Exit, Pursued by a "Bear"? New York City's Handgun Laws in the Wake of Heller and McDonald

Article excerpt

In its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual's right to keep and bear arms in the home for the purpose of self-defense. Then, in 2010, the Court held that this right is fully incorporated against state and local governments in McDonald v. Chicago. Both decisions declared that outright bans on handgun possession in the home were unconstitutional. However, the Court's holdings have left many questions unanswered regarding which state and local gun regulations are constitutional under the new framework. This Note discusses the current handgun laws of New York City and New York State and seeks to determine which regulations will pass constitutional muster, and which may be invalidated.

I. INTRODUCTION

On December 22, 2011, Meredith Graves, a thirty-nine-yearold medical student from Tennessee, was arrested in Manhattan after asking security at the 9/11 Memorial where she could check the .32 caliber pistol she was carrying in her purse.1 Graves, who possessed a Tennessee-issued concealed-carry permit, was visiting New York to attend a job interview at Brookhaven Memorial Hospital on Long Island.2 She spent several days in jail before posting bond, and faced a minimum sentence of three and a half years in prison for criminal possession of a weapon in the second degree, a class C violent felony that carries a maximum sentence of fifteen years.3 Graves ultimately avoided a prison sentence by pleading guilty to a misdemeanor count of criminal possession of a weapon in the fourth degree and paying a $200 fine.4

Graves's arrest was just the latest in a string of unwitting outof-state tourists who have recently run afoul of New York's strict gun laws. In 2011 and 2012, Jonathan Ryan,5 Ryan Jerome,6 Mark Meckler,7 and Stephen Grant8 all faced the same three-anda-half-year minimum sentence for bringing handguns into New York City that they were permitted to carry in other states. These recent arrests of gun-toting tourists highlight the disparity between the laws of New York and those of most other states.

Each of the above-mentioned defendants could lawfully either possess or carry a handgun in his or her home state9 (and, indeed, in many other states as well).10 In New York, however, their actions constitute serious crimes. Under the New York Penal Law, possession of a loaded handgun outside one's home or place of business is a class C felony11 - in other words, it is treated as seriously as second-degree burglary,12 second-degree robbery,13 or second-degree aggravated sexual abuse.14 Statewide, the possession of a handgun under any circumstances is presumptively illegal and constitutes a class A misdemeanor.15 While section 265.20 of the New York Penal Law lists exemptions from the general prohibition on handgun possession, the only exemption that applies to individuals who are neither active-duty military personnel nor police officers is possession with a license issued under section 400. 00. 16 Members of the general population can therefore only legally possess a handgun after obtaining a license.17 In New York City, the process for obtaining a license to possess a handgun in one's home or place of business is time-consuming, expensive, and requires extensive documentation, while obtaining a permit to carry a loaded firearm in public is next to impossible for ordinary citizens.18 Indeed, as Professor Adam Winkler has written of New York City's gun licensing regulations, "[i]t's not a total gun ban, but it's awfully close."19

The gun laws of New York City and New York State seem to be on a collision course with recent Supreme Court decisions. In its landmark 2008 decision D.C. v. Heller, the Supreme Court held that the Second Amendment protects an individual's right to keep and bear arms in the home for self-defense, overturning two Washington, D.C. statutes20 that banned handgun possession in the home and prohibited lawfully possessed firearms from being loaded in all circumstances (including for the purpose of immediate self-defense). …