the issue remained a live one regardless of New York’s moves for mootness. 

While D’Agostino agreed that the non-residents who sued should be able to apply for a New York carry permit, she declined to reach the conclusion that New York should recognize valid carry permits issued by other states under the Privileges and Immunities clause of the Fourteenth Amendment because they “fail[ed] to establish that the purpose and effect of the New York firearm statute necessarily involves the economy or protectionism.” According to D’Agonstino, the Second Circuit has previously declared that “it is protectionist purpose, and not disparate effects alone, that identifies the sort of discrimination prohibited by the Privileges and Immunities Clause.” That seems like a gross misreading of the Constitution to me, but if it’s Second Circuit precedent it’s up to the Supreme Court to correct the error. 

D’Agostino’s decision isn’t perfect, and in some respects it leaves a lot to be desired. Still, the bottom line is that the judge recognizes that our right to bear arms doesn’t become null and void when we cross the boundary of another state, and her decision is one that Second Amendment activists can build on going forward.