I Second That Amendment

United States v. Decastro, No 10-3773 (2d Cir. June 1, 2012) (Jacobs, Hall, Lynch, CJJ)

In 2002, Angel Decastro moved from Florida to New York to help run his father’s dry-cleaning business. After a violent confrontation with a customer, Decastro requested a handgun license application from the NYPD. He did not submit it, however; he claimed that a desk officer told him that there was "no way" that it would be approved. Instead, he returned to Florida, where he was licensed to own a handgun, and purchased two guns. He left one in Florida and brought the other back to New York. A few years later, he moved back to Florida but left his gun with a relative in the Bronx, planning to retrieve it later. In the interim, the relative’s girlfriend turned the gun in to the police. The police traced it back to Decastro, who was charged with and convicted of violating 18 U.S.C. § 922(a)(3), which prohibits those not licensed to do so from transporting into their state of residence firearms purchased or acquired outside that state.

This appeal concerns Decastro’s Second Amendment challenge to this conviction. His first argument was that the interplay between New York’s strict licensing scheme and § 922(a)(3) violated the Second Amendment because he was virtually forced to purchase a firearm outside of New York in order to protect himself there. But the circuit concluded that he lacked standing to challenge New York’s licensing scheme because he did not actually apply for a New York license. Moreover, the evidence he adduced in the district court in an effort to establish the "futility" of getting a firearms licence in New York did not show that at all. To the contrary, it showed that during the relevant time period getween 2/3 and 3/4 of the handgun license applications submitted in New York were granted.

The court also rejected the argument that § 922(a)(3) on its face violates the Second Amendment. The individual right guaranteed by the Second Amendment is the right to possess and carry weapons for self-defense in case of confrontation. But only laws that impose a "substantial burden" on that right receive heightened scrutiny. And here, the circuit found no such substantial burden. Section 922(a)(3) only prohibits interstate transportation; it does nothing to keep someone from purchasing a firearm in her home state, "which is presumptively the most convenient place to buy anything." Moreover the law’s purpose is legitimate - it helps stop the circumvention of state laws regulating gun possession by requiring state residents to comply with conditions of sale and similar requirement in their home state.

Absent any sort of heightened scruutiny, the Second Amendment facial challenge here failed. It is not true that there is "no set of circumstances ... under which the [statute] would be valid." Given its purpose and function, § 922(a)(3) "plainly" has a "legitimate" sweep. This is true even accepting that some state laws governing the sale of firearms may themselves be unconstitutional, since nothing in § 922(a)(3) sanctions, compels or encourages state regulations that offend the Second Amendment. And Decastro could not rely on a claim that the section has no excpetion for the transportation of firearms purchased out of state by someone licensed to possess a gun at home; Decastro did not have a license to own a firearm in New York, and did not even apply for one.