From Kuck v. Danaher, decided yesterday. [Note: Before commenting, please click on "continue reading" to read the rest of the opinion and the UPDATE at the end where I explain what I think likely happened here.]
[M. Peter] Kuck’s claims arise from his efforts to renew his permit to carry a firearm with the Connecticut Department of Public Safety (“DPS”). His principal claim is a procedural due process challenge alleging that DPS — in tandem with the Board of Firearms Permit Examiners (“the Board”) — has a practice of improperly denying permits, unnecessarily prolonging the appeals that follow, and then quietly resolving disputes at the last minute….
In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application. [Footnote: The background facts are taken from Kuck’s complaint, the allegations of which are assumed to be true for purposes of adjudicating Defendants-Appellees’ motion to dismiss.] In response, Kuck inquired into the basis for the request. He was told that, by statute, the State could not issue a firearm permit to any “alien illegally or unlawfully in the United States,” and therefore DPS was required to verify his citizenship. See Conn. Gen. Stat. §§ 29–28(b), 29–28(f), 29–29(d); cf. Conn. Const. art. I, § 15 (limiting the right to bear arms to “citizens”). Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.
Kuck then filed an appeal with the Board, seeking a hearing on whether his refusal to submit a U.S. passport or birth certificate provided “just and proper cause” for the denial of his application. However, his appeal hearing was not scheduled to occur for eighteen months, during which time he was deprived of a permit to carry a firearm. In October 2008, after this suit was filed, Kuck finally received his hearing. Shortly before the hearing, he provided a voter registration roll supporting his citizenship and residency status; as the result, his renewal application was granted….
Notably, at the time of his renewal application, Kuck was the Secretary of the [Board of Firearms Permit Examiners]. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.
Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. He contends that DPS and the Board have acted to burden gun-owners’ ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals….
Kuck’s main contention is that the eighteen-month period he waited to receive an appeal hearing before the Board was, in light of the liberty interest at stake, excessive and unwarranted, and thus violated due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985) (“At some point, a delay in the post-termination hearing would become a constitutional violation.”). Kuck further alleges that, as a matter of practice, DPS deliberately seeks to prolong the appeals process in order to unlawfully deprive citizens of pistol permits.
Appellees concede that Kuck possesses a liberty interest, created by the Connecticut Constitution, in his right to carry a firearm. See Conn. Const. art. I, § 15. They dispute, however, that the time required to resolve Kuck’s appeal violated due process. This waiting-period, they argue, is the product of a substantial caseload and the State’s acute interest in ensuring that firearms are borne only by those fit to carry them.
Our procedural due process analysis is controlled by the three-factor test prescribed in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). This test requires that we balance: “(1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures; (3) the government’s interest, including the possible burdens of alternative procedures.” …
Broadly speaking, a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interest at stake…. We, as well as other circuits, have acknowledged that administrative determinations may require a non-trivial amount of time to complete, especially where caseloads are heavy…
With respect to the first Mathews factor, Kuck’s stake in the firearm license is a liberty interest tied to the right to bear arms recognized by state law. See Conn. Const. art. I, § 15. As noted, the defendants concede that Kuck possesses such an interest…. [T]his interest is not directly tied to Kuck’s economic livelihood, and thus lacks some of the same urgency identified by our opinion in [some past cases]. Nonetheless, the interest here remains substantial, protected as it is by the Connecticut Constitution and decisions of that state’s highest court..
While this right is clearly subject to state regulation — including licensing provisions such as those here — these procedures must comport with due process. Contrary to defendants’ suggestion, the state’s ability to regulate firearms does not extinguish the liberty interest at stake or eliminate the need to afford due process. In Connecticut, a permit to carry a firearm may only be revoked by the Commissioner of DPS “for cause,” or under certain statutorily enumerated circumstances requiring revocation. Conn. Gen. Stat. § 29–32(b), (c). Much the same, denial or revocation must be supported on appeal by “just and proper cause.” Conn. Gen. Stat. § 29-32b(b). By contrast to other states’ regulatory schemes, the Commissioner does not have unfettered discretion to revoke permits under state law. As a result, permit renewal applicants are entitled to basic due process protections, including a meaningful opportunity to be heard after a denial or revocation.
All in all, deprivation of a firearm permit may not represent the same day-to-day hardship occasioned by the seizure of a vehicle used for daily transportation, … or interference with a business-person’s livelihood …. Yet the Connecticut Constitution establishes a clear liberty interest in a permit to carry a firearm — an interest that is highly valued by many of the state’s citizens. See Conn. Const. art. I, § 15 (“Every citizen has a right to bear arms in defense of himself and the state.”). Though not overwhelming or absolute, we conclude that the private interest at stake remains significant….
The second Mathews factor — the risk of erroneous deprivation and the probable value of alternative procedures — requires a close analysis of Kuck’s complaint. Kuck, as we have seen, alleges that DPS frequently denies permit applications for bogus or frivolous reasons, thereby subjecting qualified applicants to a lengthy appeals process, only to grant the permit months or years later, just before the appeal hearing. In his case, Kuck claimed that DPS was not entitled under state law to require proof of citizenship with his 2007 renewal application, and that his permit should not have been denied for lack of such documentation. While this requirement appears eminently reasonable to us, it is not our province here to resolve the specific issue of state law on which Kuck based his appeal to the Board. The viability of Kuck’s due process claim does not turn on the merits of his initial challenge; rather, it concerns whether he received the process he was due. Thus, the focus of this second prong remains on (1) the overall risk of erroneous deprivation for permit applicants, and (2) the time-period required to correct such deprivations.
In support of his allegations, Kuck offers figures suggesting that the number of appeals “resolved” without a hearing is indeed far greater than those actually heard by the Board. See Am. Compl. PP 195-197 (alleging, for example, that 249 appeals were “resolved” in fiscal year 2006-07, while only 40 appeals came before the Board for a hearing). This data is consistent with his allegation that many permits are granted or reinstated shortly before the Board is due to hear the applicant’s appeal. At the motion to dismiss stage, we credit the inference that this large disparity represents a significant number of unfounded permit decisions by DPS. See Spagnola v. Chubb Corp., 574 F.3d 64, 67 (2d Cir.2009) (When reviewing a motion to dismiss, we accept “all well-pled factual allegations as true and draw all reasonable inferences in the plaintiff’s favor”). [Footnote: Kuck, we also recognize, is in an unusual position to describe the process by which appeals are resolved. Because he sits on the Board itself, his allegations have some additional plausibility at this early stage of the proceedings.] In addition, Kuck alleges that the resulting delay is far from trivial. According to the complaint, unsuccessful applicants must regularly wait fourteen to twenty months to receive an appeal hearing. Together, these allegations plausibly allege a state practice of delaying appeals, only to moot them at the very last minute, after the applicant has waited more than one year for a hearing. Because this practice appears to have affected a significant number of applicants, and the delay is considerable, the second Mathews factor weighs in favor of Kuck at this stage of the proceedings….
The third Mathews factor requires us to examine the strength of the state’s interest in the challenged procedures. Connecticut clearly has a strong and compelling interest in ensuring that firearm permits are not issued to those “lacking the essential character or temperament necessary to be entrusted with a weapon.” Yet the state’s legitimate interest in public safety does little to explain why it requires up to twenty months to address appeals. For the purposes of a due process analysis, the state must articulate some reason, tied to this interest, that justifies the lengthy period necessary to resolve these appeals.
