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August 5, 2009

Why Second Amendment supporters need to be helping out Plaxico Burress

I just noticed this item from a New York-based website carrying this title, "Gun control 101: Plaxico Burress going to prison should end 2nd amendment confusion."  Here is a snippet:

Burress going to jail should be the final proof to anyone who thinks differently about the 2nd amendment applying to individuals instead of what it is: a constitutional guarantee that the states will always have the right to have their owned armed militias (today, the National Guard)....

So if the 2nd amendment applies to individuals where are the gun groups and the NRA, where are the 2nd amendment lawyers willing to challenge the law in court as being unconstitutional?  You cant have it both ways.  If the 2nd amendment applies to individuals then Burress' arrest and jail sentence is unconstitutional.

Burress of course being a star football player making about $10 million a year has access to the best legal counsel money can buy.  His legal counsel is trying to plea bargain for Burress and has offered a year in jail (the law carries a mandatory 3 1/2 years).  One thing is certain.  Burress is going to jail, the only question is for how long. Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right  cant be infringed?...

Burress is going to jail for carrying a concealed weapon without a permit within the New York City limits.  No one has said the law is unconstitutional.  And no one will.

Obviously, the author of this commentary has not been reading this blog, since I have been repeatedly questioning the constitutionality of New York's law in light of Hellersince Plaxico Burress first shot himself.  But the deeper point is that the failure of Second Amendment fans to speak up loudly in support of Plaxico's constitutional rights to gun possession for self-protection enables gun control supporters to use a high-profile case to undermine arguments for Second Amendment rights.  Unless and until Second Amendment supporters fight back on the Plaxico front (with at least some gun rights rhetoric if not gun rights litigation) the general public will get the (justified?) impression that the Second Amendment remains legally inconsequential even after Heller.

Some related posts on the Burress cases:

UPDATE:  A number of commentators are making much of the fact that Plaxico Burress did not seek a permit for carrying a gun in New York City and suggest that he is justifiably and constitutionally punished for this failing.  In light of these comments, I will quote another notable portion of the above-linked commentary:

One thing is certain.  Burress is going to jail, the only question is for how long.  Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right can't be infringed?

And it really has nothing to do with the fact that Burress didn't have a permit.  Its close to impossible to get a concealed weapons permit from the NYPD in New York City.  No ordinary citizen can get one.  You have to prove you have a compelling reason to carry a concealed weapon and if the NYPD doesn't agree you don't get it....

Requiring a permit to have a gun is typcial in most states.  Can anyone name one single fundamental right in the constitution that requires a permit in order for a person to exercise that right?  Do you need a permit to practice your religion?  To be a journalist?  To write or publish anything you wish?  Do you need a permit not to testify against yourself?

Critically, my main point with this post and others concerning Plaxico's fate — as well as what I take to be the main point being made by the piece linked above — is that the seem to expose the apparent faint-heartedness of the many groups and politicians who in "safer" settings make a lot of noise about the importance of gun rights and the fundamental nature of the Second Amendment.  I do not think Plaxico necessarily has a slam-dunk Second Amendment claim — there is the issue of incorporation and other legal complications — but the basic fact that the usually vocal pro-gun folks have said so little  in Plaxico's defense suggests to me that few really, truly believe in or are prepared to vocally advocate a forceful and fundamental individual right to carry arms for self-protection.

August 5, 2009 at 11:27 AM | Permalink


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I am sorry, but this case is not really about the second amendment.
1. Burress handled the gun in an incorrect manner and shot himself. He could of very easily shot someone else. The second amendment does not say you can do that.
2. Their is some question as to whether or not he is legally allowed to carry a concealed weapon. You do need a permit for that and it is up to Burress to get that permit.

No one is saying the Burress should not be allowed to own a gun. What people are saying is that he shold not fire a gun in a crowded room and whether he was legally allowed to carry a concealed weapon.

And I am sorry, I question the wisdom of everyone walking around armed without there being some regulation. That is a recipie for disaster.

Posted by: Jim | Aug 5, 2009 12:35:44 PM

Doug, I am genuinely torn on "incorporation" of the Second Amendment. Why do you think it should be applied to the states?

Posted by: federalist | Aug 5, 2009 12:50:09 PM

@general public will get the (justified?) impression that the Second Amendment remains legally inconsequential even after Heller"

Yes it's justified because it's true.

Posted by: Daniel | Aug 5, 2009 12:55:31 PM

Our Founders did not mean a "well regulated militia." They must have meant a well regulated Bill of Rights.

Posted by: George | Aug 5, 2009 1:11:54 PM

I will grant you that Burress' conduct of discharging a firearm in a public place is not covered by the Second Amendment. But that's not what he is charged with. Rather, he is charged with merely carrying a concealed weapon without a permit. It is this latter described conduct, forming the elements of his charged offense, which is arguably protected by the Second Amendment.

