15-638-cv
New York State Rifle & Pistol Ass’n, Inc. v. City of New York


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT



                                        August Term, 2016

                (Argued: August 17, 2016            Decided: February 23, 2018)

                                       Docket No. 15-638-cv



    THE NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ROMOLO COLANTONE,
                 EFRAIN ALVAREZ, and JOSE ANTHONY IRIZARRY,*

                                                        Plaintiffs-Appellants,

                                               — v. —

    THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT–LICENSE
                                  DIVISION,

                                                        Defendants-Appellees.




B e f o r e:

                        POOLER, LYNCH, and CARNEY, Circuit Judges

                                       __________________




*
 The Clerk of Court is respectfully directed to amend the caption of the case to
the conform to the caption above.
       Plaintiffs New York State Rifle & Pistol Association, Inc., Romolo
Colantone, Efrain Alvarez, and Jose Anthony Irizarry brought suit against
Defendants City of New York and New York Police Department–License
Division, challenging a provision of a New York City licensing scheme under
which an individual with a “premises license” for a handgun may remove the
handgun from the designated premises only for specified purposes, including
going to a shooting range in New York City. Plaintiffs sought to remove licensed
handguns from their licensed premises for other purposes, including going to
shooting ranges outside New York City and transporting the handgun to a
second home in upstate New York. The United States District Court for the
Southern District of New York (Robert W. Sweet, J.) denied plaintiffs’ motions for
summary judgment and for a preliminary injunction, and granted defendants’
cross-motion for summary judgment. The district court held that the restrictions
in premises licenses do not violate the Second Amendment, the Commerce
Clause, the fundamental right to travel, or the First Amendment. Plaintiffs appeal
that judgment.

      We AFFIRM.


            ERIN MURPHY, Bancroft PLLC (Paul D. Clement, D. Zachary Hudson,
                  Andrew N. Ferguson, Bancroft PLLC; Brian T. Stapleton,
                  Matthew S. Lerner, Goldberg Segalla LLP, on the brief),
                  Washington, D.C., for Plaintiffs-Appellants New York State Rifle
                  & Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and
                  Jose Anthony Irizarry.

            SUSAN PAULSON, Assistant Corporation Counsel (Richard Dearing,
                 Assistant Corporation Counsel, on the brief), for Zachary W.
                 Carter, Corporation Counsel of the City of New York, New
                 York, N.Y., for Defendants-Appellees City of New York and the
                 New York City Police Department–License Division.

            Charles J. Cooper, David H. Thompson, Peter A. Patterson, Cooper
                  & Kirk, PLLC, Washington, D.C., for Amicus Curiae National
                  Rifle Association of America, Inc., in support of Plaintiffs-
                  Appellants.

                                                  2
              Dan M. Peterson, Fairfax, VA; Stephen P. Halbrook, Fairfax, VA, for
                   Amici Curiae Western States Sheriffs’ Association, Law
                   Enforcement Legal Defense Fund, Law Enforcement Action
                   Network, CRPA Foundation, Law Enforcement Alliance of
                   America, and International Law Enforcement Educators and
                   Trainers Association, in support of Plaintiffs-Appellants.




GERARD E. LYNCH, Circuit Judge:

       Plaintiffs New York State Rifle & Pistol Association, Romolo Colantone,

Efrain Alvarez, and Jose Anthony Irizarry (collectively, “the Plaintiffs”)

brought suit against Defendants City of New York and the New York Police

Department–License Division (collectively, “the City”), challenging a provision

of a New York City licensing scheme, Title 38, Chapter Five, Section 23 of the

Rules of the City of New York (“RCNY”), under which an individual with a

“premises license” for a handgun may not remove the handgun “from the

address specified on the license except as otherwise provided in this chapter.” 38

RCNY § 5-23(a)(1). Under Rule 5-23 (“the Rule”), the licensee “may transport

her/his handgun(s) directly to and from an authorized small arms range/shooting

club, unloaded, in a locked container, the ammunition to be carried separately.”

Id. § 5-23(a)(3).



                                         3
      The New York Police Department–License Division (“License Division”)

has defined “authorized” facilities, among other requirements, to be “those

located in New York City.” App. 38. The Plaintiffs sought to remove handguns

from the licensed premises for the purposes of going to shooting ranges and

engaging in target practice outside New York City as well as, in the case of one

Plaintiff, transporting the handgun to a second home in upstate New York. The

United States District Court for the Southern District of New York (Robert W.

Sweet, J.) denied the Plaintiffs’ motions for summary judgment and for a

preliminary injunction, and granted the City’s cross-motion for summary

judgment. The district court held that the restrictions in premises licenses do not

violate the Second Amendment, the Commerce Clause, the fundamental right to

travel, or the First Amendment. N.Y. State Rifle & Pistol Ass’n v. City of New York,

86 F. Supp. 3d 249, 268 (S.D.N.Y. 2015). The Plaintiffs appeal that judgment.

      For the reasons that follow, we AFFIRM.




                                          4
                                  BACKGROUND

      New York State law prohibits possession of “firearms” absent a license.

N.Y. Penal Law §§ 265.01–265.04, 265.20(a)(3).1 Section 400.00 of the Penal Law

establishes the “exclusive statutory mechanism for the licensing of firearms in

New York State.” O’Connor v. Scarpino, 83 N.Y.2d 919, 920 (1994); see also

Kachalsky v. Cty. of Westchester, 701 F.3d 81, 85 (2d Cir. 2012). Licenses can be held

by individuals at least twenty-one years of age, of good moral character, and

“concerning whom no good cause exists for the denial of the license,” among

other requirements. N.Y. Penal Law § 400.00(1)(a)–(b), (n).

      To obtain a handgun license, an individual must apply to his or her local

licensing officer. “The application process for a license is rigorous and

administered locally. Every application triggers a local investigation by police

into the applicant’s mental health history, criminal history, [and] moral

character.” Kachalsky, 701 F.3d at 87 (internal citation and quotation marks


1
 As we explained in Kachalsky v. County of Westchester, the term “firearm” in New
York law has a restricted meaning and does not encompass all guns to which the
term generally applies in ordinary usage. 701 F.3d 81, 85 (2d Cir. 2012).
Essentially, a “firearm” is defined by the relevant statutes to include pistols and
revolvers, assault weapons, and rifles and shotguns with barrels of specified
shortened lengths. Id., citing N.Y. Penal Law § 265.00(3). Ordinary rifles and
shotguns are not subject to the licensing provisions of the statute.

                                          5
omitted). The licensing officers “are vested with considerable discretion in

deciding whether to grant a license application, particularly in determining

whether proper cause exists for the issuance of a carry license.” Id. (internal

quotation marks omitted). The New York Penal Law specifies that in New York

City, the licensing officer is the City’s Police Commissioner. N.Y. Penal Law

§ 265.00(10). The License Division exercises the Commissioner’s authority to

review applications for licenses, and issues handgun licenses. See 38 RCNY

§§ 5-01 – 5-11.

