IT IS HIGH TIME THE HIGH COURT DEALT WITH GOVERNMENT HANDGUN LICENSING REGIMES HEAD-ON

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-FOUR

“MAY ISSUE” VERSUS “SHALL ISSUE” A HANDGUN LICENSE ISN’T OF SALIENT IMPORTANCE. GOVERNMENT HANDGUN LICENSING, PER SE, IS.

The U.S. Supreme Court struck down New York’s “May Issue” concealed handgun carry license “Proper Cause” requirement in New York on June 23, 2022, in the third landmark Second Amendment case, NYSRPA vs. Bruen. That much is known among both friends and foes of the Second Amendment alike. And the Democrat Party legislative machinery in Albany, at the behest of New York Governor Kathy Hochul, did strike “Proper Cause” from the State’s Handgun Law, the Sullivan Act.But a comprehensive set of amendments to the Law did nothing to weaken the import of the Act.Hochul and Albany simply rejiggered it, leading immediately, and unsurprisingly, to a new round of challenges.But what accounts for this brazenness of the New York Government? And why is it fair to say the recent set of Amendments to New York’s Handgun Law (the Sullivan Act) is no less in conflict with the right codified in the Second Amendment, after Bruen, than before the Bruen decision?As we argue, the Amendments to the Handgun Law, “The Concealed Carry Improvement Act” of 2022 (“CCIA”), negatively impact not only the Second and Fourteenth Amendments but the First and Fourth Amendments of the Bill of Rights as well.Moreover, for holders of valid New York concealed carry licenses prior to Bruen, the Amendments to the Handgun Law do not secure acquiring a renewal of their concealed handgun carry license any easier, but create new hurdles for those licensees, no less so than for new applications for concealed carry licenses.And, for those individuals who do acquire a valid New York concealed handgun carry license under the CCIA, its usefulness is jeopardized.Prior to Bruen, the State had established two tiers of concealed handgun carry licenses: Restricted and Unrestricted. That distinction no longer exists. The CCIA collapses the two tiers. Henceforth, all concealed handgun carry licenses are now, in effect, “Restricted.”What is going on here? How has the New York Government come about?One must dig deep into Bruen for an answer, and that analysis must extend to Heller and McDonald. For the three landmark Second Amendment cases operate in tandem.

THE NEW YORK GOVERNMENT HAS EXPLOITED WEAKNESSES IN THE BRUEN DECISION

The New York Government has exploited weaknesses in the rulings and reasoning of Bruen and in the parent Heller and McDonald cases.Consistent with our prior analyses, we continue to delve deeply into U.S. Gun Law.In this and subsequent articles, we unpack and decipher the language of the three seminal 21^st Century Second Amendment cases to gain an understanding of the weaknesses and flaws that have allowed State Government foes of the Second Amendment to flaunt the High Court rulings.Sometimes these Government schemes demonstrate adroitness and cunning. At other times the schemes show ineptitude, appearing crude and amateurish. No matter. Foes of the Second Amendment illustrate, through their actions, unmitigated Government contempt for theArticle III power of the Third Branch of Government, a marked disdain for the natural law right to armed self-defense, and outright hatred toward Americans who exhibit a marked intention to keep and bear arms, consistent with the right guaranteed to them by eternal, immutable Divine Law, albeit contrary to transitory, ever-changing international norms.  High Court rulings do not and cannot transform innate and open hostility toward the Second Amendment, harbored by and exhibited by the legacy Press; a plethora of native Anti-Second Amendment interest groups; the Biden Administration and its toady functionaries; Democrat Party-Controlled State Governments; International Marxist-Communist, and Neoliberal Globalist influences; the fixtures of the EU and UN; the Nation's Political liberals, Progressives, and Radicals among the polity; and international-sponsored NGOs.Reason doesn't factor into the equation. Those forces hostile to the very existence of the Second Amendment remain so. The hostility is attributed to and engendered by the agenda of the Globalist Billionaire Class the goal of which is to bring to fruition a neo-feudalistic corporatist Globalist economic, and financial empire, around which a one-world socio-political Government is to be constructed, through which the Hoi Polloi of the world, amorphous billions, are to be ruled with an iron fist, keeping them corralled and constrained.Constitutions of individual nation-states, especially those of the U.S. that embrace God-Given natural law, beyond the lawful authority of any Government to tamper with, are antithetical to The Globalist end-game. And, so, the decisions of the U.S. Supreme Court are deemed both dangerous and irrelevant.Yet, the salient job of the U.S. Supreme Court is to preserve the import and purport of the U.S. Constitution by interpreting the plain meaning of it as drafted, and, in so doing, constrain malevolent or opportunistic forces that would manipulate the Constitution to serve an agenda at odds with it, whose unstated goal, as has become increasingly apparent, amounts to the wholesale destruction of a free Republic and the Nation’s sovereign people. It need hardly be said, let alone argued, that decisions of the U.S. Supreme Court are not and ought not to be determined by popular opinion. Inferring the plain meaning of the Constitution, the decisions of the Court are not to be shunted aside due to the fervor of the moment. In any event, public opinion is fickle; easily manipulated. The public, much of it, is easily roused to anger. Now a mob, it is whipped into a frenetic, frenzied rage through the launching of industry-wide propaganda campaigns— elaborate psychological conditioning programs, blanketing the entire Nation. It is in this climate of induced fear and rage toward firearms and toward those of us who intend to exercise our fundamental, unalienable, immutable, eternal right to armed self-defense that the U.S. Supreme Court operates and must navigate in and through, never losing sight of one axiomatic principle enunciated by John Marshall, Chief Justice of the U.S. Supreme Court, over two centuries ago in the landmark case Marbury vs. Madison, 5 U.S. 137, 1 Cranch 137 (1803). All first-year law students come to know this case.

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

See also, the article, The Court and Constitutional Interpretation, on the High Court's website:

“When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: ‘We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’” This suggests the High Court should never be tentative, circuitous, or vague in its opinions, especially when dealing with the Bill of Rights.Alas, that normative commandment is less objective practice and more unattainable goal. The elusiveness of it is due more likely to stormy conditions in the Court itself, among the Justices, that require them,  at times, to pull their punches.

THE PROBLEM WITH BRUEN RESTS NOT WITH THE RULINGS BUT WITH A  LACK OF CLARITY DUE POSSIBLY TO THE MACHINATIONS OF THE CHIEF JUSTICE (?)