Here, the state’s account is far from overwhelming: the defendants argue that the prolonged wait is simply a function of the Board’s caseload and backlog. Yet, on the pleadings, there is no indication that this time is required to gather evidence, perform additional investigation, or formally consider the appeal. Instead, the complaint suggests that the appeal sits gathering dust for nearly all of the interim period, awaiting the scheduled hearing date. Moreover, the amended complaint states that the Board held only 40 appeal hearings in fiscal year 2006-07 — or less than four appeals per month. Thus, the pleadings themselves do not support a clear case of routine administrative delay or overburdened bureaucracy. All in all, the State’s argument boils down to an assertion that public safety is important and appeals have gotten backed up. But the delay has little apparent connection to the public interest invoked by defendants. The State gives no account of how or why public safety requires unsuccessful applicants to wait a year-and-a-half for an appeal hearing….
For the purposes of the present motion to dismiss, we find that Kuck has stated a procedural due process claim. Whether discovery will bear out his claim is a matter for the district court to determine on remand….
UPDATE: As I read the opinion, Kuck deliberately brought a test case. He thought the requirement that he keep showing proof of citizenship when his license is renewed — rather than just once when the license was initially granted — was improper, and he wanted to challenge that by asking for review. But he also wanted to challenge what he saw was a far too slow review process: Even if the repeated-proof-of-citizenship requirement was valid, he argued, the Board should have heard his argument more quickly than it did.
Thus, even if you think the repeated-proof-of-citizenship requirement is perfectly reasonable and authorized, that doesn’t change the analysis for Kuck’s procedural due process argument — his claim was that the procedure for making that determination was unconstitutionally slow. And this is the claim that the Second Circuit allowed to go forward (emphasis added): “In his case, Kuck claimed that DPS was not entitled under state law to require proof of citizenship with his 2007 renewal application, and that his permit should not have been denied for lack of such documentation. While this requirement appears eminently reasonable to us, it is not our province here to resolve the specific issue of state law on which Kuck based his appeal to the Board. The viability of Kuck’s due process claim does not turn on the merits of his initial challenge; rather, it concerns whether he received the process he was due. Thus, the focus of this second prong remains on (1) the overall risk of erroneous deprivation for permit applicants, and (2) the time-period required to correct such deprivations.”
Jeff says:
If the 2nd is incorporated against the states via due process or equal protection, won’t that invalidate state restrictions that apply to non-citizens? A P or I incorporation would apply only to citizens, but due process/equal protection apply to “any person”, not just citizens.
March 25, 2010, 9:48 amcboldt says:
Looking at the case as a whole, this is a hollow victory.
March 25, 2010, 9:49 amAnd too, I’m surprised his complaint was deemed to meet the “a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interest at stake” standard for the first prong. This element of a due process violation is not fleshed out.
OrenWithAnE says:
The law is clear that aliens and illegals cannot get a permit. It is therefore logically quite authorized by law for the DPS to verify that parmit-holder are not aliens or illegals. At least this claim seems patently absurd.
If they had accepted, they would have been in direct violation of the CGS quoted above.
Dog bites man, news at eleven!
March 25, 2010, 10:44 amRoger the Shrubber says:
It’s interesting how often the bureaucratic shenanigans associated with firearms laws mirror the whacky hijinks of Jim Crow. This case isn’t even a particularly egregious example.
March 25, 2010, 10:48 amCDU says:
According to the ruling DPS verified his citizenship at the time they initially issued his permit.
March 25, 2010, 10:54 amElliot says:
So, these are the folks who want to control our health care, too???
March 25, 2010, 10:59 amPhilistine says:
On an initial application, sure. But this was a renewal. Kuck alleged that he provided such information when he initially received his permit in 1982.
According to Kuck, they had renewed it numerous times for him since 1982 without asking for the information.
I do wonder what exactly the point of him caving and providing the information was if he was trying to set up a test case.
March 25, 2010, 11:02 amcboldt says:
– So, these are the folks who want to control our health care, too? –
March 25, 2010, 11:05 amNo. Different bunch of social engineers.
OrenWithAnE says:
Funny, the DMV verifies my citizenship every time I renew my driver’s license every few years. My voter registration lapses if I don’t confirm residency in my town every two years. I had to provide documentation to renew my passport ….
The requirement to prove citizenship is neither burdensome nor unreasonable and is directly supported by the explicit requirements of State law. Once it was (trivially) met, the license was granted. This is a non-story except for the plaintiff’s inexplicable intransigence to meet the statutory requirements.
[ Aside: I'm not asserting that the DPS is reasonable in all cases. I wouldn't be at all surprised to hear that they routinely drag their feet on valid applications and engage in other dilatory or harassing inquiries. My claim is only that in this particular case, their delay was justified by the plaintiff clearly not meeting the explicit statutory requirements. He is a terrible test-case for challenging the (potentially, I don't know, factually sensitive) arbitrary nature of the CPS. ]
March 25, 2010, 11:09 amOrenWithAnE says:
Practice does not create an enforceable right to continue that practice. The law seems to allow them to ask for it now (on my cursory reading of the CGS).
Because he wanted a permit. Most of us permit-holders (I hold a MA one) are not drama queens — we want to comply with the law and be given a permit.
March 25, 2010, 11:11 amcboldt says:
– My claim is only that in this particular case, their delay was justified by the plaintiff clearly not meeting the explicit statutory requirements. –
March 25, 2010, 11:19 amThe second circuit disagrees, in that the state did not produce evidence to justify the length of delay. Your comment merely sustains the power of the state to condition issuance of the permit on Kuck’s production of evidence of citizenship. Without getting to the merits of that, is an 18 month delay justified, getting the appeal that probably sustains the power of the state? 80 month delay to appeal? You say the delay is justified – so, what is the justification for 18 moths between initial denial, and hearing his argument on appeal?
PhilC says:
“The second circuit disagrees, in that the state did not produce evidence . . .”
I don’t think you understand the posture of this case. The State can’t produce evidence at this point and the 2nd Circuit made no determination on the final merits of the case.
March 25, 2010, 11:39 amcboldt says:
– The State can’t produce evidence at this point and the 2nd Circuit made no determination on the final merits of the case. –
My point is that the “substance” of the case (whether the state can demand production of proof of citizenship) is separate from the length of time between initial denial of the permit, and hearing the appeal. Said another way, there are two separate “final merits” points, one on the substance, and a separate one on the length of time between filing for an appeal on denial, and having the (maybe frivolous) appeal heard and decided.
March 25, 2010, 11:56 amThis is the 2nd Circuit stating a determination on the substantive merits:
cboldt says:
“Delay was justified” is not the same as “The initial decision was justified.”
March 25, 2010, 11:58 amOrenWithAnE says:
Actually, I agree with that part.
On closer reading, you are right. They should have rejected his application for failure to provide the necessary proof of citizenship within a much more reasonable timeframe.
Once again cboldt, you are right. That said, I’m still not sympathetic to the plaintiff.
March 25, 2010, 12:04 pmFub says:
Which explains why this was such a thorny case.
March 25, 2010, 12:08 pmOrenWithAnE says:
Sorry, I meant to say they should have rejected his appeal of the application rejection in a prompt fashion.
