UNDER THE PRETEXT OF KEEPING THE RESIDENTS OF HER STATE SAFE, NEW YORK GOVERNOR KATHY HOCHUL DEFIES U.S. SUPREME COURT BRUEN RULINGS

MULTIPART SERIES ON POST-BRUEN CASE ANALYSIS

POST-BRUEN—WHAT IT ALL MEANS AND WHAT ITS IMPACT IS BOTH FOR THOSE WHO SUPPORT AND CHERISH THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO DO NOT; THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY THE EXERCISE OF THE RIGHT AND THOSE WHO SEEK TO PRESERVE AND STRENGTHEN THE RIGHT BOTH FOR THEMSELVES AND THEIR DESCENDANTS

PART TWENTY-FIVE

THE TYRANT EVER DISTRUSTS THE ARMED CITIZEN

New York Governor Kathy Hochul and the Democrat Party-controlled Legislature in Albany designed amendments to the State Handgun Law to avoid compliance with the U.S. Supreme Court’s rulings in Bruen and thus avoid the categorical dictates of the Second Amendment of the Bill of Rights. There is no question about this, no tenable away around this. To believe otherwise is a delusion.Hochul makes the case herself. There are numerous accounts detailing this: Press accounts and Press Releases abound. Consider one example: In August 2023, Hochul said this, as presented on the Governor's website:“‘In response to the Supreme Court's decision to strike down New York's century-old concealed carry law, we took swift and thoughtful action to keep New Yorkers safe,’ . . . . ‘I refuse to surrender my right as Governor to protect New Yorkers from gun violence or any other form of harm. In New York State, we will continue leading the way forward and implementing common sense gun safety legislation.’”In other words, Governor Kathy Hochul, in her role as Tyrant Nanny of New York, keeping her wayward children, residents of New York, and citizens of the United States, safe and sound from all those dangerous, nasty firearms, will ignore the fundamental, unalienable right of the people to keep and bear arms, etched in stone in the Second Amendment of the Nation’s Bill of Rights, and will defy the Article III authority of the U.S. Supreme Court.Hochul had unconscionably harsh words for the High Court, calling the Bruen decision “reckless and reprehensible.” See the article in NCPR.One thing motivates Governor Hochul’s actions and others like her who have, through the passing years, decades, and centuries, enacted laws to cut the Bill of Rights to ribbons:INCOMPARABLE LUST FOR POWER, INORDINATE WEALTH, AND SELF-AGGRANDIZEMENT—ALL AT THE EXPENSE OF THE COMMON MAN. IT HAS ALWAYS BEEN SO.The history of civilization illustrates an unfathomable and unquenchable desire of sociopathic/psychopathic individuals to wield control over their respective tribe, nation, or empire, or other political, social, economic, and juridical structure.These ill-begotten men desire to thrust their will, their reality, onto everyone else.The Articles of the Constitution and the Bill of Rights of this Nation—of this Nation alone—were drafted with the aim to at least forestall, if not, prevent the perpetuation of this theme from happening here: the urge to dominate and rule.Of course, the presence of power-hungry misfits in the world is nothing new.Some who have succeeded in wielding control over the life, well-being, and happiness of the populace create the illusion they exercise power by virtue of Divine Right. Through time that odd idea becomes embedded in the public psyche. The public comes to accept this and accepts, too, that the rule over others by Divine Right is in the natural order of things, that it has always been thus.Rule by Divine Right—the wielding of near absolute power over others—is sometimes disguised.In our Nation, a free Constitutional Republic, the sociopaths, and psychopaths who lust for power, wealth, for personal aggrandizement and who have the wherewithal, knack, and tenacity to bend the mechanisms of power to their will, to their liking, must resort to deceptive messaging to woo the public, to lull them into dull complacency to accept the messaging conveyed to them by the deceivers and fabricators to mislead them into thinking that curtailment of their God-Given Rights is for their own good. But the truth is other than what is conveyed to the public.The Nation’s Bill of Rights is a check on the power of Tyrants. These Rights, especially the first two Rights are the final fail-safe to keep would-be Tyrants in check.The First Amendment codifies, inter alia, the right of Free Speech, i.e., the Right to Dissent; the Right to Personal Autonomy; the Right of the Individual TO BE and to Remain Individual, against public pressure, at the behest of the Tyrant to compel compliance to his edicts. Those edicts demand uniformity of thought, of conduct, of action. The idea is to force submission of one’s will to the will of the State, the Greater Society, the “Hive,” the Tyrant.The Right of the people to keep and bear arms is the vehicle through which the Individual prevents the Tyrant from forcing submission. This was meant to be so. Americans, millions of individuals, discrete souls, retain sovereignty over the Tyrant by force of arms and thus prevent usurpation of their will to that of the Tyrant.The Tyrant knows this. Many in our Country do not. They are denied THE TRUTH. Each American should know the TRUTH:The preservation of the right of the people to keep and bear arms, a right to be exercised by the common man, serves as a counterweight to the usurpation of the sovereign power of the people over the power of the Tyrant. The Tyrant seeks to restrict and constrict this right as the Tyrant cannot continue to wield power and cannot accrue more power at the expense of the people so long as they are armed. Thus——The common man cannot be controlled, corralled, nor subjugated so long as he bears arms. That he does so constitutes a threat to the Tyrant. The Tyrant knows this even if the polity does not, and the Tyrant utilizes the organs of a corrupt Press to prevent the people from recognizing the slow disintegration of their basic, core Rights, bestowed on them by the Divine Creator, and not by Government.Corruption of  Government proceeds from corruption existent in the Tyrant himself. Corruption of Government and concomitant corruption of every facet of society and of our institutions are recognized in decay, in the destabilization of society, and in the demoralization and degradation of the common man who resides within it. The physical manifestation of destruction is mirrored in the corrupt soul of the Tyrant. On a macro level, one sees this in the immolation of a once great Nation, and of its institutions, culture, ethos, and people.On the micro level one sees this corruption in the immolation of major cities and in the degradation of the lives of the people who reside in them, run by a host of petty tyrants.The salient purpose of armed Self-Defense is to prevent the onset of Tyranny of Government. If you, the reader, don’t see this, take a look at the Second Treatise of Government by the English Philosopher, John Locke. Our Constitution is constructed from the well-reasoned political philosophical remarks of John Locke.Do you need further proof: Take a look, once again, at the U.S. Supreme Court cases District of Columbia vs. Heller and McDonald vs. City of Chicago.The Tyrant knows that the exercise of the right to armed self-defense must be constrained else he cannot wield and maintain power and control over the commonalty, but he doesn’t say this. The Tyrant makes a different argument, directed to denizens of a free Republic.The argument against the exercise of the right to armed self-defense in this Country is that the Second Amendment is archaic and that the proliferation of guns in this Country causes “Gun Violence.”More recently, consistent with absurd political dogma, the Tyrant claims that the roots of the Second Amendment are racist. And a seditious Press echoes those sentiments.But then, ask yourself: Where is this disorder, this violence manifested? Is it in the actions of tens of millions of average, rational, responsible, American citizens—the commonalty that happens to possess firearms?When was the last time you heard that the common rational, responsible gun owner committed a crime through the use of a firearm or through the use of any other implement? When was the last you heard of an average gun owner who went on a shooting spree? How many of those occur in our Country anyway? How might they be prevented? Has not an armed citizen, in the midst of a “mass shooting, often prevented many deaths because he was able to stop the killer? If more people were armed, would they not be able to secure their life and that of others?Where does this so-called “Gun Violence” emanate and predominate?Is not the escalation of  “Criminal Violence” in the Country and especially in the major urban areas, the deliberate result of Government policy that allows the criminal element and the occasional lunatic to run amok?Why should curtailment of the basic natural law right to armed self-defense proceed from Government’s failure, oft deliberate, TO CONSTRAIN THE LOWEST COMMON DENOMINATOR of society: the foul, drug-addled lunatic; the monstrous, murderous gang member; and the opportunistic criminal—all of whom are devoid of empathy for the innocent person.Why should curtailment of a basic natural law right to armed self-defense proceed from instituting strict control over the natural law right of THE HIGHEST COMMON DENOMINATOR: tens of millions of average Americans?And, if those tens of millions of average Americans were to surrender their firearms to the Tyrant, how might that prevent the criminal and lunatic from engaging in less mayhem? Might not that encourage more illicit behavior and leave the common man absolutely defenseless, dependent completely on the goodwill of the Tyrant to dispel threat?But isn’t that really the point of disarming the citizenry: to leave the common man, the sole sovereign over Government, defenseless, powerless against the Tyrant, lest the common man rises up against the usurper?The New York Handgun Law and related laws as codified in the Consolidated Laws of New York, illustrate the Tyrant’s irrationality, arrogance, and lust for power over the citizens of the Country, residents of New York. But in the Gun Law and in other laws peppered throughout the breadth and depth of the Laws of New York, one sees, if one but reflects on those laws, a raw fear exposed. The Tyrant fears the common man.New York’s Handgun Law, the Sullivan Act, was enacted in 1911. It was predicated on fear of the common man—at the time, those were construed