The short answer is yes.  Yes, it is.

One of the lovely ironies of criminal defense is that most of the things we fight for are conservative values — individual liberties, constitutional rights, defending actual people from the insane might of the State — even though the defense attorneys themselves tend to be fairly liberal.

Needless to say, gun control is a wedge issue on which conservatives and liberals in this country tend to have strong, and strongly divergent, views.  Our own personal position on gun control is that it’s best to use two hands when aiming, take your time, and hold your breath while smoothly squeezing the trigger.  But only a fool would claim that public safety is not a legitimate governmental concern.  If anything, it is the number-one job of government at every level.  And only a fool would claim that guns do not affect public safety.  There is certainly some legitimate scope of governmental involvement in who gets to own a gun, and how you’re allowed to use it.

But New York State, and the City of New York, do it wrong.  And in light of the recent Second Amendment decisions by the U.S. Supreme Court, it is now clear that their restrictions are unconstitutional.

We’ve got a case pending where this has become the key issue.  As always, briefing it for the court really forced us to go deep into the competing policies and laws, the history and precedent that got us here.  It’s one of the things that we absolutely love about being a lawyer.  We’re not going to go into any of that here, however.  Instead, we’re just going to focus on the basics.

First of all, gun possession is presumptively illegal here.  There are only narrow exceptions where someone might get a license to own one.  Just applying for the license is prohibitively expensive and takes a very long time.  The licensing decision is purely at the discretion of a bureaucrat, who also has complete discretion to revoke the license later.  A statistically insignificant number of licenses actually get granted.  Of the few licenses that are granted, the vast majority are extremely limited in scope.  And even with a license, one’s gun must be kept disassembled or locked up, with any ammunition stored separately.  Except when  the weapon is actually in one’s grasp, it must be rendered inoperable.  There’s also a presumptive ban on ammunition.

These laws effectively ban gun possession for all but a few people and the police.  To date, New York’s courts have justified this by saying it’s only a privilege to bear arms, and not a right.  So the licensing scheme is perfectly within the state’s authority.  And any review of decisions made by licensing authorities is limited to an arbitrary-and-capricious, abuse-of-discretion analysis.  In other words, you can’t have a gun, and there’s nothing you can do about it.

At the end of the ’08 term, the Supremes issued their decision in D.C. v. Heller, unambiguously recognizing that the Second Amendment right to keep and bear arms is an individual right.  The D.C. ordinances at issue were analogous to those of N.Y. and N.Y.C.  The Supremes said these rules violated the Second Amendment, and rejected the policy arguments that one could justify such a ban because of the dangers associated with handguns.

At the end of the ’10 term, the Supremes issued their decision in McDonald v. Chicago, holding that the Due Process and Privileges & Immunities clauses of the Fourteenth Amendment require the application of the Heller rule to the states.  The Chicago and Oak Park laws at issue said pretty much what the N.Y. and N.Y.C. laws do (actually, N.Y.C.’s restrictions are more, uh, restrictive).  The Supremes expressly rejected claims that governments ought to be able to enact whatever restrictions they deem to be reasonable.  They further rejected outright the idea that the scope of the Second Amendment right should be determined by judicial interest-balancing.

On top of that, the McDonald decision stated flat-out that the Second Amendment right is a fundamental individual right.  This is important for what comes later.

Also, just last month, the D.C. Court of Appeals issued a pertinent decision in Herrington v. U.S., which applied the Heller and McDonald rule to D.C.’s ban on the possession of ammunition, which in pertinent part is indistinguishable from N.Y.C.’s ban.  That statute was also unconstitutional, preventing the exercise of Second Amendment rights.

In their rulings, the Supremes did acknowledge that the Second Amendment right isn’t so unrestricted as to permit any person to carry any kind of weapon for any reason.  But it does encompass a right to keep ordinary weapons in the home for use in self-defense, at the very least.

Given all that, New York’s law has things exactly backwards.  Instead of gun possession being presumptively lawful, it is presumptively a crime punishable by a year in jail.  You can’t make a fundamental right presumptively unlawful, and only then carve out exceptions where it’s okay.  You can only carve out exceptions for the rare occasion when exercising that right would be unlawful.

So the presumptive ban is unconstitutional.  The requirement that even a duly licensed handgun be rendered inoperable is equally unconstitutional, as it undermines the very right being protected.  The Heller decision affirmed, among other things, the Parker case which struck down a similar law.  Making it impossible to use your gun for the lawful purpose of self defense — that sort of defeats the purpose.

New York’s licensing burden is also unconstitutional, for a lot of reasons.  The fees, especially here in town, are the highest in the nation.  It costs something like $440 just to apply here in N.Y.C., and there’s no reason to expect your application would even be granted.  The purpose and effect of these fees is to dissuade people from applying in the first place.  It’s like the poll taxes of a bygone era, which just like gun control laws originated in the racist attempts to limit the freedoms of African-American citizens after the Civil War.  (Oh yeah, we found a long line of cases saying just that, going back to 1872.)  The fees’ purpose and effect is an unconstitutional ban on the right to bear arms.

The byzantine procedures one must follow in order to get a license are just another burden on the right.  That, and the bureaucracy’s absolute discretion to grant, deny or revoke a license, are even more of an unconstitutional infringement of the right.

All of this might still conceivably pass constitutional muster, perhaps with some changes here and there, if not for one thing: Strict scrutiny.

This is where that “fundamental individual right” thing comes into play.  When the government infringes on a fundamental individual right — one that is objectively and deeply rooted in the nation’s history and tradition, and implicit in the concept of ordered liberty — their actions have to withstand strict scrutiny.

Strict scrutiny means you look, not at the letter of the law alone, but also at its real-world effect.  A law that restricts the exercise of a fundamental right can only survive if there is some compelling state interest, if the law is necessary to achieve it, and if the law is narrowly-tailored to be the least-intrusive means of achieving it.  Fail any of this, and the law is void.

We can all agree that public safety is a compelling state interest.  But New York law is by no stretch of the imagination narrowly tailored to be the least-intrusive means of furthering that interest.  And the laws which prevent law-abiding citizens from exercising the right just as much (if not more so) than lawless types aren’t exactly necessary.

The real-world effect of the laws is an indiscriminate ban on the lawful and safe possession of guns by honest citizens.  The obstacles and rules do not have any rational justification other than the simple minimization of public ownership of handguns.

A constitutional statutory scheme would presume the lawfulness of gun ownership, would make licensing presumptive and without undue burdens, would not have a purely discretionary standard for licensing, and would only carve out exceptions for those particular individuals whom the state can rationally believe to be a real threat to public safety should the possess a weapon.

New York’s got it backwards.

So yes, the laws here are unconstitutional.

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Chicago

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here.

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

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Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.