      The Penal Law establishes two primary types of handgun licenses: “carry”

licenses and “premises” licenses. N.Y. Penal Law §§ 400.00(2)(a), (f). A carry

license allows an individual to “have and carry [a] concealed” handgun “without

regard to employment or place of possession . . . when proper cause exists” for

the license to be issued. Id. § 400.00(2)(f).

             “Proper cause” is not defined by the Penal Law, but New
             York State courts have defined the term to include
             carrying a handgun for target practice, hunting, or
             self-defense. When an applicant demonstrates proper
             cause to carry a handgun for target practice or hunting,
             the licensing officer may restrict a carry license “to the
             purposes that justified the issuance.”

Kachalsky, 701 F.3d at 86, quoting O’Connor, 83 N.Y.2d at 921. Generally, a carry

                                            6
license is valid throughout the state except that it is not valid within New York

City “unless a special permit granting validity is issued by the police

commissioner” of New York City.3 N.Y. Penal Law § 400.00(6).

      A premises license is specific to the premises for which it is issued. The

type of license at issue in this case allows a licensee to “have and possess in his

dwelling” a pistol or revolver. Id. § 400.00(2)(a). Under the RCNY, a “premises

license – residence” issued to a New York City resident is specific to a particular

address, and “[t]he handguns listed on th[e] license may not be removed from

the address specified on the license except” in limited circumstances, including

the following:




3
 Another handgun license available to New York City residents is a “carry
business license,” which “permits the carrying of a handgun concealed on the
person.” 38 RCNY § 5-23(b). Andrew Lunetta, the former Commanding Officer of
the License Division, has averred that to obtain such a license, “the applicant
must show that he/she has a need to carry a concealed firearm which is
distinguishable from that of the general public, for example, the applicant carries
large sums of cash or valuables on a regular basis or is exposed to extraordinary
personal danger in daily life.” App. 75. The Plaintiffs have not alleged that they
applied for carry business licenses nor that they were denied such licenses. Nor
have the Plaintiffs claimed to hold premises licenses for their businesses, a
category of license which would also be authorized under the Rule. 38 RCNY
§ 5-23(a). Accordingly, we need not further discuss carry business licenses or
business premises licenses.

                                          7
               (3) To maintain proficiency in the use of the handgun, the
               licensee may transport her/his handgun(s) directly to and
               from an authorized small arms range/shooting club,
               unloaded, and in a locked container, the ammunition to be
               carried separately.

               (4) A licensee may transport her/his handgun(s) directly
               to and from an authorized area designated by the New
               York State Fish and Wildlife Law and in compliance with
               all pertinent hunting regulations, unloaded, in a locked
               container, the ammunition to be carried separately, after
               the licensee has requested and received a “Police
               Department – City of New York Hunting Authorization”
               Amendment attached to her/his license.

38 RCNY § 5-23(a).

         Under Rule 5-23(a)(3), an “authorized small arms range/shooting club” is

one that, among other requirements, is located in New York City, as the License

Division notified Plaintiff Colantone in a letter dated May 15, 2012. App. 28.

When this challenge was brought, there were seven such facilities in New York

City, including at least one in each of the City’s five boroughs.4 The New York

Police Department (“NYPD”) also previously issued “target licenses” that

allowed the licensee to take his or her handgun to shooting ranges and

competitions outside New York City. These target licenses were not mandated by



4
    Neither of the parties has brought to our attention any change in that number.

                                           8
state law, but were issued by the NYPD in its discretion as the licensing agency

for New York City. The NYPD received reports that licensees were using target

licenses to carry weapons to many other locations, and not in the requisite

unloaded and enclosed condition. In part because of these issues, the NYPD

eliminated the target license in 2001.

      Plaintiffs Colantone, Irizarry, and Alvarez hold premises licenses issued by

the License Division that allow them to possess handguns in their residences in

New York City. They seek to transport their handguns outside the premises for

purposes other than the ones authorized by Rule 5-23. All three Plaintiffs seek to

transport their handguns to shooting ranges and competitions outside New York

City.5 In addition, Colantone, who owns a second home in Hancock, New York,

seeks to transport his handgun between the premises for which it is licensed in

New York City and his Hancock house. These plaintiffs, along with the New

York State Rifle & Pistol Association, filed suit in the Southern District of New



5
 The Plaintiffs seek to take their handguns to tournaments such as the NRA
Sectional Championships held in Roslyn, New York, and Old Bridge, New Jersey,
and the Steel Challenge Championships, held in Old Bridge, New Jersey. They
also argue that it would be more convenient for some of them to engage in target
practice at shooting ranges located near, but outside of, New York City, rather
than at ranges located within the City but farther from their homes.

                                         9
York, seeking a declaration that the restrictions imposed by the Rule were

unconstitutional and an injunction against its enforcement.

      The Plaintiffs moved for summary judgment and for a preliminary

injunction, and the City cross moved for summary judgment. The district court

granted the City’s cross-motion for summary judgment and dismissed the

complaint. The district court determined that the Rule “merely regulates rather

than restricts the right to possess a firearm in the home and is a minimal, or at

most, modest burden on the right.” N.Y. Rifle & Pistol Ass’n., 86 F. Supp. 3d at 260

(brackets and internal quotation marks omitted). Accordingly, the district court

held that the Rule did not violate the Plaintiffs’ Second Amendment rights. Id. at

160–61. The district court also found that the Rule did not violate the dormant

Commerce Clause, the First Amendment right of expressive association, or the

fundamental right to travel. Id. at 263–66.

                                  DISCUSSION

      The Plaintiffs argue on appeal, as they did below, that by restricting their

ability to transport firearms outside the City, Rule 5-23 violates the Second

Amendment, the dormant Commerce Clause, the First Amendment right of

expressive association, and the fundamental right to travel. We review a district


                                         10
court’s decision on summary judgment de novo, construing the evidence in the

light most favorable to the non-moving party. New York State Rifle & Pistol Ass'n,

Inc. v. Cuomo, 804 F.3d 242, 252 (2d Cir. 2015). “We also review de novo the district

court’s legal conclusions, including those interpreting and determining the

constitutionality of a statute.” Id. (internal quotation marks omitted). Pursuant to

the Federal Rules of Civil Procedure, summary judgment is appropriate where

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). For the reasons explained

below, we reject each of the Plaintiffs’ arguments.

I.    Rule 5-23 Does Not Violate the Second Amendment.

      The Second Amendment 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. In District of Columbia v.

Heller, the Supreme Court announced that the Second Amendment “guarantee[s]

the individual right to possess and carry weapons in case of confrontation.” 554

U.S. 570, 592 (2008). In McDonald v. City of Chicago, the Court held that this right

is incorporated within the Due Process Clause of the Fourteenth Amendment,

and therefore binds the States as well as the Federal Government. 561 U.S. 742,

                                          11
791 (2010). However, the Court remarked that its holding should not “be taken to

cast doubt on longstanding prohibitions on the possession of firearms by felons

and the mentally ill, or laws forbidding the carrying of firearms in sensitive

places such as schools and government buildings, or laws imposing conditions

and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–27.

