JOSÉ A. CABRANES, Circuit Judge:
New York State Penal Law § 400.00(14) permits New York City (and Nassau County) to set and collect a residential handgun licensing fee that exceeds the maximum fee allowable under state law in other parts of New York State. Currently, the cost to obtain a residential handgun license in New York City is $340 for a license which lasts for three years. N.Y.C. Admin. Code § 10-131(a)(2); 38 RCNY § 5-28 (requiring renewal of handgun licenses every three years). In this appeal, which follows a grant of summary judgment dismissing the complaint in the United States District Court for the Southern District of New York (John G. Koeltl, Judge), we are asked to determine: (1) whether New York City Administrative Code § 10-131(a)(2), which sets the current residential handgun licensing fee in New York City at $340, violates the Second Amendment;
We hold that both statutes survive constitutional scrutiny, and therefore affirm the March 26, 2012 Opinion and Order of the District Court, which granted summary judgment in favor of the defendants and dismissed the complaint.
Plaintiffs are individuals who have been
A. Factual Background
In New York State, it is illegal to possess a handgun without a valid license, even if the handgun remains in one's residence. See N.Y. Penal Law §§ 265.01(1), 265.20(a)(3). In New York City, the New York City Police Department License Division ("License Division") is responsible for processing and issuing residential handgun licenses, as well as verifying that each applicant is eligible to receive such a license. See id. § 400.00(1), (4); 38 RCNY §§ 5-01(a), 5-02.
Penal Law § 400.00(14) — one of the statutes challenged by plaintiffs — sets the range of permissible fees that may be charged by localities for firearm licenses in New York State. Although that statute sets the general range of fees at between $3 and $10, it allows the New York City Council and the Nassau County Board of Supervisors to set licensing fees outside of this range. See N.Y. Penal Law § 400.00(14). In relevant part, it provides:
Id. Pursuant to Admin. Code § 10-131(a)(2) the other statute challenged by plaintiffs New York City currently charges residents $340 for a residential handgun license, which lasts for three years.
The New York City Council has been authorized by state law to set its own licensing fee since 1947, independent of the licensing fee range allowed in other parts of the State. In 1948, the New York City Council set the fee at $10 for an initial handgun license; the maximum fee allowed in other parts of New York State at that time was $1.50. Between 1962 and 2004, the licensing fee in New York City was increased six times. In 2004, Local Law 37 amended Admin. Code § 10-131(a)(2) to change the residential handgun license from a two-year permit with a fee of $170 to the current three-year permit with a fee of $340.
The amendment to § 10-131(a)(2) also permitted New York City substantially to recoup the cost of processing license applications. In that regard, the New York City Office of Management and Budget ("OMB") prepared a "User Cost Analysis" to accompany the introduction of Local Law 37, and this report showed that in Fiscal Year 2003 the average administrative cost for each handgun license application processed by the License Division was $343.49. See Joint App'x 370. The Committee on Finance of the New York City Council submitted a separate report detailing the costs and revenue associated with New York City's handgun licensing scheme. It stated that, although the costs associated with operating the licensing scheme exceeded $6 million per year, the fees collected only amounted to $3.35 million. See id. at 230. The report also estimated that the increased licensing fees (from $170 per two-year license to $340 per three-year license) would result in an additional $1.1 million in revenue, id. at 231, and concluded that the pre-2004 licensing fee "d[id] not reflect the actual costs of licensing," id. at 234.
In 2010, the cost of New York City's licensing scheme again was studied by the New York Police Department ("NYPD") in conjunction with the OMB. This most recent study concluded each initial residential handgun application cost the License Division $977.16 to process and that each renewal application cost $346.92. Id. at 337, 384, 389.
B. Procedural History
Plaintiffs filed this action on April 5, 2011, against, inter alia, Michael Bloomberg (in his capacity as Mayor of New York City) and the City of New York (jointly, "the City"). By a stipulation dated May 19, 2011, the New York Attorney General ("NYAG") intervened to defend Penal Law § 400.00(14)'s constitutionality.