The problems attendant to Bruen rest not with the rulings themselves, but with abstruseness; a lack of clarity. The authors of Heller, McDonald, and Bruen, could have closed the loopholes. They didn’t.But the fault does not lie with the late, eminent Justice Antonin Scalia, author of the Heller Majority Opinion, nor with Justice Samuel Alito, author of the McDonald Majority Opinion, nor with Justice Clarence Thomas, author of the Bruen Majority Opinion.The fault, more likely than not, rests with Chief Justice Roberts. Conscious of the political headwinds, and desirous to establish a modicum of common ground between the two wings of the Court, he likely had demanded watered-down versions of the Majority Opinions.Were Justices Scalia, Alito, and Thomas given free rein, they would have denied to State Government actors and their compliant Courts, an escape route, however narrow, allowing these foes of the Second Amendment to concoct mechanisms to skirt the Heller, McDonald, and Bruen rulings and reasoning that supports those rulings.

A CONUNDRUM RESTS AT THE HEART OF BRUEN AND HELLER AND MCDONALD

On a few major findings, the three landmark cases were patently clear.Heller held firmly that the right of the people to keep and bear arms is an individual right, unconnected with service in a militia, and the Federal Government is prevented from disturbing that right. McDonald made clear the rulings and reasoning of Heller applied with equal force to the States. Bruen made clear the individual right to armed self-defense isn’t confined to one’s home but extends to the public domain.At each step, the three LandmarkSecond Amendment cases strengthened, in turn, an aspect of the plain meaning of the natural law right to armed self-defense, drawing upon and building upon and then clarifying a central plank of the predecessor case.The foes of these Landmark cases contested findings of law and fact. The arguments invariably began with a false premise: that the U.S. Supreme Court has impermissibly expanded the right embodied in the Second Amendment. The High Court did no such thing. It expanded nothing.The High Court simply laid out what exists in the language of the Second Amendment but that some State Governments fail to recognize or know but fail to acknowledge. And, in their actions, these Governments contort and distort, and inexorably weaken the clear, concise, and categorical meaning of the natural law right codified in the Second Amendment.The central thesis of the latest Landmark case, Bruen is this:

WHETHER AT HOME, OR IN THE PUBLIC SPHERE, A PERSON HAS A FUNDAMENTAL, UNALIENABLE RIGHT TO DEFEND ONE’S LIFE WITH THE FUNCTIONALLY BEST MEANS AVAILABLE, A FIREARM, A FACT TRUE CENTURIES AGO, AND NO LESS TRUE TODAY.

And, yet there exists a conundrum, a problem, a painful shard embedded in the heart of Bruen—a  carryover from Heller—that begs for resolution in a fourth Second Amendment case that likely is coming down the pike: Antonyuk vs. Nigrelli, another New York case.That case is the progeny of an earlier case, Antonyuk vs. Bruen—the first major challenge to the U.S. Supreme Court case, NYSRPA vs. Bruen.The U.S. District Court for the Northern District of New York, amenable to the allegations made attacking the legality and Constitutionality of New York’s Concealed Carry Improvement Act, dismissed the case without prejudice, tacitly, but unsubtly, encouraging the Plaintiff, Ivan Antonyuk to refile the case.New York Governor Hochul, apparently oblivious to the fact that the dismissal of Antonyuk vs. Bruen did not mean the Court found the CCIA Constitutional, pompously reported the District Court’s action as a win. She should have saved her breath. She would have looked less the fool.The Plaintiff, Ivan Antonyuk, promptly filed a new complaint, and five other holders of valid New York concealed handgun carry licenses joined him as Party Plaintiffs. During the litigation of the case, the Parties filed a Motion for Preliminary Injunction to stay enforcement of the CCIA, and the District Court granted the Motion.The Hochul Government appealed the Injunction to the U.S. Court of Appeals for the Second Circuit. The Appellate Court reversed the District Court’s granting of the stay, and the Plaintiffs filed an interlocutory appeal with the U.S. Supreme Court. In an unconventional request for a response from the Government to the Plaintiffs’ appeal, the Hochul Government filed its opposition to the lifting of the stay of enforcement of the CCIA case—eventually, recaptioned Antonyuk vs. Nigrelli—and the High Court, in deference to the Second Circuit, did lift the stay, permitting the Government to enforce the CCIA while the Second Circuit rules on the Preliminary Injunction.Having received what it wanted from the High Court and knowing or suspecting the core of the CCIA would likely be overturned on appeal of a final Order of the Second Circuit, the Hochul Government would have every reason to dawdle.The High Court, aware of this, cautioned the Government against this, in its Order, stating that that the Government must proceed apace with the case, and explicitly asserting that Plaintiffs can appeal to the High Court if the Government deliberately drags its feet.Yet, months later, the case, Antonyuk vs. Nigrelli, still sits at the U.S. Court of Appeals for the Second Circuit.

A TENSION EXISTS BETWEEN THE DICTATES OF THE SECOND AMENDMENT AND LANDMARK RULINGS OF THE U.S. SUPREME COURT ON THE ONE HAND, AND, ON THE OTHER HAND, THE INTENT OF THOSE STATE GOVERNMENTS, THAT ABHOR THE SECOND AMENDMENT, TO OPERATE IN DEFIANCE OF THE DICTATES OF THE SECOND AMENDMENT AND LANDMARK RULINGS OF THE U.S. SUPREME

