Adopting a position that the Second Amendment of the U.S. Constitution does not protect a fundamental individual right, a Northern District judge has held that a U.S. naval attorney with top-secret security clearance can be barred by New York from carrying a concealed weapon while visiting relatives in Ulster County, N.Y.

David D. Bach, who lives in Virginia Beach and occasionally visits family in Saugerties, N.Y., challenged a state law that effectively bars him from obtaining the requisite license to carry a pistol or revolver when he travels within New York. Under state law, since Bach lives out of state and has no employment or business interests in New York, he is ineligible for a pistol permit.

"Because the United States is in a state of war at home and abroad, and thousands of citizens have been slaughtered by foreign enemies in New York, Virginia and Pennsylvania, I continue to maintain a heightened concern for the safety and welfare of my family," Bach said in an affidavit. "[B]ecause New York State law prohibits me from obtaining the required license ... I am deprived of the only rational and effective means I have to repel an attack from a violent criminal predator."

Bach, a commissioned officer in the Naval Reserve now serving in the Office of the General Counsel, is a former Navy SEAL who was on active duty throughout Operation Desert Storm. His parents own a small farm in Ulster County, which he occasionally visits with his wife and three young children. Bach said he is uncomfortable traveling unarmed.

"[B]ecause of my occupation within the Department of Defense and Naval Special Warfare, I believe my family and I are at greater risk of being targeted by those seek[ing] to carry out symbolic acts of terror," he said in court papers.

Bach complained that New York law has effectively left him defenseless, and to add insult to injury, "the state would be immune from liability should my family or I be harmed by criminals, even if the state were found to be grossly negligent."

Bach sued Governor George E. Pataki, Attorney General Eliot Spitzer, former State Police Superintendent James W. McMahon and Ulster County Sheriff J. Richard Bockelmann. His suit in the Northern District of New York rested primarily on the Second Amendment right to keep and bear arms.

But in a recent decision, U.S. District Judge Norman A. Mordue of Syracuse rejected Bach's claims and dismissed the suit.

"In view of the weight of authority, including the present state of Supreme Court and 2nd Circuit jurisprudence, the court adopts the view that the Second Amendment is not a source of individual rights," he wrote.

Mordue said that even though there is "sparse Supreme Court guidance on the question," the seminal case, United States v. Miller, 307 U.S. 174 (1939), "is almost invariably read as demonstrating that the Supreme Court does not view the Second Amendment as safeguarding a fundamental individual right." He said the lower courts, including the 2nd U.S. Circuit Court of Appeals, have consistently held that the Second Amendment secures a collective right only.

"The Supreme Court's few subsequent references to Miller offer little further guidance as to the Supreme Court's view of the Second Amendment," Mordue wrote.

However, in light of the usual reading of Miller and the fact that the Supreme Court has never disavowed that common reading, the Northern District judge agreed with the state that Miller supports the defendants' position "that the Second Amendment does not secure an individual right."

RIGHT TO TRAVEL

Similarly, Mordue rejected Bach's argument that New York law infringes his right to travel, as protected by the Privileges and Immunities Clause of Article IV of the U.S. Constitution. He said the clause generally guarantees visitors to a state the same privileges and immunities as residents, but it does not entitle them to all the rights of residents.

"This court finds that New York's permit scheme bears a close relationship to substantial and valid reasons for the disparate treatment of nonresident travelers, beyond the mere fact that they are citizens of other states," Mordue wrote.

"The administrative problems in investigating, monitoring, enforcing and revoking permits where the applicant does not have residency, employment or business ties with New York and the resultant likelihood of errors, would be inimical to New York's scheme of licensing firearms as a means of controlling their possession for the public good."

Bach appeared pro se. Assistant Attorney General Gerald J. Rock defended the state defendants. Francis T. Murray of Kingston appeared for the Ulster County sheriff in Bach v. Pataki, 02-CV-1500.