More than fifteen years after the Heller decision, places like New York City still treat the Second Amendment like the bastard stepchild of the Constitution, and the right to keep and bear arms as a privilege to be doled out by the state.
In NYC, that includes requiring people who want to keep a gun in the home or carry one on the street to have a permit; a piece of paper that costs hundreds of dollars and often years of time to obtain. The city's draconian gun laws aren't stopping criminals from illegally carrying guns around, but they're undoubtably having a chilling effect on lawful gun owners. They're also entrapping residents who may not understand that exercising your Second Amendment rights in the five boroughs comes with a mountain of paperwork and needless regulations that come with serious criminal penalties if not followed to the letter of the law.
Enter Charles Foehner. The 67-year old New Yorker pleaded guilty on Thursday to one count of criminal weapons possession for having an unpermited revolver that he used in self-defense against a would-be mugger back in June, 2023.
The Queens District Attorney’s Office chose not to prosecute Foehner, a retired doorman, for Gonzalez’s killing after he told cops that he’d defended himself from a mugger who lunged at him late at night holding what looked like a knife — but which turned out to be a pen.
But prosecutors slapped Foehner with a slew of weapons raps for the unlicensed handgun and for an arsenal of illicit handguns, revolvers and rifles inside his home in the quiet neighborhood.
In New York, simple possession of an unlicensed firearm is a considered a violent felony. And though we hear stories all the time about repeat offenders being let loose with a slap on the wrist in the Big Apple, in Foehner's case it looks like Queens D.A. Melinda Katz decided to make an example out him by sentencing him to four years in prison.
Foehner took the plea deal to avoid a trial, where he faced 25 years in prison on gun charges that are not hard to prove, said his attorney Thomas Kenniff after Thursday’s hearing in Queens Supreme Court.
Kenniff called Foehner a “hero” who was put in an “impossible position” by what he called “draconian” Big Apple gun laws that make it difficult for “law-abiding citizens” to obtain permits to carry firearms.
“If this was a state and a city that had its affairs in order, Mr. Foehner would be getting a plaque, not a prison sentence,” Kenniff told reporters on the courthouse steps.
Lawmakers in New York City and Albany have “repeatedly frustrated the rights of law-abiding Americans, New Yorkers, that possess firearms,” added the attorney, who is best known for successfully defending Marine veteran Daniel Penny from charges of fatally choking a homeless man who threatened subway passengers in May 2023.
“If we respected people’s constitutional right, and provided practical means for citizens to exercise that right, Mr. Foehner would not be in the position he is in today,” Kenniff added.
The one small bit of good news that Foehner received on Thursday is that he doesn't have to report to prison until after he's officially sentenced on January 14th, and the judge ruled that he can remain free until then over the objections of prosecutors in Katz's office. Foehner can celebrate the holidays with his wife and loved ones, but come the new year he'll be locked up for exercising a fundamental civil right without explicit permission from the government.
In a press release following Foehner's plea, the Citizens Committee for the Right to Keep and Bear Arms (where I serve as an unpaid board member) declared it was "appalled" by the prosecution of the armed citizen and the sentence that was handed down.
“We agree wholeheartedly with attorney Thomas Kenniff’s assessment of New York’s gun laws,” said CCRKBA Chairman Alan Gottlieb. “Almost everywhere else in the country, Mr. Foehner would be getting accolades for defending himself against a guy with Gonzalez’ criminal record, but in New York, he’s getting four years in prison. Queens prosecutors should be ashamed of themselves for using New York’s despicable gun laws to imprison a man who was defending himself from a thug who had at least 15 arrests in his background, along with a record of mental illness.
“Apparently in New York City,” he continued, “it’s more important to allow dangerous repeat offenders to roam the streets, while putting good people behind bars. We have seen this repeatedly in the Big Apple, with cases such as the one against subway hero Daniel Penny two years ago.”
There's Penny's case, but there's also Dexter Taylor, who's currently sitting in a maximum security prison in upstate New York for the "crime" of making his own firearms at home and not registering them with the NYPD. Heck the amicus brief filed in Bruen by Black Attorneys of Legal Aid, Bronx Defenders, Brooklyn Defender Services, and other public defenders is full of abuses of our right to keep and bear arms.
Sadly, those abuses haven't stopped since Bruen. Though the NYPD has now issued more than 17,000 carry permits since the city's "may issue" permitting regime was struck down in June, 2022, they still have a backlog of about 8,000 cases. Applicants routinely have to wait a year or more to be approved, and the ridiculous process of applying for a permit, which includes paying almost $500 in fees and having to sit for an in person interview in addition to taking a 16-hour training course and submitting to a host of other regulations, has kept countless residents from even bothering to apply in the first place.
We don't know why Foehner didn't have a permit to carry, but odds are that even if he'd applied for one in June, 2022 there's a good chance we wouldn't have been approved by June, 2023, when he acted in lawful self-defense. That didn't matter in the Queens courtroom where Foehner was sentenced, but it should matter in the court of public opinion. Kennif is right that if New York City treated the Second Amendment as a real right then Foehner wouldn't be heading off to prison, and this case is just another demonstration of how much work we still have to do before the right to keep and bear arms truly exists in anti-gun jurisdictions like New York City.
Editor's Note: Gun controlling politicians like New York Gov. Kathy Hochul and incoming NYC Mayor Zohran Mamdani will stop at nothing to enact their anti-2A agenda and strip us of our Second Amendment rights.
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