Convicted Felon Tests Second Amendment

With the U.S. Supreme Court set to decide whether the Second Amendment gives law-abiding citizens the right to keep a handgun at home, a convicted felon in New York decided to test his luck.

The inmate, Damon Lucky, isn't law-abiding. Nor did the gun he was convicted of possessing stay in his home. Still, Lucky decided to "see how far we can ride this pony," his lawyer, Harry Batchelder Jr., said, referring to the federal judiciary's apparent willingness to examine gun control laws critically.

So this month, Mr. Batchelder, asked a federal judge in Brooklyn to answer "yes" to a question that makes many staunch gun owners uneasy: Does the Second Amendment give convicted felons the right to carry handguns?

Current federal law prevents felons from keeping a firearm. Lucky, already a felon twice over, was convicted this year of violating that law. His court motion seeks to have that conviction tossed out on the grounds that the law violates the Second Amendment.

At its essence, the question before the Supreme Court in an upcoming case is whether the Second Amendment gives individuals the right to own guns or grants only a collective right to form militias.

Even some proponents of the individual rights position say the Second Amendment allows for some gun control, like laws that prevent felons from owning firearms.

Mr. Batchelder conceded that the motion is a long shot. Still, few defendants in gun possession cases in New York ever raise a Second Amendment argument.

Except for Lucky, Mr. Batchelder said, "they all go away quietly."

It's possible, several lawyers say, that Lucky's case is the only challenge currently in court in New York City claiming that the Second Amendment provides for an individual right to own a gun.

Mr. Batchelder, an ex-military man, described Lucky as "the recon scout for the Second Amendment."

Lucky, who is currently being held in Manhattan's federal jail, the Metropolitan Correctional Center, faces up to 10 years in prison if Judge David Trager of U.S. District Court rejects the motion.

Lucky's latest arrest came in 2004 after police pulled over the truck he was driving and found a handgun in his waistband. Officers had been on the lookout for the vehicle because, a few days earlier, a firefighter claimed to have seen a man get out of the truck and fire a gun at a group of people near the intersection of Park Place and Nostrand Avenue in Brooklyn.

Prosecutors say Lucky's criminal record dates back to May 1992, when, at age 19, he shot a man. Then, in September of that year, police found him in possession of two handguns and a small amount of crack cocaine. He was sentenced to six years and released after four and a half.

In Lucky's legal motion, Mr. Batchelder refers to the gun rights advocates as "Paineists," and the gun control advocates as "Stalinist collectivists." Yet the lawyer says he personally favors gun control.

"But my personal views have nothing to do with what I advocate," Mr. Batchelder said. "Otherwise, I wouldn't be advocating for too many people."