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  1. #1
    Join Date
    Jan 2007
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    10

    Default Prior Gun Convictions and D.C. vs. Heller

    A few years ago, I was convicted of New York PL 265.01 (Possession of a Weapon - 4th Degree) for trying to fly out of JFK airport with an unloaded weapon in my checked baggage. Since I am not / was not a New York resident, I didn't know what I was doing was illegal (despite the fact it was legal in 49 other states). I pled guilty, paid my fine and court costs, and am now I am left with a record that I can't expunge.

    In the news lately is a case being considered in the U.S. Supreme Court to overturn Washington D.C.'s gun ban. The question is whether or not gun possession is an individual right. Currently, the U.S. Circuit Court overturned the D.C. gun ban, indicating gun ownership is an individual right (of course, D.C. is appealing to the U.S. Supreme Court). My question is... if the Circuit Court's ruling is upheld (or not considered by the Supremes, and thereby being upheld), could I have chance of getting the conviction overturned, expunged, or any other form of relief?

    I'm not a NY resident, so the Department of Criminal Justice will not issue me a Certificate of Relief of Disabilities or Good Conduct. Also, since I live over 1000 miles away, getting a hold of a New York lawyer is near impossible (I can't even get a hold of the lawyer I used years ago). Since expungement is not an option, I'm hoping I could somehow get relief in some way, shape, or form as a result of this case.

    I'm wondering if this is possible, and if so, how it would work. Thanks!

  2. #2
    Join Date
    Sep 2005
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    Default Re: NY Airport Gun Case & D.C. vs. Heller

    Even if the right to bear arms is deemed an individual right, that would not affect the state's ability to impose reasonable restrictions on ownership and possession.

  3. #3
    Join Date
    Jan 2007
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    Default Re: NY Airport Gun Case & D.C. vs. Heller

    Quote Quoting Mr. Knowitall
    View Post
    Even if the right to bear arms is deemed an individual right, that would not affect the state's ability to impose reasonable restrictions on ownership and possession.
    Obviously, I do not believe prohibiting a non-felon to transport an unloaded firearm in accordance with established FAA policy is very reasonable. I am not a lawyer, but I work with laws everyday in my profession, and I know how difficult it is to guess how a court will decide, especially on an issue with little precedent. I just hope and pray the High Court agrees with me (and Parker).

    In light of the Court's ruling today issuing cert for the case, they posed the constitutional questions (since both sides had such differing constitutional questions). The question is:

    “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

    According to what I've read online, the second DC code listed in the question bars the carrying of an unlicensed weapon, much like NY PL 265.01. If the Supreme Court deems this DC code unconstitutional, what would I have to do if I wanted to challenge a conviction of the equivalent NY law? As I stated earlier, getting a hold of a NY lawyer is not easy 1000 miles away, so I'm just trying to get an idea in the off chance I get an opportunity to do something about this.

    Thanks in advance for your advice

  4. #4
    Join Date
    Mar 2005
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    Michigan
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    Default Re: NY Airport Gun Case & D.C. vs. Heller

    Which subsection were you charged with violating? Was this part of a plea bargain from a more serious charge? I don't see how that statute would apply under the circumstances you have described.

  5. #5
    Join Date
    Jan 2007
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    10

    Default Re: NY Airport Gun Case & D.C. vs. Heller

    I was arraigned under NY PL 265.01, 265.02, & 265.03 (all three for one weapon). I figured I was charged with all three so they could have their choice of charges down the road. My lawyer got them to agree to drop everything except NY PL 265.01 (the misdemeanor), which when you're facing multiple felonies is a blessing. Most people who get caught in an "airport gun case" are usually charged with multiple felonies and end up with either a violation or misdemeanors (I truly wish I had gotten only the violation).

    Since NY PL 265.01 states: A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He possesses any firearm

    And DC code 22-4505(a) states: No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided . . .

    Frankly, what my question boils down to is in light of Heller, would I be able to get any relief in what I believe to be an unconstitutional conviction. I was transporting a semi-automatic handgun with the slide locked back, magazine removed, and a trigger lock over the trigger in a hard case with a lock on it. That case was going into the checked baggage (never tried to actually bring it through security or onboard the cabin area of the plane). I had traveled to 32 other states prior to this, including California and Maryland, without incident. However, the state of New York considers this behavior a serious felony. From the start, it has blown my mind that the state of New York would charge an person from another state with a completely clean record with multiple felonies for doing something that is legal in 49 other states. I don't see how the state of New York can continue to ruin people's lives by saddling them with criminal records for doing something which is protected under the 2nd Amendment (or soon to be decided by the Supreme Court in Heller).

  6. #6
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    Default Re: NY Airport Gun Case & D.C. vs. Heller

    I thought that provision was only applied where the firearm was unlicensed. I haven't dug deeply into the statute, but if it applied as written it would criminalize the possession of licensed firearms (which would be an absurd result). Is the issue that it is applied to people without New York permits, but not to people who have permits issued by the State of New York?

  7. #7
    Join Date
    Jan 2007
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    10

    Default Re: NY Airport Gun Case & D.C. vs. Heller

    It's my understanding NY PL 265.01 is what most people without a NY permit get stuck with. NY PL 265.20 talks of the exemptions (NY PL 400.00 talks of the license).

    The more I read into this, the more I'm afraid I'm still going to be stuck until NY comes up with an expungement law. Even if the Supreme Court rules in favor of the individual right, I'd have to find a lawyer to convince a NY judge of the interpretation as applied to NY law, which I'm sure would not be an easy task.

  8. #8
    Join Date
    Sep 2009
    Posts
    1

    Default Re: NY Airport Gun Case & D.C. vs. Heller

    unlucky102,

    I was arrested at LGA three days ago for the same thing that you mentioned...I was trying to legally declare my weapons to the airline, and 6 port authority officers showed up. Do you mind giving me the name of your lawyer, so that maybe he/she can help me as they helped you. Thanks in advance.

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