ANDREW CUOMO SEEKS TO IMPOSE NEW YORK'S RESTRICTIVE GUN LAWS ON THE ENTIRE NATION

In November 2018 an elated New York Times reported that Andrew M. Cuomo had secured a third term in Office as Governor of New York. The newspaper asserted, with typical exuberance and fanfare, that:“In defeating Marcus J. Molinaro, the Dutchess County executive, Mr. Cuomo, 60, soaked up the vast majority of votes in New York City, mirroring his success in the September primary, in which he defeated Cynthia Nixon, the actress and education advocate. The race was called by The Associated Press shortly after polls had closed at 9 p.m.Addressing a crowd gathered at a Midtown hotel, Mr. Cuomo said that his victory symbolized the liberal ways of New York, which he called the ‘progressive capital’ of the nation and a fortress against the policies of Donald Trump, a New Yorker himself."Andrew Cuomo—never one to exercise humility and restraint either in words spoken or in actions taken—has shaped and molded New York into his own image, a bastion of Left-wing ideology, increasingly out-of-touch with the Nation at large, and a slap-in-the-face to the vision our founders had for the Nation. Yet, what he has wrought upon the people of New York, he would dare impose on the entire Nation.In the last few months since the election, Cuomo has become increasingly emboldened. And, why shouldn’t he be emboldened? After all, as the Democratic Party has lurched ever Leftward, openly extolling the tenets of Socialism and Communism, and exhorting the Nation to follow suit, Cuomo has made abundantly clear that his own star must continue to rise.Indeed, The New York Times suggested, in its Sunday March 10, 2019 edition, titled, “Centrist Democrats Squirm as Rivals Swerve left in Presidential Race,” that Andrew Cuomo may be one of two logical choices to wear “the moderate mantle” as Democratic Party Presidential hopeful, now that former mayor Michael R. Bloomberg has bowed out of the race, and former Vice President Joseph R. Biden presently remains undecided.Yet, if Andrew Cuomo can reasonably be considered a political moderate or centrist, it goes to show just how far off the deep end the Democratic Party has fallen. Or, perhaps, The New York Times simply seeks to create the impression that Cuomo is a stalwart, solid, and stolid political moderate or centrist, knowing that an outright Socialist such as Bernie Sanders would not likely pull-off a victory against Trump in 2020.The fact remains that Andrew Cuomo is no less a Left-wing radical than is Bernie Sanders or Cory Booker, or Kamala Harris, or Kristen Gillibrand. Andrew Cuomo is as radical in his politics and in his policy choices as they are. He is as radical as they come. Simply look at the New York policy measures that Cuomo campaigned for and that he signed into law. Consider: Cuomo was instrumental in signing into law, in February 2019, an abortion measure that literally sanctions murder. Even pro-choice Americans look askance at late term abortions, much less abortions at the moment of birth, but not Andrew Cuomo.Keep in mind that the very word, ‘abortion,’ has literally been written out of New York’s Penal Code. Given that fact, it follows from this action, both logically and legally, that abortion at any time, up to and including the moment of birth, is now in effect lawful, even if apologists for the law, insist that isn’t the case at all. It is. Since no penalty is exacted from the perpetrator of an abortion, effectively, then, no crime exists upon which the perpetrator of the act can be indicted. This New York law that Cuomo gloats over is hardly representative of a political moderate or political centrist.But if you were to ask him, Andrew Cuomo would likely tell you that he is a political moderate. He would tell you, consistent with his belief—or, if not, then, consistent, at least, with his claim, hoping you would believe him—that his political views and policy objectives are clearly within the mainstream of the Country even if they really aren’t. And, of course, they aren’t. New York’s abortion law is a prime example. Take another: Cuomo’s continued assault on the right of the people to keep and bear arms.In 2018, during his campaign for a third term as Governor of New York, Cuomo, made clear that the New York Safe Act—what he and others would claim as his true signature achievement—was not the endgame; not by a longshot. It is but a mere skirmish in Cuomo’s ongoing campaign to weaken the Second Amendment, and eventually to obliterate it. He would if he could do so in New York, and he would relish doing the same well beyond the borders of New York, namely, throughout the Nation.The weblog, Spectrum Local News reported that, during his campaign for a third term in Office, “Cuomo has not just defended his staunch support for gun control, he’s pledging to expand the existing law.” If anyone were to think this was an empty campaign pledge, think again. It wasn’t. Cuomo was deadly serious. In January of 2019, as reported by Hudson Valley 360, Cuomo, “announced plans . . .  to increase gun control within the first 100 days of the new legislative session,” and he further chortled, “‘New York already has the strongest gun safety laws in the nation, and we are taking additional steps to make our laws even stronger and keep our communities, and our schools, safe. Together, we will pass this common sense legislation and send a clear message to Washington that gun violence has no place in our state or nation.’”To some, this may be viewed as a hopeful promise. But, to the vast majority of the Nation's citizenry this is a singular, dire threat that must be taken seriously and fought ferociously against.Now that Democrats control both the New York Assembly and the New York State Senate, Governor Cuomo is able to make good on that frightful promise. But, one may well ask: why would Cuomo do so; why would he think it necessary to do so? What would that really accomplish other than making it increasingly onerous, if not impossible, for the average law-abiding New York resident and citizen of the United States to exercise his or her fundamental right, under the Second Amendment? But, then, is not that really the point? Is not that really Cuomo’s ultimate objective: the dissolution of the Second Amendment to the U.S. Constitution? And, Is not that a primary goal of all radical Leftists?Of course no one can, with a straight face, argue that New York’s present gun laws are lenient, relaxed, or sensible. New York's gun laws--especially those in New York City, and in a couple of New York's Counties--are anything but lenient and relaxed; And those gun laws are anything but ‘sensible’—to use a common appellation of antigun zealots, in reference to their constant call for ever more “sensible gun control” measures. No! New York has long had the most restrictive and oppressive firearms’ laws in the Nation. Antigun groups revel in that fact. Apparently, Cuomo and others of his ilk do not think that New York’s restrictive gun laws are oppressive and repressive enough. They look forward to building upon the NY Safe Act, devising ever further ways in which to confound, antagonize, and demoralize law-abiding citizens who wish merely to be left alone; free to exercise their right to keep and bear arms, as guaranteed to the Nation's citizenry in the Nation's Bill of Rights.

THE NEW YORK SAFE ACT IS A TRAVESTY.

Recall that, in 2013, Cuomo machinated behind closed doors, to instigate enactment of the reprehensible New York Safe Act, which otherwise certainly would not have been enacted. For the NY Safe Act could not have been enacted—likely would not have been enacted—if it had seen the light of day. The Act should have been debated in open session by all Legislators, Republican and Democrat, and the public should have been able to review it and comment on it. After all, isn’t that how democracy is supposed to work? But, what we see in the New York Safe Act is reprehensible. It is inconsistent with the import and purport of the Second Amendment and inconsistent with the very idea of the sanctity and autonomy of the individual American citizen. Cuomo and those who detest the Second Amendment knew that the NY Safe Act could not, likely, survive legislative and public scrutiny. Subterfuge was necessary for NY Safe to be enacted.But, subterfuge is not the way to enact law. That is not how a Constitutional Republic is supposed to operate. But, that is how the Governor of New York operates and that is how his henchmen in Albany operate. And, to add insult to injury, the Governor and his henchmen in Albany rejoice in their ability to circumvent the law, to attain the aims they wish to attain, the public be damned. To this day the Governor and his comrades in Albany boast of their ability to operate within the periphery of the legislative process to get done those things they want to get done. And, the mainstream media, the echo chamber of these radical Leftist elements, gloats along with them.The New York Times gleefully writes: “The governor successfully corralled recalcitrant Senate Republicans into supporting the so-called Safe Act that expanded the state’s ban on assault weapons, tightened certification requirements, increased criminal penalties for illegal guns and closed private sale loopholes.”  And, so, the NY Safe Act, 2013 Bill Text NY S.B. 2230,was spawned; enacted in Albany, as an “emergency measure,” and signed into law by Cuomo, during his second term as New York Governor, on January 15, 2013.With passage of the New York Safe Act in 2013, New York’s already restrictive gun laws became more restrictive as more and more firearms were classified as illegal ‘assault weapons.’ The Safe Act also imposed new restrictions on ammunition magazine capacity. But that’s not all. The Safe Act did not limit its reach to restrictions to firearms and ammunition.The Act imposed ominous disclosure requirements on health care professionals, impinging uncomfortably on the privilege of confidentiality existent between medical doctor and patient. The Safe Act even imposed new obligations on the Courts, taking judicial discretion away from the Courts on matters involving revocation and suspension of firearms’ licenses and rifle and shotgun permits. And, new, stringent penalties were imposed on law-abiding gun owners who failed to comply with the convoluted new antigun laws, permeating through the Consolidated Laws of New York.Cuomo and the antigun crowd in Albany are fully enamored with themselves. And, with each success, in robbing Americans of their birthright, they consider yet other and more devious ways to divest the public of their sacred right to keep and bear arms, as they escalate their war on the Second Amendment. With Democrats now holding majorities in the New York Assembly and in the State Senate, the State’s antigun Legislators have unleashed a flurry of antigun measures in the first month of 2019:As reported by The Evening Sun newspaper, on January 29, 2019,“The Democrat-controlled New York Legislature is set Tuesday to pass several bills aimed at making the state’s already tough gun laws even stricter. At least eight measures are expected to pass the Assembly and Senate, including legislation to prohibit schools from allowing teachers and other school employees to carry guns in schools.” While Cuomo muscles through his antigun legislation in Albany, he suffers not any attempt by Republican Legislators to enact legislation that might throw a wrench into his policy objectives; he suffers not any attempt by those in Albany who seek to strengthen the Second Amendment to the U.S. Constitution. In 2017 the liberal weblog, Politico, reported that State Representative Chris Collins, a Republican from Buffalo, New York, attempted to do just that. He introduced legislation to curtail Cuomo’s Safe Act in its entirety. Governor Cuomo was petulant, stating:“‘If they try to overrule the state of New York, we will sue, because the state has rights, too,’ Cuomo said. ‘And especially with this federal government, it’s very important that the states represent their rights and assert their rights. And I will assert my right to the fullest extent of the law, because I am diametrically opposed and the people of my state are diametrically opposed to much of what this federal government is trying to do.’” Undeterred, Representative Collins fired back,“‘The 10th Amendment respects state’s rights until they violate another amendment,’ Collins said at a press conference, flanked by several state legislators. ‘We’re not going to let them stomp on our right to the Second Amendment.’”State Representative Collins is right. He might also have reminded the Governor that the Second Amendment is an individual right. The U.S. Supreme Court made that point abundantly clear in the seminal Heller case, District of Columbia v. Heller, 554 U. S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). And, in the subsequent McDonald case, McDonald v. Chicago, 561 U. S. 742, 749-750, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), the high Court held that the individual right of the people to keep and bear arms, embodied in the Second Amendment, applies to the States too. That means the Second Amendment applies to New York. Cuomo apparently doesn’t think so, or would rather that it did not because, if Cuomo is aware of that the Second Amendment applies to New York, he couldn’t care less. He will not allow a fundamental right of the people get in the way of his policy objectives.