as new Italian immigrants to New York.The Sullivan Act was grounded on a lie at the outset: based on the idea that Italians were by nature, criminals, and their conduct in public had to be forcibly restrained lest they commit untold crimes throughout the State. This meant keeping firearms out of the hands of Italians. The form of the argument may have seemed valid to many. The premises were false, laughably so.The idea of converting a fundamental, unalienable right into a privilege is mystifying and disconcerting.Did the New York Government issue handgun licenses to Italians, recent naturalized citizens, residing in New York? One must wonder. If the idea behind the Sullivan Act, seemingly content neutral on its face, was to keep Italians from exercising their right, as citizens, to keep and bear arms, the law makes perfect sense.Yet the Sullivan Act came to be, and it survived, and thrived.The Sullivan Act requires all individuals who seek to carry a handgun in public to first obtain a handgun license from the Government to lawfully exercise their natural law right to armed self-defense.So then, the New York Government insists on inserting itself between the natural law right to armed self-defense, as codified in the Second Amendment, and one's exercise of that right, free of Government interference.The Handgun Law expanded exponentially to include further restraints, to encompass many more groups of people—the common man en masse—and to make the acquisition of a handgun carry license more expensive, time-consuming, and frustrating. That was the point.Many New Yorkers conceded defeat. They threw in the towel. They gave up the effort to obtain a license. The Handgun Law worked THAT well.Through time, the Handgun Licensing Statute became more elaborate. It developed into a cumbersome Handgun Licensing Regime. The challenges were many. But none succeeded in toppling the unconstitutional construct. And, then came the Heller case.The U.S. Supreme Court had for years stood idly by while State Government Tyrants and the Tyrant Federal Government road roughshod over the absolute right of the people to armed self-defense.In the 21^st Century, some Justices on the High Court had had enough. It was clear that Two Branches of the Federal Government, the Executive and the Legislative, and many State Governments, including the District of Columbia, were not going to adhere to the strictures of the Bill of Rights, especially the dictates of the Second Amendment to the Constitution.Associate Justices Scalia, Thomas, and Alito set matters aright.With the indomitability of Associate Justice Antonin Scalia, and assisted by two able Associate Justices, Clarence Thomas, and Samuel Alito, and, having convinced or perhaps cajoled the Chief Justice, John Roberts, and Associate Justice Anthony Kennedy to climb on board, the Court agree to review a case where the District of Columbia had enacted a law banning, outright, civilian citizen possession of handguns for self-defense, in the District.Since the District of Columbia law was predicated on the notion that the right to keep and bear arms was a collective right, not adhering to the individual, an erroneous notion, the Court Majority held clearly, concisely, and categorically that the right of the people to keep and bear arms is an individual right—one unconnected with association with a militia. And, having enunciated the clear, plain meaning of the natural law right codified in the Second Amendment, the High Court struck down the D.C. law.The anti-Second Amendment States were appalled and argued that Heller applied only to the Federal Government. That led to another challenge, this time from Plaintiff gun owners in Illinois, who argued that the right of the people to keep and bear arms applies with equal force to the States. The U.S. Supreme Court agreed. Justice Samuel Alito, who authored the Majority Opinion said, the right of the people to keep and bear arms applies with equal efficacy to the States through the application of the Fourteenth Amendment.Further challenges to States that refused to adhere to the rulings of Heller and McDonald went unreviewed by the Court, until a good ten years after McDonald.The High Court agreed to hear r a challenge to New York’s Handgun Law in New York State Rifle & Pistol Association, et.al. vs. The City Of New York, 140 U.S. S. Ct. 1525 (2020)—the first major assault on the Sullivan Act to be heard by the High Court. In that case, Petitioner holders of valid restrictive handgun premise licenses sought to be able to transport their handguns to target ranges outside the City. The Rules of the City of New York forbade that.the narrow issue in the City of New York case dealt with the Second Amendment rights of holders of highly restrictive New York premise licenses. Yet, the case implicated broad Second Amendment questions impacting Heller and McDonald.Hochul’s predecessor, Andrew Cuomo, feared a decision on the merits of that case would open up a serious challenge to the core and mainstay of the State’s Sullivan Act, pertaining to the carrying of handguns in public.He could not, must not, allow a decision on the merits that would render the Sullivan Act vulnerable to further challenges that might eventually lead to the decimation of Handgun Licensing in New York.The Cuomo Administration weathered the storm by amending the State’s Gun Law. Those amendments required the City of New York to amend its own Gun Rules, pertaining to the transportation of handguns outside the home, by holders of New York City handgun premise licenses.The amendments satisfied Chief Justice John Roberts and Associate Justice  Brett Kavanaugh. Those two votes, together with the votes of the liberal wing of the Court, sufficed to avoid the substantive merits of the case from review.With changes made to both the State Handgun Law and to New York City’s Handgun Licensing Regulations, the High Court dismissed the case, ruling the Plaintiffs’ claims moot.Associate Justice Alito thought otherwise. In his dissent, he argued there was no legal justification for a finding of mootness. Justice Alito laid out his arguments comprehensively and convincingly.Justice Kavanaugh without addressing the mootness matter, mentioned, in a separate Concurring Opinion,“I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”Kavanaugh’s point came to fruition with Bruen, two years later, and in a major way, vexatious to the liberal wing of the Court, and likely so to the Chief Justice as well, and, no less so, the gravest fear of Governor Cuomo.But the conservative wing—now with Justice Amy Coney Barrett on the Bench—would no longer be constrained by foes of the Second Amendment who would erase the exercise of the right altogether if they had their way. Vindication of the Heller and McDonald rulings was at hand.The Hochul Government and Kathy Hochul, especially, weren’t pleased.If the City of New York case gave her predecessor, Governor Andrew Cuomo, a trifling headache, the Bruen case gave Hochul and Albany a full-on migraine.Bruen involved a challenge to the core of the State’s Handgun Law: the Constitutionality of predicating issuance of concealed handgun carry licenses on demonstration of “Proper Cause”/“Extraordinary Need.”Bruen struck down “Proper Cause.” And that required Hochul and the State Legislature in Albany to strike the phrase from the Handgun Law. There was no way around that.But Hochul and Albany had no intention of complying with a ruling that would tear the guts out of a handgun Law that existed for well over a century and that, through time, grew increasingly elaborate and more oppressive.So Governor Hochul and Albany brushed the rulings aside, concocting the Concealed Carry Improvement Act (CCIA) of 2022 that gives lip service to Bruen and is, at once, consistent with the State’s end goal to transform the State, eventually, into one massive “Gun Free Zone.” Likely Hochul and Albany were working on the CCIA once the oral argument had concluded on November 3, 2021, having anticipated the High Court intended to shred the core of the Sullivan Act.The Hochul Government was prepared. The High Court issued its decision on June 23, 2022. Ten days later the State Senate enacted the “CONCEALED HANDGUN CARRY IMPROVEMENT ACT” (CCIA). Hochul signed it into law on the same day, July 3, 2022.That word, ‘Improvement,’ as it appears in the title of the Act is incongruous, even incoherent. For what is it the Act improves? Certainly not the right of the American citizen, residing and/or working in New York, and the Act did not comply with the Bruen rulings.The CCIA was a cleverly, cunningly drawn evasion tactic that strengthened the Handgun Law, consistent with an age-old plan.This plan, this agenda, involved the methodical, evisceration of gun rights—a plan going back over a century ago. The Hochul Government did not design the CCIA to comply with the rulings, except on a superficial level. The Court did not like the words, “PROPER CAUSE,” so the Government would strike those words from the Sullivan Act.Since the Hochul Government still had to contend with the salient ruling that the right of the people to keep and bear arms for self-defense is not confined to one’s home but extends to the public arena, the State would slither around the ruling. That was the intent of the Hochul Government, and the CCIA well reflected that intention. They did that through the creation of a new construct: “SENSITIVE PLACE” restrictions, and through a bold reconfiguration of an old one, “GOOD MORAL CHARACTER.”Through the CCIA Hochul and her cohorts in Albany laid bare their objective: Erosion of the civilian citizen’s right to armed self-defense outside the home, notwithstanding the import of the Bruen decision: recognition of the right to armed self-defense outside the home, no less than inside it.The CCIA was to take effect on September 1, 2022. The Act's challengers wouldn’t wait for that to happen.The ink had not yet dried on the CCIA document Kathy Hochul signed when the Plaintiffs came forward to challenge the amendments to the Gun Law. There would be others—most of them in New York, but several across the Country as well, challenging similar Gun Laws, the language of which is contrary to the Bruen rulings.Several New York cases, including the main one, i.e., Antonyuk vs. Nigrelli, presently sit on review at the U.S. Court of Appeals for the Second Circuit.Fully briefed, the Court conducted oral hearings for each of them, on March 20, 2023. Expect final orders during the summer months.