March 25, 2010, 12:16 pmHouston Lawyer says:
It appears on its face that the rejection of his renewal application was done in bad faith. It will be interesting to see upon discovery what evidence he can uncover to show that this was done in retaliation for his outspoken views.
March 25, 2010, 12:22 pmAdam J says:
I think Connecticut gun permit holders need a better plaintiff then Kuck. He doesn’t submit any proof of citizenship upon request, then, after waiting 18 months he finally submits proof right before the hearing, rendering the hearing moot. If he had submitted the proof months before the appeal hearing & still had to wait he’d probably have a much stronger case. While many folks might have had their permit unreasonable denied for months until the hearing, Kuck seems in no small part responsible for his own delays.
March 25, 2010, 12:39 pmarbitrary aardvark says:
they should have rejected his appeal of the application rejection in a prompt fashion There’s a colorable claim under the statute that it’s the agency’s burden of proof to come forward with evidence that he’s no longer a citizen, or that their initial determination that he was a citizen was in error.
March 25, 2010, 12:40 pmThere’s also the issue of whether discrimination based on citizenship infringes the right to bear arms, as incorporated. (If it isn’t now, it will be by the time the case goes to trial.) What’s the state interest in preventing permit holding by long time resident aliens who serve on the gun board? What’s the standard of review for citizenship-based deprivation of fundamental rights? The board seems to be requiring that he prove citizenship, which is a different question than whether he’s an illegal alien.
yankev says:
Because his place of birth had changed since the proof of citizenship that he had provided in 1982? I suppose that his naturalization (if he was not born here) could have been revoked in the interim, just as he might have renounced or forefeited his citizenship, but the documents that the state requested would not have shown that.
March 25, 2010, 12:43 pmKevin P. says:
a) The Second Circuit seems to think he was good enough as a plaintiff.
b) The 18 month delay was due to the DPS, not due to Kuck. They could have scheduled the hearing within a few days if they wanted to.
c) Kuck seems to have wanted to expose DPS’ unnecessarily burdensome foot dragging, and seems to have succeeded very well at that.
The Second Circuit covers New York State and its arbitrary, discriminatory, expensive and burdensome pistol licensing scheme. After McDonald comes through, NY’s pistol licensing is in trouble!
March 25, 2010, 12:58 pmmischief says:
And they somehow think that denial of a gun, and so self-defense, is somehow less important than seizing your car.
Is walking really that much onerous than having been shot to death?
March 25, 2010, 1:01 pmPersonFromPorlock says:
Something that’s always bothered me about workload-related delay: if there really aren’t enough people in an office to handle the workload, I’d expect delays to increase as a backlog accumulates. But the excuse is often trotted out to explain chronic slow processing that never gets any slower. This does not compute.
March 25, 2010, 1:05 pmluagha says:
What about, “He points to his past applications on file that has a photocopy of his previously verified documents.”
The state says, “18 months till your appeal. Next!”
Seems pretty obvious delaying to me.
March 25, 2010, 1:20 pmzippypinhead says:
Remember, this was simply an appeal of a Rule 12(b)(6) dismissal for failure to state a claim upon which relief could be granted. It is not an adjudication on the merits, but simply a remand to the District Court for further proceedings, since the Circuit panel found that all the allegations in plaintiff’s complaint, if taken as true, might have some merit. That’s a fairly low pleading hurdle, and doesn’t amount to anything like a finding of liability or wrongdoing on the part of the state. There are still a number of problems this plaintiff faces before getting to a trial on the merits, including whether he has named the right defendants, whether there are mootness issues, and whether he can survive a summary judgment motion after the defendants have proffered their own evidence as to the reasonableness of their actions (including whether requiring reconfirmation of current citizenship with nearly 3 decades since the last check is reasonable, and whether plaintiff’s refusal to provide readily-available proof was itself unreasonable). And this case may be of somewhat limited precedential value outside Connecticut, as it is currently based only on the state constitution’s RKBA provision, having nothing to do with the (not-yet incorporated) Second Amendment.
This Pinhead’s prediction: The case is going to settle, probably very soon. The state doesn’t want the possiblity of this going much further and jeopardizing their firearms regulation scheme, particularly with McDonald’s near-inevitable incorporation ruling waiting in the wings. And after securing this very interesting F.3d opinion, plaintiff should want to declare victory once and for all before the District Court can rule on any of the other possible grounds for dismissal that are still viable.
March 25, 2010, 1:21 pmFederal Farmer says:
A non-resident alien should apply for a CT permit. There was a challenge like that in WA backed by SAF I believe.
March 25, 2010, 1:38 pmDefense of one’s life is inalienable, after all.
DYSPEPSIA GENERATION » Blog Archive » Second Circuit Due Process Victory for Connecticut Carry Permit Holders says:
[...] Read it. [...]
March 25, 2010, 1:39 pmInstapundit » Blog Archive » EUGENE VOLOKH: A Second Circuit Due Process Victory for Connecticut Carry Permit Holders…. says:
[...] EUGENE VOLOKH: A Second Circuit Due Process Victory for Connecticut Carry Permit Holders. [...]
March 25, 2010, 1:49 pmSteve says:
As a pure matter of common sense, I don’t understand why anyone should have to re-prove their citizenship. It’s not something one commonly loses.
March 25, 2010, 2:00 pmOrenWithAnE says:
Perhaps if they were revoking his permit but certainly they can require the same level of proof for a renewal as for the initial application.
Jeez, they know his address too – can he just refuse to fill out that part of the application as well? How dare they impose such a burden on him!
The State here asked for nothing more than a photocopy of his passport — we’ve spent more effort arguing about this here (let alone requiring lawyers and the 2CA to get involved) than it would have taken to comply with this reasonable request. It’s hard to rationalize it as any kind of real burden, let alone the substantial burden, on his rights.
I hope so too, I’m just not enamored of Kuck’s chances on the merits.
March 25, 2010, 2:11 pmTuck says:
“Notably, at the time of his renewal application, Kuck was the Secretary of the [Board of Firearms Permit Examiners]. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.”
In other words, Kuck sat on the board that would have heard his appeal of his permit revocation. That explains why he didn’t bother to force a hearing, the outcome was never in doubt.
The Board’s website notes: “The Board of Firearms Permit Examiners has formed a subcommittee to research regulations,
March 25, 2010, 2:19 pmpolicy and solutions to the Board’s backlog.”
TTC says:
Is this going to have any impact on abusive may issue jurisdictions in general?
March 25, 2010, 2:19 pmAdam J says:
Kevin P. –
a) Actually, the 2nd Circuit itself seemed to question whether Kuck was good enough as a plaintiff, however that wasn’t a question that was before the Court.
b) The 18 month delay until the hearing was indeed due to DPS, but the 18 month delay Kuck submitted proof of citizenship was due to Kuck. Whether Kuck was truly injured by failure of due process seems debatable in light of this.
c) Exposing the footdragging is nice, but I don’t think that alone necessarily wins his case.
March 25, 2010, 2:22 pmAD says:
CT authorities probably found evidence of citizenship expiration in the penumbra of some mythical emanation.
March 25, 2010, 2:30 pmBut, the serious question is:
Does the renewal application form state that proof of citizenship has to be re-submitted upon application for renewal? If it doesn’t, the DPS is out of line asking for it.
