Buffalo Police pull a vehicle over. The license plate is out of state. Officers approach and inform three African Americans inside a turn signal was missed. The driver has a prominent neck tattoo.

He presents his Learner’s Permit. The front-seat passenger, his girlfriend, presents her driver’s license and paperwork for the just-purchased, out-of-state vehicle. The officers walk back to their patrol car. On a body camera, one officer can be heard saying, “They have a gun. I just know it. We need a reason to search.”

Quickly, an officer realizes that the young lady’s driver’s license is expired, making the learner’s permit insufficient. “Yes, we got ‘em,” exclaims an officer. “We have our reason to search.”

And search they do. The entirety of the car. The glove compartment. The contents. The contents within the contents. “They have a gun . . .” Yes, they do. Eventually, a little black 9mm Springfield XP-9 handgun, loaded with six rounds in the magazine, is recovered from within the purse, left on the floor of the front seat where the young lady was seated. The cops’ hunch was right. Officers are routinely praised for recovering weapons “off the streets” (apparently weapons belong inside homes?). But, really, what is the crime here? The unlicensed possession of a loaded weapon, in violation of New York Penal Law Section 265.03(3), classified as a “C” violent felony in New York State. A serious crime, indeed. For an adult offender without a criminal record, if convicted as charged, the sentencing range is between 3.5 and 15 years.

The young lady is my client. She has no criminal record in New York State. Her only interaction with the police, prior to this incident, in fact, has been as a victim of a crime -- repeatedly. She has an interest in self-defense. Clearly, a generalized interest. Possibly more than just a generalized interest. A young, unmarried mother of two living in an urban high-crime area with an abusive boyfriend and some police interactions as a complainant. Should she be able to protect herself? Should she be afforded the opportunity to own a gun? Does she have the constitutional right to carry a weapon like most any U.S. Citizen? In New York, as in law school, the answer is it depends.

Now facing felony weapons possession charges, the question is not one of morality or academics. The question now is one of the fairness of New York’s penal laws turning citizens into criminls. A criminal, this young lady is not. But, now, she is.

New York’s gun licensing scheme effectively criminalizes the possession of a weapon, making citizens with a generalized interest in self-defense into felons. Now, defense attorneys have a weapon of their own, the U.S. Constitution and the recent U.S. Supreme Court decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen.

Bruen Has Changed Everything and Nothing at All

In District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), the Supreme Court held that the Second and Fourteenth Amendments protect an individual's right to keep and bear arms for self-defense. In so doing, the Court held unconstitutional two laws that prohibited the possession and use of handguns in the home.

On June 23, 2022 the US Supreme Court, in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S.             (2022), considered New York's “may-issue” permit regulations for possession outside the home, which required “proper cause.” The case concerned constitutionality of a New York State law, the 1911 Sullivan Act, requiring applicants for an unrestricted license to carry a concealed pistol on their person to show "proper cause,” or a special need distinguishable from the general public, in their application. In a 6–3 decision, the majority ruled that New York's law is unconstitutional. This, effectively, means that the possession of pistols in public is a constitutional right under the Second Amendment.

State licensing of firearms under a “proper cause” requirement was declared an infringement on that right as they veered away from "shall-issue" systems, which may only condition licenses upon satisfying objective criteria, such as passing a background check, and, instead, were based on "arbitrary" evaluations of need made by local authorities. New York’s “proper cause” requirement, therefore, violated the Second and Fourteenth Amendments. Significantly, the Court expressly placed inside-the-home and public carry on equal constitutional footing. “Nothing in the Second Amendment's text draws a home/public distinction with respect to bear arms.” Slip op. at 23. As the right to bear arms for self-defense is “‘the central component of the [Second Amendment] right itself,’” confining the right to bear arms to the home would “make little sense.” Id. at 24, quoting Heller at 599 (emphasis and brackets in original). The Court stated that “many Americans hazard greater danger outside the home than in it.” Id.

Applying Bruen to Violations of Penal Law § 265.03 (3)

New York punishes the failure to obtain a license to possess firearms. Differently put, it is not the possession of a gun that is criminalized per se, but the unlicensed possession of a gun. See People v. Hughes, 22 N.Y.3d 44, 50 (2013) (“New York’s criminal weapon possession laws prohibit only unlicensed possession of handguns. A person who has a valid, applicable license for his or her handgun commits no crime.”) (emphasis in original); CPL § 265.20(3)(a) (exempting licensed possession of a pistol or firearm from prosecution). Accordingly, Bruen’s rejection of New York’s licensing scheme allows for a host of challenges directed at charges predicated on a defendant’s possession of an unlicensed firearm outside the home or place of business.

CPL §§ 210.20 (1)(a) and 210.25 (3) provide that an indictment is defective and subject to dismissal on the ground that “[t]he statute defining the offense charged is unconstitutional or otherwise invalid.” CPL § 255.20(1) provides for such motion to be made within 45 days of arraignment, with an extension available after that period for “good cause,” CPL § 255.20(3). A motion to dismiss is, following the holding in Bruen, is appropriate on the grounds that Penal Law 265.03(3) is unconstitutional. Logically, the possession of a firearm is not unlawful conduct; it is the lack of a license when possessing said firearm, that, under current Penal Law, makes it illegal. The penal law statute embedding the unconstitutional regulations necessarily violates the Second and Fourteenth Amendments.

The Second Amendment to the United States Constitution provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation.” Id. at 592. This right of “the people” to keep and bear arms for self-defense belongs to “all members of the political community, not an unspecified subset.” Id. at 580; see also id. at 581 (announcing a “strong presumption” that the Second Amendment right “belongs to all Americans.”). “[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).

