Part 2: Do New York Residents and Citizens Really Have a Private Property Right Interest in Their Guns?
In the previous installment of this multi-part series, we discussed the notion of a private property interest as existent in the U.S. Constitution, and we provided you with various legal definitions of ‘property.’ We did this so you would be able to better understand and appreciate how the New York Safe Act and related New York law operate to deprive New York residents and gun owners of their right to effectively transfer their firearms to other individuals, namely and particularly, their heirs, upon the death of the original owners of the firearms.
If you wish to give your firearms to your heirs when you die, you need to become familiar with substantially more legal terminology that you will come across in New York law.
In this installment, Part 2, we will accomplish two things. First, we will provide you with several more definitions of common legal terminology that appear in New York law that negatively impact a gun owner’s private property interest in his or her own firearms. Second, we will drill down into the notion ‘private property.’ You will come to appreciate that the Founders of our Republic did, in fact, respect the notion of a private property right and private property interest as reflected in the Bill of Rights, and you will also come to understand that New York law insidiously undermines one’s private property right and interest as applied to one’s own guns.
LEGAL TERMINOLOGY YOU NEED TO KNOW
Several legal terminology that you need to have an understanding of and appreciation for include: ‘testator,’ ‘will,’ ‘heir,’ ‘legatee,’ ‘bequest,’ ‘decedent,’ ‘estate,’ ‘executor,’ and ‘fiduciary.’
The word, ‘testator,’ refers to “a person who makes a will; esp. a person who dies leaving a will.” A similar word, ‘testation’ refers to the “disposal of property by will.”
The term, ‘will,’ – more usually referring to a written instrument – means, ‘the legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death.”
The term, ‘executor,’ means ‘a person named by a testator to carry out the provisions of the testator’s will.’
The term, ‘fiduciary,’ means ‘a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor.’ So, the executor of a testator’s will owes the testator the duties of good faith, trust, confidence and candor in carrying out the provisions of the testator’s will.
Suppose a person doesn’t leave a will. How is the decedent’s property to be disposed of?
Every State has laws that determine how a person’s property is to be distributed in the event a person doesn’t leave a will. This process of distribution, in the absence of a will, is called intestate succession. An heir, also referred to as ‘legal heir,’ is ‘a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property.’
The term, ‘decedent,’ means, simply, ‘a dead person, especially, one who has died recently.’ And the term, ‘legatee,’ is defined as ‘one who is named in a will to take personal property; one who has received a legacy or bequest.’ Think of the legatee as an heir who is specifically named in a will. The legatee is a person who takes property under the will of the testator.
The term, ‘bequest,’ is ‘the act of giving property (usually personal property) by will.’ The verb form of that word, ‘bequeath,’ means, then, ‘to give property (usually personal property) by will.’
In this multi-series article we will use the term ‘heir’ to refer generally to a close family relation to whom a decedent’s firearms, as personal property, go, whether by intestate succession or by the written will of the decedent testator.
Finally, the term ‘estate’ means, in law, “the amount, degree, nature, and quality of a person’s interest in land or other property.”
Let’s consider an example to see how these various legal expressions work.
Let’s say, I am a New York resident and I have one adult son. I own and possess several firearms, many of which are extremely rare heirlooms – commemorative editions of rifles, pistols and shotguns, plated in gold and silver. Let us say that much of my wealth is tied to these firearms that, collectively, are worth several thousand dollars, perhaps tens of thousands of dollars, and that, together, they constitute a considerable dollar sum of my estate. I wish to give the entire collection to my son once I am gone. I hire an attorney to draft a will for me. I am the testator of that will. In that will, I bequeath the entire collection of firearms to my son, the legatee and legal heir of my firearms’ collection. I also choose to appoint the lawyer as my executor. As executor of my will, the lawyer has a fiduciary obligation to me is to see that my wishes are fulfilled in accordance with the terms of my will, after I am gone. The executor will have an extraordinarily difficult time executing my will because New York gun laws are extremely restrictive and complex, not at all straightforward.
THE NOTION OF ‘PRIVATE PROPERTY’ IN AMERICA
Before we tackle the problems associated with New York law that generally defeat one’s property interest in his or her firearm or collection of firearms, we need to spend a little more time on the notion of ‘private property.’
Does An American Citizen Really Have A Right In And To Private Property?
We have previously pointed to the Fifth Amendment “Takings clause” as the place where one finds a right of ownership in property. The Fifth Amendment sets forth in full: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Now, to be clear, the Fifth Amendment doesn’t expressly assert private ownership of property in terms of a specific, expressly asserted “right” in the sense, for example, that the Second Amendment clearly speaks of “the right of the People to Keep and Bear Arms. . . .” Nonetheless, the implication is clear.
The last clause of the Fifth Amendment says “. . . nor shall private property be taken for public use, without just compensation.” The expression ‘private property’ does expressly appear in the Fifth Amendment even if the right underlying it does not. Still, the right exists, even if only implied. For, if the right to own property in a personal capacity did not exist, then the “Takings Clause” of the Fifth Amendment would be meaningless. The Federal Government or a State Government would have no duty to provide a person just compensation for one’s property if a “right” in and to that property didn’t first exist. So, the right in and to private property must exist in order to make sense of a Government’s duty to provide just compensation for the taking of it.
