A few examples suffice. The defendant has no criminal record. Accordingly, that fact that a convicted felon cannot obtain a firearms license in New York would not have disqualified the defendant had he applied. Similarly unpersuasive is the defendant’s claim that the licensing scheme is overly restrictive, because the statutory definition of serious offense in PL, a conviction for which is disqualifying, includes not only an arbitrary selection of misdemeanors but violations such as trespass, disorderly conduct and loitering. Federal law already prohibits those convicted of a misdemeanor crime of domestic violence from possessing firearms. Additionally, the requirement that a gun license applicants be of good moral character would appear to be one of long standing, as most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens.
The defendant’s claim that the availability of a firearms license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner is wrong. The statute provides an unsuccessful applicant with an administrative appeal process, and that decision can be challenged in court in a CPLR proceeding. As the People state, if an applicant is unsatisfied with the judgment of Supreme Court, he/she is entitled, as of right, to appeal the final judgment of that court to the Appellate Division, whose order is appealable, by permission, to the Court of Appeals. The court’s role in such an Article 78 proceeding is to ensure that the administrative decision denying a petitioner a firearms license was neither arbitrary and capricious nor an abuse of discretion. Finally, as the People correctly point out, the cases that defendant cites for his claim that the police have a history of inserting their own requirements into the licensing regulations all reversed administrative denials of firearms licenses where the officials inserted their own requirements. Clearly then, contrary to defendant’s claim, the discretion of a pistol licensing officer to deny an application is not unfettered, and the officials involved – including the NYPD licensing division – are bound by standards reviewable in a court of law.
The defendant cites no case for his proposition that New York’s firearms licensing scheme is unconstitutional because all applicants, even the indigent, must pay for the extensive background checks that are required before licenses are issued. Nor does he argue that the fees are unrelated to the costs of conducting the background checks. This case is simply unsuited to deciding the question of whether the application fees must be changed because defendant does not claim that the fees prevented him from applying for a license.
Finally, the defendant has not demonstrated that the firearms licensing regulations are unconstitutional under the intermediate scrutiny test, which the majority of courts to have considered this issue have held is the most appropriate standard of review to apply to firearms regulations. A law survives intermediate scrutiny if it substantially related to an important governmental interest. The People assert that the regulations further the important goal of public safety. Promoting public safety is a well-established goal. The County Court concludes that New York’s licensing scheme is substantially related to this important governmental interest.
The defendant also argues that New York City’s ban on the possession of air pistols, AC violates the Second Amendment. On this issue, the parties disagree sharply on what air pistols are. The People and the City both argue that air pistols are not firearms. The defendant argues that while he appears to concede in his reply brief that air pistols are not firearms, he claims that they are arms as well as handguns that simply work differently from hand-held firearms. Thus, he argues, air pistols are entitled to Second Amendment protection and the City’s outright ban is unconstitutional.
There are many reasons that a citizen may prefer a handgun for home defense. It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.
The defendant claims that nothing in the foregoing passage suggests a limitation to hand-held weapons that employ gun powder rather than compressed air.
The defendant’s argument, however, overlooks crucial facts. The statutes at issue banned possession and registration of firearms, and the Court emphasized that handguns are an entire class of arms’ that is overwhelmingly chosen by American society for that lawful purpose of self-defense. Thus, banning from the home the most preferred firearm in the nation to keep’ and use for protection of one’s home and family, would fail constitutional muster.
The defendant cites no facts from anywhere in the United States outside New York City to establish that American citizens overwhelmingly chose air guns for the core lawful purpose of self-defense, rather than for sports and recreation. Instead, he resorts to theory and speculation: the City’s police expert is no authority on the psychological deterrent effect of an air gun when displayed as a defensive weapon; this inexpensive, easy to operate, and essentially non-lethal weapon has much to commend it as a household weapon for the average civilian; the City should ponder whether its categorical opposition to these non-lethal weapons is creating an unnecessary conflict between the Second Amendment and the Sixth Commandment. Pacifists, too, have Second Amendment rights. The city should consider licensing air guns for the home.
Accordingly, the Court holds that AC does not implicate the Second Amendment right to keep and bear arms. As such, the statute is presumptively valid and need only pass the rational basis test to withstand constitutional scrutiny. The People and the City advance several reasons why the air pistol ban is rationally related to legitimate state interests: air pistols cause thousands of injuries per year in the United States; like imitation firearms, they could be mistaken for firearms by law enforcement officers; and some do not have serial numbers, which hampers criminal investigations when they are recovered during such investigations. These reasons suffice to justify the statute.