New York State Rifle & Pistol Ass'n, Inc. v. City of New York

15-638-cv
New York State Rifle & Pistol Ass’n, Inc. v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2016
(Argued: August 17, 2016 Decided: February 23, 2018)
Docket No. 15-638-cv
THE NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ROMOLO COLANTONE,
EFRAIN ALVAREZ, and JOSE ANTHONY IRIZARRY,*
Plaintiffs-Appellants,
— v. —
THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT–LICENSE
DIVISION,
Defendants-Appellees.
B e f o r e:
POOLER, LYNCH, and CARNEY, Circuit Judges
__________________
*
The Clerk of Court is respectfully directed to amend the caption of the case to
the conform to the caption above.
Plaintiffs New York State Rifle & Pistol Association, Inc., Romolo
Colantone, Efrain Alvarez, and Jose Anthony Irizarry brought suit against
Defendants City of New York and New York Police Department–License
Division, challenging a provision of a New York City licensing scheme under
which an individual with a “premises license” for a handgun may remove the
handgun from the designated premises only for specified purposes, including
going to a shooting range in New York City. Plaintiffs sought to remove licensed
handguns from their licensed premises for other purposes, including going to
shooting ranges outside New York City and transporting the handgun to a
second home in upstate New York. The United States District Court for the
Southern District of New York (Robert W. Sweet, J.) denied plaintiffs’ motions for
summary judgment and for a preliminary injunction, and granted defendants’
cross-motion for summary judgment. The district court held that the restrictions
in premises licenses do not violate the Second Amendment, the Commerce
Clause, the fundamental right to travel, or the First Amendment. Plaintiffs appeal
that judgment.
We AFFIRM.
ERIN MURPHY, Bancroft PLLC (Paul D. Clement, D. Zachary Hudson,
Andrew N. Ferguson, Bancroft PLLC; Brian T. Stapleton,
Matthew S. Lerner, Goldberg Segalla LLP, on the brief),
Washington, D.C., for Plaintiffs-Appellants New York State Rifle
& Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and
Jose Anthony Irizarry.
SUSAN PAULSON, Assistant Corporation Counsel (Richard Dearing,
Assistant Corporation Counsel, on the brief), for Zachary W.
Carter, Corporation Counsel of the City of New York, New
York, N.Y., for Defendants-Appellees City of New York and the
New York City Police Department–License Division.
Charles J. Cooper, David H. Thompson, Peter A. Patterson, Cooper
& Kirk, PLLC, Washington, D.C., for Amicus Curiae National
Rifle Association of America, Inc., in support of Plaintiffs-
Appellants.
2
Dan M. Peterson, Fairfax, VA; Stephen P. Halbrook, Fairfax, VA, for
Amici Curiae Western States Sheriffs’ Association, Law
Enforcement Legal Defense Fund, Law Enforcement Action
Network, CRPA Foundation, Law Enforcement Alliance of
America, and International Law Enforcement Educators and
Trainers Association, in support of Plaintiffs-Appellants.
GERARD E. LYNCH, Circuit Judge:
Plaintiffs New York State Rifle & Pistol Association, Romolo Colantone,
Efrain Alvarez, and Jose Anthony Irizarry (collectively, “the Plaintiffs”)
brought suit against Defendants City of New York and the New York Police
Department–License Division (collectively, “the City”), challenging a provision
of a New York City licensing scheme, Title 38, Chapter Five, Section 23 of the
Rules of the City of New York (“RCNY”), under which an individual with a
“premises license” for a handgun may not remove the handgun “from the
address specified on the license except as otherwise provided in this chapter.” 38
RCNY § 5-23(a)(1). Under Rule 5-23 (“the Rule”), the licensee “may transport
her/his handgun(s) directly to and from an authorized small arms range/shooting
club, unloaded, in a locked container, the ammunition to be carried separately.”
Id. § 5-23(a)(3).
3
The New York Police Department–License Division (“License Division”)
has defined “authorized” facilities, among other requirements, to be “those
located in New York City.” App. 38. The Plaintiffs sought to remove handguns
from the licensed premises for the purposes of going to shooting ranges and
engaging in target practice outside New York City as well as, in the case of one
Plaintiff, transporting the handgun to a second home in upstate New York. The
United States District Court for the Southern District of New York (Robert W.
Sweet, J.) denied the Plaintiffs’ motions for summary judgment and for a
preliminary injunction, and granted the City’s cross-motion for summary
judgment. The district court held that the restrictions in premises licenses do not
violate the Second Amendment, the Commerce Clause, the fundamental right to
travel, or the First Amendment. N.Y. State Rifle & Pistol Ass’n v. City of New York,
86 F. Supp. 3d 249, 268 (S.D.N.Y. 2015). The Plaintiffs appeal that judgment.
For the reasons that follow, we AFFIRM.
4
BACKGROUND
New York State law prohibits possession of “firearms” absent a license.
N.Y. Penal Law §§ 265.01–265.04, 265.20(a)(3).1 Section 400.00 of the Penal Law
establishes the “exclusive statutory mechanism for the licensing of firearms in
New York State.” O’Connor v. Scarpino, 83 N.Y.2d 919, 920 (1994); see also
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 85 (2d Cir. 2012). Licenses can be held
by individuals at least twenty-one years of age, of good moral character, and
“concerning whom no good cause exists for the denial of the license,” among
other requirements. N.Y. Penal Law § 400.00(1)(a)–(b), (n).
To obtain a handgun license, an individual must apply to his or her local
licensing officer. “The application process for a license is rigorous and
administered locally. Every application triggers a local investigation by police
into the applicant’s mental health history, criminal history, [and] moral
character.” Kachalsky, 701 F.3d at 87 (internal citation and quotation marks
1
As we explained in Kachalsky v. County of Westchester, the term “firearm” in New
York law has a restricted meaning and does not encompass all guns to which the
term generally applies in ordinary usage. 701 F.3d 81, 85 (2d Cir. 2012).
Essentially, a “firearm” is defined by the relevant statutes to include pistols and
revolvers, assault weapons, and rifles and shotguns with barrels of specified
shortened lengths. Id., citing N.Y. Penal Law § 265.00(3). Ordinary rifles and
shotguns are not subject to the licensing provisions of the statute.
5
omitted). The licensing officers “are vested with considerable discretion in
deciding whether to grant a license application, particularly in determining
whether proper cause exists for the issuance of a carry license.” Id. (internal
quotation marks omitted). The New York Penal Law specifies that in New York
City, the licensing officer is the City’s Police Commissioner. N.Y. Penal Law
§ 265.00(10). The License Division exercises the Commissioner’s authority to
review applications for licenses, and issues handgun licenses. See 38 RCNY
§§ 5-01 – 5-11.
The Penal Law establishes two primary types of handgun licenses: “carry”
licenses and “premises” licenses. N.Y. Penal Law §§ 400.00(2)(a), (f). A carry
license allows an individual to “have and carry [a] concealed” handgun “without
regard to employment or place of possession . . . when proper cause exists” for
the license to be issued. Id. § 400.00(2)(f).
