THE IRONY OF THE HANDGUN TRAINING MANDATE IN NEW YORK’S AMENDED GUN LAW

Anyone who possesses a handgun, or any functional firearm, should be familiar with its operation and, ideally, proficient in its use.

Few gun owners would object to that, and few would argue the responsibility to obtain understanding and proficiency of use rests with the individual, not the “nanny state” to require it.

Yet, a burning question, asked rarely, if ever, but one that needs to be asked and answered is this:

Should the State mandate handgun training when the individual undertakes that responsibility upon himself, where that responsibility properly belongs anyway, and where State handgun training is, then, time-consuming, unduly expensive, and clearly redundant?

In that normative question rests a pressing legal one:

“Does the State have the legal right to require handgun training and, if so, from where does that purported legal right to mandate handgun training derive?”

There is nothing in the natural law right of armed self-defense as codified in the Second Amendment of the Bill of Rights of the U.S. Constitution that expressly says or alludes to a training requirement as a condition precedent to one exercising the right to bear arms, as a natural law right accruing to the individual. But is this assertion, true? Granted, it requires explication and qualification:

The phrase “well-regulated” in the Second Amendment does mean “well-trained,” but only in the context of the prefatory “militia” clause, where it appears, not in the salient, independent clause: “the right of the people to keep and bear arms shall not be infringed,” where no mention is made of it.

The late Justice Antonin Scalia, writing for the majority in Heller pointed this out. And Justice Alito, writing for the majority, in McDonald, reiterated and expanded upon it.

An important distinction rests between the right of the people to keep and bear arms in matters of a life-threatening personal confrontation and the right of the people to keep and bear arms as “a failsafe” to thwart tyranny.

And as for the matter of tyranny, the Heller majority discusses it, but in passing.

Justice Scalia, who penned the Heller opinion, was undoubtedly acutely aware of making too much of the fundamental right of the common people to take up arms against a tyrannical government, in the seminal U.S. Supreme Court Second Amendment case of the 21st Century that, he knew, would draw incredulity and ire from many quarters, not least of all among some of his brethren, given the magnitude of the rulings.

That Scalia mentioned tyranny, at all, especially given its trajectory in our Nation in the 21st Century, he may have felt it enough to allude to tyranny as an imminent threat to the continuation of our free Constitutional Republic, and prudently left the matter of discussion at that, going no further.

But, one legal scholar, discussing Heller, who, as an academician, not a U.S. Supreme Court Justice, who need not be mindful of the potential backlash, elaborated on the singular import of tyranny as separate from the natural law right of self-defense. He writes:

“The natural right of self-defense applies not only to defense of the individual, but also to the defense of society against tyranny. There was little disagreement on this understanding at the time of the founding. As Hamilton put it, ‘if the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.’ It was universally agreed that the well-regulated militia consisted of the entire general populace, which was to be armed and trained in the use of arms. Indeed, that the people be well trained in the use of arms was central to the founders’ understanding of the Second Amendment and was considered the basic source of their liberty. As Madison put it, ‘if the people [of Europe] were armed and organized into militia, ‘the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.’” “The Responsible Gun Ownership Ordinance And Novel Textual Questions About The Second Amendment, 102 J. Crim. L. & Criminology 471 (Spring 2012) by Owen McGovern.

One can extrapolate from Heller and McDonald, that, when the Tyrant mandates arms training as a precursor to bearing arms, it isn’t done with the aim to create, in the commonalty, a force capable of deposing the Tyrant. That would be nonsensical.

The Tyrant seeks to disarm the populace, not embolden it. Otherwise, the common man might displace the Tyrant.

Mandating handgun training in jurisdictions such as New York is to inhibit the exercise of the natural law right of armed self-defense. Training, along with other mandates, takes time and money. The Government’s goal here is to dissuade the would-be gun owner, not ease his burden of acquiring a concealed handgun carry license.

