WESLEY, Circuit Judge:
"The powers delegated by the . . . constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite."
David Bach, a Virginia resident and domiciliary, wants to carry his Ruger P-85 9mm pistol while visiting his parents in New York.
However, as a nonresident without New York State employment, Bach is not eligible for a New York firearms license. The State Police informed Bach that "no exemption exists which would enable [him] to possess a handgun in New York State" and that "[t]here are no provisions for the issuance of a carry permit, temporary or otherwise, to anyone not a permanent resident of New York State nor does New York State recognize pistol permits issued by other states." The State Police further explained that persons "who maintain seasonal residen[ce] in New York State likewise are not eligible for a New York State Pistol Permit" and warned Bach that if he were found in possession of his pistol in New York he "would be subject to automatic forfeiture of the firearm in question and criminal prosecution."
Bach filed this action against State and local officials to contest his exclusion from New York's licensing scheme. His complaint requests that the district court declare New York's licensing laws unconstitutional, facially and as applied, in violation of both the "right to keep and bear arms" set out in the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.
Defendants moved to dismiss, and the district court granted the motion. The court concluded Bach had standing because he "ha[d] made a substantial showing that application for the permit would have been futile." Bach v. Pataki, 289 F.Supp.2d 217, 223 (N.D.N.Y.2003) (citing Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir.1997)). The court held that Bach could "prove no set of facts which would entitle him to relief." Id. at 229 (citing Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994)). Specifically, the court explained that Bach could allege no constitutional "right to bear arms" because "the Second Amendment is not a source of individual rights," id. at 225-26, and that New York's licensing scheme did not violate the Privileges and Immunities Clause of Article IV because "the factor of residence has a substantial and legitimate connection with the purposes of the permit scheme such that the disparate treatment of nonresidents is justifiable," id. at 228 (citing People v. Perez, 67 Misc.2d 911, 912, 325 N.Y.S.2d 183 (Onondaga County Ct.1971)). The court rejected Bach's remaining claims as meritless, id. at 228-29, and entered judgment for the State defendants. Bach seeks review of the dismissal of his Second Amendment and Article IV Privileges and Immunities Clause claims. We affirm.
New York State has regulated the possession of weapons since 1849. That year,
The State's earliest firearms-licensing statutes delegated licensing to municipalities. See, e.g., 1884 Laws of N.Y., ch. 46, § 8; 1905 Laws of N.Y., ch. 92, § 2, at 242-43; 1908 Laws of N.Y., ch. 93, § 1. When the State first established statewide application requirements, it limited licenses to "have and carry concealed" to those "citizen[s] of and usually a resident in the state of New York," but permitted the licensing official — judges in most parts of the State, but the police commissioner in New York City — to make an exception, so long as the officer received certificates of good moral character regarding the applicant and the official "state[d] in such license the particular reason for the issuance thereof." See N.Y. Penal Code § 1897(9) (1927).
In 1963, New York altered its statewide licensing procedures, making two significant and related changes. First, it granted licensing officers the authority to revoke licenses "at any time." See 1963 Laws of N.Y., ch. 136, § 8 (codifying N.Y. Penal Code § 1903(11), now § 400.00(11)). Second, it limited carry licensees to New York residents and in-state employees. Id. (codifying N.Y. Penal Code § 1903(3), now § 400.00(3)). As explained below, the licensing officers' revocation authority and the residency requirement remain features of the current statutory regime.
Today, New York regulates handguns primarily though Articles 265 and 400 of the Penal Law. Article 265 creates a general ban on handgun possession, see, e.g., N.Y. Penal Law §§ 265.01(1), 265.02(4), with specific exemptions thereto, see N.Y. Penal Law § 265.20. The exemption at issue here is a licensed use exemption defined in Article 400: "[the p]ossession of a pistol or revolver by a person to whom a license therefor has been issued." N.Y. Penal Law §§ 265.20(3) (referencing sections 400.00 and 400.01).
