OVERCOMING BRUEN TO SAVE THE SULLIVAN ACT: NEW YORK GOVERNOR HOCHUL’S GAMBIT

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

MULTI SERIES

SUBPART ONE OF PART TWENTY-EIGHT

REPLACING THE “PROPER CAUSE” REQUIREMENT WITH “GOOD MORAL CHARACTER”

Once Oral Argument had concluded in the  New York State Rifle and Pistol Association vs. Bruen, 142 S. Ct. 2111, 2155 (2022), the New York Government under Governor Kathy Hochul likely didn’t wait for an adverse ruling it knew was coming.

The Government scrambled to overhaul the State’s Handgun Law (the Sullivan Act) in anticipation of a major ruling striking at the heart of the State’s concealed handgun carry licensing regime: the “Proper Cause” requirement.

The Hochul Government intended to be ready for that. And, in fact, the U.S. Supreme Court did just that.

The Court held that Proper Cause, the mainstay of New York’s Handgun Law (the Sullivan Act), violates the Fourteenth Amendment because it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. The Court thereupon struck “Proper Cause” down. New York State Rifle and Pistol Association vs. Bruen, 142 S. Ct. at 2155.

The High Court knew that application of the “Proper Cause” requirement is not only useful to New York’s Handgun Licensing Regime but essential to its functioning in constraining civilian citizen access to handguns for the purpose of self-defense.

But why is “Proper Cause” essential to the Sullivan Act?

To understand why “Proper Cause” was essential to the Sullivan Act and why it so worried Hochul and the Anti-Second Amendment Democrat Party Controlled Legislature in Albany when the High Court, having found the application of it to infringe the core of the Second Amendment, had thereupon struck it down—and to understand the problems attendant to the Hochul Government’s attempt to find a suitable replacement for it—it helps to know what this concept “Proper Cause” is, and how it has functioned in the Sullivan Act.

Justice Thomas, writing for the Majority in Bruen, offers by way of explanation, this:

“No New York statute defines ‘proper cause.’ But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980). This ‘special need’ standard is demanding. For example, living or working in an area “‘noted for criminal activity’” does not suffice. In re Bernstein, 85 App. Div. 2d 574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York courts generally require evidence ‘of particular threats, attacks or other extraordinary danger to personal safety.’ In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002); see also In re Kaplan, 249 App. Div. 2d 199, 201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York City Police Department’s requirement of “‘extraordinary personal danger, documented by proof of recurrent threats to life or safety’” (quoting 38 N. Y. C. R. R. §5-03(b))).

When a licensing officer denies an application, judicial review is limited. New York courts defer to an officer’s application of the proper-cause standard unless it is ‘arbitrary and capricious.’ In re Bando, 290 App. Div. 2d 691, 692, 735 N. Y. S. 2d 660, 661 (2002). In other words, the decision ‘must be upheld if the record shows a rational basis  for it.’ Kaplan, 249 App. Div. 2d, at 201, 673 N. Y. S. 2d, at 68. The rule leaves applicants little recourse if their local licensing officer denies a permit.”

The U.S. Supreme Court found “Proper Cause” unlawful and unconstitutional because it is incompatible with the concept of “Armed Self-Defense,” which rests at the heart of the fundamental, unalienable, immutable right codified in the Second Amendment of the Bill of Rights.

The Right to Armed Self-Defense isn’t subject to two “degrees” of threat: “extraordinary” versus “ordinary.” A threat to one’s physical safety is absolute. It doesn’t admit degrees. It either is or it is not. To create an arbitrary distinction is logically flawed and legally indefensible. The New York State Government created it for one purpose only: to unlawfully constrain an American’s lawful right to keep and bear arms. And the Government succeeded.

For years New Yorkers have fought the Government over the Government’s extraordinarily restrictive handgun measures. But only in recent years, beginning with District Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783 (2008) has the U.S. Supreme Court, one Branch of Government, done anything about it.

The Executive Branch, for its part, has done nothing to strengthen the Second Amendment, and the Legislative Branch has, through the passing decades, done much more harm than good.

Thus, States, like New York, that have abhorred the Second Amendment, have not been reluctant to tread all over it, have found Heller, 554 U.S. at 570, 128 S. Ct. at 2783, and, subsequent to Heller, McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010), annoying, but not insurmountable.