“SENSITIVE PLACE” AND “GOOD MORAL CHARACTER”

As we stated supra, two provisions of the CCIA stand out as they serve as the basis of the State’s defiance of the Second Amendment and the Bruen rulings: “SENSITIVE PLACE” and “GOOD MORAL CHARACTER.”The “Sensitive Place” provision is new. There is no correlation with it in the prior version of the Law or in any previous version, hearkening back to the commencement of handgun licensing in 1911 with the enactment of the Sullivan Act. Much has been said about the “Sensitive Place” provision and challenges to the CCIA invariably point to it.The “Good Moral Character” requirement, on the other hand, is not new.Little is said about it in the prior version of the Handgun Law. And, apart from mentioning it in Bruen, the High Court had nothing to say about it.As applied to applications for restrictive handgun premise licenses—and a multi-tiered Handgun structure remains in the New York Gun Law—there is no change from the prior Law.However, as applied to applications for concealed handgun carry licenses, the State Legislature added substantial and significant provisions—a massive transformation from what had existed before.A major distinction between the two provisions, “Sensitive Place” and “Good Moral Character,” needs to be mentioned and discussed before we proceed to a comprehensive analysis of the latter provision.

THE NUANCES OF “SENSITIVE PLACE” RESTRICTIONS

“Sensitive Place” restrictions affect holders of State concealed handgun carry licenses only, not those holders of highly restrictive premise handgun licenses —a point seemingly trivial. It isn’t.A holder of a premise license cannot lawfully utilize a handgun for self-defense outside the home or place of business, notwithstanding instances of dire threats to life presenting themselves outside the home or one’s place of business.The lawful use of a handgun for self-defense begins and ends within the confines of the walls of the structure.As if to emphasize the point, the holder of a home or business license, who wishes to transport his handgun outside the home, lawfully, must keep the handgun in a handgun case, not in a holster on his person. Ammunition must be kept in the case as well and separate from the handgun itself.This means that, if the holder of a restricted premise license were confronted by a deadly threat while out in public, the handgun won’t be readily accessible. And that is the point. And that is concerning for two reasons.First, a handgun case is easily identifiable as such.If the licensee is in a subway, say, on the way to a New York City target range, a determined and highly aggressive thief can strongarm the case away from the owner.In that event, the owner must immediately notify the NYPD of the fact of the theft, and he will likely be required to surrender his premise handgun license during the investigation. If the police fail to recover the handgun, the owner will likely be denied issuance of a replacement license, which is a condition precedent to lawful receipt of a new handgun. And to add insult to injury, the owner will likely be blamed for the theft having occurred. The police report will indicate that the owner had lost possession of the case, suggesting that, if the owner had been deficient in protecting the property, and, perhaps, should haven’t taken the handgun outside the home or place of business in the first instance.Second, if the licensee were threatened with violence to self and were able to access the handgun and successfully avert a tragedy to self by incapacitating the aggressor by shooting him, the licensee would lose his license. There is no question about that.Worse, the licensee would be prosecuted for misuse of the handgun.Worst of all, the aggressor would likely be charged with criminal assault and wrongful possession of a handgun, for the premise license doesn’t lawfully allow the licensee to wield a handgun in public. As if to emphasize this point, Governor Hochul made patently clear that Bruen doesn’t authorize a person to carry a handgun in public for self-defense. In other words, New York remains a Handgun Licensing State Par Excellence among Anti-Second Amendment fanatics.Further, if the aggressor died of his wounds, the licensee would be indicted for manslaughter or murder. That outcome isn’t merely likely. It is certain and inevitable.Under New York Law self-defense may be a perfect defense to a charge of manslaughter or murder if one didn’t initiate the aggressive act, but “armed” self-defense isn’t if the person appealing to it happens to use a handgun in the absence of a valid State issued concealed handgun carry license.This is true even if the perpetrator himself is armed and threatens to kill the innocent person.The idea that an innocent person cannot defend him or herself but for use of a handgun and would suffer indictment for unlawful homicide notwithstanding, is ludicrous. But that is the nature of New York law.Isn’t that the tacit point of a fundamental right of the people to keep and bear arms? And isn’t that the central point of the Bruen rulings?Raw abhorrence of firearms precludes rational debate over the right to armed self-defense in the face of imminent violent assault against self.In fact, even if the licensee does hold a valid concealed handgun carry license, that may not protect him from a charge of manslaughter or murder. The best that can be said about this is that at least the licensee is alive when he would otherwise be dead. But the ramifications of armed self-defense reflect the sad truth about living and working in New York.The Hochul Government’s aversion toward firearms and civilian citizen gun ownership is so strong that the New York Government begrudges the issuance of handgun licenses at all.And it gets worse. Of late, even where a handgun isn’t employed in self-defense, any use of self-defense that results in harm or death to an assailant may still result in a felony indictment. Recall the recent incident involving a retired Marine whom Manhattan DA, Alvin Bragg, brought a charge of manslaughter against. See, e.g., the article in Reuters. Even as violent crime escalates around the Country, especially in the major cities run by Democrat-Party administrations, the right to self-defense, armed or not, is under assault.The irony of an increasingly dangerous society, a wary, tentative police force post-Floyd George, and the incessant Government attack on Americans who would logically wish to carry a handgun for self-defense—since it is the most effective means available to defend one’s life—is both a disheartening and disorienting fact of life for those living or working in New York and in similar jurisdictions across the Country. That is what they must contend with.As if reading the minds of New Yorkers, the Hochul Government issued a reminder (actually a warning) to all New York residents, on June 24, 2022, one day after the Bruen decision came out, that New Yorkers should take care not to carry a handgun in public without a valid concealed handgun carry license, that Bruen hasn’t changed anything.“Governor Kathy Hochul today issued a reminder to gun owners that the U.S. Supreme Court's Thursday decision to strike down New York's concealed carry law does not mean New York State's licensure processes and rules do not need to be followed. It does not automatically give current residential permit owners the ability to carry guns outside the home. Gun owners are required by law to follow current restrictions.” Hochul made these remarks on June 24, 2023, one day after the publication of the Bruen decision.Hochul would have known that most of the amendments to the Handgun Law were already drafted and coming down the pike, momentarily. That meant the nuances and peculiarities of multi-tier Gun licensing Statutes would remain.And that raises the question, post-Bruen: Why would a person seek to acquire a restricted New York handgun premise license in lieu of a concealed handgun carry license? After all, didn’t the elimination of the “Proper Cause”/“Extraordinary Need” requirement make the acquisition of a concealed handgun carry license easier? Not really.Sure, the Hochul Government struck “Proper Cause”/“Extraordinary Need” from the Sullivan Act. But she remains stubborn and undeterred.Hochul continues to place roadblocks in the path of those individuals who wish to exercise their natural law right to armed self-defense. A plethora of sensitive place restrictions on lawful carry and use of a handgun for self-defense now plague holders of concealed handgun carry licenses: both new applications and renewals.The inclusion of the “Sensitive Place” provision and the “Good Moral Character” requirement in the CCIA operate essentially as stand-ins for “Proper Cause.”If the Hochul Government must acknowledge the right to armed self-defense outside the home no less than inside it, then the New York Government will place a plethora of obstacles in the path of those whom the State issues licenses to carry.The holder of such a license now finds himself constrained in the act of lawful carrying of a handgun and, therefore, constrained from lawfully using a handgun for self-defense in places that heretofore had no such restrictions.New York State, and New York City, especially, has become a patchwork quilt of places where the carrying of a handgun for self-defense—and therefore the use of it for self-defense—is illegal, notwithstanding the issuance of a concealed handgun carry license.Pre-Bruen, the only place restrictions pertained to were school zones and Federal and State Government buildings. The licensee knew that and avoided carrying a handgun in those areas and buildings. Now, the holder of a valid concealed handgun carry license must play a child’s game of  “Hopscotch”—kept mentally off-balance not precisely aware whether he and his handgun and the concealed handgun license he carries, are situated in a prohibited “Sensitive Place.” Did he miss a marker? What if he has to walk through or drive through a designated “Sensitive Place” to arrive at his destination? Must he detour around the area?The concealed handgun carry licensee must also keep in mind that “Sensitive Locations” are subject to revision. New restricted areas may be listed, and he must keep assiduously abreast of all amendments to those“Sensitive Place” restrictions.So then, “full carry” UNRESTRICTED handgun licenses no longer exist in New York. Under the CCIA, such “full carry” licenses, are constrained by numerous rigidly enforced place restrictions—which the Government may add to at any time.New York UNRESTRICTED “FULL CARRY” CONCEALED HANDGUN LICENSES are for all intents and purposes now reduced to RESTRICTED “LIMITED CARRY” CONCEALED HANDGUN CARRY LICENSES, most notably, on Manhattan Island.