COULD A TENTH AMENDMENT LEGAL GAMBIT WORK TO SECURE THE NY SAFE ACT AGAINST A SUCCESSFUL ATTEMPT TO REPEAL THE ACT LEGISLATIVELY?

Cuomo’s threat to kill an attempt to waylay the New York Safe Act via a Tenth Amendment challenge could not succeed were Representative Collins successful in repealing the New York Safe Act. Perhaps, Cuomo knows this. But, apart from Cuomo’s Tenth Amendment challenge, it was Collin’s remarks, alone, that Cuomo took particular exception to. Cuomo didn’t like what he heard. Cuomo could not stomach what he perceived to be Collins’ audacious assault on the Governor’s signature gun policy achievement. And, Cuomo didn’t like the tacit idea expressed in Representative Collins’ remarks, namely, that a cause supportive of the Second Amendment might be seen by the public as a noble effort.Cuomo finds most disconcerting that he cannot obliterate the Second Amendment at once, but must do so incrementally. Yet, Republican Legislators and Second Amendment groups are, as well, left, at best, to attempt to defeat an oppressive, unconstitutional Act through piecemeal efforts, tinkering around the Act’s edges to weaken a swollen monstrosity, even as Cuomo and fellow antigun zealots seek to add to an already bloated set of repressive anti-Second Amendment measures that, together, constitute, the New York Safe Act.To date, Republican actions have yielded little positive result, as the bulk of the NY Safe Act remains untouched, seemingly impervious to assault. And Cuomo, for his part, with Democratic Party majorities in both the Assembly and in the State Senate, are better situated to enact further oppressive and repressive antigun laws.But, contrary to Cuomo’s assertions, States cannot justifiably claim a general right under the Tenth Amendment to strip the fundamental right existent in each individual citizen, as codified in the Second Amendment. State Representative Collins correctly and unambiguously points out, a Tenth Amendment States’ rights claim does not trump the Second Amendment right existent in each American citizen. Collins is absolutely correct on that score.  Furthermore, the Tenth Amendment to the U.S. Constitution does not simply refer to States’ rights. It also refers to rights held by the people. The Tenth Amendment sets forth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.  Like all too many politicians, Andrew Cuomo demonstrates a proclivity toward duplicity and incongruity, along with a barely concealed tendency to exact revenge, through the power of his Office, against those he perceives have offended him. And, so it is that Cuomo dares to threaten a lawsuit against State Legislators who would take action to repeal a State law that Cuomo happens to champion.In threatening a Tenth Amendment States’ rights challenge against State Representative Collins and anyone else who would dare repeal the New York Safe Act, Cuomo is also relying on, albeit tacitly, the doctrine of federalism that demarcates power between the Federal Government and the States. But does the doctrine of federalism apply here? No, it doesn’t. Federalism doesn’t apply because Representative Collins isn’t operating at the behest of the Federal Government in challenging the Constitutionality of the New York Safe Act. He is acting as a State Legislator, on behalf of those American citizens who happen to be New York residents, and he is representing the interests of the residents of the City of Buffalo, who elected him to represent their interests.So, in challenging the constitutionality of NY Safe, Representative Collins is operating within the confines of the State to protect citizens who reside in New York, in order to protect their Second Amendment right of the people to keep and bear arms. Andrew Cuomo’s Tenth Amendment threat directed against New York Representative Collins is both wrong and wrongheaded.The States’ rights aspect of the Tenth Amendment of the Bill of Rights doesn’t apply here since, one, the Tenth Amendment protects the right of the people too, not merely rights of the States, and, two, because States’ rights do not, in any event, supersede the fundamental right embodied in the Second Amendment. And, the doctrine of federalism isn’t applicable here, either, because NY Safe does not apply to the Nation at large. It applies only to the residents of New York, and it as an unconstitutional Governmental action against the residents of New York, alone, whom the Act targets, and it is interests of New York residents that that Representative Collins’ has sought, then, to protect and vindicate.Governor Cuomo, for his part, though, doesn’t bother to consider all the negative ramifications of the Tenth Amendment that work against him and he doesn’t consider the negative ramifications of the doctrine of Federalism when it comes to expanding NY Safe to the entire Nation. Cuomo has been quite vocal and blunt on this. The State of Politics weblog, points to Cuomo’s position on this:“The rest of the country should take up legislation similar to the SAFE Act gun control measure approved in 2013 in New York.” “In the aftermath of Sandy Hook, New York did more than send our thoughts and prayers,” Cuomo said in a statement. “‘We stepped up to pass the strongest gun safety legislation in the nation. The SAFE Act didn’t affect sportsmen, hunters or legal gun owners—but it reduced the risk to our children, to our families and to our communities. It banned assault weapons like AR-15s and kept guns out of the hands of dangerously mentally ill people. It’s far past time that the rest of the nation follows suit.’Cuomo has previously urged Democrats in Congress to take a more truculent stance on the issue of gun control.” So, even as Andrew Cuomo dares threaten a States’ rights Tenth Amendment challenge against Representative Chris Collins, Andrew Cuomo seems curiously blasé about a true States’ rights challenge that any other State could raise against Congress were Congress to attempt to impose the New York Safe Act on every other State, which is precisely what Congress and Cuomo would like to do. Cuomo is hardly the States’ right advocate he pretends to be when it is his intention to impose New York law, especially, the New York Safe Act, on everyone else.

ANDREW CUOMO "PROJECTS" HIS PERSONAL FAILINGS ONTO OTHERS.

The psychological defense mechanism of projection comes into play when one looks to the Governor Cuomo’s chicanery and antics. Cuomo constantly projects his own moral deficiencies onto those whom he happens to disagree with.The weblog, “The Rant” reports that,“Cuomo has used the gun control issue to knock Republicans.‘They have a different world view of America. They are systemically trying to impose their world view on this country,’ said Cuomo.”

WHO IS IMPOSING WHAT ON THE AMERICAN PEOPLE?

Cuomo is wrong about Republicans. Republicans aren’t trying to impose a world view of America at all. Republicans—many of them at least—simply seek to adhere to the vision of America as conceived by the founders of our Republic, as set down in the blueprint of our Nation, our Constitution. It is Cuomo and other extremists in the Democratic Party, both in Congress, and in States such as New York, who are hellbent on imposing their world view on the rest of us, in contradistinction to the dictates of the United States Constitution. What they seek is a world view at loggerheads with the will of the majority of the Nation’s citizenry and one singularly at odds with the traditions of our forebears.The recent antigun legislation coming out of the Democratic Party controlled House is a prime example of the Democrats’ rancor toward our Nation’s history, our Nation’s traditions, and our Nation’s core values. Consider the outrageous: For the People Act of 2019, 116 H.R. 1. A perusal of the Act, aptly illustrates just how out-of-touch the Democratic Party is with the American citizenry. Fortunately, Senate Majority Leader, Mitch McConnell, stated that the For the People Act of 2019, 116 H.R. 1, is dead on arrival in the Senate, as is the House antigun, Bipartisan Background Checks Act of 2019, H.R. 8.But the Democratic Party controlled House isn’t done. The public can expect to see a plethora of unconstitutional laws oozing out of Congress in the months ahead, along with unconstitutional laws emanating from Democratic Party controlled State Governments, such as New York. The U.S. Senate will likely kill all or most Congressional bills coming out of the House. And, those that do make it out of Congress will surely see a Trump veto. But, for State Legislatures that hold Democratic Party majorities, and where the Governor of the State is also a Democrat—as is the case in New York—the people of those States will continue to suffer the evisceration of their fundamental rights.