The State Government simply ignored the rulings in those cases and went its merry way, proceeding unimpeded with its agenda to continue to frustrate those Americans residing or working in New York, from exercising their fundamental, unalienable right to armed self-defense; devising and implementing even more outrageous assaults on the Second Amendment and toward those Americans who sought to exercise their fundamental right to armed self-defense.

In 2013, the New York Governor at the time, Andrew Cuomo, rammed through the Legislature in Albany, the New York Safe Act of 2013.

Since that date, both he and his predecessor signed into law further burdensome measures. This culminated in the first major challenge to New York’s Handgun Law that the High Court agreed to review in the 21st Century: New York State Rifle and Pistol Association vs. New York City, 140 S. Ct. 1525 (2020). Although the High Court could have reviewed the constitutionality of a Handgun Law that patently infringed the right to armed self-defense outside the confines of one’s home, at that time, Chief Justice Roberts confined the issue on review to one specific challenge: the constitutionality of a New York City rule regarding the transportation of Petitioners’ handguns outside the City.

Petitioners, who held valid but highly restrictive New York City handgun licenses challenged the rule that prevented them from transporting their firearms to a second home or shooting range outside the City. Obviously realizing that the Chief Justice had provided the Governor (at the time, Governor Cuomo) with a way to avoid a discussion of the issue on the merits that would have likely brought into play the import of “armed self-defense” (for holders of restricted handgun licenses cannot have access to their handguns when transporting those handguns outside the home, even if an aggressor threatens their life, which is the point of rendering the handguns useless for self-defense), the Governor simply amended the State Law, and the NYPD License Division amended its Rules, to allow Petitioners to transport their handguns to a second home or to a shooting range outside the City. The Majority then dismissed the case, ruling it moot.

Justice Alito, joined by Justices Thomas and Gorsuch, was not pleased with this. In a vigorous Dissent, Justice Alito first made plain what the real issue in the case was. He said, “We granted review to consider the constitutionality of a New York City ordinance that burdened the right recognized in Heller.” 

So, the central issue to be dealt with goes to the import of the concept of armed self-defense and what, if any, are the parameters for exercising the right of armed self-defense inherent in the Second Amendment. Justice Alito also pointed out that the Majority had not applied the proper test for mootness.

Justice Alito wrote in pertinent part,

“Thus, in this case, we must apply the well-established standards for determining whether a case is moot, and under those standards, we still have a live case before us. It is certainly true that the new City ordinance and the new State law give petitioners most of what they sought, but that is not the test for mootness. Instead, ‘a case “‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin v. Chafin, 568 U. S. 165, 172, 133 S. Ct. 1017, 185, L. Ed. 2d 1 (2013) (emphasis added). “‘As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’” Ibid. (emphasis added).”

Although New York had, since its inception as a State, a blatant dismissive attitude toward the Common Man’s exercise of the right to armed self-defense, evidenced by the failure to recognize the right in the State’s Constitution—a matter never rectified up to the present day—the State’s negative attitude has not at all softened through the passing years decades and centuries, but has instead hardened to the point that the Government abhors the notion of the armed civilian citizen.

People carried handguns in New York for decades in New York without major Government interference, until 1911. In 1911, New York introduced licensing of handguns. This meant the State Government would henceforth insist on interposing itself between the people and exercise of the right embodied in the Second Amendment. At the time, the New York Government felt it was on firm ground as the Nation’s Bill of Rights was simply viewed as a limitation on Federal Government action directed against the people, not the States.

The Sullivan Act, rudimentary as first enacted, would become the vehicle through which, the State would slowly but inexorably erode operation of the Right to armed self-defense so that, at the time that the McDonald case ruled that the individual right to armed self-defense applies to the States as well as to the Federal Government, the machinery for frustrating a person’s exercise of the right to armed self-defense in New York had long since been in operation. The constraints on the average person’s exercise of the right to armed self-defense in New York had far exceeded anything the New York Government had first effectuated in 1911 and likely extended far beyond anything the Government at that time, over a century ago could have imagined, although the proponents of the Sullivan Act would certainly be gleeful at what the Sullivan Act had grown into.

Still, even in the early years of the Sullivan Act, the New York Government had intimations of the utility of handgun licensing as a device to constrain civilian citizen access to handguns.

