A New York state criminal court judge, not unexpectedly, rejects the decision of the U.S. Court of Appeals for the District of Columbia in Parker v. District of Columbia, and rules that Rashawn Handsome has no “a constitutional right to bear arms [that] protected his keeping three unlicensed handguns in his apartment,” according to the New York Law Journal (subscription required) :

In refusing to follow Parker, Judge Gerstein noted that the ruling’s conclusion is at odds with the holdings of nine other circuits and the last U.S. Supreme Court decision to address the issue, U.S. v. Miller, 307 U.S. 174 (1939). All those rulings concluded that the Second Amendment, rather than creating a personal right to bear arms, circumscribes potential efforts by the federal government to curb state militias.

While the Second Circuit has not directly addressed the issue, Judge Gerstein wrote, it observed in a 1984 ruling that “the right to possess a gun is clearly not a fundamental right” (U.S. v. Toner, 728 D.2d 115).

The U.S. Supreme Court in Miller and the nine circuits agreeing with it, Judge Gerstein noted, all considered the prefatory clause of the Second Amendment controlling.

In its entirety, the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

Mr. Handsome’s argument relying on the Parker case to overturn New York’s law “requires rejection of viable Supreme Court precedent and half of the [Second] Amendment’s text,” Judge Gerstein wrote.

The New York decision is here. It may not do justice to the learned opinion or the level of complexity surrounding this issue, but it is certainly a full-bore gun control opinion. In short, it rejects the assertion that there is any independent right to bear arms except in connection with the establishment of a “well-regulated militia” or that the right to bear arms could be numbered among the fundamental individual rights of the Constitution such as free speech. On the one hand, the New York Times quoted former Chief Justice Warren Burger as saying, “The Second Amendment doesn’t guarantee the right to have firearms at all,” and calling the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.” In the same article, however (hat tip to Instapundit), no less a liberal light — and considerably more respected legal scholar than Burger, who was not really regarded as an intellectual heavyweight — comes to the exact opposite conclusion.

Judge Gerstein’s opinion does note that, unlike the D.C. statute that was overturned, the New York statute does not purport to be a total ban, merely a (draconian) licensing and regulation scheme. That means that even if, in the fantasy world of gun rights enthusiasts (such as myself — why, some day I may even see a real gun thingy up close), the Supreme Court were to take up and affirm the Parker decision, this New York law would probably be unaffected.