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Residential Handgun Fees Are Constitutional, 2nd Cir Affirms

By Gabriella Khorasanee, JD on July 17, 2013 | Last updated on March 21, 2019

With all the power the gun lobby holds, it’s a rare instance when a gun law gets challenged and upheld. Last week, in Kwong v. Bloomberg, the Second Circuit Court of Appeals defied the odds and held that two New York laws regulating residential handgun licensing fees were constitutional.

Here’s why.

N.Y. Admin. Code § 10-131(a)(2) is Constitutional

The N.Y. Admin. Code § 10-131(a)(2) imposes a $340 licensing fee to keep a handgun in one's residence and the license is good for three years, after which it would need to be renewed. Plaintiffs argued that § 10-131(a)(2) violated their Second Amendment rights, but the Second Circuit did not agree.

The Second Circuit relied on First Amendment fee jurisprudence which holds that fees are constitutional when they are "designed to defray (and do not exceed) the administrative costs of regulated the protected activity." Since the fee was explicitly increased "to recover costs" the court of appeals found that it was a constitutionally permissible fee.

Next, the court determined that § 10-131(a)(2) was not an impermissible burden on the plaintiffs' exercise of their Second Amendment rights. The court discussed, but did not decide what level of scrutiny to apply because the law passed would survive a heightened level of scrutiny anyway. Since New York has "substantial, indeed compelling, government interests in public safety and crime prevention," and the fee was limited to recovering costs, the court found the fee constitutional.

N.Y. Penal Law § 400.00(14) is Constitutional

The second law challenged by the plaintiffs was N.Y. Penal Law § 400.00(14), which permits Nassau County and the City of New York, to set fees outside the $3-$10 range set for the rest of the state of New York. Plaintiffs argued that the disparity in fees violated their 14th Amendment rights under the Equal Protection clause, but the court did not agree.

The court found that plaintiffs were not part of a protected class because "geographic classification is not suspect", and because the law itself did not burden Second Amendment rights. Deciding that rational review was the correct level of scrutiny, the Second Circuit found that New York had a legitimate interest in making sure "that New York City's licensing scheme is adequately funded, thereby allowing it to function properly."

In Kwong v. Bloomberg, the main aspect of the laws that enabled them to survive scrutiny was that they were not outright bans on the ability to have handguns in one's residence. Rather, the challenged laws merely set out to regulate and enforce that ability to have a handgun and only charged fees to recover costs.

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