Symposium

We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights.

This article is part of a symposium on the upcoming argument in New York State Rifle & Pistol Association v. Bruen. A preview of the case is here.

The authors are public defenders in New York City.

When Jose was 22 years old, a stranger slashed his 16-year-old brother across the face on the way home from school. One year later, police stopped and frisked Jose on the street after they claimed to smell marijuana and see Jose move “furtively.” They didn’t find any marijuana, but they did find a pistol. When the police arrested Jose, he protested. He told them what happened to his brother, that he did not intend to harm anyone, and that he had a Second Amendment right to protect himself and his family. Nonetheless, New York prosecutors charged Jose with second-degree criminal possession of a weapon, a “violent felony” that applies to virtually all simple firearm possession cases in New York, both outside and inside the home. Faced with a 3.5-year mandatory minimum prison sentence, Jose pled to a lesser charge. His sentence was one year on Rikers Island — a “good deal” for simple firearm possession in New York City. For exercising a constitutional right, Jose is now a so-called violent felon.

As we argued in an amicus brief, we hope New York State Rifle & Pistol Association v. Bruen ends prosecutions like Jose’s. In District of Columbia v. Heller and McDonald v. City of Chicago, the court recognized a constitutional right to possess a firearm in self-defense. Despite those decisions, that right has been a myth for our clients. New York law says that if someone does not first obtain a government license, then they have no Second Amendment right anywhere, both outside and in their own home. That licensing requirement is the key to New York’s ban on firearm possession: It is a pretext whose true purpose is to make firearm possession unlawful. For our clients, it makes the Second Amendment a legal fiction.

In New York State Rifle, however, the court could finally enforce the Second Amendment by invalidating New York’s pretextual licensing regime. The constitutional problems are clear. In New York City, where we practice, the licensing structure allocates total and unilateral discretion to the NYPD to decide whose firearm possession is lawful and whose is a “violent felony.” It charges hefty fees, disproportionately burdening indigent people. And it results in a wildly disparate allocation of licenses, unsurprisingly favoring people who are associated with the police. No part of this gatekeeping structure is consonant with a fundamental constitutional right.

But the problems don’t end there: New York also aggressively and specifically targets Black and Latinx people for firearm possession under the pretext that their possession is unlicensed. As former Mayor Michael Bloomberg explained, the city believes that racially disparate approach is justified. As a result, virtually all — about 96% — of the people arrested by the NYPD for simple firearm possession are Black or Latinx. Thus, while white people throughout the nation amass firearm arsenals even as hobbies, Black and Latinx New Yorkers are arrested, prosecuted, and imprisoned for simply possessing a single pistol for self-defense. 

In firearm-possession cases, New York’s penal law sweeps broadly. If a firearm is not literally loaded, but ammunition is “possessed … at the same time,” the penal law defines the firearm as “loaded,” anyway. If a firearm is located anywhere in a car other than “upon [a] person,” the penal law presumes that “all persons” in the car possess it. And if a person possesses a firearm without a license, the penal law presumes they possessed it with the “intent to use [it] unlawfully against another.” These broad laws make every simple possession case a “violent felony,” even reaching people who did not actually intend to possess a loaded firearm at all.

New York’s system runs in the name of safety, but simply making firearm possession unlawful is not itself safe. The license requirement damages real people forever. Our clients are psychologically traumatized and physically threatened by police invading their homes executing search warrants. They are caged pretrial at Rikers in what is now acknowledged to be a humanitarian crisis. They lose their jobs, children, and immigration status, risking increased ICE enforcement. They are sent to prison. And they are forever branded as “criminals,” or worse, “violent felons.” The victims of this system include Victor Mercado, whom police arrested this summer after they allegedly found a handgun in his car. Unable to pay the $100,000 bail that a Bronx judge set, Mercado contracted COVID-19 at Rikers. Last week, he died.

Contrary to the argument of the NAACP Legal Defense & Educational Fund, which cites Whren v. United States as support, New York’s disrespect for our clients’ Second Amendment rights would not be solved with mere selective-enforcement claims. As Judge Howard Levine observed in dissent when the New York Court of Appeals upheld pretextual racist traffic stops, selective enforcement is notoriously “difficult, if not impossible, to prove.” Scholars widely agree.

Instead, the Supreme Court must invalidate New York’s licensing requirement, so that the state can no longer pretextually violate its people’s constitutional right to keep and bear arms. In Heller and McDonald, the court held that all “the people” have the right to keep and bear arms in self-defense. Our clients routinely tell us why they possessed or carried a firearm: for self-defense. A study from the Center for Court Innovation confirmed the same. In interviews with 330 young people in New York City, it concluded:

Our data reveal that the youth in our study were mostly carrying to increase their feelings of safety. Many had been shot or shot at, attacked physically with non-firearm weapon, or had someone close to them shot.

However, because of New York’s licensing requirement, none of this is legally relevant: Everyone who possessed a firearm for self-defense, but without a license, is a “violent felon.” That does not square with a constitutional right to keep and bear arms for self-defense.

We hope that in New York State Rifle, the court invalidates New York’s licensing regime, finally forcing New York to recognize our clients’ Second Amendment rights. Like people in other states that properly recognize the Second Amendment, Jose and Mercado also had that right. They did not deserve to be punished for exercising it.