With regard to Admin. Code § 10-131(a)(2), the District Court held that the $340 fee did not impermissibly burden plaintiffs' Second Amendment rights under the Supreme Court's "fee jurisprudence" because it was designed to defray, and did not exceed, the administrative costs of regulating an individual's right to bear arms. See Kwong v. Bloomberg, 876 F.Supp.2d 246, 253-58 (S.D.N.Y.2012). In particular, the District Court noted that "[t]he plaintiffs offer no evidence disputing or rebutting the City Defendants' evidence that the application fees imposed by Admin. Code § 10-131(a)(2) do not exceed the administrative costs attendant to the licensing scheme." Id. at 257. The District Court also held that $340 fee was "permissible if analyzed under the means-end scrutiny applicable to laws that burden the exercise of Second Amendment rights." Id. at 258. After determining that "intermediate scrutiny" was appropriate because "Admin. Code § 10-131(a)(2) does not effect a ban on handguns but only imposes a fee, [and therefore] the burden on the Second Amendment right is not severe," id. at 259, the District Court upheld the fee, finding that it "is substantially related to the important governmental interests [of promoting public safety and preventing gun violence] because the fee is designed to recover the costs attendant to the licensing scheme," id.
With regard to Penal Law § 400.00(14), the District Court rejected plaintiffs' Equal Protection challenge under so-called "rational basis" review. It held that rational basis review was appropriate inasmuch as this state statute (1) did not involve any suspect classification, and (2) did not burden plaintiffs' Second Amendment rights because it permitted, rather than required, New York City to set a licensing fee higher than most jurisdictions in New York State. Id. at 260. The District Court also noted that "[e]ven if Penal Law § 400.00(14) could be viewed as disparately burdening the Second Amendment right by imposing a higher fee on New York City residents, the law would still pass constitutional muster." Id. at 261 n. 13. Specifically, it stated that "[s]everal courts have declined to apply strict scrutiny [in similar circumstances because they] ... have concluded that the Second Amendment analysis is sufficient to protect these rights[,] and [these courts] have either declined to conduct a separate equal protection analysis or have subjected the equal protection challenge to rational basis review." Id. (citing, inter alia, Nordyke v. King, 644 F.3d 776, 794 (9th Cir.2011), aff'd in relevant part, 681 F.3d 1041 (9th Cir.2012) (en banc)).
This appeal followed.
"We review an order granting summary judgment de novo, drawing all factual inferences in favor of the non-moving party." Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19, 30 (2d Cir.2012). Summary judgment is required if "there is no genuine
A. Admin.Code § 10-131(a)(2) Is Constitutional
The first issue to which we turn is whether the $340 handgun licensing fee imposed by Admin. Code § 10-131(a)(2) violates the Second Amendment, see note 1, ante, which is "fully applicable to the States" through the Fourteenth Amendment, McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 3026, 177 L.Ed.2d 894 (2010). The Supreme Court has held that the Second Amendment "confer[s] an individual right to keep and bear arms." District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). It also has recognized, however, that the Second Amendment right to keep and bear arms "[i]s not unlimited, just as the First Amendment's right of free speech [i]s not." Id. (citation omitted).
Plaintiffs' central argument against Admin. Code § 10-131(a)(2) is that it cannot survive constitutional scrutiny because the $340 licensing fee places too great a burden on their Second Amendment rights. We disagree.
i. The $340 Fee Is Permissible Under the Supreme Court's "Fee Jurisprudence"
We first consider whether the licensing fee of Admin. Code § 10-131(a)(2) is a permissible licensing fee. The Supreme Court's "fee jurisprudence" has historically addressed the constitutionality of fees charged by governmental entities on expressive activities protected by the First Amendment — such as fees charged to hold a rally or parade. Two district court decisions that have considered the issue in the wake of Heller and McDonald have used the same analytical framework to consider similar claims involving the exercise of Second Amendment rights. See Justice v. Town of Cicero, 827 F.Supp.2d 835, 842 (N.D.Ill.2011); Heller v. District of Columbia, 698 F.Supp.2d 179, 190-92 (D.D.C. 2010), aff'd in part, rev'd in part on other grounds, 670 F.3d 1244 (D.C.Cir.2011). In both of these cases, the courts have upheld the contested licensing or registration fees. We agree that the Supreme Court's First Amendment fee jurisprudence provides the appropriate foundation for addressing plaintiffs' fee claims under the Second Amendment. See McDonald, 130 S.Ct. at 3056 (Scalia, J., concurring) (noting similarities between the scope of the First Amendment and the Second Amendment); Heller, 554 U.S. at 595, 128 S.Ct. 2783 (same); cf. United States v. Decastro, 682 F.3d 160, 167 (2d Cir.2012) ("In deciding whether a law substantially burdens Second Amendment rights, it is therefore appropriate to consult principles from other areas of constitutional law, including the First Amendment (to which Heller adverted repeatedly).").