Article 400 of the Penal Law "is the exclusive statutory mechanism for the licensing of firearms in New York State." O'Connor v. Scarpino, 83 N.Y.2d 919, 920, 615 N.Y.S.2d 305, 638 N.E.2d 950 (1994). Licenses are limited to persons over twenty-one, of good moral character, without a history of crime or mental illness, and "concerning whom no good cause exists for
Licensing is a rigorous and principally local process that begins with the submission of a signed and verified application to a local licensing officer. See N.Y. Penal Law § 400.00(3). Applicants must demonstrate compliance with certain statutory eligibility requirements as well as any facts "as may be required to show the good character, competency and integrity of each person or individual signing the application." N.Y. Penal Law § 400.00(3). Every application triggers a local investigation. See N.Y. Penal Law § 400.00(4). "[T]he police authority of the city or county where the application is made is responsible for investigating the statements in the application." 1986 N.Y. Op. Atty. Gen. (Inf.) 120, 1986 N.Y. AG LEXIS 26, at*1-*2. Local police, therefore, investigate applicants' mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause. See N.Y. Penal Law § 400.00(1) — (4). Police officers also take applicants' fingerprints and check them against the records of the State Division of Criminal Justice Services and the FBI. See N.Y. Penal Law § 400.00(4). Upon completion of the investigation, the police authority reports its results to the licensing officer. See id.
Local licensing officers, often local judges,
A licensing officer is also "statutorily invested with the power to sua sponte revoke or cancel a license." O'Brien, 87 N.Y.2d at 439, 639 N.Y.S.2d 1004, 663 N.E.2d 316 (1996) (citing N.Y. Penal Law § 400.00(11)).
An officer's revocation decision may be triggered by local incidents;
Licensing is thus a locally controlled process. The only nonresidents eligible for a license are local workers, who may apply to the licensing officer in the city or county of their principal employment or principal place of business. See N.Y. Penal Law § 400.00(3)(a). Section 400.00(3)(a) provides:
Id. The statute does not provide a mechanism for any other nonresident applications. One New York appellate court has explained that nonresident applications would be inconsistent with "the purposes underlying the pistol permit procedures, namely, to insure that only persons of acceptable background and character are permitted to carry handguns and to provide a method for reporting information on the identity of persons possessing weapons and the weapons themselves. . . ." Mahoney v. Lewis, 199 A.D.2d 734, 735, 605 N.Y.S.2d 168 (3d Dep't 1993). Nonresidents without in-state employment are completely excluded from the license-application procedure.
Some classes of nonresidents may nonetheless possess or carry handguns in New York. Although New York generally "does not recognize or give effect to licenses to carry firearms issued by . . . other state[s]," 1997 N.Y. Op. Atty. Gen. 14, federal law grants a limited right to transport
Bach never applied for a New York handgun license, and, before the district court, defendants contended that Bach's claims were not justiciable because Bach accordingly lacked "standing."
The district court correctly noted that "`[i]n many cases, requiring litigants to actually apply for a license before challenging a licensing scheme prevent[s] courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . ..'" Bach, 289 F.Supp.2d at 223 (quoting Sammon v. New Jersey Bd. of Med. Exam'rs, 66 F.3d 639, 643 (3d Cir.1995)); see also Prayze FM v. FCC, 214 F.3d 245, 251 (2d Cir. 2000). The district court concluded that imposing an application requirement here, however, "would serve no purpose." Bach, 289 F.Supp.2d at 223 (quoting Sammon, 66 F.3d at 643). We agree.
The State Police informed Bach that he was statutorily ineligible for a carry license.
Bach argues that New York's licensing scheme unreasonably infringes upon his "right to keep and bear arms" under the Second Amendment, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. He contends that the Second Amendment's right to keep and bear arms is a right of individual citizens, that it limits the States in regulating firearms, and that New York's statutory scheme cannot withstand the resultant heightened scrutiny.
Bach focuses primarily on the question of whether the right to keep and bear arms is an individual right.
Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate.
Our holding is compelled by the Supreme Court's opinion in Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886). In 1879, Herman Presser led four hundred armed members of a society called the Lehr und Wehr Verein through the streets of Chicago. Id. at 253-55, 6 S.Ct. 580.
