NEW YORK’S HANDGUN LICENSING REGIME AT ODDS WITH THE SECOND AMENDMENT
MULTIPART ESSAY SERIES ON POST-BRUEN CASE ANALYSIS
POST-BRUEN—WHAT IT ALL MEANS AND WHAT ITS IMPACT IS BOTH FOR THOSE WHO SUPPORT AND CHERISH THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO DO NOT; THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY THE EXERCISE OF THE RIGHT AND THOSE WHO SEEK TO PRESERVE AND STRENGTHEN THE RIGHT BOTH FOR THEMSELVES AND THEIR DESCENDANTS
INTERLUDE
IMPORTANT POINTS OF THIS ESSAY
ATTACKS ON THE RIGHT TO ARMED SELF DEFENSE AND ON AMERICA’S ARMED CITIZENRY WAGED BY THE FEDERAL GOVERNMENT AND BY A FEW STATE GOVERNMENTS SUCH AS NEW YORK ARE SERVILE RESPONSES TO INTERNATIONAL DEMANDS THAT AMERICA SUBORDINATE THE UNITED STATES CONSTITUTION AND LAWS TO AN ALIEN BELIEF SYSTEM
INTERNATIONAL “NORMS” CONTRA THE NATION’S NATURAL LAW RIGHTS TRANSGRESS AND DEFY THE SOCIAL AND POLITICAL PHILOSOPHICAL TENETS ON WHICH THIS NATION WAS FOUNDED AND ON WHICH IT HAS WELL PROSPERED FOR OVER TWO HUNDRED AND FORTY YEARS.
New York’s handgun licensing regime is an omnipresent and omnipotent roadblock to Americans’ exercise of their fundamental and unalienable right to keep and bear arms in that jurisdiction.
But the licensing regime isn’t the cause of New York’s strenuous antipathy toward the commonalty’s natural law right to armed self-defense. It is merely the effect of the Government’s longstanding dismissiveness toward the average man’s exercise of his unalienable right to armed self-defense.
Apart from the untenability of the New York Government’s stance toward a fundamental right of the American people on both legal and philosophical grounds, there are societal consequences; horrible repercussions that follow from this Government stance.
First, there is the scourge of random criminal violence. This didn’t just happen. It occurred because of specific policy choices, including cashless bail; a reluctance of prosecutors to prosecute criminals; and a disinclination of a justice system to incarcerate dangerous elements, thereby preventing them from harming innocent members of the community.
This diffidence toward criminals and lunatics coupled with Government’s confrontational attitude toward the rank and file municipal police forces and toward State’s rural county sheriffs, and pathological abhorrence to the notion of civilian armed self-defense have all had a deleterious impact on the welfare of the people and well-being of the community.
The public no longer feels safe because quite simply the public isn’t safe.
When the New York Government couples its resentment of police, its tolerance toward the worst elements of society, a callous disregard for the safety of the citizenry, and a refusal to countenance a person’s natural law right and responsibility to defend his or her own life against insistent predatory threats, then destabilization of society is imminent.
Such is evident in New York. It all results from deliberate policy choices of the New York Government. And there is something both devious and weird for a Governor of the State—in this instance, Kathy Hochul—who insists she cares deeply about public safety but does nothing to secure it, handcuffing police, mollycoddling murderous criminals and dangerous lunatics, and presumptuously declaring that it is the armed citizen, and not the armed criminal, who endangers the very thing, “public safety,” she vociferously declares and adamantly claims that it is she, not the U.S. Supreme Court, who seeks to protect the life, safety, and well-being of New Yorkers.
