In an essay forthcoming in a symposium issue of the Syracuse Law Review, I argue that taken at face value, DC v. Heller supports a right to carry handguns in public. I also explain how a court that was so inclined might limit Heller to the home. But suppose that Heller were not so limited. Suppose, in other words, that the case protects a prima facie right to carry handguns in public. Suppose further that the Second Amendment is incorporated against the States. Sure, cases from the nineteenth century held that it is not so incorporated, but footnote 23 of the Heller opinion casts doubt on the continuing authority of those precedents.
The Heller Court did not hold or imply that all handgun registration requirements are invalid, but assuming Heller applies to guns in public and to the states, a regime that makes it impossible for a law-abiding citizen to obtain a license to carry a handgun for personal protection would presumably be unconstitutional.
Which brings us to Plaxico Burress. Suppose he had applied for a NYC handgun license. As I read the application materials, he could not have gotten a carry license because he had no reason related to his business to need to carry a handgun. His story that he needed a gun because he wears a lot of expensive bling and carries a lot of cash, while touching, doesn't establish a business need. Burress's business is catching footballs, and with the possible exception of playing the Eagles on the road, would not generally expose him to the risk of armed attack.
But wait! According to this story in today's NY Times, there is also a category of "full carry" licenses for people who "have demonstrated a specific need to carry a holstered handgun on their persons. The category includes people who have received threats or who regularly handle large amounts of cash." The same story indicates that a fair number of celebrities are among the full-carry license holders, and also that the city has recently tightened up on the issuance of such licenses.
So, can Burress argue that the NY unlicensed possession law is unconstitutional as applied to him? Probably not, because he didn't apply for a licnese (as Heller did). Perhaps he could say that applying would have been futile, but the fact that, as of 2006, Robert DeNiro, Don Imus, and Howard Stern had licenses, suggests otherwise.
Another possibility would be for Burress to challenge the discretion afforded city officials to reject handgun license applications (reviewable only deferentially). In the First Amendment context, laws can be challenged on the ground that they confer too much discretion on the licensing authorities. Here too, though, the fact that Burress didn't apply for a license would undermine his claim, since he would be raising an as-applied defense rather than a facial challenge.
If Burress were somehow permitted to challenge the restrictiveness of the licensing scheme as a whole, he might do better. After all, Heller suggests that all law-abiding citizens, not just those with special reasons, must be permitted to possess handguns. The success of Burress's hypothetical Second Amendment defense might then turn on whether he was concealing his handgun or carrying it openly. The Heller Court indicated that prohibitions of concealed weapons are probably valid.
Bottom Line: There are substantial obstacles to a Second Amendment defense for Burress. He might have to go for nullification and hope the jury is stacked with Giants fans. Even then, Eli Manning's success passing to Toomer, Smith, Boss, and Hixon could limit the effectiveness of this approach.
Posted by Mike Dorf