4.Also since McDonald, federal Circuit Courts of Appeals have rejected Second Amendment challenges to federal laws that prohibit certain classes of people from lawfully owning firearms and that prohibit people from owning certain kinds of weapon. United States v Yancey, 621 F3d 681 (7th Cir 2010) (per curiam) (rejecting Second Amendment challenge to 18 USC § 922(g)(3), which makes it a criminal felony for one who is an unlawful user of, or addicted to, any controlled substance to possess a gun); United States v Seay, 620 F3d 919 (8th Cir 2010), pet. for cert. filed, Dec. 16, 2010 (same) (see also 620 F3d at 924-25, collecting cases); United States v Skoien, 614 F3d 638 (7th Cir 2010) (en banc), pet. for cert. filed, Oct. 12, 2010 (rejecting Second Amendment challenge to 18 USC § 922(g)(9), which makes it a felony for a person convicted of a misdemeanor crime of domestic violence to carry firearms in or affecting interstate commerce); United States v Marzzarella, 614 F3d 85 (3rd Cir 2010), pet. for cert. filed, Nov 23, 2010 (rejecting Second Amendment challenge to 18 USC § 922(k), which makes it a felony to possess a firearm with an obliterated serial number; see also id. at 90-91, n. 5 [collecting cases]); United States v White, 593 F3d 1199 (11th Cir 2010) (holding that Heller does not cast doubt on constitutionality of 18 USC § 922[g]). Because of the explosion of Second Amendment litigation post-Heller, and because cases analyzing Second Amendment challenges in various contexts are being decided with such frequency, see, e.g., United States v Oppedisano, 2010 WL 4961663 48 (ED NY, decided Nov 30, 2010) (rejecting defendant's motion to introduce otherwise irrelevant evidence to argue that 18 USC § 922(g)(1), prohibiting possession of ammunition as a convicted felon, is unconstitutional as applied to him in light of Heller); People v Foster, — NYS 2d —, 2010 WL 5187702, 2010 NY Slip Op. 20525 (Crim Ct, Kings County, decided Dec. 15, 2010), this Court does not attempt to set forth an exhaustive list of all federal and state cases raising challenges to such categorical bans.
5.This Court is aware that, generally, an as-applied constitutional challenge should be decided before addressing a facial challenge. "Because facial challenges to statutes are generally disfavored [citation omitted] and legislative enactments carry a strong presumption of constitutionality [citation omitted], a court's task when presented with both a facial and as-applied argument is first to decide whether the assailed statute is impermissibly vague as applied to the defendant [citation omitted]. If it is not and the statute provides the defendant with adequate notice and the police with clear criteria, that is the end of the matter." People v Stuart, 100 NY2d 412, 422 (2003). Here, however, the Court cannot proceed in the usual fashion, because defendant's as-applied challenge is entirely circular: the Penal Law and Administrative Code are unconstitutional as applied to him, because they are unconstitutional burdens on his Second Amendment rights. Moreover, facial challenges "outside of the First Amendment context" may be permissible "in the presence of a constitutionally-protected right," Dickerson v Napolitano, 604 F3d 732, 744 (2d Cir 2010) (discussing City of Chicago v Morales, 527 US 41 ). Therefore, this Court begins with the facial challenges to the statutes. See People v Abaof, 187 Misc 2d 173, 185 (Crim Ct, New York County, 2001) (addressing defendants' facial challenge to PL § 240.35 before as-applied challenge; each as-applied claim was "based on the premise that the bandanas the defendants were wearing are entitled to protection under the First Amendment.").
6.New York City's premise residence licensing requirements "materially mirror those set forth in the Penal Law." City's Amicus Br. at 7.
7.The difference in the 2009 figures cited in the present case and in Foster is irrelevant to the Court's analysis.
8.Citing Bach v Pataki, 289 F Supp 2d 217, 224-226 (ND NY 2003), aff'd, 408 F3d 75 (2d Cir 2005), cert. denied, 546 US 1174 (2006), defendant argues that he has standing to challenge the licensing requirements "as a criminal defendant aggrieved by a prosecution that is founded upon a vague and unconstitutional licensing requirement....The general rule that requires civil plaintiffs to first submit to a challenged policy or licensing requirement is inapplicable to a criminal defendant charged with possessing an unlicensed gun" (Wasserman Br. at 3). Unlike defendant, Bach could not obtain a New York firearms license because he neither lived nor worked in New York; thus, it would have been futile for him to have applied for a license (289 F Supp 2d at 223). The People repeatedly emphasize that defendant never applied for a firearms license or showed that it would have been futile for him to do so (Peo's Br. at 8, 11, 13, 16), but never argue that he lacks standing to raise these claims.
9.Whether the rational basis test that is applied in Article 78 proceedings must be changed in light of Heller and McDonald (see Haidas Br. at 11-12; Broadus v City of New York Police Dept, 62 AD3d 527 [1st Dept 2009]; Moreno v Cacace, 61 AD3d 977 [2d Dept 2009]), should be decided in the context of an appeal from a denial of a license, not here, where defendant never applied for a license and never resorted to an Article 78 proceeding.
10.Indeed, information in the Court's file indicates that defendant was employed at the time of his arrest.
11.See esp. Peo's Br. at 8, n. 6 ("New York distinguishes between air guns and firearms. Penal Law § 265 does not mention air guns in its definition of firearms. Nor are air guns included in the Ad. Code § 10-301[a], the section that regulates pistols and revolvers.").