<![CDATA[Bruen]]>

New York Judge Calls Gun Possession Law Unconstitutional

November 28, 2023 by Cam Edwards Leave a Comment

Does possessing a firearm without a permit imply intent to commit a criminal act? For most of us, the answer is an easy “no”, but in New York the law says otherwise. Possessing a firearm without the proper paperwork is a felony offense in the state, and part of the twisted logic legislators deployed while crafting the law is that anyone who dares to do so must have some sort of nefarious intent in mind.

That statute was being challenged by six individuals who’ve all been charged with illegal gun possession, but the New York State Court of Appeals (which is the highest court in the state) recently dismissed their lawsuits in a 6-1 decision. The majority of judges concluded that the plaintiffs had failed to bring a timely case, but avoided any direct ruling on the constitutionality of the gun control law. The lone dissenter, on the other hand, declared that in light of the Bruen decision it’s time for the law to be voided. What makes this somewhat of a surprise is that Judge Jenny Rivera isn’t a rock-ribbed conservative. In fact, the Journal-News calls her one of the most liberal members of the Court of Appeals.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen found that a central part of New York’s licensing process, requiring a special need to obtain a concealed-carry permit, violated the Second Amendment. Because of this, Rivera reasoned, New York can no longer presume that everyone who possesses an unlicensed firearm intends to use it illegally.
“Given the Bruen majority’s holding… the statutory presumption is unconstitutional on its face as it requires the jury to assume a defendant intends an unlawful use of a weapon merely because they possess the weapon in public,” Rivera wrote.
Though she was the sole judge to call, explicitly, for the demise of a key gun law on constitutional grounds, Rivera’s dissent may be a harbinger for things to come as courts across the country re-evaluate the legality of all manner of gun restrictions in the wake of Bruen.
“We’re going to see challenges to New York’s gun laws start filtering through the court system,” commented Peter Tilem, an attorney who regularly practices in Second Amendment law.

Tilem’s correct, and the new cases won’t suffer from a timeliness argument on the part of the state. The Court of Appeals may have kicked this can down the road a bit, but they can’t avoid addressing the substantive argument raised by individuals who’ve been convicted of the “violent” felony of possessing a gun without a permit.

Take the recent case of Fares Alhazmi, for example. The 26-year-old was recently charged with illegal gun possession after he shot and killed an armed robber who came into the dispensary where he worked and demanded “all the weed” while displaying a gun. Alhazmi hasn’t been charged with shooting the robber. Instead, he faces a felony weapons possession charge that could send him to prison for several years for the crime of carrying a gun without a license.

Clerk Fares Alhazmi, 26, was arrested after shooting 23-year-old Romel Carey Wednesday inside the 24-hour store that sells cannabis products on E. Tremont Ave. near Anthony Ave. in Morris Heights, cops said.
Video shows Carey walking into the store around 11:45 p.m. Tuesday. He appears to be looking at products, but pulls out a gun and points it at Alhazmi behind the counter.
The clerk whipped out his own handgun and scared off Carey, who ran out the front door.
About 40 minutes later, the would-be robber came back to the store as Alhazmi dealt with a customer.
This time, Carey walked in with his gun drawn and immediately pointed it at the clerk, who ran back and forth behind the counter avoiding the barrel of the firearm, the video shows.
As the customer is seen slowly walking away from the chaos and Carey dashes toward the door, Alhazmi fires a shot from behind his back – hitting the attempted robber in the head.

It sounds like Alzhami possessed the gun not because he wanted to commit a crime, but because he wanted to protect himself from armed criminals. We don’t know why Alzhami didn’t have a carry license or a premises permit, or even if he’d attempted to apply for either, but we do know that obtaining a permit is still incredibly difficult in New York City even after the Bruen decision. Earlier this year the NYC-based news site The City reported that the NYPD Licensing Bureau is actually approving fewer permits post-Bruen than it did before the Supreme Court decision striking down the “may-issue” laws in the state.

In 2021, the NYPD — which vets firearm permits — received 4,663 applications and approved 2,591 of them, about 56%, all under the stricter “proper cause” standard the Supreme Court struck down last year. That standard required gun owners in New York to show “proper cause” in order to receive a permit to carry a weapon, but the court said licenses should be granted by default unless there was a specific reason to deny an applicant.
In 2022, the NYPD saw an increased number of new applications — 7,260 — but approved just 1,550, or 21%, even though applications filed in the second half of that year no longer had to meet the “proper cause” standard where applicants had to make an affirmative case for why they needed a license.
In the six months after the high court’s ruling in New York State Rifle vs. Bruen, from June 24, 2022 to Dec. 31, 2022, the NYPD saw a surge in new gun permit applications, from just over 2,000 in the same period a year earlier to nearly 5,000. So far, the department has approved 503 of those, or just above 10%, despite its guidelines and state law requiring applications to be decided upon within six months.
Relatively few applications have been flat-out denied — just 16 in 2022, including two for applications submitted after the June 23 Supreme Court ruling, meaning the approval rates still could change as the NYPD completes additional, and now overdue, investigations.

