(CN) — Six people convicted of gun charges sought to clear their records on Wednesday, making their cases before the New York Court of Appeals in light of in light of the U.S. Supreme Court’s 2022 ruling that the state's permit law violates the Second and 14th Amendments protecting an individual’s right to carry a handgun for self-defense outside the home.
The court scheduled a marathon three-hour session — which extended well beyond that — to hear oral arguments from the who appellants argue their convictions are unconstitutional.
New York requires gun permit applicants to submit to an investigation and show they are of good moral character and have not been convicted of a felony nor other serious offense. Before the U.S. Supreme Court’s 2022 ruling, applicants for a concealed firearm permit for self-defense also had to show “proper cause” for the permit.
Though “proper cause” was not defined in the statute, New York courts held that an applicant met the bar only if he or she could “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession,” according to the New York Attorney General’s appellate brief.
Then the U.S. Supreme Court in New York Rifle & Pistol Association v. Bruen determined the “proper cause” provision violated the Second and 14th Amendments.
New York complied with Bruen by removing the “proper cause” requirement from its licensing statute, the attorney general said, and by adding a provision that an unrestricted concealed-carry license is “subject to the restrictions of state and federal law.”
The Court of Appeals must now decide whether other provisions of the state’s gun registration statute apart from the “proper cause” language are unconstitutional as well, as the appellants argued Wednesday.
The six, otherwise unrelated cases argued Wednesday were filed by appellants challenging their convictions for a variety of criminal offenses, but all claiming their convictions and sentences for illegal weapon possession violated their Second Amendment rights in the wake of the Bruen decision.
The New York Attorney General’s Office intervened in all six cases.
“The court emphasized that ‘nothing in our analysis should be interpreted to suggest the unconstitutionality of’ dozens of licensing regimes without a ‘proper cause’ requirement,” the New York Attorney General’s brief says.
“Justice Alito wrote separately to emphasize the limited nature of the holding, which decided ‘nothing’ regarding ‘who may lawfully possess a firearm or the requirements that must be met to buy a gun’ or the “restrictions that may be imposed on the possession or carrying of guns.’”
An exchange between the judges and attorney Mark Zeno representing one of the appellants indicated how the court may struggle with applying the U.S. Supreme Court decision to the New York statute.
Zeno told the court: “The U.S. Supreme Court in Bruen found that the New York licensing provisions were unconstitutional.”
Challenged by Judge Madaline Singas, who pointed out that not all of the licensing scheme was ruled unconstitutional, Zeno added, “the ‘proper cause’ requirement in the licensing scheme was unconstitutional.”
“I’m not saying all licensing in New York has been stricken,” Zeno said, noting New York passed a revised statute on the heels of Bruen. “I question whether some of its provisions are unlawful. I am arguing that my client was unconstitutionally prosecuted, convicted, and is serving a 16-year-to-life sentence for carrying a weapon in public that was protected by Bruen and the Second Amendment.”
While noting Justice Clarence Thomas’ majority opinion In Bruen said states can regulate public carry, provided there is a historical precedent for it, Zeno said, “I’m saying that the ‘proper cause’ provision is not the only unconstitutional provision.”
Robert Dean, an attorney with the New York Center for Appellate Litigation, represented appellant Pablo Pastrana. He wrote in a brief filed with the Court of Appeals that his client should prevail in appealing his conviction because New York’s gun-licensing statute unconstitutionally criminalizes the right to bear arms.
“The Constitution bars punishing an individual for violating an unconstitutional, and therefore unlawful, licensing scheme,” he wrote.
Nor may he be denied the right to carry because he has a felony conviction. Quoting from an opinion by now-justice Amy Cony Barrett, he added that she other jurists have concluded that “[f]ounding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.”
Because the issue in the cases argued Wednesday is how the U.S. Supreme Court’s Bruen ruling affects their convictions, one possible outcome of these cases is that the Court of Appeals would remand some or all of the six appeals to the trial courts to resolve questions about how Bruen should be applied in these cases, which were prosecuted before to the Supreme Court decided Bruen.
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