Restitution for Unconstitutional Laws

Written by Rob Morse on December 8, 2021

There is an important case being considered by the United States Supreme Court. The case hinges on the fact that government officials in New York State can choose whether to give ordinary citizens a license to carry a concealed firearm in public. About one in a dozen of us carry in public now. That isn’t true in New York State where ordinary people are denied the right to carry personal firearms in public. Also consider the fact that New York has arrested people who tried to pass through the state with a firearm. Now the case in front of the US Supreme Court takes on a different character.

Justices as of November, 2021

We’ve seen similar cases before. We saw people who were driving up the east coast of the United States. They drove through Washington D.C. where they were pulled over for an ordinary traffic stop. (Let’s say that your windows were tinted, and though that is legal in Florida, it is illegal in D.C.) You are shaken down for a traffic fine. You’re also carrying a firearm in the trunk of your car. You’re arrested for having an unregistered firearm in the District of Columbia.

At that time, Washington D.C. didn’t issue permits so ordinary people could carry and transport their firearms in public. You pay fines, pay court fees, and pay lawyer’s fees. You also have a criminal conviction on your record as you try to get on with your life.

At that time, the district didn’t even have a permit process so that people from out of town could get a permit. It was impossible for us to register, to carry, and then to legally transport a firearm through the district. Later, the district’s permit laws were ruled unconstitutional. The Supreme Court ruled that the district must issue permits so that ordinary people could carry ordinary firearms in ordinary places. That is progress, but it gets better.

Later, a judge ruled that the district could require a permit, but the district could not prosecute someone who didn’t have a permit that was impossible for them to get. Individuals who were prosecuted in DC for the non-violent possessory offence of having a gun as they passed through DC asked to be reimbursed and to have their record cleared. A judge ruled that the city owes them their attorney’s fees and to expunge their record of a criminal conviction.

It is good that an individual should not be punished by an unconstitutional law. If they were unjustly punished, then they deserve restitution. So far, only a few people have applied for restitution in DC. There is a larger class action lawsuit that needs to be filed against the district and settled.

Though that is good, it is a trifle compared to what has happened in New York. New York City routinely stopped and frisked ordinary people on the street. The state and the city prosecuted travelers who brought firearms with them as they traveled through New York. They prosecuted businessmen who had a decorative knife on their keychain, and they prosecuted boy scout troops who had a scout knife in their pockets. It prosecuted travelers who arrived at an airport with legal firearms locked in their luggage. The number of victims is in the tens-of-thousands, if not larger.

Are we safer now that boy scouts are disarmed?
Is it moral to demand that people have a license to carry a “weapon” in public,
a license that the state won’t issue to them?

That isn’t the way the current New York case in front of the US Supreme Court is framed. That case was filed by ordinary people in upstate New York who were arbitrarily denied their carry permits. Those plaintiffs were unlucky enough to draw a judge who doesn’t issue permits, while other judges hearing similar cases did issue them. The details in how the New York case is settled matter to thousands, if not hundreds of thousands of people.

I hope that laws like New York’s are declared unconstitutional. If state governments owe restitution for prosecution of unconstitutional laws, then they owe more than an apology. They also owe the victims a lot of cash.

I hope the New York case in front of the US Supreme court is decided broadly. Having a pocketknife shouldn’t land you in jail. Going to an airport in New York shouldn’t land you in jail either. I hope the Supreme Court rules that states like New York can no longer write and enforce such arbitrary laws. I hope those people who were abused by the state will finally get their day in court.


I gave you almost 800 words. Please comment, like, and then share them with a friend. RM

Thanks to lawyer and author Greg Hopkins for his suggestion.