Recently I utilized the Supreme Court’s decision over the summer in New York State Rifle and Pistol Assn., Inc. v. Bruen, 597 U.S.—; slip op. No.20-843 (June 23, 2022) to challenge a client’s sentence. His appeal was pending when the Bruen decision was handed down so I prepared an argument to challenge the constitutionality of New York violent felony sentencing in cases where the defendant is convicted of criminal possession of a weapon in the second degree [PL 265.03(3)] for possessing an unregistered firearm outside the home.
Based upon the reasoning expressed in the Bruen decision, the classification and sentencing range associated with Penal Law § 265.03(3) is now unconstitutional, and in violation of the Second, Eighth, and Fourteenth Amendments to the U.S. Constitution. The distinction the Penal Law draws between inside-the-home firearm possession and possession outside the home, with respect to the sentences that can be imposed, is no longer constitutionally tenable after New York State Rifle and Pistol Assn., Inc. v. Bruen, which expressly rejected any such distinction. As such, the sentencing disparities created by the Penal Law’s distinctions are irrational and allow for gross disparities in violation of the Second, Eighth and Fourteenth Amendments. Therefore, defendants convicted of this offense should be afforded the same non-violent sentencing options available to individuals convicted of in-home possession of a firearm pursuant to either Penal Law § 265.01, Criminal Possession of a Weapon in the Fourth Degree, a Class A misdemeanor or Penal Law § 265.01-b, Criminal Possession of a Firearm, a Class E Non-Violent Felony.
In District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), the Supreme Court held that the Second and Fourteenth Amendments protect an individual’s right to keep and bear arms for self-defense. In so doing, the Court held unconstitutional two laws that prohibited the possession and use of handguns in the home. Then, in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.—, slip op. No.20-843 (June 23, 2022), the Supreme Court considered, and struck down, New York’s “may-issue” permit regulations for outside-the-home possession of a handgun, which required “proper cause”—i.e., demonstration by the permit applicant of a special need to be granted a handgun for self-defense. Id. at 30.
The Bruen Court held that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home without the requirement that the applicant prove that he has a specific need to possess a firearm for personal defense. The foundation for that conclusion was that the Second Amendment did not allow a distinction between inside-the-home possession and public carry. Id. at 23 (“Nothing in the Second Amendment’s text draws a home/public distinction with respect to bear arms.”). As the right to bear arms for self-defense is “‘the central component of the [Second Amendment] right itself,” confining the right to “bear” arms to the home would “make little sense.” Bruen at 24, quoting Heller at 599 (brackets in original). The Court stated that “many Americans hazard greater danger outside the home than in it.” Id. Under the proper-cause standard, the burden fell upon the person applying for the handgun permit that he or she had a special need to possess a firearm based upon specific circumstances within that persons life. Thus, if an applicant stated the reason for the handgun was for self-defense outside the home, the applicant was required to prove that his or her neighborhood had a high crime rate and that he or she had been the target of violence necessitating the issuance of a permit for self defense.
The Bruen Court held that New York’s proper-cause requirement violated the Second and Fourteenth Amendments because it prevented citizens from exercising their Second Amendment right to keep and bear arms in self-defense outside the home. Id. at 63. New York’s public-carry proper-cause requirement was contrary to our “nation’s historic tradition of firearm regulation,” which drew no distinction between possession in the home or in public. Bruen at 9, 15, 25 (“Only if a firearm regulation is consistent with this “Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”). Central to the Supreme Court’s holding was its recognition that the Second Amendment tolerated no distinction between firearm possession in the home or in public; the Second Amendment protected both equally. Therefore, applicant’s are no longer required to prove or justify the need to possess a firearm outside the home for self-defense.
The New York Legislature’s determination that public carry is “more reprehensible” than inside-the home possession, and thus deserving of a classification as a Class C violent offense and punishment of up to 15 years in prison cannot be squared with the rationale expressed in Bruen. New York’s decision to punish public carry so much more harshly than illegal in-home gun possession, is no longer constitutionally viable because it rests on the false premise that gun possession in public is subject to lesser constitutional protection than inside-the-home possession. Regardless of the constitutionality of Penal Law § 265.03(3), the sentencing distinctions the penal law currently draws between in-home and public carry can no longer be sustained. Thus, Penal Law §§ 70.02(1)(b), (2)(a) and (3)(b) are unconstitutional as violative of the Second, Eighth and Fourteenth Amendments generally and applied to defendants who possessed a firearm outside the home without the intent to use it unlawfully against another person.