In an article posted on the National Shooting Sports Foundation (NSSF) website on July 7, 2022, two weeks after the U.S. Supreme Court handed down its decision in Bruen, and one week after Albany passed and Hochul signed into law a comprehensive package of amendments to its Handgun Law, called the “Concealed Carry Improvement Act” of 2022 (“CCIA”), Larry Keane, Senior Vice President and General Counsel for the NSSF, aptly demonstrated that Hochul’s defiant sanctimony was nothing more than vacuous rhetoric, self-serving gibberish, created for the cameras:
“It only took 30 seconds, that’s all. New York Democratic Gov. Kathy Hochul held a press conference calling back her state’s legislature for an ‘extraordinary’ session to pass more gun control after the U.S. Supreme Court struck down New York’s restrictive and subjective ‘may issue’ pistol permit license scheme.
In 30 seconds, she vocalized why her gun control agenda is destined to fail.
Failed Approach
Gov. Hochul exclaimed, ‘I’m absolutely shocked,’ after the Supreme Court held in New York State Rifle & Pistol Association v. Bruen that the Second Amendment protects the right of law-abiding Americans to carry a firearm in public for self-protection. She shouldn’t be. It only takes a simple reading of the actual amendment.
She called her state’s Democratically-controlled legislature back to Albany to restrict where licensed conceal carry permit holders can lawfully carry their firearms. The new laws include even more restrictive provisions like background checks and a state database for ammunition purchases, increased training requirements to obtain the permit, a mandatory sit-down, in-person interview and even requiring applicants to submit social media accounts for content review.
‘Do you have the numbers to show that it’s the concealed carry permit holders that are committing crimes? The lawful gun owner will say you’re attacking the wrong person,’ asked Albany-based CBS 6 News anchor Anne McCloy. ‘It’s really people that are getting these guns illegally that are causing the violence, not the people that are going to get the permit legally and that’s the basis for the whole Supreme Court argument. Do you have the numbers?’
‘I don’t need to have numbers,’ the governor shot back. ‘I don’t have to have a data point to point to to say this is going to matter.’
That’s what is called ‘the tell.’ These laws aren’t aimed at stopping criminals. They’re designed to rob law-abiding citizens of their rights.
What’s The Data Say?
Some estimates suggest New York has more than 200,000 conceal carry permit holders. For the entire United States, it’s over 21.5 million. These are law-abiding gun owners that meet state requirements and were approved after an FBI National Instant Criminal Background Check System (NICS) verification. New York is one of the states with the most stringent conceal carry requirements.
The actual data shows concealed carry permit holders are among the most law-abiding people in America. The Heritage Foundation’s 2019 data says, ‘. . . concealed-carry permit holders accounted for 801 firearm-related homicides over a 15-year span, which amounts to roughly 0.7% of all firearm-related homicides during that time.’
A Fox News report paints a picture Gov. Hochul would rather ignore. According to the FBI, Census Bureau and Rand Corporation data, states with lower rates of gun ownership and more restrictive gun control – like New York – have more firearm murders per 100,000 residents as a percentage of gun-owning population than states with high gun owner rates.
New York ranks fifth, with just 19.9 percent of households saying they possess a firearm and 1.53 firearm homicides per 100,000 residents. The Violence Policy Center attempted to ‘fact check’ a claim about concealed carry holders committing fewer crimes but ended up ‘revealing’ there were 37 firearm incidents (not specifically intentional homicide) involving concealed carry permit holders between May 2007 and May 2022. That’s less than 2.5 per year in the entire country.
Crime rates, especially in New York City, continue to climb.”
But if “public safety” and “Gun Violence” are just deflection created by the New York Government, and by a handful of other “May Issue” jurisdictions around the Country, and by the Federal Government under the present Biden Administration, what, then, is the true reason for the constant and vigorous assault on the armed citizen?
This is the second and more serious problem facing the commonalty of the Nation because the Federal Government and New York and these other “May Issue” concealed handgun licenses are outliers.
These Governments that act contrary to the tenets of the U.S. Constitution damage the core ethos of the Country.
It is one thing for a Government to disregard the general welfare of the Community. That is bad enough. But it is quite another for a Government to prevent, to deny, to the individual his right and duty to do what he can and must to secure his own life and well-being and that of his family.