They have his info, and can run a simple background check as any gun-buyer would have done; which would clearly show his citizenship, or lack of same.
cboldt says:
– I’m just not enamored of Kuck’s chances on the merits. –
March 25, 2010, 2:36 pmHe lost his substantive due process argument at the trial court, and that loss was sustained by the 2nd circuit. He can’t even maintain a suit on a claim based on a need to show proof of citizenship, as a matter of law.
“His chances on the merits” is already decided. He lost. You think he’s going to appeal this to SCOTUS? Would SCOTUS grant cert? /roll eyes/
Dave N. says:
I disagree. Kuck doesn’t want to settle. He deliberately set this up as a test case. He WANTS McDonald to be decided (in favor of incorporation, obviously). And then he wants to push this case forward in its aftermath. He is hoping that post-McDonald, summary judgment will be even more difficult for the defendants.
More likely, Kuck will fold if dismissal occurs on more mundane grounds. He just won’t appeal then and he will still have his precedent.
March 25, 2010, 2:39 pmAdam Sullivan says:
So the state can bury you under red tape as long as they do it with care and speed.
March 25, 2010, 2:47 pmAndy Krause says:
I’m glad the opinion here at VC is that it is not burdensome to require proof of citizenship for a permit renewal. We can now suitably require the same for voting. Then if you don’t have it on voting day you can wait for the next election.
March 25, 2010, 3:22 pmSteve says:
I’m glad the opinion here at VC is that it is not burdensome to require proof of citizenship for a permit renewal. We can now suitably require the same for voting.
Except that’s not the opinion here at VC. It may be the opinion of a few people at VC. It’s certainly not my opinion, for example.
March 25, 2010, 3:27 pmOrenWithAnE says:
This is neither here nor there, if Kuck wanted to go to the hearing without it, they should have let him. They could then have a nice quick hearing rejecting his appeal as being wholly without merit. Why they should wait 18 months on a such a simple thing is beyond me.
Actually, I’ll buy this one. If the State wants proof of citizenship, it should clearly ask for it.
Yes, truly a request for a photocopied passport (properly done, see above) is burying you with red tape. Just make sure not to stop anywhere near a Kinkos on your way to the scissors-store.
March 25, 2010, 3:41 pmFederal Farmer says:
Voting is a right originating from citizenship. Self-defense is not, being a ‘natural’ right of all creatures.
I don’t see how requiring proof of citizenship is fine with respect to gun ownership but it is asking too much for a voter to prove citizenship at the polling place.
March 25, 2010, 3:59 pmDavid V says:
Isn’t implicit(eg. reasonable) upon renewal given that the original permit application requires it?
March 25, 2010, 4:00 pmWaste93 says:
Actually a firearms background check only checks criminal records. Though some states may also check mental health records. As someone that has run these checks, I can assure you that citizenship is not listed on criminal records. It may list place of birth, but that doesn’t indicate citizenship.
March 25, 2010, 4:03 pmAdam Sullivan says:
Here’s something I have recently learned while researching capitations – The primary argument now against people needing a state issued photo ID to vote is that it constitutes a poll tax since one must pay the state to get such an ID. Paying for that ID and the logistical requirements of doing so disproportionately burdens the rural poor.
I (and perhaps I am alone on this) think that, regardless of what Constitutionally enumerated right you intend to exercise, the state should not derive revenue in allowing you to exercise it. Otherwise it is a privilege extended by the state. Same for fees associated with filing petitions.
March 25, 2010, 4:03 pmHenry Bowman says:
Back when I had a passport, it was quite clearly marked that photocopying it actually violated some law. Do you have a current one? What does it say?
March 25, 2010, 4:54 pmMark Ferrigno says:
So did the state think he renounced his US Citizenship (previously proven) and decided to stay and reside illegally?
March 25, 2010, 4:58 pmyankev says:
Yes, it’s almost as though he were daring them to deny the renewal and set an unreasonably time for the appeal, so that he could challenge the allegedly deliberate foot dragging as a violation of due process. Remember, the gist of the complaint is not that they denied his renewal, but that they engage in a deliberate pattern of delay so as to deprive applicants of the ability to exercise their rights.
March 25, 2010, 5:07 pmzippypinhead says:
Who knows? But renouncing your citizenship does not necessarily equate with losing U.S. residency. Although it DOES make you a prohibited person ineligible to possess a firearm under Federal law, see 18 U.S.C. §922(g)(7), and thus one could argue is fully as legitimate an area for inquiry in a firearms permit renewal proceeding as whether one has been convicted of a felony since the initial permit issuance, has become a mental defective, drug addict, or is currently in any of the other prohibited person categories listed in 18 U.S.C. §922(g). If I were representing the state, that’s how I’d defend the reasonableness of the proof of citizenship demand in my defendant’s summary judgment motion.
[although on somewhat different facts, or with a different plaintiff, I think the claim of due process denial through a policy of delay and stonewalling could have merit. I'm just a bit skeptical that THIS plaintiff can get to a judgment on the merits, especially when simply pulling his voter card out of his wallet was all that was required to satisfy the state's demand for proof of current citizenship.]
March 25, 2010, 5:43 pmFredP says:
Is it not true that his permit was de facto proof that he had complied with statutory requirements for obtaining the permit, in particular, that he had complied with the statutory requirement of citizenship? So wasn’t his old permit proof that he was a citizen? And so why should he be compelled to supply additional proof beyond the permit itself?
March 25, 2010, 6:11 pmAdam Sullivan says:
To prevent cyber bullying, Congress should pass a law that requires website operators to identify who comments on their sites, and that said operators keep on file a copy of each commenter’s photo ID, and demand it annually.
Congress has an interest in fostering and promoting interstate commerce and web sites that allow comments certainly account for more than no contribution to interstate commerce. Furthermore, the state can demonstrate that one can be required to produce an ID to engage in other lawful activity that are enumerated rights, such as voting.
Question – would such a requirement inhibit people from exercising free speech rights, and would Congress have the power to enact such a law anyway?
March 25, 2010, 6:13 pmdisintelligentsia says:
What I find repulsive is that the Court goes out of its way to diminish the importance of the right to self-preservation. The elephant in the room, that the permitting process itself violates art. 1, sec. 15 of the state constitution, is left unaddressed:
So, in summary, the Court seems to think that the right of a citizen to defend his life is not as urgent or strong as those pertaining to a person’s work whereas the State’s interest in regulating firearms is strong and compelling and only requires some reason that is merely tied, but not directly related to, that interest in order to justify a delay in giving someone a permit in order to exercise their rights under the state Constitution.
It appears to me that the Court has it reversed. The provision of the state constitution in question appears to be self-executing – “SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.” If the plain language of the constitution were followed, then conditioning the right to bear (carry) arms on a permitting process would be unconstitutional – rather, restricting a person’s RIGHT to carry arms would have to be resolved by a judicial hearing where the state would have to carry the burden regarding the person’s disqualification due to criminality or mental incompetence (although even those disqualifications would fail under their state constitution according to its plain language – Connecticut’s constitution should be amended to clarify what restrictions exist on the right to carry arms).
