Judges refuse to shoot down NY's concealed-weapons law

A three-judge panel of the U.S. Court of A three-judge panel of the U.S. Court of Appeals ruled unanimously that the law requiring individuals to demonstrate "proper cause" to obtain a license to carry concealed handguns in public does not violate the Constitution's Second Amendment. (Nov. 22, 2012) Photo Credit: Getty Images

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A panel of federal judges rejected a challenge by five Westchester County residents to New York State's concealed-handgun laws, Attorney General Eric Schneiderman announced Tuesday.

Ruling in the case of Kachalsky, et al. v. Cacace, a three-judge panel of the U.S. Court of Appeals ruled unanimously that the law requiring individuals to demonstrate "proper cause" to obtain a license to carry concealed handguns in public does not violate the Constitution's Second Amendment, Schneiderman said in a statement.

The "proper cause" provision requires that a handgun license applicant show "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession."

Schneiderman, whose office defended four state court judges who refused to grant the plaintiffs licenses under the "proper cause" provision, hailed the decision.

"This unanimous decision is a victory for New York State law, the United States Constitution and families across New York who are rightly concerned about the scourge of gun violence that all too often plagues our communities," the attorney general said.

The five Westchester plaintiffs -- Alan Kachalsky of Rye, Christina Nikolov of White Plains, Johnnie Nance and Anna Marcucci-Nance of Yonkers and Eric Detmer of Bedford -- were joined in the challenge by the Second Amendment Foundation, a pro-gun rights group based in Washington State. They argued that the "proper cause" provision violates their rights under the Second Amendment as defined in two recent decisions by the U.S. Supreme Court that affirmed individual gun rights, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), Schneiderman said.

In ruling the "proper cause" argument is valid, the court cited New York State's long tradition of concealed-weapons regulation and its interest in crime prevention. "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," the court noted.

The suit originally was filed by Kachalsky, Nikolov and the Second Amendment Foundation in July 2010 and was thrown out by a U.S. District Court judge in September 2011. The plaintiffs then appealed to the federal panel, which heard arguments in August.

Kachalsky, the lead plaintiff, faulted the judges' claim that the District of Columbia v. Heller ruling affirmed individual gun rights in the home and other private places but not in public. "The right to keep and bear arms does not end when you leave your house," Kachalsky told Newsday Westchester.

Citing the text of the Second Amendment -- "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed" -- Kachalsky said, "Heller said the Second Amendment applies to the individual, and there's no requirement that you belong to a militia."

The Second Amendment specifies "militia" only because all able-bodied men of the more hardscrabble 18th century were required to shoulder arms to fend off threats from enemies both human and animal, Kachalsky said, and was not intended to restrict concealed-gun ownership only to those in organized police or military forces. "In the Colonial times, they handed you a gun and you were in the militia," he said. "That's how the Revolution was fought, and it wasn't fought in the homes."

Kachalsky said he's hopeful the U.S. Supreme Court will hear an appeal, but for now, "There's nothing to do but sit back and see if they'll take (the case) or not."

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