“Proper cause” is not defined by the Penal Law, but New
York State courts have defined the term to include
carrying a handgun for target practice, hunting, or
self-defense. When an applicant demonstrates proper
cause to carry a handgun for target practice or hunting,
the licensing officer may restrict a carry license “to the
purposes that justified the issuance.”
Kachalsky, 701 F.3d at 86, quoting O’Connor, 83 N.Y.2d at 921. Generally, a carry
6
license is valid throughout the state except that it is not valid within New York
City “unless a special permit granting validity is issued by the police
commissioner” of New York City.3 N.Y. Penal Law § 400.00(6).
A premises license is specific to the premises for which it is issued. The
type of license at issue in this case allows a licensee to “have and possess in his
dwelling” a pistol or revolver. Id. § 400.00(2)(a). Under the RCNY, a “premises
license – residence” issued to a New York City resident is specific to a particular
address, and “[t]he handguns listed on th[e] license may not be removed from
the address specified on the license except” in limited circumstances, including
the following:
3
Another handgun license available to New York City residents is a “carry
business license,” which “permits the carrying of a handgun concealed on the
person.” 38 RCNY § 5-23(b). Andrew Lunetta, the former Commanding Officer of
the License Division, has averred that to obtain such a license, “the applicant
must show that he/she has a need to carry a concealed firearm which is
distinguishable from that of the general public, for example, the applicant carries
large sums of cash or valuables on a regular basis or is exposed to extraordinary
personal danger in daily life.” App. 75. The Plaintiffs have not alleged that they
applied for carry business licenses nor that they were denied such licenses. Nor
have the Plaintiffs claimed to hold premises licenses for their businesses, a
category of license which would also be authorized under the Rule. 38 RCNY
§ 5-23(a). Accordingly, we need not further discuss carry business licenses or
business premises licenses.
7
(3) To maintain proficiency in the use of the handgun, the
licensee may transport her/his handgun(s) directly to and
from an authorized small arms range/shooting club,
unloaded, and in a locked container, the ammunition to be
carried separately.
(4) A licensee may transport her/his handgun(s) directly
to and from an authorized area designated by the New
York State Fish and Wildlife Law and in compliance with
all pertinent hunting regulations, unloaded, in a locked
container, the ammunition to be carried separately, after
the licensee has requested and received a “Police
Department – City of New York Hunting Authorization”
Amendment attached to her/his license.
38 RCNY § 5-23(a).
Under Rule 5-23(a)(3), an “authorized small arms range/shooting club” is
one that, among other requirements, is located in New York City, as the License
Division notified Plaintiff Colantone in a letter dated May 15, 2012. App. 28.
When this challenge was brought, there were seven such facilities in New York
City, including at least one in each of the City’s five boroughs.4 The New York
Police Department (“NYPD”) also previously issued “target licenses” that
allowed the licensee to take his or her handgun to shooting ranges and
competitions outside New York City. These target licenses were not mandated by
4
Neither of the parties has brought to our attention any change in that number.
8
state law, but were issued by the NYPD in its discretion as the licensing agency
for New York City. The NYPD received reports that licensees were using target
licenses to carry weapons to many other locations, and not in the requisite
unloaded and enclosed condition. In part because of these issues, the NYPD
eliminated the target license in 2001.
Plaintiffs Colantone, Irizarry, and Alvarez hold premises licenses issued by
the License Division that allow them to possess handguns in their residences in
New York City. They seek to transport their handguns outside the premises for
purposes other than the ones authorized by Rule 5-23. All three Plaintiffs seek to
transport their handguns to shooting ranges and competitions outside New York
City.5 In addition, Colantone, who owns a second home in Hancock, New York,
seeks to transport his handgun between the premises for which it is licensed in
New York City and his Hancock house. These plaintiffs, along with the New
York State Rifle & Pistol Association, filed suit in the Southern District of New
5
The Plaintiffs seek to take their handguns to tournaments such as the NRA
Sectional Championships held in Roslyn, New York, and Old Bridge, New Jersey,
and the Steel Challenge Championships, held in Old Bridge, New Jersey. They
also argue that it would be more convenient for some of them to engage in target
practice at shooting ranges located near, but outside of, New York City, rather
than at ranges located within the City but farther from their homes.
9
York, seeking a declaration that the restrictions imposed by the Rule were
unconstitutional and an injunction against its enforcement.
The Plaintiffs moved for summary judgment and for a preliminary
injunction, and the City cross moved for summary judgment. The district court
granted the City’s cross-motion for summary judgment and dismissed the
complaint. The district court determined that the Rule “merely regulates rather
than restricts the right to possess a firearm in the home and is a minimal, or at
most, modest burden on the right.” N.Y. Rifle & Pistol Ass’n., 86 F. Supp. 3d at 260
(brackets and internal quotation marks omitted). Accordingly, the district court
held that the Rule did not violate the Plaintiffs’ Second Amendment rights. Id. at
160–61. The district court also found that the Rule did not violate the dormant
Commerce Clause, the First Amendment right of expressive association, or the
fundamental right to travel. Id. at 263–66.
DISCUSSION
The Plaintiffs argue on appeal, as they did below, that by restricting their
ability to transport firearms outside the City, Rule 5-23 violates the Second
Amendment, the dormant Commerce Clause, the First Amendment right of
expressive association, and the fundamental right to travel. We review a district
10
court’s decision on summary judgment de novo, construing the evidence in the
light most favorable to the non-moving party. New York State Rifle & Pistol Ass'n,
Inc. v. Cuomo, 804 F.3d 242, 252 (2d Cir. 2015). “We also review de novo the district
court’s legal conclusions, including those interpreting and determining the
constitutionality of a statute.” Id. (internal quotation marks omitted). Pursuant to
the Federal Rules of Civil Procedure, summary judgment is appropriate where
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). For the reasons explained
below, we reject each of the Plaintiffs’ arguments.
I. Rule 5-23 Does Not Violate the Second Amendment.
The Second Amendment provides: “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.” U.S. Const. amend. II. In District of Columbia v.
Heller, the Supreme Court announced that the Second Amendment “guarantee[s]
the individual right to possess and carry weapons in case of confrontation.” 554
U.S. 570, 592 (2008). In McDonald v. City of Chicago, the Court held that this right
is incorporated within the Due Process Clause of the Fourteenth Amendment,
and therefore binds the States as well as the Federal Government. 561 U.S. 742,
11
791 (2010). However, the Court remarked that its holding should not “be taken to
cast doubt on longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–27.
“Neither Heller nor McDonald . . . delineated the precise scope of the Second
Amendment or the standards by which lower courts should assess the
constitutionality of firearms restrictions.” N.Y. State Rifle, 804 F.3d at 254.
