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.

1/9/16 1/9/16

OBAMA: JUMPING THE GUN!

Obama's Executive Action Not Only Unlawfully Expands Federal Law, But Operates To Convert Private Sellers Of Guns Into Gun Dealers

President Barack Obama claims that his executive action, using the mechanism of executive orders to expand gun background checks, falls within his lawful authority. But does it? For all his pontificating at the CNN Town Hall Meeting, televised on Thursday, primetime, that one remark, stated and reiterated during the Town Hall Meeting, is deserving of close consideration and dissection because, if Obama is wrong, then we can dispense with any further discussion of the purported merits of his antigun agenda.We begin with one incontrovertible fact. The very use of executive orders is fraught with peril because the President is essentially making law, not executing law. Article I, Section 1 of the U.S. Constitution makes clear that all legislative functions rest with Congress. The making of law does not rest with the President. The President’s duty is not to make law but to execute the laws that Congress makes.In accordance with Article II, Section 3 of the U.S. Constitution the President, “shall take Care that the Laws be faithfully executed.” This means that the Chief Executive has no authority to tell Congress what Congress must do. But that is precisely what the Chief Executive, Obama, does when he issues an executive decree. He is in fact saying to Congress: “you haven’t done what I want you to do, so I will take action myself.” Well, Congress doesn’t work for the President of the United States. Congress works for the American People. If Congress doesn’t legislate in the manner that the President wishes, or if Congress fails to legislate at all in an area that the President wants, that failure to legislate is not lawful grounds for the President to do so. But, that is precisely what the President is doing here.One of the four key features of the antigun executive orders President Barack Obama plans to issue in the coming days or weeks pertains to expansive gun background checks. President Obama has set forth his intentions in his “Fact Sheet” what he intends to do. Just a few of the significant ways in which Obama is taking aim at Congress and at the Second Amendment involves gun sales. Through his executive orders he intends to:“Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is ‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles: A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is ‘engaged in the business.’ For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.There are criminal penalties for failing to comply with these requirements. A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.”Is Obama saying that anyone who sells a firearm is ipso facto a ‘dealer of firearms’ and, therefore, according to Obama, 'in the business of selling firearms?' It would seem so. For, Obama has not clarified what it means to be in the business of selling firearms but, rather, has muddied the waters. Both in the above Fact Sheet and at the Town Hall meeting, Obama fails to clarify what it means to be a “gun dealer” and what it means for a person to be “in the business of selling firearms.” And, this is clearly intentional. Obama sees anyone, who sells or transfers a gun, is a “gun dealer” – that is to say, “a person who is in the business of selling firearms.” But, are these expressions truly nebulous? Not at all!Contrary to what Obama would have the American public believe, the phrases, ‘dealer in firearms,’ and, ‘in the business of selling firearms,’ are not subject to myriad definitions, dependent upon the personal whim of the President. They are legal terms of art, specifically defined in law by Congress. They are not subject to tweaking by the President.Under 18 U.S.C. § 921(a)(11), “The term ‘dealer’ means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term ‘licensed dealer’ means any dealer who is licensed under the provisions of this chapter [18 USCS §§ 921 et seq].”Case law further clarifies the meaning of ‘dealer in firearms’ and ‘in the business of selling firearms.’ In the annotated notes of the U.S. Code, there are several cases that clarify the meaning of these important expressions. See, e.g. United States vs. Fifty two Firearms, 362 F. Supp. 2d (MD Fla. 2005). A “person is ‘engaged in the business of selling firearms’ at wholesale or retail’ under 18 USCS § 921(a)(21)(C) if that person devotes time, attention, and labor to dealing in firearms as regular course of trade or business with principal objective of livelihood and profit through repetitive purchase and resale of firearms, but such person does not include person who makes occasional sales, exchanges, or purchases of firearms for enhancement of personal collection or for hobby, or who sells all or part of that person's personal collection of firearms.” And, in United States vs. Masters (CA4 SC 1980), the fourth Circuit Court of Appeals, said, “For defendant to be ‘dealer’ within meaning of 18 USCS § 921, there must be willingness