New York judge's gun permit denials trigger big U.S. Supreme Court case

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American Tactical Systems is seen in Green Island

By Andrew Chung

TROY, N.Y. (Reuters) – Justice Richard McNally Jr., a New York state trial court judge, knows he has a reputation among gun enthusiasts in the upstate county of Rensselaer where he presides as a tough sell on granting permits for people to carry concealed handguns without restrictions.

McNally insists that in each case he applies the standard as written in a 1913 New York law that limits concealed-carry licenses to people who can show a “proper cause” for having one.

“It's a law that was intended to grant broad discretion to the local licensing officers, and that takes into consideration geography and other factors,” McNally said in an interview in his chambers at the county courthouse in Troy, a city near the state capital of Albany. “I think it's worked pretty well for the last 100 years.”

That very discretion, wielded by state judges and police officials, could soon disappear. McNally's decisions to deny two county gun owners unrestricted licenses are at the heart of a major gun rights case set to be argued at the U.S. Supreme Court next Wednesday. A ruling is due by the end of next June.

Plaintiffs backed by the National Rifle Association, an influential lobby group closely aligned with the Republican Party, are challenging the “proper cause” requirement as a violation of the U.S. Constitution's Second Amendment right to “keep and bear arms.”

A ruling striking down New York's law would deliver the biggest expansion of gun rights since the Supreme Court's watershed 2008 ruling that recognized for the first time an individual's right to keep a firearm in the home for self-defense. The justices in 2010 extended that decision, which involved the District of Columbia, to the states.

Gun rights, cherished by many Americans, are a contentious issue in a nation that has experienced high levels of firearms violence and numerous mass shootings. The Supreme Court's 6-3 conservative majority is seen as sympathetic toward gun rights.

Gun control advocates fear that the New York case could imperil other state and local gun measures such as “red-flag” laws targeting the firearms of dangerous people or restrictions on selling untraceable “ghost” guns. Proponents of New York's law said striking it down also could jeopardize bans on guns in sensitive places such as airports, courthouses, hospitals and schools.

The challengers in the case seek an unfettered right to carry concealed handguns in public because they said that is where the chance of confrontation is highest.

New York and seven other U.S. states – including the most populous, California – empower officials to decide whether people can carry a handgun even if they pass other criteria such as criminal background checks. Removing that power could require officials to issue thousands more concealed-carry permits.

“The stakes are incredibly high. The fact that the court even took up the case should give us all cause for concern,” said Eric Tirschwell, executive director of the gun safety legal group Everytown Law.

'GOD-GIVEN RIGHT'

The New York State Rifle & Pistol Association, the NRA's affiliate in the state, is a plaintiff in the case. Its president, Tom King, said, “This is a God-given right that's protected by the (Constitution's) Bill of Rights, and nothing in the Bill of Rights says that your right to self-defense stops at your front door.”

To carry a concealed handgun without restriction, most applicants must convince a firearms-licensing officer that they have an actual, rather than speculative, need for self-defense.

The two gun-owner plaintiffs challenging the law, Robert Nash and Brandon Koch, do not face any special or unique danger, but want to carry handguns in public for self-defense.

McNally rejected Nash's bid for an unrestricted license in 2016 and Koch's in 2018, letting them instead carry their guns for hunting, target practice and other outdoor activities. The two men teamed up with King's group to sue the judge and state police in 2018.

Nash and Koch, through an NRA spokesperson, declined to be interviewed. They appealed to the Supreme Court after the Manhattan-based 2nd U.S. Circuit Court of Appeals threw out their lawsuit last year.

The plaintiffs have argued that the law bans most average New Yorkers from obtaining a concealed-carry permit. Data reported to the Supreme Court by the office of New York Attorney General Letitia James, defending the law, showed that around 65% of applicants received unrestricted concealed-carry licenses statewide in 2018 and 2019.

The state has said the law lets officials make public-safety decisions based on local circumstances. New York City, for example, enforces it more strictly in an effort to reduce gun violence in a dense urban environment.

That lack of uniformity irks many gun owners.

“It's just too arbitrary,” said Phil Minissale, a retired restaurant owner who belongs to a gun club in Rensselaer County.

For Minissale, judges should not be able to deny law-abiding “good people” unrestricted permits. When he hears that McNally is deciding someone's application, “I know it's not going to be positive for them,” Minissale said.

Sitting behind his paper-strewn desk adorned with a tiny model of the scales of justice, McNally, 60, looks very much like a judge, with white hair and reading glasses hanging from his neck. McNally sees himself as a “regular guy” and was previously elected as the county district attorney.

McNally declined to discuss the pending case, but acknowledged his reputation with gun owners. He noted that he grew up outside the city of Syracuse next to a gun club, and has spent time shooting in firing ranges.

The judge said he grants unrestricted licenses when they are warranted, adding, “I'm not anti-gun and never have been.”

(Reporting by Andrew Chung; Editing by Will Dunham and Scott Malone)

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