(AP Photo/George Frey)

New York Judge Calls Gun Possession Law Unconstitutional

Does possessing a firearm without a permit imply intent to commit a criminal act? For most of us, the answer is an easy “no”, but in New York the law says otherwise. Possessing a firearm without the proper paperwork is a felony offense in the state, and part of the twisted logic legislators deployed while crafting the law is that anyone who dares to do so must have some sort of nefarious intent in mind.

That statute was being challenged by six individuals who’ve all been charged with illegal gun possession, but the New York State Court of Appeals (which is the highest court in the state) recently dismissed their lawsuits in a 6-1 decision. The majority of judges concluded that the plaintiffs had failed to bring a timely case, but avoided any direct ruling on the constitutionality of the gun control law. The lone dissenter, on the other hand, declared that in light of the Bruen decision it’s time for the law to be voided. What makes this somewhat of a surprise is that Judge Jenny Rivera isn’t a rock-ribbed conservative. In fact, the Journal-News calls her one of the most liberal members of the Court of Appeals.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen found that a central part of New York’s licensing process, requiring a special need to obtain a concealed-carry permit, violated the Second Amendment. Because of this, Rivera reasoned, New York can no longer presume that everyone who possesses an unlicensed firearm intends to use it illegally.
“Given the Bruen majority’s holding… the statutory presumption is unconstitutional on its face as it requires the jury to assume a defendant intends an unlawful use of a weapon merely because they possess the weapon in public,” Rivera wrote.
Though she was the sole judge to call, explicitly, for the demise of a key gun law on constitutional grounds, Rivera’s dissent may be a harbinger for things to come as courts across the country re-evaluate the legality of all manner of gun restrictions in the wake of Bruen.
“We’re going to see challenges to New York’s gun laws start filtering through the court system,” commented Peter Tilem, an attorney who regularly practices in Second Amendment law.

Tilem’s correct, and the new cases won’t suffer from a timeliness argument on the part of the state. The Court of Appeals may have kicked this can down the road a bit, but they can’t avoid addressing the substantive argument raised by individuals who’ve been convicted of the “violent” felony of possessing a gun without a permit.

Take the recent case of Fares Alhazmi, for example. The 26-year-old was recently charged with illegal gun possession after he shot and killed an armed robber who came into the dispensary where he worked and demanded “all the weed” while displaying a gun. Alhazmi hasn’t been charged with shooting the robber. Instead, he faces a felony weapons possession charge that could send him to prison for several years for the crime of carrying a gun without a license.

Clerk Fares Alhazmi, 26, was arrested after shooting 23-year-old Romel Carey Wednesday inside the 24-hour store that sells cannabis products on E. Tremont Ave. near Anthony Ave. in Morris Heights, cops said.
Video shows Carey walking into the store around 11:45 p.m. Tuesday. He appears to be looking at products, but pulls out a gun and points it at Alhazmi behind the counter.
The clerk whipped out his own handgun and scared off Carey, who ran out the front door.
About 40 minutes later, the would-be robber came back to the store as Alhazmi dealt with a customer.
This time, Carey walked in with his gun drawn and immediately pointed it at the clerk, who ran back and forth behind the counter avoiding the barrel of the firearm, the video shows.
As the customer is seen slowly walking away from the chaos and Carey dashes toward the door, Alhazmi fires a shot from behind his back – hitting the attempted robber in the head.

It sounds like Alzhami possessed the gun not because he wanted to commit a crime, but because he wanted to protect himself from armed criminals. We don’t know why Alzhami didn’t have a carry license or a premises permit, or even if he’d attempted to apply for either, but we do know that obtaining a permit is still incredibly difficult in New York City even after the Bruen decision. Earlier this year the NYC-based news site The City reported that the NYPD Licensing Bureau is actually approving fewer permits post-Bruen than it did before the Supreme Court decision striking down the “may-issue” laws in the state.

In 2021, the NYPD — which vets firearm permits — received 4,663 applications and approved 2,591 of them, about 56%, all under the stricter “proper cause” standard the Supreme Court struck down last year. That standard required gun owners in New York to show “proper cause” in order to receive a permit to carry a weapon, but the court said licenses should be granted by default unless there was a specific reason to deny an applicant.
In 2022, the NYPD saw an increased number of new applications — 7,260 — but approved just 1,550, or 21%, even though applications filed in the second half of that year no longer had to meet the “proper cause” standard where applicants had to make an affirmative case for why they needed a license.
In the six months after the high court’s ruling in New York State Rifle vs. Bruen, from June 24, 2022 to Dec. 31, 2022, the NYPD saw a surge in new gun permit applications, from just over 2,000 in the same period a year earlier to nearly 5,000. So far, the department has approved 503 of those, or just above 10%, despite its guidelines and state law requiring applications to be decided upon within six months.
Relatively few applications have been flat-out denied — just 16 in 2022, including two for applications submitted after the June 23 Supreme Court ruling, meaning the approval rates still could change as the NYPD completes additional, and now overdue, investigations.

If the city’s licensing laws are preventing most folks from lawfully carrying or keeping a gun, some of those individuals are going to break the law under the “better to be judged by twelve than carried by six” theory. They’re not keeping or bearing arms because they’re engaged in a life of crime. They simply can’t lawfully exercise their Second Amendment rights because of the barriers the city and state have erected.

I hope that Judge Rivera’s dissent is a “harbinger” of a future decision that concludes simple possession does not imply intent to commit a violent criminal act. It’s not just Bruen that demands that outcome, but common sense as well.

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