Basically, the “Takings Clause” of the Fifth Amendment says that no governmental body shall take a person’s private property for public benefit, without compensating the owner justly for it. The expression ‘just compensation’ is understood in law to mean ‘fair market value.’
Now proponents of the NY Safe Act will likely point out that the “Takings Clause” of the Fifth Amendment doesn’t apply here even if New York law does interfere with a gun owner’s desire to transfer his firearms to others. Proponents of NY Safe may argue that such interference with one’s private property – one’s firearms – doesn’t amount to a “Taking” under the Fifth Amendment at all because New York isn’t actually appropriating the firearms. Proponents of NY Safe might point out that the executor of the decedent original owner of the firearms isn’t prevented from selling the guns to a resident outside of New York or selling them to a licensed gun dealer in New York. Still, one might reasonably respond that, to the extent a firearms’ owner isn’t able to do what he wishes with them – bequeath them to his or her heirs – the result is a constructive taking of them.
Moreover, if a firearms’ owner is prevented from transferring his firearms to his or her heirs and the executor of the gun owner’s estate is compelled to sell the firearms in order to realize some monetary gain for them on behalf of the heirs, that gain is likely to be far less than the fair market value for the firearms. A prospective buyer of the firearms would be well aware that the executor of the firearms’ owner’s estate is compelled to sell the firearms or, otherwise, the prospective buyer could certainly learn, with little effort, that the firearms must be disposed of because the heirs are ineligible under New York law to receive them.
But proponents of the NY Safe Act might then argue that the State of New York isn’t taking one’s firearms because, under the Fifth Amendment, the taking of private property must be for a public benefit, and there is no public benefit associated with the firearms. There are two responses to that argument.
First, since proponents of NY Safe presume that firearms are, ipso facto, dangerous instrumentalities, whose mere presence constitutes a danger to the public, the interference with one’s private property interest in them does, to the minds of proponents of NY Safe, confer a benefit on the public – namely, the removal of them from private hands. The firearms likely must either be transferred to someone outside the State or destroyed by the police, in the State.
The benefit, at least to proponents of the Safe Act, however faulty their reasoning, is that public safety in general is increased to the extent that the number of firearms in private hands is decreased. The benefit to the public might be considered, then, a ‘constructive benefit’ if not an actual benefit. So, interference with one’s private property interest in firearms does amount to a taking for the public benefit. If so, then the Government is itself obligated, under the Fifth Amendment to the U.S. Constitution, to provide the owner’s heirs, the fair market value for the firearms – if New York law does not otherwise permit the owner’s heirs to receive the firearms upon the original owner’s death, pursuant to the original owner’s intent as expressed in his will and if the executor of the estate is unable, after diligent effort, to find a buyer outside the State or a licensed gun dealer inside the State who is willing to pay the executor the fair market value for them.
Second, even if the interference with one’s ownership interest in firearms does not really amount to a taking under the Fifth Amendment precisely because no actual public benefit exists, still, in some instances, where private property interests are at stake, the Government’s interference with one’s private property interests may amount to a taking, notwithstanding the absence of a public benefit. The U.S. Supreme Court has held that interference with a person’s attempt to pass property to others upon death may constitute a “per se” taking. See, Hodel v. Irving, 481 U.S. 704, 716-18 (1987). If so, then, New York’s interference with a person’s desire to pass one’s firearms to one’s heirs may constitute a per se taking under the Hodel holding.
The concept of ‘private property’ also appears, although tacitly,’ in the Third Amendment to the U.S. Constitution. The Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
The Third Amendment presumption is that a person owns his or her house. One’s house is, then, one’s private property. The Third Amendment makes clear that a soldier of the Federal Government shall not, in peace time, be allowed to enter or to stay in a person’s house unless the owner of the house – that is to say, the owner of that property – so allows it. During times of war, the Government can override the consent of the owner but, any overriding proviso must clearly be set forth in law.
How many American citizens do you suppose are familiar with the Third Amendment to the U.S. Constitution? Probably, not many to be sure. Just imagine a circumstance, in the not too distant future, when, as economic calamity strikes this Country, and as our sacred rights and liberties become further eroded, under the guise of “National Security, the police and military demand access to an American’s home, your home. If this idea seems far-fetched, just keep in mind that it is only through the U.S. Constitution that Government in this Country is kept in check. As the mainframe of our Constitution — the Articles and Sections and Amendments that comprise it — becomes ignored or defeated – improbable events become likely events, and unlikely events become actual.
In the next installment of this multi-series Article We will show you that, under present New York law, a New York resident and citizen of the United States does not have absolute control over his or her own firearms. That means that one’s private property interest is not preserved. If so, that is in contravention to the U.S. Constitution and in contravention to the New York State Constitution as well. We will begin to look at actual New York Statutes. We will list them, describe them, and explain how they operate to defeat one’s private property interest in one’s own firearms as they interfere with one’s right to make bequests of firearms to one’s heirs.Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.