In the First Amendment context, the Supreme Court has held that governmental entities may impose licensing fees relating to the exercise of constitutional rights when the fees are designed "to meet the expense incident to the administration of the [licensing statute] and to the maintenance of public order in the matter licensed." Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) (quotation marks omitted). Put another way, imposing fees on the exercise of constitutional rights is permissible when the fees are designed to defray (and do not exceed) the administrative costs of regulating the protected activity. E. Conn. Citizens Action Grp. v. Powers, 723 F.2d 1050,
The undisputed evidence presented to the District Court demonstrates that the $340 licensing fee is designed to defray (and does not exceed) the administrative costs associated with the licensing scheme. Indeed, the only relevant evidence presented to the District Court consisted of: (1) a report by the Committee of Finance of the New York City Council, stating that the revenue generated by the licensing fees in 2004 before the fee increase covered just over half of the related expenses and "d[id] not reflect the actual costs of licensing," Joint App'x 230; and (2) a report by the OMB in 2003, noting that the cost per licensing application was $343.49 in 2003 and recommending that the licensing fee be increased to $340 for a three-year license "to recover costs," id. at 370. A 2010 User Cost Analysis performed by the OMB also showed that the licensing fee did not exceed the administrative costs of the scheme and only generated roughly 35% of the per-unit costs incurred by the City of New York to process initial residential handgun licenses. Id. at 333, 384.
Although plaintiffs are quick to argue that New York City's residential handgun licensing fee is significantly higher than the fee charged in other jurisdictions, this is simply not the test for assessing the validity of a licensing fee. Even assuming that an otherwise proper fee might be impermissible if it were so high as to be exclusionary or prohibitive, plaintiffs provide nothing beyond unsubstantiated assertions to suggest that the $340 fee for a three-year license reaches this level. Moreover, the facts of this case demonstrate that the $340 fee was not prohibitive or exclusionary as applied to these individual plaintiffs because they all were able to
ii. The $340 Fee Is Not an Unconstitutional Burden
We next consider whether Admin. Code § 10-131(a)(2)'s $340 fee imposes an unconstitutional burden on the exercise of plaintiffs' Second Amendment rights. In United States v. Decastro, we held that the appropriate level of scrutiny under which a court reviews a statute or regulation in the Second Amendment context is determined by how substantially that statute or regulation burdens the exercise of one's Second Amendment rights. 682 F.3d at 164. We further explained that where the burden imposed by a regulation on firearms is a "marginal, incremental or even appreciable restraint on the right to keep and bear arms," it will not be subject to heightened scrutiny. Id. at 166 (emphasis supplied). "Rather, heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes)." Id. (emphasis supplied); see also Nordyke, 644 F.3d at 786 ("[O]nly regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.").
On the facts of this case, we find it difficult to say that the licensing fee, which amounts to just over $100 per year, is anything more than a "marginal, incremental or even appreciable restraint" on one's Second Amendment rights especially considering that plaintiffs have put forth no evidence to support their position that the fee is prohibitively expensive.
But we need not definitively decide that applying heightened scrutiny is unwarranted here
We recently observed that "New York has substantial, indeed compelling, governmental interests in public safety and crime prevention." Id. at 97. Because the record demonstrates that the licensing fee is designed to allow the City of New York to recover the costs incurred through operating its licensing scheme, which is designed to promote public safety and prevent gun violence, we agree with the District Court that Admin. Code § 10-131(a)(2) easily survives "intermediate scrutiny." Kwong, 876 F.Supp.2d at 259 (finding that Admin.
For these reasons, we affirm the March 26, 2012 Opinion and Order of the District Court insofar as it concludes that Admin. Code § 10-131(a)(2)'s $340 licensing fee is constitutional.