In order to lawfully carry a firearm in public in New York, the government requires citizens to first obtain a license. To grant a license to an applicant, among other criteria, the licensing officer must find that “proper cause exists.” P.L. § 400.00(2)(f). “Proper cause” has been defined in case law as “a special need for self-protection distinguishable from that of the general community.” See In re Klenosky, 75 AD2d 793 (1st Dept. 1980). New York law criminalizes possession of a firearm without first obtaining this license. P.L. § 265.03(3); see also People v. Hughes, 22 N.Y.3d 44, 50 (2013) (“New York's criminal weapon possession laws prohibit only unlicensed possession of handguns”) (emphasis in original). Recently, in New York State Rifle & Pistol Assn v. Bruen, the United States Supreme Court struck down New York’s public carry licensing system, holding that it unconstitutionally interferes with citizens’ Second Amendment rights. Slip Op. No. 20-843 (June 23, 2022). The Court stated that “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Id. at 63. The Court explicitly took issue with the discretionary nature of New York’s licensing scheme, contrasting it to systems in other states that “contain only ‘narrow, objective, and definite standards’ guiding licensing officials, rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion” as New York’s system does. Id. at 30, n. 9 (internal citations omitted).

The woman we mentioned at the start of this article is facing criminal charges solely on the basis she did not obtain a license to carry a firearm. Because the licensing system is unconstitutional, I argue, Courts must dismiss indictments.

The Constitution does not require my client nor any defendant to first attempt to obtain a license under the facially unconstitutional licensing scheme, only to be denied. Smith v. Cahoon, 283 U.S. 553, 562 (1931); Lovell v. City of Griffin, 303 U.S. 444, 452 (1939). The Court addressed this issue in analogous circumstances in Staub v. City of Baxley, 355 U.S. 313 (1958). In that case, the appellant was convicted of violating a city ordinance that prohibited solicitation of membership for an organization without a permit. Id. at 314. The appellant did not apply for the appropriate license prior to soliciting membership from the employees of another company, in direct contravention of the ordinance. Id. at 315. However, the ordinance granted the mayor and council of the city “unfettered discretion” in their decision to grant or refuse the required permit, “without semblance of definitive standards or other controlling guides.” Id. at 322. The Court struck down the licensing scheme as invalid on its face, as it made enjoyment of First Amendment freedoms “contingent upon the will of the Mayor and Council of the City, although that fundamental right is made free from congressional abridgement by the First Amendment[.]" Id. At 325. In reaching its decision to reverse the appellant’s conviction, the Court explained that “[t]he decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance.” Id. at 319. “The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.” Id.

The Bruen Court held that the rights bestowed by the Second Amendment should be treated no differently than rights protected by any other amendment, including the First Amendment. “The constitutional right to bear arms in public for self-defense is not ‘a second- class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Bruen, No. 20-843 at 62. Therefore, the reasoning in Staub applies equally in gun cases. Just as the appellant in Staub could engage in the exercise of their right of free expression despite having made no attempt to secure a permit under the facially invalid statute, so too was my client, and all defendants, permitted to freely exercise their right to carry a firearm in the face of an unconstitutional licensing law without first attempting to secure a license.

The D.C. Court of Appeals has specifically addressed the issue of a defendant’s failure to seek a license in the context of firearm possession. In Heller, the Supreme Court held that the Second Amendment guarantees “an individual right to possess and carry weapons in case of confrontation,” invalidating Washington, D.C.’s near total ban on handgun possession. 554 U.S. at 592. In the wake of Heller, the D.C. Court of Appeals held that defendants could move to dismiss indictments charging them with firearms possession under the unconstitutional statute, even where they never applied for licenses for the firearms under the statute. See Plummer v. United States, 983 A.2d 323, 341-42 (D.C. 2009) (citing Chicago v. Atchinson, Topeka & Santa Fe Ry. Co., 357 U.S. 77, 89 (1958)). This was so even where the defendant had pled guilty to unlawful possession prior to the decision in Heller. Magnus v. United States, 11 A.3d 237 (D.C. 2011).

More specifically, the court in Magnus held that, “unless the government proves the defendant was disqualified from exercising his Second Amendment rights,” it is “impermissible under the Second Amendment to convict a defendant” for unlicensed possession of a firearm if an unconstitutional licensing scheme made it “impossible” for the defendant to obtain a license. Id. at 242-43.

Here, the “proper cause” requirement makes it “impossible” for defendants to obtain a license to carry a firearm because they could not distinguish their interest in self-defense from that of the general community. New York courts have made clear that, to obtain a license to carry a firearm, the applicant must provide evidence “of personal threats, attacks or other extraordinary danger to personal safety.” Bruen, No. 20-843 at 3 (citing In re Martinek, 294 A.D.2d 221, 222 (2002)). The New York licensing law is “almost engineered” to preclude “most citizens” from exercising a fundamental, enumerated constitutional right. See Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) (addressing Washington D.C.’s nearly identical “good cause” requirement for gun licenses).

            Possession charges are won or lost at suppression hearings. They are the most difficult charges to overcome when suppression is denied. Now, in the wake of Bruen, defense attorneys have a second weapon in the fight against possession charges: the U.S. Constitution. I encourage attorneys to motion constitutional challenges in an effort to dismiss gun charges, particularly on behalf of clients with no criminal records that objectively should have qualified for a license but for New York’s arbitrary provisions.