A. Analytical Framework
Following Heller, this Circuit adopted a “two-step inquiry” for
“determining the constitutionality of firearm restrictions.” Id. First, we
“determine whether the challenged legislation impinges upon conduct protected
by the Second Amendment,” and second, if we “conclude[] that the statute[]
impinge[s] upon Second Amendment rights, we must next determine and apply
the appropriate level of scrutiny.” Id. at 254, 257.
1. First Step: Whether the Second Amendment Applies
At the first step, the Plaintiffs argue that Rule 5-23 impinges on conduct
protected by the Second Amendment. We need not decide whether that is so,
12
because, as explained below, the Rule “pass[es] constitutional muster” under
intermediate scrutiny. Id. at 257. Thus, as in New York State Rifle, we “proceed on
the assumption that [the Rule restricts activity] protected by the Second
Amendment.” Id.
2. Second Step: Level of Scrutiny
At the second step, we consider whether to apply heightened scrutiny. In
Second Amendment cases, our Circuit has recognized at least two forms of
heightened scrutiny — strict and intermediate. See Kachalsky, 701 F.3d at 93
(holding that although “some form of heightened scrutiny would be
appropriate,” strict scrutiny was not necessary, and instead applying
intermediate scrutiny). Our Circuit has also recognized that a form of non-
heightened scrutiny may be applied in some Second Amendment cases. See
United States v. Decastro, 682 F.3d 160, 166 (2d Cir. 2012) (holding that heightened
scrutiny is not appropriate where the regulation does not impose a “substantial
burden on the ability of [plaintiffs] to possess and use a firearm for self-defense”).
This recognition is limited by the Supreme Court’s indication in Heller that
rational basis review may be inappropriate for certain regulations involving
Second Amendment rights. 554 U.S. at 628 n.27. But we need not determine here
13
which types of regulations may be subject only to rational basis review, or
whether some form of non-heightened scrutiny exists that is more exacting than
rational basis review. As explained below, we find that the Rule does not trigger
strict scrutiny and that it survives intermediate scrutiny.
In determining whether some form of heightened scrutiny applies, we
consider two factors: “(1) ‘how close the law comes to the core of the Second
Amendment right’ and (2) ‘the severity of the law’s burden on the right.’ Laws
that neither implicate the core protections of the Second Amendment nor
substantially burden their exercise do not receive heightened scrutiny.” N.Y. State
Rifle, 804 F.3d at 258, quoting Ezell v. City of Chicago (“Ezell I”), 651 F.3d 684, 703
(7th Cir. 2011). As relevant to the individual right to possess a firearm recognized
in Heller, a statute can “implicate the core of the Second Amendment’s
protections by extending into the home, ‘where the need for defense of self,
family and property is most acute.’” Id., quoting Heller, 554 U.S. at 628. Thus, in
Heller, the Supreme Court struck down the District of Columbia’s ban on
handgun possession in the home because it completely prohibited “an entire
class of ‘arms’ that is overwhelmingly chosen by American society for th[e]
lawful purpose [of self-defense].” Heller, 554 U.S. at 628. The Court found that
14
this prohibition, which extended into the home, would fail constitutional muster
under any standard of scrutiny. Id.As to the second factor, we have held that “heightened scrutiny is
triggered only by those restrictions that (like the complete prohibition on
handguns struck down in Heller) operate as a substantial burden on the ability of
law-abiding citizens to possess and use a firearm for self-defense (or for other
lawful purposes).” Decastro, 682 F.3d at 166. “The scope of the legislative
restriction and the availability of alternatives factor into our analysis of the
degree to which the challenged law burdens the right.” N.Y. State Rifle, 804 F.3d
at 259 (internal quotation marks omitted). For example, since Heller, we have
found New York’s and Connecticut’s prohibitions of semiautomatic assault
weapons to be distinguishable from the ban struck down in Heller, because under
those statutes, “citizens may continue to arm themselves with non-semiautomatic
weapons or with any semiautomatic gun that does not contain any of the
enumerated military-style features.” Id. at 260 (emphasis in original). Even where
heightened scrutiny is triggered by a substantial burden, however, strict scrutiny
may not be required if that burden “does not constrain the Amendment’s ‘core’
15
area of protection.” Id. Thus, the two factors interact to dictate the proper level of
scrutiny.
The Plaintiffs argue that the Rule violates the Second Amendment in two
ways: first, by preventing Plaintiff Colantone from taking the handgun licensed
to his New York City residence and transporting it to his second home in
Hancock, New York, and second, by preventing the Plaintiffs from taking their
handguns licensed to New York City premises to firing ranges and shooting
competitions outside the City. We address these arguments in turn.
In Kachalsky, we applied intermediate scrutiny and affirmed New York’s
“proper cause” requirement for the issuance of a carry license, despite finding
that such a requirement “places substantial limits on the ability of law-abiding
citizens to possess firearms for self-defense in public.”6 701 F.3d at 93. In
6
We are aware that a divided panel of the Seventh Circuit and a divided panel of
the District of Columbia Circuit have disagreed with Kachalsky. See Moore v.
Madigan, 702 F.3d 933, 941 (7th Cir. 2012); Wrenn v. District of Columbia, 864 F.3d
650, 662 (D.C. Cir. 2017). After giving careful and respectful attention to the
reasoning of those opinions, we reaffirm our prior holding, by which this panel
is, in any event, bound. We also recognize that the Third and Fourth Circuits
have adopted reasoning similar to ours in upholding various state regulations on
the carrying of firearms outside the home. See Drake v. Filko, 724 F.3d 426, 433 (3d
Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 880–81 (4th Cir. 2013). The Ninth
Circuit upheld a similar regulation on other grounds. Peruta v. Cty. of San Diego,
824 F.3d 919, 924 (9th Cir. 2016) (en banc) (holding that “the Second Amendment
16
comparison to the regulation considered in Kachalsky, the restrictions complained
of by the Plaintiffs here impose at most trivial limitations on the ability of law-
abiding citizens to possess and use firearms for self-defense.7 New York has
licensed the ownership and possession of firearms in their residences, where
“Second Amendment guarantees are at their zenith,” id. at 89, and does nothing
to limit their lawful use of those weapons “in defense of hearth and home”— the
“core” protection of the Second Amendment, Heller, 554 U.S. at 634–35.
Strict scrutiny does not attach to Rule 5-23 as a result of Colantone’s desire
to transport the handgun licensed to his New York City residence to his second
home in Hancock, New York. Even if the Rule relates to “core” rights under the
does not . . . protect a right of a member of the general public to carry concealed
firearms in public”), cert. denied sub nom. Peruta v. California, 137 S. Ct. 1995(2017).
7
To the extent that the Plaintiffs are limited in their ability to carry firearms in
public, those limitations are not imposed by Rule 5-23, but rather are inherent in
their lack of carry permits. The Plaintiffs do not allege that they sought and were
denied such permits, and the restrictions imposed on those who fail to
demonstrate the requisite “proper cause” to obtain them were upheld in
Kachalsky, 701 F.3d at 101. We understand the Plaintiffs to contend primarily that
the restrictions on transportation of unloaded firearms in locked containers
undermine their ability to make proper use of the premises permits they possess,
and thereby impose substantial limits on their self-defense rights separate from
those at issue in Kachalsky.
