One of the most powerful amicus briefs filed in the Bruen case came from a group of public defenders in New York, who pointed out the racial disparities in arrests for the “violent” crime of simply carrying a gun without a carry license as well as the clearly unconstitutional nature of New York’s “may issue” permitting scheme. So it shouldn’t come as a shock that public defenders have been citing the Supreme Court’s decision in Bruen in recent cases; arguing that their clients are facing charges for trying to exercise a civil right.
In motions filed in three separate cases on July 15, public defenders with the Legal Aid Society in Brooklyn asked judges to dismiss gun possession cases against their clients, arguing that in New York State Rifle & Pistol Association, Inc. v. Bruen the U.S. Supreme Court made “no distinction” between the unconstitutionality of the state’s gun licensing standards and the penal laws against carrying guns without a permit.
“The Second Amendment demands this Court’s ‘unqualified deference’ and is ‘not a second-class right,’” the boilerplate motions declare, pointing to the high court’s evisceration of “Sullivan’s Law,” a 1911 New York gun permit statute. “The Supreme Court has already ruled that New York’s Sullivan Law is unconstitutional, and the crimes alleged here are part of that law.”
Those three cases are still pending. THE CITY also identified four similar motions by other defense attorneys in gun cases in Manhattan and the Bronx, which judges have rejected.
In a statement, Tina Luongo, chief attorney of the Criminal Defense Practice at the Legal Aid Society, stood by the organization’s full court press.
“As we have always done, we will advance all valid and available legal arguments in defense of our clients and continue to urge policymakers to focus on real solutions to gun violence, which lie outside of the criminal legal system,” Luongo said.
Luongo is right that these cases involve individuals arrested and charged for violating New York’s Sullivan Act, and the Supreme Court did throw out the law’s “good cause” requirement because it’s unconstitutional, but so far that argument hasn’t swayed any judges. In fact, as the website The City reports, one private defense attorney who raised a similar challenge in his client’s case had his argument rejected by a Manhattan judge.
“Defendant misreads Bruen as eviscerating the police powers of the State to address criminality, or as applying to anyone other than law-abiding citizens,” wrote Judge Robert Mandelbaum.“Failing to seek a license before roaming the streets with a loaded firearm is not abiding by the law, and nothing in the Second Amendment requires that it be tolerated. The Constitution is not a suicide pact. The motion to dismiss is denied.”
I wonder if the judge would have ruled differently if this individual had applied for a carry permit but had been rejected because the NYPD found he didn’t have “good cause”.
Of course, one of the reasons why the number of applicants for a NYC carry license has been so low is that there’s been a general expectation that average citizens will be denied. Couple that with the fact that the application fee is a whopping $340 and it becomes clear that New York City has disincentivized applying for a carry permit and has artificially depressed the number of applicants in any given year.
That probably won’t matter to any anti-gun judges intent on minimizing the impact of the Supreme Court’s decision in Bruen, but I’m glad to see these public defenders try to make their case. Unfortunately for these attorneys and their future clients, New York’s gun control laws are still so restrictive and facially unconstitutional that there are going to be plenty of opportunities to raise this argument in the future, and plenty of defendants sentenced to years in prison for the “violent” felony of bearing arms without a government permission slip.