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Tuesday, August 04, 2009
Plaxio Burress Indicted: Will he now turn to D.C. v. Heller?

I have a new column up on on a Manhattan grand jury indicting Plaxico Burress. Here is an excerpt:

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Today's indictment is a victory for Manhattan district attorney Robert Morgenthau and New York City Mayor Michael Bloomberg, who has repeatedly advocated that Burress be prosecuted to the fullest extent of the law. It is similarly a victory for gun control advocates and for those who believe that athletes and celebrities should not receive preferential treatment.

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Although unlikely, the trial version of a Hail Mary could come in the form of a constitutional challenge to New York law. Last year, in District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment guarantees the right of individual U.S. citizens to keep and bear arms while at home. On the surface, it seems unlikely that Burress' legal team could use Heller to argue that New York's law also violates the Second Amendment. Heller concerned a Washington D.C. prohibition on owning certain firearms -- including in one's home -- whereas New York's law concerns possession of certain firearms outside of one's home (or place of business). Still, Burress may contend that his situation is not so dissimilar from the legal challenge brought in 2003 by D.C. resident Dick Heller. Burress could assert that both he and Heller were merely exercising their right to bear arms under the Second Amendment.

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To read the rest, click here.


Of course, whether that works for Burress depends on one of the issues that came-up repeatedly during the Sotomayor confirmation hearings--whether the Second Amendment is incorporated against state and local government.

Blogger Howard Wasserman -- 8/04/2009 10:34 PM  

He was at a club right? Why did they let him in? Guys are definitely supposed to get patted down...

Blogger Whitney Henry -- 8/08/2009 10:16 PM  

how bad is it for a coach to receive cash from a slush fund?

Anonymous Anonymous -- 8/30/2009 7:40 PM  

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