Sunday, December 07, 2008

Free Plaxico Burress

New York City's gun law is unconstitutional

New York Giants star receiver Plaxico Burress is facing a mandatory 3« years in prison and the end of his football career. His crime? Not having a license, which New York City never would have issued him, for the exercise of his constitutional right to bear arms. To be sure, Mr. Burress got caught because of what appears to have been stupid and irresponsible behavior connected with the handgun. But he does not face prison for shooting himself. His impending mandatory sentence highlights the unfairness and unconstitutionality of New York City's draconian gun laws.

Mr. Burress had previously had a handgun carry permit issued by Florida, for which he was required to pass a fingerprint-based background check. As a player for the Giants, he moved to Totowa, N.J., where he kept a Glock pistol. And last Friday night, he reportedly went to the Latin Quarter nightclub in midtown Manhattan carrying the loaded gun in his sweatpants. Because New York state permits to possess or carry handguns are not issued to nonresidents, Mr. Burress could not apply for a New York City permit.

At the nightclub, the handgun accidentally discharged, shooting Mr. Burress in the right thigh. He was not seriously injured, but he has been charged with criminal possession of a weapon in the second degree.

It appears that he put the unholstered gun in the waistband of his sweatpants, and when it slipped, he grabbed for it, accidentally hitting the trigger. To make matters worse, according to press accounts, he was seen drinking and may have been consuming alcohol -- which all firearms safety training (including the class he would have been required to take for his Florida permit) absolutely forbids for people handling guns. And of course Mr. Burress's handgun should have been holstered to prevent unintentional movement of the trigger. Fortunately, his negligent discharge did not harm anyone else.

Mr. Burress's behavior was bad. However, Mr. Burress is not facing prosecution for carelessness, but simply for carrying a weapon. This is unjust and perhaps unconstitutional. The legal issues are a bit tangled, but here is the background:

This summer, the Supreme Court ruled in District of Columbia v. Heller that the District's handgun ban, and its ban on use of any firearm for self-defense in the home, violated the Second Amendment, which guarantees the individual right to bear arms. D.C. is a federal enclave, and the Court did not rule whether the Second Amendment applies to state and local governments. But as other cases reach it in the wake of Heller, it will.

The Heller decision did not say that requiring a license to carry a gun was unconstitutional. But in New York State, nonresidents cannot even apply for the licenses to possess or carry a handgun. Unlike most other states, New York refuses to honor carry permits issued by sister states. Most observers believe that the Supreme Court will eventually make state and local governments obey the Second Amendment. If it does, New York's discrimination against nonresidents will probably be ruled unconstitutional.

And then there is the issue of the permitting process for residents. In 40 states, including Connecticut, law-abiding adults are issued permits once they pass a fingerprint-based background check and a safety class. In New Jersey, carry permits are virtually never issued. In New York City, carry permits are issued, but to applicants with some form of political clout rather than on the basis of his or her need for protection.

The Second Amendment might not require New Jersey or New York City to issue as liberally as Connecticut does. But with a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City's licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.

Some commentators contend that Plaxico Burress should have hired bodyguards, instead of carrying a gun himself. Mr. Burress might now agree. But people who aren't as wealthy as he is also deserve to be safe, and they don't have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.

The Burress case also shows why mandatory sentences are a bad idea. He was careless but had no malign intent. Legislators and mayors like to appear tough by pushing through such draconian laws. Yet the victims are people like Mr. Burress whose conduct may have been improper, but who do not deserve the same sentences meted out to robbers and burglars.


Georgia: Would-be robber shot with his own gun after struggle: "A gunman was shot with his own weapon Thursday afternoon during an attempted holdup that turned into a wrestling match at a midtown Savannah store. At about 2:30 p.m., the 19-year-old suspect walked into the Crossroads Convenience store on Staley Avenue, brandishing two handguns, according to Savannah-Chatham police. The store clerk, however, refused to hand over cash without a fight. A struggle between the two ensued. The clerk managed to grab one of the firearms, metro police said. The clerk then shot at the suspect, hitting him in the leg, investigating officers said, motivating the would-be robber to run away. The suspect dropped the second gun, which was not loaded, as he took off, according to metro police. About an hour after the attempted robbery, metro police were alerted by Memorial University Medical Center officials that a man had come to the hospital with a gunshot wound to the leg. Metro police detectives went to the hospital and took the suspect into custody. Charges were pending late Thursday."

PA: Millersville clarifies language on gun ordinance : "It's a simple change of language, but one that means so much for people concerned with their Second-Amendment rights - whether it's legal to carry a gun in a public park. Millersville Borough Council took up the issue at a recent meeting, and voted to change a park ordinance so that residents are allowed to bring a gun to the park but are forbidden from firing it there. `We received an e-mail - I believe it was from a resident but I can't be sure - asking us about whether it was legal to bring a gun to the park,' borough manager Ed Arnold said Nov. 24. `So, we investigated and saw that our park ordinance contained . this confusing language.' . For Millersville Mayor Richard Moriarty, council's vote to amend the ordinance is above all `an issue of semantics.' `It's legalese. In today's world we can't prohibit people from carrying guns, but what we are saying is that you're not allowed to shoot those guns in our park,' Moriarty said. `To me it's just common sense.'"

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