Just two years after the enactment of Sullivan, in 1913, the Government amended the Sullivan Act, adding the “Proper Cause” requirement. And “Proper Cause” became a fixture of the Sullivan Act for 110 years.

The New York Government felt invincible. It felt that neither McDonald nor Heller could touch it. And with the Government’s ability to weather a crisis posed by NYSRPA vs. New York City (colloquially referred to as “the New York City Gun Transport case”), it had no reason to believe that any new case would come along to severely challenge the mighty handgun regime that the Government had created and that it had added to in 110 years since the enactment of Sullivan.

But, then Bruen came along.

Many Anti-Second Amendment forces knew that Bruen posed a potential problem—more urgent than that posed by the New York City Gun Transport Case. It would not be easy to frame the central issue of Bruen precluding a review of the core of the Sullivan Act—concealed handgun carry. Bruen directly impacted concealed handgun carry licensing, which meant impacting the “Proper Cause” standard that drastically reduced the number of concealed handgun carry licenses issued.

But the application of “Proper Cause” requires one to suspend rational thought. “Proper Cause” mandates that the average civilian citizen hoping to obtain a coveted unrestricted concealed handgun carry license prove, to the satisfaction of the Government licensing official, that his need to carry a handgun for self-defense transcends the basic need of most everyone else who might lay claim to a need to possess on his person the best means available by which he can best defend his life against a violent aggressor who threatens that life. In other words, an applicant for an unconcealed handgun carry license must somehow convey the idea that a threat to his life is greater and graver than that threat faced by essentially everyone else in New York.

But, for the New York Government to require a person to establish ‘extraordinary need’ to carry a handgun for self-defense to the satisfaction of a Government agent (the licensing authority) is ludicrous.

It either manifests in a jurisdiction such as New York City, where the License Division constructs a set of arbitrary standards that some people may be able to meet while most cannot. Most other jurisdictions in New York, perhaps realizing the futility in creating arbitrary standards and attempting to apply them fairly doesn’t bother to do this.

Instead, these license officials issue concealed handgun carry licenses piecemeal on the basis of one’s position in life: great wealth, fame, or power. But that creates equal protection problems as wealthy, powerful, influential, well-connected people become the principal beneficiaries of a system that leaves the “Common Man,” the vast majority of us, defenseless. This is ironic.

The Second Amendment was meant to make certain that the Common Man might exercise his God-given right to keep and bear arms to safeguard his life and that of his family and to maintain his sovereign authority over Government but that has not come to be—certainly not in New York. But Bruen meant to change that.

And the U.S. Supreme Court finally did something about this. The Court reset the balance of power by issuing a series of rulings, culminating in the Bruen decision, making clear that the right of the people to keep and bear arms is an individual right, applicable to all Government, State as well as Federal, and that the right to armed self-defense extends beyond the perimeter of one’s home. Heller also makes clear that the Second Amendment’s salient function is to function as a failsafe—the final check on the power of a Government that tends toward tyranny.

The concept of armed self-defense is, then, multifaceted, and critically important to the maintenance of liberty and to the preservation of a free Constitutional Republic. While emphasizing the common man’s right to armed self-defense against predatory attacks in one’s community, the idea inherent in the U.S. Supreme Court’s three seminal Second Amendment case decisions is the common man’s right to thwart a graver threat—the predatory Government: State or Federal.

Kathy Hochul and the Democrat Party that controls the Legislature in Albany were forced to jettison “Proper Cause.” There is no question about it. If Hochul refused to do so, her Government’s disregard for the Article 3 authority of the U.S. Supreme Court would be too blatant. Kathy Hochul and her Government were not prepared to go that far. She could rant and rave about the Bruen rulings, but she wasn’t going to defy a Court holding directly, by refusing to strike “Proper Cause” from the New York Handgun Law and applying it as if the Court never held the standard unconstitutional. She would have to confront the Court circumspectly—at least give some suggestion of forbearance to the Court’s decision. So the Hochul Government did strike “Proper Cause” from the Handgun Law but the Government then needed to find a suitable replacement for it. And that would be no easy task.

The Hochul Government had no intention of acceding directly and categorically to the Court’s dictates, thereby overturning 120+ years of an agenda focused on subjugating the Common Man, who as a Free and Sovereign Man would suffer no predator, whether that predator be beast, man-beast, or beast-Government.