Furthermore, Connecticut is a “may issue” state. Connecticut’s permit application description states:
In defining who is suitable to be permitted, the site states:
So this RIGHT is only to be permitted to those who are “suitable” and who is “suitable” is left to the discretion of the local officials because that term is undefined and standardless and the courts cannot control how the local officials exercise their judgment as to who is suitable to exercise their rights? This isn’t Sparta — this is Lawlessness!
Do the courts in Connecticut bother to read their own Constitution or do they simply substitute their opinion where and as they see fit?
March 25, 2010, 6:31 pmDavid M. Nieporent says:
You’re mistaken. I doubt there’s any town in the country that purges voter rolls every two years, but I can’t prove that with respect to your unspecified town, so I won’t make a definitive statement about that. (Even when they do check, they’re checking – as you concede – residency, which does change regularly, and not citizenship, which does not.) But I can say that the DMV doesn’t verify citizenship, because citizenship is not a requirement for a license.
And I can also say that to renew your passport, all you need to do is pay a fee, send a new photo, and mail in your old passport so they can mutilate it. You don’t need to re-prove citizenship.
March 25, 2010, 6:39 pmyankev says:
Of course, examing someone’s birth certificate as the state demanded would give no clue as to whether the person had renounced citizenship.
I have moved umpteen times to three different states from the state of my birth, and if I lost my copy of my b/c replacing would, I suspect, be an annoying and time consuming task.
My exa (that’s the feminine of ex) once lost her naturalization papers. Replacing them was a nightmare.
March 25, 2010, 6:56 pmcboldt says:
– The elephant in the room, that the permitting process itself violates art. 1, sec. 15 of the state constitution, is left unaddressed –
March 25, 2010, 6:58 pmHe’s in federal court, and for very good reasons in the federal venue, not making any argument under the CT constitution.
See http://www.lcav.org/states/Connecticut.asp for a list of pertinent CT Supreme Court cases that establish the meaning of art. 1, sec. 15 of the CT constitution.
yankev says:
If I recall, a federal court struck down Ohio’s prohibition against anonymous campaign literature some years back, on the grounds that it chilled free speech.
March 25, 2010, 6:58 pmcboldt says:
– I can say that the DMV doesn’t verify citizenship, because citizenship is not a requirement for a license. –
March 25, 2010, 7:05 pmIt is now. I renewed mine in 2009 and had to produce evidence of citizenship. I assume the requirement is part of the REAL ID Act or similar. I have no idea if I have to do this each time I renew. I also had to produce “proof of citizenship” (state driver’s license was sufficient) to withdraw money from a long-held bank account, when I appeared in person. I have no idea what federal law imposes that requirement on the bank.
On passport renewal, I have my old ones (they expire), and don’t recall what I had to provide beyond the most recent passport number, to establish that sufficient evidence was produced the first time through the gauntlet.
cboldt says:
– I have moved umpteen times to three different states from the state of my birth, and if I lost my copy of my b/c replacing would, I suspect, be an annoying and time consuming task. –
March 25, 2010, 7:08 pmIt’s trivially easy. Find out which office has the records (in the US, almost always the county where you were born), then get their one-page form, fill it out, pay ten or twenty bucks, and you’re set. Had to do that for the wife’s drivers license renewal (her passport is expired), and it was a breeze. Time consuming on the order of 90 minutes total, including the time to look up how to do it.
Edward Peruta says:
Having followed the Kuck case since prior to it being filed, I can assure everyone that the Connecticut Department of Public Safety as part of their RENEWAL proceedures could have called the registar of voters and obtained the same informaiton Peter Kuck supplied at the time of his hearing. May I suggest that those commenting on the decision take the time to read the complaint. It along with other cases in Connecticut can be found at http://www.ycgg.org via the legal issues and rulings link.
Mr. Kuck nor any other legal citizen in the United States should suffer the burden of proving that they are legally in the Unitied States without some type of evidence or probable cause that they are not.
Peter Kuck challenged a policy that was never authorized by the Connecticut General Statues and chose to question autority when confronted with another abuse of power.
When the state was asked under oath to cite the law or regulation that authorized the demand for a Passport, Birth Certificate or Voter’s Registration Card during a renewal, they fumbled and had to admit that there was NO documentation authorizing same.
Since this case was filed, the Department of Public Safety has ammended their policy and no longer requests or accepts Voter Registration Cards as proof of legal residency!!!
There are several very interesting cases currently working their way through the state and federal courts in Connecticut.
The two firearm related cases (Peter Kuck and James Goldberg) which were decided by the Second Circuit on March 23, 2010 have been flying under the internet radar since being filed in late 2007.
Informaiton on both cases together with other firearm related cased in CT can be found at http://www.opencarry.com
The Kuck and Goldberg cases address issues that will become more interesting if and when McDonald v. Chicago incorprates the Second Amendment to the states regardless of reasoning.
Again, I suggest that everyone do some homework and read the complaints, there is much more to read and understand.
March 25, 2010, 7:10 pmDavid Schwartz says:
Kuck’s claim is that their demand that he re-prove his citizenship is arbitrary and unreasonable. When he tried to challenge this requirement he considers unreasonable, they imposed the delay. What could Kuck have done?
Are you seriously arguing that he could have simply provided the proof he contends they arbitrarily and unreasonably demanded? Isn’t that like saying that a defendant who claims his trial was unreasonably delayed is in part responsible because he could have plead guilty?
March 25, 2010, 7:17 pmEdward Peruta says:
The Permit to Carry Pistols and Revolvers in the State of Connecticut is not like a library card, you have to jump through many hoops by answering the application quesitons, providing positive idenfication,submiting to a State and National Criminal History Records Checks and then be found to be a “SUITABLE” person by the local issuing authority.
Mr. Kuck and others in Connecticut myself included consider a vaild Permit to Carry as proof positive of legal status in the United States and take offense at government looking for more information to put into their vast database on citizens.
Without evidence or probable casue to believe otherwise, people who attempt to renew valid permits should simply have to show their permit to allow the instant State and National records checks that are done via computer while you stand at the counter.
This is only one of many problems created by those who think they have unlimited autority to make up new rules, regulations and laws pertaining to firearm possession.
March 25, 2010, 7:45 pmdisintelligentsia says:
He’s in a federal venue, but the Court is interpreting state law and state regulations and administrative proceedures. Indeed, the first prong of the Mathews test – the private liberty interest at stake – is dependent on the Court’s view of the right to bear arms under the state constitution because the second amendment of the federal constitution has not yet been incorporated (crosses fingers).
There are only two cases listed that interpret Art. I, sec. 15 of the Conn. Constitution. One, Benjamin v. Bailey, involves restrictions on scary looking weapons (“assault” weapons), wherein the Court basically stated that since the legislature has not banned all weapons, then the right to bear arms has not been infringed because citizens can still carry other “arms.” Perhaps the legislature can restrict all firearms so long as they permit some kind of “arms” to be carried – nunchaku perhaps?
In the other case, State v. Bailey, they create law from whole cloth by judicial dictat. No cited authority, just the statement that:
“It is beyond serious dispute that the legislature has the authority to place reasonable restrictions on a citizen’s right to bear arms.” State v. Bailey, 551 A.2d 1206, 1218 (Conn. 1988)
Is that what the passes for legal reasoning within Connecticut? That’s why the terms need to be spelled out within the state constitution – the plain language of the state’s highest law makes the bearing of arms a right of the first order. But the courts have, not by “interpretation” but by judicial magic, legislated their policy preferences from the bench.