State Governments—like New York and others—that abhor exercise of the right embodied in the Second Amendment—will continue to enact Statutes spurning the High Court’s rulings until the Court deals with this conundrum.The central premise of Bruen is that the right to armed self-defense, inherent in the language of the Second Amendment, is not bounded in space or time.A person need not, then, present a reason to carry a handgun for self-defense in public. Self-defense is reason enough, and that reason is presumed in a person’s application for a carry license.It was the presumption of “May Issue” jurisdictions that an applicant for a handgun carry license must show the need for a handgun carry license that the U.S. Supreme Court attacked head-on.Justice Thomas, writing for the Majority in Bruen, said this:  “New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are shall issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability. Meanwhile, only six States and the District of Columbia have ‘may issue’ licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the ‘proper cause’ standard. All of these ‘proper cause’ analogues have been upheld by the Courts of Appeals, save  for the District of Columbia’s, which has been permanently enjoined since 2017. Compare Gould v. Morgan, 907 F. 3d 659, 677 (CA1 2018); Kachalsky v. County of Westchester, 701 F. 3d 81, 101 (CA2 2012); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013); United States v. Masciandaro, 638 F. 3d 458, 460 (CA4 2011); Young v. Hawaii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn v. District of Columbia, 864 F. 3d 650, 668, 431 U.S. App. D.C. 62 (CADC 2017).” [Bruen, Majority Opinion]Justice Thomas says Appellate Courts have upheld “May Issue” in six which include New York and the District of Columbia. What Justice Thomas doesn’t say but suggests is that “May Issue” is henceforth unconstitutional in all those jurisdictions because those jurisdictions embrace a“Proper Cause” schema even if the precise phrase, ‘Proper Cause,’ isn’t used in those “May Issue” in the handgun laws of those jurisdictions.Moreover, insofar as the U.S. Circuit Court of Appeals in those jurisdictions have heretofore held “May Issue” Gun Laws Constitutional, the holdings of those Courts are henceforth overruled to the extent they conflict with Bruen. That means the reasoning in conjunction with and supporting those holdings is to be given no effect.A showing of “Extraordinary Need” is the mainstay of “Proper Cause”/“May Issue.” But, as to what had heretofore constituted this “Proper Cause”/“Extraordinary Need” was never defined in New York Statute. So, then, what is this thing, “Proper Cause?” How does New York define ‘Proper Cause’ since the Legislature never defined it?“No New York statute defines ‘proper cause.’ But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980). This ‘special need’ standard is demanding. For example, living or working in an area “‘noted for criminal activity’” does not suffice. In re Bernstein, 85 App. Div. 2d 574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York courts generally require evidence ‘of particular threats, attacks or other extraordinary danger to personal safety.’ In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002); see also In re Kaplan, 249 App. Div. 2d 199, 201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York City Police Department’s requirement of “‘extraordinary personal danger, documented by proof of recurrent threats to life or safety’” (quoting 38 N. Y. C. R. R. §5-03(b))).’”It was, then, left up to the various Licensing Authorities in New York to construct operational rules for “Proper Cause”/“Extraordinary Need.”The expression, ‘Proper Cause,’ means ‘Special Need.’ And the expression, ‘Special Need’ means that an applicant for a concealed carry license must establish a reason for carrying beyond simple ‘self-defense.’A demand that a prospective concealed carry licensee convince the licensing authority that his need arises from an “Extraordinary Need,” i.e., a need beyond that faced by most people is what New York and similar “May Issue” jurisdictions demand. And it is this the U.S. Supreme Court finds both incongruous and repugnant under both the Second and Fourteenth Amendments of the U.S. Constitution.Justice Thomas points out that “May Issue”/“Proper Cause”/“Extraordinary Need”—all allude to the fact that the Government licensing authority may exercise discretion in issuing a handgun license. This wasn’t a feature of New York’s Handgun Law Licensing Statute when the State Legislature enacted the Sullivan Act in 1911. “Magistrate” (i.e., Government Authority) discretion in issuing a carry license came about a couple of years later.“In 1911, New York’s ‘Sullivan Law’ expanded the State’s criminal prohibition to the possession of all handguns—concealed or otherwise—without a government-issued license. See 1911 N. Y. Laws ch. 195, §1, p. 443. New York later amended the Sullivan Law to clarify the licensing standard: Magistrates could ‘issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon’ only if that person proved “good moral character” and ‘proper cause.’ 1913 N. Y. Laws ch. 608, §1, p. 1629.” [Bruen, Majority Opinion] Through the passing years and decades, New York added more requirements, further constraining the exercise of the right of the people to keep and bear arms.The history of New York’s Sullivan Act illustrates a consistent and systematic course of action by foes of the Second Amendment to frustrate efforts by those individuals who desire to exercise their fundamental right to armed self-defense.  Eventually, as the trend toward ever more elaborate, convoluted, and oppressive amendments continued, the Handgun Law came to embrace several categories or tiers of handgun licensing and became increasingly difficult to decipher.New York’s Courts stamped their imprimatur on these Government actions, opining disingenuously, ludicrously that New York Law did indeed recognize a right of the people to keep and bear arms, but that exercise of that right required the acquisition of a license, and applicants had no right to demand a license of the Government. The Courts stated the obvious—that issuance of a license is a privilege, not a right, and one the New York Government reserved, to itself, the right to bestow or not, and to rescind once bestowed, as a matter of right.Americans who resided or worked in New York had had enough and challenged the legality and constitutionality of the State’s handgun law.  The process of obtaining a New York concealed handgun carry license is especially difficult demonstrating the Government’s callousness toward gun owners and its utter disdain for those civilian citizens who deign to exercise their natural law right to armed self-defense.“A license applicant who wants to possess a firearm at home (or in his place of business) must convince a ‘licensing officer’—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that ‘no good cause exists for the denial of the license.’ §§400.00(1)(a)-(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to ‘have and carry’ a concealed ‘pistol or revolver.’ §400.00(2)(f ). To secure that license, the applicant must prove that ‘proper cause exists’ to issue it. Ibid. If an applicant cannot make that showing, he can receive only a ‘restricted’ license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. See, e.g., In re O’Brien, 87 N. Y. 2d 436, 438-439, 663 N. E. 2d 316, 316-317, 639 N.Y.S.2d 1004 (1996); Babernitz v. Police Dept. of City of New York, 65 App. Div. 2d 320, 324, 411 N. Y. S. 2d 309, 311 (1978); In re O’Connor, 154 Misc. 2d 694, 696-698, 585 N. Y. S. 2d 1000, 1003 (Westchester Cty. 1992).” [Bruen Majority Opinion]Thus, the U.S. Supreme Court ruled that demonstration of “extraordinary need” for carrying a handgun in public for self-defense, heretofore inextricably tied to “Proper Cause”/“May Issue”,  is unconstitutional. The Court articulated this point clearly and categorically. But, having taken this action, the Court stopped. It did not take the next logical step. It did not deal with the issue of “May Issue” Handgun Licensing itself.And that is why Bruen leaves us with a disheartening quandary; a diluted, seemingly equivocal opinion, as also occurred in Heller. The Hochul Government recognized this as a weakness in Bruen, and her Government ran with it.This must have frustrated Justice Clarence Thomas, author of the Bruen Majority Opinion, along with Justice Samuel Alito, author of the McDonald Majority Opinion.No doubt the late Associate Justice Antonin Scalia, author of the Majority Opinion in the parent Heller case would register his own frustration and indignation at repeated attempts by some on the High Court, to inhibit the citizenry’s exercise of the natural law right to armed self-defense.The basic problem with the Bruen decision, and the source of the quandary, goes to the High Court’s handling of “May Issue” licensing.The Justices must have known that lukewarm handling of “May Issue” would provide the Hochul Government with a loophole—just enough, perhaps—to allow the Government to slither around the fundamental right of the people to armed self-defense at home and in the public arena.Drilling down the problem with“May Issue,” we proceed to the legitimacy of handgun licensing itself.