A recalcitrant Government that trusts not its own people will expend much of its energies to exerting control over its people. The result is totalitarianism—the worst sort of authority under which a human being can live. And we are rapidly moving toward that. And in a free Constitutional Republic, upon which this Nation was constructed, such usurpation by Government of that sovereign authority belonging solely to the American people is an abomination.
The Biden Administration and many in Congress intend to disarm the public, and the common man rightfully resists. And States, like New York, sympathetic to the goals of the Biden Administration and to the mindset of the Collectivists in Congress perceive any American who holds to the values of the founders of the Republic is perceived as a threat that must be contained. Attempts to rein in speech and access to firearms and ammunition is Government’s response to a perceived threat to its power and authority. But who is the defiant rebel, here? Is it the common man who holds to the Constitution and to the Laws of the Land, and to the natural law rights bestowed upon him by the Divine Creator? Or is it Government actors themselves who betray their Oath to Country and God and Constitution and People? Many academicians would argue that Government cannot itself be capable of treachery to people and Constitution. But, if that is true, then tyranny is impossible. For, if it were possible, then the American people would have both the moral and legal right, and the duty to rise up against tyranny, as indeed the first Americans once did. Curiously, those first Americans are today denounced for it, by those who speak of a New American Revolution, by which they mean, although they don’t say, a Counterrevolution against the American Revolution. That explains the attacks against both the American founders and the Constitution they drafted and that the States ratified.
This present Federal Government under the Biden Administration and some States like New York, do not trust the common man, and therefore will place all manner of obstacles in his path to frustrate his personal autonomy and the power he wields through the firearms he bears. And, so, the Federal Government and States like New York attack armed self-defense incessantly, aggressively.
THE NEW YORK KATHY HOCHUL GOVERNMENT IS A CARBON COPY OF THE GOVERNMENT OF ANDREW CUOMO, HER PREDECESSOR
The New York Government under Governor Kathy Hochul is no different from that of her predecessor, Andrew Cuomo. How it is that many Americans tend to vote for those people that, through their actions, and often through their words as well, couldn’t care less about the life and well-being of the commonalty is difficult to grasp, rationally.
This can be explained in part, at least, to advances in psychological conditioning imposed on the public.
The Government, through the Press and media, manipulate the psyche of the public.
Many fall prey to this manipulation. But many more Americans do not. They are inured to these machinations. But why does the Federal Government and States like New York attempt to ensnare the human mind if not to exert power and control over them for fear of them? But why does Government fear the common man? Would there be cause to fear the common man if Government would but forbear exerting power and authority upon him? For is it not that very power and control that Government exerts upon the common man that causes the common man to fear Government? It is an infinite loop, a vicious loop.
Government’s exercise of power and control over the common man causes anger and fear and resentment in man against Government. Government then comes to fear the common man and exerts more control over him, and thereby gradually becomes a Tyrant. And the common man then sees reason enough to overthrow the Tyrant, through force of arms. The Tyrant sees a threat to its authority and power grow in direct relationship to the power and authority wielded by the Tyrant. At critical mass, the public revolts against the Tyrant. The Tyrant sees anger brewing and rather than desisting from exercise of power, increases the exercise of it, which includes taking action against the common man, demanding, compelling the common man to forsake his arms on penalty of imprisonment or death if he fails to comply. Tyranny thus grows, becoming more evident, more strident, more emphatic with each new edict.
At bottom the Federal Government and the New York Government fear the armed citizen more, much more, than they fear the armed, combative, violent criminal. The violent, depraved criminal and mindless lunatic are petty annoyances at worst, even if they are grave threats to the commonalty. The Government leaders and the wealthy “elite” of society are cocooned against the threats visited daily on the average man by garden variety criminal elements and the criminally depraved and insane.
Unbeknownst to the criminal element, the Government uses this lowest common denominator of society to keep the public in check. That helps explain why the Federal Government and various State Governments are doing little to nothing to prevent rampant, raging violent crime and why it is that Government treats criminal violence gingerly, circumspectly—employing its energies to prevent the average, law-abiding, responsible, rational citizen from keeping and bearing arms, as it is the common man, not the depraved criminal and rampaging lunatic that Government sees as potentially the greater threat to IT, i.e., to Government.