17
Second Amendment by prohibiting Colantone from taking his licensed firearm to
his second home, the Rule does not substantially burden his ability to obtain a
firearm for that home, because an “adequate alternative[] remain[s] for
[Colantone] to acquire a firearm for self-defense.” Decastro, 682 F.3d at 168; see
also New York State Rifle, 804 F.3d at 259 (“No substantial burden exists . . . if
adequate alternatives remain for law-abiding citizens to acquire a firearm for
self-defense.”) (internal quotation marks omitted). This case is easily
distinguished from Heller, in which the Supreme Court considered, and deemed
unconstitutional, an outright ban on the possession of handguns in the home. 554
U.S. at 635. Here, New York City imposes no limit on Colantone’s ability to
obtain a license to have a handgun at his second residence in Hancock; if he
wants to keep a handgun at his Hancock house, he can apply to the licensing
officers in Delaware County.8 The Rule restricts only his ability to remove the
handgun licensed by New York City authorities from the City premises for which
it is specifically licensed.
8
Colantone has not alleged or presented evidence that he has sought such a
license.
18
Colantone presents no evidence that the costs, either financial or
administrative, associated with obtaining a premises license for his house in
Hancock, or acquiring a second gun to keep at that location, would be so high as
to be exclusionary or prohibitive. In Kwong v. Bloomberg, we assumed that
intermediate scrutiny applied to New York City’s $340 application fee for a
premises license and upheld that fee. 723 F.3d 160, 168 (2d Cir. 2013). We noted
that otherwise-proper costs associated with a state’s regulation of firearms could
be impermissible “if [they] were so high as to be exclusionary or prohibitive.” Id.
at 166. But “the fact that the licensing regime makes the exercise of one’s Second
Amendment rights more expensive does not necessarily mean that it
substantially burdens that right.” Id. at 167–68 (internal quotation marks
omitted). Here, Colantone does not even estimate the amount of money or time
potentially at issue by the requirement of obtaining a premises license and
second firearm for his second home, and he does not allege that the Rule restricts
in any way his ability to obtain such a firearm.
Next, the Plaintiffs argue that the Rule imposes a substantial burden on
their core Second Amendment rights by prohibiting them from taking their
licensed handguns to firing ranges and shooting competitions outside the City.
19
The Plaintiffs’ primary argument is that the right to possess and use guns in self-
defense suggests a corresponding right to engage in training and target shooting,
and thus restrictions on the latter right must themselves be subject to heightened
scrutiny. Their argument relies on the Seventh Circuit’s observation that the core
right of the Second Amendment to use firearms in self-defense, particularly in
the home, “wouldn’t mean much without the training and practice that make it
effective.” Ezell I, 651 F.3d at 704.
To the extent that the Plaintiffs argue that firearms practice is itself a core
Second Amendment right, and that even minimal regulation of firearms training
must survive heightened scrutiny to pass constitutional muster, we reject that
argument. It is reasonable to argue, as did the plaintiffs in Ezell I, that restrictions
that limit the ability of firearms owners to acquire and maintain proficiency in the
use of their weapons can rise to a level that significantly burdens core Second
Amendment protections. Possession of firearms without adequate training and
skill does nothing to protect, and much to endanger, the gun owner, his or her
family, and the general public.9 Accordingly, we may assume that the ability to
9
The Heller Court cited with approval a post-Civil War legal commentary by
Judge and Professor Thomas Cooley: “[T]o bear arms implies something more
than the mere keeping; it implies the learning to handle and use them . . . ; it
20
obtain firearms training and engage in firearm practice is sufficiently close to core
Second Amendment concerns that regulations that sharply restrict that ability to
obtain such training could impose substantial burdens on core Second
Amendment rights.10 Some form of heightened scrutiny would be warranted in
such cases, however, not because live-fire target shooting is itself a core Second
Amendment right, but rather because, and only to the extent that, regulations
amounting to a ban (either explicit or functional) on obtaining firearms training
and practice substantially burden the core right to keep and use firearms in self-
defense in the home. Indeed, if the Plaintiffs’ broader argument were accepted,
every regulation that applied to businesses that provide firearms training or
firing-range use would itself require heightened scrutiny, a result far from
anything the Supreme Court has required.
Our analysis puts the focus where it belongs: on the core right of self-
defense in the home. Rule 5-23 imposes no direct restriction at all on the right of
implies the right to meet for voluntary discipline in arms, observing in doing so
the laws of public order.” Heller, 554 U.S. at 617–18 (internal quotation marks
omitted).
10
We make no such assumption, in contrast, regarding the ability to engage in
competitive firearm sports. Purely recreational activities of that sort are unrelated
to core Second Amendment concerns.
21
the Plaintiffs, or of any other eligible New Yorker, to obtain a handgun and
maintain it at their residences for self-protection. All of the individual Plaintiffs
hold licenses to maintain handguns for that purpose. The Plaintiffs do not allege
that the City’s regulatory scheme imposes any undue burden, expense, or
difficulty that impedes their ability to possess a handgun for self-protection, or
even their ability to engage in sufficient practice to acquire and maintain the
skills necessary to keep firearms safely and use them effectively.
We are further unpersuaded by the Plaintiffs’ attempts to analogize the
Rule to the restrictions held unconstitutional in Ezell I, as those restrictions are
easily distinguishable from the ones at issue in this case. Ezell I concerned a
Chicago ordinance that flatly banned firing ranges within city limits (while
simultaneously requiring, for the issuance of a handgun license, firearms training
that was unavailable within the city). We can assume, without deciding, that the
Seventh Circuit correctly concluded that such a dramatic ban on target shooting
substantially limits the right of law-abiding citizens to engage in the training and
practice that would enable them to safely and effectively make use of firearms for
defensive purposes in the home. Under the Chicago ordinance, residents could
not engage in firearms activities without leaving the city. At a minimum, such a
22
limitation imposes significant inconvenience, and we can accept, for purposes of
the argument in this case, that the imposition of such a burden comes close to
prohibiting gun training and practice altogether. Particularly when coupled with
a training requirement, such a limitation would impose a considerable obstacle to
gun ownership in the home. New York’s rule, however, imposes no such
limitations. Rule 5-23 allows a holder of a premises license to take the handgun
licensed for his or her New York City premises to an authorized firing range in
the City to engage in practice, training exercises, and shooting competitions.