“Neither Heller nor McDonald . . . delineated the precise scope of the Second

Amendment or the standards by which lower courts should assess the

constitutionality of firearms restrictions.” N.Y. State Rifle, 804 F.3d at 254.

      A. Analytical Framework

      Following Heller, this Circuit adopted a “two-step inquiry” for

“determining the constitutionality of firearm restrictions.” Id. First, we

“determine whether the challenged legislation impinges upon conduct protected

by the Second Amendment,” and second, if we “conclude[] that the statute[]

impinge[s] upon Second Amendment rights, we must next determine and apply

the appropriate level of scrutiny.” Id. at 254, 257.

             1. First Step: Whether the Second Amendment Applies

      At the first step, the Plaintiffs argue that Rule 5-23 impinges on conduct

protected by the Second Amendment. We need not decide whether that is so,

                                           12
because, as explained below, the Rule “pass[es] constitutional muster” under

intermediate scrutiny. Id. at 257. Thus, as in New York State Rifle, we “proceed on

the assumption that [the Rule restricts activity] protected by the Second

Amendment.” Id.

             2. Second Step: Level of Scrutiny

      At the second step, we consider whether to apply heightened scrutiny. In

Second Amendment cases, our Circuit has recognized at least two forms of

heightened scrutiny — strict and intermediate. See Kachalsky, 701 F.3d at 93

(holding that although “some form of heightened scrutiny would be

appropriate,” strict scrutiny was not necessary, and instead applying

intermediate scrutiny). Our Circuit has also recognized that a form of non-

heightened scrutiny may be applied in some Second Amendment cases. See

United States v. Decastro, 682 F.3d 160, 166 (2d Cir. 2012) (holding that heightened

scrutiny is not appropriate where the regulation does not impose a “substantial

burden on the ability of [plaintiffs] to possess and use a firearm for self-defense”).

This recognition is limited by the Supreme Court’s indication in Heller that

rational basis review may be inappropriate for certain regulations involving

Second Amendment rights. 554 U.S. at 628 n.27. But we need not determine here

                                          13
which types of regulations may be subject only to rational basis review, or

whether some form of non-heightened scrutiny exists that is more exacting than

rational basis review. As explained below, we find that the Rule does not trigger

strict scrutiny and that it survives intermediate scrutiny.

      In determining whether some form of heightened scrutiny applies, we

consider two factors: “(1) ‘how close the law comes to the core of the Second

Amendment right’ and (2) ‘the severity of the law’s burden on the right.’ Laws

that neither implicate the core protections of the Second Amendment nor

substantially burden their exercise do not receive heightened scrutiny.” N.Y. State

Rifle, 804 F.3d at 258, quoting Ezell v. City of Chicago (“Ezell I”), 651 F.3d 684, 703

(7th Cir. 2011). As relevant to the individual right to possess a firearm recognized

in Heller, a statute can “implicate the core of the Second Amendment’s

protections by extending into the home, ‘where the need for defense of self,

family and property is most acute.’” Id., quoting Heller, 554 U.S. at 628. Thus, in

Heller, the Supreme Court struck down the District of Columbia’s ban on

handgun possession in the home because it completely prohibited “an entire

class of ‘arms’ that is overwhelmingly chosen by American society for th[e]

lawful purpose [of self-defense].” Heller, 554 U.S. at 628. The Court found that


                                           14
this prohibition, which extended into the home, would fail constitutional muster

under any standard of scrutiny. Id.

      As to the second factor, we have held that “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).” Decastro, 682 F.3d at 166. “The scope of the legislative

restriction and the availability of alternatives factor into our analysis of the

degree to which the challenged law burdens the right.” N.Y. State Rifle, 804 F.3d

at 259 (internal quotation marks omitted). For example, since Heller, we have

found New York’s and Connecticut’s prohibitions of semiautomatic assault

weapons to be distinguishable from the ban struck down in Heller, because under

those statutes, “citizens may continue to arm themselves with non-semiautomatic

weapons or with any semiautomatic gun that does not contain any of the

enumerated military-style features.” Id. at 260 (emphasis in original). Even where

heightened scrutiny is triggered by a substantial burden, however, strict scrutiny

may not be required if that burden “does not constrain the Amendment’s ‘core’




                                          15
area of protection.” Id. Thus, the two factors interact to dictate the proper level of

scrutiny.

      The Plaintiffs argue that the Rule violates the Second Amendment in two

ways: first, by preventing Plaintiff Colantone from taking the handgun licensed

to his New York City residence and transporting it to his second home in

Hancock, New York, and second, by preventing the Plaintiffs from taking their

handguns licensed to New York City premises to firing ranges and shooting

competitions outside the City. We address these arguments in turn.

      In Kachalsky, we applied intermediate scrutiny and affirmed New York’s

“proper cause” requirement for the issuance of a carry license, despite finding

that such a requirement “places substantial limits on the ability of law-abiding

citizens to possess firearms for self-defense in public.”6 701 F.3d at 93. In


6
  We are aware that a divided panel of the Seventh Circuit and a divided panel of
the District of Columbia Circuit have disagreed with Kachalsky. See Moore v.
Madigan, 702 F.3d 933, 941 (7th Cir. 2012); Wrenn v. District of Columbia, 864 F.3d
650, 662 (D.C. Cir. 2017). After giving careful and respectful attention to the
reasoning of those opinions, we reaffirm our prior holding, by which this panel
is, in any event, bound. We also recognize that the Third and Fourth Circuits
have adopted reasoning similar to ours in upholding various state regulations on
the carrying of firearms outside the home. See Drake v. Filko, 724 F.3d 426, 433 (3d
Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 880–81 (4th Cir. 2013). The Ninth
Circuit upheld a similar regulation on other grounds. Peruta v. Cty. of San Diego,
824 F.3d 919, 924 (9th Cir. 2016) (en banc) (holding that “the Second Amendment

                                          16
comparison to the regulation considered in Kachalsky, the restrictions complained

of by the Plaintiffs here impose at most trivial limitations on the ability of law-

abiding citizens to possess and use firearms for self-defense.7 New York has

licensed the ownership and possession of firearms in their residences, where

“Second Amendment guarantees are at their zenith,” id. at 89, and does nothing

to limit their lawful use of those weapons “in defense of hearth and home”— the

“core” protection of the Second Amendment, Heller, 554 U.S. at 634–35.

      Strict scrutiny does not attach to Rule 5-23 as a result of Colantone’s desire

to transport the handgun licensed to his New York City residence to his second

home in Hancock, New York. Even if the Rule relates to “core” rights under the




does not . . . protect a right of a member of the general public to carry concealed
firearms in public”), cert. denied sub nom. Peruta v. California, 137 S. Ct. 1995
(2017).
7
 To the extent that the Plaintiffs are limited in their ability to carry firearms in
public, those limitations are not imposed by Rule 5-23, but rather are inherent in
their lack of carry permits. The Plaintiffs do not allege that they sought and were
denied such permits, and the restrictions imposed on those who fail to
demonstrate the requisite “proper cause” to obtain them were upheld in
Kachalsky, 701 F.3d at 101. We understand the Plaintiffs to contend primarily that
the restrictions on transportation of unloaded firearms in locked containers
undermine their ability to make proper use of the premises permits they possess,
and thereby impose substantial limits on their self-defense rights separate from
those at issue in Kachalsky.