NUANCES OF THE “GOOD MORAL CHARACTER” REQUIREMENT

The “Good Moral Character” requirement operates differently from the State’s “Sensitive Place” provision.The idea behind amendments to “Good Moral Character” as applied to applications for New York concealed handgun carry licenses is to dissuade an applicant from going through the hurdles of obtaining one.That is a strong inducement for the applicant to forego attempting to acquire such a license, opting instead for a restrictive premise license. That is why the Hochul Government has maintained the confounding multi-tiered handgun licensing structure post-Bruen.While there would appear, at first glance, no rational reason for a person to opt for a HIGHLY RESTRICTED New York premise handgun license Post-Bruen, the Hochul Government there are more than enough hurdles in place, making the acquisition of a RESTRICTED concealed handgun carry license no assured proposition, and the detailed information the CCIA mandates might cause a conscientious person to wish to refrain from divulging substantial details of his private life to the Government. In that case, a person might wish to forego the intricate, confusing, and intrusive process to obtain a concealed carry license and accept, instead, a New York premise handgun license.

INDIVIDUALS PURSUING A NEW YORK CONCEALED HANDGUN CARRY LICENSE MUST BE WILLING TO WAIVE THEIR FUNDAMENTAL RIGHT OF PERSONAL AUTONOMY AND PRIVACY, ALLOWING THE NEW YORK GOVERNMENT TO INTRUDE MERCILESSLY INTO EVERY ASPECT OF THEIR LIFE

For the individual undeterred in his quest to acquire a concealed handgun carry license, he must willingly accept Government interference with his fundamental right to privacy and autonomy.Application of this bolstered “GOOD MORAL CHARACTER” provision has a chilling effect on the First Amendment Freedom of Speech clause and on tacit Freedom of Association, and on the Fourth Amendment right of a person to be free from unreasonable searches and seizures. An Applicant must now waive those rights if he wishes to pursue the acquisition of a concealed handgun carry license.“GOOD MORAL CHARACTER” also butts up against one’s right to due process and equal protection under the Fourteenth Amendment—the very reason the U.S. Supreme Court struck down the“PROPER CAUSE” requirement.As applied to applicants for either highly restricted or restrictive premise handgun licenses only, the 2023 version of New York’s Handgun Law does not change anything. The CCIA reads as the prior version of the Gun Law read:NY CLS Penal §400.00(1):“Eligibility. No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true. No license shall be issued or renewed except for an applicant (a) twenty-one years of age or older, provided, however, that where such applicant has been honorably discharged from the United States army, navy, marine corps, air force or coast guard, or the national guard of the state of New York, no such age restriction shall apply; (b) of good moral character, which, for the purposes of this article, shall mean having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others (c) who has not been convicted anywhere of a felony or a serious offense or who is not the subject of an outstanding warrant of arrest issued upon the alleged commission of a felony or serious offense; (d) who is not a fugitive from justice; (e) who is not an unlawful user of or addicted to any controlled substance as defined in section 21 U.S.C. 802; (f) who being an a noncitizen (i) is not illegally or unlawfully in the United States or (ii) has not been admitted to the United States under a nonimmigrant visa subject to the exception in 18 U.S.C. 922(y)(2); (g) who has not been discharged from the Armed Forces under dishonorable conditions; (h) who, having been a citizen of the United States, has not renounced his or her citizenship; (i) who has stated whether he or she has ever suffered any mental illness; (j) who has not been involuntarily committed to a facility under the jurisdiction of an office of the department of mental hygiene pursuant to article nine or fifteen of the mental hygiene law, article seven hundred thirty or section 330.20 of the criminal procedure law or substantially similar laws of any other state, section four hundred two or five hundred eight of the correction law, section 322.2 or 353.4 of the family court act, has not been civilly confined in a secure treatment facility pursuant to article ten of the mental hygiene law, or has not been the subject of a report made pursuant to section 9.46 of the mental hygiene law; (k) who has not had a license revoked or who is not under a suspension or ineligibility order issued pursuant to the provisions of section 530.14 of the criminal procedure law or section eight hundred forty-two-a of the family court act.”The above requirements apply to the issuance of all New York handgun licenses: the highly restrictive premise home or business license and the concealed handgun “full carry” license.Note that the requirements set forth in the aforesaid section of the Handgun Law mirror the requirements of Federal Law, 18 USCS § 922, but also, in some instances, as illustrated in the State law, go well beyond what counts as a disability under Federal law. But understand——

FEDERAL LAW DISQUALIFIERS FOR POSSESSING A FIREARM DO NOT INCLUDE A GOOD MORAL CHARACTER REQUIREMENT. NEW YORK LAW DOES.

