District Attorney on New York's Long Island bans prosecutors from owning guns

Published September 29, 2015

| FoxNews.com

The district attorney of one New York county is prohibiting prosecutors from owning a handgun -- a rule some law experts claim is unconstitutional.

The Nassau County District Attorney's Office on New York's Long Island bars its prosecutorsfrom possessing a handgun, even at home, unless a special exception is made by the Acting District Attorney, Madeline Singas, according to an application for employment.

"[A]ssistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. Any exception to this policy must be in writing and approved by the District Attorney," the application states.

Eugene Volokh, a professor at UCLA School of Law, said Monday the policy violates an individual's Second Amendment rights as well as an important New York state statute.

"Prosecutors often have special reasons they may want to be able to defend themselves," Volokh told FoxNews.com.

"I'm not arguing they should have extra rights beyond what everyone else has; I'm arguing they should have the same rights," Volokh said.

The Nassau County District Attorney's Office did not return requests for comment when contacted Monday. In a statement provided to Volokh, the office said, "Our practice of asking prosecutors to not possess handguns is to ensure the safety and comfort of staff, victims, and witnesses, and is consistent with other district attorney’s offices in the New York City metropolitan area."

Volokh, who first criticized the rule in a Sept. 21 blogpost for Washington Post, explained that the government, acting as employer, has the right to restrict certain employee behaviors, including "off-duty exercise of constitutional rights."

A classic example of what is constitutional is government restriction on political campaign activity by its employees, according to Volokh. Such policies, he explained, require substantial justification showing the practice or activity interferes with government employer operations.

In the case of Nassau County, Volokh said he doesn't believe there is proper justification for prohibiting prosecutors from owning handguns and that the Second Amendment trumps such a policy.

"Handgun possession in the home does not interfere with the prosecutor’s ability to do his or her work," he told FoxNews.com. "The Second Amendment restricts the government’s ability to ban handguns."

Further, Volokh cited a New York state statute that arguably runs at odds with Nassau County's policy when it comes to handgun collectors or individuals who own them for the purpose of target shooting.

According to Volokh, the policy implemented by Nassau County is inconsistent with N.Y. Labor Code § 201-d, under which handgun collection can be considered a "lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purpose" that is included in the subcategory of "hobbies" and conducted "off of the employer’s premises and without use of the equipment or other property."

The NRA predictably seized on the matter, roundly criticizing the district attorney for putting employees at risk.

"Thanks to Singas' policy, Nassau County prosecutors will be finding themselves especially exposed, should they be forced to confront an aggrieved offender bent on doing them or their innocent family members harm," the NRA said in a statement on its website.

"The policy will also ensure that armed offenders have the upper hand in any such confrontation," the group said.