#ABKLaw BLOG by Michael Jaccarino:  Are the Gun Laws in NYS Unconstitutional?


Are the Gun Laws in New York State Unconstitutional?

In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ___, slip op. No.20-843, 2022

WL 2251305 (June 23, 2022), the Supreme Court held that New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment, in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms.   Significantly, the Supreme Court stated that the right to bear arms for self-defense is “‘the central component of the [Second Amendment] right itself,’”  and that confining the right to bear arms to the home would “make little sense.” The Court stated that “many Americans hazard greater danger outside the home than in it.” This argument cannot be more applicable right now in New York City, where the violent crime rate appears to be escalating daily.  

So, because New York punishes the unlicensed possession of firearms, it is not the possession of a gun that is criminalized per se, but the unlicensed possession of a gun.  A person who has a valid, applicable license for his or her handgun commits no crime.  Because the Court expressly placed inside-the-home and public carry on equal footing, this could have massive implications for individuals who have been charged with the unlawful possession of a loaded firearm under the New York State Penal Law.   Indeed, the local public defenders have issued a joint statement claiming that Black and brown people in urban areas of New York State who are criminalized and incarcerated for unlicensed gun possession while unlicensed gun possession in white rural communities frequently goes unaddressed, and that this is now especially relevant considering the Supreme Court’s ruling, because the people in these urban areas are exposed to significantly more violence, and have a greater need to possess firearms to defend themselves from such violence. And yet, the police have unfettered discretion in deciding who can get a license and protect themselves.   They claim that over 90% of the people prosecuted for unlicensed gun possession in New York City are Black and brown, and that these are the people impacted by New York’s discriminatory gun licensing scheme.

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 home or place of business at various points in the proceedings.  The criminal lawyers at Aidala, Bertuna & Kamins are in the process of reviewing the validity and likelihood of success of various motions to dismiss these gun charges, wither at arraignment, after indictment, or after a guilty plea but before sentencing, on the grounds that after Bruen, Penal Law 265.03(3) is unconstitutional.  It is important for anyone who is charged with one of these crimes, usually under Penal Law Section 265.03(3), to hire an experienced criminal defense lawyer, who will evaluate whether to file motions to dismiss the current charges based on constitutional grounds.

Michael Jaccarino, and the criminal defense attorneys at Aidala, Bertuna & Kamins, PC, have decades of experience. 

For more information or more fact-specific discussions, call our office and ask to speak with attorney Michael Jaccarino.


Our attorneys are in the New York City courthouses every day, experiencing the system in real time, and using the experiences to the benefit of our clients. Stay tuned to Aidala, Bertuna & Kamins for regular information on criminal justice, and how it could affect you or someone you know who has been arrested.

Call our office to learn more, or if you have a particular legal matter that requires immediate attention: 212-486-0011 or email us at Info@AidalaLaw.com