New York’s ban on body armor does not violate an individual’s constitutional right to bear arms because no such right exists, according to the attorney representing Monroe County DA Sandra Doorley.
The unusual legal argument by Deputy County Attorney Robert Shoemaker was part of Doorley’s answer to a federal lawsuit challenging the legality of New York’s ban on the public sale and purchase of body armor.
“There was and will be no Constitutional violation in enforcing the statute because the phrase ‘bear arms’ is a 1791-era idiom referring to military or militia service,” Shoemaker wrote. “Plaintiffs have failed to plead their involvement in a militia.”
That argument runs counter to the U.S. Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which expressly held that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.”
The Firearm Policy Coalition filed suit this summer alongside three men — Benjamin Heeter of Lake View, Mark Braiman of Cazenovia, and Joseph Wurtenberg of Fairport. The lawsuit is challenging a ban enacted in the wake of a 2022 racially motivated mass shooting at a Tops Friendly Market in Buffalo, which left 10 dead and three injured. The shooter, 18-year-old Payton Gendron, wore body armor, which protected him from shots fired by a security guard, who Gendron shot and killed. Gendron later received 11 life sentences.
Other named defendants are state Attorney General Letitia James and the district attorneys of Erie and Madison counties. The complaint was filed in July, and Doorley was added as a defendant in August, upon Wurtenberg’s entrance into the case.
Shoemaker filed Doorley’s answer last week.
Wurtenberg, a graveyard-shift 911 dispatch operator, had wanted to carry body armor out of safety concerns when heading into his shift, the complaint states. The emergency communications department is headquartered at 321 West Main Street, at the western edge of downtown Rochester.
“In order to justify a law that affects plaintiffs’ Second Amendment protected rights, the government bears the affirmative burden of proving that the regulation is consistent with our nation’s history and tradition,” the complaint argues.
Owning and use of body armor is a Constitutional right, the argument continues, as it can be considered an “arm.”
Gov. Kathy Hochul signed the ban into law in June 2022, carving out exceptions for law enforcement, military, and certain other qualifying professions. It is a misdemeanor offense if violated, but Shoemaker wrote that it has never been enforced in Monroe County.
Doorley, through a spokesperson, declined comment on Shoemaker’s argument and referred questions to the county law department. A county spokesperson did not immediately respond to messages.
Shoemaker is an enrolled Democrat. Doorley has been a Republican since 2015 — she had been enrolled as a Democrat but switched parties during her bid for a second term in office. Their respective positions on gun rights was not immediately known.
Doorley has previously supported pro-Second Amendment candidates for office, including the 2022 gubernatorial contender Lee Zeldin, a Republican who has an A-rating for gun rights support from the National Rifle Association. She was initially offered the role of campaign co-chair before being advised against doing so by the District Attorney’s Association of the State of New York.
The Firearms Policy Coalition described Shoemaker’s argument as “as historically absurd as it is frivolous” but otherwise declined comment as well.
The Coalition, a national nonprofit, purports itself as a defender of “maximal liberty,” and regularly files lawsuits against state and local officials. In fact, in the past three months, it has appeared as a plaintiff in complaints challenging gun control measures in New York, New Jersey, California, Pennsylvania, Maryland, Oregon, and the District of Columbia.
