Friday, December 05, 2008


Plax Goes To Heller

The Plaxico Burress situation has been making headlines in New York all week. For the most part, it fell into the category of "dumb" football player making a pretty stupid mistake: Football player with unlicensed gun in his sweatpants, goes into nightclub, last Friday night/early Saturday morning; gun slides down his pantleg, he tries to reach for it; gun goes off, wounding player.

From there it becomes uber-complicated, as Burress' fellow Giant -- defenseman Antonio Pierce -- allegedly hides the gun in his (or another player's car); Plaxico is taken to a hospital where other Giants have been treated before; his wound is treated -- but, contrary to New York laws, the hospital doesn't report the gun shot wound to the cops. The club didn't report the incident either; the Giants didn't report the incident, even though they reportedly learned about it several hours before the cops. (The Giants dispute this allegation.)

However, one of the most frustrating aspects of the case has been the attitude of Mayor Michael Bloomberg. One of the mayor's biggest causes over the last few years has been has been his jihad against illegal guns. He's formed an ad hoc association with other mayors to pressure Congress for stronger laws against illegal guns (Mayors Against Illegal Guns -- how creative).

So, this Burress situation is right in Bloomberg's wheelhouse. This week, he's been taking every opportunity to insert himself into the case. On Monday, he demanded that Burress be "prosecuted to the fullest extent of the law." He demanded to know why the hospital hadn't followed the law; he was enraged that the State Liquor Authority hadn't started looking into the nightclub's liquor license. Not surprisingly, with each pronouncement coming out of the mayor's mouth, each city -- and often, state, agency -- has been making sure that every "i" is being dotted and "t" crossed on this case. The law Burress may have broken is a tough one: He's been hit with two charges of gun possession and faces 3 1/2-15 years in prison. The Giants have essentially suspended him for the season.

That isn't to say that there hasn't been a little bit of backlash on the mayor. Several callers to local TV and radio sports shows have noticed that the mayor's outrage in following the law is rather selective. You see, Bloomberg and the New York City Council recently changed a term limits law twice passed by referendum. As a result, the mayor and council members now have a twelve years in office, instead of eight. Bloomberg, barely a year ago said that no change to the term limits law should be made without it being put through the referendum process. So much for that. (The fact that the mayor also seemed more exercised over a football player who shot himself in the leg -- rather than a city bus driver who was brutally stabbed to death by a thug who got on without paying -- also raised questions about Hizzoner's priorities.)

And then comes Dave Kopel. Writing in the Wall St. Journal online, he touches on a point that, unfortunately, no one else has: There may actually be a difference between an "illegal" gun and an "unlicensed" one. No one disputes that Burress' gun is not licensed in New York. However, it has yet to be proven that he purchased the gun illegally: Burress has had a gun permit for the state of Florida where he maintains a home. And, significantly, New York has likely the most stringent gun control law in the country. Indeed, in light of the Supreme Court's recent District of Columbia v. Heller decision, New York's law might be unconstitutional:

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.

To underscore, Kopel's point: Non-residents, like Burress, aren't even allowed to apply for a permit in New York.

Now, none of the above takes away from the fact that Burress was reckless in the handling of his gun -- not having it holstered, having the safety off, possibly drinking while carrying it, etc. However, similarly the facts of the case can't eliminate the likelihood that the law Burress is accused of breaking is unconstitutional -- and even a gun-hating mayor has to follow the constitution, whether he likes its particular application in this situation or not.

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