WILL THE BILL OF RIGHTS TRULY CONTINUE TO EXIST, AND WILL THE UNITED STATES CONTINUE TRULY TO EXIST AS THE NATION’S FOUNDERS ENVISIONED IT, AS A FREE REPUBLIC, OR WILL THE NATION EXIST MERELY WITH THE TRAPPINGS OF A FREE REPUBLIC AND WITH MERELY THE TRAPPINGS OF FUNDAMENTAL RIGHTS AND LIBERTIES EXISTENT IN THE PEOPLE?

As the Late Eighteenth-Early Nineteenth Century French Philosopher and Diplomat, Joseph de Maistre, said, “Every Nation Gets the Government, It deserves.”  This means the people of a Nation ultimately decide on the form of their Government, and must accept the result of a bad choice.The founders of our Nation carefully considered various models for Government. They created a Constitutional Republic. They realized that Government is best that serves the people, and not the other way around. They fought to overthrow an oppressor,George III of Great Britain.They were successful. But, in creating a new Nation, they did not wish to substitute one oppressor for yet another. So, they established a federal Government with limited, circumscribed powers; and they incorporated into the Constitution, a Bill of Rights, codifying fundamental, natural, unalienable rights and liberties upon which Government cannot, must not tread. The Bill of Rights makes clear that ultimate authority rests with the people, not Government. Thus, was the framework for a new Nation established.But, there are ruthless, inordinately wealthy, very well-organized, and extremely powerful forces at work today, both here and abroad, that look on our Nation and its people with jealous eyes. They seek to destroy the very concept of the ‘Nation State’ that the President, Donald Trump was elected, by the people, to preserve, and which he has worked tirelessly to preserve even as there are those hell-bent to destroy both him and his Administration.What we see occurring in the EU can unfold here in the U.S. There are powerful ruthless forces at work that seek to insert the U.S. eventually into a unified trans-world government. They realize that the United States, with the most powerful military apparatus in the world and with its mighty economic clout, must submit to this new trans-world government, if they are to succeed in their effort to consolidate power in a one world Government. They cannot succeed unless they bring the U.S. into its fold. These ruthless forces have control over our Press that actively misleads the people, distorting the news, creating false narratives, and they have their flunkies in Congress and in the vast Government Bureaucracy.The American people are becoming indoctrinated; are becoming predisposed to elect the kinds of people in both Congress and in State Government, who seek nothing less than the dismantling of our Constitutional Republic; who see our Constitution, with its predominant Bill of Rights, as a relic of a bygone age; and they seek to radically alter our Constitution, and, in so doing, radically alter the foundation of a free Republic.We see this through blatant efforts to rewrite the Constitution; attempts to weaken the unalienable right of free Speech as codified in the First Amendment; attempts to obliterate the unalienable right of the people to keep in bear arms as codified in the Second Amendment; attempts to weaken the unalienable right to be free from unreasonable searches and seizures as codified in the Fourth Amendment; and attempts to defeat the very concept of ‘private property,’ as embodied in the Fifth Amendment to the U.S. Constitution.We see attempts by these new representatives in Congress, and in the States, as echoed by a compliant Press, to admit into the ranks of the citizenry, millions of illegal aliens who have no understanding of a Constitutional Republic, who cannot assimilate, and who are not meant to assimilate. They are people who mystifyingly claim a right to reside in our Nation in defiance of our laws. These are people who seek Government largess in return for their vote and the radical Left that has infiltrated the Democratic Party is ever willing to give them tokens in return for their unswerving loyalty.We see attempts to do away with the electoral college as set forth in Article 2, Section 1 of the Constitution. And, we see attempts to rewrite Article 1, Section 2, Clause 3, of the Constitution, with an aim to increase the number of representatives in left leaning States. Were these efforts to come to fruition, the Constitutional Republic as conceived by the founders of our Nation, would cease to exist. Yet, the public is led to believe that all this is for their own benefit; that it is all for their own good; that it is for the well-being of society as a whole; that it is for the welfare of the collective, even as it comes to the detriment of the individual.But, a Government created to serve the people would mushroom into the overseer of the people. And this would be explained to the people as a good thing. The world is complex, they say. The people need guidance. Government must not be constrained. The Government can provide the best care for the people. People must simply be willing to give up a few of their rights and liberties—no big thing!Is there a price high enough that a person would willingly sell their soul? Some would do so. More and more members of the public are becoming hoodwinked.Until the electorate in our Nation comes to its senses, expect to see individuals like Andrew Cuomo and many others contorting this Nation into their vision of a proper world; proper for Cuomo and other radical Leftists, perhaps, but a living Hell for most everyone else: a Hell world as conceived in the radical Left’s own tortured, warped souls, and in their own feverish minds; a world they would force everyone else to live in.It is too late for Andrew Cuomo, and for people like him: people like Eric Swalwell and Chuck Schumer, and Bernie Sanders; and for people like Nancy Pelosi, and Joe Biden. And it is much too late for such arrogant, hateful, spiteful, surly creatures like Senator Krysten Sinema, and Congresswoman Alexandria Ocasio-Cortez; and for radical Muslim hatemongers such as Ilhan Omar and Rashida Tlaib.It is, not, however, too late for the rest of us, but it soon will be as we are rapidly approaching the Eleventh Hour. If we do not act to vote these aforesaid individuals, and many like them, out of Office, and if we fail to support U.S. President Trump, we will indeed acquire the Government we deserve—tyranny and servitude.  ______________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE SECOND AMENDMENT GUARANTEE ACT: A REAFFIRMATION OF THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS

THE SECOND AMENDMENT GUARANTEE ACT SHOULD, AS THE TITLE OF THE ACT ASSERTS AND AS PROPERLY UNDERSTOOD, DO NOTHING MORE NOR LESS THAN RETURN, TO THE AMERICAN PEOPLE, THE FUNDAMENTAL, NATURAL RIGHT SLIPPING FROM THEM: THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

WHAT MISBEGOTTEN CONGRESS AND MANY OVERZEALOUS STATE LEGISLATURES HAVE WROUGHT MUST BE CORRECTED

THREE SCENARIOS THAT REQUIRE CONSTANT VIGILANCE ON THE PART OF AMERICANS:

ONE: SOMETIMES LEGISLATIVE ACTS HAVE UNINTENDED CONSEQUENCES, RESULTING IN THE LOSS OF ONE'S FUNDAMENTAL RIGHTS AND LIBERTIES OR RESULTING IN AN ABRIDGMENT OF OR AN ATTENUATION OF THOSE FUNDAMENTAL RIGHTS AND LIBERTIES, IF NOT IN AN OUTRIGHT LOSS OF ONE'S RIGHTS AND LIBERTIES.

TWO: AT OTHER TIMES LEGISLATORS ENACT LAWS THAT, ALTHOUGH DIRECTED TO ACCOMPLISHING ONE GOAL, NOT DESIGNED TO IMPACT FUNDAMENTAL RIGHTS AND LIBERTIES, NONETHELESS, WHEN IMPLEMENTED, HAVE A NEGATIVE IMPACT ON THE EXERCISE OF FUNDAMENTAL RIGHTS AND LIBERTIES.

AND, THREE: AT TIMES--AS IS MOST OFTEN THE CASE--LEGISLATORS OPERATE WITH ABANDON, DRAFTING AND ENACTING LAWS THAT ARE DIRECTED SPECIFICALLY TO CURTAILING AMERICANS' FUNDAMENTAL RIGHTS AND LIBERTIES.