                                          17
Second Amendment by prohibiting Colantone from taking his licensed firearm to

his second home, the Rule does not substantially burden his ability to obtain a

firearm for that home, because an “adequate alternative[] remain[s] for

[Colantone] to acquire a firearm for self-defense.” Decastro, 682 F.3d at 168; see

also New York State Rifle, 804 F.3d at 259 (“No substantial burden exists . . . if

adequate alternatives remain for law-abiding citizens to acquire a firearm for

self-defense.”) (internal quotation marks omitted). This case is easily

distinguished from Heller, in which the Supreme Court considered, and deemed

unconstitutional, an outright ban on the possession of handguns in the home. 554

U.S. at 635. Here, New York City imposes no limit on Colantone’s ability to

obtain a license to have a handgun at his second residence in Hancock; if he

wants to keep a handgun at his Hancock house, he can apply to the licensing

officers in Delaware County.8 The Rule restricts only his ability to remove the

handgun licensed by New York City authorities from the City premises for which

it is specifically licensed.




8
  Colantone has not alleged or presented evidence that he has sought such a
license.

                                           18
      Colantone presents no evidence that the costs, either financial or

administrative, associated with obtaining a premises license for his house in

Hancock, or acquiring a second gun to keep at that location, would be so high as

to be exclusionary or prohibitive. In Kwong v. Bloomberg, we assumed that

intermediate scrutiny applied to New York City’s $340 application fee for a

premises license and upheld that fee. 723 F.3d 160, 168 (2d Cir. 2013). We noted

that otherwise-proper costs associated with a state’s regulation of firearms could

be impermissible “if [they] were so high as to be exclusionary or prohibitive.” Id.

at 166. But “the fact that the licensing regime makes the exercise of one’s Second

Amendment rights more expensive does not necessarily mean that it

substantially burdens that right.” Id. at 167–68 (internal quotation marks

omitted). Here, Colantone does not even estimate the amount of money or time

potentially at issue by the requirement of obtaining a premises license and

second firearm for his second home, and he does not allege that the Rule restricts

in any way his ability to obtain such a firearm.

      Next, the Plaintiffs argue that the Rule imposes a substantial burden on

their core Second Amendment rights by prohibiting them from taking their

licensed handguns to firing ranges and shooting competitions outside the City.


                                         19
The Plaintiffs’ primary argument is that the right to possess and use guns in self-

defense suggests a corresponding right to engage in training and target shooting,

and thus restrictions on the latter right must themselves be subject to heightened

scrutiny. Their argument relies on the Seventh Circuit’s observation that the core

right of the Second Amendment to use firearms in self-defense, particularly in

the home, “wouldn’t mean much without the training and practice that make it

effective.” Ezell I, 651 F.3d at 704.

       To the extent that the Plaintiffs argue that firearms practice is itself a core

Second Amendment right, and that even minimal regulation of firearms training

must survive heightened scrutiny to pass constitutional muster, we reject that

argument. It is reasonable to argue, as did the plaintiffs in Ezell I, that restrictions

that limit the ability of firearms owners to acquire and maintain proficiency in the

use of their weapons can rise to a level that significantly burdens core Second

Amendment protections. Possession of firearms without adequate training and

skill does nothing to protect, and much to endanger, the gun owner, his or her

family, and the general public.9 Accordingly, we may assume that the ability to



9
 The Heller Court cited with approval a post-Civil War legal commentary by
Judge and Professor Thomas Cooley: “[T]o bear arms implies something more
than the mere keeping; it implies the learning to handle and use them . . . ; it

                                           20
obtain firearms training and engage in firearm practice is sufficiently close to core

Second Amendment concerns that regulations that sharply restrict that ability to

obtain such training could impose substantial burdens on core Second

Amendment rights.10 Some form of heightened scrutiny would be warranted in

such cases, however, not because live-fire target shooting is itself a core Second

Amendment right, but rather because, and only to the extent that, regulations

amounting to a ban (either explicit or functional) on obtaining firearms training

and practice substantially burden the core right to keep and use firearms in self-

defense in the home. Indeed, if the Plaintiffs’ broader argument were accepted,

every regulation that applied to businesses that provide firearms training or

firing-range use would itself require heightened scrutiny, a result far from

anything the Supreme Court has required.

      Our analysis puts the focus where it belongs: on the core right of self-

defense in the home. Rule 5-23 imposes no direct restriction at all on the right of



implies the right to meet for voluntary discipline in arms, observing in doing so
the laws of public order.” Heller, 554 U.S. at 617–18 (internal quotation marks
omitted).
10
  We make no such assumption, in contrast, regarding the ability to engage in
competitive firearm sports. Purely recreational activities of that sort are unrelated
to core Second Amendment concerns.

                                         21
the Plaintiffs, or of any other eligible New Yorker, to obtain a handgun and

maintain it at their residences for self-protection. All of the individual Plaintiffs

hold licenses to maintain handguns for that purpose. The Plaintiffs do not allege

that the City’s regulatory scheme imposes any undue burden, expense, or

difficulty that impedes their ability to possess a handgun for self-protection, or

even their ability to engage in sufficient practice to acquire and maintain the

skills necessary to keep firearms safely and use them effectively.

      We are further unpersuaded by the Plaintiffs’ attempts to analogize the

Rule to the restrictions held unconstitutional in Ezell I, as those restrictions are

easily distinguishable from the ones at issue in this case. Ezell I concerned a

Chicago ordinance that flatly banned firing ranges within city limits (while

simultaneously requiring, for the issuance of a handgun license, firearms training

that was unavailable within the city). We can assume, without deciding, that the

Seventh Circuit correctly concluded that such a dramatic ban on target shooting

substantially limits the right of law-abiding citizens to engage in the training and

practice that would enable them to safely and effectively make use of firearms for

defensive purposes in the home. Under the Chicago ordinance, residents could

not engage in firearms activities without leaving the city. At a minimum, such a


                                          22
limitation imposes significant inconvenience, and we can accept, for purposes of

the argument in this case, that the imposition of such a burden comes close to

prohibiting gun training and practice altogether. Particularly when coupled with

a training requirement, such a limitation would impose a considerable obstacle to

gun ownership in the home. New York’s rule, however, imposes no such

limitations. Rule 5-23 allows a holder of a premises license to take the handgun

licensed for his or her New York City premises to an authorized firing range in

the City to engage in practice, training exercises, and shooting competitions.

