New York Law Review

Tag: Second Amendment

  • People v. Hughes, 21 N.Y.3d 39 (2013): Second Amendment and Severity of Punishment for Gun Possession

    People v. Hughes, 21 N.Y.3d 39 (2013)

    The Second Amendment does not categorically limit the severity of punishment for unlawful gun possession, although in some extreme cases, it might; intermediate scrutiny applies when evaluating Second Amendment claims related to gun control regulations.

    Summary

    Hughes was convicted of a class C felony for possessing a loaded, unlicensed weapon in his home due to a prior misdemeanor conviction, which, under New York law, removed the “home exception” to the felony charge. Hughes argued that enhancing the charge to a felony based on a misdemeanor violated his Second Amendment rights. The New York Court of Appeals affirmed his conviction, holding that the law, which allows most misdemeanants to obtain gun licenses, substantially relates to the important government objective of preventing gun violence and keeping guns out of the hands of those who have demonstrated an inability to follow the law. The court applied intermediate scrutiny, assuming without deciding that Second Amendment scrutiny applied to the severity of punishment.

    Facts

    Hughes, who had a prior misdemeanor conviction for resisting arrest, possessed a loaded handgun in his ex-girlfriend’s apartment (deemed by the trial court to be his home as well). He did not have a permit for the handgun. Following an argument outside the apartment, Hughes shot and killed a man. He was acquitted of murder and related charges based on a justification defense but convicted of second-degree (felony) and third-degree (felony) criminal possession of a weapon because of his prior conviction and lack of a permit.

    Procedural History

    The trial court convicted Hughes of second and third-degree criminal possession of a weapon. Hughes moved to set aside the second-degree conviction, arguing a Second Amendment violation. The trial court denied the motion. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether enhancing a weapon possession charge to a class C felony based on a prior misdemeanor conviction impermissibly burdens the right to keep and bear arms under the Second Amendment.

    Holding

    No, because the statute bears a substantial relationship to the achievement of an important governmental objective.

    Court’s Reasoning

    The court assumed, without deciding, that the Second Amendment could limit the severity of punishment for unlawful gun possession. It then applied intermediate scrutiny, a standard adopted by several federal circuit courts following District of Columbia v. Heller and McDonald v. City of Chicago. The court reasoned that New York’s law, which elevates the charge to a felony only when the possessor has a prior conviction and lacks a license, is substantially related to the important government objective of preventing gun violence. The law allows most misdemeanants to obtain gun licenses, mitigating the burden on Second Amendment rights. The court emphasized that “preventing the criminal use of firearms is an important government objective; and keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end.” The court explicitly chose not to explore what a truly draconian sentence might have meant for the outcome of the case. Thus, the court found that the 3 1/2 year sentence Hughes received did not violate the Second Amendment.

  • Matter of Kachalsky v. Cacace, 14 N.Y.3d 743 (2010): Defining ‘Substantial Constitutional Question’ for Appellate Review

    14 N.Y.3d 743 (2010)

    The case addresses the interpretation of what constitutes a ‘substantial constitutional question’ sufficient to warrant an appeal as of right to the New York Court of Appeals under Article 6, § 3 (b) (1) of the New York Constitution and CPLR 5601 (b).

    Summary

    Alan Kachalsky appealed the denial of his application for a concealed carry pistol license, arguing that the ‘proper cause’ requirement of New York Penal Law § 400.00 (2) (f) violated the Second Amendment. The Court of Appeals dismissed the appeal sua sponte, finding that no substantial constitutional question was directly involved. Judge Smith dissented, arguing that the Second Amendment issues raised were indeed substantial, especially in light of the Supreme Court’s recent holdings and pending cases on the Second Amendment’s applicability to the states. The dissent contended that the court was improperly using its discretion to avoid hearing a case it was obligated to hear under the New York Constitution.

    Facts

    Alan Kachalsky applied for a license to carry a concealed pistol or revolver in New York. His application was denied because he failed to demonstrate ‘proper cause’ as required by New York Penal Law § 400.00 (2) (f). Kachalsky argued that this ‘proper cause’ requirement infringed upon his Second Amendment rights.

    Procedural History

    Kachalsky’s challenge to the denial of his pistol license application was rejected by the lower courts. He then appealed to the New York Court of Appeals as of right, asserting that his appeal directly involved the construction of the United States Constitution. The Court of Appeals dismissed the appeal sua sponte, determining that no substantial constitutional question was directly involved.

    Issue(s)

    Whether the denial of a pistol license based on the ‘proper cause’ requirement of New York Penal Law § 400.00 (2) (f) raises a ‘substantial constitutional question’ regarding the Second Amendment, thereby entitling the applicant to an appeal as of right to the New York Court of Appeals under Article 6, § 3 (b) (1) of the New York Constitution and CPLR 5601 (b).

    Holding

    No, because the Court of Appeals determined, without further explanation, that the constitutional questions presented were not ‘substantial’ enough to warrant an appeal as of right.

    Court’s Reasoning

    The majority opinion provides no reasoning, simply stating that the appeal is dismissed because no substantial constitutional question is directly involved. Judge Smith’s dissent argues that the court is incorrectly interpreting the meaning of “substantial constitutional question.” Smith asserts that the Second Amendment issues are indeed substantial, especially considering the Supreme Court granted certiorari in McDonald v. City of Chicago to determine whether the Second Amendment applies to the states. Smith also points to District of Columbia v. Heller, arguing that it provides fair ground for litigation regarding whether ‘proper cause’ requirements for carrying concealed weapons are consistent with the Second Amendment. Smith contends that the court is improperly using its discretion to decide whether to hear the appeal, when the Constitution grants the appellant the right to have the appeal heard. Judge Smith stated, “I think, however, that petitioner has a constitutional right to have us hear this appeal, and that’s all there is to it.”