Obama Judge Rules That New York Must Issue Out-of-State Permits

On Wednesday, an Obama-appointed federal judge in Albany, New York, Mae D’Agostino, ruled that New York State must issue out-of-state concealed carry permits to those who apply.

Carl Higbie of Newsmax and two other Americans brought the case with the help of Gun Owners of America (GOA). Mr. Higbie travels to New York City regularly for work but does not live in the state. Being a public figure, Higbe wanted to carry a firearm within the state to protect himself, but since he is not a resident of the Empire State, it was almost impossible to get a concealed carry permit, despite having a Connecticut concealed carry permit. GOA and Higbie believed the banning of out-of-state residents from carrying handguns violates an American’s right to keep and bear arms as protected by the Second Amendment. Along with the Second Amendment violation, the plaintiffs also claimed the New York State law violated the Privileges and Immunities Clause of the United States Constitution.

After the lawsuit was filed, New York City started issuing out-of-state permits. Superintendent of the New York State Police Steven James tried to argue that the City’s choice to issue out-of-state permits made the case moot, but the judge didn’t buy the argument. New York State has a long history of trying to moot cases by making minor exceptions, such as making New York City the only place where an out-of-state resident can apply for a concealed carry permit. The Big Apple’s process of getting a concealed carry permit is more expensive, time-consuming, and arduous than in other parts of the Empire State.

The court used a Bruen analysis to determine that the New York State law on concealed carry permits for out-of-state residents was unconstitutional.

The first step is if the plain text of the Second Amendment protects the conduct. If it does, then the conduct is presumably constitutional. In the Heller case, the Supreme Court affirmed that the Second Amendment applies to the individual’s right to bear arms. Before Heller, several State Attorney Generals, including then California AG Kamala Harris, argued that there was no individual right to keep and bear arms. Bruen then affirmed and expanded Heller by stating the right to bear arms extends to outside one’s home. Because of these decisions, the conduct is protected and presumably constitutional.

The second step of a Bruen analysis is where the burden falls on the defendants to prove by use of historical analogues from the founding era that a current law is consistent with the tradition and history of the nation’s firearms regulations. Another Supreme Court case, Rahimi, said that an analogue doesn’t have to be a “dead ringer,” but must be similar. All analogues provided by New York State either were too far removed from the founding era or were not a close enough match to serve as an analogue for the State’s concealed carry permit regime.

The judge in the case would find for the plaintiffs and grant their motion for summary judgment. New York State is expected to appeal the decision to the United States Court of Appeals for the Second Circuit. That appeal will be heard by a three-judge panel.

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About John Crump

Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.