Supreme Court, New York County, July 15, 2022

Donald H. Vogelman for defendant.

Alvin Bragg, District Attorney (Jillian Shartrand of counsel), for plaintiff.

In New York State Rifle & Pistol Assn., Inc. v Bruen (597 US —, 142 S Ct 2111 [2022]), the United States Supreme Court struck down New York's firearm licensing scheme as violative of the Second Amendment. Concluding that the United States Constitution confers upon "law-abiding citizens" a right to carry firearms outside the home for self-defense (597 US at —, 142 S Ct at 2122), the Court held that the New York statute impermissibly infringed upon that constitutional guarantee because, unlike 43 other states, it required a showing of particularized need in order to obtain such a license, rendering the exercise of the right by ordinary citizens a near-impossibility. Since New York's "proper cause" requirement to obtain a concealed carry permit (Penal Law § 400.00 [2] [f]) compelled an applicant to "demonstrate a special need for self-protection distinguishable from that of the general community" (Matter of Klenosky v New York City Police Dept., 75 AD2d 793, 793 [1st Dept 1980]), it could not survive constitutional scrutiny.

Indicted for, among other things,^[FN1] two counts of criminal possession of a weapon in the second degree, defendant now moves to dismiss these charges as an unconstitutional infringement on his right to bear arms. Defendant, however, misreads both Bruen and the Second Amendment as conferring an unqualified entitlement to possess deadly weapons in public places without restriction. The Bruen Court held nothing more than that New York's previous permitting regime impermissibly burdened the right of law-abiding citizens to carry concealed firearms outside of their homes or places of business for purposes of "ordinary self-defense" (597 US at —, 142 S Ct at 2156), because that regime forbade the granting of such licenses{**76 Misc 3d at 496} absent evidence "of particular threats, attacks or other extraordinary danger to personal safety" (Matter of Martinek v Kerik, 294 AD2d 221, 222 [1st Dept 2002]). What the Court did not hold is that the Constitution forbids a state from requiring citizens to obtain a license in order to engage in such activity, so long as the ability to obtain the license is not thwarted by an obligation to demonstrate a unique need to carry such weapons beyond the general desire to protect oneself.

Defendant does not claim to have a license. He does not claim to have sought a license. He does not claim to have been denied a license, either fairly or unfairly, whether because of a failure to establish a special need or for some other reason (see e.g. Penal Law § 400.00 [1] [c]-[*2][e] [establishing ineligibility for firearm license if, for example, applicant has been convicted anywhere of a felony or serious offense; is a fugitive from justice; or is an unlawful user of or addicted to any controlled substance]).^[FN2]

On that basis alone, defendant's challenge must fail. While it may be, following Bruen, that one possessed of a license to keep a firearm in the home or place of business (see Penal Law § 400.00 [2] [a], [b]) who, in violation of the license restrictions, carries the gun outside and is sanctioned;^[FN3] or that one who sought but was denied a concealed carry license under the old, unconstitutional regime, and is then prosecuted for possessing a firearm in public, might colorably argue that such conduct is constitutionally protected and that a criminal charge for unlicensed possession of that firearm is thus forbidden, defendant is in no way so situated. Rather, having failed to seek a license, he lacks standing to bring any challenge to the licensing regime (see United States v Decastro, 682 F3d 160, 164 [2d{**76 Misc 3d at 497} Cir 2012] ["(T)o establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy" (internal quotation marks and citations omitted)]).^[FN4]

In any event, defendant does not ultimately seek to challenge New York's (former) licensing regime. That regime has already been challenged and found wanting. Instead, defendant's quarrel lies not with the licensing scheme, but with the statutes criminalizing unlicensed possession.^[FN5] In other words, he does not seek to demonstrate either that the licensing law was unconstitutional—we already know it was—or that it was unfairly applied to him—it wasn't applied to him at all—but that the Second Amendment itself, the right to bear arms, confers an absolute entitlement to possess concealed firearms in public, license be damned.