      Nor does the City take away with one hand what it gives with the other, by

using its power to regulate firing ranges so restrictively that as a practical matter,

firing ranges are unavailable. That was the route taken by Chicago in response to

the Ezell I ruling. In Ezell v. City of Chicago (“Ezell II”), the Seventh Circuit

confronted zoning restrictions that “severely limit[ed] where shooting ranges

may locate,” and which were justified by nothing more than “sheer speculation

about accidents and theft.” 846 F.3d 888, 894, 896 (7th Cir. 2017) (internal

quotation marks omitted). In finding that the restrictions acted as a functional

ban on firing ranges, the Ezell II Court cited calculations produced by the

plaintiffs showing that only about 2.2% of the city’s acreage could even


                                            23
theoretically be used to site a shooting range. Id. at 894. Additionally, the court

referenced testimony from two experts, presented by the plaintiffs, indicating

that other jurisdictions made available significantly more land for use by

shooting ranges. Id.

      In this case, by contrast, the Plaintiffs present no evidence demonstrating

that the Rule serves to functionally bar their use of firing ranges or their

attendance at shooting competitions. In fact, the Plaintiffs concede that seven

authorized ranges are available to them, including at least one in each of the

City’s five boroughs. What the Plaintiffs seek is the inverse of what the Ezell I

plaintiffs sought: they do not complain that they are required to undertake

burdensome journeys away from the city in which they live in order to maintain

their skills, but rather they demand the right to take their handguns to ranges

and competitions outside their city of residence. While the Plaintiffs make passing

reference to the possibility that some New York City residents might find a firing

range located outside the City more convenient to use, or closer to their

residence, than the nearest facility within their home borough or an adjoining

borough, they offer no evidence that the burden imposed by having to use a




                                          24
range within the City is in any way substantial.11

      As with absolute limitations on the ability to engage in firearms training,

laws that limit such opportunities by imposing excessive costs could in principle

impose a substantial burden entailing heightened scrutiny. But the test, again, is

whether core rights are substantially burdened. As we noted in Kwong, a

“hypothetical licensing fee could be so high as to constitute a ‘substantial

burden,’” 723 F.3d at 168 n.15; nevertheless, we concluded that the permit fee

charged by New York City did not impose such a substantial burden. Id. at 172.

      Furthermore, a law that “regulates the availability of firearms is not a

substantial burden on the right to keep and bear arms if adequate alternatives

remain for law-abiding citizens to acquire a firearm for self-defense.” Decastro,

682 F.3d at 168; see also Nordyke v. King, 644 F.3d 776, 787 (9th Cir. 2011), aff’d. en

banc, 681 F.3d 1041 (9th Cir. 2012) (“[W]hen deciding whether a restriction on

gun sales substantially burdens Second Amendment rights, we should ask

whether the restriction leaves law-abiding citizens with reasonable alternative

means for obtaining firearms sufficient for self-defense purposes.”). An analysis


11
   The Plaintiffs do not allege that the number or location of firing ranges in the
City is a byproduct of the Rule or any burdensome zoning regulations, or that it
is anything more than the result of market forces.

                                           25
of the evidence in this case reveals that, contrary to the Plaintiffs’ assertions, the

Plaintiffs have sufficient opportunities to train with their firearms without

violating the Rule.

      The record evidence demonstrates that seven firing ranges in New York

City are available to any premises license-holder. One range, Olinville Arms in

the Bronx, is open to any member of the public for an hourly fee. Six of the firing

ranges require payment of a membership fee, although at least one of those six is

open to non-members for weekly shooting competitions. The Plaintiffs argue that

they should not be relegated to joining “private clubs” in order to engage in

firearms competitions, Appellants’ Br. 51, but the record does not support any

claim that these “clubs” are exclusionary in any way. Like privately owned gyms

and other athletic facilities, they are places of public accommodation, open to

anyone who pays their fees. The Plaintiffs do not argue that the fees charged by

the available firing ranges are prohibitively expensive, still less that their cost is

driven up by any burdensome or unreasonable City regulations. That some

portion of the fee is charged in the form of an annual or monthly “membership,”

rather than a per-hour usage fee, does not put the facilities out of reach for license

holders. Nor does it warrant a conclusion that New York City has imposed an



                                           26
unreasonable burden on a resident’s ability to pursue firearms training — which

may be a somewhat costly pursuit in any event — thereby raising constitutional

concerns.

      Moreover, the Plaintiffs do not argue that the facilities located within the

City are inadequate to provide the necessary opportunities for practice shooting.

Indeed, the record reflects that some of these facilities are quite substantial. For

example, the Richmond Boro Gun Club advertises a “100-yard rifle range with 30

covered and enclosed stations for Benchrest, Prone, and Bench shooting, [and an]

outdoor 24 station 50-yard pistol range with covered and enclosed shooting

bench with turning targets at 25 yards” among its many shooting facilities. App.

130. “Various rifle and pistol matches are held each week all year,” according to

their website, and these matches are open to non-members. Id.

      Finally, nothing in the Rule precludes the Plaintiffs from utilizing gun

ranges or attending competitions outside New York City, since guns can be

rented or borrowed at most such venues for practice purposes. New York state

law expressly allows individuals to use a gun that is not their own at a shooting

range if the license holder is present. N.Y. Penal Law § 265.20(a)(7-a). We

recognize that the Plaintiffs may prefer to practice with their own weapon —


                                          27
something that the Rule makes fully possible within the City. That the Rule

restricts practicing with their own firearms to ranges within the City does not

make practicing outside the City or with their own firearms impossible, just not

the two together.

       In short, nothing in this record suggests that the limitations challenged by

the Plaintiffs significantly inhibit their ability to utilize training facilities to obtain

and maintain firearm skills, let alone that the Rule operates as a substantial

burden on the right to keep and use firearms for self-defense in the home.

Assuming arguendo that a total ban on firing ranges within the limits of a large

city (as was at issue in Ezell I) or a functional ban on firing ranges through

onerous zoning regulations (along the lines of Ezell II) would impose a

substantial burden on the core Second Amendment right of residents to maintain

firearms for self-defense in the home, we are not confronted with such a case

here. Unlike the plaintiffs in Ezell II, the Plaintiffs here do not allege that any of

the City’s regulations, including Rule 5-23, serve to deter the construction or

existence of firing ranges within city limits. Furthermore, given the existence of

ample facilities for live-fire training and practice available at market prices within

reasonable commuting distance from the homes of all City residents, the


                                            28
restrictions imposed by the Rule do not impose a substantial burden on the core

Second Amendment right to own and possess handguns for self-defense.

      It is clear, based on the essentially undisputed facts recited above, that

strict scrutiny is not triggered by the Rule, either as applied to Colantone’s

second home or to the Plaintiffs’ desire to take their handguns outside the City

for shooting competitions or target practice. However, some form of heightened

scrutiny may still be required. We have applied intermediate scrutiny when

analyzing regulations that substantially burdened Second Amendment rights or

that encroached on the core of Second Amendment rights by extending into the

home. See, e.g., N.Y. State Rifle, 804 F.3d at 258–59 (applying intermediate scrutiny

to statutes that were “both broad and burdensome” and that “implicate the core

of the Second Amendment’s protections”); Kachalsky, 701 F.3d at 93 (applying

intermediate scrutiny to requirement that “places substantial limits on the ability

of law-abiding citizens to possess firearms for self-defense in public”).