B. Penal Law § 400.00(14) Is Constitutional
The second issue presented in this appeal is whether Penal Law § 400.00(14), which allows the City of New York (and Nassau County) to set the residential handgun licensing fee outside the $3-10 range permitted in the rest of New York State, violates the Equal Protection Clause. In short, plaintiffs argue that this statutory provision should be reviewed under "strict scrutiny," and should be found to be unconstitutional "to the extent it authorizes the City to impose a fee greater than $10," because it burdens the exercise of a fundamental right. Appellants' Br. 25. We disagree with plaintiffs' views about the appropriate level of "scrutiny" as well as the constitutionality of the Penal Law § 400.00(14).
i. Penal Law § 400.00(14) Is Subject to Rational Basis Review
Although the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike," City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), it "does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purposes for which the classification is made," Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).
Here, Penal Law § 400.00(14) simply allows the New York City Council to "fix the fee to be charged for a license to carry or possess a pistol or revolver [in New York City]," while the licensing fee to carry or possess such a firearm outside New York City must be "not less than three dollars nor more than ten dollars as may be determined by the legislative body of the county." N.Y. Penal Law § 400.00(14).
In light of what Penal Law § 400.00(14) does (and does not do), we agree with the District Court that rational basis review is appropriate because Penal Law § 400.00(14)'s geographic classification is not suspect, see City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249, and the statute itself does not burden a fundamental right, see Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ("[I]f a law neither burdens a fundamental right nor targets a suspect class," the legislative classification will be upheld "so long as it bears a rational relation to some legitimate end.").
ii. Penal Law § 400.00(14) Survives "Rational Basis" Review
Penal Law § 400.00(14) survives rational basis review,
Plaintiffs do not dispute that the State has a legitimate interest in allowing New York City to recoup the costs incurred by its regulatory schemes more fully. See Appellant's Br. 38-39; see also Thomas v. Chi. Park Dist., 534 U.S. 316, 322, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (approving a municipality's use of permits that were designed, at least in part, "to assure financial accountability for damage caused by [an] event"); Int'l Women's Day March Planning Comm., 619 F.3d at 369 ("It is undisputed that San Antonio has a significant interest in recouping the expenses it incurs from the processions held on its streets."); Nat'l Awareness Found., 50 F.3d at 1167 (concluding that that an $80 fee "serve[d] the legitimate purpose of defraying the expenses incident to the administration and enforcement" of a statutory scheme regarding professional solicitors). Moreover, by providing flexibility to the City of New York to defray the costs of operating this licensing scheme, the State — through Penal Law § 400.00(14) — helps ensure that New York City's licensing scheme is adequately funded, thereby allowing it to function properly. See Cox, 312 U.S. at 577, 61 S.Ct. 762 ("The suggestion that a flat fee should have been charged fails to take account of the difficulty of framing a fair schedule to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the liberty sought."); cf. Avery v. Midland Cnty., 390 U.S. 474, 485, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) ("The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems."). Indeed, as "[e]very application [under N.Y. Penal Law § 400.00(1)(4)] triggers a local investigation by police into the applicant's mental health history, criminal history, [and] moral character," Kachalsky, 701 F.3d at 87, helping ensure that the scheme functions properly promotes public safety, see Bach, 408 F.3d at 91 (noting that the State "has a substantial and legitimate interest ... in insuring the safety of the general public from individuals who, by their conduct, have shown
For these reasons, we conclude that Penal Law § 400.00(14), which permits New York City and Nassau County to charge a fee outside of the $3-10 range applicable in other jurisdictions in New York State, survives rational basis review and does not violate the Equal Protection Clause.
To summarize, we hold that, on the facts presented in this appeal:
Accordingly, the March 27, 2012 judgment of the District Court is
JOHN M. WALKER, JR., Circuit Judge, concurring:
This case presents complicated questions in an area of law in which the Supreme Court has provided limited guidance. The full import of the Second Amendment right and the government's burden to justify the infringement of this right in different contexts remain opaque. Thus, it is not entirely surprising that, while I agree with the majority that the two laws at issue here are constitutional, I reach that conclusion by a different route.
I would hold that Administrative Code § 10-131(a)(2), which imposes a non-negligible, indeed significant, initial handgun licensing fee of $340, does not violate the Second Amendment. Although the fee constitutes a substantial burden on the fundamental Second Amendment right to possess a handgun in the home for self-defense, see McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 3036, 177 L.Ed.2d 894 (2010), and thereby necessitates intermediate scrutiny, the statute survives such heightened review.
