New Yorkers' Gun Rights May Rest on Hot Dog Vendor's Case New Supreme Court Ruling Is Cited Repeatedly in City Gun Cases By JOSEPH GOLDSTEIN, Staff Reporter of the Sun | August 1, 2008 If New York's strict antigun laws are overturned in the near future, it may be the work of a hot dog vendor. The vendor, Daniel Vargas, is due next month in court to fight misdemeanor charges that he kept an unlicensed revolver loaded on a basement shelf in his apartment. The case, which has generated 23 hearings and been heard by no fewer than 10 different judges as it winds through Brooklyn's lowest criminal court, would be of little general interest, except for the fact that the U.S. Supreme Court recently ruled that the Second Amendment protects a right to keep a handgun at home for self-defense. Now, suddenly, Mr. Vargas's case, as well as a handful of other cases, are testing the authority of district attorneys to prosecute people for gun possession, a strategy that Mayor Bloomberg has emphasized in his criminal justice policies. In about half a dozen New York City cases reviewed by The New York Sun, defense lawyers have filed briefs arguing that the Supreme Court's decision requires the dismissal of gun possession charges against their clients. The briefs question the constitutionality of the city's treatment of all unlicensed guns as illegal guns — mere possession of which can be punished by up to 15 years in prison. At least two of the cases involve gun arrests during traffic stops. The motions ask New York courts to expand the federal Supreme Court decision to find that the "right to bear arms is not limited to the physical confines of the home," as a Brooklyn lawyer, Andrew Miller, wrote in one such case. One state judge, Michael Gary in Brooklyn, has already rejected the Second Amendment claims of one defendant since the Supreme Court decision. The case involved a man accused of possessing a gun while smoking outside a Chinese restaurant. But other cases featuring Second Amendment claims involve, like Mr. Vargas's case, allegations of gun possession in the home. In the Bronx, a lawyer for a man named Jose Rivera, who was arrested after police allegedly found marijuana and a .40-caliber pistol in his home, is claiming that he can't be prosecuted for the firearm under the Second Amendment. In Brooklyn, a lawyer for a woman named Claudett Monplaisir is saying the Second Amendment protects her from prosecution for gun possession after police found a handgun in her apartment which may have been linked to a nearby shooting. Police say the suspected shooter, who fathered a child with Ms. Monplaisir, had instructed her to hide the gun in her freezer, according to court documents. What makes Mr. Vargas's case so singular is that the only issue is the alleged gun. He is not accused of using the gun improperly or of committing any illegal conduct unrelated to its possession. Nor did police find the alleged gun while investigating other crimes, as often happens. For instance, many unlicensed handguns are recovered from homes in the course of responding to domestic violence calls, defense lawyers say. Police records indicate that the officer who arrested Mr. Vargas in October 2006 had received "a tip for a location with firearm." According to the police records, Mr. Vargas consented to the search and police found a loaded .38-caliber revolver in a holster sitting on a shelf, with a box of bullets nearby. Under New York law, possession of an unregistered gun on the streets in New York City carries a maximum penalty of up to 15 years in prison, while possession of such a gun at home is treated as a misdemeanor, which rarely carries jail time for a first offense. Mr. Vargas's legal aid attorney, Laura Guthrie, wrote in a brief that Mr. Vargas denies possessing any gun or ammunition. The court brief goes on to say that even assuming the allegations are taken as true, the prosecution, "violates the individual right to bear arms protected by the Second Amendment." "Here the government does not allege that Mr. Vargas possessed the weapon with intent to use it unlawfully, or outside of his home," she wrote. "Mr. Vargas is accused of keeping a gun in his home. This conduct is protected by the individual right to bear arms enshrined in the Second Amendment." The brief, filed last year, cites the appellate court ruling that the U.S. Supreme Court affirmed in the June decision. A prosecutor from the Brooklyn district attorney's office, David Morisset, had argued, before the Supreme Court ruling was issued, that the Second Amendment didn't protect an individual right to keep a gun unless the owner was a part of a militia. In a decision last year rejecting Mr. Vargas's Second Amendment claims, a city judge, Alexander Jeong, focused on another point, which is that Mr. Vargas had never sought a gun license. But that reason for dismissing Mr. Vargas's Second Amendment claim may have been weakened somewhat since the Supreme Court recognized an individual right to keep a gun at home. "The question now becomes which defendants with guns in their homes should benefit from that Constitutional right," a criminal defense lawyer and former president of the city bar, Barry Kamins, said. "One issue becomes whether to allow defendants to make these types of challenges even though they never applied for the permit." Ms. Guthrie has argued that it should not matter whether Mr. Vargas applied for a permit. "Mr. Vargas is alleged, in essence, not to have submitted himself to the complete discretion and the extraordinary power of the New York City Police Commissioner," she wrote. "The Second Amendment does not permit such interference." New York's permitting system itself could come under scrutiny as these issues in criminal cases are litigated. Mayor Bloomberg and other city officials have said that the Supreme Court decision does not threaten New York City's regulations, which require that all gun owners go through a lengthy and costly licensing process. Yet, some gun rights proponents and defense lawyers say that New York's licensing system is so burdensome as to be unconstitutional. "An average poor guy who's particularly vulnerable to burglary or break-ins is going to have a hard time getting a license," said a legal aid attorney, Steven Wasserman, who wrote the Second Amendment motion that many legal aid attorneys are now using. It can require multiple trips to One Police Plaza, a wait of more than four months, and fees that can reach more than $1,000 over a decade. Some criminal defense lawyers also say that the requirement that applicants possess "good moral character" is too arbitrary. Mr. Vargas moved last month from the address on Lincoln Avenue where he was arrested, neighbors said. He could not be reached for comment. An immigrant from the Dominican Republic who is in his early 40s, Mr. Vargas "was a very nice man whenever I saw him," an upstairs neighbor, Beatrez Leger, said, adding that she recalled the arrest in 2006. "I know he was very upset about it," she said. Another neighbor, who declined to give his name, said that Mr. Vargas usually sells hot dogs at the corner of Liberty and Sheridan Avenues, although he was not there yesterday. A Daniel Vargas was, until 2004, registered as a street vendor with the Department of Health. Ms. Guthrie declined to comment on the case, explaining that "any press isn't helpful" for Mr. Vargas.