Nor does the City take away with one hand what it gives with the other, by
using its power to regulate firing ranges so restrictively that as a practical matter,
firing ranges are unavailable. That was the route taken by Chicago in response to
the Ezell I ruling. In Ezell v. City of Chicago (“Ezell II”), the Seventh Circuit
confronted zoning restrictions that “severely limit[ed] where shooting ranges
may locate,” and which were justified by nothing more than “sheer speculation
about accidents and theft.” 846 F.3d 888, 894, 896 (7th Cir. 2017) (internal
quotation marks omitted). In finding that the restrictions acted as a functional
ban on firing ranges, the Ezell II Court cited calculations produced by the
plaintiffs showing that only about 2.2% of the city’s acreage could even
23
theoretically be used to site a shooting range. Id. at 894. Additionally, the court
referenced testimony from two experts, presented by the plaintiffs, indicating
that other jurisdictions made available significantly more land for use by
shooting ranges. Id.
In this case, by contrast, the Plaintiffs present no evidence demonstrating
that the Rule serves to functionally bar their use of firing ranges or their
attendance at shooting competitions. In fact, the Plaintiffs concede that seven
authorized ranges are available to them, including at least one in each of the
City’s five boroughs. What the Plaintiffs seek is the inverse of what the Ezell I
plaintiffs sought: they do not complain that they are required to undertake
burdensome journeys away from the city in which they live in order to maintain
their skills, but rather they demand the right to take their handguns to ranges
and competitions outside their city of residence. While the Plaintiffs make passing
reference to the possibility that some New York City residents might find a firing
range located outside the City more convenient to use, or closer to their
residence, than the nearest facility within their home borough or an adjoining
borough, they offer no evidence that the burden imposed by having to use a
24
range within the City is in any way substantial.11
As with absolute limitations on the ability to engage in firearms training,
laws that limit such opportunities by imposing excessive costs could in principle
impose a substantial burden entailing heightened scrutiny. But the test, again, is
whether core rights are substantially burdened. As we noted in Kwong, a
“hypothetical licensing fee could be so high as to constitute a ‘substantial
burden,’” 723 F.3d at 168 n.15; nevertheless, we concluded that the permit fee
charged by New York City did not impose such a substantial burden. Id. at 172.
Furthermore, a law that “regulates the availability of firearms is not a
substantial burden on the right to keep and bear arms if adequate alternatives
remain for law-abiding citizens to acquire a firearm for self-defense.” Decastro,
682 F.3d at 168; see also Nordyke v. King, 644 F.3d 776, 787 (9th Cir. 2011), aff’d. en
banc, 681 F.3d 1041 (9th Cir. 2012) (“[W]hen deciding whether a restriction on
gun sales substantially burdens Second Amendment rights, we should ask
whether the restriction leaves law-abiding citizens with reasonable alternative
means for obtaining firearms sufficient for self-defense purposes.”). An analysis
11
The Plaintiffs do not allege that the number or location of firing ranges in the
City is a byproduct of the Rule or any burdensome zoning regulations, or that it
is anything more than the result of market forces.
25
of the evidence in this case reveals that, contrary to the Plaintiffs’ assertions, the
Plaintiffs have sufficient opportunities to train with their firearms without
violating the Rule.
The record evidence demonstrates that seven firing ranges in New York
City are available to any premises license-holder. One range, Olinville Arms in
the Bronx, is open to any member of the public for an hourly fee. Six of the firing
ranges require payment of a membership fee, although at least one of those six is
open to non-members for weekly shooting competitions. The Plaintiffs argue that
they should not be relegated to joining “private clubs” in order to engage in
firearms competitions, Appellants’ Br. 51, but the record does not support any
claim that these “clubs” are exclusionary in any way. Like privately owned gyms
and other athletic facilities, they are places of public accommodation, open to
anyone who pays their fees. The Plaintiffs do not argue that the fees charged by
the available firing ranges are prohibitively expensive, still less that their cost is
driven up by any burdensome or unreasonable City regulations. That some
portion of the fee is charged in the form of an annual or monthly “membership,”
rather than a per-hour usage fee, does not put the facilities out of reach for license
holders. Nor does it warrant a conclusion that New York City has imposed an
26
unreasonable burden on a resident’s ability to pursue firearms training — which
may be a somewhat costly pursuit in any event — thereby raising constitutional
concerns.
Moreover, the Plaintiffs do not argue that the facilities located within the
City are inadequate to provide the necessary opportunities for practice shooting.
Indeed, the record reflects that some of these facilities are quite substantial. For
example, the Richmond Boro Gun Club advertises a “100-yard rifle range with 30
covered and enclosed stations for Benchrest, Prone, and Bench shooting, [and an]
outdoor 24 station 50-yard pistol range with covered and enclosed shooting
bench with turning targets at 25 yards” among its many shooting facilities. App.
130. “Various rifle and pistol matches are held each week all year,” according to
their website, and these matches are open to non-members. Id.Finally, nothing in the Rule precludes the Plaintiffs from utilizing gun
ranges or attending competitions outside New York City, since guns can be
rented or borrowed at most such venues for practice purposes. New York state
law expressly allows individuals to use a gun that is not their own at a shooting
range if the license holder is present. N.Y. Penal Law § 265.20(a)(7-a). We
recognize that the Plaintiffs may prefer to practice with their own weapon —
27
something that the Rule makes fully possible within the City. That the Rule
restricts practicing with their own firearms to ranges within the City does not
make practicing outside the City or with their own firearms impossible, just not
the two together.
In short, nothing in this record suggests that the limitations challenged by
the Plaintiffs significantly inhibit their ability to utilize training facilities to obtain
and maintain firearm skills, let alone that the Rule operates as a substantial
burden on the right to keep and use firearms for self-defense in the home.
Assuming arguendo that a total ban on firing ranges within the limits of a large
city (as was at issue in Ezell I) or a functional ban on firing ranges through
onerous zoning regulations (along the lines of Ezell II) would impose a
substantial burden on the core Second Amendment right of residents to maintain
firearms for self-defense in the home, we are not confronted with such a case
here. Unlike the plaintiffs in Ezell II, the Plaintiffs here do not allege that any of
the City’s regulations, including Rule 5-23, serve to deter the construction or
existence of firing ranges within city limits. Furthermore, given the existence of
ample facilities for live-fire training and practice available at market prices within
reasonable commuting distance from the homes of all City residents, the
28
restrictions imposed by the Rule do not impose a substantial burden on the core
Second Amendment right to own and possess handguns for self-defense.
It is clear, based on the essentially undisputed facts recited above, that
strict scrutiny is not triggered by the Rule, either as applied to Colantone’s
second home or to the Plaintiffs’ desire to take their handguns outside the City
for shooting competitions or target practice. However, some form of heightened
scrutiny may still be required. We have applied intermediate scrutiny when
analyzing regulations that substantially burdened Second Amendment rights or
that encroached on the core of Second Amendment rights by extending into the
home. See, e.g., N.Y. State Rifle, 804 F.3d at 258–59 (applying intermediate scrutiny
to statutes that were “both broad and burdensome” and that “implicate the core
of the Second Amendment’s protections”); Kachalsky, 701 F.3d at 93 (applying
intermediate scrutiny to requirement that “places substantial limits on the ability
of law-abiding citizens to possess firearms for self-defense in public”).