Indeed, the Conn. S.Ct.’s reasoning was so wonderfully pro gun-control that the Brady Center’s McDonald brief cites it with approval as an exemplar of how to view the second amendment. If regulations merely have to be “reasonable” then the right will be toothless.
March 25, 2010, 8:27 pmElihu says:
You don’t need to be a citizen, in Connecticut, to get a pistol permit.
March 25, 2010, 8:56 pmElihu says:
This is simply inaccurate, see: http://volokh.com/2010/03/25/second-circuit-due-process-victory-for-connecticut-carry-permit-holders/#comment-782401
I live in CT, I’m a legal alien, and I have a pistol permit. Citizenship is not required by the Statutes nor DPS regulations, period.
http://jud.ct.gov/lawlib/Law/firearms.htm
March 25, 2010, 9:01 pmcboldt says:
– Indeed, the first prong of the Mathews test — the private liberty interest at stake — is dependent on the Court’s view of the right to bear arms under the state constitution because the second amendment of the federal constitution has not yet been incorporated (crosses fingers). –
March 25, 2010, 9:08 pmYep. But for the state constitutional provision, the 2nd Circuit would have concluded that Kuck has no right to be upheld. “See Presser,” would be the justification for dismissing the entire suit, as it was in Maloney.
My wish (which won’t come true) is that SCOTUS finds that the 2nd amendment is NOT incorporated. The right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence.
disintelligentsia says:
You’re right in one respect. The right to bear arms is not a right granted by the constitution – it is one recognized by the constitution, much as our right to free speech is not granted by the constitution but pre-exists it. However, Madison (wisely in my opinion) believed that rights had to be recognized formally in order to be protected. This was one of the beefs that Jefferson had with a Bill of Rights – he believed that if you recognized some rights, that others not recognized would be trampled upon – hence, why we have the ninth amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) However, the ninth amendment has never had much traction with the SCOTUS (Scalia in particular is not fond of it).
March 25, 2010, 11:08 pmEric says:
The many snide comments castigating Kuck because of his challenge of the requirement for proving (again) his citizenship seem to be thin masks for disdain of his effrontery in advancing the cause of firearms self-defense, in particular the arbitrariness of the CT concealed permit law.
As a member of the Board of Firearms Examiners, Kuck was unable to get the backlog issue addressed properly. He needed a way to get the State’s attention on the matter, and he found one. Bully for him. It’s not like no lawyer in the history of the US ever before used a pretext to accomplish a larger goal.
Not to mention the absurdity of requiring, yet again, citizenship documents for a firearms permit, when certain parties blow a gasket if you dare propose requiring having a photo ID to VOTE. Gad, what a paperwork burden that is, having to prove you are actually the person whose name appears on the voter registration list. Imagine if we actually required proof of actual citizenship before allowing one to vote every four years! The wailing would deafen us all!
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March 26, 2010, 12:33 amJohn Herbison says:
Wow. A government regulation that creates tension between affinity for guns and antipathy toward non-citizens. Has any winger’s head yet exploded from cognitive dissonance?
March 26, 2010, 1:22 amTim says:
That’d be rather pointless. Federal law already denies them the ability to possess firearms, as far as I know.
March 26, 2010, 8:27 amOrenWithAnE says:
Yes, but the existence of an explicit form for renewal that omits its mention is reasonable grounds for concluding the State does not want it.
NONSENSE. The State Department positively recommends that you keep a few photocopies of your passport when traveling abroad in case the original is stolen.
Sure, but they denied his original application for damned good reason (and they should have very promptly disposed of his appeal for the same damned good reason).
We have here a man with a case that he knew or ought to have known was absolutely wrong on the merits. We have an agency that engages in a deliberate pattern of delay and other nasty habits. The only redeeming thing for the DPS is that, as soon as he submitted his proper proof of citizenship they granted the bloody permit!
If you are trying to argue on this site that shall-issue is the better policy, you are preaching to the choir.
March 26, 2010, 9:18 amOrenWithAnE says:
I live in Waltham, MA. Every January we receive a form listing everyone that resided in the house from the last year and asked us to confirm those that still live there. There is a statement at the bottom that failure to return the form might lead to removal from the voter rolls. Perhaps that is just a scare tactic though.
When I did it at the Seattle SD, they checked my driver’s license too.
That’s a nice normative statement, but I don’t buy it. It’s a trivial burden (if you can even call it a burden) that can be met at little cost in time, money or effort.
He could have submitted proof of citizenship.
Oh wait, he did. And after he did, they gave him the permit with no delay! Funny that!
Nothing could be further from the truth. I have a MA firearm permit and I am most firmly in favor of self-defense.
As I have said before, most of us permit holders would like to follow the law and be granted our permits in peace. Not be drama queens about trivial requirements when there are much larger fish to fry.
March 26, 2010, 9:34 amEdward Peruta says:
In Connecticut, aliens legally in the United States are permited to applly for and obtain a Permit to Carry Pistols and Revolvers.
The Department is also allowed to conduct an investigation during initial applications and renewals of Permits to Carry.
The possession of a government issued Photo Identification, (in this case a VALID Permit to Carry), is evidence that the person has passed ALL requirements regarding legal status.
Peter Kuck by simply asking, was able to obtain a complete CD of ALL registered voters in the town of West Hartford, CT where he lives. This simple investigative technique could have been accomplished by any issuing authority as part of a new or renewal application for a Permit to Carry.
Members of The Connecticut Department of Public Safety’s Special License and Firearms Unit have for many years publicly and privately stated that “ONLY POLICE OFFICERS SHOULD HAVE GUNS”.
Without getting into the facts and evidence of the Federal Cases filed in Connecticut, I can assure everyone that Judge Livingston during the oral arguments on September 17, 2009 recognized and addressed the underlying issues alledged in the complaints filed by Peter Kuck and James Goldberg. Both cases were heard at the same time.
The Audio of the oral arguments offer more detail in what led to the TWO cases sent back to the District Court.
In Connecticut, there is no legislative authority to “SUSPEND” a Permit to Carry, but the Special License and Firearms Unit has a long history of denying or revoking permits only to make appeals moot by issuing, reissuing or reinstating on the eve of the hearing. The court seemed to recognize that the state was settling cases to prevent the underlying reasons and actions from being reviewed by the Board of Firearms Permit Examiners or the Superior Court.
There is much more to these cases, and it seems that the panel at the Second Circuit connected the dots.
There is much more to this situaiton than addressed in the decisions.
One only has to look at the Goldberg v. Danaher case to see that it was returned with reference to local court rules and the “FOUR PARAGRAPHS” in plaintiff’s response to defendant’s motion.
This could be a big win for sole practicioners who go up against government papermills.
In both cases, the initial complaints were very lenthy, detailed and saved the day.
Many of the documents are available out on the internet and make interesting reading.
March 26, 2010, 9:45 amcboldt says:
– Not be drama queens about trivial requirements when there are much larger fish to fry –
March 26, 2010, 9:46 amLike sitting in the back of the bus wasn’t trivial? There were certainly much larger fish to fry, than that.
