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July 3, 2008

One (of many) brewing Heller test cases?

The New York Sun has this interesting report on what could be an interesting Heller test case:

In a sign that federal courts here in New York will defend New York City's restrictive gun regulations, a judge is allowing the city to strip a disabled Vietnam War veteran of his gun license....

The veteran who lost his gun license, Dominick DiNapoli, said the Supreme Court's decision ought to require that he gets back his gun permit. "Who needs a gun more than someone like me, who is disabled and can't physically defend his home?" Mr. DiNapoli said in an interview.

The court decision, by Judge William Pauley III of U.S. District Court in Manhattan, does not mention the Second Amendment and defers entirely to the New York City Police Department's permitting process....

In 1970, police first issued Mr. DiNapoli, then a deer hunter, a license for a shotgun or rifle.  In 2002, the department revoked it, citing both a brief period during which Mr. DiNapoli was homeless and criminal charges that had been filed against him and subsequently dropped, Judge Pauley wrote in the decision.  During the time Mr. DiNapoli was homeless — he was evicted from his apartment in 2001 — and failed to inform the police department of a change of address, as is required of permitted gun owners, Judge Pauley noted.

The criminal charges against Mr. DiNapoli, filed in 2000, alleged that he had sent a threatening letter to employees of the federal Department of Agriculture regarding his difficulties in obtaining food stamps. Federal prosecutors subsequently dropped the charges in 2004....

In the end, the police department had decided that the Mr. DiNapoli's actions "indicated a lack of good moral character for firearms possession," Judge Pauley wrote.

Of course, the general justification for broad restrictions on felon gun rights is that every felon lacks the "good moral character for firearms possession."  Though Mr. DiNapoli apparently does not have a felony record, he seems quite comparable to the many non-violent felons who have been forever denied the ability to possess a gun because of a long-ago encouter with the criminal justice system.

It will be interesting to see if this post-Heller story focused on a sympathetic person denied access to a gun will resonnate.  And I will continue to look for similar Heller test cases involving non-violent felons or others who are being denied Second Amendment rights in the days and weeks ahead.

July 3, 2008 at 08:05 AM | Permalink


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It's not clear from the article whether DiNapoli raised or preserved a Second Amendment argument in his case, which presumably was filed before Heller was handed down. If not, this probably isn't a terribly attractive test case.

Some commentators have suggested New York City's restrictive firearms regulations are ripe for challenge, especially on an as-applied basis. A plaintiff like this (albeit with properly presented argument) may be the sort of vehicle they're looking for. This plaintiff has some equities in his favor - he had been issued a permit which he held for many years without incident; he made a temporary regulatory address update omission; the only criminal charges ever filed against him were dropped; he is the sort of disabled person for whom fewer non-firearms self-defense options exist.

Posted by: zippypinhead | Jul 3, 2008 3:16:36 PM

Where was all the liberals' enthusiasm for gun rights BEFORE Heller appeared on the radar screen?

Posted by: Bill Otis | Jul 3, 2008 10:27:03 PM

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