on defendant's part to deal, profit motive and greater degree of activity than occasional sales by hobbyist; defendant's primary business need not be dealing in firearms nor need he necessarily make profit from such dealings; showing that defendant had guns on hand or was ready and able to procure them and sell them to such persons as might accept them is sufficient to establish defendant as ‘dealer’.”Obama wishes to make anyone who sells a firearm into a “dealer of firearms.” In so doing, he would make it a crime for a person, even the occasional "hobbyist," to lawfully sell or, for that matter, even to give away a firearm to another person, if the transferee does not have an "FFL." And, in so doing, Obama wishes to do away with the very possibility of a "private sale" or, for that matter, even a "private transfer" of a firearm that does not amount to a sale or trade in and of firearms. He cannot lawfully do this because that amounts to an impermissible expansion of federal law.Now, Obama claims that his executive actions, directed to firearms, fall within existing federal law and that he is only proposing regulations to effectuate existing federal law and not creating new law. But, that is absolutely false because, in his executive actions, he is expanding the very concept of what it means to be a person who is “in the business of selling firearms.” When Obama attempts to transform anyone who sells or transfers a firearm into a person who is "in the business of selling firearms," he is attempting to make the transferee of a firearm, who is merely a “hobbyist,” into a criminal who is impermissibly selling or transferring a firearm, absent a federal license, in violation of 18 USCS Section 1922(a)(1) and 18 USCS Section 924(a). In effect Obama is attempting, unlawfully, to turn the occasional hobbyist into a "criminal arms dealer,” namely, someone who is, in fact, in the business of selling firearms, but is doing so, as a criminal, selling to other criminals, in clear contravention to federal law.For the federal government to prove that a person was operating unlawfully as a dealer in firearms – essentially, a criminal arms dealer – “the federal government must prove the status of the defendant as a ‘dealer in firearms.' In order to satisfy this burden the Government need not prove that the defendant's primary business was dealing in firearms or that he necessarily made a profit from such dealing; ‘it must (however) show a willingness (on the defendant's part) to deal, a profit motive, and a greater degree of activity than occasional sales by a hobbyist.’ United States v. Huffman, (4th Cir. 1975) 518 F.2d 80, 81, cert. denied, 423 U.S. 864, 96 S. Ct. 123, 46 L. Ed. 2d 92; United States v. Tarr, (1st Cir. 1978) 589 F.2d 55, 59."Thus, under federal statute and federal case law, in order for the government to prove that the person, who is selling a firearm to another person is doing so unlawfully, it is not enough for the government to prove that the seller of the firearm(s) is attempting to make a profit from the sale of a firearm or firearms. The government must also prove that the seller is not making an occasional sale of a firearm “as a hobbyist.” In other words, the federal government must prove, under existing law, that the person who is making a sale of a firearm or firearms is not a “criminal arms dealer” – a criminal who is selling firearms to make a profit.Obama is unlawfully expanding the notion of a “criminal arms dealer” to a law-abiding citizen, who is really only a “hobbyist,” under existing federal law. Such an attempt by Obama amounts to an impermissible expansion of federal law, not a theoretical permissible executive action, that amounts merely to regulation within existing federal law. When Obama expands federal law, he is entering into the purview of Congress, in contravention to the U.S. Constitution and in contravention of the Separation of Powers Doctrine because he is legislating – that is to say – he is making new law. He is not merely effectuating the intentions of Congress through the promulgation of rules within the framework of existing law.Obama begs the very question at issue by asserting that anyone who transfers firearms to another is, ipso facto, a “gun dealer” and “in the business of selling firearms” under federal law and is doing so illegally if that person does not have a federal firearm's license (FFL). Why does Obama want even private sellers of firearms -- "hobbyists" -- to obtain a federal firearm's license? He wants private sellers of firearms to obtain a federal firearm's license because, licensed dealers in firearms are required to perform a criminal background check under existing federal law, pursuant to the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922. A person who is not “in the business of selling firearm,” is under no such legal mandate to conduct an national instant criminal background check. In fact, a “hobbyist” cannot even access that system precisely because that person doesn’t have an FFL!So, what is Obama doing? Just this: he is placing the “hobbyist” in an