“If a guy can’t be counted on to attend team meetings or practice, can he be entrusted with a gun?” asked Fox Sports’ Mark Kriegel earlier this week, applying a somewhat interesting qualification to the Second Amendment. The Cato Institute‘s David Kopel takes an entirely different tact in Thursday’s Wall Street Journal, opining “legislators and mayors like to appear tough by pushing through draconian laws. Yet the victims are people like Plaxico Burress whose conduct may have been improper, but who do not deserve the same sentences meted out to robbers and burglars.”
Mr. Burress’s behavior was bad. However, Mr. Burress is not facing prosecution for carelessness, but simply for carrying a weapon. This is unjust and perhaps unconstitutional. The legal issues are a bit tangled, but here is the background:
This summer, the Supreme Court ruled in District of Columbia v. Heller that the District’s handgun ban, and its ban on use of any firearm for self-defense in the home, violated the Second Amendment, which guarantees the individual right to bear arms. D.C. is a federal enclave, and the Court did not rule whether the Second Amendment applies to state and local governments. But as other cases reach it in the wake of Heller, it will.
The Heller decision did not say that requiring a license to carry a gun was unconstitutional. But in New York State, nonresidents cannot even apply for the licenses to possess or carry a handgun. Unlike most other states, New York refuses to honor carry permits issued by sister states. Most observers believe that the Supreme Court will eventually make state and local governments obey the Second Amendment. If it does, New York’s discrimination against nonresidents will probably be ruled unconstitutional.
And then there is the issue of the permitting process for residents. In 40 states, including Connecticut, law-abiding adults are issued permits once they pass a fingerprint-based background check and a safety class. In New Jersey, carry permits are virtually never issued. In New York City, carry permits are issued, but to applicants with some form of political clout rather than on the basis of his or her need for protection.
The Second Amendment might not require New Jersey or New York City to issue as liberally as Connecticut does. But with a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City’s licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.
Some commentators contend that Plaxico Burress should have hired bodyguards, instead of carrying a gun himself. Mr. Burress might now agree. But people who aren’t as wealthy as he is also deserve to be safe, and they don’t have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.