IS STATE GOVERNMENT “MAY ISSUE” HANDGUN LICENSING CONSTITUTIONAL?

Is the practice of “May Issue” handgun licensing constitutional? This is the source of our inquiry here. It is a question that the U.S. Supreme Court must at some point contend with. We hope it does so, and in short order, in the next major Second Amendment case to come before it.In Bruen, the Court Majority doesn’t deal head-on with the matter of the legitimacy, legality, and Constitutionality of Government “May Issue” Licensing of firearms generally and with handguns particularly. The Court touches upon it, tentatively acknowledging the problem, noting that very few States, including New York, and the District of Columbia, are “May Issue” jurisdictions, but does not pursue it. This, to our mind, is a major failing of the case.That failing, a major and pervasive one, and one longstanding, going back fifteen years to Heller, has provided jurisdictions like New York, and others, with a path through which they not only are able to salvage draconian handgun licensing schemes but to strengthen them—all this despite the prominence and impact of Heller and Bruen that would seem at first glance to have closed all loopholes, demanding compliance.It is curious that obtaining a New York “restricted” handgun license for, say, hunting or target practice, is a relatively easy endeavor, at least in comparison to the hoops a person has had to jump through to acquire a concealed handgun “FULL CARRY” License. New York may be construed as a “SHALL ISSUE” jurisdiction apropos of restricted home or business premise licenses. In other words, so long as the applicant does not fall under a disability established in Federal Law, 18 USCS § 922, (and the State embellishes those, making it even more difficult to overcome the disability provisions set forth in the Penal Code), the State licensing authority would issue a restricted handgun premise license. Generally, if the applicant did not meet the State's stringent “PROPER CAUSE”/“EXTRAORDINARY” (“SPECIAL”) NEED” requirement, sufficient to acquire a restricted or unrestricted concealed handgun carry license, the licensing authority would inquire of the applicant if he would accept a highly restrictive handgun premise license in its stead. That would, at least, avoid the need for the applicant to go through substantial time, effort, and expense necessary to reapply for a premise handgun license. And THAT would be the extent of the New York Government's concession to a person who wishes to exercise his right to armed self-defense under the Second Amendment. The only requirement for one to obtain a limited use premise license is that a person isn’t under a disability which would entail automatic denial from legally possessing a firearm at all.Acceding to issue HIGHLY RESTRICTED, LIMITED USE HANDGUN LICENSES amounts to a booby prize. To this day, notwithstanding the Bruen rulings, New York remains a “MAY ISSUE” jurisdiction.The New York State Legislature has made the acquisition of a concealed carry license an extraordinarily difficult endeavor traditionally, and so it remains today. New York disincentivizes the acquisition of concealed handgun carry licenses post-Bruen, as it has done pre-Bruen. The process is lengthy, costly, and time-consuming. That doesn’t bother Associate Justice Steven Breyer. He feels acquisition of a handgun carry license should remain difficult, the reason articulated predicated on the prevalence of violent crime in society.He reminds the target audience of a connection between handguns and violent crimes that he and other foes of the Second Amendment invariably draw:“Consider, for one thing, that different types of firearms may pose different risks and serve different purposes. The Court has previously observed that handguns, the type of firearm at issue here, ‘are the most popular weapon chosen by Americans for self-defense in the home.’ District of Columbia v. Heller, 554 U. S. 570, 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). But handguns are also the most popular weapon chosen by perpetrators of violent crimes. In 2018, 64.4% of firearm homicides and 91.8% of nonfatal firearm assaults were committed with a handgun. Dept. of Justice, Bureau of Justice Statistics, G. Kena & J. Truman, Trends and Patterns in Firearm Violence, 1993-2018, pp. 5-6 (Apr. 2022).” [Breyer, Dissenting Opinion in Bruen]What is interesting about this argument—one routinely made by foes of the notion of civilian citizen armed self-defense—is the implication derived therefrom.The implication is that the lowest common denominator of society—inhabited by the common criminal opportunist, the psychopathic killer, and the psychotic maniac (all of whom Democrat-Party-Controlled Governments allow to run amok), and at times, here and there, the atypical, careless, irresponsible, but otherwise law-abiding, rational adult—should dictate firearms’ policy negatively impacting exercise of the natural law right to armed self-defense for the rest of us: tens of millions of the common people, i.e., responsible, sane, trustworthy, law-abiding Americans. Who are these Americans? Roughly a third of the Country, over 80 million Americans. See, e.g., American Gun Facts.There are proven ways to deal with the lowest common denominator of society. Get them off the streets and into prisons or institutions for the criminally insane. But those Americans who consider themselves “Liberals” or “Progressives” and who are, as a group, antagonistic toward the very notion of a natural law right to armed self-defense, focus their energies on curbing or curtailing the right to armed self-defense of the vast commonalty—using a sledgehammer rather than a surgical knife to deal with violent crime posed by a small but virulent element of society.This suggests that intractable violent crime is but a pretext for the accomplishment of a goal: disarming the citizen. One wonders: Is it a pervasive violent crime that motivates Anti-Second Amendment sentiment among those who seek to eliminate the exercise of the right to armed self-defense, or is it something else, something much different: the threat that the armed citizenry poses to an Authoritarian Government? Is it not the latter, rather than the former that motivates and drives the Government to disarm the American public en masse?Justice Scalia, writing for the majority in Heller, discussed tyranny but there is nothing in that discussion to cement as a rationale for the “individual right to keep and bear arms” holding—what Justice Scalia points out to be the key point of the Second Amendment for the framers of the Constitution—that the Second Amendment is the final “fail-safe” to prevent or, at least, to forestall the onset of tyranny. Rather, the right of the people to keep and bear arms is tied to a notion of armed self-defense against the criminal element. Thus, the Heller rulings operate as a counterweight to the dissenting opinions' arguments that guns should be removed from civilian citizens precisely because they are often utilized by criminals and lunatics, suggesting erroneously, that the way to prevent Gun Violence from thousands