The requirement is both inherently vague and markedly, nakedly subjective.How does a licensing officer determine an applicant has “the essential character, temperament, and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others”? If the individual falls into a Federal disability—for example, the individual has been involuntarily committed to a mental asylum, has a felony conviction, or having served in the military, has received a dishonorable discharge—the licensing officer will point to the disability and likely add the applicant lacks the necessary character to be trusted with possession of a handgun or with the possession of any firearm. But then, a claim of lack of proper character and temperament adds nothing to a notice of denial to issue a handgun license. THE REQUIREMENT IS REDUNDANT.But, if the licensing officer does not specify a disability in the notice of denial apart from the assertion that, in the licensing officer’s opinion, the applicant lacks proper character and temperament, then, in the absence of a factual basis for such a finding, other than mere recitation of subjective, personal opinion, a Court of competent jurisdiction would likely find the decision to be arbitrary and capricious.But an applicant would have to go through the lengthy, arduous, and costly process of filing a New York “ARTICLE 78” action, challenging the licensing officer’s decision, to obtain relief from a Notice of Denial to Issue a License.That has always been a problem with the use of a Character requirement in the Handgun Law. But, prior to the enactment of the CCIA, the requirement never posed a viable problem.The licensing officer wouldn’t point to the absence of proper character and temperament EXCEPT if the denial were grounded on an objective disability. Recitation of the disability would suffice to deny the issuance of a handgun license. But, of itself, recitation of lack of proper character would not suffice to support a notice of denial to issue a handgun license. Lack of Good Moral Character was, heretofore, in New York, neither a necessary nor sufficient condition to obtaining a license.The Licensing Officer might append his Notice of Denial with a finding that the applicant lacks proper temperament and character, but its inclusion would not add anything portentous to the Notice of Denial.An Article 78 judicial action challenging the Notice of Denial would address the license officer’s litany of disabilities—discrete and specific matters. For, it would be on the basis of the disabilities that character objectively comes into play. Still, one might make the case that severe mental illness, severe enough to require institutionalization is not of itself demonstrative of “BAD MORAL CHARACTER,” any more than a person having a serious heart condition, or cancer, should be considered to have “BAD MORAL CHARACTER” due to illness.Where a person has committed a serious crime due to mental illness (for example, a person is found not guilty by reason of insanity), a case may or not be made out that such a person has “BAD MORAL CHARACTER.” It is a gray area. But, in any event, the New York licensing officer would refuse to issue a handgun license to that person. The issue of “GOOD” or “BAD” MORAL CHARACTER is really irrelevant in that case.Moreover, by itself, the issue of “CHARACTER” counts for nothing. And yet, for those individuals now applying for a concealed handgun carry license, this elusive and illusive provision becomes a new highly ramped-up basis to deny issuance of a handgun license. It is even more subjective, and just as arbitrary, as New York’s old “Proper Cause” requirement.Like the multi-tier structure of handgun licensing, the inclusion of a character requirement in the Handgun Law has itself developed into a complex multi-tier structure.The requirement for those applying for a concealed handgun carry license, the “GOOD MORAL CHARACTER” requirement established for application for a highly restricted handgun carry license is now merely the first step in a two-step process to demonstrate to the satisfaction of the licensing authority, that the applicant has the proper character to be issued a concealed handgun carry license.Post-CCIA, NY CLS Penal §400.00(1)(o):“for a license issued under paragraph (f) of subdivision two of this section the applicant shall meet in person with the licensing officer for an interview and shall, in addition to any other information or forms required by the license application submit to the licensing officer the following information: (i) names and contact information for the applicant’s current spouse, or domestic partner, any other adults residing in the applicant’s home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant’s home; (ii) names and contact information of no less than four character references who can attest to the applicant’s good moral character and that such applicant has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others; (iii) certification of completion of the training required in subdivision nineteen of this section; (iv) a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicants character and conduct as required in subparagraph (ii) of this paragraph; and (v) such other information required by the licensing officer that is reasonably necessary and related to the review of the licensing application.”It isn’t clear whether only one, or two, or all five requirements listed above all fall into the sphere of “Good Moral Character” and we must wend our way through the thicket to get a handle on this.To begin, it is odd to require more than one standard of proper character in the State’s Handgun Law.Logically, if a person cannot be deemed to have sufficient good character to possess a handgun at all, what does it mean and why should it matter to require more of one’s character to carry a handgun in public?Surely, if a “Character” requirement is going to be posited at all, then it follows that a person either has the proper character and temperament to possess a handgun or does not. This is not to suggest that a person should be required to demonstrate special Character traits. Indeed a person can have bad character, but, unless he is a blatant threat to others, a licensing authority should not wield one’s Character as a sword against him.The problem here rests with the Government licensing of handguns. The multi-tier handgun scheme that New York has constructed around which the Government creates ridiculous requirements to justify, or rationalize, the need for such a tiered structure, only makes the entire notion of “CHARACTER” more ridiculous. But, to employ a “CHARACTER” provision in a licensing scheme at all is just “nuts.”Government creates handgun licensing schemes and then interjects requirements that beg the question of whether Government should be in the game of licensing exercise of a fundamental right at all.Sure, a person requires a license to practice law or to practice medicine, but, while a person does enjoy a basic (we would argue an unenumerated Ninth Amendment) right to make a living, and, in fact, has a duty to provide for himself and for his family, so as not to be a burden on himself and on society, a person does not have a Constitutional right to practice law or medicine.And the professions, not the Government, regulate whether one has the proper character to practice law or medicine, anyway. If a professional Board sitting on review of a person’s character does not believe a candidate has the proper character, the Board will not allow a person to sit for the Bar Exam or, in the case of the medical profession, to sit for the Medical Licensing Examinations. These exams are necessary conditions precedent to acquire a State License to practice law or medicine.But the inclusion of a “Good Moral Character” requirement as a condition precedent to obtaining a license to exercise the fundamental right to armed self-defense is bizarre, and, in practice, application of the requirement adds nothing substantive, definitive, or even rational to the process. Application of the requirement merely reflects the personal bias of the licensing authority.And there never was anything substantive about it. It is just a makeweight, and wholly subjective.The Federal grounds for disqualification are sufficient,* as they are, for the most part, objective and tend to preclude the insinuation of personal bias, conscious or not, into the process of adducing whether one can or cannot possess a firearm. The instant background check undertaken at a firearms dealer is enough.The mindset of the Hochul Government is crucial in analyzing and evaluating these new requirements in the CCIA.We will delve into this in the next article, beginning with whether New York makes use of this thing, in other State Statutes. It does. And we will take a look at how other States that have such a provision, utilize it, and lay out our arguments in support of the remarks made herein that there is no justification for employment of “GOOD MORAL CHARACTER” in New York’s Handgun Law.____________________________________*We must stress, consistent with prior statements made in previous articles, that our position is that, despite the seeming contradiction, the natural law right to armed self-defense is absolute.

But does this mean that all individuals should possess a firearm if they wish? The term ‘absolute,’ means ‘unqualified,’ and ‘without restriction.’ This logically entails the proposition that the natural law right to armed self-defense is an unqualified right of man, hence a right, without restriction.

But refer back to the word, ‘should,’ in the afore-referenced question, “Should all individuals possess a firearm if they wish? Further to the point, should there be some limitation on who possesses a firearm?

The word ‘should’ changes a proposition into a normative, moral statement that does not readily fall into the basic “true”/“false” paradigm. Our position is that pragmatic considerations require tough choices when it comes to who “should” “be allowed” to possess a firearm. That ultimately means some people, for pragmatic reasons, “should not” be permitted to possess guns.

Murderous psychopaths and psychotic maniacs fall into categories of individuals who should not possess firearms because their use of firearms is not limited to self-defense or for such benign purposes as hunting, target practice, or sport, such as skeet or trap-shooting, or Olympic events. And, recall the codification of the natural law right to armed self-defense (subsumed into “self-defense”/“self-preservation”) as the core predicate of the right, eliminating, then, use of firearms to commit murder or to threaten murder or other violence.

Federal Law also prohibits “illegal aliens” from possessing firearms. And that is right and proper. The United States is a Nation State, with physical geographical borders, comprised of citizens, whose allegiance, whether they accept it or not, is to the Nation—its Constitution, history, heritage, culture, ethos, and core ethical values.

By definition, an ‘illegal alien,’ is a person who intentionally defies our National geographical Integrity, our Constitutional integrity, and our Laws. His allegiance is not to our Country, nor to our Constitution. Therefore he, like a murderer, is a threat to our natural law right to self-defense, and therefore is prohibited from possessing a firearm, and, from a normative perspective, “ought” rightfully to be prohibited from possessing a firearm.

“Mental Defectives” are another category of individuals that are not in a position to be trusted with a gun as a very young child, as they pose a threat to others if they have access to a firearm. And as for those members of the armed forces who have been dishonorably discharged, they have brought dishonor on their Nation and on themselves and have demonstrated an inability to be trusted with a firearm, as, by definition, they pose a danger to the Nation, People, and Constitution.

But how far should these pragmatic bases to deny possession of firearms extend? The Government itself exists to preserve and protect the Constitution and provide for the common welfare of the citizens.

But Government is naturally inclined—given the power it wields—to subvert those ends, usurping the sovereignty of the American people.

The Biden Administration has disdainfully, unabashedly usurped the sovereignty of the American people and has deliberately, and maliciously failed to faithfully serve and protect the Nation, and has intentionally, malevolently, and spitefully, ignored enforcement of the Laws of the Land. And the Administration has gone further yet: coldly, callously, designing and implementing policy for the purpose of subverting and sabotaging the Laws of the Land.

It is not by accident this Administration has deliberately thwarted the citizenry's exercise of their Bill of Rights. The Administration has designed and implemented policy systematically designed to weaken the right of the people to keep and bear arms.

The Biden Administration is hell-bent determined to dismantle the institutions of our Country, to destroy our history, heritage, culture, and Judeo-Christian ethical values, fully embracing a Tyranny to thrust upon the Nation. And Democrat Party-controlled State Governments across the Country have taken the policy positions and messaging of the Biden Administration to heart: zealously following in the Administration’s footsteps, designing and implementing similar policies, all with the aim of destabilizing society, destroying the economy, demoralizing the people, and promoting all matter of vices against God, Country, and People.

It is but an understatement to assert that neither the Federal Government nor many State Governments are the best arbiter to decide how or whether the natural law right to armed self-defense is to be exercised.

As we see most clearly today, Government tends, through time, to institute more and more restrictions on who may “lawfully” possess firearms, and places ever more draconian restrictions on the types, kinds, and quantity of firearms and ammunition one may possess, and on the component parts and paraphernalia a person may “lawfully” keep.

The Arbalest Quarrel has discussed this notion of ‘Tyranny’ in some depth, in previous articles and we will have much more to say about it and will do so in future articles. We will also deal at length with the notion of ‘absoluteness’ of our natural law rights and lay out further how that concept can be seen to cohere with a seeming logical inconsistency of ‘limitation’ placed on absoluteness in the exercise of natural law rights, utilizing “pragmatic realism” and “normative principles” to secure the Bill of Rights for all time, notwithstanding the strong desire and goal of the Neo-Marxist Internationalists and Neoliberal Globalist Empire Builders that insist the U.S. Constitution's Bill of Rights is archaic, unworkable, and, therefore, must eventually be eliminated, as part of their major overhaul of this Nation’s  Constitution.