The Supreme Court rejected Presser's argument. Justice Woods explained, "[A] conclusive answer to the contention that [the Second Amendment] prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States." Id. at 265, 6 S.Ct. 580. The Court quoted Chief Justice Waite's opinion in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). "[T]he 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. The Second Amendment declares that is shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.'" Presser, 116 U.S. at 265, 6 S.Ct. 580 (quoting Cruikshank, 92 U.S. at 553).
Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. The courts are uniform in this interpretation. See, e.g., Thomas, 730 F.2d at 42 (1st Cir.); Peoples Rights Org., 152 F.3d at 538-39 n. 18 (6th Cir.); Quilici, 695 F.2d at 269 (7th Cir.); Fresno Rifle & Pistol Club, 965 F.2d at 730-31 (9th Cir.). Just as Presser had no federal constitutional right "to keep and bear arms" with which to challenge Illinois's license requirement, Bach has none to assert against New York's regulatory scheme. Under Presser, the right to keep and bear arms is not a limitation on the power of States.
Bach does not distinguish Presser. Rather, he contends that Presser is "outdated" and "do[es] not reflect the Court's modern view." He relies on two footnotes for support — the Fifth Circuit's comment in United States v. Emerson that Presser "came well before the Supreme Court began the process of incorporating certain provisions of the first eight amendments
We must follow Presser. Where, as here, a Supreme Court precedent "has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see also id. at 486, 109 S.Ct. 1917 (Stevens, J., dissenting). The Court has cautioned, in the context of constitutional interpretation, that "courts should [not] conclude [that] more recent [Supreme Court] cases have, by implication, overruled an earlier precedent." Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); see also id. at 258, 117 S.Ct. 1997 (Ginsburg, J., dissenting). Even if a Supreme Court precedent was "`unsound when decided'" and even if it over time becomes so "`inconsistent with later decisions'" as to stand upon "`increasingly wobbly, moth-eaten foundations,'" it remains the Supreme Court's "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 9, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (quoting Khan v. State Oil Co., 93 F.3d 1358, 1363 (7th Cir.1996) (Posner, J.)). Thus, "regardless of whether appellant agree[s] with the Presser analysis, it is the law of the land and we are bound by it. The assertion that Presser is illogical is a policy matter for the Supreme Court to address." Quilici, 695 F.2d at 270. We cannot overrule the Supreme Court.
Accordingly, we hold that the "right to keep and bear arms" does not apply against the States and affirm the district court's dismissal of Bach's Second Amendment claim.
Bach also challenges New York's licensing regime under the Privileges and Immunities Clause of Article IV, section two of the Constitution. He contends that
Bach suggests that New York's licensing scheme unconstitutionally discriminates against both his protected rights under the Privileges and Immunities Clause and the "right to travel" secured therein. But the "right to travel," at least in this context, is simply a shorthand for the protections of the Privileges and Immunities Clause of Article IV, as travel — movement from one State to another — is at the core of every Privileges and Immunities Clause challenge. As the Supreme Court has explained, the "right to travel," in the constitutional context, "embraces at least three different components." Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). Two of those components, "`the right of free ingress and regress to and from' neighboring states," id. at 500-01, 119 S.Ct. 1518 (quoting United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966)), and "the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State," id. at 502-04, 119 S.Ct. 1518, are inapplicable here. The third and only relevant component is merely a restatement of rights arising under Article IV — "the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in [a] second State." Id. at 501, 119 S.Ct. 1518. Bach's appeal depends on only this last guarantee that, "by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the `Privileges and Immunities of Citizens in the several States' that he visits." Id. at 501, 119 S.Ct. 1518. His appeal thus condenses to the challenge that New York's handgun licensing scheme unconstitutionally discriminates against nonresidents with regard to a protected privilege under the Clause.
Because we hold that New York's interest in monitoring gun licensees is substantial and that New York's restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interest, we reject Bach's Article IV Privileges and Immunities Clause challenge.
