New York Criminal Appeals

Historic Decision May be the Foot in the Door to Future Expansion of Right to Possess Guns

In this article, New York Criminal Appeals Lawyer Tom Theophilos briefly discusses the meaning and impact of the Supreme Court case of McDonald v. Chicago.

Mr. Theophilos emphasizes that while historic in its application of the Second Amendment to the states, the decision is not a blanket license for everyone in the United States to purchase guns for the home without regard to local laws.

Nevertheless, the decision may offer possible defenses to those charged with criminal possession of a weapon in limited circumstances. Further, the McDonald decision may form the basis upon which to make broader attacks on gun laws in New York.

If you have any questions or would like to speak with New York Criminal Appeals Attorney Tom Theophilos about a New York State Criminal Appeal or a Federal Criminal Appeal, please call 866-447-7899.

Historic Supreme Court Gun Decision - What it Means for Gun Ownership in New York

Constitutional Right to Possess Gun in Home for Self Defense - But Not Without Limits

On June 28, 2010, The United States Supreme Court in the case of McDonald v. Chicago held that states may not categorically ban the right of all individuals to possess and own handguns in their homes. The court based its ruling on the Second Amendment to the United States Constitution which guarantees the right of the people to keep and bear arms.

The decision emphasized the basic right of people to possess a gun in their homes for purposes of self-defense.

The decision, however, does not prohibit states from precluding certain people from possessing guns in their homes, but simply holds that a State may not prohibit all people from exercising this right. Additionally the decision does not prohibit states from requiring that individuals secure a pistol permit before being able to possess weapons in their homes. Nevertheless, if the requirements to procure a permit are excessively onerous then these requirements may violate the Constitution.

Therefore, people should not conclude that they can now simply go out and get handguns to keep in their homes. New York State laws do not categorically ban all people from possessing a handgun in their homes. In New York, you can own a gun if you have a permit. The McDonald decision, therefore, may not impact New York law unless, of course, someone is successful in arguing that any restrictions which presently exist are unduly burdensome.

If you wish to purchase and keep a handgun in your home, you should apply for a permit to purchase the gun. If that permit is denied, then your remedy is to file a civil suit against state or municipal authorities asking that the permit requirements be set aside so that you can purchase the gun.

Under no circumstances should anyone think that they can now simply go out and buy a gun without a permit and feel that they are safe in doing so because of this new Supreme Court case. If the police find out that someone has done this then that person will be arrested and charged with a crime. Furthermore, even if someone has a permit to own a weapon there could be additional restrictions on its possession and use. *

Impact on Criminal Possession of Weapon Charges in New York?

It is conceivable that aspects of the McDonald case can be applied to one charged with criminal possession of a weapon in their own home in New York. As an example, assume that someone has been the victim of a crime in his own home or has had threats made against him. Assume further that the individual applied for a permit on that basis and was unreasonably denied a license to possess a weapon in their home, but purchased one nevertheless. If this person is then arrested for possessing a gun in his home in violation of New York State law, then an argument could be made, based on the McDonald decision, that his constitutional right to bear arrns was violated requiring that the criminal case be dismissed.

This is but one example of how the McDonald case could be used to help someone who is presently charged with illegal possession of a weapon in his home. There may be other such examples.

If you have been charged with possessing a weapon in your home then you should speak with your lawyer about interposing a defense based on your Second Amendment right to bear arms. In order for such a claim to be successful, it is necessary that the proper arguments be made to the trial court so as to preserve your rights to appeal any adverse decision of that court. A criminal appellate attorney should be consulted so that he can work with trial counsel to make sure the trial record is properly preserved so as to protect any appellate rights.

Beyond the McDonald case

While the McDonald case has the limited meaning discussed above, it does represent a foothold from which broader attacks can be made on crimes charging criminal possession of a weapon. For example, regulations regarding the carrying of concealed weapons outside the home may now be ripe for challenge given the reasoning of McDonald.

Certainly, anyone accused of or recently convicted of criminally possessing a weapon in New York, would be wise to raise the issue of the impact of the McDonald decision on his specific case.

* Individuals who either have a weapon or wish to purchase one should consult a qualified criminal attorney about the laws and regulations associated with owning, possessing, and purchasing guns. This website is not intended to constitute legal advice in this regard. It is simply intended to give readers an idea about a new area of law which they can then discuss with a qualified attorney. No one should purchase or possess a weapon based soley on the information contained in this website.