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When Public Defenders Acknowledge the Second Amendment’s Second Class Status

NYPD new york city police
(AP Photo/Mark Lennihan)

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With respect to the legal arguments, under whatever level of scrutiny you use, what is happening in New York cannot possibly be consistent with a constitutional right. There are no other constitutional rights for which the government gets to decide, in its own discretion, whether you get to exercise it at all. Even rights that might create challenges or even cause harm, like free speech.

But for some reason with the Second Amendment, New York has total discretion over whether you can possess a firearm at all, anywhere. And all of the problems one would expect with that kind of discretion, in fact, exist.

In New York City, the New York Police Department is the institution that decides whether or not you can lawfully possess a firearm. So, the decision of whether or not you have a constitutional right is left to the unfettered discretion of an incredibly biased police organization. That seems problematic, to say the least.

Unsurprisingly, the result of this structure is that a bunch of people on Staten Island—where a lot of police officers live—have firearm licenses and few other people do. Police officers are able to easily get a firearm license after they retire. And in fact, as a matter of course, they get something called a “good guy letter” so that they can breeze through the application process with pre-approval of being what they call a “good guy.” None of this can possibly be consistent with a constitutional right generally held by everyone.

There are other problems. You have to pay fees in order to get this license. And you have to subject yourself to the government’s eyes. For so many people in New York City, the government is constantly preying on them.

Imagine: the local police precinct’s officers are stopping and harassing you, and frisking you, and all of your friends and your family, every single day of your life. And then, in order to exercise a constitutional right, you have to go to those same officers voluntarily and give them not only your physical presence, but also very sensitive and private information about who you are, where you live and work, and the names of people with whom you associate.

This is a totally prohibitive barrier for a lot of people when they want to exercise a constitutional right. In other contexts, like the First Amendment, we would never stand for such a thing.

Avinash SamarthMichael Thomas, and Christopher Smith in Second Class

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