of psychopathic criminals and psychotic maniacs, whom the political and progressive elements in society are loathed to deal effectively with, is to remove guns from the hands of everyone else: approximately a third of the Nation, one hundred million law-abiding, rational, responsible, American citizens. But then, it is this armed citizenry—upward of one hundred million Americans—whom the Anti-Second Amendment contingent of the Country and one-world-government proponents are really targeting.Tyranny is what the world empire builders have sought for decades and what they intend to accomplish, for that is what a world government means. And the armed citizenry—that which is nonexistent in CCP China and Russia, the EU and in the British Commonwealth Nations, and in almost every other nation or political grouping of nations on Earth, save for Switzerland and Israel—is the one definitive preventive medicine to Tyranny. Our Constitution’s framers knew that. They fought a war over it. And, but for the force of arms, this Nation today would still, more likely than not, still be under British rule, a part of the British Commonwealth.  With the truth of this as a given, all talk of “Gun Violence” is to be perceived as a deflection—a “dodge,” irrelevant. True “Criminal Violence”—if there is any import to the expression equates with “Tyranny.” Armed self-defense against predatory animal and man is understood and need not be stated.The Second Amendment directs one’s attention to the threat to a free people as a whole—a dire threat, posed by Predatory Government. Justice Scalia undoubtedly recognized it. And, in Heller, he surmised that future scholars of U.S. case law would see in the Heller decision that the case is a doctrinal essay on the rationale for the Second Amendment, and, thus, for the central holding—the individual right of the people to keep and bear arms, qua the armed citizenry, as necessary for the security of a Free State: Tyranny Thwarted only through the continued existence of the armed American citizenry.It is that idea that is both repugnant to and frightening too and therefore intolerable to those forces both within this Country and outside it, who understand, in these three cases, Heller, McDonald, and Bruen, a direct assault on their goals and initiatives. Those goals and initiatives are directed at eliminating, not safeguarding, preserving, and strengthening the Bill of Rights—especially the natural law right to armed self-defense.This natural law right to armed self-defense is tied to the right of free speech, i.e., the right of the individual TO BE individual: the natural law right of the individual to dissent from Government dictates and mob rule and societal pressures that compel uniformity in thought and conduct; that demand obedience; demand the surrender of one’s will to the will of the “Greater Society,” to the will of “The Hive.”  Those forces that crush entire nations and populations into submission view the U.S. Supreme Court’s 21^st Century Second Amendment rulings in Heller, McDonald, and now Bruen, as an unacceptable and intolerable assault on what they wish to achieve: a Neoliberal Globalist empire. These forces perceive the Nation’s Bill of Rights as anachronistic, antagonistic, and antithetical to that goal. Individual thought and an armed citizenry cannot coexist in such a reality. Thus, the goals and policy initiatives in vogue today are employed to drive a wedge between the American people and their history and heritage, culture, and ethos. The aims of these forces are directed at eliminating, not preserving and strengthening, the Bill of Rights—especially the natural law right to dissent and to armed self-defense. The New York Government has long resided in the camp of these Globalist, world empire builders.The New York Government under Governor Kathy Hochul—and before her, Andrew Cuomo—is virulently opposed to civilian citizens carrying handguns in the public domain for personal defense.The New York Government, with the assistance of Chief Justice John Roberts and Associate Justice Brett Kavanaugh, weathered the previous challenge to the Sullivan Act and New York City handgun rules, New York State Rifle & Pistol Association, et.al. v. The City Of New York, 140 U.S. S. Ct. 1525 (2020), but that case dealt only with the constitutionality of certain restrictions on the use of a restricted New York City premise license. The State and the City modified the Handgun Statute and the City modified the Rules of the City of New York to avoid a possible attack on the core of the Sullivan Act, involving the carrying of a handgun concealed in New York. The core of the Sullivan Act, though could not be avoided in Bruen. For, the legitimacy, the legality, the constitutionality of the core of the Sullivan Act was at issue.The Hochul Administration and the Democrat Party-controlled Legislature in Albany attempted an end-run around Bruen by complying with a superficial aspect of the Bruen holding. The High Court held that,“New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”So, then, if the High Court found “Proper Cause” to be problematic, the Government would strike the words, “Proper Cause” from the Sullivan Act—which turned out to be a superficial genuflection. The Hochul Government thereupon bolstered the “Good Moral Character” requirement of the Gun Law that the High Court mentioned in a cursory fashion in Bruen but did not remonstrate against because “Good Moral Character” had not functioned as anything more than a makeweight. It did not factor substantively into the equation whether the New York Handgun Licensing Authority would issue a person a concealed handgun carry license. What does that mean? How does the Licensing Authority process an application for a concealed handgun carry license in New York? The process of issuing a concealed carry license in New York, prior to Bruen, involved a two-step process. First, the licensing official determined whether the applicant falls under a disability that precludes that person from possessing a firearm at all.If the applicant falls into a category of disability as set forth in the “Crimes and Criminal Procedure” Section of Federal Law, Title 18, Part I (“Crimes”) Chapter 44 (“Firearms”), then that person is incapable of legally possessing any firearm.18 USCS § 922 sets forth:“(g) It shall be unlawful for any person—(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;(2) who is a fugitive from justice;(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;(5) who, being an alien—(A) is illegally or unlawfully in the United States; or(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));(6) who has been discharged from the Armed Forces under dishonorable conditions;(7) who, having been a citizen of the United States, has renounced his citizenship;(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or(9) who has been convicted in any court of a misdemeanor crime of domestic violence,to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce; [and](n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”In the letter of denial, the licensing officer will state the basis