A Loaded Issue

In Panel Discussion, Professor Richard Briffault Addresses Local Governments' Ability to Regulate the Second Amendment Right to Bear Arms
Professor Richard Briffault

New York, March 1, 2013—Litigation over the Second Amendment and gun control laws is the “gold mine” for law review topics, Columbia Law School Professor Richard Briffault told students recently at a panel discussion about handgun laws in New York City.

“This is an issue that was basically born in 2010,” Briffault said, referencing the year the U.S. Supreme Court held that the Second Amendment applies to state and local governments in McDonald v. Chicago. That decision followed District of Columbia v. Heller, a 2008 case in which the court ruled that the Second Amendment provides an individual right to bear arms for the purpose of self-defense.
“This topic is two and a half years old, and we don’t know where it will go,” said Briffault, the Joseph P. Chamberlain Professor of Legislation, noting the area is ripe for scholarship.
David Jensen
He spoke on the panel with David Jensen, a solo practitioner and lead counsel for plaintiffs in a case challenging New York City’s $340 handgun application and renewal fee. Fees in other parts of the state are much lower. The case, Kwong v. Bloomberg, was argued at the U.S. Court of Appeals for the 2nd Circuit recently.
Briffault addressed the balancing act local governments must engage in when they regulate a constitutional right. The fee for a handgun in New York City, he said, is designed to cover the financial costs associated with “separating the wheat from the chaff”—determining who should be able to own a handgun and who shouldn’t—in the interests of public safety. Proving that a fee is unreasonable can be an uphill battle.
“Even in the First Amendment context, the Supreme Court has upheld fees,” Briffault said.
Jensen agreed.
“If you’re holding a political hot potato, like a handgun case, your burden is that much steeper,” he said.
The event, titled “Owning a Handgun in New York City,” was organized by the Columbia Law School Federalist Society.