Heller and NY: A Valid Defense for Criminal Possession of a Weapon (Firearm, Gun or Pistol)?

Despite a criminal defense attorney’s best efforts, a Brooklyn State Supreme Court Justice ruled in a decision published yesterday that the United States Supreme Court’s decision in the District of Columbia v. Heller does not prevent New York State from regulating guns, pistols and firearms within its boundaries.

Defendant, Albi Abdullah, was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law 265.01(1). The defendant had been arrested after police found him violation of an order of protection. When asked whether he had any weapons, the defendant admitted that he had a gun in a kitchen cabinet. The police then located an unloaded .25 caliber handgun.

The defendant’s criminal defense attorney moved to dismiss the Criminal Possession of a Weapon charge arguing that “PL 265.01 is unconstitutional and that such charge constitutes a violation of defendant’s Second Amendment right to keep and bear arms in his home for self protection, pursuant to the US Constitution., Amendments II and XIV; and pursuant to the holding of the US Supreme Court in District of Columbia v. Heller, 128 Sup Ct 2783 (2008). Defendant further supports his claim of unconstitutionality on the alleged arbitrary and capricious nature of the City’s gun licensing process as managed by the New York City Police Department.” The prosecution responded by arguing that “Heller, by its own terms, is neither applicable to nor binding upon the States, and that it cannot be interpreted to mean that the Second Amendment bars a state’s reasonable regulation of gun possession.” The court ultimately reviewed the case and agreed with the prosecution.

In denying the defendant’s motion to dismiss, the court recognized that:

“The Supreme Court did specifically hold in Heller that the District of Columbia’s ban on the possession of handguns in the home violates the Second Amendment (128 Sup Ct at 2821-22) but the Court also stated that the right to keep and bear arms as secured by the Second Amendment is not unlimited (supra, at 2816) and that the Second Amendment is neither applicable to nor binding upon the States (Heller, supra, 2812-13). The Court then chose not to address the validity of the District of Columbia’s licensing requirement (supra, at 2819) and hypothesized that ‘Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.'(supra, at 2822).”

The court further found that:

“Because New York does not have a complete ban on the possession of handguns in the home and because the District of Columbia is a federal enclave and not a State, Heller is distinguishable and its holding does not invalidate New York’s gun possession laws or regulations. The Second Amendment has been recently held not to apply to the States and is not incorporated into the Fourteenth Amendment. (See Bach v. Pataki, 408 F 3d 75, 86 [2nd Cir, 2005]; Parker v. District of Columbia, 478 F 3d 370,391, n. 13 [DC Circuit, 2007]) Therefore, in New York, possession of a firearm remains a criminal act, pursuant to Penal Law Article 265, unless one holds a license to so possess, pursuant to Penal Law 265.20(3).”

Clearly, Heller’s scope is not unlimited and does not prevent NY from regulating hand guns and other firearms. In fact, New York State’s regulations are “alive and well.” Arguably, NY has some of the most strict and severe gun laws in the nation. Mere possession of a loaded and unlicensed firearm outside one’s business or home is punishable as a “C” violent felony by a minimum of 3.5 years in state prison to 15 years. That particular charge does not even require a showing that you had the intent to use the weapon unlawfully.

Whatever charge you are accused of, whether it be a violent crime of gun possession or a white collar crime relating to fraud, don’t compound a criminal matter by retaining inexperienced counsel. Contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC so we can begin helping you get where you want and need to be.

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