The Hochul Government intended to secure her State Government’s Tyranny and the vehicle for doing so was the Sullivan Act. As long as the Common Man could be kept in fear of man-beasts running amok, her predatory Government could keep the impulses of the Common Man’s desire for Liberty in check. But to secure and strengthen the Sullivan Act the Hochul Government had to devise an effective replacement for “Proper Cause.” Clearly, the Biden Administration would be curious to see how and to what extent the Hochul Government might tie up the U.S. Supreme Court.

Since the Biden Administration, and a weakened, ineffectual Congress that the Executive Branch could manipulate, might constrain the Common Man’s exercise of his salient Rights, the present composition of the Court—most of whom wish to preserve a free Republic that the Founders created—pose an obstacle to those forces, both here at home and abroad, who are slowly strangling the life out of the Nation, and that wish to destroy a free Constitutional Republic, and that intend to subjugate a free and sovereign people.

Could the Hochul Government successfully battle the U.S. Supreme Court? States like California along with the Federal Government wanted to know this and needed to know this in formulating their own policies.

A replacement for “Proper Cause” must, in the first instance, not only prevent damage to the heart of the Sullivan Act and remain true to the State’s long-standing agenda—one committed to further constraining the average citizen (the Founding Fathers’ “Common Man”) from exercising the right to armed self-defense—but it must also suggest, however implausibly, to the Press and to the Public, the appearance of compliance with the salient rulings and reasoning of the Court that would, hopefully, withstand any new challenges to the Sullivan Act that Hochul and the State Legislature in Albany knew were coming.

Hochul and Albany were hoping that the lower New York Federal District Courts, and the U.S. Court of Appeals for the Second Circuit, which had heretofore demonstrated acquiescence to the Government’s unlawful, unconstitutional meddling with and intrusion upon the right of the people to keep and bear arms, would continue to side with the Government against the U.S. Supreme Court.

Hochul and Albany wanted and needed to buy time before the next case would wend its way to the High Court, hoping that, with a reconstituted Court (with more people like Ketnaji Brown Jackson on board), the Court would reverse course and strike down the central holdings of Heller, McDonald, and Bruen.

Such a reconstituted Court, no longer beholding to the Constitution, would cast aside a methodology for analyzing cases grounded on “textualism” and “originalism,” as championed by the late Justice, Antonin Scalia, and as adhered to by Justice Scalia’s contemporaries, Justice Clarence Thomas and Samuel Alito, and replacing “textualism” and “originalism” with a completely different methodology antithetical to the preservation of the Constitution as constructed by the Framers of it. This replacement methodology is  called “pragmatism.”

The pragmatic approach to Constitutional case analysis involves redefining the Constitution to cohere with the radical transformation of society presently taking place, and to reframe decisions and reasoning to be consistent with “international norms” even if they are antithetical to this Nation’s. Application of this methodology entails the slow eradication of the import and purport of the Constitution as understood by the Framers of it.

TWO SALIENT HOLDINGS OF THE THREE SEMINAL SECOND AMENDMENT U.S. SUPREME COURT CASES

While Justice Thomas spends considerable time—actually an excruciatingly lengthy amount of time—expounding on the test a court of competent jurisdiction must employ to ascertain the constitutionality of Government action that impinges on the Second Amendment, the two salient points coming out of Bruen are straightforward and are found in two specific places. We quote them explicitly, below.

The First one is a reiteration of a central holding in Heller and McDonald:

It is this:

“In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.”

The Second one is this:

“Although we remarked in Heller that the need for armed self-defense is perhaps ‘most acute’ in the home, id., at 628, 128 S. Ct. 2783, 171 L. Ed. 2d 637, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. See Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012) (‘[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower’). The text of the Second Amendment reflects that reality.

The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash [Bruen Plaintiff Petitioners] a right to ‘bear’ arms in public for self-defense.”

To secure the Sullivan Act and, at one and the same time, to strengthen it the Hochul Government’s Gambit involved a two-prong process.

Kathy Hochul knew the New York Government would be processing many more applications for concealed handgun carry licenses and that it would be required to issue many more licenses because of Bruen.