Kuck has voiced multiple objections. One of them is that the state is deliberately dragging its feet on hearing filed appeals; or even if it isn’t dragging its feet, 18 months is too long for an applicant to obtain a hearing on an appeal.
plutosdad says:
No they do not, they verify your identity, but only if you WALK IN. If you renew by mail you need to provide no such documentation.
March 26, 2010, 10:08 amEdward Peruta says:
This is the way I see it:
There currently exists what amounts to a brick wall between eligible law abiding people and their right to KEEP and BARE arms.
Heller, McDonald, Spinelli, St. John, Palmer, Sykes, Nordyke, Kuck, Goldberg, Corliss, Kraft, Oterweil, Wisconsin Carry Inc, Sieyes, Peruta and many other cases whether at the Federal or State level have started the process of evaluating which bricks need to be removed from the wall that stands between individuals and their rights. Some will stay and some will go, but ALL will be evaluated and challenged by individuals, their attorneys and the courts for years to come.
I for one believe that government authority must be challenged whenever and wherever it appears to violate the freedoms we claim to enjoy regardless of how trivial the challenges may seem.
March 26, 2010, 10:09 amEugene Volokh says:
John Herbison: The NRA filed suit in late 2008 challenging the State of Washington’s refusal to allow noncitizens to buy guns. I haven’t heard of any heads exploding because of that, whether the heads belonged to “wingers” or others.
March 26, 2010, 10:28 amFederal Farmer says:
That is the case I referred to up-comment. Thanks for digging that out. The Second Amendment Foundation (party to the McDonald case) is also involved in that suit.
March 26, 2010, 10:34 amJdog says:
It’s the common problem with “may issue” permit structures. If the issuing authority — whether it’s a PD, Sheriff, or some sort of gun board — isn’t institutionally sympathetic to the notion of people carrying handguns for self-defense, drowning applicants in red tape is the standard ploy. The applicant has to, in practice, go out and hire counsel, and the additional costs will always go into four figures, and sometimes five.
That can even be a problem in “shall issue” jurisdictions, like my own Minnesota — which is why, when they drafted what became the Minnesota Citizens Personal Protection Act, Joe Olson and David Gross anticipated the problem, and put in a (unique, as far as I can tell) solution: not only does a court consider the application de novo, but if the applicant is successful, his costs — including attorney’s fees — must be reimbursed by the sheriff’s department, without any consideration or litigation of whether or not the denial was made in good faith. (See Minn. Stat. 624.714).
In one case, the sheriff refused to mail out a permit and insisted that the permit holder come down to the office to pick it up — the law requires that the sheriff effect delivery — and was taken to court (the attorney in that case was David Gross), lost, was awarded several thousand dollars, more another several thousand when the sheriff’s office appealed, and lost again.
Certainly, some might have argued that the applicant was a “drama queen” — after all, all he was being asked to do was take a short drive to pick up his permit — but it was his willingness to make a stand over a minor matter that’s helped to keep recalcitrant sheriffs in line.
March 26, 2010, 11:13 amEdward Peruta says:
Jdog,
There are similar situations in Connecticut which you can read at http://opencarry.mywowbb.com/forum14/37645.html
Here is my new advise to a the originator of the post:
Posted on open carry:
Another update……today is 9 weeks. Called the PD & was told that it’s all done & awaiting the final signature from the chief. Gotta be soon it’s driving me nuts.
My posted reply and suggestion:
Call and ask to meet with the Chief of Police and remember to bring a pen so he can sign to approve or deny your application.
Tell the Chief that you don’t want your application to continue “GATHERING DUST” on his desk any longer.
Here is the relevant part of the March 23, 2010 Kuck decision rendered by the Second Circuit Court of Appeals which addresses DELAYS:
“Yet, on the pleadings, there is no indication that this time is required to gather evidence, perform additional investigation, or formally consider the appeal. Instead, the complaint suggests that the appeal sits gathering dust for nearly all of the interim period,…”
United States Court of Appeals,
Second Circuit.
M. Peter KUCK, individually and on behalf of others similarly situated, Plaintiff-Appellant,
v.
John A. DANAHER III, Commissioner, CT State Dept. of Public Safety, Albert J. Mask, Jr., Commanding Officer, CT State Dept. of Public Safety, Defendants-Apelles.
Docket No. 08-5368-cv.
March 26, 2010, 11:24 amBrad Ford says:
It is important to understand that the DPS is not a judicial body of in any way. DPS employees are state employees with adminstrative powers only. They do not provide a “hearing” in any way shape or form.
Imagine if a police officer could strip you of your driver’s license on a whim. That is essentially what happens in CT with carry permits. If the State Trooper decides to do it, your license is immediately revoked. The “appeal” is not an appeal of a judicial ruling. It is an appeal of an administrative one. Giving someone their first “hearing” 18 months later is simply unreasonable.
CT Permit Holder
March 26, 2010, 12:39 pmAdam J says:
Eric- “The many snide comments castigating Kuck because of his challenge of the requirement for proving (again) his citizenship seem to be thin masks for disdain of his effrontery in advancing the cause of firearms self-defense, in particular the arbitrariness of the CT concealed permit law.” I haven’t seen any comments that were “snide”, let alone a “thin mask for disdain”. It’s just many of us feel that Kuck was being unreasonable in thinking that a request to provide simple proof of citizenship (in one of three forms) is arbitrary in any way, particularly when citizenship is a requirement for the permit. Kuck’s lawyers very effectively have proved there is a problem with the appeals process that has denied many their right to bear arms… it just doesn’t look like that problem infringed on Kuck’s own personal right since he was denied his permit for failing to comply with a very simple and reasonable request. And when Kuck eventually complied with this request, he was granted his permit quite promptly. I’ve yet to hear any cogent argument that providing proof of citizenship is unreasonable, and until I hear one I will continue to believe that Kuck was in no small part responsible for the delay when he did not comply with their request.
I’d like to say that I’m completely for the right to self defense and think that the states and fed often infringe on this right in many arbitrary and unnecessary ways (like an unjustified 18 month delay in the permit appeal process). That said, the state should be able to impose simple requirements on gun ownership like permits because they increase gun owner’s personal accountability for the weapons they own & therefore increase public safety. Gun rights advocates really need to pick their battles carefully, less they themselves seem unreasonable & they won’t be taken seriously enough when they have legitimate greviances.
March 26, 2010, 12:44 pmIan Argent says:
This actually has direct relevance to New Jersey. There is a statutory requirement that all firearms ownership and purchase paperwork be issued within 30 days unless the issuing authority can reject “with good cause” (which is then appealable). This is routinely ignored by the issuing authorities, and the NJ Supreme Court won’t enforce the requirement (in fact, they have ruled AGAISNT enforcing the requirement when it’s come before them). Seriously.
Nonetheless, it routinely takes 6 weeks and up to 18 months to issue the permits (or FOID cards). When sued, the NJ Supreme Court said that the legislature could not have meant that the permits/cards be issued without a background check, and it is perfectly permissible for the issuing authority to take as long as it likes to complete the background check.
