David Kopel says the charges against Plaxico Burress should be dropped:

New York Giants star receiver Plaxico Burress is facing a mandatory 3½ years in prison and the end of his football career. His crime? Not having a license, which New York City never would have issued him, for the exercise of his constitutional right to bear arms.

To be sure, Mr. Burress got caught because of what appears to have been stupid and irresponsible behavior connected with the handgun. But he does not face prison for shooting himself. His impending mandatory sentence highlights the unfairness and unconstitutionality of New York City's draconian gun laws.

Mr. Burress had previously had a handgun carry permit issued by Florida, for which he was required to pass a fingerprint-based background check. As a player for the Giants, he moved to Totowa, N.J., where he kept a Glock pistol. And last Friday night, he reportedly went to the Latin Quarter nightclub in midtown Manhattan carrying the loaded gun in his sweatpants. Because New York state permits to possess or carry handguns are not issued to nonresidents, Mr. Burress could not apply for a New York City permit.
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This summer, the Supreme Court ruled in District of Columbia v. Heller that the District's handgun ban, and its ban on use of any firearm for self-defense in the home, violated the Second Amendment, which guarantees the individual right to bear arms. D.C. is a federal enclave, and the Court did not rule whether the Second Amendment applies to state and local governments. But as other cases reach it in the wake of Heller, it will.

The Heller decision did not say that requiring a license to carry a gun was unconstitutional. But in New York State, nonresidents cannot even apply for the licenses to possess or carry a handgun. Unlike most other states, New York refuses to honor carry permits issued by sister states. Most observers believe that the Supreme Court will eventually make state and local governments obey the Second Amendment. If it does, New York's discrimination against nonresidents will probably be ruled unconstitutional.

Dashiell Bennett of Deadspin, a sports blog I read everyday, seems to mock Kopel (nevermind his resume and accomplishments) and then doubts his conclusion without offering any real argument:

Just because Plaxico passed a firearm safety class in Florida and then violated every single rule of firearm safety in the span of thirty seconds before shooting himself in the leg in a public space, why should the government be able to deny him his right to defend himself? New York City is violating the constitution (maybe), so they should be forced to violate the constitution and do whatever New Jersey tells them to even though Jersey would never tell them to do that in the first place.

That seems somehow ... off.

If the same standard is applied to New York City that was applied to the District of Columbia in Heller, then Kopel is absolutely right and Burress will have a case.

As stupid and irresponsible as Burress was, he should not go to jail for a victimless crime.