A Schenectady man accused of lying to buy a shotgun is seeking dismissal of the charges based on a landmark U.S. Supreme Court decision in June upholding the right to bear arms.
Lamar D. Erwin, 35, of Crane Street, is one of the first to use the ruling to challenge the constitutionality of a federal statute that makes it a felony for a person under a protective order to buy and possess a firearm, said Lee C. Kindlon, his attorney.
Erwin was arrested last September and charged in federal court with failing to disclose that he was the subject of a protective order when he filled out a form used to conduct background checks for people purchasing a firearm. He was later indicted on two felony counts by a federal grand jury in Albany.
The protective order pertained to an assault charge filed against him by his former girlfriend.
In a 5-4 ruling on June 26, the Supreme Court struck down a District of Columbia law that banned handguns and set strict rules on the possession of rifles and shotguns.
Nationwide, similar local laws that ban assault weapons or set limits on who can possess firearms are also being challenged by gun advocacy groups in the wake of the court decision.
"We believe that the Supreme Court finally clarified the Second Amendment and really to the benefit of our client, who truly believes he did nothing wrong," Kindlon said.
The defense attorney's legal argument is built around the high court's finding that a person has a right to bear and possess arms if he is not a convicted felon.
Assistant U.S. Attorney Carlos A. Moreno, who is prosecuting the case, could not be reached for comment.
Erwin was charged with assault in February 2007 following a fight with his girlfriend. A judge issued an order of protection against Erwin prohibiting him from harassing or stalking the victim. Erwin subsequently pleaded guilty to a reduced charge of harassment, which is a violation and not a criminal offense.
Then, on June 4, 2007, Erwin went to a Schenectady gun store, Taylor & Vadney, where he wrote "no" on a federal background form to a question about whether he was the subject of a protective court order. It is a felony to lie on the form, which must be completed by anyone buying a gun and also asks questions such as whether the customer is a convicted felon, a drug user or a fugitive.
Kindlon said Erwin believed the order of protection had been lifted when he bought his Mossberg Maverick shotgun.
Typically, if the federal background check is not completed within three days, the gun dealer may complete the sale and the customer is allowed to take the firearm he purchased. That routinely happens, according to people familiar with the process.
In a two-count felony indictment handed up against Erwin in December, it's not clear whether his background check was approved or whether he was able to purchase the gun because the federal background check had not been completed within three days.
Either way, Kindlon contends in his motion to dismiss the indictment that the Supreme Court decision may make it clear that felons are not allowed to possess firearms, but the ruling "clearly does not extend to allowing a ban on firearm possession by those convicted of lesser offenses or by those with no convictions at all."
Erwin has been free on his own recognizance since his arrest by ATF agents last September. Federal prosecutors have asked U.S. District Senior Judge Lawrence Kahn for two weeks to respond to Kindlon's motion.