LaReddola Lester & Associates, LLP

August 2021

In the matter of Lambert Henry v. County of Nassau, et al., 20-1027-cv, the Second Circuit U.S. Court of Appeals recently reversed the U.S. District Court’s dismissal of Henry’s Second Amendment claim and held for the first time in New York State the existence of an individual’s Second Amendment Right.

The Court also gave guidance on the application of a strict scrutiny standard for Nassau County’s restrictive ban on all firearms ownership upon revocation of a pistol license.

In assessing a claim under the Second Amendment, we consider two factors: (1) ‘how close the [challenged state action] comes to the core of the Second Amendment right’ and (2) ‘the severity of the [action’s] burden on the right.’” NYSRPA, 804 F.3d at 258. “[T]he ‘core’ protection of the Second Amendment is the ‘right of law-abiding, responsible citizens to use arms in defense of hearth and home.’” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 93 (2d Cir. 2012) (quoting District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008)). When state action imposes a “substantial burden” on the core of the Second Amendment right, we apply strict scrutiny; when that action burdens non-core aspects of the right or burdens the core of the right in an “insubstantial” manner, we apply intermediate scrutiny. United States v. Jimenez, 895 F.3d 228, 234 (2d Cir. 2018).

As an initial matter, the district court’s scrutiny analysis was flawed because “the Second Amendment confer[s] an individual right to keep and bear arms.” Heller, 554 U.S. at 595 (emphasis added). Henry was therefore not required to allege “a policy banning all firearm ownership for all people” to state a claim at the core of the Second Amendment. Henry, 444 F. Supp. 3d at 447 (emphasis added). In deciding otherwise, the district court failed to treat the right to keep and bear arms as an individual right and treated the Second Amendment in a way that was not “consistent with jurisprudential experience analyzing other enumerated rights.” Kachalsky, 701 F.3d at 93-94. We would never hold that a plaintiff failed to state a claim at the “core” of the First Amendment because the plaintiff alleged only that the government prohibited him from speaking but did not ban “all” speech for “all” people. Because the Second Amendment—no less than the First—secures an “individual right” that “the Framers and ratifiers of the Fourteenth Amendment counted … among those fundamental rights necessary to our system of ordered liberty,” McDonald v. City of Chicago, 561 U.S. 742, 777-78 (2010), the district court erred in holding that Henry failed to state a claim at the core of the Second Amendment merely because he does not allege that the County enacted a complete ban on firearm ownership for all people.

Moreover, contrary to the district court’s assertion that “the restrictions [Henry] complains of … are not as severe a burden on the [Second Amendment] right as [Henry] makes them out to be,” Henry, 444 F. Supp. 3d at 447, there is no doubt that Henry has alleged a substantial burden on his Second Amendment rights.”

July 26, 2021 U. S. Court of Appeals Decisions on Appeal from United States District Court for the Eastern District of New York.

As the Henry case was the matter of an Amici Curiae Brief in New York State Rifle & Pistol Association, Inc., et al., v. Kevin P. Bruen, et. al., No. 20-843,  now pending before the U.S. Supreme Court, it should be expected that Nassau County’s restrictive and discriminatory anti-gun policies will be subject to further review and discussions by the Supreme Court.

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