      Because we assume, arguendo, that the Rule approaches the Second

Amendment’s core area of protection as applied to Colantone’s second home,

though it does not impose a substantial burden, we find that intermediate

scrutiny is appropriate to assess the Rule in that instance. As to the Plaintiffs’


                                          29
access to firing ranges and shooting competitions, the Rule does not approach the

core area of protection, and we find it difficult to say that the Rule substantially

burdens any protected rights. “But we need not definitively decide that applying

heightened scrutiny is unwarranted here,” Kwong, 723 F.3d at 168, because we

find that the Rule would survive even under intermediate scrutiny. Accordingly,

we proceed to assess the Rule by applying intermediate scrutiny.

      B. Application of Intermediate Scrutiny

      When applying intermediate scrutiny under the Second Amendment, “the

key question is whether the statute[] at issue [is] substantially related to the

achievement of an important governmental interest.” N.Y. State Rifle, 804 F.3d at

261 (internal quotation marks omitted).

             To survive intermediate scrutiny, the fit between the
             challenged regulation [and the government interest] need
             only be substantial, not perfect. Unlike strict scrutiny
             analysis, we need not ensure that the statute is narrowly
             tailored or the least restrictive available means to serve the
             stated governmental interest. Moreover, we have
             observed that state regulation of the right to bear arms has
             always been more robust than analogous regulation of
             other constitutional rights. So long as the defendants
             produce evidence that fairly supports their rationale, the
             laws will pass constitutional muster.




                                          30
Id. (internal quotation marks and footnotes omitted, brackets in original).12

      The Rule seeks to protect public safety and prevent crime, and “New York

has substantial, indeed compelling, governmental interests in public safety and

crime prevention.” Kachalsky, 701 F.3d at 97. “[W]hile the Second Amendment’s

core concerns are strongest inside hearth and home, states have long recognized

a countervailing and competing set of concerns with regard to handgun

ownership and use in public.” Id. at 96. “There is a longstanding tradition of

states regulating firearm possession and use in public because of the dangers

posed to public safety.” Id. at 94–95; see also U.S. v. Masciandaro, 638 F.3d 458, 470



12
  This language from New York State Rifle suggests that, under intermediate
scrutiny, as we discuss in Section I.B, the City bears the burden of showing that
the Rule passes muster. Allocating the burden of proof in this way is consistent
with the Supreme Court’s approach in other areas of constitutional law that
involve heightened, but not strict, scrutiny. See, e.g., Sorrell v. IMS Health Inc., 564
U.S. 552, 571–72 (2011) (“Under a commercial speech inquiry, it is the State’s
burden to justify its content-based law as consistent with the First
Amendment.”); United States v. Virginia, 518 U.S. 515, 533 (1996) (“The burden of
justification” in a sex-based Equal Protection challenge “rests entirely on the
State.”). In Section I.A.2, by contrast, we determined what level of scrutiny to
apply by assessing the Plaintiffs’ proffered evidence in support of their position
that the Rule substantially encumbers their core rights. That initial emphasis on
the Plaintiffs’ showing aligns with the approach that we have adopted in other
constitutional cases. See N.Y. State Rifle, 804 F.3d at 259 (“We typically require a
threshold showing to trigger heightened scrutiny of laws alleged to implicate
such constitutional contexts as takings, voting rights, and free speech.”).

                                           31
(4th Cir. 2011) (“[O]utside the home, firearm rights have always been more

limited, because public safety interests often outweigh individual interests in self-

defense.”).

      The City has presented evidence supporting its contention that the Rule

serves to protect the public safety of both license-holding and non-license-

holding citizens of New York City. In a detailed affidavit, the former

Commander of the License Division, Andrew Lunetta, discussed why taking a

licensed handgun to a second home or a shooting competition outside the City,

even under the restrictions imposed by the Rule for permitted transportation,

constitutes a potential threat to public safety. He explained that premises license

holders “are just as susceptible as anyone else to stressful situations,” including

driving situations that can lead to road rage, “crowd situations, demonstrations,

family disputes,” and other situations “where it would be better to not have the

presence of a firearm.” App. 68. Accordingly, he stated, the City has a legitimate

need to control the presence of firearms in public, especially those held by

individuals who have only a premises license, and not a carry license. He went

on to discuss how “public safety will be compromised” unless the regulations

concerning when and where premises licensees can transport their firearms “can


                                         32
be effectively monitored and enforced, and are not easily ignored or susceptible

to being violated.” Id. at 69.

      Indeed, the City produces evidence that it has, in the past, had difficulty

monitoring and enforcing the limits of the premises license. Lunetta’s affidavit

documented “abuses” that occurred when, prior to adoption of the current Rule,

the City did allow licensees to carry their handguns to shooting ranges out of the

City. “Examples included, licensees travel[]ing with loaded firearms, licensees

found with firearms nowhere near the vicinity of an authorized range, licensees

taking their firearms on airplanes, and licensees travel[]ing with their firearms

during hours where no authorized range was open.” Id. at 77. Based on these

abuses, Lunetta explained, the New York Police Department was concerned that

allowing premises licensees to transport their firearms anywhere outside of the

City for target practice or shooting competitions made it “too easy for them to

possess a licensed firearm while traveling in public, and then if discovered create

an explanation about traveling for target practice or shooting competition.” Id. at

70.

      According to Lunetta’s affidavit, the New York Police Department

concluded that officers cannot be expected to verify whether a licensee stopped


                                         33
with a firearm was, in fact, traveling to a firing range outside of the City. Based

on that specific experience, the License Division restricted the scope of the

premises license to allow for the transportation of the licensed handgun only to a

firing range within New York City (or, with the proper additional authorization,

to a designated hunting area). Lunetta explained the reasoning for the License

Division’s decision: “When target practice and shooting competitions are limited

to locations in New York City the ability to create . . . a fiction[al legal purpose] is

limited.” Id. Thus, the City asserts, limiting the geographic range in which

firearms can be carried allows the City to promote public safety by better

regulating and minimizing the instances of unlicensed transport of firearms on

city streets.

       In contrast to the City’s evidence supporting the Rule’s rationale, the

Plaintiffs have produced scant evidence demonstrating any burden placed on

their protected rights, and nothing which describes a substantial burden on those

rights. The Plaintiffs have submitted individual affidavits expressing their desire

to travel to additional locations with their handguns, and their decision not to

participate in certain shooting competitions outside of the City. But, as we have

stated, the Plaintiffs are still free to participate in those shooting competitions


                                           34
with a rented firearm, and to obtain licenses for handguns in their second homes,

and the Plaintiffs have presented no evidence indicating that this understanding

is mistaken. Additionally, the Plaintiffs present no evidence that the firing ranges

that they wish to access outside the City are significantly less expensive or more

accessible than those in the City. Even if the Plaintiffs did provide this evidence,

they would still need to demonstrate that practicing with one’s own handgun

provides better training than practicing with a rented gun of like model, and the

Plaintiffs fail to even assert this fact.

       In light of the City’s evidence that the Rule was specifically created to

protect public safety and to limit the presence of firearms, licensed only to

specific premises, on City streets, and the dearth of evidence presented by the

Plaintiffs in support of their arguments that the Rule imposes substantial burdens

on their protected rights, we find that the City has met its burden of showing a

substantial fit between the Rule and the City’s interest in promoting public

safety.

