Judge John H. Wilson (ret.)
In June of 2022, the US Supreme Court decided New York State Rifle & Pistol Assn v. Bruen Justice Clarence Thomas, writing for the majority, held that New York State’s requirement for a gun license applicant to show “proper cause” for their request to own a gun was a violation of the Second Amendment to the US Constitution.
Of particular note, Thomas stated that “(n)othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms…’the right of the people to keep and bear Arms, shall not be infringed’ – ‘guarantee(s) the individual right to possess and carry weapons in case of confrontation.'” Therefore, there is no distinction made by the Second Amendment between maintaining a firearm in your home/place of business, or carrying that same firearm on your person.
As described by Justice Thomas, “The constitutional right to bear arms in public for self defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’ (Citation omitted)” Thomas wrote. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self defense.”
As we noted in our discussion of the case in July of 2022, rather than accept the unconstitutional nature of New York’s restrictions on the right to bear arms in public, instead, New York issued yet more restrictions on a citizen’s ability to carry a firearm in self defense, “including designating many public places as gun-free zones and adding more permits requirements.”
We also described the barriers placed in the way of citizens who would secure a firearms license in New York City in particular by the licensing authorities.
But, we also noted that New York’s criminal statutes, which outlaw the possession of a firearm in public, were unconstitutionally overbroad, and have been for many years. For instance, under New York Penal Law Section 265.01(1), a person is guilty of a Class A misdemeanor if “(h)e or she possesses any firearm,” which is defined at 265.00(3)(a) as “any pistol or revolver.” Then there is the more onerous PL Section 265.01-b, enacted under former Governor Andrew Cuomo, which makes it a Class E felony to possess “any firearm.” There is no qualitative difference between the language used in the felony charge or the misdemeanor quoted above – and both obviously conflict with Justice Thomas’ ruling in Bruen.
Further, how is one to know whether one will be charged with the felony, or the misdemeanor, if one is found in possession of a pistol in a public place in New York City? Your guess is as good as mine – and I was a Criminal Lawyer for 20 years, and a Criminal Court Judge for 10 more.
These unconstitutional gun laws have always been a problem for law-abiding citizens who need to protect themselves while going about their business, especially now that violent crime has increased exponentially in the past few years. As of March of 2023, there have been 31 murders, 1,253 robberies, 2,102 felony assaults, and 4,129 grand larcenies. While these numbers are a small reduction from last year (for instance, by March of 2022 there were 35 murders, 1,271 robberies and 2,063 felony assaults), there is no denying that these numbers remain high.
Charles Foehner, a 65 year old resident of Queens, has watched his neighborhood deteriorate. In August of 2020, he was interviewed by the New York Post regarding a local hotel that had become a dangerous “flophouse.” “This isn’t our nice little neighborhood anymore,” Foehner said. “People come down the block and key a car as they pass it. Drug deals are going on in the lobby…Six weeks ago two people got shot and not even a week ago they came by — and I don’t know if it’s auto- or semi-auto or full-auto fire, I don’t know — but someone shot at the hotel…This is not how I want my neighborhood.”
But Charles stayed in his neighborhood, watching the criminal element get stronger and stronger – until the night a criminal came for him.
According to the New York Post, on May 31st, Charles “was walking home around 2 a.m. when (a) 32-year-old alleged robber came up to him at a driveway leading to a parking garage on 82nd Avenue near Queens Boulevard in Kew Gardens…(t)he erratic mugger demanded cash and cigarettes while flashing an unknown sharp object,,,(t)hat’s when…Charles Foehner…pulled out a silver revolver and shot him multiple times in the chest…”
32 year old Cody Gonzalez tried to run from the scene after being shot, but collapsed and died from his injuries. “Surveillance video of the deadly encounter appears to show Foehner pointing a handgun at Gonzalez while taking steps backward while Gonzalez continues to act erratically and suddenly lunges at Foehner. Foehner fired the gun and struck Gonzalez… Foehner called 911 saying he was involved in a shooting and that his firearm was in his jacket pocket.”
Predictably enough, “Gonzalez…had at least 15 arrests dating back to 2004 and a record of mental illness” at the time of his death. By all accounts, Charles Foehner was and is a law abiding citizen with no prior arrests or convictions.
Yet, the New York City Police Department found a reason to arrest the victim – for possession of the pistol he used to defend himself.
The case against Charles then got worst when he forgot to exercise his rights under the Fifth Amendment, and gave a statement to the police. Based on his statements, the Police got a search warrant, and recovered the rest of Charles’ firearms – “roughly 30 handguns, revolvers and rifles, plus ammunition” from Charles’ apartment. According to the NYPD, “(a)mong the firearms were 17 handguns, including the one used in the (Gonzalez) shooting…Fourteen other guns in the house were long guns. Six of them were legally possessed.”
As also noted by the New York Post, “(d)uring police questioning, Foehner…cited the city’s crime as the reason why he was armed when confronted by Gonzalez…’Last night I was carrying a firearm because of the way that the city has been in the last three years. I read the crime stats and I see so much crime,’ Foehner reportedly told investigators.”
For his efforts at self-defense, and in consequence of the statement he gave the police, Charles Foehner faces a series of felony and misdemeanor gun charges. He is currently at liberty after posting a $100,000 bond, and is awaiting Grand Jury action.
As noted by Seth Barron, Managing Editor of The American Mind, “Queens DA Melinda Katz contemplated homicide charges, but after reviewing video footage showing assailant Cody Gonzalez menacing Foehner, she realized that no sober-minded Queens jury would ever convict a neighbor in such an obvious case of self-defense.”
However, Barron also states that “Charles Foehner should not have been carrying an unlicensed handgun, and he ought to be prosecuted for this crime. He should go to jail.”
Really? Why should a man go to jail for defending himself with a weapon that he has the right to possess under the Second Amendment to the US Constitution, merely because the laws of New York conflict with the Second Amendment? Especially when the laws of that State make it nearly impossible to get a legal firearm?
What else was Charles supposed to do? If he did not carry that pistol, he may have been the one lying dead on that sidewalk in Queens, instead of his violent assailant.
Perhaps instead of victimizing Charles Foehner twice, the District Attorney of Queens County should treat this case as leniently as every other case in New York City is currently treated.
And perhaps New York should reconsider enforcing laws that keep the guns out of the hands of peaceful people engaged in necessary self defense.
Judge John Wilson (ret.) served on the bench in NYC
Illustration: Pixabay