Second, I would hold that Penal Law § 400.00(14) does not violate the Equal Protection Clause, despite the fact that it, in combination with local law, permits the City of New York and Nassau County to impose significantly higher residential handgun licensing fees than other New York counties. The fee disparity burdens the exercise of a fundamental right differently for different New York State residents and therefore demands a heightened level of review. However, the governmental interest at issue here — permitting local discretion in deciding whether and how to recoup costs related to protecting the public safety — justifies this disparity.
A. Administrative Code § 10-131(a)(2) Does Not Violate the Second Amendment
The majority begins its analysis of the constitutionality of Administrative Code § 10-131(a)(2) under the Second Amendment with a discussion of the Supreme Court's First Amendment "fee jurisprudence." It concludes — and I agree — that the $340 licensing charge is not an unconstitutional tax, but rather a constitutionally permissible fee.
The majority then addresses the question of whether the fee is an unconstitutional burden on the Second Amendment. In other words, does § 10-131(a)(2) impose a substantial burden on the fundamental right to keep a handgun in the home?
As the majority notes, the Second Circuit does not read Supreme Court jurisprudence as "mandat[ing] that any marginal, incremental or even appreciable restraint on the right to keep and bear arms be subject to heightened scrutiny." United States v. Decastro, 682 F.3d 160, 166 (2d Cir.2012) (determining that a statute that barred the transportation of firearms across state lines required only rational basis review because individuals could apply for licenses to own guns in all states). Instead, we have determined that "heightened scrutiny is triggered only by those restrictions that ... operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes)." Id. (emphasis added). The majority relies on Decastro's "appreciable restraint" language to suggest we need not apply heightened scrutiny to a licensing fee that "amounts to just over $100 per year." Ante at 10. However, because it ultimately finds that the statute would survive intermediate scrutiny, the majority observes that it need not address the questions of whether the fee is a substantial burden and what level of review is required.
While I agree with the majority that § 10-131(a)(2) survives intermediate scrutiny, I believe that such review is required. The Supreme Court has clarified that a law-abiding citizen's right to possess a handgun in the home for self-defense is fundamental. See McDonald, 130 S.Ct. at 3036. Any non-nominal licensing fee necessarily constitutes a substantial burden on this right.
Intermediate scrutiny is sufficient, however, because a licensing fee imposes only a burden — not a ban — on this fundamental right. Id. at 93-97. Accordingly, and for substantially the same reasons advanced by the majority, I believe that § 10-131(a)(2) easily survives intermediate scrutiny. Indeed, I would go a step further. As we recently noted, "[t]he regulation of firearms is a paramount issue of public safety, and recent events in [Newtown, Connecticut] are a sad reminder that firearms are dangerous in the wrong hands." Osterweil v. Bartlett, 706 F.3d 139, 143 (2d Cir.2013). Because of the heightened safety concerns in the Second Amendment context, I would find that handgun licensing fees tied to and limited by cost recovery are generally constitutional under the Second Amendment.
B. Penal Law § 400.00(14), Separately or In Combination with Local Law, Does Not Violate the Equal Protection Clause
The majority reasons that, because Penal Law § 400.00(14) "simply allows the New York City Council to fix the fee to be charged for a license to carry or possess a pistol or revolver in New York City," ante at 15 (quotation marks and alteration omitted), it "itself does nothing to burden anyone's Second Amendment [fundamental] rights," ante at 16. Furthermore, the majority notes, § 400.00(14) does not permit New York City and Nassau County to charge any amount they wish; no licensing fee can exceed "a sum reasonably necessary to cover the costs of the issuance, inspection and enforcement." ATM One LLC v. Inc. Vill of Freeport, 276 A.D.2d 573, 714 N.Y.S.2d 721, 722 (2d Dep't 2000) (quotation marks omitted). Based on its determination that the contested law does not burden any fundamental rights and the fact that the statute's geographic classification is not suspect, the majority concludes that only rational basis review is warranted under the Equal Protection Clause.
This analysis both blinks reality and condones a loophole that permits disparate burdens on a fundamental right for different individuals. Penal Law § 400.00(14) does not operate in a vacuum; it is applied through local legislation that has the result of a gun owner paying a $340 handgun licensing fee in one New York State jurisdiction and a $10 fee in another. This disparate burden of a fundamental right necessitates more exacting scrutiny than rational basis review.