The Privileges and Immunities Clause provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. CONST. art. IV, § 2. This clause, like the Commerce Clause of Article I, section 8, derives from the fourth of the Articles of Confederation,
In order to prevail on a Privileges and Immunities challenge, a plaintiff must demonstrate that the "State has, in fact, discriminated against out-of-staters with regard to the privileges and immunities it accords its own citizens." Crotty, 346 F.3d at 94. The challenged "privilege" must come within the scope of the Clause. "The Clause `. . . establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment.'" Friedman, 487 U.S. at 64, 108 S.Ct. 2260 (quoting Austin, 420 U.S. at 660, 95 S.Ct. 1191). Only those activities "`sufficiently basic to the livelihood of the Nation'" are protected. Friedman, 487 U.S. at 64, 108 S.Ct. 2260 (quoting Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 388, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978)). Other "distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States." Baldwin, 436 U.S. at 383, 98 S.Ct. 1852.
Where a protected privilege or immunity is implicated, the State may defeat the challenge by showing sufficient justification for the discrimination, i.e., "`something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.'" Hicklin, 437 U.S. at 526, 98 S.Ct. 2482 (quoting Toomer, 334 U.S. at 398, 68 S.Ct. 1156); see also United Bldg. & Constr. Trades Council of Camden County & Vicinity v. Mayor & Council of Camden, 465 U.S. 208, 222, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984). A state may defend its position by demonstrating: "(a) a substantial reason for the discrimination, and (b) a reasonable relationship between the degree of discrimination exacted and the danger sought to be averted by enactment of the discriminatory statute."
Insofar as a plaintiff challenges a State's discrimination against him with regard to privileges and immunities — an "as-applied" challenge — he need only demonstrate that his own "nonresidency presents [no] special threat to any of the State's interests that is not shared" by residents. Piper, 470 U.S. at 289, 105 S.Ct. 1272 (White, J., concurring); see also Crotty, 346 F.3d at 100. A facial challenge is more burdensome. See Velazquez v. Legal Servs. Corp., 164 F.3d 757, 763 (2d Cir.1999). "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, to succeed on a facial challenge, the plaintiff must show an absence of "any circumstances under which th[e] statute avoids a constitutional reckoning with the Privileges and Immunities Clause." Crotty, 346 F.3d at 100 (citing Velazquez, 164 F.3d at 763).
Bach argues that New York's licensing regime discriminates against nonresidents with regard to a protected right under Article IV's Privileges and Immunities Clause without sufficient justification. Defendants do not dispute that New York's laws discriminate against nonresidents, who, unlike residents, may only apply for a license if they work principally within the State. Instead, they respond, first, that possession of a firearm is not within the ambit of the Privileges and Immunities Clause and, second, that, even if the Clause did apply, New York's pistol permit scheme would remain valid because it "is closely related to a substantial state interest in restricting firearms possession to persons of acceptable temperament and character."
Bach can prevail only if New York's grant of an Article 400 license should be considered a "privilege" under Article IV.
As support, Bach is in the awkward position of relying on dicta from the Supreme Court's opinion in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857).
This is not the occasion to weigh the import, if any, of Chief Justice Taney's ruminations. Because we agree with defendants and the district court that New York's licensing scheme is sufficiently justified, see Bach, 289 F.Supp.2d at 226-28, we will assume, without deciding, that entitlement to a New York carry license is a privilege under Article IV.
There is no question that New York discriminates against nonresidents in providing handgun licenses under Article 400. Defendants do not contest this fact. Instead, they argue that the discrimination is sufficiently justified by New York's public safety interest in monitoring handgun licensees.
New York's monitoring interest is, in essence, an interest in continually obtaining relevant behavioral information. The State's licensing scheme vests broad revocation discretion in a local licensing officer, permitting that officer to revoke a license on the basis of a wide variety of behavioral data, including information reported from local incidents. See, e.g., Finley, 272 A.D.2d 831, 708 N.Y.S.2d 190; Harris, 57 A.D.2d 778, 394 N.Y.S.2d 210. The operative information available to licensing officers is not restricted to the legal formalities of an arrest warrant, an accusatory instrument, or a judgment of conviction. Licensing officers have the discretion to revoke licenses upon displays of "poor judgment," see, e.g., Lang, 205 A.D.2d at
But the degree of discrimination exacted must be substantially related to the threatened danger. See Crotty, 346 F.3d at 94. This is the more difficult inquiry: with regard to New York's monitoring interest, is there any "particularized evil presented uniquely by nonresident[s] ... that warrants the degree of outright discrimination imposed"? Crotty, 346 F.3d at 98. Defendants argue:
Appellee's Br. at 19-20. Bach challenges the substantiality of this relationship. He contends: (1) nonresidents within the State are no more difficult to monitor than residents, and (2) New York has not shown that it could not obtain the same quality of information from other States. Thus, Bach concludes, defendants have not shown any "palpable and unique risks" posed by out-of-state residents. We disagree.