___________________________________Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

DOES THE SECOND AMENDMENT CODIFY NATURAL LAW, PREEXISTENT IN THE INDIVIDUAL, OR IS THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS A MAN-MADE CONSTRUCT?

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety

KOLBE VS. HOGAN

PART SEVEN

The Underpinnings Of The Second Amendment Right Of The People To Keep And Bear Arms

Against the backdrop of every major Second Amendment case rests a fundamental and profound philosophical question. The question is this: does the right of the people to keep and bear arms exist as a quality, feature, attribute, aspect, condition, or characteristic intrinsic to the individual, existing, then, within the individual, or is the right to be perceived as an endowment, bestowed on the individual by others, something, then, extrinsic to the individual—existing, if at all, outside the individual? If the right of the people to keep and bear arms is extrinsic to the individual, this means the right is a human invention. It is a construct, convention, or contrivance. It is a thing created by and then granted to, licensed to, or bestowed upon the individual by another entity, say the State, through Government. But, if it is a thing bestowed upon the individual by the State, then the right does not belong to the individual. The right belongs to the State. The State may, then, at its discretion, at its whim lawfully withdraw or rescind the right so bestowed upon the people. That means the right of the people to keep and bear arms is less a right than a privilege of the people to keep and bear arms—a privilege which the State may grant, or cede, or license to an individual, for a time, and, thereafter, at the State’s pleasure, rescind or withdraw. The individual has no legal recourse to contest the privilege rescinded or withdrawn except to the extent that law set forth in statute—also a creation of the State, through the State's government, yet another man-made construct—allows.If, however, the right of the people to keep and bear arms is an inherent quintessential quality, feature, attribute, characteristic, condition or aspect of each person, existing within an person qua an autonomous individual, this means, by logical implication, the right exists outside of and independently of the State. If so, the right of the people to keep and bear arms operates as an extraordinary constraint on the State’s power, through Government to regulate and control the exercise of the right. For the right is indefeasible, immutable, archetypal, preexistent in the soul of man, and therefore resting beyond space and time. In its purest application, the right of the people to keep and bear arms is absolute. The right cannot be constrained without also restraining and constraining the sanctity and inviolability of the individual soul. The right of the people to keep and bear arms--the operative clause of the Second Amendment--is not, then, a creation of man. The Second Amendment to the U.S. Constitution is simply a codification of, and an acknowledgment of the right preexisting in the individual. It is not a thing that can, lawfully, be defeated through legislation or really destroyed by the State, through government since it was never a thing enacted through legislation or granted or licensed to the individual by grace of the State through the State's Government. To suggest otherwise is mere pretense and artifice. The right of the people to keep and bear arms as a right, preexisting in the individual, is not a novel idea. The U.S. Supreme Court made the point in 1879, as Justice Antonin Scalia reminds those jurists who may have forgotten this critically important fact or who may simply have chosen to ignore it or belittle it. Justice Scalia says, "The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed. . . ." Columbia vs. Heller, 554 U.S. 570, 592; 128 S. Ct. 2783, 2797-2798; 171 L. Ed. 2d 637, 657-658 (2008). How a Court perceives the right of the people to keep and bear arms informs a Court's resolution of all Second Amendment cases that come before it. Does a Court perceive the right of the people to keep and bear arms as a primordial, preeminent right preexisting in the individual, consistent with the framers' beliefs when the framers codified the right within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as recognized by the U.S. Supreme Court as early as 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in the 2008 Heller case, or does a Court simply view the right of the people to keep and bear arms as a man-made construct or invention, no more so nor less so than any man-made statute, code, rule, regulation, or ordinance? If a Court chooses to deny, or chooses to ignore, or, if a Court  simply chooses, seemingly and  conveniently, to forget the import of the operative clause of the Second Amendment--the right of the people to keep and bear arms--as several United States District Courts and United States Circuit Court of Appeals are wont to do, as the United States Court of Appeals for the Fourth Circuit has done as seen in its disastrous Kolbe decision, the Second Amendment will lose its strength, its efficacy. The right, though, does not cease to exist. It cannot ever cease to exist because the right is deathless. The right exists in a person's very being. But, if a Nation fails to recognize and accede to the import of the right of the people to keep and bear arms, the right remains dormant, and a nation, any nation--but, in particular, our Nation--will loses its soul that would seek to deny to the individual his or her natural birthright. Tyranny will, then, inevitably, rear its ugly head, and if tyranny should arise, our Free Republic will surely fall, for the existence of a Free Republic is incompatible with the existence of autocracy even as government heads assert the continued existence of a republic in an attempt to assuage public consternation, public doubt, public enmity, and to quell rebellion--rebellion that would be impossible to effectuate anyway with the loss of a citizen army with the denial of one's natural right to keep and bear arms. Thus, the philosophical underpinnings of the sacred right embodied in the Second Amendment to the United States Constitution cannot be overstated. It is the hallmark of this Nation and of this Nation's regard for the autonomy, sanctity, and inviolability of the individual, as this is in accord with the framers' own core beliefs in codifying The right of the people to keep and bear arms within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as, subsequently recognized by the U.S. Supreme Court in 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in 2008, in the seminal Heller case. And it is the ultimate "fail-safe device" against tyranny. The attempt, any attempt by a Court to denigrate the right of the people to keep and bear arms is nothing less than an apostasy.Unfortunately, as we have seen, although Courts will acknowledge the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), as they must when faced with a Second Amendment issue, this acknowledgement does nothing, of itself, to restrain courts from often blatantly ignoring the rulings of that seminal case, and, in so doing, ignoring the jurisprudential principles that ought guide judicial conduct in the resolution of a case before it, and, more so, committing the cardinal sin of undercutting the sacred precepts of our Nation. The Heller case has cast the right of the people to keep and bear arms in stark relief. Lower Federal District Courts and higher Circuit Courts of Appeal can no longer hide their animus toward the Second Amendment by contending that the import of the Second Amendment has never been adequately resolved by the Courts or by academicians. The Heller case makes abundantly clear, in no uncertain terms, that the right of the people to keep and bear arms is a fundamental right and, more, a preexisting right, intrinsic to the individual, a right unconnected with one's service in a militia.The high Court has provided clear guidance for resolution of cases that involve government actions that attack the core of the right of the people to keep and bear arms. Lower federal courts that ignore the clear intent of and clear reasoning of the seminal Heller case, do so at their peril. For they can no longer hide behind obfuscating language if they choose to ignore the holdings of the case and the reasoning of the Court's majority in rendering those holdings. They can no longer claim that the meaning and purport of the right of the people to keep and bear arms is still in doubt. The Kolbe case ((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)) is the latest in a line of poorly decided and poorly reasoned--and extremely dangerous--cases cascading through the legal system from Courts that directly and routinely and unabashedly attack the core of the right of the people to keep and bear arms. Kolbe is a case that aptly illustrates a U.S. Circuit Court of Appeal’s caustic attitude toward Heller, and, by extension, aptly illustrates the Court's disregard for application of case precedent to the Second Amendment cases before it; the Court's disregard for the sanctity of the American citizen as an autonomous individual; and the Court's refutation of the importance of adherence to the core traditions, values, and belief system as reflected in the Constitution and in the Republican form of Government that our framers created and passed down to us.The Kolbe case aptly demonstrates that, once a Court disagrees with the philosophical underpinnings of the Second Amendment—that the right of the people to keep and bear arms exists within man, and not as a thing extrinsic to man—that Court will invariably rule for the State, against the individual. It will do so in clear contravention to and in clear defiance of case precedent, as set by the U.S. Supreme Court in Heller, and will do so in ostensible contemptuous disregard of our Nation’s historical traditions and in disregard of our Nation’s substantial jurisprudential history, manipulating law to derive a result consistent only with the Court's personal flawed philosophy, remarking, in its opinion, what, in the Court's view, the Second Amendment ought to say, rather than in adhering to what the Second Amendment does say, as clarified through the rulings and reasoning of the Heller majority.

THE BILL OF RIGHTS, AS A COMPONENT OF THE U.S. CONSTITUTION, STANDS PREEMINENT; FOR THE BILL OF RIGHTS, UNLIKE THE CONSTITUTION’S ARTICLES AND SUBSEQUENT AMENDMENTS, CODIFY NATURAL LAW, NOT MAN-MADE LAW.

