Why NY Public Defenders Are Siding With The Second Amendment

We don’t know for certain how the Supreme Court will rule when it issues its decision in New York State Rifle & Pistol Association v. Bruen sometime next year, but the conventional wisdom from Court watchers after last week’s oral arguments is that New York’s “may issue” carry law isn’t likely to be upheld. One of the main arguments raised by the state is that the right to keep and bear arms should be based, not only on the ability to demonstrate a special need, but that the right should be restricted based on population density. New York Solicitor General Barbara Underwood acknowledged that rural residents are more likely to obtain an unrestricted carry license compared to the average resident of New York City, but never could explain what other rights we possess as American citizens that are largely curtailed if we live in urban areas.

This is an issue that’s near and dear to the heart of several public defenders in New York, who teamed up and authored an amicus brief in support of the plaintiffs’ lawsuit and passionately arguing that the Second Amendment rights of New Yorkers aren’t just being violated on a daily basis, but that the criminalization of the right to bear arms has put many of their clients in prison for the “violent” felony of carrying a gun without a government-issued permission slip.

Now three of those public defenders are shedding some light on why they got involved in the case and just how egregiously awful New York’s laws really are. A tip of the hat to reader Charlie Monsanto for letting me know about the interview with Avanish Samarth Michael Thomas, and Christopher Smith at the journal Inquest, because there’s so much good stuff there it was worth devoting an entire Bearing Arms’ Cam & Co to talk about what the trio had so say; starting with the trip that opened their eyes about how the rest of the country treats the right to bear arms.

Michael: This effort within The Bronx Defenders really took off because our colleague Christopher Smith had gone down to Texas, and observed firsthand just how just commonplace it was for folks to have weapons, to have guns, and for no one to bat an eyelash. His experience directly contrasted with our experience as public defenders in New York City, where we are seeing people engage in the exact same conduct and end up on Rikers Island. These are our mostly Black and brown clients who get wrapped up in the system — sent to Rikers, sent upstate, sent to prison over something that somewhere else, nothing would happen.

Chris: Texas was really surprising to me. The culture is so different. That is when I really saw that this particular right exists in two different worlds in our country.

To be fair, the problem is that the Second Amendment doesn’t exist as a right in New York. Instead, the state starts with the basic premise that no one can bear arms in self-defense, and carves out exceptions for those few individuals that have demonstrated a special need that places them above the average citizen. As Samarth makes clear, the Second Amendment isn’t even an afterthought in most New York City courtrooms. Instead, it’s a punchline.

Avi: It was also an opportunity to talk to a group of nine judges who have controlling authority on our courts, but who aren’t all cut from the same cultural cloth as New Yorkers. That presents a unique opportunity for us to potentially get an outcome or a rule that we would never in a million years get anywhere close to getting in our usual practice in New York City. I mean, if you mention the Second Amendment in a New York City criminal courtroom, people will literally laugh. It’s totally irrelevant to the way law is practiced here. So this was a unique opportunity to speak to a larger audience that isn’t just people in New York City or people in this very small subset of the New York City legal community. We wanted to take that opportunity.

I’m glad they did. In fact, I wouldn’t be surprised to see their amicus brief cited in the majority opinion, especially since they have demonstrated so clearly the harm that is done to the victims of the state’s unconscionable restrictions on the right to bear arms. The personal stories of clients they’ve represented comprise a major portion of the public defenders brief, but Samarth and his colleagues also took pains to document the undeniable fact that with law enforcement given such sweeping and subjective power to decide who gets to bear arms in self-defense, abuses within the system are common. Sometimes it’s just a matter of knowing the right people, but we’ve also seen scandals involving bribes to members of the New York Police Department Licensing Bureau in recent years. “May issue” actually fuels graft and corruption, as well as double standards.

With respect to the legal arguments, under whatever level of scrutiny you use, what is happening in New York cannot possibly be consistent with a constitutional right. There are no other constitutional rights for which the government gets to decide, in its own discretion, whether you get to exercise it at all. Even rights that might create challenges or even cause harm, like free speech.

But for some reason with the Second Amendment, New York has total discretion over whether you can possess a firearm at all, anywhere. And all of the problems one would expect with that kind of discretion, in fact, exist. In New York City, the New York Police Department is the institution that decides whether or not you can lawfully possess a firearm. So, the decision of whether or not you have a constitutional right is left to the unfettered discretion of an incredibly biased police organization. That seems problematic, to say the least. Unsurprisingly, the result of this structure is that a bunch of people on Staten Island—where a lot of police officers live—have firearm licenses and few other people do. Police officers are able to easily get a firearm license after they retire. And in fact, as a matter of course, they get something called a “good guy letter” so that they can breeze through the application process with pre-approval of being what they call a “good guy.” None of this can possibly be consistent with a constitutional right generally held by everyone.

There are other problems. You have to pay fees in order to get this license. And you have to subject yourself to the government’s eyes. For so many people in New York City, the government is constantly preying on them. Imagine: the local police precinct’s officers are stopping and harassing you, and frisking you, and all of your friends and your family, every single day of your life. And then, in order to exercise a constitutional right, you have to go to those same officers voluntarily and give them not only your physical presence, but also very sensitive and private information about who you are, where you live and work, and the names of people with whom you associate. This is a totally prohibitive barrier for a lot of people when they want to exercise a constitutional right. In other contexts, like the First Amendment, we would never stand for such a thing.

Samarth is spot on because unlike the state of New York, he’s viewing the Second Amendment as a right of co-equal importance to all the others found in the Constitution instead of as a privilege of the favored few. Do yourself a favor and read the entire interview with the public defenders when you have a few minutes. It’s a decently long read, but its so great to see such well-reasoned support for the right to keep and bear arms coming from anyone in New York City, much less from the public defenders who’ve seen firsthand how the law works, and how it’s failed.

Nov 26, 2021 10:30 AM ET