for denial and add that in the License Officer’s judgment the individual does not satisfy the “Good Moral Character” requirement. The words, “Good Moral Character” do not add anything pertinent to the letter of denial. For, whether mentioned or not, the applicant cannot lawfully possess a firearm under federal law, once the licensing officer sets forth the ground or grounds of federal disability and/or the State's own grounds, which build on the Federal grounds of disability. For example, the New York Handgun Licensing Officer in New York City, i.e., the NYPD License Division, has routinely denied the issuance of handgun license, whether for an unrestricted concealed handgun carry license or a restricted premise license if a person has an arrest record, even without conviction and even if the arrest or arrest and conviction occurred while the applicant was a juvenile, and the arrest or conviction record would likely be under seal, or if the individual has a history of mental illness whether or not the applicant had been institutionalized.It should be noted the NYPD License Division, for one, always denied a person’s application for any kind of handgun license if the individual had an arrest record, even sans conviction, although the denial in that circumstance could often—depending on the nature of the prior arrest or arrests, but not invariably—be overcome through an Administrative Hearing.Assuming the applicant did not fall into an 18 USCS § 922(g) or (n) category and the applicant did not seem, to the licensing officer, to have an “objective” flaw such as an arrest record, or history of mental illness, AND the applicant sought a concealed carry license, the officer would proceed to the second step, to ascertain whether that person satisfied the “Proper Cause”/“Extraordinary Need” requirement. This, traditionally, was difficult for the average applicant to satisfy, as noted, supra.Since the U.S. Supreme Court saw no Constitutional flaw in the “Good Moral Character” requirement of the Handgun Law—and as the Plaintiffs in Bruen did not, apparently object to it—the High Court did not find fault with it either, apart from mentioning it in the Bruen Majority Opinion. It was never seen as an issue demanding resolution.The Hochul Government immediately perceived the “Good Moral Character” as a useful mechanism to maintain the “May Issue” prerogative and jumped on it.After the publication of the Bruen decision, the Hochul Government went to work to transform the “Good Moral Character” Requirement into a de facto “Proper Cause”  requirement. It did this by demanding that the applicant for a concealed handgun carry license comply with a host of new requirements that had not heretofore existed in the Handgun Law.Now, under the Amendments to the Handgun Law, “current through 2023,” NY CLS Penal § 400.00(1),“. . . 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.”Requirements (i), (iii), (iv), and (v) are problematic on grounds of legality and constitutionality, and vagueness. Each one is a potential stumbling block—and this is by design.We will delve into each of these in a forthcoming article. In our analysis, we will also attempt to discern the reasoning behind each.But, for now, concerning the new “Good Moral Character” requirements (i), (iii), (iv), and (v), let it suffice to say that, since these requirements were not mandated before the Bruen decision, there is no legitimate rationale for mandating them now other than to maintain “May Issue” through the creation of a new set of hurdles to replace the loss of the “Proper Cause” requirement.These points are important. If true, this would strongly suggest, as applied to New York, that the mere act of striking the words ‘Proper Cause’ from New York’s Handgun Law doesn’t alter the subjective nature of the “May Issue” standard through which a New York licensing authority may, in its discretion, deny issuance of a concealed handgun carry license. That discretion continues to exist under the CCIA.The Legislature in Albany basically transformed the “Good Moral Character” requirement that, prior to Bruen, was essentially redundant—which is why Plaintiffs did not claim fault with it—into a new “Proper Cause” requirement with a litany of new subjective criteria that a New York handgun licensing authority has as its disposal to confound the applicant and through which that licensing authority can effectively deny issuance of a concealed handgun carry license.Although the Hochul Government was astute enough to refrain from tying this bolstered “Good Moral Character” with “Extraordinary Need,”  “May Issue” a concealed handgun carry license remains. And that is problematic.The CCIA “Good Moral Character” requirement and the “Sensitive Place” restriction provisions are two principal bases of challenge that have generated, to date, at least two dozen lawsuits in New York. Again, this could have been avoided. Apart from finding New York’s “Proper Cause” requirement Unconstitutional, Justices Thomas and Alito, along with Trump’s nominees, Justices Gorsuch, Kavanaugh, and Coney-Barrett might have made an unequivocal pronouncement that “May Issue” handgun licensing statutes are per se illegal and unconstitutional because “May Issue” jurisdictions allow for improper use of Government discretion. But they forbore doing so.That failure led to the enactment of New York's Concealed Carry Improvement Act and gave New York handgun licensing authorities the tools to continue to deny an applicant, not under a disability, from exercising his fundamental, unalienable right to keep and bear arms. The Justices must have been aware of the problem, and they must have seen this coming. They probably realized the New York Government would recognize the weakness in the High Court’s rulings just as they did. In fact, Justice Thomas, alluded to the problem, when, he said, as we iterated, supra,“New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are shall issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability. Meanwhile, only six States and the District of Columbia have ‘may issue’ licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. [Bruen Majority Opinion].So, “MAY ISSUE”/“PROPER CAUSE”/“EXTRAORDINARY” (“SPECIAL”) NEED” lives on—unconditional, unalloyed, absolute Government Discretion to continue to refuse to issue concealed handgun carry licenses, contrary to the right of the people to keep and bear arms for self-defense in the public domain as well as in one's home.Did Chief Justice Roberts tie the hands of Justices Thomas and Alito in Bruen, just as both he and Justice Kennedy tied the hands of Justices Scalia, Thomas, and Alito, in the Heller case?Unfettered Government discretion reduces an intrinsic, unalienable, right into a mere privilege: To be bestowed on one or not at the whim of Government, and just as easily rescinded, if once bestowed.New York’s Governor Kathy Hochul and her Democrat Party supporters in the State Legislature in Albany have taken advantage of the weaknesses and vagaries in Bruen, to launch a scheme to keep the core structural scheme of the Sullivan Act.The Hochul Government concocted