When State Legislatures and Congress propose legislation—legislation that may touch upon fundamental, natural rights codified in the Bill of Rights—there exists a possibility that the proposed legislation will negatively impact the citizen's exercise of a fundamental right, protected by the Bill of Rights. The danger of an abridgment of or attenuation of a citizen’s rights and liberties may occur through accident or through invidious design. Either way, a danger to the rights and liberties of American citizens is ever present in any legislative action. Americans must, therefore, be ever vigilant of that possibility to preclude elected officials and bureaucrats from undermining Americans' rights and liberties.If an abridgement of a citizen’s rights and liberties occurs through accident, as a result of careless drafting of legislation, this tells us that State legislators and U.S. Congressmen must be conscientious in drafting legislation to avoid unintended negative consequences and must be mindful of bureaucratic overreach that operates to curtail a citizen’s rights and liberties—bureaucratic overreach that operates beyond the extreme of legislation--beyond the parameters of seeming enabling legislation that, on the surface, may suggest, in the rules bureaucrats promulgate to effectuate Legislative intent, that bureaucrats have carte blanche to promulgate rules abridging constitutionally protected rights and liberties, when, in fact, they do not have such authorization and when, in fact, it was never Congressional intention or a State Legislature's intention to cede to federal and State bureaucrats such authority to override Constitutionally protected rights and liberties.If, however, State legislation or Congressional legislation directed to accomplishing one objective, has anticipated indirect and negative impact on a fundamental right, what does that tell us? It tells us that legislators are operating deviously—clearly out of normative bounds of duty and decency, machinating behind the back of voters, and in clear violation of their oath of Office. In that event, those legislators who manipulate legislative powers to destroy the Bill of Rights must be called out for their actions and that means impeachment.Most often, though, those individuals drafting federal or State laws do so with clear cold, calculated deliberation, with a categorical objective in mind, one that cannot be mistaken for something else or for something less, namely, the goal of creating law that has, at its salient purpose, impinging fundamental rights and liberties and, in fact, infringing fundamental rights, specifically. Legislation is expressly drafted with that goal in mind. In these circumstances, legislators do not attempt to hide their intentions. In such circumstances, legislators act with cheerful abandon and with a very heavy hand, demonstrating little concern over whether they have overstepped acceptable legal and moral bounds when impinging on or infringing, altogether, a fundamental right—if we presume, from the get-go, that there are such things as acceptable legal and moral boundaries in the matter of curtailing an American’s exercise of his or her fundamental rights and liberties But, to be sure, there exist none! Still a rationale—really an excuse—for such legislation is provided, trumpeted by legislators' willing accomplices in the mainstream media. The American public must not allow such legislators to remain in Office.In the last case presented here, the excuse, posing as a legitimate rationale, that is invariably given, is that federal or State legislation restricting the American citizen's exercise of this or that fundamental right and liberty serves or promotes a compelling State interest. That is the test the United States Supreme Court has devised to ascertain the constitutionality of a State or federal statute when the very core of a natural, fundamental right is impinged on or infringed outright.In practice, courts of competent jurisdiction that share the sentiments of government, as expressed in a State or federal regulation, will often, although, fortunately, not invariably, find the offending regulation constitutionally permissible even if, on logical and legal grounds, it isn’t.Government, whether State or federal, must, nonetheless, articulate its compelling interest to restrict the people’s exercise of a fundamental right when a plaintiff, that has standing to sue, directly challenges the constitutionality of a State or federal statute or local governmental regulation or ordinance.Rarely do we see Congress or State Legislatures enacting legislation impacting natural, fundamental rights that serve to strengthen the right as codified in the Nation’s Bill of Rights. Congressman Chris Collins; bill, the Second Amendment Guarantee Act, is one example of legislation the intent of which is to strengthen rather than to weaken a fundamental right: the right of the people to keep and bear arms. But, when all is said and done, such legislation should be unnecessary anyway; for, a fundamental right—namely any right codified in the Bill of Rights—has no parameters and legislation should never be enacted to create parameters unless, if done so very, very circumspectly. For, example, illegal aliens do not have the right to keep and bear arms, for they are not understood to be "the people" to whom the right of the people to keep and bear arms attaches. So, a law that precludes illegal aliens from possessing firearms is not really establishing a parameter around the Second Amendment anyway, as the right of the people to keep and bear arms, as codified in the Second Amendment by the framers of our Constitution, did not have illegal aliens in mind. As Congress, has authority, under Article I, Clause 4 of the U.S. Constitution to enact laws governing naturalization. An illegal alien--for which the term, 'undocumented,' is nothing more than an euphemism and a poor and inexact term to be applied to such a person--is by definition an individual who is not of this Country as he or she is merely in this Country, and should not have been in this Country at all.Parameters are set by legislators in statute or by Courts, when interpreting statute. But, as is clear from the language of the Amendments of the Bill of Rights, there are no true parameters. The rights expressed therein are absolute--as applied to citizens of the United States. It is a legal shibboleth, nothing more than a platitude, really, running as a constant thread through all State and federal legislation and through local rules, regulations, codes and ordinances. It is a platitude asserted by jurists and politicians alike—repeated with regularity, wearily and eerily, and as no more than an afterthought—as no more than cliché—a thing that has become a strange jurisprudential adage. It is that State and federal governmental regulations and local governmental rules and regulations, and codes and ordinances, that routinely and negatively impact basic rights might pass constitutional muster anyway since no right is absolute—including, and especially, those rights and liberties, clearly articulated and codified in the Bill of Rights of the U.S. Constitution, as handed down to us by the framers of our Constitution—the founders of our free Republic. Hence, the rationale, we see, is really nothing more than a paltry excuse, a mirage, a meager attempt to legitimize the undermining of fundamental rights of the People. This has led to a monstrous curtailing of the rights of the people of this Country. It has occurred incrementally, quietly, insidiously, seductively. And, many Americans have, unfortunately, grown accustomed to accepting out of whole cloth the illusion that they really don’t need to exercise the fundamental right to keep and bear arms, codified in the Second Amendment of the Bill of Rights of the U.S. Constitution, and that they don’t really need to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, as that right is codified in the Fourth Amendment of the Bill of Rights of the  U.S. Constitution, notwithstanding that these two rights were deemed sufficiently important to the founders of our Nation that they set them down, expressly, in our Constitution. And now we are beginning to see that the freedom of speech and the right of the people peaceably to assemble, as guaranteed under the First Amendment of the Bill of Rights of the U.S. Constitution, too, are under assault. And we, Americans, are led to believe that this is, somehow, in some undefined way, in the natural order of things to see our fundamental rights and liberties curtailed and that we should no longer have any real expectation that we have any fundamental rights or liberties except to the extent that Government deigns to grant such rights and liberties to us, explaining, thereby, the extent to which such rights and liberties are granted, for a time, to this one or that one among us. This is to suggest that fundamental rights and liberties are to be perceived as fads, trivialities, things easily and infinitely malleable, to be kneaded like clay, or sloughed off like old clothes--things to be transformed or deleted, according to the norms of the time—as “new norms” are thrust on us by those who arrogantly, yet erroneously, claim the moral high ground and who claim a tacit right to decide what is best for the rest of us.Another platitude we constantly hear is that we are a Nation that is ruled by laws and not by men. We live under the profound illusion that there exists a natural order existent in this platitude, forgetting or failing even to consider that it is men, after all, that make the laws that govern our actions and that govern our very lives, and that it is men that make the laws that denigrate our Constitutional rights and liberties, claiming, all the while, as they do so, as they forever inform us--artfully, deceitfully--that destruction of the right of the people to keep and bear arms, under the Second Amendment of the Bill of Rights of the U.S. Constitution, and that destruction of the freedom of speech and destruction of the right of the people peaceably to assemble under the First Amendment of the Bill of Rights of the U.S. Constitution, and that destruction of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures under the Fourth Amendment of the Bill of Rights of the U.S. Constitution, are necessary--that destruction of these rights and liberties are, indeed, for the common good and that they are for the good of society, for the good of the collective, for the good of the hive. We are seduced into believing or otherwise cajoled into accepting that destructions of our fundamental rights and liberties, destructions set down in federal or State statute, and destructions set down in local rules, and codes, and regulations, and ordinances are yet, somehow, all created and implemented for our own good, for the good of the Nation or for the good of the community, or for the good of the people. We are told that these laws and codes and rules and regulations and ordinances that undercut our sacred rights and liberties are, nonetheless, to be taken as just and moral things. We are to accept these changes, and we are told that we should applaud these changes, as things consistent with the norms and standards of the time and of a "civilized society." We are told to accept the notion that our Bill of Rights is, no more than any man-made law, something mutable, and like all things mutable, contingent, not meant to last. But, that is the myth thrust on us, to make us pliant little lambs.

OUR BILL OF RIGHTS CAN NEVER BE DESTROYED, NOT REALLY, NOT EVER--TRY AS SOME MAY TO DO SO.

What these scoundrels—these makers of “laws” that rule us, suffocate us—don’t tell us is that the laws they create are designed to supersede the Constitution, thereby denigrating the most important Truth of all—the singular, quintessential Truth which tells us that the U.S. Constitution is the Supreme Law of the Land. Yet, the fact of the matter is that no Statute, Rule, Regulation, Code, or Ordinance stands superior to the U.S. Constitution. No man-made law carries sway over our natural rights and liberties as set forth in the U.S. Constitution. To say that we are a Nation ruled by laws and not by men is, thus, a horrible lie—a monstrous lie because it carries--as many effective lies do--a kernel of truth—namely that we are ruled by laws, but they are all arbitrary laws--laws that come and go, like the light of a firefly at night. But it is the light of the Ten Amendments that comprise our sacred Bill of Rights that shines forever and can never be dimmed or snuffed out. Those Laws--the Ten Amendments that comprise our Bill of Rights--are Sacred Principles, Sacred , Sacrosanct, and Inviolate Truths. These Truths embodied in our Bill of Rights cannot be muted, or undercut, or diluted, or deleted, or destroyed. To attempt to destroy our sacred Ten Amendments is to destroy this Nation and, yet, these Ten Amendments cannot ever truly be destroyed. They can never be destroyed because they live in us. They are intrinsic to our very being as Americans.We are a Nation that, ultimately, is ruled not by men, not by contingent, transient laws of men, and not by the edicts of men, but solely by the American People, as the Nation is in us as we are the embodiment of the Nation. The Nation is: We the People; and the sword and shield of the American People resides not in our laws--those contingent, transient things that come and go with the flow and ebb of time--but solely in the primordial, immutable, natural rights codified in the first Ten Amendments of the Nation’s Bill of Rights, a document seamlessly sewn into the fabric of the United States Constitution.

