Tuesday, December 09, 2008

Plaxico Burress - Are Hunting and Target Shooting Illegal in New York State?

Update: Thanks to George P. Conway for the comment. Penal Law §265.20 sets forth a list of exceptions. I'm not sure these exceptions clearly apply to loaded firearms. That would seem to be the natural conclusion, but it's not completely clear.
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At the bottom of this post is an image of the first page of the felony complaint in the Plaxico Burress gun case. He's accused of violating Penal Law § 265.03, a Class C felony. The statute reads as follows:

§ 265.03. Criminal possession of a weapon in the second degree
A person is guilty of criminal possession of a weapon in the second degree when:
(1) with intent to use the same unlawfully against another, such person:
   (a) possesses a machine-gun; or
   (b) possesses a loaded firearm; or
   (c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this [fig 1] subdivision if such possession takes place in such person's home or place of business.


When this case first broke I couldn't figure out why he was being charged with a felony. I heard someone say that the law had recently been amended.

Here's the deal. Subsection (3) was added in 2006, effective November 1, 2006. The new law makes it illegal to possess a loaded firearm, except in your own home or business.

Um ... does that mean it's now a felony to hunt or target shoot with a firearm in New York State? How does this apply to those who have a valid pistol license under Penal Law §400? You can carry a pistol, but you can never load it?

§265.03 used to include only the first two paragraphs. What I suspected was that Burress was charged with the "intent to use unlawfully against another." And the complaint below does indicate that. I'm not sure how shooting yourself in the leg by accident fits with intent to use against someone else, but that apparently doesn't matter now that we have Subsection (3).

The next question for Plaxico's lawyers is whether §265.03(3) violates the Second Amendment. Since the US Supreme Court now acknowledges the right to keep and bear arms (RKBA) as an individual right, that's going to create a lot of issues in New York.

One thing you hear about the Burress case is that he did not have a NY pistol license. But residents of other states cannot get a NY license. Penal Law §400(3)(a) spells out the application process:
Applications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper;

If you don't reside in the state, or are not principally employed in the state (Plax resides and works in NJ), then there is no applicable city or county. This creates two constitutional issues. The obvious one is the Second Amendment. But there's also a Privileges and Immunities clause issue - a state must accord the same privileges and immunities to residents of other states that it provides to its own residents. If the state provides a way for residents to get a license, then it should provide a way for non-residents to get a license as well.

A guy named David Bach challenged this issue back in 2003 and lost, but the District Court there relied on the notion that the Second Amendment does not create an individual right. The Second Circuit did not address it that way, holding instead that ""the Second Amendment's "right to keep and bear arms" imposes a limitation on only federal, not state, legislative efforts. Bach v. Pataki, 408 F.3d 75 at page 84. It is unclear whether that analysis holds up in light of DC v. Heller, the recent Supreme Court decision.

I'm still interested in knowing how this applies to all the hunters and target shooters in New York State. Is there some other exemption that doesn't appear in §265.03?

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