New York fends off challenge over handgun legislation

An upstate New York convict argued his criminal indictment ran afoul of Second Amendment rights affirmed by a landmark Supreme Court ruling from 2022.MANHATTAN (CN) — The New York attorney general on Tuesday urged the state’s top appellate court to uphold the Empire State’s criminalization of unlicensed handgun possession in light of recent U.S. Supreme Court guidance*.*Antrell Davis, a man who pleaded guilty to attempted second-degree weapon possession, moved to dismiss his criminal indictment on constitutional grounds, but did not prevail at the lower court in Monroe County, New York.Even though Davis’ conviction was affirmed on appeal, Attorney General Letitia James intervened at the Court of Appeals to defend the constitutionality of the New York law at issue: Penal Code 265.03(3), or criminal possession of a weapon in the second degree. The state insists New York law does not prohibit possession of a loaded firearm standing alone.Davis’ appeal centers on the 2022 Supreme Court decision in New York State Rifle & Pistol Association. v. Bruen, which asks courts to square modern gun restrictions with ones from the nation’s founding 250 years ago.Davis argues Bruenrecognizes a constitutional right to carry firearms in public and New York law violates the Second Amendment and the due process clause because it criminalizes constitutionally protected firearm possession.During oral arguments on Tuesday before New York’s highest appeals court, Judge Shirley Troutman quickly asked Davis’ attorney whether states are prohibited from having licensing schemes.“States are not prohibited from having licensing schemes, no,” Rochester-based public defender Guy Talia said.“So what is wrong with New York’s current law then?” Troutman responded.Talia explained under New York’s current law, the exemption provided for licensed carry is in a separate provision than the criminal statute.“What it means is that it’s raised as a defense,” he told the panel. “So the licensure is raised as a defense, and what that does is it puts the burden on the defendant to raise it.”Judge Michael Garcia queried: “What about the carrying of an assault rifle, could they prohibit that? I guess we’ll find out soon enough,” referring to Supreme Court arguments later this year on challenges to the constitutionality of bans on AR-15s and other semiautomatic rifles.“What if it was a prior felon with a gun — could you prosecute it then?” the judge asked.“There’s no constitutional right to possess a firearm as a prior felony, right,” Talia said. “I think that it’s safe to say that that’s an applicable restriction. You can just become disqualified if you’re a dangerous felon.”Judge Jenny Rivera asked Talia what, in his view, was the “legislative fix” to his client’s claims of unconstitutional burden-shifting regarding handgun licensure.“The legislature can draft a statute simply saying that it’s unlawful to possess a handgun in public without a license,” he said.“So just a few words,” the judge responded. “Take language from another subsection and embed in the section?”Seeking to affirm the lower court’s dismissal of Davis’ challenge, Amy Walendziak from the Monroe County District Attorney’s Office argued Bruen did not expand preexisting Second Amendment protections “to be the right for anyone anywhere to possess any weapon in whatever manner they choose.”“Bruen has specifically said that it’s constitutionally permissible for the 43 states to have their shall-issue licensing regimes," Walendziak said. “So it is necessarily a right that is subject to licensure.”New York insists the state’s criminal firearm possession laws prohibit only the unlicensed possession of firearms and were not invalidated by Bruen. The attorney general argues the challenge should be rejected because the law prohibits possession of a loaded firearm only when a person lacks a valid license and cannot invoke any other exemptions.“Nothing in Bruenmakes the legislative choice to prohibit unlicensed possession of firearms in this way invalid,” the attorney general’s office wrote in an appeals filing. “The Supreme Court in Bruenmade clear that states could continue requiring citizens to obtain a license before bearing arms in public.”The seven-judge panel did not rule from the bench after an hour of oral arguments Tuesday afternoon.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads