Via Eugene Volokh, a Suffolk County judge raises the dreaded specter of Heller in passing on an Article 78 Petition in Colaiacovo v. Dormer.  The petitioner came to the attention of the Suffolk County Police as a result of his wife having taken his licensed gun, left at home without being placed in a locked safe or otherwise rendered inoperable.  This not being bad enough, they sought to revoke his permit.

Colaiacovo challenged the revocation, and the County subsequently modified it by allowing him to keep the gun at home, but revoking his “sportsman” endorsement which allowed him to carry it outside the home.  He challenged this as well, upon the basis that the underlying predicate conduct, having the weapon at home in available and operable condition, was consistent with his Second Amendment rights per Heller.

The Court held:

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

As Eugene points out, Acting Supreme Court Justice Gary Weber has jumped over a few details in his discussion.  The first, and most obvious, hole is whether the Heller decision applies to the states via incorporation through the 14th Amendment.   While this may not be a major stretch, no one has as yet decided this piece, and Justice Weber seems to simply assume it’s a done-deal.  It may well be one day, but these are the sorts of decisions judges need to make before they apply federal constitutional decisions to state conduct.

Second, Justice Weber appears to toss the question back to the police department to consider what, if any, limitations may properly be placed on a gun in a home.  While he concludes that New York can no longer require that a gun be locked up or made inoperable, his remand suggests that there could be other things are can be constitutionally required.  What those things might be is unclear.

What’s quite peculiar about this decision is that Justice Weber isn’t kicking the issue back a court (in New York, the Supreme Court is the lowest level state trial court), but to the administrative agency that makes the initial determination, the Suffolk County Police Department’s Handgun Licensing Officer.  Since when would a decision about the constitutional acceptability of limits on the Second Amendment be left to a police department licensing officer? 

If I were a betting man, it wasn’t Justice Weber’s purpose to place the onus on the Police Department to decide what, if any, limits can be placed on a handgun in a home, but rather to give the PD the chance to reverse its prior decision so that there won’t be a decision reversing them.  They don’t like to reverse the police department in Suffolk County.  It’s unseemly.

But I similarly doubt that Justice Weber considered the significance of the wording of his remand order either.  Had he done so, he would have realized that it was his place, and not the cops, to make a ruling on whether there were any other constitutionally acceptable limits to be placed on a gun in the home.  Heller, assuming it was incorporated, was clear on this one point, if little else.  If it’s a normal handgun, then a citizen has the right to possess it in an operable condition within the home for self-defense.  To compel the citizen to keep it locked away, inoperable or otherwise unavailable or useless for the purpose of defending one’s home would render the extremely limited right worthless.  A gun you can’t use isn’t good for much.

While this decision leaves a few things to be desired in its analysis of Heller, and a few gaping holes that would have better been filled, at least it reflects recognition by a court that the right exists.  It’s a start.