Although I do not own a gun myself, I am a strong believer in 2d Amend rights. (I take an expansive view on liberty, which includes my liberty to own a weapon should I want to). IMO, however, requiring someone to obtain a license before carrying a concealed weapon is a reasonable 2d Amend. regulation, so long as the licensing process is simple and not too burdensome, and licenses are regularly granted.

That being said, and setting aside the issue of incorporation, there certainly are very good grounds to contest the constitutionality of the offense Burress is charged with. The point of the article is that it is telling and disappointing how nobody has done so (Prof. Berman excluded, of course).

Posted by: DEJ | Aug 5, 2009 1:18:43 PM

"IMO, however, requiring someone to obtain a license before carrying a concealed weapon is a reasonable 2d Amend. regulation, so long as the licensing process is simple and not too burdensome, and licenses are regularly granted. "

How simple should it be to carry a gun. Do you want convicted bank robbers and murders the right to carry concealed guns. Do you want people with mental problems carrying guns. Do you want people who are 'hot headed' who can not shoot straight.
Being granted the right to carry a concealed gun should at least be as complicated as it is to get a license to drive a car. It should not be simple and 'without burdens.'

Posted by: Jim | Aug 5, 2009 1:42:34 PM

Don't we typically require people who want to challenge a statutory scheme to go to the government first?

Under current law, NY has a perfect right to restrict guns. Shouldn't Plax have had to request the right to carry, get turned down, and then sue?

We don't allow people to shoot cops who violate the Fourth Amendment in a search. I get that's not a perfect analogy, but in an ordered society, we can channel disputes into a forum.

Posted by: federalist | Aug 5, 2009 2:28:31 PM

Jim, I never said "without burdens," so your use of quotes is misleading. I said it should not be "too burdensome." And I would suggest that getting a license to drive a car would satisfy that test. (BTY, my use of the word "simple" merely means easy to understand).

No, I don't believe every person who wants to carry a concealed hangun(including the class of people you mentioned) should be able to. That's the point of a license.

federalist, no, we don't typically require that, at least not when challenging a criminal statute, which of course is what Burress would be doing.

Posted by: DEJ | Aug 5, 2009 4:58:13 PM

DEJ. The problem I have with where you are heading is that it doesn't fit the facts. If Burress had applied for a permit, got turned down, and then carried anyway I would be much more sympathetic to your point. But Burris didn't even try to follow the law; he just broke it and broke it recklessly. To me this is why I have a hard time with making him a rallying cry. It's not like Rosa Parks where plenty of black people had tried to sit in the front of the bus and been turned down.

I'm much more sympathetic to the robber who tries to find a job but has to steal for food than I am to the spolit white kid who robs for a laugh. Burress is very much in the later category than in the former.

Posted by: Daniel | Aug 5, 2009 5:43:49 PM

Fair enough. The way I read "too burdensome" and "simple" was you could get a license to carry a gun as simple as it is to buy food at a store.
For the record, I was not trying to misquote you, I honestly thought that what you meant. We do seem to be in agreement on this point.
Daniel is right. Buress did not try to get a legit license to carry a gun. Therefore he may be guily of carry a gun and there is no conflict with the second amendment.

Posted by: jim | Aug 5, 2009 6:06:40 PM

Daniel, assuming the law is unconstitutional (and that's the key assumption), then Burress should have never been under any obligation to first seek a permit, and one should never fault him for not complying with an unconstitutional requirement. Put another way, you should not chastise an individual for not even trying "to follow the [unconstitutional] law."

Let's say a state passed a law saying "in order to engage in holy communion, one must obtain a license." An obvious 1st Amend violation. Now assume a Catholic went to church and engaged in communion without ever having applied for a license. Are you less "sympathetic" because he failed to follow an unconstitutional requirement?

I'm not saying that the NY law violates the 2d Amend. I am saying we should at least question whether it does to figure out what exactly the 2d Amend protects (See 10th Cir. judge Tymkovich's concurrence in US v. McCane, 08-6235). And if it does turn out to violate the 2d Amend, it's no less of a violation merely because an individual failed to attempt to comply with the unconstitutional requirement.

Posted by: DEJ | Aug 5, 2009 7:24:33 PM

It's not really true that "no one" has said questioned the constitutionality of NYC's gun laws. The editors of the Wall Street Journal ran a Dave Kopel op-ed on 12/4/08 titled "Free Plaxico Burress," subtitled "New York City's Gun Law is Unconstitutional."


