Those of us who paid close attention to the NYSRPA v. Bruen case are aware of some impactful amicus briefs, such as the ones submitted by the National African American Gun Association (NAAGA), Pinks Pistols, Independent Women’s Law Center, Italo-American Jurists, and the Black Attorneys of Legal Aid and other Public. These briefs stand out because they come from groups that are traditionally not associated with gun ownership.
Each one of us those amicus briefs emphasized why gun rights are important for minorities – armed minorities are, after all, harder to oppress.
Another very important point that those amicus briefs pointed out was that any discretionary permitting scheme is bound to be stacked against minorities. Infact, the New York Sullivan Law that was struck down by NYSRPA v. Bruen was based on pure anti-Italian bias, and in the long-run, applied against blacks, Puerto Ricans, and other minorities in New York City.
Now, in light of the Supreme Court’s decision demolishing corrupt, discretionary permitting regimes, three attorneys at the Bronx Defenders, a nonprofit that represents indigent clients, have published an op-ed at the Washington Post:
Opinion The Supreme Court’s gun ruling was a victory over racist policing
When the Supreme Court last week struck down a long-standing New York law placing strict limits on carrying guns in public, the response from many was centered on the false dichotomy of gun rights vs. public safety and barely acknowledged the effect the decision could have on mass incarceration.
Leading Second Amendment scholars agreed that New York’s law needed to be struck down because of the law’s racist impact.
In our brief, we shared stories of clients who made the personal choice to carry a firearm for self-defense. Of police ransacking cars to look for guns and frisking people on the streets. Of people who were arrested, couldn’t afford bail and languished at Rikers Island, one of the most dangerous jails in the country.
Because possession of an unlicensed, loaded firearm is a “violent felony” under New York law, people with no criminal record who are convicted face a mandatory minimum sentence of 3½ years in prison; the maximum is 15 years. They can lose their jobs, their housing, their children and, if they are not citizens, their right to live in the United States. All for carrying a gun without ever threatening anyone or pulling the trigger — conduct that in many states is not a crime at all.
Further, New York gun laws extend broadly. For example, a gun can be considered “loaded,” triggering higher sentences, even when it is not — for example if ammunition is not in the gun itself but instead is somewhere in the same room, even buried in a closet. If a firearm is in a car, the government regularly charges every person in the car for possessing that firearm, even when one person admits the gun was theirs. Ask yourself: The last time a friend gave you a ride, did you search the car for guns? Should you face a 3½-year mandatory minimum prison sentence if you didn’t?
The law, as written, is applied against minorities. They are targeted with serious crimes for simply carrying a gun for self-defense, often in dangerous neighborhoods, without a government permission slip, in large part because the State had made the process of getting said slip practically impossible without wealth, power, connections, or bribes.
New York’s now-unconstitutional law accomplished this through a complex statutory process for obtaining a license that required completing an invasive application, paying up to hundreds of dollars in fees and then sitting for an interview to convince police officers, who made the ultimate determination, that the license was justified. New York does not place such a burdensome, discretionary standard upon any other fundamental constitutional right, such as the right to protest.
New York is a hoplophobic state because the majority of its voters are hoplophobic. This is especially true of the City, which overwhelms the largely pro-Second Amendment vote of rural Upstate New York.
The attorneys from the Bronx Defenders offer a path forward:
It is absurd to give this authority to police, whose interaction with Black and Brown residents, in our experience, is largely to arrest, surveil and harass them. The court rejected New York’s law in part because it subjected individuals’ constitutional rights to the whims and discretion of police.
Now, following the landmark ruling in Bruen, New York can no longer impose hurdles that render the Second Amendment a fiction.
The next steps are clear. Now that the Supreme Court has spoken, prosecutors must dismiss all gun cases that punish people for engaging in constitutionally protected activity and free them from jail. As state lawmakers weigh their legislative response to the decision, we hope they will finally safeguard New Yorkers’ right to keep and bear arms and create a system free of racism.
We hope New York will finally stop criminalizing people for exercising their individual right to carry firearms.
Unfortunately, if you look at what New York is about to do next, it’s clear they are not heeding the prudent advice of these public defenders.