impossible position if that “hobbyist” wishes to sell, trade, gift to, or otherwise, in some manner, transfer his firearm to another person. Obama is saying to that person: “we are assuming that you are a gun dealer and, if you are a gun dealer, you must undertake a criminal background check on the transferee. But, in order to be able to have access to FBI NICS files, you must first obtain an FFL. If you do not have an FFL, you better get one, if you can. If you can’t obtain an FFL, do not attempt, under any circumstances to transfer a firearm to another because my Administration will assume that you are an unlawful arms dealer, and I will see to it that the Justice Department prosecutes you to the fullest extent of the law.”Do you understand what more Obama is attempting to do through his unlawful executive actions? He is using his Office to enact new gun laws. In effect he is precluding, under threat of federal criminal indictment, the transfer of any firearm by one private law-abiding gun owner to another private law-abiding gun owner. Obama is not attempting to close a so-called “gun loophole.” He is in effect precluding every individual from transferring firearms, regardless of venue. This amounts to the unlawful regulation of commerce by the Executive Branch to stifle legitimate trade in firearms between two law-abiding individuals who happen to be “hobbyists.” Moreover, Obama’s unlawful executive actions negatively impact the absolute and exclusive interest that a person has in his or her own private property.If Obama admits to this but argues that his executive directives are necessary to prevent a private person, who is not a gun dealer, from transferring a gun in interstate commerce, his executive directive is redundant because, under, 18 USCS § 922(a)(1)(A), “it shall be unlawful for any person except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” Thus, if I, for example, as a "hobbyist," who is not, then, in the business of selling firearms, wish to sell a gun over the internet, and I am not a licensed dealer in firearms, I cannot lawfully do so in any event. I may, however, transfer a firearm to another through the mediation of a licensed dealer who will then be required to perform a necessary background check on the transferee. Thus, further regulation of firearms' sales on or over the internet aren't necessary. Such sales are already regulated!What about sales of guns at gun shows? Well, gun shows, too, do not present a problem. Most sellers of firearms at gun shows are licensed dealers in firearms and, so, must, under present federal law, perform a criminal background check on anyone whom the dealer is transferring the gun to. Now, if I am not a licensed dealer in firearms, and I, as a law-abiding American and gun owner, wish, as a private person -- a hobbyist, not a licensed dealer in firearms -- to sell a firearm to another person, at a gun show, I can make a transfer of a firearm to another, without performing a background check, but, that does not mean that I am permitted to sell a firearm to a person who is not permitted to possess a firearm. Under 18 USCS 922(d), it is unlawful for anyone – whether a licensed dealer in firearms or a private individual – to sell to individuals who are not permitted to own or possess a firearm. These include convicted felons, fugitives from justice, an individual who has been adjudicated a mental defective or who has been committed to a mental institution or who is an illegal alien. So, then, if I, as a private individual and law-abiding American citizen and gun owner and, as defined in law, a “hobbyist,” not a “licensed dealer in firearms,” offered a firearm for sale or trade, to a person, whom I did not know, and that person was a convicted felon who cannot lawfully own or possess a firearm, I have committed a crime in taking part in that sale, and I can and ought to be prosecuted. So, I, as a law-abiding citizen, have to be damn careful whom it is that I am transferring that firearm to.Now, will criminals sell firearms to other criminals? Of course they will. And they will do so in venues other than at gun shows which are likely to be carefully monitored by the State police. Obama’s executive orders, though, clearly are not directed to precluding firearms’ transactions among criminals. They are directed to further restricting gun transactions among law-abiding Americans. Obama’s goal, is -- as is the penultimate goal of all antigun groups -- just this: restricting the number and kinds of guns that a law-abiding citizen may own; and restricting the extent to which an individual may exercise control over his or her own property. What these executive actions of Obama won’t do – and, in fact are not designed to do – is curb criminal sales of firearms. They are specifically designed to curb what has, prior to Obama’s executive actions, amounted to the lawful transfer of firearms between and among law-abiding Americans, who do not fall, under the federal legal definition of ‘dealer in firearms,’ and 'in the business of selling firearms.'Obama intends to extend the scope of