Unfortunately, the U.S. Supreme Court majority in Heller, McDonald, and  Bruen, allows the despots and despoilers in Government to betray the intent of its rulings.

But the Court, knowledgeable of the irascibility and intransigence of forces hostile to the American citizenry’s fundamental, immutable, and unalienable rights, still provides these forces with loopholes, albeit reluctantly, to get around its rulings.

Consider: immediately after the Heller rulings, the City of Chicago sought to ignore those rulings, claiming Heller applies to the Federal Government only, not to the States.

Justice Alito, writing for the majority, refuted that idea, and then gave the City of Chicago the means to defy the Court, notwithstanding. How and why is that?

Alito recognized the inherent dilemma the Court was in, and, perhaps, anticipating that Chicago would try to negate the impact of McDonald, was, nonetheless, compelled to acknowledge that,

“This history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation, and the ability to respond to the social ills associated with dangerous weapons goes to the very core of the States’ police powers. Our precedent is crystal-clear on this latter point.”

This was all the City of Chicago needed to hear.

The City mandated handgun training, arguing that doing so is within its power to regulate firearms, as Alito acknowledged. And the City thereupon promptly banned the means to obtain that training in Chicago.

This impossible situation, not surprisingly, led to a Court challenge.

In Ezel “II,” the Seventh Circuit, opined,

“In Ezell I, we held that Chicago’s ban on firing ranges could not be reconciled with the Second Amendment and ordered the district court to preliminarily enjoin its enforcement. 651 F.3d at 710-11. . . . Chicago responded to our decision by promulgating a host of new regulations governing firing ranges, including zoning restrictions, licensing and operating rules, construction standards, and environmental requirements. (Firing ranges operated by law enforcement and private-security firms are exempt from the regulatory scheme; there are currently 11 of these located throughout the city.) The plaintiffs returned to court arguing that many of the new regulations violate the Second Amendment.

In the face of this second round of litigation, the City amended the regulatory scheme four times. . . repealing or revising some of the new rules.”

Since the Seventh Circuit precluded the City of Chicago from banning gun ranges outright, the City came up with another ploy. It cunningly established zoning restrictions, i.e., “sensitive places,” where gun ranges cannot lawfully operate.

Does this sound familiar? Does this bring to mind New York’s new “Sensitive Location” restriction? It should.

Likely taking its cue from Chicago, New York created a new Penal law section, NY CLS Penal § 265.01-e, that prohibits the carrying of a firearm, rifle, or shotgun in any “sensitive location”—applicable to a multitude of areas where a person holding a valid concealed handgun carry license could, once upon a time, not so long ago, lawfully carry a handgun, but now can no longer do so.

And, like Chicago, New York now institutes mandatory handgun training as a condition precedent to obtaining a license to carry a handgun in public even though it never had mandated such training for holders of concealed handgun carry licensees before. And that raises a question as to the State’s rationale for it.

Curiously, the Bruen majority opinion never dealt with the training issue. Reference to training appears only once: in Justice Kavanaugh’s concurring opinion. But that is dicta. It isn’t a Court ruling. And Kavanaugh simply notes this.

So, then, is State mandated handgun training lawful? Probably so, as evidenced in Heller and more specifically in McDonald.

Be that as it may, the application of a State’s police powers to over-regulate civilian citizen use of firearms ostensibly to promote public safety is a hard sell when the public faces the ravages of violent crime.

The New York public now finds itself betwixt the proverbial rock and a hard place: at once bereft of a tenable means to protect itself, given a new spate of ponderous gun laws it must contend with, and a government ever apathetic to its needs for “public safety,” even as it incessantly, deceitfully proclaims its desire to promote it.

Thus, Americans who cherish their Second Amendment right are compelled to file yet again, ever again, another round of lawsuits: a tedious, expensive, eternal process. And this will continue if unthinking sorts among the polity continue to vote the same unprincipled rogues and prevaricators into public office.
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Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.