CopLaw Update

December 7, 2012 

Web Source: http://www.ag.ny.gov/sites/default/files/press-releases/2012/CA2%20Kachalsky%20opinion.pdf

United States Court of Appeals for the Second Circuit

KACHALSKY

–v.–

WESTCHESTER

Docket Nos. 11-3642 and 11-3962

Decided November 27, 2012

"...the district court concluded that the concealed carrying of handguns in public is “outside the core Second Amendment concern articulated in Heller: self-defense in the home.... Unlike a license for target shooting or hunting, “[a] generalized desire to carry a concealed weapon to protect one’s person and property does not constitute ‘proper cause.’” In re O’Connor, 585 N.Y.S.2d at 1003 (citing Bernstein v. Police Dep’t of City of New York, 85 A.D.2d 574, 574 (1st Dep’t 1981)). Good moral character plus a simple desire to carry a weapon is not enough. Moore v. Gallup, 293 N.Y. 846 (1944) (per curiam), aff’g 267 A.D. 64, 66 (3d Dep’t 1943); see also In re O’Connor, 585 N.Y.S.2d at 1003. Nor is living or being employed in a “high crime area[].” Martinek v. Kerik, 294 A.D.2d 221, 221-22 (1st Dep’t 2002); see also Theurer v. Safir, 254 A.D.2d 89, 90 (1st Dep’t 1998); Sable v. McGuire, 92 A.D.2d 805, 805 (1st Dep’t 1983).... The proper cause requirement falls outside the core Second Amendment protections identified in Heller. New York’s licensing scheme affects the ability to carry handguns only in public, while the District of Columbia ban applied in the home “where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628. This is a critical difference. The state’s ability to regulate firearms and, for that matter, conduct, is qualitatively different in public than in the home. Heller reinforces this view.... But while the state’s ability to regulate firearms is circumscribed in the home, “outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.” Masciandaro, 638 F.3d at 47....proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. N.Y. Penal Law § 400.00(2)(f); see, e.g., Klenosky, 75 A.D.2d at 793...Restricting 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..."

Comment: Luckily in Connecticut, the 'standard' for issuing a Firearms Carry Permit is 'suitability' and NOT 'proper cause need'. That being said, there is no duty for law enforcement to protect the 'general public' from crime.  Generally, members of the general public are not identifiable foreseeable victims of crime. Unless and until a particular person can establish a 'special relationship' with law enforcement of the kind that would subject him/her  to increased danger, they are on their own. It is my contention that when government denies a firearm carry permit, it has 'increased' that person's danger but has denied his right to self-defense.  Unless government provides 'general' firearm carry permit authority, it has written off the individual as the cost of government. The individual crime victim is the 'sacrifice' that government is prepared to take. Are you?

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