Because we assume, arguendo, that the Rule approaches the Second
Amendment’s core area of protection as applied to Colantone’s second home,
though it does not impose a substantial burden, we find that intermediate
scrutiny is appropriate to assess the Rule in that instance. As to the Plaintiffs’
29
access to firing ranges and shooting competitions, the Rule does not approach the
core area of protection, and we find it difficult to say that the Rule substantially
burdens any protected rights. “But we need not definitively decide that applying
heightened scrutiny is unwarranted here,” Kwong, 723 F.3d at 168, because we
find that the Rule would survive even under intermediate scrutiny. Accordingly,
we proceed to assess the Rule by applying intermediate scrutiny.
B. Application of Intermediate Scrutiny
When applying intermediate scrutiny under the Second Amendment, “the
key question is whether the statute[] at issue [is] substantially related to the
achievement of an important governmental interest.” N.Y. State Rifle, 804 F.3d at
261 (internal quotation marks omitted).
To survive intermediate scrutiny, the fit between the
challenged regulation [and the government interest] need
only be substantial, not perfect. Unlike strict scrutiny
analysis, we need not ensure that the statute is narrowly
tailored or the least restrictive available means to serve the
stated governmental interest. Moreover, we have
observed that state regulation of the right to bear arms has
always been more robust than analogous regulation of
other constitutional rights. So long as the defendants
produce evidence that fairly supports their rationale, the
laws will pass constitutional muster.
30
Id. (internal quotation marks and footnotes omitted, brackets in original).12
The Rule seeks to protect public safety and prevent crime, and “New York
has substantial, indeed compelling, governmental interests in public safety and
crime prevention.” Kachalsky, 701 F.3d at 97. “[W]hile the Second Amendment’s
core concerns are strongest inside hearth and home, states have long recognized
a countervailing and competing set of concerns with regard to handgun
ownership and use in public.” Id. at 96. “There is a longstanding tradition of
states regulating firearm possession and use in public because of the dangers
posed to public safety.” Id. at 94–95; see also U.S. v. Masciandaro, 638 F.3d 458, 470
12
This language from New York State Rifle suggests that, under intermediate
scrutiny, as we discuss in Section I.B, the City bears the burden of showing that
the Rule passes muster. Allocating the burden of proof in this way is consistent
with the Supreme Court’s approach in other areas of constitutional law that
involve heightened, but not strict, scrutiny. See, e.g., Sorrell v. IMS Health Inc., 564
U.S. 552, 571–72 (2011) (“Under a commercial speech inquiry, it is the State’s
burden to justify its content-based law as consistent with the First
Amendment.”); United States v. Virginia, 518 U.S. 515, 533 (1996) (“The burden of
justification” in a sex-based Equal Protection challenge “rests entirely on the
State.”). In Section I.A.2, by contrast, we determined what level of scrutiny to
apply by assessing the Plaintiffs’ proffered evidence in support of their position
that the Rule substantially encumbers their core rights. That initial emphasis on
the Plaintiffs’ showing aligns with the approach that we have adopted in other
constitutional cases. See N.Y. State Rifle, 804 F.3d at 259 (“We typically require a
threshold showing to trigger heightened scrutiny of laws alleged to implicate
such constitutional contexts as takings, voting rights, and free speech.”).
31
(4th Cir. 2011) (“[O]utside the home, firearm rights have always been more
limited, because public safety interests often outweigh individual interests in self-
defense.”).
The City has presented evidence supporting its contention that the Rule
serves to protect the public safety of both license-holding and non-license-
holding citizens of New York City. In a detailed affidavit, the former
Commander of the License Division, Andrew Lunetta, discussed why taking a
licensed handgun to a second home or a shooting competition outside the City,
even under the restrictions imposed by the Rule for permitted transportation,
constitutes a potential threat to public safety. He explained that premises license
holders “are just as susceptible as anyone else to stressful situations,” including
driving situations that can lead to road rage, “crowd situations, demonstrations,
family disputes,” and other situations “where it would be better to not have the
presence of a firearm.” App. 68. Accordingly, he stated, the City has a legitimate
need to control the presence of firearms in public, especially those held by
individuals who have only a premises license, and not a carry license. He went
on to discuss how “public safety will be compromised” unless the regulations
concerning when and where premises licensees can transport their firearms “can
32
be effectively monitored and enforced, and are not easily ignored or susceptible
to being violated.” Id. at 69.
Indeed, the City produces evidence that it has, in the past, had difficulty
monitoring and enforcing the limits of the premises license. Lunetta’s affidavit
documented “abuses” that occurred when, prior to adoption of the current Rule,
the City did allow licensees to carry their handguns to shooting ranges out of the
City. “Examples included, licensees travel[]ing with loaded firearms, licensees
found with firearms nowhere near the vicinity of an authorized range, licensees
taking their firearms on airplanes, and licensees travel[]ing with their firearms
during hours where no authorized range was open.” Id. at 77. Based on these
abuses, Lunetta explained, the New York Police Department was concerned that
allowing premises licensees to transport their firearms anywhere outside of the
City for target practice or shooting competitions made it “too easy for them to
possess a licensed firearm while traveling in public, and then if discovered create
an explanation about traveling for target practice or shooting competition.” Id. at
70.
According to Lunetta’s affidavit, the New York Police Department
concluded that officers cannot be expected to verify whether a licensee stopped
33
with a firearm was, in fact, traveling to a firing range outside of the City. Based
on that specific experience, the License Division restricted the scope of the
premises license to allow for the transportation of the licensed handgun only to a
firing range within New York City (or, with the proper additional authorization,
to a designated hunting area). Lunetta explained the reasoning for the License
Division’s decision: “When target practice and shooting competitions are limited
to locations in New York City the ability to create . . . a fiction[al legal purpose] is
limited.” Id. Thus, the City asserts, limiting the geographic range in which
firearms can be carried allows the City to promote public safety by better
regulating and minimizing the instances of unlicensed transport of firearms on
city streets.
In contrast to the City’s evidence supporting the Rule’s rationale, the
Plaintiffs have produced scant evidence demonstrating any burden placed on
their protected rights, and nothing which describes a substantial burden on those
rights. The Plaintiffs have submitted individual affidavits expressing their desire
to travel to additional locations with their handguns, and their decision not to
participate in certain shooting competitions outside of the City. But, as we have
stated, the Plaintiffs are still free to participate in those shooting competitions
34
with a rented firearm, and to obtain licenses for handguns in their second homes,
and the Plaintiffs have presented no evidence indicating that this understanding
is mistaken. Additionally, the Plaintiffs present no evidence that the firing ranges
that they wish to access outside the City are significantly less expensive or more
accessible than those in the City. Even if the Plaintiffs did provide this evidence,
they would still need to demonstrate that practicing with one’s own handgun
provides better training than practicing with a rented gun of like model, and the
Plaintiffs fail to even assert this fact.