WHAT, THEN, SHOULD WE, AMERICANS, UNDERSTAND, FROM PRO-SECOND AMENDMENT BILLS, SUCH AS CONGRESSMAN COLLINS' SECOND AMENDMENT GUARANTEE ACT?

Congressman Chris Collins’ Second Amendment Guarantee Act must be viewed not as extending the right of the People to keep and bear arms—as those who oppose it would undoubtedly assert and thereupon argue that the bill should not be enacted into law--but should simply be understood as a reaffirmation of that fundamental, natural, primordial, preexistent, immutable Right as it exists, unconstrained: Pure, Infinite, all-Powerful, Supreme. As such, the Second Amendment remains, second to none, as the best guarantor of our freedom and our best hedge against tyranny.As a reaffirmation of the import of our sacred Second Amendment, Chris Collins' Second Amendment Guarantee Act can be improved. We explain how to do so, commencing with our next post._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

IS THE SECOND AMENDMENT GUARANTEE ACT (SAGA) REALLY ALL IT IS CRACKED UP TO BE?

WITH MANY “CRACKS” IN THE SECOND AMENDMENT GUARANTEE ACT, IT GUARANTEES NOTHING CONCRETE.

This is a follow-up to our recent post on Congressman Chris Collins’ bill, titled the “Second Amendment Guarantee Act” (H.R. 3576) (“SAGA”).In our previous post we explained some major failings of Congressman Chris Collins’ bill as drafted. In our next post we will set down our own suggestions for a possible redraft of pertinent federal legislation that, in our humble opinion, will, we feel, more adequately accomplish Congressman Collins’ objective, and transcend it. Even so, we are mindful that drafting firearms legislation on the federal level—even with the best of intention and care—can invite unintended consequences. But, before we proceed with a suggested redraft of H.R. 3576, some explanation is in order—hence the need for this interim article. There are several problems with the Second Amendment Guarantee Act as drafted. The bill, in its present form, does not, in our estimate, accomplish the immediate goal the bill’s sponsors hope, trust, and pray it would accomplish, namely the toppling of New York’s Safe Act, and, by extension, the toppling of similar restrictive, draconian firearms’ legislation, such as Maryland’s Firearm Safety Act—an Act the United States Court of Appeals for the Fourth Circuit gave its “good housekeeping seal of approval” on in the disastrous Kolbe decision ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)). In Kolbe Plaintiffs challenged the constitutionality of Maryland’s “assault weapon” ban and “LCM” ban. In revisiting the three Judge panel's decision in that case, the U.S. Court of Appeals for the Fourth Circuit--hearing the case “en banc”--held that Maryland’s Firearm Safety Act ban on "assault weapons" and "LCMs" did not infringe the Second Amendment. In so holding, the Fourth Circuit Court of Appeals ignored U.S. Supreme Court precedent, essentially overriding and shredding the U.S. Supreme Court Majority Opinions in the seminal Second Amendment Heller case (554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) and in the subsequent seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)). Hopefully, Kolbe will be taken up by the U.S. Supreme Court and overturned by the high Court. If so, that will, in our estimate, accomplish more—and accomplish more directly and categorically and unequivocally—to defeat Maryland’s Firearm Safety Act and to defeat similar legislation, like New York’s notorious “Safe Act”—than Congressman Collins’ bill will do on the Legislative front, even if the Congressman’s bill were, in its present form, enacted. But, we do not see Collins’ Second Amendment Guarantee Act, even in the language of the present, weak and equivocal form ever moving out of Committee to full House Debate, and eventual House vote, absent concerted effort on the part of the public urging House Republicans to move the bill along.Our previous comments concerning what we see as failings in the Second Amendment Guarantee Act as presently drafted are not meant to cast aspersions on the bill or on the bill’s sponsors. Quite the contrary, we commend Congressman Collins for his efforts, commend those who drafted the bill, and we commend those U.S. Representatives who signed on to the bill—assuming those U.S. Representatives who signed on to the bill are truly serious in pressing forward with their efforts to strengthen the Second Amendment on the federal level.But, we are faced with two disturbing, incontrovertible realities that must be recognized and dealt with.

FIRST:

Notwithstanding his goal in introducing his bill (H.R. 3576) in the House—overturning New York’s Safe Act—we wonder whether Congressman Collins and the other sponsors of the bill have the heart to see their actions through to completion. If introduction of the bill is mere grandstanding to serve a political end but nothing more—namely to illustrate that Congressman Collins and others who signed on as sponsors to the bill are strong supporters of the Second Amendment—the introduction of a bill that goes nowhere, and is not really intended to go anywhere, does not serve the interests of the American people but, rather, serves only the interests of Legislators themselves who seek to secure their political futures. Legislators must have the courage and strength and fortitude of their conviction to see their initial efforts through. We hope that Congressman Collins is one of those intrepid Legislators. If not, and if other Republican Legislators, as well, who added their names in support of the bill, demonstrate reluctance, rather than boldness in following through on their efforts, then the American public should rightly be circumspect--as we are circumspect--in applauding what may amount to, at most, half-hearted efforts to “look good” to a Legislator’s base. In matters involving our Bill of Rights, caution should be thrown to the winds.We would rather see temerity demonstrated here than timidity. We have already seen how numerous national handgun carry reciprocity bills are still stuck in Committee. But, why is that? Were the sponsors of those bills intent on seeing their actions through? If so, why has there been no action on those bills?Indeed, why have we heard nothing about the bills, apart from their introduction in Congress? Not one of those bills, to the extent we are aware, has moved even one step beyond the initial stage of Congressional introduction of the bill even though the most recent has been introduced in Congress a couple of months ago, and others have been introduced several months ago; and all of them languish in Committee.We see no House or Senate Committee action. We see no House or Senate debate. We see no amendment to any one of those bills. We see no House or Senate vote. We see nothing concrete beyond introduction of a bill. From what we can see and deduce from a disturbing inaction on the part of Congress is that no action on any one of these pro-Second Amendment bills is expected anytime soon, if ever. So, from this experience, we ask: Why should anyone expect Congressional movement on Congressman Collins’ bill? The question is rhetorical. For, no one should expect action on Congressman Collins’ bill, if past experience is our guide. There must exist, then, an urge to action, and that urge, or nudge, will have to come, it is apparent, from the outside—from the public.So, don’t expect House members to act on this bill. But, why is that? Why must the public urge Congress to action? Why can’t Legislators follow through on their actions? Apart from introduction of pro-Second Amendment bills, accompanied by muted Press Releases, nothing is ever accomplished. Of course, we cannot expect the mainstream media—a tool of powerful, ruthless, nefarious, internationalists who seek nothing less than destruction of our Second Amendment—to herald enactment of pro-Second Amendment bills. The mainstream media only urges action to weaken and dismember the Second Amendment, not to offer its support of it and to strengthen it. That being the case, those Republicans in Congress who do truly support a strengthened Second Amendment must work all the harder to see their initial efforts through to completion.

SECOND:

Even if the Second Amendment Guarantee Act were enacted, still, as drafted, the Act guarantees nothing, to our mind, that is concrete. The Act as drafted is extraordinarily brief, modifying one and only one Section of Title 18 of the U.S. Code. While brevity is preferable over length for length’s own sake, simplicity in construction is not a good thing if ambiguity, vagueness, and critical gaps in legal drafting exist.In this instance, H.R. 3576 is truncated, vague and ambiguous and therefore invites the antigun crowd to challenge it, or, simply, to ignore it. were the bill enacted, as restrictive State firearms legislation may claim the bill--as federal law--is too indefinite to be considered, from a legal perspective, inconsistent with State law. Thus, contrary to the assertions of Congressman Collins Press Release, the Second Amendment Guarantee Act, in its present form, would not, then, likely accomplish what Congressman Collins and the other sponsors of it believe it would accomplish. There is too much wiggle room in it. Apart from inviting a challenge by restrictive gun law States, there is nothing in Congressman Collins' bill that would legally prevent States from continuing to enforce their restrictive gun Statutes.

WHY THE SECOND AMENDMENT GUARANTEE ACT IS AN IMPERFECT BILL THAT LIKELY WOULD NOT ACCOMPLISH WHAT CONGRESSMAN COLLINS SAYS IT WOULD ACCOMPLISH WERE IT TO BE ENACTED

Apart from the reality that no Committee action on this bill is to be expected, we again emphasize that, even if, by some miracle, this bill made it out of Committee, passed the House and then moved to the Senate where it received a super majority of votes, leading to enactment, it is highly doubtful that the bill would, in its present form, operate as an automatic repeal of restrictive gun laws such New York’s Safe Act or Maryland’s Firearm Safety Act, or of any other draconian State restrictive firearms Act that openly, glaringly infringes on the right of the people to keep and bear arms.

HOW DOES CONGRESSMAN COLLINS’ BILL MODIFY EXISTING FEDERAL LAW?