a set of unconstitutional amendments to the Sullivan Act, referred to, collectively, as the “Concealed Carry Improvement Act” (“CCIA”). Together with a series of other oppressive Anti-Second Amendment Statutes, the State’s Gun Law is as potent and as noxious, and as illegal as it was prior to Bruen. And so, a flurry of new lawsuits ensued.The essence of the problem here isn’t ‘May Issue’ versus ‘Shall Issue’ a handgun carry license. The essence of the problem rests with the very act of requiring a license to exercise a fundamental right in the first instance.There is something deeply disturbing and discordant with State Government requiring licensing as a condition precedent to exercising a fundamental, unalienable right.Drilling down to the bedrock, the question is:  “Is the Act of Government Handgun Licensing Legal and Constitutional, at all?” The majority of States recognize inherent Constitutional problems with licensing, and as of January 2023, most States have established “permitless carry.”The U.S. Supreme Court did not address the issue of whether Government licensing of a fundamental, unalienable right is legal and Constitutional. The Court alluded to it fifteen years ago in Heller, and once again in Bruen, last year, but that is as far as the Court went, as far as it was willing to go.But that doesn’t mean the Court condones Government firearms licensing regimes. And so, the legitimacy of State Government handgun licensing remains an open question. And jurisdictions like New York have taken advantage of the Court's failure to take firm and categorical action on this.,The tentativeness of the High Court to address this issue directly and the seeming elusiveness of the conjecture have led some jurisdictions to infer, erroneously, that gun licensing is a legitimate prerogative of the State. It is not, but that doesn’t stop foes of the Second Amendment from making the claim, anyway. And New York has made such a claim.In the New York’s “Brief in Opposition to Emergency Application for Relief and to Vacate Stay of Preliminary Injunction” in Antonyuk versus Nigrelli, pending in the U.S. Court of Appeals for the Second Circuit, Letitia James, Attorney General, representing the New York Government, made the blanket statement,“Indeed, this Court in Bruen endorsed shall-issue licensing regimes [citing Bruen at 2138 n.9; and Kavanaugh’s concurring at 2161-62.”But is that true? What DID the Court really say?Footnote 9 of Bruen reads, verbatim:“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit].’ Drake v. Filko, 724 F. 3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry. District of Columbia v. Heller, 554 U. S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ Ibid. And they likewise appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”Letitia James is wrong. Moreover, her remarks are insulting.The High Court HAS NOT endorsed the notion that Government licensing of handguns is Constitutional. To the contrary, the Court acknowledges only that licensing regimes in 43 “Shall Issue” Jurisdictions will be tolerated so long as they do not offend the core of the Second Amendment right. And even there, the Court said, “we do not rule out constitutional challenges to shall-issue regimes.”That IS NOT an endorsement of licensing. Furthermore, the Court’s remarks, in dicta, categorically exclude “May Issue” regimes such as New York, which led to the Court’s review of New York’s licensing regime in Bruen, in the first place.Justice Kavanaugh’s remark on page 2162 of Bruen, which James also cites, reiterates the points appearing in FN 9 of the Majority Opinion.A complete analysis of the three seminal Second Amendment cases requires a perusal of Justice Scalia’s remarks in Heller.Scalia made clear that concessions made to State regulation of the Second Amendment do not mean the Court acknowledges an unbridled State right to license the exercise of a fundamental right.Scalia said this:“Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement ‘in such a manner as to forbid the carrying of a firearm within one's home or possessed land without a license.’  App. 59a.  The Court of Appeals did not invalidate the licensing requirement, but held only that the District ‘may not prevent [a handgun] from being moved throughout one's house.’ . . . Respondent conceded at oral argument that he does not ‘have a problem with . . . licensing’ and that the District's law is permissible so long as it is ‘not enforced in an arbitrary and capricious manner.’  Tr. of Oral Arg. 74-75.  We therefore assume that petitioners' issuance  of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.”Keep in mind the last sentence: “We . . . do not address the licensing requirement.” In other words, the issue of the constitutionality of handgun licensing, per se, remains unsettled. It is certainly important, in fact vital. By pointing to it, Scalia suggests the issue will be taken up at a later time. That time is now.The Court cannot continue to evade the central issue: Is State Government licensing of a fundamental, unalienable, right Constitutional? This issue must be addressed and must be addressed soon, and it must be addressed clearly, comprehensively, and emphatically.Foes of the Second Amendment in the States and in the Federal Government are pressing ahead with their agenda aimed at eliminating the exercise of the right to armed self-defense before the 2024 U.S. Presidential election.It no longer behooves the U.S. Supreme Court to simply review this or that provision of a State handgun law. Doing so does not get to the heart of the matter. It only results, as we have seen, in countless more brazen attempts by State Governments to intrude on one’s exercise of the natural law right to armed self-defense against animals, predatory men, and, worst of all, the predatory, tyrannical Government.The Founders of the Republic, the Framers of the Constitution, did not envision the kind of wholesale unconscionable intrusion into the sovereign citizens’ exercise of their fundamental right to keep and bear arms that Americans witness and suffer today. And they certainly wouldn't endorse this idea of Government licensing prior to exercising a fundamental right, that is prevalent in many jurisdictions.These unconstitutional, unconscionable actions by State actors must stop here and must stop now.The case Antonyuk vs. Nigrelli, which the Government and the Second Circuit are presently sitting on, in defiance of Justice Samuel Alito’s admonishment to the Government to avoid delay, is likely, at some point, to be reviewed by the High Court.If or when the Court does so, it should not quibble or equivocate any longer on the salient issue of the day but should deal directly with the constitutionality of handgun licensing.That is the only way to impede the inexorable erosion of our Nation’s most important Right—the Right of the People to Keep and Bear Arms—in the absence of which preservation of a free Constitutional Republic is impossible, and Tyranny in all its horror is inevitable and unavoidable.____________________________________Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