In light of the City’s evidence that the Rule was specifically created to
protect public safety and to limit the presence of firearms, licensed only to
specific premises, on City streets, and the dearth of evidence presented by the
Plaintiffs in support of their arguments that the Rule imposes substantial burdens
on their protected rights, we find that the City has met its burden of showing a
substantial fit between the Rule and the City’s interest in promoting public
safety.
Constitutional review of state and local gun control will often involve
difficult balancing of the individual’s constitutional right to keep and bear arms
against the states’ obligation to “prevent armed mayhem in public places.”
35
Kachalsky, 701 F.3d at 96, quoting Masciandaro, 638 F.3d at 471. This is not such a
case. The City has a clear interest in protecting public safety through regulating
the possession of firearms in public, and has adduced “evidence that fairly
supports [the] rationale” behind the Rule. N.Y. State Rifle, 804 F.3d at 261
(brackets and internal quotation marks omitted). The burdens imposed by the
Rule do not substantially affect the exercise of core Second Amendment rights,
and the Rule makes a contribution to an important state interest in public safety
substantial enough to easily justify the insignificant and indirect costs it imposes
on Second Amendment interests. Accordingly, Rule 5-23 survives intermediate
scrutiny.
II. Rule 5-23 Does Not Violate the Commerce Clause.
The Plaintiffs next argue that Rule 5-23 violates the dormant Commerce
Clause because it hinders interstate commerce. However, the Supreme Court has
“recogniz[ed] that incidental burdens on interstate commerce may be
unavoidable when a State legislates to safeguard the health and safety of its
people.” City of Phila. v. New Jersey, 437 U.S. 617, 623–24 (1978). Our inquiry
“must be directed to determining whether [the challenged statute] is basically a
protectionist measure, or whether it can fairly be viewed as a law directed to
36
legitimate local concerns, with effects upon interstate commerce that are only
incidental.” Id. at 624. We laid out the framework for this inquiry in Town of
Southold v. Town of East Hampton:
In analyzing a challenged local law under the dormant
Commerce Clause, we first determine whether it clearly
discriminates against interstate commerce in favor of
intrastate commerce, or whether it regulates
evenhandedly with only incidental effects on interstate
commerce. . . . We then apply the appropriate level of
scrutiny. A law that clearly discriminates against interstate
commerce in favor of intrastate commerce is virtually
invalid per se and will survive only if it is demonstrably
justified by a valid factor unrelated to economic
protectionism. A law that only incidentally burdens
interstate commerce is subject to the more permissive
balancing test under Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970), and will be struck down if the burden imposed
on interstate commerce clearly exceeds the putative local
gains.
477 F.3d 38, 47 (2d Cir. 2007) (internal quotation marks and citations omitted).
The Plaintiffs argue that the Rule discriminates against interstate
commerce by prohibiting them “from engaging in the interstate commercial
activity of traveling with their handguns to patronize firing ranges in states
beyond the borders of New York City.” Appellants’ Br. 42. “A clearly
discriminatory law may operate in three ways: (1) by discriminating against
37
interstate commerce on its face; (2) by harboring a discriminatory purpose; or
(3) by discriminating in its effect.” Town of Southold, 477 F.3d at 48 (citations
omitted). In our view, the Rule does not offend in any of these ways.
The Rule does not facially discriminate against interstate commerce, as it
does not prohibit a premises licensee from patronizing an out-of-state firing
range or going to out-of-state shooting competitions. The Plaintiffs are free to
patronize firing ranges outside of New York City, and outside of New York State;
they simply cannot do so with their premises-licensed firearm.
The Plaintiffs also present no evidence that the purpose of the New York
City rule was to serve as a protectionist measure in favor of the City’s firing-
range industry. To the contrary, as discussed above, the Rule is designed to
protect the health and safety of the City’s residents. It is therefore directed to
legitimate local concerns, with only incidental effects upon interstate commerce.
Finally, the Plaintiffs have not convinced us that the Rule violates the
dormant Commerce Clause by creating a discriminatory effect on interstate
commerce. We note, first, that the Plaintiffs have offered no evidence of
discriminatory effect aside from their statements that they, personally, have
“refrained from attending any shooting events with [their] handgun[s] that take
38
place outside of the City of New York.” App. 33, 42, 46. They do not assert, for
example, that they have refrained from attending all shooting events outside the
City; they aver only that (in compliance with the Rule) they have refrained from
attending such events with their premises-licensed handguns.
Even if we were to assume for the sake of argument, however, that the
Plaintiffs have offered sufficient evidence of a discriminatory effect to raise a
substantial dormant Commerce Clause question, we would nonetheless conclude
that the Rule is “demonstrably justified by a valid factor unrelated to economic
protectionism.” Town of Southold, 477 F.3d at 47. The Plaintiffs themselves offer a
useful comparison, arguing that the Rule functions in the same way as a law
requiring New York City residents to use their tennis rackets only at in-City
tennis courts. Of course, tennis rackets present none of the public safety risks that
firearms do, and against which states have a legitimate interest in protecting
themselves. See, e.g., Kachalsky, 701 F.3d at 94–95 (“There is a longstanding
tradition of states regulating firearm possession and use in public because of the
dangers posed to public safety.”). Thus, there could be no public health
justification for a law limiting the transportation of tennis rackets, whereas here
the Rule clearly focuses on minimizing the risks of gun violence and
39
“prevent[ing] armed mayhem in public places.” Masciandaro, 638 F.3d at 471(internal quotation marks omitted); see also W. Lynn Creamery, Inc. v . Healy, 512
U.S. 186, 206 n.21 (1994) (noting the “deeply rooted” distinction “between the
power of the State to shelter its people from menaces to their health or safety . . . ,
even when those dangers emanate from interstate commerce, and its lack of
power to . . . constrict the flow of such commerce for their economic advantage”);
Maine v. Taylor, 477 U.S. 131, 151 (1986). While such a justification might
theoretically be shown to be pretextual, the Plaintiffs have provided no evidence
that the true intent or function of the Rule was protectionist. Accordingly, we
conclude that the Rule does not discriminate against interstate commerce.13
Additionally, the Plaintiffs contend that Rule 5-23 has an impermissible
extraterritorial effect because it attempts to control economic activity that is fully
outside of New York City. But Rule 5-23 does not govern extraterritorial conduct
in any way. As noted above, the Plaintiffs are free to patronize out-of-state firing
13
The Plaintiffs have not argued that the Rule incidentally burdens interstate
commerce, which would subject the Rule to a more lenient balancing test under
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Accordingly, we do not address that
issue. Cf. Town of Southold, 477 F.3d at 49 n.2 (finding that “[d]espite counsel's
failure to elaborate upon the Pike test, the limited reference to Pike in the brief is
sufficient to allow us to give full consideration to it here.”).
