Laws that prohibit gun possession may be unconstitutional in Washington, D.C., but they are not unconstitutional in Brooklyn. And that is bad news for Rashawn Handsome.

Handsome was arrested when police showed up at his Wyckoff Gardens apartment with a search warrant and found three guns in a sneaker box. He had no permit to own or carry them, but because statutes on weapons possession in a home are different from other laws on weapons, Handsome was charged with a misdemeanor instead of a more serious felony. With the class A misdemeanor charge, he faces a one-year sentence.

His defense: the right to bear arms under the Second Amendment to the Constitution of the United States. Raising an argument not previously made by a criminal defendant in New York, Handsome and his court appointed counsel, Robyn Lear of the Legal Aid Society relied on a recent federal case decided by the U.S. Court of Appeals for Washington D.C., Parker v District of Columbia. To the surprise of many, that court, the federal court just below the Supreme Court, agreed with a group of Washington, D.C. gun owners that laws making gun possession illegal, do indeed violate the Second Amendment.

The U.S. Supreme Court is now deciding whether it will hear an appeal of that decision.

The closest any federal court in New York has come to this issue was in non-criminal litigation. In that instance, the court decided, "The right to possess a gun is clearly not a fundamental right."

The Constitution and Gun Control

Some civil lawsuits have tried to challenge New York weapons laws on the grounds that they violate the Constitution. All have failed.

Using the right to possess guns as a defense in a criminal case in New York, though, was something new. Handsome’s attorney argued that the case against his client should be dismissed because state laws making possession of an operable firearm without a permit illegal are themselves unlawful.

A loaded .44 Magnum revolver, a .38 caliber revolver and .25 caliber semi-automatic pistol along with ammunition, were in the sneaker box. Still, how could Handsome be prosecuted for something that is protected by the Constitution, the defense asked in moving to dismiss the charges.

When People v Handsome came to New York City Criminal Court in Brooklyn, Judge Michael Gerstein refused to dismiss the charges. Instead, he totally dismissed the opinion of the federal court, a far loftier court than his. He rejected the analysis in the Washington case and pointed out that other federal courts, including the Supreme Court, had at different times, found that "the right to bear arms" did not mean that individuals had such a right.

The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed." To Gerstein, this means state militias (or in modern times the National Guard) have the right to possess weapons. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."

The D.C. federal court, though, had written that "the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights," as well as militias. Gerstein boldly said that the federal judges were wrong. In fact, the judge wrote, "We find the reasoning of Parker to be deeply flawed, such that even if its holding were to be deemed applicable to our statute, which it is not, we would decline to follow it unless required to do so by our appellate courts." Although the Supreme Court of the United States has in recent years invalidated, for other reasons, sections of the Brady Handgun Violence Protection Act (named for Jim Brady who was shot during an attempted assassination of President Ronald Reagan), Gerstein cited the leading Supreme Court case, US v Miller, decided in 1939. In that case, the justices said an individual’s possession of a shotgun was not shown to have a reasonable connection to a well regulated militia or ordinary military equipment or that its use could contribute to the common defense." Therefore the Second Amendment did not protect possession of the shotgun. The conclusion in most decisions up to this point has been that the Amendment, using the language, "the right of the people," cannot be read out of the context of state militias. The Supreme Court could revisit this if it chose to review the Parker case – and take on one of the most divisive issues in the country

In his scholarly decision, Gerstein adopts the view that the Second Amendment was enacted to protect of state militias from the federal government and not to declare the individual’s right to possess arms. With the disappearance of state militias, courts have generally held, the purpose of the Second Amendment is moot. Parker is "founded on a revisionist view of the Constitutional Convention, which view is far from generally accepted," said Gerstein.

Going beyond the legal history, the New York judge used the decision to present statistics about the "nationwide proliferation of deaths and injuries caused by privately owned guns." Since the 2007 decision in Parker, Washington, D.C. has experienced 750 armed robberies, 520 armed assaults and 111 homicides, according to sources cited by Gerstein in his decision. In the United States, more than 30,000 people are killed each year by guns in murders, suicides and accidents with another 65,000 suffering gun injuries.

While the Legal Aid Society says that no decision has been made about appealing the Handsome decision, any reversal on appeal is generally viewed asextremely unlikely, and therefore unlikely to be pursued.

Emily Jane Goodman is a New York State Supreme Court Justice