Kachalsky v. Cacase

The Supreme Court’s decisions in Heller and McDonald affirmed an individual right to keep and bear arms. However, those cases only addressed a central issue of keeping guns in the home. Though the Court found the right to self-defense to be “most acute” there, in no way did either decision imply that it ended at the doorstep.

Yet Maryland, New York, New Jersey, and Illinois have all claimed that their arbitrary and burdensome systems of issuing (or rather, refusing to issue) permits to carry a firearm outside the home somehow pass constitutional muster. So, we’ve brought lawsuits. We won in the 7th Circuit, and we won in the 4th Circuit. New York? Not so well.

Last November, the 2nd Circuit ruled that,

Plaintiffs misconstrue the character and scope of the Second Amendment. States have long chosen to regulate the right to bear arms because of the risks posed by its exercise. As Plaintiffs admit and Heller strongly suggests, the state may ban firearm possession in sensitive places, presumably on the ground that it is too dangerous to permit the possession of firearms in those locations. (…) Thus, as the Supreme Court has implicitly recognized, regulating firearms because of the dangers posed by exercising the right is entirely consistent with the Second Amendment. (…) We are also not convinced that the state may not limit the right to bear arms to those showing a “special need for self-protection.”

The root of all three challenges is the constitutionality of “good cause” requirements for the exercise of a right. No other enumerated right requires such a showing.

Though we couldn’t get Woollard heard before the Supreme Court last session, the ensuing split between Circuit courts begs resolution by them. Alan Gura has chosen Kachalsky to be the case to argue.

His petition for grant of certiorari is mirrored here [pdf]. As usual, his writing is lively and incisive.

A “right” that may not be exercised absent a government official’s discretionary determination that an individual has “proper cause” to exercise it, is not much of a right.

The page count is buffered by the 2nd Circuit’s ruling and other documentation, but the petition itself is an illuminating read.

Respectfully, this Court’s decisions in Heller and McDonald, like the Second Amendment to which they gave operative force, were not published with an asterisk. “[W]hen a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it.” Perkins v. Endicott Johnson Corp.  [p. 37]

The Supreme Court could consider granting cert as early as March, and it could very well be heard this session. Seven amicus curiae briefs have already been published, including one from the Attorneys General of 20 states. Our own Samuel Olens chipped in, so be sure to drop him a friendly email.