If the city’s licensing laws are preventing most folks from lawfully carrying or keeping a gun, some of those individuals are going to break the law under the “better to be judged by twelve than carried by six” theory. They’re not keeping or bearing arms because they’re engaged in a life of crime. They simply can’t lawfully exercise their Second Amendment rights because of the barriers the city and state have erected.

I hope that Judge Rivera’s dissent is a “harbinger” of a future decision that concludes simple possession does not imply intent to commit a violent criminal act. It’s not just Bruen that demands that outcome, but common sense as well.

Anti-2A Assemblyman Scolded Over Social Media Censorship

November 9, 2023 by John Petrolino Leave a Comment

Residents of the Garden State who support the Second Amendment are more than acquainted with the name Joe Danielsen. Danielsen, a Democrat in the state Assembly, was the alleged author of New Jersey’s so-called “carry-killer” legislation. While there’s no doubt that Danielsen had no issues with what was in the bill, even though he really did not know what was in it when questioned on it, I don’t believe there’s any way on planet Earth the Assemblyman has the intellectual capacity to author such a piece of legislation without major help from the gun control lobby.

One of the things Danielsen has done since becoming a turncoat to New Jersey patriots is the censoring of his social media posts. Previously I reported on the dullard’s practice of not allowing comments on his Facebook posts. Recently a New Jersey activist took to contacting Danielsen about his censoring of political speech and the apparatchik did respond to her.

Susan Zorn recently sent Danielsen a private message via Facebook Messenger, which she shared online. In it, she told the assemblyman to “turn [his] comments on,” and informed him that he’s been “breaking the law.” Zorn included a 2019 article from the American Civil Liberties Union specifically discussing a court ruling on the very topic.

One of the core purposes of the First Amendment is to allow people, regardless of their views, to hold the government accountable through expression. So, if your elected representative has an official Facebook page where she invites comments, can she block you from commenting because you criticize her work?
According to a federal appeals court, the answer is a resounding no.
On Monday, the Fourth Circuit Court of Appeals ruled that the interactive portion of a public official’s Facebook page is a “public forum,” so an official cannot block people from it because of the opinions they hold.
The case arose after the chair of a local board of supervisors in Virginia, Phyllis Randall, briefly blocked a critic from her official Facebook page and deleted a comment he made about her colleagues’ management of public funds.

How did Danielsen reply to this mini-education? At first an automated “thank you for being a good doobie and writing in” message went off to Zorn. But Danielsen did eventually reply.

Sir, you should read the law before opining on it or ask someone for help.

Danielsen may have a point, but if so it’s a minor one. The specific case that Zorn quoted was out of the Fourth Circuit Court of Appeals and New Jersey falls within the jurisdiction of the Third Circuit Court of Appeals.

What’s the actual case law on the topic on a national level? Beats me. However, there has been more than one instance of politicians being sued over this topic and being told that such censorship is a big “no-no.”

The ACLU further points out some of the minutiae of the topic.

It is important to remember that people who hold public office can wear two hats: Sometimes, they act as private individuals, and other times they are government actors. While they maintain their First Amendment rights when acting as private individuals, they are subject to the limits the First Amendment places on the government whenever they’re doing government work.
As the court rightly held, that includes any time that they’re controlling a Facebook page they maintain in their official roles. Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when she uses it to inform the public about her government work, solicits input on policy issues through the page, and swathes it “in the trappings of her office” — she is controlling the page as a government actor.

Zorn’s response to Danielsen was quite priceless, to which there have been no further replies.

I know you’re not very bright but there aren’t many people named Susan who are sirs. It’s disgusting that you censor opposing viewpoints on your official page. But I don’t expect anything more from you.

Zinger from Zorn. And to Zorn’s overall point – Danielsen may have some of the law on his side – this practice is beyond unfavorable coming from so-called public servants. The censorship of political speech is deplorable and we can expect nothing less from a tyrant who saw to the disarmament of the people he swore to serve.

Is what Danielsen is doing legal? How about case law in New Jersey? Maybe or maybe not. However, if I were Danielsen, I’d use this as an opportunity to open up the floodgates of comments, whatever they might be, to his social media pages. Given the level of discontent that many of the people have for him in New Jersey, would getting slapped with a lawsuit over something like this be worth it?

Perhaps this is the perfect time to launch a class action lawsuit. Anyone out there that has the wit, means, and motivation, this might be your brass ring. In the meantime, any little crevice that Danielsen leaves open on his socials will continue to get peppered with comments, as seems to be the going thing the last year plus.