But, if the Government’s first duty is to provide generally for the public safety and welfare of the denizens of the community, generally, there is something singularly odd for that Government to claim the armed citizen is himself a threat to that very public safety and order by the mere fact that he would wish to be armed to provide for his personal protection.
It is odd that the Government would see this common man doing his part to promote public safety by providing for his own safety and fault him for that.
Kathy Hochul engages in word games, false rhetoric—at once discordant and absurd.
How is it that a Government would fear the common man—perceiving the safety and well-being of the community as threatened by that common man who provides for his own well-being and safety? Where is the harm in that? Does not that common man, in having taken due responsibility for his own well-being and safety serve the betterment of the community in which he lives? Or is there something more going on here? And of course there is. It is Tyranny that has taken over Government. And the Tyrant will ever fear the armed citizen—the keeping and bearing of firearms by the common man.
There is a singular irony though where tyranny comes to a Nation such as ours, and none not more so than ours, that is born in freedom.
Is it that the New York Government and the present Federal Government fear what is a basic truism of America: the idea that the common man is sovereign over Government? That idea clashes with the manifestation of a new world empire taking shape. It is one ostensibly predicated on global economics—a thing ubiquitous today. But that notion is also shaping political, social, and ethical thought.
The European Union has evolved, or, perhaps, metastasized is a better word, from a purely economic union—at least as explained to the populations of western Europe—to something much more elaborate and frightening. It has become a political, social union.
More power is now concentrated in Brussels than in the individual Countries.
One can understand the concern of a Country like Hungary that had lived under Soviet domination and that can perceive clearly what other Countries that had suffered under the weight of the Soviet Union are blind to—the movement of an ostensibly democratic-based confederation of nations to a decidedly undemocratic union of disparate countries that must come kicking and screaming to a new reality—thrown as they are into a burning kettle where they are all transformed into one homogenous amorphous super-state.
And the U.S. is moving in that direction. The Biden Administration, taking its lead from the EU is attempting to change the thought patterns of Americans—away from their uniqueness, which has worked well for the Country and for the American people—to an entirely new way of thinking, predicated on the tenets of Collectivism, that is decidedly contrary to the political and social and legal philosophy of the Country upon which the Constitution is based, grounded on the tenets of Individualism.
In this new Collectivist-themed universe, there is no place for freedom of thought, freedom of association with like kind, and there is definitely no place for an armed citizenry.
New York and a handful of States like it are intractable. They find anathema the promise of a secure and safe Country, one in which the American people are sovereign over Government. But given the power of a seditious Press and Government’s control over the vast apparatuses of military, police, and intelligence—and given that academia and big business and big finance and big tech are all onboard as well—this present outlier Federal Government along with several outlier State Governments have attacked the bedrock principles upon which this Nation survived and thrived. They are arguing that the sacred principles, precepts, and tenets of Individualism are archaic and no longer of significance in new neo-feudalistic empire that the world is rapidly marching toward, and must be therefore be dropped so that the remains of the United States can be easily, smoothly merged into this new Global empire.
These points aren’t mere supposition. They are supported by the weight of recent historical evidence.
Our Country has prospered like no other Country before it, and in the space of only a couple of hundred years. And, yet there are those that fault the common man, the average American for his accomplishments and the accomplishments of this Nation on behalf of and by the efforts of the common man. He is mocked and attacked. He is called a racist, a white supremacist, a nativist, and worse.
Those forces that are attempting to usher our Country into a new political, social, cultural, economic, and juridical reality are having a hard time of it.
At least one-third of the people of the Nation—a substantial number of people by any estimate—have serious reservations about that and demand to have their say.
And the Bill of Rights—a formidable ally to their Cause, hardly a little thing, although some make light of it—has their back.
