Posted by Eugene Volokh:
New York Trial Court Suggests That States May Not "Require That a Handgun Be
... Locked Up" in a Lawful Owner's Home:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225992400
[1]Colaiacovo v. Dormer, decided last week, so holds:
The Petitioner was possessed of a pistol permit with a sportsman
endorsement that was ... revoked ... altogether based upon
circumstances surrounding the [suicide] of Petitioner's wife ....
Apparently, the Respondent determined that the Petitioner's failure
to keep his weapon in a locked safe, or otherwise inoperable was an
unspecified rule violation....
In view of D.C. v. Heller there is a question as to whether the
Petitioner's conduct relative to properly safeguarding his handgun
was within the bounds of his constitutionally protected 2nd
Amendment rights. If the Petitioner acted in a manner consistent
with his existing constitutional rights relative to the care and
safeguarding of his pistol, the State of New York may not diminish
such other rights as he may otherwise possess or have been
previously granted solely on the basis that some provision of State
law ... dictates that he behave differently in derogation of his
Second Amendment Rights. Simply put, the State of New York ... [is]
no longer in a position to require that a handgun be stored in an
inoperable condition or otherwise locked up if it is otherwise
legally present in the owner's dwelling....
ORDERED ... that the matter is remanded for such further
proceedings as Respondent deems necessary in order to make a
determination and create a record as to whether and how the
Petitioner's actions or inactions went beyond constitutionally
protected conduct as recognized ... in D.C. v. Heller ....
As I read it, the court thinks that requirements that a handgun be
stored locked or inoperable are unconstitutional, but other kinds of
storage requirements might be. The remand is therefore to determine
whether Colaiacovo may have acted in a supposedly unsafe manner beyond
just storing the gun unlocked and operable. One could read the court
as remanding the case for further discussion of whether Heller does
indeed bar locked-or-inoperable-storage requirements, but that seems
inconsistent with the sentence that starts with "Simply put."
The court seemed to assume that the Second Amendment applied to states
and local governments -- presumably because it's incorporated via the
Fourteenth Amendment -- and didn't at all discuss whether this should
indeed be so. Thanks to David Hardy for the pointer; see also [2]the
Gun Legislation & Politics in New York blog.
References
1. http://www.nysrpa.org/files/colaiacovo_v_dormer.pdf
2. http://blog.nysrpa.org/?p=1872
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