40
ranges and to use firearms for target practice or competitive sporting events
anywhere in the country or beyond; they simply may not transport the firearm
licensed to them for possession at a particular New York premises to such
locations. To the extent that the Rule has any effect on conduct occurring outside
the City, “[t]he mere fact that state action may have repercussions beyond state
lines is of no judicial significance so long as the action is not within that domain
which the Constitution forbids.” Osborn v. Ozlin, 310 U.S. 53, 62 (1940). An
ordinance may be unconstitutional when it regulates commerce that takes place
fully outside its borders. See Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989). But
“the Commerce Clause’s ban on extraterritorial regulation must be applied
carefully so as not to invalidate many state laws that have permissible
extraterritorial effects.” Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 68 n.19 (2d
Cir. 2010). Here, the Rule directly governs only activity within New York City, in
order to protect the safety of the City’s residents. Any extraterritorial impact is
incidental to this purpose and thus “is of no judicial significance.” Osborn, 310
U.S. at 62.
41
III. Rule 5-23 Does Not Violate the Right to Travel.
The Plaintiffs next invoke the constitutional right to travel interstate. “The
constitutional right to travel from one State to another, and necessarily to use the
highways and other instrumentalities of interstate commerce in doing so,
occupies a position fundamental to the concept of our Federal Union. It is a right
that has been firmly established and repeatedly recognized.” United States v.
Guest, 383 U.S. 745, 757 (1966). This Court has “acknowledge[d] a correlative
constitutional right to travel within a state.” King v. New Rochelle Mun. Hous.
Auth., 442 F.2d 646, 648 (2d Cir. 1971). However, that local regulations “[m]erely
hav[e] an effect on travel is not sufficient to raise an issue of constitutional
dimension.” Soto-Lopez v. N.Y.C. Civil Serv. Comm’n, 755 F.2d 266, 278 (2d Cir.
1985). The constitutional right is implicated only when the statute “actually
deters such travel, or when impedance of travel is its primary objective, or when
it uses any classification which serves to penalize the exercise of that right.” Id. at
279 (internal quotation marks and citations omitted) (emphasis in original).
The Plaintiffs’ right to travel argument fails for much the same reasons as
does their parallel invocation of the dormant Commerce Clause. Nothing in the
Rule prevents the Plaintiffs from engaging in intrastate or interstate travel as they
42
wish. The Plaintiffs may go where they like, and in particular may attend and
participate in shooting tournaments or similar events held outside the City of
New York. The regulation concerns only their ability to remove the specific
handgun licensed to their residences from the premises for which they hold the
license. The Constitution protects the right to travel, not the right to travel armed.
The Rule was not designed to impede interstate travel and the history
behind it “demonstrates that its purpose was not to impede travel but to protect
the welfare of [city] residents.” Town of Southold, 477 F.3d at 54. Nor does the Rule
impose a significant disincentive to travel, any more than any other regulation
that limits the possession in one jurisdiction of items that may be more broadly
permitted in another. Any incidental impact on travel does not create a
constitutional violation because “[i]f every infringement on interstate travel
violates the traveler’s fundamental constitutional rights, any governmental act
that limits the ability to travel interstate, such as placing a traffic light before an
interstate bridge, would raise a constitutional issue.” Id. State and local
regulations that have an indirect effect on some travel impose merely “minor
restrictions on travel [that] simply do not amount to the denial of a fundamental
right.” Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 258 (2d Cir. 2013).
43
IV. Rule 5-23 Does Not Violate the First Amendment.
The Plaintiffs argue that the Rule violates their First Amendment right to
expressive association by (1) curtailing their ability to join the gun club of their
choice and (2) forcing them to join a gun club in New York City. We disagree.
The Plaintiffs fail to demonstrate how the ability to join a specific gun club,
or the ability to transport their licensed firearms to a shooting club outside of
New York City, qualifies as expressive association. “The Constitution does not
recognize a generalized right of social association. The right generally will not
apply, for example, to business relationships; chance encounters in dance halls;
or paid rendezvous with escorts.” Sanitation & Recycling Indus., Inc. v. City of New
York, 107 F.3d 985, 996 (2d Cir. 1997) (citations omitted). “It is possible to find
some kernel of expression in almost every activity a person undertakes – for
example, walking down the street or meeting one’s friends at a shopping mall –
but such a kernel is not sufficient to bring the activity within the protection of the
First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). “Typically a
person possessing a gun has no intent to convey a particular message, nor is any
particular message likely to be understood by those who view it.” Nordyke v.
King, 319 F.3d 1185, 1190 (9th Cir. 2003). The Plaintiffs fail to identify what
44
expressive activity they would engage in with their guns and argue instead that
they seek “participation in recreational and competitive shooting events.”
Appellants’ Br. 51. Gathering with others for a purely social and recreational
activity, whether it is dancing, Sanitation & Recycling Indus., 107 F.3d at 996, or
shooting guns, does not constitute expressive association under the First
Amendment. Accordingly, the ability to join a specific gun club is not protected
association under the First Amendment.
Even if we were to assume that engaging in firearms training or
competition qualifies as expressive association, as repeatedly discussed above,
the Plaintiffs are not prevented from engaging in such activities, wherever or
with whomever they choose to do so.
First, nothing in the Rule forbids the Plaintiffs from joining and associating
with gun clubs outside the City. The Plaintiffs claim that the Rule “impedes their
right to associate with whom they choose,”Appellants’ Br. 50, but the Rule does
nothing of the sort. The Plaintiffs remain free to associate with whomever they
choose. They may join any club they like outside of New York City. To the extent
that the gun clubs the Plaintiffs wish to join “take positions on public questions
or perform any of the other similar activities” characteristic of expressive
45
association, City of Dallas, 490 U.S. at 25 (internal quotation marks omitted), the
Plaintiffs are not inhibited from joining in those activities. The Rule limits only
their ability to carry the handgun that is licensed for a specific premises outside
of those premises.
The Plaintiffs also contend that the Rule constitutes “forced association”
because it “effectively coerce[s]” them to join clubs that they “may prefer not to
join.” Appellants’ Br. 51. That “effective” coercion is not coercion at all: the Rule
does not require the Plaintiffs to join a gun club in New York City. The licensing
scheme does not require the Plaintiffs to complete firearms training, and even if it
did, they have access to Olinville Arms, which is open to the public, and the
Richmond Boro Gun Club, which is available to non-members for weekly
shooting competitions.
Regardless, the Plaintiffs are incorrect that there is any constitutional injury
at stake in the question of “membership” in a firing range or gun club. As noted
above, the Plaintiffs have not demonstrated that their firearms training is
expressive association, and actually concede that it is recreational activity.
Moreover, the decision of whether to charge a membership fee or a fee based on
hourly usage is a business decision of the club or range. The Plaintiffs have
46
offered no evidence that the firing ranges in New York City that structure
themselves as clubs requiring “membership” either engage in (or require their
members to engage in) expressive activity of any kind, let alone activity to which
the Plaintiffs object. Nor have the Plaintiffs shown that these ranges have selected
their particular fee structures as a byproduct of the Rule, or that their fee
structures reflect any ideological or expressive content to which the Plaintiffs, by
utilizing the range, can be taken as assenting.
Accordingly, the Rule does not violate the First Amendment.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
47