First, although it may be true that New York can monitor nonresidents as easily as residents while either are in the State, New York has an interest in the entirety of a licensee's relevant behavior. Information regarding a licensee's adherence to license conditions is information that may only exist when the gun owner is in-state, but information regarding the licensee's character and fitness for a continued license is not so limited. New York has just as much of an interest, for example, in discovering signs of mental instability demonstrated in New Jersey as in discovering that instability in New York. The State can only monitor those activities that actually take place in New York. Thus, New York can best monitor the behavior of those licensees who spend significant amounts of time in the State. By limiting applications to residents and in-state workers, New York captures this pool of persons. It would be much more difficult for New York to monitor the behavior of mere visitors like Bach, whose lives are spent elsewhere.
Second, we think it self-evident that, at least in Bach's case, other States, like Virginia, cannot adequately play the part of monitor for the State of New York or provide it with a stream of behavioral information approximating what New York would gather. They do not have the incentives to do so. First, other States are not bound to impose a discretionary revocation system like New York's.
Moreover, Bach does not point to any adequate alternative method for New York to collect this information. Bach argues that New York can and does rely on out-of-state reporting and cites Penal Law § 400.00(11), which provides for revocation or suspension of a license upon the conviction of a felony or serious offense "anywhere." But New York's system permits license revocations for a range of misbehavior of which serious offenses and felonies form only a small part, and Bach does not point to any reason to expect Virginia or any other State to report such behavior to New York. Bach also suggests that New York could require nonresidents to submit to more frequent renewals or periodic interviews with local officials. However, New York's proffered interest is in monitoring the relevant day-to-day behavior of license-holders; it is unclear how an accelerated renewal schedule or a round of interviews with local officials would supply this information.
Bach also suggests that reference letters or certifications from a nonresident's local authorities could fill New York's informational gap. Perhaps in other contexts references or similar informational requests might provide an adequate substitute source of information. For instance, when a State has an interest in monitoring the fitness of a licensed professional, references from persons involved in professional relationships with the licensee might be an adequate source of information. Or, where a State has an interest in monitoring the fitness of a licensed user of some universally-insured activity—driving an automobile, for instance—submission of updated insurance reports might prove adequate. In both examples, there may be strong arguments that another party has an equally strong incentive to monitor the licensee's relevant behavior—the professional's
New York's monitoring rationale is distinct from rationales rejected in other Privileges and Immunities Clause cases. Most importantly, the monitoring rationale is not an interest of merely "general concern," to which a resident/nonresident distinction would not be tailored,
Defendants have demonstrated that "`non-citizens constitute a peculiar source of the evil at which the statute is aimed.'" Hicklin, 437 U.S. at 526, 98 S.Ct. 2482 (quoting Toomer, 334 U.S. at 398, 68 S.Ct. 1156). They have "`no [more] burden to prove that [the State's] laws are not violative of the ... Clause.'" Id. (quoting Baldwin, 436 U.S. at 402, 98 S.Ct. 1852 (Brennan, J., dissenting)). Bach's failure to prevail on his as-applied challenge renders his facial challenge likewise invalid. Accordingly, we affirm the district court's rejection of Bach's Privileges and Immunities Clause claim. Cf. In re Ware, 474 A.2d 131 (Del.Sup.Ct.1984); Perez, 67 Misc.2d at 911-13, 325 N.Y.S.2d 183.
Theories regarding constitutional protections for the "right to keep and bear
For the foregoing reasons, the district court's judgment of September 23, 2003 is hereby AFFIRMED.