“Moreover, we do not believe the Legislature could have intended that a person who is unfit to own a firearm would be able to obtain a firearms purchaser permit based on such an automatic approval. Our gun control laws have the purpose of “keeping firearms out of the hands of all dangerously unfit persons, noncriminal as well as criminal.” Burton v. Sills, supra, 53 N.J. at 94; see also Heller, supra, ___ U.S. at ___, 128 S. Ct. at 2816-17, 171 L. Ed. 2d at 678 (noting that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill”). This salutary purpose would be seriously undermined if a person could obtain a permit to purchase a firearm based solely on a court’s failure to conduct a hearing within the thirty-day period required by N.J.S.A. 2C:58-3(d).” (quote is from NJ Superior Court, but really? The law says you have to issue in 30 days – that’s pretty blatant ignoring plain languag eof the law)
March 26, 2010, 7:34 pmzippypinhead says:
Perhaps not surprisingly, it works very differently in some jurisdictions that aren’t as rabidly anti-firearms as New Jersey is (or apparently, as some bureaucrats in Connecticut are). For example, in Virginia (which doesn’t require any permit to own a firearm, just to carry concealed), if the Circuit Court doesn’t act on your Concealed Carry application within the 45-day statutory time, it is automatically deemed granted, and a certified copy of your application serves as your temporary permit.
March 26, 2010, 8:36 pmcboldt says:
– There is a statutory requirement that all firearms ownership and purchase paperwork be issued within 30 days unless the issuing authority can reject “with good cause” (which is then appealable). This is routinely ignored by the issuing authorities, and the NJ Supreme Court won’t enforce the requirement –
March 26, 2010, 8:41 pmIt’s the NJ parallel to the SCOFLA (Supreme Court of Florida) creative interpretation of election law.
Judicial hacks, possibly paid off under the table by the legislature, with YOUR money! Bwahahahaha.
Ian Argent says:
@Zippy – yeah, but VA doesn’t have a supreme court that has never looked at a constitution lest their judgement be sullied by association. The second part of my post was a direct quote from a recent decision
March 27, 2010, 10:15 amOrenWithAnE says:
We don’t do mail in here.
March 27, 2010, 10:20 ampeterkuck says:
Interesting comments. While I will not comment on my case I thought you might be interested in some public documents. While all are of interest I would draw your attention to documents numbers 1 and 3 on the following page http://peterkuck.net/usdistrict.html
March 27, 2010, 10:35 amRegards
Peter Kuck
Michael Wagner says:
If it is illegal to issue a permit to a legal or illegal alien, then the permit itself should be proof of citizenship.
March 27, 2010, 6:55 pmdiscount Supra Suprano says:
A P or I incorporation would apply only to citizens, but due process/equal protection apply to “any person”, not just citizens.
March 28, 2010, 9:06 amFederal Farmer says:
If P+I were used to apply the 2nd to the states, as I hope, then Equal Protection would apply that right to “any person”.
March 28, 2010, 1:35 pmpeterkuck says:
Interesting sound clips from Connecticut DPS.
http://peterkuck.net/quotes_from_dps.html
They are worth your listening time.
March 28, 2010, 2:38 pmRegards
Peter
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March 28, 2010, 6:55 pmpeterkuck says:
Links to additional resources
http://peterkuck.net/links.html
March 29, 2010, 8:10 amOrenWithAnE says:
You mean if you hoodwink the board once, they are powerless to correct that error?
March 29, 2010, 10:16 amEdward Peruta says:
The Department of Public Safety (DPS) in Connecticut implemented new policies without any authority from the Connecticut Legislature and is prevented from imposing additional requirements for obtaining a Permit to Carry Pistols and Revolvers as set forth in a 1968 AG’s Opinion.
The Connecticut DPS continually told everyone who asked, that they had authority to do so in writing until when asked, they were forced to back up the statement under oath at a Freedom of Information Commission hearing on the matter. At the hearing under oath, they admitted that they THOUGHT they had the authority and admitted that they did NOT.
The argument being made was that individuals who possess VALID Permits to Carry in CT should be able to rely upon the “Government Issued Photo Identification” to verify their status as being legally in the United States.
Since the filing of the Kuck and Goldberg cases, many changes have taken place in the application and renewal process in CT and they are directly attributable to Mr. Kuck and Mr. Goldberg’s cases filed in Federal Court together with a new awareness on the part of the Connecticut Board of Firearms Permit Examiners and firearms/2nd Amendment advocates in CT.
Unfortunately most who are commenting do not have all of the facts that led to the filing by Mr. Kuck
March 29, 2010, 10:34 amJoshua Burns says:
New Jersey is much worse than CT, not only because of the considerably more negative view of firearms by the highly liberal Assembly and courts, self-defense (NJ is a “duty to retreat” state), hunting, and so on, but because there is no RKBA clause in the State constitution, and they of course refuse to acknowledge the US Constitutions’s second amendment, a serious problem for New Jersians that will hopefully be somewhat mitigated by the McDonald case — though I have my doubts about how signficant the changes will ultimately be in NJ.
Because of this, the state’s abuses are staggering and endless. Self defense is not a legal reason to own a firearm. Yet carry permits are only issued for self-defense purposes, and are “may issue” statutorily though the courts have held that nothing meets the standard of “urgent need” (unless you are an agent of a very large, well-connected financial institution).
Well-bonded and experienced bail enforcement officers are routinely denied carry permits. Hence NJ’s skyrocketing, out-of-control violent crime problem. All this barely scratches the surface – a total nightmare, a result of the legal artifice of incorporation and the egregious error of forgoing a second amendment clause in the state constitution.
March 30, 2010, 3:22 amIan Argent says:
What chafes me is that NJ’s constitution does include (as its very first clause)
“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness”
Go figure…
March 30, 2010, 10:01 amJoshua Burns says:
New Jersey is so bad, so far to the left and so authoritarian that I’m not even sure that the lack of RKBA at the state level or incorporation of 2A even matters. Even if it were to exist at the state level, the judiciary would likely rationalize any self-defense or RKBA language using the standard “militia” nonsense – or even more ridiculous arguments. Reading through CCW appeals at Rutgers’ law archive is a profoundly sobering experience. Yes, incorporation of the US 2A would be a good thing, because US District and Appellate courts are likely to be less insane – but it will still be an unbelievably hard road.
I hope to God that the impending Superior Court retirements do happen, and that Christie actually appoints real, actual conservatives to the bench. He’s a far cry better than the last several governors, but I still have my doubts about the extent of his conservatism.
March 30, 2010, 8:54 pmIan Argent says:
The NJ Supremes IGNORED the black-letter statutory law on 30-day must-issue. Nothing surprises me
March 30, 2010, 9:14 pmwilson says:
Hello.
March 31, 2010, 4:54 amit’s really nice blog
thanks for sharing your knowledge
Wilson
The Michael Bane Blog: Interesting Gun Stuff | Welcome to Winchester says:
[...] to the right to bear arms recognized by state law.” Here’s the whole decision at the Volokh Conspiracy. The decision means that states who drag their feet or require a high level of jumping through [...]
April 12, 2010, 11:17 amcase closed says:
Kuck did not submit proof. DPS verified that Kuck was a registered voter in the town that he lived in and then offered to renew his permit based on that information. It was not information that Kuck provided.
April 13, 2010, 2:18 pmpeterkuck says:
http://www.peterkuck.net/pdf/03_23_2010_kuck_2dCir_Mandate.pdf
I have attached the 2nd Circuit Court of Appeals Mandate for your reading pleasure. The case is now listed on Pacer in District Court.
regards
May 12, 2010, 4:24 pmPeter Kuck