Surprising Friends of The Second Amendment

A few things are relatively uncontroversial. New Yorkers do not like guns. Progressives do not like guns. New York’s public defenders are, politically, very progressive. New York’s public defenders support the Second Amendment’s right to keep and bear arms.

Wait, what? You read that right.

The incorporated Second Amendment affords the people “the right to keep and bear arms.” U.S. Const. amends. II, XIV; McDonald v. City of Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). Despite the clear text and this Court’s precedent, New York’s licensing regime does the opposite. It deprives everyone of that right, only returning it to those select few who manage to first secure a firearm license from the police. For everyone else, possession of a firearm is effectively a “violent felony,” punishable by 3.5 to 15 years in prison. N.Y. Penal Law §§ 265.03; 70.02(1)(b). New York’s licensing requirements criminalize the exercise of the fundamental Second Amendment right, with rare exception.

This is the opening from an amicus brief filed by a long list of public defenders, with the Black Attorneys of Legal Aid, Bronx Defenders and Brooklyn Defender Services taking the lead. It’s not that they’ve taken a sudden shine to ARs or come to the realization that an armed society is a more polite society, but that their clients, defendants accused of criminal possession of a weapon, a crime which would plead out to probation for a first offense back when I started practicing, now get a mandatory minimum of 3½ to 15 years imprisonment, That’s some real time.

The amicus brief was filed in support of the New York State Rifle & Pistol Association’s case before the Supreme Court, a strange bedfellow indeed. It’s not that these public defenders have chosen to back the Heller interpretation of the Second Amendment as a fundamental personal right, per se, but rather that as long as that’s the law, their clients should be as entitled to its protection as any good Texan.

Before Heller and McDonald were decided, getting a gun permit in New York was essentially impossible for anyone other than a retired cop. The showing of need was extreme, and it was decided by police, who hate non-cops with guns more than progressives. For the most part, New Yorkers were good with this state of affairs, the pervasive hatred of guns being more than sufficient to just say no. After Heller and McDonald, not much changed. More to the point, the Second Circuit was on board, basically ignoring the Supreme Court and tempting a reversal. The Supreme Court wasn’t up to the task.

In the meantime, prosecutions for criminal possession of a weapon proceeded apace, with its harsh penalties. The argument, that many of the people prosecuted had either a fairly innocent excuse for their possession of a gun such as traveling through New York with an otherwise permitted weapon, or possessing a gun because they lived in a part of town where there was a real risk of being murdered and there was little chance the cops would save them. The argument that the defendant had a gun for self-defense was sometimes true, and simultaneously ignored that the risk arose from someone else having a gun that wasn’t for self-defense, which is why the risk existed.

And, occasionally, guys selling drugs on the corner had to protect their turf or deal with a consumer who didn’t feel like paying. Unsavory uses occasionally happened. Of course, it’s impolite to bring up unpleasant reality when arguing a cause.

The public defenders were faced with a conflict. In the grand scheme of things, the best solution would be that no one had guns. Not their clients. Not the cops. Not anyone. But that wasn’t the world in which we live, and like it or not, they had clients to defend and some of those clients had guns, so that was where they found themselves even though they might well have preferred to be elsewhere. And if there was a Second Amendment right to keep and bear arms, as the Supreme Court held, and if they had clients who exercised that right, why were they being arrested, prosecuted and sent to prison? Where were their clients’ Second Amendment rights?

The consequences for our clients are brutal. New York police have stopped, questioned, and frisked our clients on the streets. They have invaded our clients’ homes with guns drawn, terrifying them, their families, and their children. They have forcibly removed our clients from their homes and communities and abandoned them in dirty and violent jails and prisons for days, weeks, months, and years. They have deprived our clients of their jobs, children, livelihoods, and ability to live in this country. And they have branded our clients as “criminals” and “violent felons” for life. They have done all of this only because our clients exercised a constitutional right.

They’re right, even if this position is in support of a party with whom they would otherwise share pretty much no common interest.

The idea that groups such as public defenders would take a stance in support of the Second Amendment, offer amicus support for the appellant in this case, is, frankly, shocking. Gun control, if not gun eradication, is a sacred cow to progressives in general, and New York progressives in particular. I still remember the debate I had with Jesse Wegman of the New York Times editorial board after Heller, which ultimately ended with Jesse telling me, “but it’s guns, and guns kill, so who cares about constitutional rights?” Guns were different. Guns were evil. No decent person isn’t against guns.

Yet, here they are, the New York public defenders, perhaps the most progressive group of lawyers to be found anywhere in the universe, arguing that the New York gun permitting regime violates the Second Amendment. Not only is this the principled position to take in light of the Supreme Court’s Heller ruling, but it’s the position that supports their clients, which should always be their primary focus. The pushback must have been enormous. There were no doubt angry words thrown about promiscuously. But these public defense groups took the principled position. For that, they deserve respect.


13 thoughts on “Surprising Friends of The Second Amendment

  1. Jeffrey M Gamso

    And a reminder, to the public that too often refuses to believe it, that defending a client isn’t the same thing as approving of what the client is said to have done (or, sometimes, actually did).

    1. SHG Post author

      To which “public” at SJ are you referring?

      In this instance, that the focus is on defending the client is, in itself, a huge accomplishment for a group that would prefer it be known as “public interest lawyers” rather than public defenders, as there is a strong current of putting the cause ahead of the client. Here, the client came first, and that’s huge.

      1. SHG Post author

        [Moved, because Gamso’s religion precludes him from using the reply button.]
        Jeffrey M Gamso

        Not the SJ public (at least not most of it), but the folks (and there are many) who believe that canard.

        It’s particularly telling when the expectation is smashed fully by the counterintuitive – as in this case or as when (a day perhaps not to be repeated anytime soon), when David Goldberger for the ACLU defended the nazi’s right to march in Skokie.

        And yes, the approbation here is real and dramatic.

        1. SHG Post author

          When some asshole on twitter raises the canard, I will leap to the fore to disabuse him of his idiocy. I just prefer to believe that readers here either know better or need a personalized smack if they make such a foolish mistake. Sometimes I worry about Gertruding or being an anticipatory scold. There are too many of them already.

  2. Elpey P.

    Enforcement of gun restrictions is The New Jim Crow. Hell, probably even worse than 2018 voting norms.

  3. L. Phillips

    I’m going outside to eat some crow and watch pigs fly by. A principled, client centered, non-snarky defense of the second amendment offered by New York public defenders. Stunning. My world view is obviously too narrow.

    1. Hunting Guy

      Damn. Not only flying pigs, but Hell just froze over.

      I’d like to see the internal emails on the subject. Bet they make for some juicy reading.

  4. RCJP

    One would think civil liberterians, say, a Union of Americans decicated to Civil Liberties, especially for minorities, would take up a case of equal application of the law for minorities. But, no.

    In the end, I think this plays well for everyone. Poor folks will be able to legally defend themselves and “nobody can get a CCW license so who cares if John has one” goes away.

  5. Sacho

    “but it’s guns, and guns kill, so who cares about constitutional rights?”

    That does explain the complete abandonment of the First once words became violence.

    I can’t help but worry that this otherwise principled and noble stance was not sanctioned by the progressive hive mind, and we’ll be getting a retraction and public apology soon. It won’t be the first time a prog’s conscience causes them to commit heresy, and then comes the Inquisition. Bah, now I sound like McLeod.

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