       Constitutional review of state and local gun control will often involve

difficult balancing of the individual’s constitutional right to keep and bear arms

against the states’ obligation to “prevent armed mayhem in public places.”


                                            35
Kachalsky, 701 F.3d at 96, quoting Masciandaro, 638 F.3d at 471. This is not such a

case. The City has a clear interest in protecting public safety through regulating

the possession of firearms in public, and has adduced “evidence that fairly

supports [the] rationale” behind the Rule. N.Y. State Rifle, 804 F.3d at 261

(brackets and internal quotation marks omitted). The burdens imposed by the

Rule do not substantially affect the exercise of core Second Amendment rights,

and the Rule makes a contribution to an important state interest in public safety

substantial enough to easily justify the insignificant and indirect costs it imposes

on Second Amendment interests. Accordingly, Rule 5-23 survives intermediate

scrutiny.

II.   Rule 5-23 Does Not Violate the Commerce Clause.

      The Plaintiffs next argue that Rule 5-23 violates the dormant Commerce

Clause because it hinders interstate commerce. However, the Supreme Court has

“recogniz[ed] that incidental burdens on interstate commerce may be

unavoidable when a State legislates to safeguard the health and safety of its

people.” City of Phila. v. New Jersey, 437 U.S. 617, 623–24 (1978). Our inquiry

“must be directed to determining whether [the challenged statute] is basically a

protectionist measure, or whether it can fairly be viewed as a law directed to


                                         36
legitimate local concerns, with effects upon interstate commerce that are only

incidental.” Id. at 624. We laid out the framework for this inquiry in Town of

Southold v. Town of East Hampton:

             In analyzing a challenged local law under the dormant
             Commerce Clause, we first determine whether it clearly
             discriminates against interstate commerce in favor of
             intrastate commerce, or whether it regulates
             evenhandedly with only incidental effects on interstate
             commerce. . . . We then apply the appropriate level of
             scrutiny. A law that clearly discriminates against interstate
             commerce in favor of intrastate commerce is virtually
             invalid per se and will survive only if it is demonstrably
             justified by a valid factor unrelated to economic
             protectionism. A law that only incidentally burdens
             interstate commerce is subject to the more permissive
             balancing test under Pike v. Bruce Church, Inc., 397 U.S. 137,
             142 (1970), and will be struck down if the burden imposed
             on interstate commerce clearly exceeds the putative local
             gains.

477 F.3d 38, 47 (2d Cir. 2007) (internal quotation marks and citations omitted).

      The Plaintiffs argue that the Rule discriminates against interstate

commerce by prohibiting them “from engaging in the interstate commercial

activity of traveling with their handguns to patronize firing ranges in states

beyond the borders of New York City.” Appellants’ Br. 42. “A clearly

discriminatory law may operate in three ways: (1) by discriminating against



                                          37
interstate commerce on its face; (2) by harboring a discriminatory purpose; or

(3) by discriminating in its effect.” Town of Southold, 477 F.3d at 48 (citations

omitted). In our view, the Rule does not offend in any of these ways.

      The Rule does not facially discriminate against interstate commerce, as it

does not prohibit a premises licensee from patronizing an out-of-state firing

range or going to out-of-state shooting competitions. The Plaintiffs are free to

patronize firing ranges outside of New York City, and outside of New York State;

they simply cannot do so with their premises-licensed firearm.

      The Plaintiffs also present no evidence that the purpose of the New York

City rule was to serve as a protectionist measure in favor of the City’s firing-

range industry. To the contrary, as discussed above, the Rule is designed to

protect the health and safety of the City’s residents. It is therefore directed to

legitimate local concerns, with only incidental effects upon interstate commerce.

      Finally, the Plaintiffs have not convinced us that the Rule violates the

dormant Commerce Clause by creating a discriminatory effect on interstate

commerce. We note, first, that the Plaintiffs have offered no evidence of

discriminatory effect aside from their statements that they, personally, have

“refrained from attending any shooting events with [their] handgun[s] that take


                                          38
place outside of the City of New York.” App. 33, 42, 46. They do not assert, for

example, that they have refrained from attending all shooting events outside the

City; they aver only that (in compliance with the Rule) they have refrained from

attending such events with their premises-licensed handguns.

      Even if we were to assume for the sake of argument, however, that the

Plaintiffs have offered sufficient evidence of a discriminatory effect to raise a

substantial dormant Commerce Clause question, we would nonetheless conclude

that the Rule is “demonstrably justified by a valid factor unrelated to economic

protectionism.” Town of Southold, 477 F.3d at 47. The Plaintiffs themselves offer a

useful comparison, arguing that the Rule functions in the same way as a law

requiring New York City residents to use their tennis rackets only at in-City

tennis courts. Of course, tennis rackets present none of the public safety risks that

firearms do, and against which states have a legitimate interest in protecting

themselves. See, e.g., Kachalsky, 701 F.3d at 94–95 (“There is a longstanding

tradition of states regulating firearm possession and use in public because of the

dangers posed to public safety.”). Thus, there could be no public health

justification for a law limiting the transportation of tennis rackets, whereas here

the Rule clearly focuses on minimizing the risks of gun violence and


                                          39
“prevent[ing] armed mayhem in public places.” Masciandaro, 638 F.3d at 471

(internal quotation marks omitted); see also W. Lynn Creamery, Inc. v . Healy, 512

U.S. 186, 206 n.21 (1994) (noting the “deeply rooted” distinction “between the

power of the State to shelter its people from menaces to their health or safety . . . ,

even when those dangers emanate from interstate commerce, and its lack of

power to . . . constrict the flow of such commerce for their economic advantage”);

Maine v. Taylor, 477 U.S. 131, 151 (1986). While such a justification might

theoretically be shown to be pretextual, the Plaintiffs have provided no evidence

that the true intent or function of the Rule was protectionist. Accordingly, we

conclude that the Rule does not discriminate against interstate commerce.13

      Additionally, the Plaintiffs contend that Rule 5-23 has an impermissible

extraterritorial effect because it attempts to control economic activity that is fully

outside of New York City. But Rule 5-23 does not govern extraterritorial conduct

in any way. As noted above, the Plaintiffs are free to patronize out-of-state firing



13
  The Plaintiffs have not argued that the Rule incidentally burdens interstate
commerce, which would subject the Rule to a more lenient balancing test under
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Accordingly, we do not address that
issue. Cf. Town of Southold, 477 F.3d at 49 n.2 (finding that “[d]espite counsel's
failure to elaborate upon the Pike test, the limited reference to Pike in the brief is
sufficient to allow us to give full consideration to it here.”).

