Posts Tagged ‘strict scrutiny’

Is New York City’s Gun Law Unconstitutional?

Thursday, December 23rd, 2010

The short answer is yes.  Yes, it is.

One of the lovely ironies of criminal defense is that most of the things we fight for are conservative values — individual liberties, constitutional rights, defending actual people from the insane might of the State — even though the defense attorneys themselves tend to be fairly liberal.

Needless to say, gun control is a wedge issue on which conservatives and liberals in this country tend to have strong, and strongly divergent, views.  Our own personal position on gun control is that it’s best to use two hands when aiming, take your time, and hold your breath while smoothly squeezing the trigger.  But only a fool would claim that public safety is not a legitimate governmental concern.  If anything, it is the number-one job of government at every level.  And only a fool would claim that guns do not affect public safety.  There is certainly some legitimate scope of governmental involvement in who gets to own a gun, and how you’re allowed to use it.

But New York State, and the City of New York, do it wrong.  And in light of the recent Second Amendment decisions by the U.S. Supreme Court, it is now clear that their restrictions are unconstitutional.

We’ve got a case pending where this has become the key issue.  As always, briefing it for the court really forced us to go deep into the competing policies and laws, the history and precedent that got us here.  It’s one of the things that we absolutely love about being a lawyer.  We’re not going to go into any of that here, however.  Instead, we’re just going to focus on the basics.

First of all, gun possession is presumptively illegal here.  There are only narrow exceptions where someone might get a license to own one.  Just applying for the license is prohibitively expensive and takes a very long time.  The licensing decision is purely at the discretion of a bureaucrat, who also has complete discretion to revoke the license later.  A statistically insignificant number of licenses actually get granted.  Of the few licenses that are granted, the vast majority are extremely limited in scope.  And even with a license, one’s gun must be kept disassembled or locked up, with any ammunition stored separately.  Except when  the weapon is actually in one’s grasp, it must be rendered inoperable.  There’s also a presumptive ban on ammunition.

These laws effectively ban gun possession for all but a few people and the police.  To date, New York’s courts have justified this by saying it’s only a privilege to bear arms, and not a right.  So the licensing scheme is perfectly within the state’s authority.  And any review of decisions made by licensing authorities is limited to an arbitrary-and-capricious, abuse-of-discretion analysis.  In other words, you can’t have a gun, and there’s nothing you can do about it.

At the end of the ’08 term, the Supremes issued their decision in (more…)