Bach v. Pataki
Judge Noonan and Truth

Second Circuit Second Amendment Case

"[W]e hold that the Second Amendment’s 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts."  Bach v. Pataki, No. 03-9123, slip op. at 15 (2d Cir. May 6, 2005).  (I also uploaded it to my blog; it's located here).

This is almost a model test case on the incorporation question.  Some have speculated that the reason four Justices haven't voted to grant cert. in other Second Amendment cases resulted from the lack of a good "test plaintiff."  Well, Bach is the perfect plaintiff.

David Bach, a Virginia resident and domiciliary, wants to carry his Ruger P-85 9mm pistol while visiting his parents in New York. He has a permit from the Commonwealth of Virginia to carry a concealed weapon. Bach is a model citizen – he holds a Department of Defense top secret security clearance, is a commissioned officer in the United States Naval Reserve, a veteran Navy SEAL, a lawyer employed by the Navy’s Office of the General Counsel, a father of three, and, perhaps most laudably, a son who regularly visits his parents in upstate New York. During the ten-hour drive between Virginia and Upstate New York, [his] family and [he] travel on dimly lit rural roads and busy streets and highways[,] some of which are in densely populated areas that have extremely high violent crimes rates.

Slip op. at 2-3 (quotation marks and footnotes omitted).  Second, Bach has top-flight Supreme Court counsel, namely Kevin Miller and David Frederick.  (Though this isn't likely a deciding factor in the Justices' minds, court watchers know that if anyone can persuade the Court to grant cert., these guys can.  Plus, the Justices will know that if cert. is granted, the case will be well-argued.)

One significant factor counselling against cert. is that there doesn't appear to be a circuit split.  In United States v. Emerson, the Fifth Circuit held that the Second Amendment confers an individual right to keep and bear arms; but since it was a federal case, the incorporation issue was irrelevant.  (Or even it was was relevant, its discussion would be dicta.)

There's also an interesting discussion on the Privileges and Immunities Clause.  Id. at 19-32.

Bach’s appeal depends on only this last guarantee that, "by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the ‘Privileges and Immunities of Citizens in the several States’ that he visits." [Saenz v. Roe, 526 U.S.] at 501. His appeal thus condenses to the challenge that New York’s handgun licensing scheme unconstitutionally discriminates against nonresidents with regard to a protected privilege under the Clause. Because we hold that New York’s interest in monitoring gun licensees is substantial and that New York’s restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interest, we reject Bach’s Article IV Privileges and Immunities Clause challenge.

Slip op. at 20.  I'm especially interested in reading what Second Amendment experts David Hardy (read his comments here), Glenn Reynolds, and Eugene Volokh will write about Bach.

(Hat tip: AL&P).