One of the most powerful amicus briefs in support of the challenge to New York’s “may issue” permits to carry a firearm was written by a group of public defenders in New York, who documented in detail how the state’s restrictive gun laws have a disproportionate effect on their clients, many of them non-White and lower-income residents who are far more likely to both be arrested and sent to prison for the “violent felony” of carrying a firearm without a license that the average citizen can’t obtain in many parts of the state.
Now, ahead of Wednesday’s oral arguments, several of these public defenders have written another powerful argument arguing that the laws in question should be struck down. At SCOTUSblog (which has no official affiliation with the Supreme Court, it should be noted) attorneys Avinash Samarth, Aimee Carlisle, Christopher Smith, Michael Thomas, and Meghna Philip declare that the state’s Sullivan Act eviscerates the right to bear arms.
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.
… 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.
What these public defenders so eloquently point out is the human cost of gun control; the thousands of individuals who have been labeled violent felons for merely carrying a firearm without a permit, the lives that have been ruined because the state refuses to recognize their right to bear arms in self-defense and instead treats it as a privilege to be subjectively and arbitrarily granted based on the whims and personal preferences of a judge or county sheriff.
These laws are supposed to save lives, which is why the State claims they’re worth it even if they do infringe on the rights of New Yorkers. Yet New York City’s homicide rate climbed 44% last year, and shootings were up 97%. Other cities like Rochester (where Mayor Lovely Warren was recently allowed to plea bargain her own illegal gun possession charge away and avoid prison, and Buffalo are on pace to see new highs in the number of recorded murders. Real violent criminals don’t care at all about violating New York’s carry laws, but the vast majority of us have no interest in becoming a “violent” felon if we’re caught carrying a firearm in self-defense. And those people who live in high-crime neighborhoods who want to protect themselves face the most difficult choice of all. They’re not only more likely than someone in a rural or suburban area to be the victim of violent crime, but they’re also more likely to be stopped and searched by police for simply being in a bad neighborhood. Is it better to be judged by twelve or carried by six? And more importantly, how can it be constitutional to force that choice on someone in a country that protects the right to bear arms in self-defense?