The Government sought to constrain the issuance of a sizable chunk of applications even if the “Extraordinary Need” predicate of “Proper Cause” was no longer available to it.

The Hochul Government settled on a concept already existent in the Handgun Law: “Good Moral Character.” That was the first prong of a plan to revitalize the Sullivan Act in light of Bruen. It involved significantly strengthening “Good Moral Character” and making it the centerpiece of the Sullivan Act. But that would create a whole host of new problems for the Government.

The second prong, “Sensitive Place” (also referred to as “Sensitive Location”) applies only to those individuals whom the State licensing authority approves for issuance of a concealed handgun carry license under the New York Penal Code § 400.00 (2)(f). These two concepts are the foundational bases of a reformulated Sullivan Act.

We analyze this second prong of “Sensitive Place,” at a later date.

When reconfiguring, reconstructing, and embellishing “Good Moral Character,” the drafters of the amendments to the Handgun Law—that, as a package, are referred to as the “Concealed Carry Improvement Act” or by the acronym, “CCIA”—must have paid significant attention to what the U.S. Supreme Court said about it before the Hochul Government would expend time on developing a scheme around it.

The Majority Opinion mentions “Good Moral Character” twice in Bruen.

First, the Court writes:

“A license applicant who wants to possess a firearm at home (or in his place of business) must convince a ‘licensing officer’—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that ‘no good cause exists for the denial of the license.’ §§400.00(1)(a)-(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to ‘have and carry’ a concealed ‘pistol or revolver.’ §400.00(2)(f ). To secure that license, the applicant must prove that ‘proper cause exists’ to issue it. Ibid. If an applicant cannot make that showing, he can receive only a ‘restricted’ license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.

The reader will note that the factors, “good moral character,” “no history of crime or mental illness,” and that “‘no good cause exists for the denial of the license’” are and continue to be, after Bruen, conditions precedent to obtaining a handgun license of any sort. For, without meeting these factors, a person cannot legally possess a handgun anywhere in New York. These requirements remain true Post-Bruen, as they do Pre-Bruen.

Second, the Court writes,

To obtain a concealed-carry license for a handgun, an applicant must satisfy certain eligibility criteria. Among other things, he must generally be at least 21 years old and of ‘good moral character.’ §400.00(1). And he cannot have been convicted of a felony, dishonorably discharged from the military, or involuntarily committed to a mental hygiene facility. Ibid. If these and other eligibility criteria are satisfied, New York law provides that a concealed-carry license ‘shall be issued’ to individuals working in certain professions, such as judges, corrections officers, or messengers of a ‘banking institution or express company.’ §400.00(2). Individuals who satisfy the eligibility criteria but do not work in one of these professions may still obtain a concealed-carry license, but they must additionally show that ‘proper cause exists for the issuance thereof.’ §400.00(2)(f ).”

The point here is that Pre-Bruen, satisfaction of all the requirements for possession of a handgun at one’s residence or place of business remains one of two conditions precedent to obtaining a concealed handgun carry license. “Proper Cause,” the second condition precedent, had to be proved to the satisfaction of the licensing authority before the Licensing official would issue the applicant a concealed handgun carry license under § 400.00 (2)(f ).”

Post-Bruen, in the absence of “Proper Cause,” and in the absence of a suitable substitute for “Proper Cause,” the satisfaction of requirements for possession of a handgun, restricted to the home or place of work would mean that one ALSO SATISFIES the requirements for carrying a handgun concealed outside the home or place of business.

So, then, why would an applicant for a New York State handgun license apply for a barebones highly restricted residence license when he would automatically qualify for a license to carry a handgun concealed outside the home or place of business? The answer is there would be no reason for doing so and there would be no reason for maintaining a litany of different kinds of licenses issued as there have been Pre-Bruen. That is what Bruen intended to accomplish—to simplify the process by which an individual might exercise his Second Amendment right, cutting through all the garbage inherent in the Sullivan Act that had become increasingly more elaborate and cumbersome in the century since its enactment.

The High Court ruled that the right to armed self-defense exists no less outside one’s home (or place of business) than inside it.

Implicit in this was an order by the U.S. Supreme Court, telling the Hochul Government to dismantle the Sullivan Act.

Hochul would do no such thing. And her remonstrations against the High Court and its ruling came fast and vociferously.