The framers of our Constitution accepted, as axiomatic, that a critical component part of that Constitution —the normative rights and liberties, of the Bill of Rights—are, in a critical manner, wholly unlike the main body of the Constitution. For, although the structure of Government is man-made, the rights and liberties codified in the Bill of Rights, are not man-made. The rights and liberties, set forth in the Bill of Rights are not social or political constructs, conventions, contrivances, or mechanisms. The framers knew that any Governmental form they created could, even with the best checks and balances in place, can still devolve into tyranny. The framers understood that the greatest threat to the sanctity and inviolability of each person, each American citizen—is the threat that the Federal Government might one day devolve into autocracy, into totalitarianism, into tyranny. To guard against this possibility, to offset the insinuation of tyranny, lurking behind the corner of every government formed by man, the founders of our Nation and framers of our Constitution, established, as a critical component of our Nation’s Constitution, an indelible Bill of Rights.The Bill of Rights comprises a set of primary, primordial, fundamental, natural laws that Government must adhere to lest Government devolve into tyranny. These natural laws rest well beyond the power of the Federal Government, lawfully, to destroy. Preeminent among the natural laws that constrain the possibility of a despotic Government is the Second Amendment to the U.S. Constitution.The framers understood that an armed citizenry protects the entirety of the Bill of Rights and that an armed citizenry is the single best guardian against and check on a Federal Government run amok and that an armed citizenry is the ultimate bastion against tyranny. Some jurists, though, do not appreciate the threat posed to a free Republic, in the absence of an armed citizenry. They don’t accept this. They are philosophically predisposed to regard an armed citizenry with trepidation, with suspicion; as a potential threat against public order. So, they don't accept the necessity of an armed citizenry. They do not and will not accept the emphatic command to the State, to a State's Government, to the Court itself, as a component of the State, of the Government. They do not accept, will not accept the idea that the Second Amendment is to be revered, respected, preserved, strengthened, exalted, as the framers intended. They don't accept this. But, they must. The Heller holdings and the legal and logical reasoning of the Court's majority, as penned by the late Justice Scalia, fell upon those courts, that find the Second Amendment anachronistic, like a ton of bricks. They don't like the holdings and they do not agree with the Heller majority's reasoning. So, they slither around Heller, pretending to adhere to it rather than truly complying with it, rendering decisions, antithetical to Heller, and, therefore, antithetical to the import and purport of the Second Amendment.

