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?Free Plaxico?: Is Sentencing Law Facing Burress Unconstitutional?

By Ashby Jones

Associated Press

New York Giants’ Plaxico Burress, left, leaves Manhattan Supreme Court after his arraignment, accompanied by his lawyer Benjamin Brafman on Monday, Dec. 1, 2008.

Plaxico Burress’s lawyer, Ben Brafman, presumably has a lot on his plate these days, what with keeping his client out of more trouble than he’s already in. Thanks to the Cato Institute’s David Kopel, Brafman this morning might just might be adding something to his to-do list: “Bone up on the Second Amendment.”

Here’s why: On the WSJ’s op-ed page today, Kopel writes that the law Burress faces, a sentence of three-and-a-half years for carrying a loaded and unlicensed handgun, might be unconstitutional.

The argument goes like this: Burress had previously had a handgun carry permit issued by Florida, for which he was required to pass a fingerprint-based background check. But Burress currently lives in New Jersey, and New York state does not issue handgun licenses to non-residents.

Now, the big Second Amendment case that came down this summer, U.S. v. Heller, which struck down Washington, D.C.’s handgun ban, did not say that requiring a license to carry a gun was unconstitutional. But according to Kopel, once courts rule that that decision applies to the states (a likely outcome, says Kopel), “New York’s discrimination against nonresidents will probably be ruled unconstitutional.”

Kopel also thinks New York’s permitting process might be unconstitutional, partly because it’s so stringent: “[W]ith a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City’s licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.”

As to why Burress needed to carry a handgun in the first place, Kopel writes: “[P]eople who aren’t as wealthy as he is also deserve to be safe, and they don’t have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.

LB Readers: we’d love to hear your thoughts.

Full post as published by Law Blog - WSJ.com on December 04, 2008 (boomark / email).