Obviously, such a thing as dismantling the Sullivan Act was anathema to a Government that had, since New York’s inception, as the eleventh State to become part of the United States, never recognized for the denizens of the State the fundamental right of the people to keep and bear arms even as the State did ratify the Bill of Rights for the Nation, which, of course, included the Right of the People to Keep and Bear Arms.

Happy, then, the State Government was when it took as self-evidently true that the right to armed self-defense only applied to the Federal Government, not to the States. So the States could decide not to recognize an immutable, eternal right of man—the fundamental, eternal, illimitable right to preserve his own life and well-being against anyone, man or animal, or any Government that might desire to, and have the ability to, take his life from him.

Odd that, the right to armed self-defense—the central import of the language of the Second Amendment—as the best means, now, as then, to secure one’s life against predatory animal, man, or government, should have been a matter tacit but ignored and dismissed by several States since the founding of the Republic, until the U.S. Supreme Court, through the tenacity and courage of Justices Scalia, Thomas, and Alito, would demand that matters regarding the most Basic of all Elemental Rights of Man be set aright.

The three Justices evidently knew that but for a strong Second Amendment, no other Right could exist. It was high time that the Court stated explicitly in the text of a U.S. Supreme Court case that an American does have the fundamental right to defend his life against unlawful aggression, with the best means available by which to preserve it, and this Basic Right of armed self-defense applies wherever a person happens to be, inside a home or outside it. Bruen was that case. But it would be wrong to read Heller, McDonald, and Bruen, as three distinct, discrete cases. They all work together and are inextricably tied to each other. Bruen doesn’t extend Heller. Bruen simply elucidates Heller.

And McDonald makes plain what is implicit in the notion of Natural Law Rights—Rights that preexist Government. Such Rights exist within Man. They are not Rights or Liberties created by the State. These Rights exist independently of States and Governments which are artificial constructs created by Man. Natural Law Rights are eternal, embodied within Man. Those politicians, many members of the Press, and many scholars don’t accept the truth of Natural Law Rights. They believe that all such Rights are man-made, no less than any other man-made construct. So, they infer that the Justices read into the Second Amendment what coheres with their particular belief systems. But, the rulings in Heller, McDonald, and Bruen are not creations of the Justices. They are no more nor less than the reaffirmations of the plain meaning of Natural Law. And the Second Amendment is simply a codification of that Natural Law, plainly stated. The sad state of affairs is that Heller, McDonald, and Bruen were needed at all. And, given the Hochul Government’s stubbornness, it must come to pass that the U.S. Supreme Court will be required yet again to respond to Government action that refuses to accept the import of Natural Law Rights.

Governor Kathy Hochul, her wealthy benefactors, and many deluded residents of New York hated Heller and McDonald. But they could dismiss those rulings—at least for a time and they did so, with Courts happy to oblige them. But, when Bruen came down the pike, they could not easily ignore the right of the people to keep and be armed.

The idea of the ‘Common Man’ as the ‘Armed Citizen,’ Sovereign over Government, any Government, is absolutely abhorrent to Hochul and to her benefactors and to many other elements both inside the Country and outside it who view the Second Amendment as a veritable abomination that must be dealt with accordingly so that they can achieve their goal: the dismantling of all Nation-States, with the remains of them to be merged into a monstrous, bloated Neo-Feudalistic world empire that serves the interests of the few and mercilessly oppresses the lives of the many. Achievement of that goal is not possible as long as America adheres to the tenets of Individualism upon which the U.S. Constitution is grounded. And the linchpin of a strong, vibrant America is, as history demonstrates, a strong, independent citizenry, whose independence and personal autonomy are secured through the right to dissent from conformist Government dictates and absurd dogmas thrust on a free sovereign citizen, and through the right to bear arms to secure that independence from a predatory Government that would rob the individual of his Selfhood. It is this the Hochul Government and the Biden Administration fear. But they don’t talk about their tyranny. They talk about “Public Safety” and the fact that, as they exclaim, an armed citizenry poses a danger to “Public Safety.” So, let’s talk, then, about “Public Safety.”