The bill (H.R. 3576), as written, operates as a redraft of one and only one federal firearms’ Statute: A Statute that may be construed as a federal firearms’ preemption Statute—in a sense, an “anti-preemption” Statute, given the weak wording of it. The preemption Statute, Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code, as enacted, reads as follows:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Section 927 of Title 18 of the U.S. Code, as written, basically tells States that, on the matter of firearms, generally, States have a free hand to regulate the field unless there is a direct and positive conflict and the two cannot be reconciled or stand together. The operative words, here, are ‘unless,’ and ‘direct and positive conflict,’ and ‘the two cannot be reconciled or stand together.’Congressman Collins bill rewrites that Section to read:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”This redraft of one Section of Title 18, namely, Section 927, is, in this instance, insufficient to defeat the Safe Act’s “assault weapons” ban, or to defeat “assault weapons” bans of any other State, because, among other things, there is nothing in federal law that talks about “assault weapons.” Pay particular attention to the words of the bill that read:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive. . . with respect to such a rifle or shotgun . . . than is provided under Federal law.” The problem is that federal law is silent or essentially silent on the matter of regulation of any firearm other than those defined as machine guns, as ‘machine gun’ is mentioned and defined with particularity in the Internal Revenue Service Code [Title 26 of the U.S. Code] and which, in Title 18 of the U.S. Code [18 U.S.C. § 922(b)(4)]  sets forth, with particularity, the intention of Congress to regulate destructive devices, machine guns, and short-barreled rifles and shotguns: “[i]t shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver--to any person any destructive device, machinegun (as defined in section 5845 of the Internal Revenue Code of 1954 [1986] [26 USCS § 5845]), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Attorney General consistent with public safety and necessity; . . .” So, then, by the very language of Congressman Collins’ bill, States such as New York would, arguably, remain free to regulate, through registration and transfer, all manner of firearms—rifles, shotguns, and handguns—apart from those clearly identified as and defined in the U.S. Code.Because federal law is essentially silent on the regulation of rifles, shotguns, and handguns, it does not follow, logically or legally, from the language of the proposed modification to Section 927 of Title 18 of the U.S. Code, that States are categorically prohibited from regulating any firearm other than machine guns, as defined in 26 USCS § 5845(b), short-barreled shotguns, short-barreled rifles, and destructive devices, as the expression, 'destructive device,' is defined in 26 USCS § 5845(f). Thus, if H.R. 3576 were enacted, NY Safe and other draconian State gun laws that operate to ban, within the State, weapons defined in State law as 'assault weapons' and components of firearms defined in State law as 'large capacity magazines' ('LCMs') could very well remain effectively untouched and, therefore, unaffected in accordance with the modified Section 927 of Title 18 of the U.S. Code, because by the very language of the Congressman Collins' bill, NY Safe and other similar restrictive gun laws of other States remain may be arguably considered to be consistent with or might otherwise be construed as capable of being reconciled with provisions of federal law. New York’s NY Safe and Maryland’s Firearm Safety Act, and similar draconian firearms legislation existent in other States would therefore remain intact. Hence, States might find that a Tenth Amendment challenge or other challenge to H.R. 3576 may be necessary. Yes, the Second Amendment Guarantee Act could survive a Tenth Amendment challenge, but its impact on State firearms’ laws would be nugatory. States would simply ignore the Second Amendment Guarantee Act as they could still register and regulate the transfer of firearms or ban outright many categories of weapons—including and especially, those defined as ‘assault weapons’ under State law, which the Second Amendment Guarantee Act was targeting. Thus, any guarantee of movement of, say, assault weapons in interstate traffic, would still be subject to heavy State regulation in intrastate traffic. One’s guarantee of exercise of one’s Second Amendment right of the people to keep and bear arms would then end up as an empty gesture.

MUCH WORK IS NEEDED TO MAKE THE SECOND AMENDMENT GUARANTEE ACT AN EFFECTIVE ACT, ENABLING A PERSON, WHO IS NOT UNDER DISABILITY, TO LAWFULLY OWN FIREARMS THAT SEVERAL STATE STATUTES PRESENTLY PROHIBIT, NAMELY AND SPECIFICALLY, THOSE DEFINED AS ‘ASSAULT WEAPONS.’

The Second Amendment Guarantee Act is an extensive redraft of Section 927 of Title 18 of the U.S. Code, only. But, had the bill been drafted effectively, to preclude a State from banning an entire category of firearms defined as “assault weapons,” Congressman Collins could have done so and should have done so by modifying not only Section 927 of Title 18 of the U.S. Code, but by modifying, explicitly, Sections 921, 922, and 926 of Title 18 of the U.S. Code, and modifying, as well, Section 5845 of the Internal Revenue Service Code (of the U.S. Code), 26 USCS § 5845, concentrating more expressly on guaranteeing one's right to own and possess semiautomatic weapons, the bane of antigun legislators and antigun groups--as they deposit ever more semiautomatic weapons into the category of 'assault weapons'--prohibiting the average law-abiding citizen from legally holding any of them. 

AN IMPORTANT CAVEAT TO MODIFYING ANY FEDERAL FIREARMS LEGISLATION

As we cautioned at the beginning of this article, Federal legislation operates across the board. If done improperly, the fundamental right of the people to keep and bear arms could be substantially curtailed or, at least, negatively impacted, and decidedly and decisively impaired.Consider: Federal law preempts State regulation of machine guns, “short-barreled” rifles and shotguns, and “destructive devices” altogether. The federal Government regulates ownership and possession of these firearms, together with destructive devices, through the Justice Department, the Internal Revenue Service, and through the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Would Americans be willing to accept federal registration of firearms defined as “assault weapons” for the privilege of lawfully owning and possessing them? Well, for residents of New York and Maryland and similar States that ban possession of assault weapons, outright, and that ban various components of firearms, except for those firearms and, possibly, those components of firearm that have been grandfathered in, federal registration of firearms defined as “assault weapons” may seem a small price to pay. But, for those of us who reside in States that do not presently impose bans on possession of weapons that other States routinely proscribe, such residents of States that do not impose bans on or registration of so-called assault weapons may not see that legislation, such as the Second Amendment Guarantee Act, a great and wonderful thing to be enacted. For, once enacted, H.R. 3576 must then be implemented and, if federal preemption truly does supersede State law regulation of firearms, we could expect the Justice Department, the Internal Revenue Service, and the Bureau of Tobacco, Alcohol, Firearms, and Explosives of the Justice Department (BATFE), to regulate the ownership and possession and transfer and licensing of “assault weapons,” just as it now regulates the ownership and possession and transfer and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices. That would likely—and conceivably, inevitably—entail the creation of a massive registry of the names and whereabouts of Americans who seek to own and possess all manner of firearms. Thus, there are hidden costs associated with federal firearms preemption Statutes.The best thing that can be said about State regulation of firearms is that the impact of draconian firearms legislation is limited jurisdictionally to that particular State. Thus, the NY Safe Act, while impinging awfully--indeed, catastrophically--on one’s right to keep and bear arms in New York, has, fortunately, no legal force or effect in, say, Ohio, or Texas, or Wyoming.Congressman Collins’ bill, as written, is too open-ended and, if it were enacted, as is, we believe that it would be of little, if any, benefit to those individuals living in States that have stringent firearms’ laws in place and, further, Congressman Collins' bill could, actually harm those that live in States with more permissive firearms’ laws. Moreover, even if the federal Government enacts laws that tend to strengthen the Second Amendment—which would be an anomaly anyway—remember full well: what the federal Government giveth, the federal government can taketh away. Thus, Congressman Collins’ Second Amendment Guarantee Act must be redrafted with the aim of emphasizing the word, ‘Guarantee.’ It must not be an empty gesture or worse, something that manifests as the inverse to the loftiness of its title or as something that devolves into a massive firearms’ registration and eventual firearms confiscation scheme--which could happen in the event Democrats gain control of both Houses of Congress, as Democrats, given the chance, would do their damnedest to repeal outright--or with a tweaking of a word, here and there, transform the Second Amendment Guarantee Act into a nightmare--a new federal assault weapons ban; and THAT, would definitely not be a good thing.Thus, one should always be mindful of the adage: “Be careful what you wish for”—certainly, one should be ever mindful of negative consequences--definitely where federal government agencies are given the opportunity to tinker with the Second Amendment. Keep in mind, Government agencies are tasked with implementing federal law through the promulgation of Administrative Rules, published in the Code of Federal Regulations, and these bureaucratic agencies of the Federal Government charged with drafting and then implementing rules to effectuate Congressional intent through Congressional legislation, often do so with a very, very heavy hand, creating and implementing rules that go well beyond the parameters of and intention of Congress.  The Devil is an artful twister of one's desires, no matter how carefully a person calibrates his stated wishes.**_______________________________   *The Arbalest Quarrel has written extensively on the Kolbe case and will continue to do so.**As a deadly serious example of what we are talking about here, take a look at the excellent comedy, "Bedazzled,"--the original, 1967 version with Dudley Moore and Peter Cooke, not the remake of that film. For another example, see the Arbalest Quarrel article, "The Flaws in Judge Garland's Reasoning," posted on the Arbalest Quarrel website on April 14, 2016._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CONGRESSMAN CHRIS COLLINS’ SECOND AMENDMENT GUARANTEE ACT (“SAGA”): A GOOD START BUT NOT A FINISHED PRODUCT

THE SECOND AMENDMENT GUARANTEE ACT

INTRODUCTION

The seminal Second Amendment Heller case (District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) made categorically clear and unequivocal that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia; and the seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)) that followed Heller, two years later, made clear that the right of the people to keep and bear arms—an individual right—applies to the States as well as to the federal Government. Unfortunately, many State Legislatures, along with many legislators in Congress and, worst of all, many jurists on State or Federal Courts strongly oppose the holdings and reasoning of the Majority in Heller and McDonald. This animosity carries over to and is reflected in poorly drafted legislation and in poorly crafted legal opinions. Occasionally, though, State Legislatures and Congress get it right, and do draft laws recognizing the fundamental right of the people to keep and bear arms. Congressman Chris Collins’ (NY-27) Second Amendment Guarantee Act (“SAGA”) that the Congressman recently introduced in Congress is just such a bill. We heartily support the Congressman’s efforts. But, what might we expect?