New York’s classification of Penal Law § 265.03(3) as a class C violent felony offense, and the harsh sentencing range associated with that classification in PL § 70.02, contravenes the protections afforded by the Second Amendment and the proscriptions of Due Process, Equal Protection, and the Eighth Amendment.
Applying the reasoning in Bruen, New York’s Class C Violent Felony sentencing range for possession of handgun outside the home, violates the Second Amendment under Bruen’s historical analysis methodology. When a specific Amendment provides an “explicit textual source of constitutional protection,” a court must analyze the challenge by reference to the Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) (analyzing “excessive force claim” under the Fourth Amendment). Here, the sentencing distinctions between unlicensed in-home weapon possession and unlicensed public possession are drastic: unlicensed possession of a gun in the home is prosecutable as a class A misdemeanor [PL § 265.01] or a non-violent E felony [PL § 265.01-b], punishable by no more than 364 days in jail for the misdemeanor, and at most, an indeterminate term of 1-1/3 to 4 years for the felony with the option to impose a non-incarceratory sentence of probation or a conditional discharge.
The punishment for public possession of a handgun under PL § 265.03(3), in contrast, is a Class C-Violent Felony with a potential determinate sentence ranging from a mandatory minimum of 3-½ years in prison up to a maximum term of 15 years in prison, followed by a period of mandatory post-release supervision of up to five years. Under Bruen, this punishment scheme, predicated on a distinction between in-home and public possession, can only be sustained if the legislature can establish a historical tradition justifying it. Bruen at 14-15; cf. People v. Hughes, 22 N.Y.3d 44, 51 (2013) (assuming without deciding that the Second Amendment applies to the penalties that may be imposed for unlawful gun possession). Bruen itself confirms the government’s inability to show such an historical tradition. In its holding, Bruen repudiated any basis in the Second Amendment’s text or this nation’s history for distinguishing home possession from public carry, there is likewise no basis for exacting exponentially harsher penalties on those guilty of possessing unlicensed firearms in public, versus those who engage in the same conduct but do so in the home.
Further undercutting any possible argument by the State of New York is the majority’s observation in Heller that even those few founding-era laws that punished discharge of a gun within city limits, including a Rhode Island law that fined the discharge of guns in streets and taverns, “punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail, not with significant criminal penalties.” 554 U.S. at 632-33. The “significant criminal penalties” of up to 15 years in prison that New York imposes on individuals exercising their fundamental right of public carry for self-defense merely for not obtaining a license thus finds no support in the history and traditions of this country. For this reason alone, Penal Law § 70.02(1)(b)’s violent felony classification and Penal Law § 70.02(3)(b)’s sentencing provisions with respect to Penal Law § 265.03(3) is unconstitutional under the Second Amendment.
New York’s sentencing distinctions based on in-home and public possession also violate Due Process and Equal Protection. As noted above, § 70.02(1)(b) classifies Penal Law § 265.03(3) as a Class C Violent Felony offense. Penal Law § 70.02(2)(a) provides that the sentence imposed on a Class C Violent Felony offense must be a determinate term of imprisonment. Penal Law § 70.02(3)(b) states that the determinate term of imprisonment for a Class C Violent Felony Offense “must be at least three and one-half years and must not exceed fifteen years.” Penal Law § 70.45(2)(d) mandates a period of post-release supervision up to five years upon conviction of a class C Violent Felony Offense. This stands in sharp contrast to the probationary, conditional and unconditional discharge, jail sentences, and modest indeterminate prison sentences available to first felony offenders who are convicted of unlicensed inside-the-home loaded firearm possession under PL §§ 265.01 or 265.01-b.
Under the Equal Protection and Due Process clauses, when the State draws statutory distinctions within the context of fundamental rights, strict scrutiny applies: the government must show a compelling State interest in the distinction and that the distinction is narrowly tailored to accomplish that interest. See e.g., Myers v. Schneiderman, 30 N.Y.3d 1, 21-22 (2017) (if legislation burdens a fundamental right, strict scrutiny applies); Alevy v. Downstate Med. Ctr.,39 N.Y.2d 326, 332 (1976). The Supreme Court has now confirmed that the right to possess a firearm outside the home is a fundamental right that has been enshrined in our Constitution for centuries and of equal importance to possessing a handgun in the home for purposes of self-defense. Bruen, slip op at 4; McDonald, 561 U.S. at 791.