Even if strict scrutiny were applicable, this would be one of those rare situations where strict scrutiny would not be fatal in fact. See Adam Winkler, 59 Vand. L.Rev. 793, 815, 862-63 (2006) (finding that approximately 30 percent of all applications of strict scrutiny result in the challenged law being upheld); United States v. Miles, 238 F.Supp.2d 297, 301 (D.Me.2002) (upholding a gun control law under strict scrutiny).
First, there is an important and compelling governmental interest in allowing local governments to be flexible in setting fees to recoup costs related to protecting the public safety if they so choose, even if this results in different localities charging different fees for a constitutionally-protected activity. See Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) ("The suggestion that a flat fee should have been charged [for a parade license] fails to take account of the difficulty of framing a fair schedule to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the liberty sought." (emphasis added)).
Second, a cost recovery licensing fee is a substantially related and narrowly tailored means of protecting this governmental interest,
For the above reasons, I believe that Administrative Code § 10-131(a)(2) and Penal Law § 400.00(14) — separately, or in combination with local implementing law — are constitutional, and I concur in the majority's conclusion that the district court's judgment should be affirmed.
Moreover, it is unclear to us where the dividing line between a "nominal" fee and a "non-nominal" fee is located. Judge Walker's concurring opinion provides no answer, and instead of attempting to draw a line between "nominal" and "non-nominal" fees, we think it a far better approach to require plaintiffs to put forth at least some evidence to suggest that a fee operates as a "substantial burden." In any event, we emphasize that this disagreement with Judge Walker amounts to an academic exercise inasmuch as we do not decide whether heightened scrutiny is warranted in the circumstances here presented.
In his concurring opinion, Judge Walker suggests that our analysis on this point "blinks reality" and "condones a loophole." Concurrence, at 6, post. We respectfully disagree. Like every Circuit to have addressed this issue, we simply conclude that plaintiffs should not be allowed to use the Equal Protection Clause "to obtain review under a more stringent standard" than the standard applicable to their Second Amendment claim. See Woollard v. Gallagher, 712 F.3d 865, 873 n. 4 (4th Cir.2013) ("[T]o accept [the Appellees' equal protection] theory would be to erase, in one broad stroke, the careful and sensible distinctions that the Fourth Circuit and other courts have drawn between core and non-core Second Amendment protections and to ignore the principle that differing levels of scrutiny are appropriate to each." (internal quotation marks omitted)). Put another way, an Equal Protection claim that is based on the alleged burdening of one's Second Amendment rights should not be reviewed in isolation; whether one's Second Amendment rights are impermissibly "burdened" is necessarily informed by the underlying Second Amendment analysis. As New York City's $340 licensing fee survives "intermediate scrutiny," the fact that other localities charge a lower fee need not be subject to anything more than "rational basis" review.
Although the Supreme Court has found that laws which survive review under the Free Exercise jurisprudence receive only rational basis review under an associated Equal Protection Clause claim, see Locke v. Davey, 540 U.S. 712, 720 n. 3, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004); Johnson v. Robinson, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), these cases are distinguishable. In Locke and Johnson, the plaintiffs argued that they were denied a governmental benefit (scholarship money and educational benefits, respectively) due to their religious-oriented activity (pursuit of a theology degree and conscientious objection, respectively). The Supreme Court upheld both laws after conducting a Free Exercise analysis, noting that the laws posed only "incidental" or "minor" burdens on the plaintiff's Free Exercise rights — if any burden at all. Locke, 540 U.S. at 725, 124 S.Ct. 1307; Johnson, 415 U.S. at 385, 94 S.Ct. 1160. The Supreme Court then found, in cursory footnotes, that the associated Equal Protection Clause claims required only rational basis review.
Here, in contrast, the contested law creates a disparate burden — and a potentially prohibitive burden — on exercising a fundamental right. This requires heightened review under the Equal Protection Clause. I am not suggesting, as the majority implies, that the claim under the Equal Protection Clause should necessarily receive more exacting scrutiny than that under the Second Amendment. See ante at 16 n. 19. I read the majority opinion to imply that both claims can be reviewed for rational basis, and I am applying the same standard of review — intermediate scrutiny — to both claims.