The right to armed self-defense is reason enough to carry a handgun for self-defense when out and about, and that right of armed self-defense is presumed. Hence, a person applying for a concealed handgun carry license need not state it and the Government cannot require him to do so, to explain a “reason” to carry for self-defense. It should be apparent that the problem here rests with the entire notion of State licensing. But, for that, the striking of “Proper Cause” from the Sullivan Act would have been the death knell for New York State Licensing of Handguns.

But the High Court DID NOT strike down handgun licensing as unconstitutional, and Hochul and company had no intention of conflating the entirety of the Sullivan Act to “Shall Issue” concealed handgun carry licenses—as they saw it—pell-mell, no matter what the High Court opined and insisted upon.

Still, the Hochul Government had to come up with something to replace “Proper Cause,” and “Good Moral Character” was something already in the Statute. So, it seemed like a good device to use. But how is this “Good Moral Character” now to be utilized?

Since the Court had not ruled against “Good Moral Character,” the Hochul Government machinated a scheme through which “Good Moral Character” would operate like “Proper Cause” had operated for decades: as a means to preclude the issuance of concealed handgun carry licenses to tens of thousands of New Yorkers who might wish to secure one.

But “Good Moral Character” cannot operate exactly like “Proper Cause” because the High Court made clear that, since the right to armed self-defense exists as much outside the home as in it, the Government could no longer require an applicant to demonstrate “extraordinary need.”

But could the Hochul Government transform “Good Moral Character” into a devastating force through which many applications could still be denied even if it were still not as effective as “Proper Cause” had been?

Although not as useful as “Proper Cause,” the newly reconfigured “Good Moral Character” requirement would have to suffice, and, when utilized in conjunction with another device—a novel device, “Sensitive Place” restrictions—the Hochul Government could still make life difficult for New Yorkers who wish to exercise their Second Amendment right to armed self-defense.

Worse, for many present holders of concealed carry licenses who had, through the years, adapted to the schemes that some New York jurisdictions had created to implement “Proper Cause”—the most elaborate scheme being that one devised by the NYPD License Division, tasked with governing handgun licensing in the City—might not these present holders who had “passed the test” for issuance of a concealed handgun carry license under § 400.00 (2)(f ), Pre-Bruen, fail to meet a new test devised by the Hochul Government for the entire State, utilizing “Good Moral Character,” Post-Bruen?

But, the preliminary question is this——

DOES “GOOD MORAL CHARACTER” HAVE A PLACE WHERE A FUNDAMENTAL NATURAL LAW RIGHT IS INVOLVED, EVEN THOUGH NEW YORK’S “PROPER CAUSE” REQUIREMENT DID NOT?

After all, what does the nature of one’s character have to do with one’s exercise of the fundamental, unalienable, immutable, illimitable, eternal right to self-defense of which armed self-defense":  ANYTHING? EVERYTHING? NOTHING? Does anyone ever question this? Apparently not, certainly, not in New York. And why is that?  

Both “Good Moral Character” and “Proper Cause” Requirements are Government constructs, nothing more. The Government designed them for one purpose: to constrain one’s exercise of the fundamental, unalienable right to armed self-defense.

“Proper Cause” has served the New York Government well for decades. It has taken over 100 years for the U.S. Supreme Court to strike “Proper Cause” down.

But what sort of argument can be made that use of “Good Moral Character” is as repugnant to exercise of the fundamental right to armed self-defense as “Proper Cause” before it? There are, to date, many challenges to it, along with challenges to “Sensitive Place” Restrictions.

Many of these cases are wending their way through the Federal District Courts of New York. Several presently reside in the U.S. Court of Appeals for the Second Circuit. At some point, in the U.S. Supreme Court’s next term, the Court will have to deal one or more of these cases. The CCIA is a bald-faced attack on the High Court’s Bruen rulings and, more, a hardly subtle repudiation of the Article 3 authority of the High Court.

In the next Article, we drill down into this thing, “Good Moral Character.” We look at how the Hochul Government has rejiggered it to work like “Proper Cause” insofar as it is designed to salvage the multi-tiered handgun licensing structure and to maintain the “May Issue” paradigm that the Bruen decision intended to scrap when the Court made clear that “Proper Cause” as utilized by the New York Government unconstitutionally infringed the Second Amendment.

There is much to deal with here and we will get to it as quickly as possible and as much as practicable to demonstrate the illegality of it, discussing approaches that challengers of the CCIA may not have broached but are angles definitely worth considering.

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