No less so, do a few Justices on the U.S. Supreme Court have the back of the American people, through the Court’s principled and avid defense of the Nation’s Bill of Rights.
Several Justices have come under concerted attack by many in the Legacy Press—a thing that would have been unthinkable even a decade ago. It is the only Branch of Government that has remained true to its sacred duty under Article III of the Constitution and has scrupulously adhered to its singular responsibility to preserve and protect the Constitution, without which the Nation and its people would be undone.
THE THIRD BRANCH OF GOVERNMENT, AN INDEPENDENT U.S. SUPREME COURT, IS ABSOLUTELY ESSENTIAL TO THE PRESERVATION OF A FREE CONSTITUTIONAL REPUBLIC, AN INDEPENDENT SOVEREIGN NATION STATE, AND A FREE AND SOVEREIGN AMERICAN PEOPLE IN WHOM ULTIMATE AUTHORITY MUST REST TO THWART TYRANNY OF GOVERNMENT
Some argue that the Third Branch of Government, the U.S. Supreme Court, is considered of lesser importance than the first two. That is patently ridiculous.
See New York Times Guest Opinion, posted, October 11, 2018, by Pepperdine Law Professor, Barry P. McDonald, “Should the Supreme Court Matter So Much?”
He writes,
“If you paused during the heated battle over Brett Kavanaugh’s Supreme Court nomination to ask yourself whether it made any sense for the appointment of one individual to one position in our government to matter so much, let me assure you: The answer is no. It doesn’t make any sense.
Why did Justice Kavanaugh’s confirmation matter so much? Because the Supreme Court has come to matter so much — indeed, because it has come to matter too much. The court has become a political actor that wields excessive power in our democracy. The uproar over the Kavanaugh hearings was, at bottom, a reflection of that unfortunate fact.
Americans have become so used to having the Supreme Court decree the country’s policy on such vital matters as abortion, gun rights, same-sex marriage and campaign finance that they assume this is how the court is supposed to function. But that assumption is mistaken.
Our nation’s founders would blanch to see how different the court is today from their conception of it. Only if we can figure out how to restore the Supreme Court to its intended role can we avoid a future in which a court nomination continues to be capable of tearing our country apart.
When the founders established our system of self-government, they didn’t expend much effort on the judicial branch. Of the roughly three and a half long pieces of inscribed parchment that make up the Constitution, the first two pages are devoted to designing Congress. Most of the next full page focuses on the president. The final three-quarters of a page contains various provisions, including just five sentences establishing a “supreme court,” any optional lower courts Congress might create and the types of cases those courts could hear.
Why was the judicial branch given such short shrift? Because in a democracy, the political branches of government — those accountable to the people through elections — were expected to run things. The courts could get involved only as was necessary to resolve disputes, and even then under congressional supervision of their dockets.
It was widely recognized that the Supreme Court was the least important of the three branches: It was the only branch to lack its own building (it was housed in a chamber of Congress), and the best lawyers were seldom enthusiastic about serving on it (John Jay, the court’s first chief justice, resigned within six years and described the institution as lacking ‘energy, weight and dignity’).”
These latter two remarks are in the nature of straw man arguments that beg the salient question at issue which Professor McDonald merely assumes to be the case rather than a thesis to be proved. Did the Framers consider the Judicial Branch to be of lesser importance than Congress and the Executive Branch? If true, that cuts into the doctrine of three co-equal Branches with carefully demarcated functions and authority.
Now, it is true that the Supreme Court does not have the power of the purse wielded by Congress, and it does not wield control over the vast military, police, and intelligence apparatuses, falling within the purview of the Executive Branch. But, the High Court is a Branch of Government that has one unique power that the other two Branches do not have: the power to say what the Law is—no small thing, that.
And Professor McDonald stretches to deal with this matter, as he must. He says,
“What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).”
If the interpretive function could be relegated to Congress, and if the Framers truly thought the U.S. Supreme Court to be “the least important of the three branches,” why would the Framers trouble themselves to create an independent Judiciary at all?
