Davis argues Bruenrecognizes a constitutional right to carry firearms in public and New York law violates the Second Amendment and the due process clause because it criminalizes constitutionally protected firearm possession.<\/p>\n
During oral arguments on Tuesday before New York\u2019s highest appeals court, Judge Shirley Troutman quickly asked Davis\u2019 attorney whether states are prohibited from having licensing schemes.<\/p>\n
\u201cStates are not prohibited from having licensing schemes, no,\u201d Rochester-based public defender Guy Talia said.<\/p>\n
\u201cSo what is wrong with New York\u2019s current law then?\u201d Troutman responded.<\/p>\n
Talia explained under New York\u2019s current law, the exemption provided for licensed carry is in a separate provision than the criminal statute.<\/p>\n
\u201cWhat it means is that it\u2019s raised as a defense,\u201d he told the panel. \u201cSo the licensure is raised as a defense, and what that does is it puts the burden on the defendant to raise it.\u201d<\/p>\n
Judge Michael Garcia queried: \u201cWhat about the carrying of an assault rifle, could they prohibit that? I guess we\u2019ll find out soon enough,\u201d referring to Supreme Court arguments<\/a> later this year on challenges to the constitutionality of bans on AR-15s and other semiautomatic rifles.<\/p>\n \u201cWhat if it was a prior felon with a gun \u2014\u00a0could you prosecute it then?\u201d the judge asked.<\/p>\n \u201cThere\u2019s no constitutional right to possess a firearm as a prior felony, right,\u201d Talia said. \u201cI think that it\u2019s safe to say that that\u2019s an applicable restriction. You can just become disqualified if you\u2019re a dangerous felon.\u201d<\/p>\n Judge Jenny Rivera asked Talia what, in his view, was the \u201clegislative fix\u201d to his client\u2019s claims of unconstitutional burden-shifting regarding handgun licensure.<\/p>\n \u201cThe legislature can draft a statute simply saying that it\u2019s unlawful to possess a handgun in public without a license,\u201d he said.<\/p>\n \u201cSo just a few words,\u201d the judge responded. \u201cTake language from another subsection and embed in the section?\u201d<\/p>\n Seeking to affirm the lower court\u2019s dismissal of Davis\u2019 challenge, Amy Walendziak from the Monroe County District Attorney\u2019s Office<\/a> argued Bruen did not expand preexisting Second Amendment protections \u201cto be the right for anyone anywhere to possess any weapon in whatever manner they choose.\u201d<\/p>\n \u201cBruen has specifically said that it\u2019s constitutionally permissible for the 43 states to have their shall-issue licensing regimes,” Walendziak said. \u201cSo it is necessarily a right that is subject to licensure.\u201d<\/p>\n New York insists the state\u2019s criminal firearm possession laws prohibit only the unlicensed possession of firearms and were not invalidated by Bruen. The attorney general argues the challenge should be rejected because the law prohibits possession of a loaded firearm only when a person lacks a valid license and cannot invoke any other exemptions.<\/p>\n \u201cNothing in Bruenmakes the legislative choice to prohibit unlicensed possession of firearms in this way invalid,\u201d the attorney general\u2019s office wrote in an appeals filing<\/a>. \u201cThe Supreme Court in Bruenmade clear that states could continue requiring citizens to obtain a license before bearing arms in public.\u201d<\/p>\n The seven-judge panel did not rule from the bench after an hour of oral arguments Tuesday afternoon.<\/p>\n