Heller and Burress and the Right to Possess a Firearm in New York…Oh My!

Now that the Manhattan Grand Jury has voted an indictment in the gun possession case against Plaxico Burress, Burress and his attorney only have a few ways for him to avoid any jail at all. While this is a highly unlikely scenario (like any New Orleans Saints team winning the Super Bowl), outside of “jury nullification,” some legal analysts and attorneys believe that another means for Burress to attack the Criminal Possession of a Weapon charge can be found in the United States Supreme Court’s decision in District of Columbia v. Heller. In that decision, the United States Supreme Court found that individuals had a constitutionally protected right based in the Second Amendment to possesses firearms even if a local DC ordinance implementing a ban on guns said otherwise. Sounds great for Burress, right? Well…not so fast.

The United States Supreme Court decision in Heller slapped down a particular ordinance in the District of Columbia that amounted to a ban on arms. As noted in a decision published today in People v. Kenneth Kirby, a Suffolk County District Court judge found that:

“New York State Penal Law 、265 under which the Defendant is charged does not effect a complete ban on handguns but rather has in effect a licensing requirement to legally possess a handgun (see, PL 、265.20[a][3]). In the matter at hand, the Defendant traveled from Texas with a handgun allegedly given to him by his grandfather for the purposes of self-protection. It is further alleged the Defendant does not possess a valid New York State license to possess a handgun in his residence in New York. Licensing is an acceptable regulatory measure and unless one holds a license to so possess in New York, possession of a firearm remains a criminal act.”

Well, if the Brooklyn decision involving Heller was first down, the Suffolk decision was second down, Burress may go for it again with Heller on third down in Manhattan Supreme Court. Unfortunately, the United States Supreme Court has already found that the Second Amendment does not bind the states and does not represent an unlimited right.

This is looking like fourth and long.

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