The man did make his bed, the least he can do is lie in it like a real man.

Hunter pleads not guilty, but will SCOTUS throw him a lifeline?

October 3, 2023 by Cam Edwards Leave a Comment

As expected, Hunter Biden plead “not guilty” Tuesday morning to three federal felony charges relating to his purchase of a firearm at a time when he admitted to smoking crack cocaine “every fifteen minutes”. Today’s hearing lacked the drama and intrigue of his first hearing on the charges, when a plea bargain worked out by his attorneys and prosecutor David Weiss fell apart after the U.S. District Judge assigned to the case objected to its terms.

Under that original deal, Biden would have received a pre-trial deferment, allowing him to avoid prison and a felony record. Now he faces the theoretical possibility of more than two decades behind bars, though even if he’s convicted that sentence seems unlikely to be imposed.

Biden’s attorneys, however, are going to try to keep him out of prison altogether, in part by arguing that the laws he’s charged with violating are unconstitutional.

Hunter Biden arrived in the courtroom shortly before 10 a.m. ET. accompanied by the defense lawyers. The hearing lasted less than 30 minutes. The judge reiterated Hunter Biden’s conditions for release and said that he would be subject to random testing as he refrains from drugs and alcohol. He has been tested already a number of times, the judge said.
The case has placed Joe Biden’s family in the spotlight ahead of the 2024 presidential election, with scrutiny of Hunter Biden intensifying amid his indictment by a special counsel and the case unfolding against the backdrop of his father’s campaign.
Nearly two months after a deal with prosecutors fell apart in a dramatic courtroom scene, Hunter Biden was indicted last month in federal court on three counts tied to his possession of a firearm while using illegal drugs.
Two counts accuse him of lying on a federal form about his use of narcotics when he purchased a Colt Cobra revolver in Delaware in October of 2018. The third count claims he possessed a gun while using a narcotic.
Still open is a yearslong inquiry into Hunter Biden’s alleged tax evasion.
…
[Biden attorney Abbe] Lowell said Hunter Biden plans to fight the gun charges, which he argues are not constitutional. On Tuesday, Lowell said this would be among several motions filed by the defense “that won’t be a surprise.”

I’ve seen a lot of commentary suggesting that the Supreme Court’s Second Amendment jurisprudence could end up being a lifeline for Biden, but if that’s the case then it will probably be a federal judge’s reading of Bruen that saves him, not direct intervention from SCOTUS itself. While multiple federal courts around the country have concluded that the federal prohibition on gun ownership for unlawful drug users is unconstitutional, none of those cases are particularly close to Supreme Court review. A case out of Oklahoma is currently before the Tenth Circuit Court of Appeals, and while a three-judge panel on the Fifth Circuit also concluded that the federal law in question violates the Second Amendment in a decision released in August, the DOJ could appeal to an en banc panel or choose to petition the Supreme Court directly. Either way, the Daniels case, as it’s known, probably wouldn’t be taken up by the Supreme Court until next spring or fall at the earliest, and a decision would likely come too late to impact Hunter Biden’s case.

Instead, Biden’s attorneys will have to convince the federal judge in Delaware that he should abide by those lower court rulings in the absence of any contradictory opinions from the High Court. Lowell can point to the Third Circuit Court of Appeals (which includes Delaware in its jurisdiction) decision in Range v. Garland, in which an en banc panel determined that the federal prohibition on gun ownership for all those convicted of a crime punishable by more than a year in prison doesn’t pass the Bruen test, but Range isn’t a direct corollary to Biden’s case. Bryan Range was convicted of a misdemeanor offense for falsifying his income on a food stamp application, which barred him forevermore from lawfully possessing a firearm even though he received probation. Hunter Biden, on the other hand, is accused of lying about his active drug use when purchasing a firearm, as well as possessing a gun as an active user of narcotics.

If Biden’s case isn’t resolved with a plea deal (still a distinct possibility), there’s a decent chance that Biden could be cleared on the gun possession charge while still being convicted for lying when he purchased the firearm. And if the Supreme Court ends up taking the Range case (the government’s request for certiorari is due on Thursday of this week), there’s no guarantee that a majority of justices will side with the Third Circuit’s conclusion. I think they should, but that doesn’t mean it will happen.

Biden’s “not guilty” plea seems more designed to buy him and his attorneys some time to see how the legal landscape might change over the coming months than anything else. Maybe Lowell really will end up making a Second Amendment defense of Hunter if the case ultimately goes to trial, but for the moment I suspect he’s hoping that developments in Range (and perhaps Daniels) will help him get the most favorable terms possible in any plea agreement offered by Weiss.