The New York courts also share our conclusion. They have repeatedly held that the Second Amendment is inapplicable to the State's regulation of handguns. See Moore v. Gallup, 293 N.Y. 846, 59 N.E.2d 439 (1944) (per curiam), aff'g 267 A.D. 64, 67, 45 N.Y.S.2d 63 (3d Dep't 1943) ("Obviously, petitioner cannot rest his case upon the Second Amendment which is a limitation upon the exertion of the power of Congress and the national government, but not upon that of the State."); Demyan v. Monroe, 108 A.D.2d 1004, 1005, 485 N.Y.S.2d 152 (3d Dep't 1985) ("The constitutional argument, namely, that Penal Law § 400.00 infringes on petitioner's rights guaranteed by the U.S. Constitution, 2d Amendment to keep and bear arms, has already received considerable judicial attention and has consistently been repudiated."); People ex rel. Darling v. Warden of the City Prison of New York, 154 A.D. 413, 419-20, 139 N.Y.S. 277 (1st Dep't 1913) (citing People v. Persce, 204 N.Y. 397, 403, 97 N.E. 877 (1912) ("The provision in the Constitution of the United States that `the right of the people to keep and bear arms shall not be infringed' is not designed to control legislation by the State.")). Cf. Brown v. City of Chicago, 42 Ill.2d 501, 504, 250 N.E.2d 129, 131 (1969) ("[R]egulation which does not impair the maintenance of the State's active, organized militia is not in violation of either the terms or the purposes of the second amendment.")
Notably, in Wilkins, this Court incorporated the Double Jeopardy Clause over a dissent that complained that "the incorporation of guarantees of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment at the expense of departing from several long-standing Supreme Court decisions is a step which should only be taken by that Court." 348 F.2d at 868 (Metzner, J., dissenting). Wilkins, however, came two decades before the Supreme Court's "firm instruction" in Shearson/American Express. Agostini, 521 U.S. at 258, 117 S.Ct. 1997 (Ginsburg, J., dissenting). As Justice Ginsburg explained, before Shearson/American Express, "lower courts sometimes inquired whether an earlier ruling of th[e Supreme] Court had been eroded to the point that it was no longer good law." Id. "Shearson/American Express now controls, however, so . . . [this Court has] no choice" but to follow Presser. Id.
Moreover, to the extent that dicta from Patsone might have indicated, as Bach suggests, that the right to own a pistol is protected as a fundamental right under the Equal Protection Clause, this Circuit has rejected that position. See United States v. Toner, 728 F.2d 115, 128 (2d Cir.1984) ("[The] right to possess a gun is clearly not a fundamental right."); see also Lewis v. United States, 445 U.S. 55, 65 & n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (reviewing firearms restrictions for a rational basis and noting, "[L]egislative restrictions on the use of firearms . . . do [not] trench upon any constitutionally protected liberties."); United States v. Darrington, 351 F.3d 632, 635 (5th Cir.2003); Olympic Arms v. Buckles, 301 F.3d 384, 388-89 (6th Cir.2002); United States v. Hancock, 231 F.3d 557, 565-66 (9th Cir. 2000); Gillespie v. City of Indianapolis, 185 F.3d 693, 709 (7th Cir.1999); United States v. Synnes, 438 F.2d 764, 771 & n. 9 (8th Cir.1971). Thus, Bach has nothing here to gain by equating protected rights under the Equal Protection Clause with the "privileges" of Article IV.
We need not determine whether a plaintiff from a State employing a system substantially similar to New York's would be able to demonstrate a non-discriminatory and adequate substitute means for New York to satisfy its interest in monitoring nonresidents. We would note, however, that the Supreme Court has stated, albeit in the context of taxes challenged under the Clause, that "the constitutionality of one State's statutes affecting nonresidents [cannot] depend upon the present configuration of the statutes of another State." Lunding, 522 U.S. at 314, 118 S.Ct. 766 (quoting Austin, 420 U.S. at 668, 95 S.Ct. 1191); cf. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 81-82, 40 S.Ct. 228, 64 L.Ed. 460 (1920).