federal law beyond that which Congress has authorized. He cannot do so legally. Moreover, there is no need for further federal law. There are no loopholes. So, there is nothing that requires closing.Obama fails to appreciate and respect the fact that our federal statutes and federal case law are sufficiently broad to encapsulate all firearms’ transfers in every conceivable venue. Criminal transfers of firearms would be effective if existing federal law was enforced. They are not. But, that is not the fault of Congress. It is the fault of the Chief Executive. Obama, who fails to enforce federal law.Obama also fails to appreciate the sanctity of the Separation of Powers Doctrine upon which a Free Republic is able to survive and thrive. The very structure of the federal government as set forth in the Constitution establishes that no one Branch may subsume the duties of the other two within it.Obama’s executive actions are demonstrative of his disrespect for Congress, for the Constitution, and for the Separation of Powers Doctrine. Nothing he can assert or suggest, predicated on his personal notion of morality, and personal distaste for firearms ownership and firearms possession among law-abiding Americans can condone and justify his actions. But, then, Obama is not interested in the rule of law. He has a personal agenda: the very dismantling of the Bill of Rights, using, as singular pretext, his stated concern to curb firearms’ violence.Congress has, in the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922, as cited supra, made it unlawful for a licensed importer, manufacturer, or dealer, to sell, deliver, or transfer a handgun to a person who is not licensed under 18 U.S.C. § 923 absent the appropriate background information on the individual as set forth in Statute. 18 U.S.C. § 923(a) says, in pertinent part, "No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Attorney General shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business." Other federal law, cited supra, precludes anyone, whether a licensed dealer in firearms or not, to lawfully transfer a firearm to a person who is not permitted under federal law to own and possess firearm.Obama’s executive actions are unnecessary if he believes there are loopholes in the law – for there aren’t any. And, they are otherwise inscrutable. Obama is unlawfully attempting to preclude firearms’ transfers among law-abiding Americans and gun owners who are not licensed dealers in firearms and who would not wish to obtain a federal firearm's license and, more to the point, could not obtain a federal firearm’s license had they wish to do so precisely because they are not in the business of selling firearms.Obama's executive directives are a scarcely disguised attempt to hide his an intent to control the distribution of one's private property.Again, what President Obama is doing, surreptitiously, insidiously, and unlawfully, through his executive directives, is destroying the very concept of a “private sale” of a firearm, and he does this by unlawfully transforming, through Presidential edit, every individual, who wishes to sell a firearm, into a person who is in the business of selling firearms and who must therefore obtain a federal license to sell firearms. Federal firearms’ licenses are expensive. Even to attempt to obtain one is a time-consuming process, administered through the BATF. It is difficult to acquire – impossible, really, for a person who simply owns one or two or a few firearms and who wishes to transfer them to another law-abiding American and who cannot legitimately make the case that he or she is anything other than a "hobbyist." Obama's executive directives are not necessary because they are not directed to curbing transfer of firearms among criminals. These executive directives are directed to revising what it means to be a person who is in the business of selling firearms and who is a licensed dealer in firearms. Obama's executive directives are inconsistent with current federal law; they impermissibly expand federal law; and, lastly, they are inconsistent with current BATF regulations, promulgated on what federal law actually says about who is a dealer in firearms and not on what the President would like the definition of ‘dealer in firearms’ to mean. Obama cannot lawfully prevent private sales of firearms; he cannot require a private seller, who is not in the business of selling firearms, to obtain a federal license – which is impossible for a private individual to obtain anyway; and he cannot require a private seller of a firearms to perform a federal background check. But, Obama doesn’t care. He doesn’t care about limitations on executive authority. He doesn’t care that he is placing law-abiding gun owners, who are not gun dealers, and who may wish to transfer a firearm to another law-abiding American, in a precarious, impossible position. He doesn’t care about any of this. He intends to press ahead with the antigun agenda: destruction of the fundamental right of the American people to keep and bear arms.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.