WHAT IS THE POSSIBILITY OF PASSAGE OF THE SECOND AMENDMENT GUARANTEE ACT?

Unfortunately, not good. We take our cue from other pro-Second Amendment bills. We have yet to see movement on several national handgun carry reciprocity bills that presently exist in a state of limbo, locked up in Committee.  Even if Congressman Collins’ bill makes it out of Committee, and, further, is voted on and passes a full House vote, it likely would be held up in the Senate where it must garner a super majority—60 votes—to pass and see enactment. The bill likely would not pass as a “stand-alone” bill in any event. That means the bill would have to be tacked on to other legislation to have any chance of passage. But, assuming the bill were enacted, what might we expect from it?

WHY DID CONGRESSMAN COLLINS DRAFT THE SECOND AMENDMENT GUARANTEE ACT AND WHAT IS THE PURPOSE OF THE BILL?

Congressman Collins, a Representative of New York, obviously had Governor Cuomo’s signature anti-Second Amendment legislation, the NY Safe Act, in mind, when he drafted this bill; for the bill, if enacted, is, ostensibly at least, at loggerheads with a key feature of the Safe Act—Section 37 of the Act—the Section that bans the possession and sale of all firearms defined as ‘assault weapons.’According to the Congressman’s Press Release “Congressman Chris Collins (NY-27) has proposed new measures for protecting Second Amendment rights by introducing legislation to limit states authority when it comes to regulating rifles and shotguns, commonly used by sportsmen and sportswomen. The Second Amendment Guarantee Act (SAGA) would prevent states from implementing any regulations on these weapons that are more restrictive than what is required by federal law. Upon passage of this bill, most of the language included in New York State’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 signed into law by Governor Cuomo would be void." But, is that true? Is the Press Release accurate? Or, does the Press Release presume more about the bill than what the bill produces, in the event the bill, as drafted, sees the light of day and becomes law?

WHAT DOES THE BILL SAY?

The bill (H.R. 3576), amends Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code.As presently enacted Section 927, says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” In pertinent part, Congressman Collins’ modification of Section 927 of Title 18 sets forth:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”What does the modification of Section 927 of Title 18 of the U.S. Code purport to do; and what does the modification of Section 927 of Title 18 of the U.S. Code mean?To understand the import of Congressman Collins’ bill, it is first helpful, in this instance, to understand what those who oppose it would do to challenge it, assuming the Second Amendment Guarantee Act does become law—which is far from clear given Democrats’ hysterical aversion to the Second Amendment and Republicans’ constant foot-dragging.

IF ANTIGUN GROUPS AND LEGISLATORS CHALLENGE THE BILL IN THE EVENT IT BECAME LAW, UNDER WHAT GROUND MIGHT THE BILL BE CHALLENGED?