WHY THE HELLER CASE IS TRULY CRITICAL TO U.S. SUPREME COURT JURISPRUDENCE

The Heller case is generally cited for its principal holding: that the right of the people to keep and bear arms is an individual right, exclusive of a person’s connection with a militia. But, in dicta, the Court's majority spoke, at several points, of the “natural right” of self-defense and resistance. To the framers of our Constitution, the right of the people to keep and bear arms is not a creation of government. The right exists intrinsic to man, as natural law, not man-made law. Justice Antonin Scalia refers to the right of the people to keep and bear arms as a natural right several times in the opinion he penned for the majority of the high Court, citing to the historical writings of the Second Amendment that he reports in the Heller case. Not surprisingly, the dissenting Justices for their part, notably Justices Stevens and Breyer, who penned penned two separate dissenting opinions, do not. The dissenting Justices do not even allude to the notion of a right of the right of the people to keep and bear arms in the context of natural law and natural rights.The dissenting Justices on the high Court do not accept the facticity of the rights and liberties of man as codified in the Bill of Rights, as natural rights. These Justices—and many other judges that fill the seats on the lower U.S. District Courts and that fill the seats on the higher U.S. Circuit Courts of Appeal—do not and will not accept as axiomatic that the Bill of Rights comprises a set of indefeasible rights and liberties.The liberal wing of the high Court and the liberal jurists of the lower Federal District and higher Federal Appellate Courts take as a jurisprudential principle, that the right of the people to keep and bear arms is no less a social, political, and legal construct than any other part of the law. For such jurists, the idea that the right of the people to keep and bear arms bespeaks natural law, outside one’s service in a militia, is not only false, it is patently ridiculous. Their opinions are infused with the notion that the Bill of Rights may be lawfully violated if utilitarian demands so dictate. None of the dissenting Justices in Heller would, though, make such a remark overtly and none have done so. But, since none of the dissenting Justices accept as axiomatic that the right of the people to keep and bear arms codifies a natural right, they fail to see how discordant their position is when they proclaim that such right of the people to keep and bear arms that exists is contingent only on one’s service in a militia. For, one might reasonably ask that, if a person's right to keep and bear arms is tenable only in the event one serves in a militia, then under what circumstance or set of circumstances might an individual ever vindicate the right so violated, if such right operates only in connection with one's service in a militia? And, if the right cannot be vindicated, is the right, then, not simply nugatory?Justice Stevens, in his dissenting opinion, joined by Justices, Souter, Ginsburg and Breyer, attempts, unsuccessfully, to skirt as de minimis the question whether the Second Amendment codifies an individual right to keep and bear arms as opposed to a collective right. In the first sentence of his dissenting opinion, Justice Stevens says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822.* How is the individual right to be vindicated legally--indeed, how is the individual right to be vindicated logically--if that "individual" right is subsumed under or in connection with one's service in a militia? Is that right not, then, a mere "collective" right? But, if the right of the people to keep and bear arms is a "collective" right, how is that collective right to be vindicated? Is a collective right of the people to keep and bear arms, a right in any legal or logical sense at all?Justice Stevens undermines the import of his own remark as he directs the entirety of his argument to the thesis that the right of the people to keep and bear arms is merely and solely tied to one’s service in a militia. The scope of the right is, apparently, the issue Stevens seemingly wrestles with in his dissenting opinion because he must realize the logical flaw inherent in it. Justice Stevens attempts to respond to Justice Scalia's logical argument that, on Justice Stevens' interpretation of the right codified in the Second Amendment, there is nothing in "the scope of the individual right" left to be protected. Justice Stevens cannot and does not adequately argue that there is something left of the individual right to be protected on his peculiar interpretation of the Second Amendment, because, once Justice Stevens accepts, as a premise, that the right of the people to keep and bear arms rests principally upon the person’s service in a militia, he cannot escape the implication of that premise, namely that there exists no individual right of the people to keep and bear arms left to be protected, as he has severed the right, which exists only in the operative clause of the Second Amendment, from the prefatory clause, and, in so doing, he attempts, unsatisfactorily and unjustifiably, and, indeed, incoherently, to insinuate the right into the prefatory clause. But, there is no legal or logical, or linguistic way in which he might reasonably do this. Thus, the right of the people to keep and bear arms cannot be protected, which is to say vindicated, in any manner, because the right is contained, according to Justice Stevens, in the prefatory, dependent clause of the Second Amendment. The prefatory clause, though, has, in its very language, no operative force. It talks of no right at all. So, there is nothing in the prefatory clause that can be vindicated. Justice Scalia laid bare the problems with Justice Stevens argument. Justice Stevens, for his part, had no adequate rejoinder. Justice Scalia, writing for the majority, pointed out that, "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed [citation omitted]. . . . Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.'" District of Columbia vs. Heller, 554 U.S. at 577; 128 S. Ct. at 2789; 171 L. Ed. 2d at 648, 649 (2008).** Moreover, if one assumes for purpose of argument that a right does exist or can be implied in the prefatory clause of the Second Amendment, that somehow carries over to the independent, operative clause, that still doesn't help to salvage Justice Stevens' argument. For, the State, through Government is, then, and, in fact, must be, the final arbiter not only of what firearms the individual may possess but whether the individual may possess any firearms at all, outside of that individual’s connection with a militia. But, if that were so, then, once it is posited that the Government has sole authority to regulate the kinds of firearms a person may possess in his or her individual capacity, or whether a person may possess any firearms at all, then, the right of the people to keep and bear arms, as a right exercised by the individual, is subject to the whim of Government. The right, then, is not a real right at all, as the "right" may very well be regulated out of existence. The right, then, is ephemeral. It simply falls away. This is the salient problem with Kolbe and those cases that, like Kolbe, accept, at least tacitly, the absolute power of Government to dictate the kinds of firearms that Americans may possess and, ultimately, whether Americans may possess any firearms at all.We continue with our exegesis of Kolbe in light of the Heller case in Part Eight of this series._________________________________________________________*Did Justice Stevens pilfer from a law review article having failed to acknowledge the source? Consider and compare the remarks in the first paragraph of Justice Stevens' dissenting opinion in Heller to the following statements that appeared in a law review article written nine years before the high Court decided Heller: "There are two relevant Second Amendment questions. The first question is whether the right belongs to the individual. Professor Yassky [David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment - A Response to Professor Kopel, 18 St. Louis U. Pub. L. Rev. 189, 190 (1999) (debating scope of individual's rights under Second Amendment)] believes the question to be confused because 'all constitutional rights - even those most obviously concerned with government structure rather than individual freedom - ultimately belong to individuals in the sense that individuals can sue to vindicate them.' The proper question assumes that the  Second Amendment recognizes some individual right but asks what the scope of the right is. This article argues that the scope of the individual right is limited to those circumstances in which the individual participates in a government militia." From, "The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate Over the Right to Bear Arms," 16 St. John's J.L. Comm. 41 (Winter 2002), by Robert Hardaway, Elizabeth Gormley, and Bryan Taylor. **Curiously, after Justice Stevens retired from serving on the United States Supreme Court, he attempted, apparently, as set forth in his book, published in April of 2014, titled, "Six Amendments: How and Why We Should Change the Constitution," to come to grips with if not to circumvent the problem, with his thesis as pointed out by Justice Scalia. Justice Stevens' contended, as set forth in his dissenting opinion in Heller, that a way exists through which the right of the people to keep and bear arms" may be vindicated. Justice Scalia explained that, under Justice Stevens approach, though, that, under Justice Stevens' thesis, there is no manner in which the individual right of the people to keep and bear arms can be vindicated, that, under Justice Stevens' thesis, the right is nugatory. Justice Scalia had proved that the right of the people to keep and bear arms cannot be vindicated through the prefatory clause, "A well-regulated militia being necessary to the security of a free State," because the right--on the plain meaning of the language of the Second Amendment--does not exist in the prefatory, dependent clause and cannot logically be transported into "the right of the people to keep and bear arms shall not be infringed" exists in the operative, independent clause only, for that is where the right is expressly stated.There is no logical, rational reason or basis for inserting the right of the people to keep and bear arms into the prefatory clause and tying the intrinsic right of the individual, inextricably, to that individual's connection with a militia. For, there is no mechanism for vindicating the right when the right is tied to one's connection with a militia. Thus, there is no right to be vindicated and the Second Amendment, as a codification of and assertion of a right, would be, must be nugatory. Apparently realizing this and not acceding to the idea that the right of the people to keep and bear arms is an individual right, preexisting in the individual, not connected with service in a militia--as these ideas are not philosophically acceptable to Justice Stevens--Justice Stevens suggests, in his book, that the Second Amendment should be rewritten as: "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in a militia shall not be infringed." Justice Stevens apparently sees this rendition of the Second Amendment--which, by the way,  does not comport with any such suggestion by any of the framers of our Constitution--as a tenable way to get around the late Justice Antonin Scalia's contention   that, on Justice John Paul Stevens interpretation of the right of the people to keep and bear arms, there is nothing left of the right to be vindicated. Justice Stevens apparently believes that, in his novel rendition of the Second Amendment, the right of the individual is, now, successfully limited but still vindicated, and the Second Amendment is not, then, nugatory as he has now tied the right of the people to keep and bear arms specifically, linguistically, indisputably, to a person's connection with a militia. The right is duly limited but expressly stated in the operative clause. But, there is still a problem, and it is a problem quite apart from the fact that Justice Steven's reworking of the Second Amendment fails to comport with any view of the import of the Second Amendment as set forth by any of the framers of the U.S. Constitution, and it is a problem that cannot be surmounted through the rewriting of the Second Amendment, which, is, by any account, an extremely drastic way to respond to the fatal flaw in his argument. For, even accepting, on logical grounds, that there is something to be made of Justice Stevens' redraft of the Second Amendment as a way to avoid the flaws in his position, as he has set forth that position in his dissenting opinion in Heller, the question arises how a group right, that is to say, a collective right, is to be vindicated. Justice Scalia had remarked on this point as well, in pointing to another flaw in Justice Stevens' position, that Justice Scalia referenced in the majority opinion he penned, in Heller. How, one might ask, might one petition the Courts for vindication of a right purportedly tied to one's service in a militia? Moreover, suppose the militia, "necessary to the security of a free State" though it be, as set forth in the prefatory clause, ceases to exist. Wherein is the right, that one may exercise, be vindicated if there is no right left to be exercised? What, really, is there left of the right? One may ask: was there ever truly a right that might be vindicated at all?  As Justice Scalia pointed out, the necessity for the armed citizen lay not in the existence of the militia but in the force of arms of the citizenry that the citizenry brought to the militia and that made a militia possible. Justice Scalia, writing for the majority said, ". . . the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution." District of Columbia vs. Heller, 554 U.S. at 599; 128 S. Ct. at 2801; 171 L. Ed. 2d at 662 (2008). It is the right of the people to keep and bear arms, that is to say, in the individual ownership of and possession of firearms, in and of itself, that is critical to the exercise of and vindication of the right, a right unconnected to service in a militia or in connection with any other man-made creation; and in that exercise of the right intrinsic to, immutable, indestructible, preexisting in each person, where each person is perceived as an autonomous individual, whose individuality must remain sacred and inviolate, would the security of a free State be preserved. An armed citizenry resides in what remains, today, of the true militia, namely, the unorganized militia, and that unorganized militia is not equivalent to or equated with, nor is it to be considered equivalent to or equated with the "organized militia," namely, the National Guard of each individual State that exists as a reserve military arm of and for the Federal Government, as dictated by Federal Statute.Better it would have been for Justice Stevens to accept that his thesis regarding the Second Amendment is wrong and that Justice Scalia is correct and that Justice Scalia was correct all along. But, Justice Stevens doesn't accept the plain meaning of the Second Amendment; he refuses to do so on a deep, visceral level. Justice Stevens absolutely refuses to accept the plain meaning of the Second Amendment as set forth in the Constitution, and in refusing to accept the plain meaning of the Second Amendment, Justice Stevens is taking exception with and contending with the deeply held beliefs of the framers of our Constitution. So, Justice Stevens is compelled to hold onto the legally deficient, logically unsound, and ethically dubious notion of an individual right of the people to keep and bear arms that happens to be tied to and exercised only by one's service in or connection with a militia.In point of fact, though, the "organized militia," as such no longer exists. It has been subsumed into and, more accurately, replaced by the "National Guard," which has become a reserve component of the federal Government, subject to federal control. This might not bother Justice  Stevens although it might be of concern to others. Justice Stevens seems to be more concerned with the logical coherency and consistency of his position, as well he should be, that requires that a right exercised by an individual must, in a logical sense, to be considered a true right at all be capable of vindication if violated. Justice Stevens seems less concerned over the practical application of the right that is to be vindicated, though, which, consistent with his thesis, is a contingent matter, after all, contingent on the existence of a militia. If there exists no militia, then, apparently, the failure of the condition precedent does not negatively impact the fact that a right may, at least, logically, if not empirically, that is to say, factually, be vindicated. In other words, the right to be exercised, albeit, one tied to the militia, under Justice Stevens' thesis, does always exist. For, Justice Stevens does, after all, in his redraft of the Second Amendment, retain the words, "shall not be infringed." So, if the militia exists, then the right may, Justice Stevens would argue, be vindicated. If the militia does not exist, the right, although it still exists, cannot be exercised and cannot be vindicated. The success or failure of a right to be vindicated is a function of the existence of the militia. But, then, what does it mean to say the right, supposedly, always exists? This is a tortuous attempt at legal and logical manipulation of concepts to give credence to an idea that Justice Stevens, doesn't even truly accept--that the right of the people to keep and bear arms {a right that shall not be infringed by anyone or any entity} if such right truly exists, beyond the power of the State to lawfully destroy, must be a right  preexistent, immutable, indestructible, and absolutely capable of exercise in all instances, for all time, beyond the possibility of any conceivable contingency that might serve to make the right impossible of exercise (as for example the nonexistence of a militia). Thus, merely tacking on this or that phrase to a proposition, in a dubious attempt to erode an indestructible right and in an attempt to overcome an insurmountable, logical flaw that exists in his argument, the retired Justice, John Paul Stevens cannot successfully sidestep the problem inherent in Justice Stevens' thesis that the late Justice Antonin Scalia had perceptively pointed to in Heller. Anyway, the proposed redraft of the Second Amendment, insufferable and ludicrous as that proposed redraft is, appears, then, to be, in part, at least, Justice Stevens belated answer to the late Justice Antonin Scalia's sharp attack on the weaknesses of Justice Stevens' argument as evinced in Justice Stevens' dissenting opinion in Heller.________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.