But contrary to defendant's contention, Bruen, which sought to vindicate the rights of "law-abiding, responsible citizens" who wish to obtain a license in compliance with a fairly administered law based on "narrow, objective, and definite" criteria (597 US at — n 9, 142 S Ct at 2138 n 9 [internal quotation marks and citations omitted]),^[FN6] did not hold that the State is [*3]powerless to criminalize the unlicensed possession of firearms on city streets.

To be sure, the Second Amendment protects the right to bear arms, both in one's home (see District of Columbia v Heller, 554 US 570 [2008]; McDonald v Chicago, 561 US 742 [2010]; US Const Amend II) and out (see Bruen, 597 US —, 142 S Ct 2111). But no constitutional right is absolute. Americans are well acquainted with the truism that one cannot falsely shout fire in a crowded theatre despite the free speech protections of the First Amendment (see Schenck v United States, 249 US 47,{**76 Misc 3d at 498} 52 [1919]; US Const Amend I). The Free Exercise Clause does not bar states from requiring that students in public schools be immunized against various vaccine-preventable illnesses over religious objection (see Prince v Massachusetts, 321 US 158, 166-167 [1944]; Phillips v City of New York, 775 F3d 538 [2d Cir 2015]; US Const Amend I), or from penalizing the use of hallucinogenic drugs, even though ingested pursuant to religious ceremony (see Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872 [1990]; see also Reynolds v United States, 98 US 145 [1878] [rejecting claim that criminal laws against polygamy could not constitutionally be applied to those whose religion commanded the practice]). Freedom of the press does not in all cases forbid a prior restraint on publication (see Nebraska Press Assn. v Stuart, 427 US 539, 570 [1976] ["This Court has frequently denied that First Amendment rights are absolute"]; US Const Amend I). The right of an accused to confront witnesses does not categorically prohibit a child witness in a child sexual abuse trial from testifying by one-way closed circuit television (see Maryland v Craig, 497 US 836 [1990]; US Const Amend VI). The Fourth Amendment requirement that a warrant be obtained in order to enter a private residence to effect a search or seizure permits exceptions for exigent circumstances (see Payton v New York, 445 US 573 [1980]; US Const Amend IV).

So, too, here. Like other constitutionally protected rights, the right to bear arms, as the Bruen Court recognized, is "subject to certain reasonable, well-defined restrictions" (597 US at —, 142 S Ct at 2156 [citation omitted]), including properly administered, evenhanded licensing requirements (see 597 US at — n 9, 142 S Ct at 2138 n 9; see also 597 US at —, 142 S Ct at 2161 [Kavanaugh, J., concurring] ["the Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense"]). Thus, states may constitutionally prohibit the possession of firearms by felons and the mentally ill; the carrying of firearms in sensitive places, such as schools and government buildings; and the carrying of "dangerous and unusual weapons" (Heller, 554 US at 626-627). In other words, "[l]ike most rights, the right secured by the Second Amendment is not unlimited" (id. at 626).

Defendant's reading of the Second Amendment, unsupported by Bruen, would turn New York into the Wild West, placing its citizens at the mercy of criminals wielding unlicensed firearms, concealed from public view, in heavily populated areas. The{**76 Misc 3d at 499} last two months alone have seen 10 people shot to death in Buffalo; 21 people, including 19 children under the age of 12, shot to death in Uvalde, Texas; and seven people shot to death in Highland Park, Illinois. Many more were wounded. And apart from these headline-grabbing tragedies are the hundreds of other daily instances of gun violence that garner little attention. This court has a full inventory of such cases.

Defendant misreads Bruen as eviscerating the police powers of the State to address criminality, or as applying to anyone other than law-abiding citizens. Failing to seek a license before roaming the streets with a loaded firearm is not abiding by the law, and nothing in the Second Amendment requires that it be tolerated. The Constitution is not a suicide pact. The motion to dismiss is denied.^[FN7]