Congressman Collins’ bill is likely to face stiff opposition and resistance in Congress prior to enactment—assuming it even moves out of Committee—as it would almost certainly be challenged, inter alia, on Constitutional, Tenth Amendment grounds were the bill to become law.What does the Tenth Amendment say? The Tenth Amendment to the U.S. Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment has always been a sticky wicket, especially in matters involving the Second Amendment because the matter of firearms’ regulations and licensing, apart from the regulation and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices, falls, traditionally, within the police powers of a State. Although the federal Government has, in the last several decades, amassed ever more powers unto itself, the fact of the matter is that this Nation is a confederation of independent sovereign States. This idea seems to be lost on people, not least of all in light of the present “Charlottesville” episode—a matter which the Arbalest Quarrel will be writing on in the near future, taking the mainstream news media to task for unleashing a wave of opinionated fake news on the matter, and which the mainstream media is egging the Trump Administration to handle, on the federal level, to support Marxist efforts to erase our Nation’s history, traditions, and core values.Yet, the federal Government cannot indiscriminately, lawfully, run roughshod over the States and the people. In the matter of Congressman Collins’ bill, the Second Amendment Guarantee Act, this creates something of a quandary; for, the bill—as the Congressman articulates through his Press Release—substantially preempts States’ rights on matters of firearms regulations and licensing. The paramount question is this: if Congressman Collins’ bill does become law, can those, who would then seek to mount a Tenth Amendment challenge against it, likely succeed in the Courts? The answer isn’t clear, but, a careful analysis of the bill’s text suggests the bill can survive a Tenth Amendment challenge, as it was carefully drafted to sidestep just such a challenge. Why do we say this? Well, looking at the Tenth Amendment issue, the actual drafter or drafters of the bill made clear the intent of the Act to supersede State regulation of and licensing of firearms; for, Congress would, under the Second Amendment Guarantee Act, be exercising its authority to regulate firearms moving in interstate commerce. It is a categorical, unequivocal principle of law that Congress has plenary power to regulate goods moving in interstate commerce under the Commerce clause. On that matter, no legitimate legal question exists, as the U.S. Supreme Court has made this point abundantly clear.“As we observed in Lopez, [United States v Lopez (1995) 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624] modern Commerce Clause jurisprudence has ‘identified three broad categories of activity that Congress may regulate under its commerce power.’ 514 U.S. at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). ‘First, Congress may regulate the use of the channels of interstate commerce.’ 514 U.S. at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941)). ‘Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.’ 514 U.S. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72 (1911); Perez, supra, at 150). ‘Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.’ 514 U.S. at 558-559 (citing Jones & Laughlin Steel, supra, at 37). United States v. Morrison, 529 U.S. 598, 609; 120 S Ct. 1740, 1749; 146 L. Ed. 2d 658, 670 (2000).”So, the Second Amendment Guarantee Act would likely survive a Tenth Amendment challenge. But, the strength of the bill, as drafted, also poses a weakness, notwithstanding. For, while State laws, such as New York’s SAFE Act and Maryland’s Firearm Safety Act, cannot, if Collins’ bill is enacted, most likely preclude importation of firearms into their State—including and importantly so-called assault weapons, as importation of such firearms affects interstate commerce and federal law, would, under the Second Amendment Guarantee Act, preempt State law in matters affecting interstate commerce—still, once the firearms are presented in States such as New York and Maryland, it isn’t clear, from the present language of the bill, that firearms’ dealers would be able to sell or trade such “assault weapons” to individuals residing in those States, so long as laws such as the SAFE Act and the Firearm Safety Act are in effect. And, those Acts would still be in effect. For, contrary to Collins’ Press Release, restrictive State gun laws, such as the NY Safe Act, do not, ipso facto, become nugatory. A legal challenge to the constitutionality of New York’s Safe Act and Maryland’s Firearm Safety Act would have to be made. But, once made, it is still unclear whether the Safe Act and the Firearm Safety Act could not prevent transfers of "assault weapons" to individuals, not under disability, within the State, on the ground that regulation of "assault weapons" was being conducted intrastate, thereby not affecting interstate commerce.The question, from the standpoint of those challenging restrictive gun legislation existent in States such as New York, Maryland, California, Hawaii, and others, then becomes whether so-called “assault weapons” that some States wish to ban and, at present, have banned outright, can be sold as “protected” firearms under federal law, once they are in a State, such as New York. If so, that means, then, that States could not legally proscribe the transfer, ownership, and possession of those weapons, try as they might. The issue raised by the Second Amendment Guarantee Act is analogous to the matter pertaining to machine guns, submachine guns, and selective fire weapons, as federal law completely preempts the field concerning those weapons, which means that States have absolutely no legal power to enact laws involving the regulation, licensing, and disposition of those kinds of weapons in their States. Federal law completely preempts the field in matters involving the licensing, regulation, and disposition of machine guns. Language in Section 922 (Unlawful Acts) of Title 18 of the U.S. Code makes clear the intent of Congress to preempt the field, in its entirety, in matters pertaining to the transfer and ownership and possession of machine guns. Paragraph “o” of Section 922 of Title 18 says,“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.(2)  This subsection does not apply with respect to—(A)  a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or(B)  any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986].”Curiously, the expressions, ‘firearm,’ ‘rifle,’ ‘shotgun,’ and ‘machine gun,’ are not defined in Section 922 of Chapter 4 (Firearms) of Title 18 of the U.S. Code, where a person might expect to find them, but in Section 5845 of the Internal Revenue Service Code of the U.S. Code, 26 USCS § 5845. In 26 USCS § 5845(b), “The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”Keep in mind that Congressman Collins’ bill modifies Section 927 of Title 18 of the U.S. Code only, which deals with federal preemption of State law regulation of firearms,  generally, but the bill modifies nothing in Section 922 of Title 18, where one would expect to find an assertion of those particular firearms and firearms’ components that federal law is preempting States from regulating and there is no modification of Section 5845 of Title 26 (Internal Revenue Code) where firearm terminology is specifically defined. And, it is in Section 922 of Title 18 of the U.S. Code that we see federal preemption of regulation of machine guns; and it is in that same Section of Title 18 that, in 1994, Congress expressly banned ownership and possession of “assault weapons,” nationally—as part of antigun efforts that orchestrated enactment of the “Violent Crime Control and Law Enforcement Act of 1994.” A national ban on the transfer of and ownership of so-called “assault weapons,” along with a ban on LCMs, was set forth in federal law, subsumed in Section 922 of Title 18 of the U.S. Code. But inclusion of an “assault weapons” provision of Section 922 of Title 18 of the U.S. Code, which added a paragraph “v” which made it “unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon,” and inclusion of a ban on large capacity magazines, set forth in paragraph “w” of Section 922 of Title 18 of the U.S. Code, which made it “unlawful for a person to transfer or possess a large capacity ammunition feeding device,” both expired in September of 2003. Those provisions of Section 922 of Title 18 of the U.S. Code were never reauthorized, despite subsequent and numerous efforts by antigun politicians to do so.Since the impetus for the Second Amendment Guarantee Act was predicated, obviously and reasonably, on Congressman Collins' laudable desire to negate the impact of the NY Safe Act on the federal level, through the federal preemption—since Albany appears either unwilling or incapable of repealing the NY Safe Act on the State level itself—we can infer that the Second Amendment Guarantee Act was designed principally to preclude States, such as New York, from banning substantial numbers of semiautomatic firearms that’s State antigun legislators, with great fanfare, cast into the category of “assault weapons.”Congressman Collins, a staunch proponent of the Second Amendment, clearly seeks, through enactment of his bill, to provide Americans the converse—the flipside—of efforts to curb exercise of the right of the people to keep and bear arms. The Second Amendment Guarantee Act, as some would argue, proscribes States from regulating all categories of rifle and shotgun, thereby curbing, with one fell swoop, attempts by any State Legislature to impose specific restrictions on the ownership and possession of one large category of firearms, those subsumed under the nomenclature “assault weapons,” and curbing, as well, attempts by any State Legislature to impose size restrictions on ammunition magazines.But, does Congressman Collins’ bill, that modifies Section 927 of Title 18 of the U.S. Code, make federal preemption of regulation of assault weapons and other firearms’ components absolutely clear?Once again, as presently enacted Section 927 says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” But, and this is an important, but, is such language enough to negate restrictive State firearms’ legislation such as the NY Safe Act? We don’t think so—thus, the failings of the bill, in its current form. For, what do the words, ‘more restrictive with respect to such a rifle or shotgun,’ mean, here?The reader must understand that federal law preemption of firearms, Sections 921, et. seq., of Title 18 of the U.S. Code, is directed essentially to a specific class of firearms, namely machine guns. As made clear in paragraph "o" of Section 922 of Title 18 of the U.S. Code, Federal law preempts the field as to those kinds of firearms only, and the language of the law makes federal preemption in matters involving the regulation of machine guns patently clear. Congressman Collins’ bill is silent on the subject of so-called “assault weapons”—which some believe Congressman Collins’ bill, if enacted, would adequately address, and which it must address if it were to do what it purports to do: preclude States from prohibiting the transfer and possession of firearms that New York’s Safe Act and Maryland’s Firearm Safety Act prohibit, expressly, and prohibit outright--"assault weapons."Had Congressman Collins’ bill been more explicit and precise, we believe that language should appear in Section 922 of Title 18 of the U.S. Code that would work in tandem with the language appearing in Section 927 of Title 18 of the U.S. Code. And, in Section 5845 of Title 26, we would like to see language that clearly and specifically defines the expression 'semiautomatic weapons.' And, in Section 922 of Title 18, we would like to see language that sets forth the lawful transfer of all semiautomatic weapons to individuals, not under disability. The federal preemption Statute, namely, Section 927 of Title 18, as modified in the Second Amendment Guarantee Act would then make federal preemption of the entire field of semiautomatic firearms abundantly and categorically clear. Ideally, language modifying Section 5845 of Title 26, and modifying Sections 922 and 927 of Title 18 of the U.S. Code would establish federal preemption of the entire field of firearms but--and this next point is critical--only to the extent that such modifications serve to enhance the citizen’s right to keep and bear arms under the Second Amendment. We have no desire to see federal preemption leading to mass registration of firearms and draconian licensing measures on the federal level that we already see much too often on the State level.Ideally, language in the Congressman’s bill would have set forth, in Section 922 of Title 18 of the U.S. Code explicit protection of all commercial transactions, among all the people, who are not under disability (as categories of disability are set forth with particularity in paragraph “g” of Section 922 of Title 18), involving all firearms—rifles, shotguns and pistols, whatever the configuration or mode of operation of those rifles, shotguns, and pistols; and, further, Collins’ bill should have included language doing away with BATFE licensing of such firearms as well, which, in the case of machine guns, involves a lengthy, time-consuming, expensive and mentally exhaustive process that does nothing to enshrine the Second Amendment right of the people to keep and bear arms, as exercise of that fundamental right is unduly hampered by a multitude of administrative obstacles. Lastly, we would like to see firearms’ licensing at both the State and Federal levels ended. As a parenthetical note, we point out that Congressman Collins’ bill is altogether silent on the matter of handguns which means that, under his bill, handguns would not be subject to federal preemption. States would still be able to impose draconian restrictions on the American citizenry in matters involving handguns. But, why should Americans suffer the indignity of exhaustive, extensive, and expensive firearms’ regulatory hurdles at all?One doesn’t need a license to freely exercise one’s right of free speech—at least at the moment—although leftwing groups—most notoriously, the so-called “ANTIFA,” an anarchist/communist, domestic terrorist group (as much as any other terrorist group that this Country formally recognizes), is doing its best to constrain the right of free expression in this Country. Why must one secure a license to exercise a fundamental natural right of self-defense, as firearms are the best means available to secure one's safety and well-being when threatened and access to firearms, for those not under disability (as set forth in paragraph "g" of Section 922 of Title 18 of the U.S. Code), is guaranteed under the Second Amendment!Congressman Collins’ modification of Section 927 of Title 18 of the U.S. Code, alone, does not, we believe, adequately establish federal preemption of firearms’ regulation because the purpose of Section 927 is simply designed to preclude conflict between State and Federal firearms laws. That is the Section’s only purpose. Its purpose is not to define the kinds of firearms that fall under the auspices of federal preemption—which is addressed, and is meant to be addressed in Section 5845 of Title 26 of the U.S. Code (referred to more specifically as the Internal Revenue Code of the U.S. Code) and does not set forth the manner in which federal preemption of firearms is specifically addressed, as is the case with machine guns, as set forth in paragraph "o" of Section 922 of Title 18 of the U.S. Code. We also note that the Congressman’s bill, as drafted, uses the permissive ‘may,’ rather than the obligatory ‘shall’ suggesting, then, that States might still regulate firearms, transecting, then, federal preemption, rather than being totally eclipsed by it. Furthermore, as drafted, Congressman Collins’ bill does not adequately establish the kinds of firearms that he intends federal law to preempt. The draft language of the bill simply sets forth that State law “may not” enact a law “that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law.” But, federal law, Sections 921 et. seq., direct attention to machine guns. Federal law does not address so-called “assault weapons”—semiautomatic weapons and, in New York, revolving cylinder shotguns (which are also defined as 'assault weapons'). Consider: had federal law still imposed federal licensing requirements on “assault weapons,” as it once had, in 1994, then New York’s SAFE Act and Maryland’s Firearm Safety Act, regulating such weapons, likely would have been struck down as unlawful under Section 927 because Federal law had, at that time, in effect, at least, preempted the field as to the regulation of assault weapons and large capacity magazines. What this means is that such restrictive State gun laws, regulating or proscribing ownership and possession of “assault weapons,” at that time, would either have been redundant, if otherwise consistent with federal law, or unlawful, if inconsistent with federal law.

CONCLUSION

The bottom line: In its present form, Congressman Collins’ Second Amendment Guarantee Act (“SAGA”), is a good start toward giving the Second Amendment full effect, as the framers of our Bill of Rights intended. And the Congressman is to be commended for his effort. But the bill, as drafted, leaves, we feel, too much uncertainty, in its present form, to be effective in defeating restrictive, draconian State gun measures like the New York’s Safe Act and Maryland’s Firearm Safety Act, contrary to the opinions of some. More work on the bill is needed. But, such work would, we feel, certainly be a worthwhile endeavor._________________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.