Professor McDonald recognizes this fact as problematic given the assumption he begins his paper on—taking as a given that the U.S. Supreme Court is not on an equal footing with the Congress and the Executive Branch. He asks and then responds to the question he raises:
“What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).
Professor McDonald contends that only “if the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president, accountable—but only in the case before it.”
But, if Congress or the President were a party to a suit, would not that raise a political question that the Court would refuse to hear because of lack of standing, as determined by the Court, even if the Constitution were in fact transgressed by Congress and/or the President?
Consider, the recent immigration case, United States vs. Texas. Wasn’t this precisely the kind of case that Professor McDonald says the High Court could entertain—a case where the Biden Administration likely did transgress the Constitution and such an instance of unconstitutional conduct would operate as an exception Professor McDonald himself recognizes when he states, “the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed [emphasis my own].
Nonetheless, the Court Majority argued that the States lacked standing to challenge Executive Branch policy that arguably did violate Congressional law. The lone dissenter, Justice Alito, raises the tantalizing question that the failure of the U.S. Supreme Court to render a decision on the merits of the case, does not honor the separation of powers doctrine, but “actually damages that system by improperly inflating the power of the Executive and cutting back the power of Congress and the authority of the Judiciary.” See, e.g., analysis of the decision by Amy Howe. Justice Alito’s compelling Dissent serves as a powerful rejoinder to Professor McDonald’s generally dismissive attitude toward the authority of the Court.
And what would Professor McDonald’s retort be to matters involving the Bill of Rights? If Article III of the Constitution were to be repealed, and the authority to interpret cases were left to the lower Courts—those created by Congress— a patchwork quilt of decisions across the Country would leave fundamental natural law rights in tatters. Those members of Congress and many Americans across the Country who despise the Dobbs abortion case decision, correctly decided precisely because it does not involve a fundamental, unalienable right and properly belongs to the States, are in an uproar. Yet those same people—certainly Congressional Democrats—would have no issue with denigrating the natural law right to armed self-defense. And the presence of the High Court makes all the difference apropos of preserving the sanctity and inviolability of natural law rights without which a truly free Constitutional Republic and a free and sovereign people would no longer exist and, in fact, would not even be possible.
To that end, and for that purpose, the Court has set its imprimatur on three three landmark Second Amendment cases: Heller, McDonald, and Bruen, all decided in the last fourteen years. THE HIGH COURT HAS EXPLAINED WHAT THE LAW IS—AND IT IS FOR THE HIGH COURT, IN THE FINAL ANALYSIS, TO SAY WHAT THE LAW IS. THAT AUHTHORITY AND RESPONSIBILITY BELONGS SOLELY TO THE U.S. SUPREME COURT, NOT TO CONGRESS AND NOT TO THE EXECUTIVE BRANCH.
These cases explain cogently, coherently, and categorically, what the Second Amendment says and what it means, in accordance with the plain meaning of it, as the framers of the U.S. Constitution intended.
But, what the Court has to say about the Second Amendment does not sit well with the would-be Destroyers of a Free Republic, nor fit well with the type of Country these would-be Destroyers and their puppets in the Federal Government under the Biden Administration and in some State Governments like New York, and in the Press, and by some in the academia wish to create.
The High Court—at least those of the so-called Conservative Wing—understand that public opinion (constantly changeable and ever subject to the whim and caprice of Government, Press, and media propagandists) is not a factor in their deliberations and decisions, as well such factor should never be). That frustrates and angers those forces that are determined to overthrow this free Constitutional Republic, waging a Counterrevolution to the American Revolution of 1776. But, as long as the High Court remains true to the Constitution as written, and as long as a substantial number of Americans does not allow itself to be swayed by a mobocracy under the firm control of the propagandists, who target the “Lizard Brain” of broad swaths of the population, disrupting the psyche through incessant and massive campaigns deception, the American Revolution of 1776 will remain intact and the promises made by the Founders of the Republic to the generations of Americans since, will be preserved.
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