Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
On Thursday, September 14, the New York Court of Appeals (the highest State court) will hear the appeals from six unrelated gun cases.
The defendants in each case were convicted of criminal possession of a weapon in the second degree which criminalizes possession of a loaded firearm outside of one’s home or place of business. In each case, the defendants each appeared to hold valid handgun permit that was limited in scope to the home and had sought an unrestricted permit. The defendants contend that U.S. Supreme Court’s June 2022 Bruen case clearly rendered the statute under which they were convicted unconstitutional.
In Bruen, the Supreme Court reiterated that its 2008 Heller decision and its 2010 McDonald decision recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In Bruen, all sides agreed that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. The dispute raised in Bruen was that while 43 States issue licenses to carry handguns unless, based on objective criteria, certain defined criteria are not met. Six States and D.C., including New York, conditions issuance of a license to carry on a citizen’s showing of “proper cause” to issue a permit for possession of a firearm outside the home. The burden is on the applicant for the permit to show there is proper cause – placing a burden on the applicant to exercise a right granted by the Constitution. To compound the burden, no New York statute defines “proper cause”, making it a standardless standard. The Supreme Court held that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.
The State Attorney General intervened in all six cases to defend the constitutionality of the statute. The AG argues, “In Bruen, the Supreme Court struck down only one provision of New York’s firearms licensing scheme: the requirement that a person applying for a license to carry a concealed firearm in public for self-defense must show ‘proper cause,’ interpreted to mean a special need for self-protection distinguishable from that of the general community.”
This has little to do with gun violence. There is no licensing of most rifles and shotguns. Convicted felons and those with mental disabilities may still be barred from receiving permits. Since by definition criminals don’t obey the law, licensing will have limited effect on criminals, criminals won’t bother to apply for a pistol permit. Instead, it puts limits on law abiding citizens.
My crystal ball says that the New York Court will uphold the convictions for several reasons: (1) the court has been politicized since the refusal to confirm the appointment of the Chief Judge selected by Governor Hochul, threatening no reappointment for those who disappoint the Legislature; (2) knowing this case will go to the U.S Supreme Court, it can shift the weight of any decision to them and avoid any political controversy; and (3) given the political climate in New York despite the increase in street crime, there is a strong hoplophobic bias especially in New York City.
You can watch the oral argument once it is posted (probably on September 18).
