The Volokh Conspiracy - New York Trial Court Suggests That States May Not "Require That a Handgun Be ... Locked Up" in a Lawful Owner's Home:

Colaiacovo v. Dormer, decided last week, so holds:

The Petitioner was possessed of a pistol permit with a sportsman endorsement that was ... revoked ... altogether based upon circumstances surrounding the [suicide] of Petitioner's wife .... Apparently, the Respondent determined that the Petitioner's failure to keep his weapon in a locked safe, or otherwise inoperable was an unspecified rule violation....

In view of D.C. v. Heller there is a question as to whether the Petitioner's conduct relative to properly safeguarding his handgun was within the bounds of his constitutionally protected 2nd Amendment rights. If the Petitioner acted in a manner consistent with his existing constitutional rights relative to the care and safeguarding of his pistol, the State of New York may not diminish such other rights as he may otherwise possess or have been previously granted solely on the basis that some provision of State law ... dictates that he behave differently in derogation of his Second Amendment Rights. Simply put, the State of New York ... [is] no longer in a position to require that a handgun be stored in an inoperable condition or otherwise locked up if it is otherwise legally present in the owner's dwelling....

ORDERED ... that the matter is remanded for such further proceedings as Respondent deems necessary in order to make a determination and create a record as to whether and how the Petitioner's actions or inactions went beyond constitutionally protected conduct as recognized ... in D.C. v. Heller ....

As I read it, the court thinks that requirements that a handgun be stored locked or inoperable are unconstitutional, but other kinds of storage requirements might be fine. The remand is therefore to determine whether Colaiacovo may have acted in a supposedly unsafe manner beyond just storing the gun unlocked and operable. One could read the court as remanding the case for further discussion of whether Heller does indeed bar locked-or-inoperable-storage requirements, but that seems inconsistent with the sentence that starts with "Simply put."

The court seemed to assume that the Second Amendment applied to states and local governments — presumably because it's incorporated via the Fourteenth Amendment — and didn't at all discuss whether this should indeed be so. Thanks to David Hardy for the pointer; see also the Gun Legislation & Politics in New York blog.

	[Eugene Volokh, November 6, 2008 at 12:26pm] Trackbacks New York Trial Court Suggests That States May Not "Require That a Handgun Be ... Locked Up" in a Lawful Owner's Home: Colaiacovo v. Dormer, decided last week, so holds: The Petitioner was possessed of a pistol permit with a sportsman endorsement that was ... revoked ... altogether based upon circumstances surrounding the [suicide] of Petitioner's wife .... Apparently, the Respondent determined that the Petitioner's failure to keep his weapon in a locked safe, or otherwise inoperable was an unspecified rule violation.... In view of D.C. v. Heller there is a question as to whether the Petitioner's conduct relative to properly safeguarding his handgun was within the bounds of his constitutionally protected 2nd Amendment rights. If the Petitioner acted in a manner consistent with his existing constitutional rights relative to the care and safeguarding of his pistol, the State of New York may not diminish such other rights as he may otherwise possess or have been previously granted solely on the basis that some provision of State law ... dictates that he behave differently in derogation of his Second Amendment Rights. Simply put, the State of New York ... [is] no longer in a position to require that a handgun be stored in an inoperable condition or otherwise locked up if it is otherwise legally present in the owner's dwelling.... ORDERED ... that the matter is remanded for such further proceedings as Respondent deems necessary in order to make a determination and create a record as to whether and how the Petitioner's actions or inactions went beyond constitutionally protected conduct as recognized ... in D.C. v. Heller .... As I read it, the court thinks that requirements that a handgun be stored locked or inoperable are unconstitutional, but other kinds of storage requirements might be fine. The remand is therefore to determine whether Colaiacovo may have acted in a supposedly unsafe manner beyond just storing the gun unlocked and operable. One could read the court as remanding the case for further discussion of whether Heller does indeed bar locked-or-inoperable-storage requirements, but that seems inconsistent with the sentence that starts with "Simply put." The court seemed to assume that the Second Amendment applied to states and local governments — presumably because it's incorporated via the Fourteenth Amendment — and didn't at all discuss whether this should indeed be so. Thanks to David Hardy for the pointer; see also the Gun Legislation & Politics in New York blog.