Posted by: NYC Esq. | Aug 5, 2009 8:06:40 PM

Further, as to Prof. Berman's suggestion that pro-2A groups and lawyers are shrinking from the implications of their beliefs: aside from the merits of Burress's case, I'd also note that from a purely political, public relations, and litigation-based perspective, there's a simple and quite obvious reason why pro-2A groups and lawyers might not jump at the chance to make Burress their poster boy-- he is not a particularly sympathetic defendant. It's the same reason why the attorneys who litigated Parker and then Heller chose to challenge D.C.'s gun laws on behalf of a carefully selected group of sympathetic concealed-carry applicants, rather than some random crack dealer. It's not necessarily "faint-hearted" for these groups and people to decline to trumpet the (possibly meritorious) claims of an unsympathetic defendant, if they believe that that might ultimately do more harm than good to the cause of advancing 2nd Amendment rights, and if another case might prove to be a better vehicle for vindicating those rights.

Posted by: NYC Esq. | Aug 5, 2009 8:26:55 PM

DEJ. But your comment just harks back to my first point. It's not merely a question of whether to assume the law is unconstitutional but whether it is *obviously* unconstitutional. Just like shouting fire in a crowded theater, the courts have upheld restriction on what would otherwise be constitutional behavior. Even if the courts were to come back later and say that the specific law in NYC is unconstitutional, I don't think it's fair to say that a mere permit to carry a gun so obviously an impingement on someone's constitutional rights under the 2nd amendment that people should feel free to flout it.

And it's the appearance of flouting the law that really makes this case, as Jim, and federalist, and even NYCesq have suggested, not the best test case. Battles such as these are often as much a battle for public opinion as they are for the correct legal ruling. You and Doug can take a formalist view and argue that bad law just is bad law regardless of to whom and how it's applied. But most people are just not going to see it that way.

Posted by: Daniel | Aug 5, 2009 9:29:45 PM

The Bill if Rights applies to individuals because "most people" are the same people that would exercise the power of the tyranny of the majority.

If the charge was recklessly discharging a firearm in public, with a side of stupidity, there wouldn't be any constitutional debate and a fine with community service, along with the hole in his leg, would be sufficient in this case (perhaps with a forced gun safety class like with DUIs).

A mandatory 3 1/2 years is not necessary given the circumstances.

Posted by: George | Aug 5, 2009 11:28:29 PM

Doug, he could have sought a permit and litigated afterward. That was my point. Whether or not getting a concealed carry permit was futile or not.

Posted by: federalist | Aug 6, 2009 10:24:04 AM

I realize this is an old post. However, I feel the need to add something. There is one right where you are often required to get a permit - the right to peaceably assemble.

Posted by: Brendan | Oct 16, 2009 4:27:00 PM

I am a retired 77 year old civil service worker with degrees in history and political science. I have read most of the posts here, posted over a period of time, but the subject is continually timely.

Some comments seems to indicate a lack of understanding of the Second Amendment, and the history behind it, as there is in the general public. Thomas Jefferson had as much as anyone did in developing the elements of the Constitution and the Amendments. What he said indicates what the framers intended in the Second Amendment:

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed."
--Thomas Jefferson to John Cartwright, 1824.

"No freeman shall be debarred the use of arms (within his own lands or tenements)."
--Thomas Jefferson: Draft Virginia Constitution with (his note added), 1776. Papers, 1:353

"Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
--Thomas Jefferson, quoting Cesare Beccaria in On Crimes and Punishment (1764).

In a comment to this article posted on August 5, Jim said, “"IMO, however, requiring someone to obtain a license before carrying a concealed weapon is a reasonable 2d Amend. regulation, so long as the licensing process is simple and not too burdensome, and licenses are regularly granted. "

He also asked if we wanted convicted bank robbers, murders, people with mental problems, the ‘hot-headed, etc., the right to carry concealed guns... “Being granted the right to carry a concealed gun should at least be as complicated as it is to get a license to drive a car. It should not be simple and 'without burdens.'”

These people already carry concealed weapons, which puts the law-abiding citizen at a disadvantage in protecting him or herself. (Most guns today are purchased by women).

I have read the requirements that both New York City and New York State in both buying and then possessing a firearm, including rifles and shotguns. The rules are stringent, hard to qualify for, and very expensive, leaving the poor unable to own a gun. Here is the URL: http://www.nysrpa.org/nygunlaws.htm

A real fight is on the horizon. Keep your powder dry!

Posted by: Rick | Oct 30, 2009 11:08:56 PM

All of our rights as Americans are being slowly but surely eradicated. The writers of the Constitution would be horrified if they knew how their carefully chosen words to a magnificent document of the worlds greatest power is being miserably picked apart and mauled. Where are the real men who once ran this brilliant nation? Oh, that's right -- they are all dead. Pretty soon we will all be a bunch of meek, carefully cut-out paper dolls with no pride, guts or glory at all. Our forefathers gave their lives so that we could have certain rights and I would like those rights back. Where have all the cowboys gone?

Posted by: caroline wells | Dec 8, 2009 8:39:41 AM

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