The Penal Law’s statutory distinctions cannot overcome strict scrutiny. As Bruen held, an individual’s fundamental right to bear arms for self-defense under the Second Amendment equally protects both in-home and outside-home possession. Although States have available to them constitutionally acceptable ways to regulate the unlicensed possession of firearms, see, e.g., Bruen, slip op. at 3 (Kavanaugh concurrence), the State can show no compelling interest in classifying and punishing mere possession outside the home more severely than in the home. The absence of a required license does not change the essential conduct as to provide any reason, let alone a compelling reason, to differentiate between the possessions.
This statutory sentencing disparity cannot even satisfy rational basis review. See Chapman v. United States, 500 U.S. 453, 464-65 (1991); U.S. const., amend XIV; N.Y. Const. art. I § 6, 11. Rational basis review is not “toothless.” Mathews v. Lucas, 427 U.S. 495, 510 (1976). The State cannot rely on a distinction “whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446 (1985). Courts of this state, whether expressly relying on Due Process or not, have recognized that the “fairness of the criminal justice system requires some measure of equality in the sentences meted out to defendants who commit the same or similar crimes.” See People v. Barone, 101 A.D.3d 585, 587 (1st Dep’t 2012); People v. Schonfeld, 68 A.D.3d 449, 450 (1st Dep’t 2009).
In the wake of Bruen, no rational distinction can be drawn between unlicensed in-home firearm possession on the one hand, and unlicensed public carry on the other. In turn, the classification of in-home possession as a misdemeanor or non-violent, Class E Felony offense, and the public carry offense as a Class C Violent Felony Offense, is irrational. Bruen’s express holding that public carry is no less protected under the Second Amendment than in-home possession renders arbitrary and irrational the New York Legislature’s policy choice to label unlicensed public possession as a “reprehensible” violent offense warranting harsh punishment including a prison sentence as long as 15 years. Regardless of whether “unlicensed” possession remains a crime in New York after Bruen, the Constitution forbids a harsher outcome for individuals who possess firearms outside the home without a “proper-cause” license.
Finally, the Eighth Amendment compels this conclusion. U.S. Const., Amend VIII. Punishments that are “grossly disproportionate to the crime” are prohibited by the Eighth Amendment. See Solem v. Helm, 463 U.S. 277 (1983) (the Eighth Amendment incorporates the “deeply rooted principle” that a punishment should be proportional to the offense); People v. Broadie, 37 N.Y.2d 100 (1975). The 15-year maximum that may be imposed for conviction of Penal Law § 265.03(3) makes the challenged provisions of Penal Law § 70.02 appropriate for Eighth Amendment scrutiny. Solem, at 291. Indeed, even “a single day in prison may be unconstitutional in some circumstances.” Id. at 290. The 15-year penalty that can be imposed for public carry is, on its face, is “grossly disproportionate” to the far less severe penalties – including minimal jail time, or no jail time at all – for constitutionally indistinguishable conduct as defined by Bruen.
In conducting this scrutiny, a Court must consider the gravity of the offense and the gravity of the danger the offender poses to society. Solem, at 291. Here, again, the Supreme Court’s unequivocal ruling protecting public carry under the Second Amendment is dispositive. Conduct expressly and textually protected by the United States Constitution, and supported by centuries of American history, cannot at the same time be labeled a “grave” offense, nor can such conduct categorically be considered a danger to society. The defendant’s character also supports finding the sentence disproportionate especially where there is a complete absence of prior arrests and convictions. See Broadie, 37 N.Y.2d at 113.
Accordingly, Penal Law §§ 70.02(1)(b), 2(a) and (3)(b) violate the Second Amendment, the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments, and the Eighth Amendment with respect to the classification and punishment of Penal Law § 265.03(3). Such determinate sentencing is harsh and excessive given that the Class E Non-Violent Felony Offense of Criminal Possession of a Firearm in violation of PL § 265.01-b, only carries a potential sentence of a conditional discharge, or probation or up to a maximum indeterminate sentence of 1 1/3 to 4 years in prison and the Class A misdemeanor of Criminal Possession of a Weapon in the Fourth Degree in violation of PL § 265.01, which carries a potential sentence of a conditional discharge, or probation or up to a maximum of 364 days in jail.
Although Hughes applied intermediate-level scrutiny to analyze whether firearm regulations, 22 N.Y.3d at 51, including punishments, satisfied the Second Amendment, Bruen invalidates Hughes’ intermediate-scrutiny approach. As Bruen expressly held, intermediate scrutiny does not apply; instead the State bears the burden of justifying a regulatory scheme by pointing to an American tradition justifying that scheme. Bruen at 13-15.