                                          40
ranges and to use firearms for target practice or competitive sporting events

anywhere in the country or beyond; they simply may not transport the firearm

licensed to them for possession at a particular New York premises to such

locations. To the extent that the Rule has any effect on conduct occurring outside

the City, “[t]he mere fact that state action may have repercussions beyond state

lines is of no judicial significance so long as the action is not within that domain

which the Constitution forbids.” Osborn v. Ozlin, 310 U.S. 53, 62 (1940). An

ordinance may be unconstitutional when it regulates commerce that takes place

fully outside its borders. See Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989). But

“the Commerce Clause’s ban on extraterritorial regulation must be applied

carefully so as not to invalidate many state laws that have permissible

extraterritorial effects.” Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 68 n.19 (2d

Cir. 2010). Here, the Rule directly governs only activity within New York City, in

order to protect the safety of the City’s residents. Any extraterritorial impact is

incidental to this purpose and thus “is of no judicial significance.” Osborn, 310

U.S. at 62.




                                           41
III.   Rule 5-23 Does Not Violate the Right to Travel.

       The Plaintiffs next invoke the constitutional right to travel interstate. “The

constitutional right to travel from one State to another, and necessarily to use the

highways and other instrumentalities of interstate commerce in doing so,

occupies a position fundamental to the concept of our Federal Union. It is a right

that has been firmly established and repeatedly recognized.” United States v.

Guest, 383 U.S. 745, 757 (1966). This Court has “acknowledge[d] a correlative

constitutional right to travel within a state.” King v. New Rochelle Mun. Hous.

Auth., 442 F.2d 646, 648 (2d Cir. 1971). However, that local regulations “[m]erely

hav[e] an effect on travel is not sufficient to raise an issue of constitutional

dimension.” Soto-Lopez v. N.Y.C. Civil Serv. Comm’n, 755 F.2d 266, 278 (2d Cir.

1985). The constitutional right is implicated only when the statute “actually

deters such travel, or when impedance of travel is its primary objective, or when

it uses any classification which serves to penalize the exercise of that right.” Id. at

279 (internal quotation marks and citations omitted) (emphasis in original).

       The Plaintiffs’ right to travel argument fails for much the same reasons as

does their parallel invocation of the dormant Commerce Clause. Nothing in the

Rule prevents the Plaintiffs from engaging in intrastate or interstate travel as they


                                           42
wish. The Plaintiffs may go where they like, and in particular may attend and

participate in shooting tournaments or similar events held outside the City of

New York. The regulation concerns only their ability to remove the specific

handgun licensed to their residences from the premises for which they hold the

license. The Constitution protects the right to travel, not the right to travel armed.

      The Rule was not designed to impede interstate travel and the history

behind it “demonstrates that its purpose was not to impede travel but to protect

the welfare of [city] residents.” Town of Southold, 477 F.3d at 54. Nor does the Rule

impose a significant disincentive to travel, any more than any other regulation

that limits the possession in one jurisdiction of items that may be more broadly

permitted in another. Any incidental impact on travel does not create a

constitutional violation because “[i]f every infringement on interstate travel

violates the traveler’s fundamental constitutional rights, any governmental act

that limits the ability to travel interstate, such as placing a traffic light before an

interstate bridge, would raise a constitutional issue.” Id. State and local

regulations that have an indirect effect on some travel impose merely “minor

restrictions on travel [that] simply do not amount to the denial of a fundamental

right.” Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 258 (2d Cir. 2013).


                                           43
IV.   Rule 5-23 Does Not Violate the First Amendment.

      The Plaintiffs argue that the Rule violates their First Amendment right to

expressive association by (1) curtailing their ability to join the gun club of their

choice and (2) forcing them to join a gun club in New York City. We disagree.

      The Plaintiffs fail to demonstrate how the ability to join a specific gun club,

or the ability to transport their licensed firearms to a shooting club outside of

New York City, qualifies as expressive association. “The Constitution does not

recognize a generalized right of social association. The right generally will not

apply, for example, to business relationships; chance encounters in dance halls;

or paid rendezvous with escorts.” Sanitation & Recycling Indus., Inc. v. City of New

York, 107 F.3d 985, 996 (2d Cir. 1997) (citations omitted). “It is possible to find

some kernel of expression in almost every activity a person undertakes – for

example, walking down the street or meeting one’s friends at a shopping mall –

but such a kernel is not sufficient to bring the activity within the protection of the

First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). “Typically a

person possessing a gun has no intent to convey a particular message, nor is any

particular message likely to be understood by those who view it.” Nordyke v.

King, 319 F.3d 1185, 1190 (9th Cir. 2003). The Plaintiffs fail to identify what


                                          44
expressive activity they would engage in with their guns and argue instead that

they seek “participation in recreational and competitive shooting events.”

Appellants’ Br. 51. Gathering with others for a purely social and recreational

activity, whether it is dancing, Sanitation & Recycling Indus., 107 F.3d at 996, or

shooting guns, does not constitute expressive association under the First

Amendment. Accordingly, the ability to join a specific gun club is not protected

association under the First Amendment.

      Even if we were to assume that engaging in firearms training or

competition qualifies as expressive association, as repeatedly discussed above,

the Plaintiffs are not prevented from engaging in such activities, wherever or

with whomever they choose to do so.

      First, nothing in the Rule forbids the Plaintiffs from joining and associating

with gun clubs outside the City. The Plaintiffs claim that the Rule “impedes their

right to associate with whom they choose,”Appellants’ Br. 50, but the Rule does

nothing of the sort. The Plaintiffs remain free to associate with whomever they

choose. They may join any club they like outside of New York City. To the extent

that the gun clubs the Plaintiffs wish to join “take positions on public questions

or perform any of the other similar activities” characteristic of expressive


                                          45
association, City of Dallas, 490 U.S. at 25 (internal quotation marks omitted), the

Plaintiffs are not inhibited from joining in those activities. The Rule limits only

their ability to carry the handgun that is licensed for a specific premises outside

of those premises.

      The Plaintiffs also contend that the Rule constitutes “forced association”

because it “effectively coerce[s]” them to join clubs that they “may prefer not to

join.” Appellants’ Br. 51. That “effective” coercion is not coercion at all: the Rule

does not require the Plaintiffs to join a gun club in New York City. The licensing

scheme does not require the Plaintiffs to complete firearms training, and even if it

did, they have access to Olinville Arms, which is open to the public, and the

Richmond Boro Gun Club, which is available to non-members for weekly

shooting competitions.

      Regardless, the Plaintiffs are incorrect that there is any constitutional injury

at stake in the question of “membership” in a firing range or gun club. As noted

above, the Plaintiffs have not demonstrated that their firearms training is

expressive association, and actually concede that it is recreational activity.

Moreover, the decision of whether to charge a membership fee or a fee based on

hourly usage is a business decision of the club or range. The Plaintiffs have


                                          46
offered no evidence that the firing ranges in New York City that structure

themselves as clubs requiring “membership” either engage in (or require their

members to engage in) expressive activity of any kind, let alone activity to which

the Plaintiffs object. Nor have the Plaintiffs shown that these ranges have selected

their particular fee structures as a byproduct of the Rule, or that their fee

structures reflect any ideological or expressive content to which the Plaintiffs, by

utilizing the range, can be taken as assenting.

      Accordingly, the Rule does not violate the First Amendment.




                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s judgment.




                                          47