NEW YORK GOVERNOR KATHY HOCHUL DOESN’T LIKE THE FEDERAL COURTS TELLING HER THAT AMERICANS HAVE THE RIGHT TO ARMED SELF-DEFENSE—AFTER ALL, MOTHER KNOWS BEST!

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

MULTI SERIES

PART SIXTEEN:  SUBPART A

A BIT OF RECENT HISTORY ON CHALLENGES TO AMENDMENTS TO THE NEW YORK GUN LAW (CCIA)—ANTONYUK VS. BRUEN

Ivan Antonyuk, along with Gun Owners of America (GOA), brought an action to prevent the implementation of New York Governor Kathy Hochul’s amendments (CCIA) to New York’s Gun Law, the Sullivan Act of 1911. That case is captioned, Antonyuk vs. Bruen. It was filed on July 11, 2022, one week after the New York Senate in Albany passed the CCIA and Hochul signed it immediately into law.The  U.S. District Court for the Northern District of New York dismissed the case without prejudice, on August 31, 2022. The GOA dropped out of the second lawsuit since it couldn’t’ overcome the standing issue. But Ivan Antonyuk could and did file a new lawsuit.

THE NEW CASE CHALLENGING HOCHUL’S CCIA—ANTONYUK VS. HOCHUL

Antonyuk thereupon filed a new case, captioned, Antonyuk vs. Hochul, on September 20, 2022. He filed suit in the same U.S. District Court that dismissed the original lawsuit. The Court was receptive to it. In the new suit, Governor Kathy Hochul is named and cast as the principal Proper Party Defendant. She is now the leading Party Defendant, as the caption of the CM illustrates. And, once again, Kevin Bruen, the Superintendent of the New York State Police is named and cast as a principal Party Defendant. His name appears second, behind Kathy Hochul, in the new CM. And several other New York Government officials also figure prominently as Party Defendants in Antonyuk's new action.On October 6, 2022, the U.S. District Court for the Northern District of New York granted the Plaintiffs’ Motion for a Temporary Restraining Order (TRO) in the case Antonyuk vs. Hochul. See our previous article on this. The article was reposted in Ammoland Shooting Sports News.What do we know about the Plaintiff, Ivan Antonyuk?The Complaint for Declaratory and Injunctive Relief (CM) recites this about the Plaintiff, Ivan Antonyuk, who was the first individual to challenge Hochul's CCIA and to bring a new action against Hochul, in her official capacity as Governor of New York——“Ivan Antonyuk is a natural person, a citizen of the United States and of the State of New York, and resides in Schenectady County, New York. He is a law-abiding person, who currently possesses and has maintained an unrestricted New York carry license since 2009, and who is eligible to possess and carry firearms in the State of New York.”Five other New Yorkers joined Ivan Antonyuk, as Party Plaintiffs, in a new lawsuit, filed directly against Hochul. Five of the six Plaintiffs, including Antonyuk, hold unrestricted concealed handgun carry licenses. One of the six Plaintiffs holds a restricted employment handgun carry license. The New York handgun licenses are all valid.In the CM, the Plaintiffs set forth their justification for filing it, delineating their points as follows——“Governor Hochul (1) has openly criticized and expressed contempt for the Supreme Court’s decision in Bruen, (2) took action to circumvent the Supreme Court’s ruling by ‘merely chang[ing] the nature of th[e] open-ended discretion” from “proper cause” to “good moral character (3) pushed enactment of the CCIA through the legislature and (4) signed the bill into law, and (5) subsequently has acted as the interpreter-in-chief with respect to the CCIA’s provisions. The Governor has opined on the statute’s proper interpretation and provided guidance and instructions to officials throughout the state of New York as to its implementation according to her desires. For example, Governor Hochul (1) has instructed that the CCIA’s new licensing process applies even to those whose carry license applications are already submitted and pending prior to September 1, 2022; (2) has claimed that the ‘good moral character’ activity will involve door-to-door interviews of a person’s neighbors; 4 (3) has claimed that the CCIA’s plain text should not apply to certain parts of the Adirondack Park in contradiction to the wishes of the bill’s sponsors; 5 and (4) has opined that the CCIA’s “restricted locations” provision creates a “presumption . . . that they don’t want concealed carry unless they put out a sign saying “Concealed Carry Weapons Welcome Here.” To be sure, Governor Hochul ‘is not the official to whom the Legislature delegated responsibility to implement the provisions of the challenged statutes’ but, by her actions, she certainly appears to believe that she is. Moreover, and again, the Superintendent [Kevin Bruen] who is tasked with implementing and enforcing various provisions of the CCIA, is the Governor’s underling, making the Governor (whose hand is clearly at work in the Superintendent’s actions) a proper Defendant [citing documents omitted].”In a subsequent Plaintiff Court filing, September 22, 2022, filed two days after the filing of the CM, in a document captioned, “Memorandum Of Points And Authorities In Support Of Plaintiffs’ Motion For A Temporary Restraining Order, Preliminary Injunction, And/Or Permanent Injunction,” the Plaintiffs cogently lay out Governor Hochul’s unconscionable defiance of the U.S. Supreme Court rulings in NYSRPA vs. Bruen and the imminent harm that defiance poses to the life and safety of Plaintiffs:“New York continues to infringe the Second Amendment right to bear arms, treating most people as unworthy of the natural right to self-defense. In response to the U.S. Supreme Court’s recent vindication of the People’s rights to keep and bear arms in public in N.Y. State Rifle & Pistol Ass’n v. Bruen, 2022 U.S. LEXIS 3055 (2022), New York has enacted new restrictions in explicit contravention not only of the Court’s holdings, but also the text of the First, Second, Fifth, and Fourteenth Amendments. New Yorkers are now facing the reinstitution of discretionary licensing standards, imposition of draconian carry restrictions in a cornucopia of nonsensitive public places, invasion of protected First and Fifth Amendment conduct, a four-and-a-half-times expanded training requirement and accompanying exorbitant costs, and conversion of all private property into de facto “gun-free zones” that “would eviscerate the general right to publicly carry arms for self-defense,” Plaintiffs request that this Court enter a temporary restraining order, followed by a preliminary and/or permanent injunction, to stop the irreparable harm Plaintiffs are suffering and will continue to suffer absent emergency relief.” The Plaintiffs added, these pertinent points in their Memorandum—— “Superintendent Bruen, already found by this Court to be a proper defendant previously, is responsible for the conduct for those under his authority, including threats they make against law-abiding gun owners such as Plaintiffs. Indeed, the First Deputy Superintendent of the State Police, Steven Nigrelli, recently stated the following during a press conference, available on YouTube: ‘For those who choose to violate this law . . .  Governor, it’s an easy message. I don’t have to spell it out more than this. We’ll have zero tolerance. If you violate this law, you will be arrested. Simple as that. Because the New York state troopers are standing ready to do our job to ensure . . . all laws are enforced.’ This statement represents a direct threat to all who violate the CCIA, on all fours with Cayuga Nation’s “announce[ment] [of an] intention to enforce the Ordinance’ a group whose members would be ‘obvious targets of any criminal enforcement of the Ordinance.’ Here, the New York State Police, a law-enforcement entity with statewide jurisdiction and officers stationed across New York, has specifically and expressly stated a clear intent to enforce all aspects of the CCIA, without exception, through arrest and prosecution, in every instance where it is violated [documents and case citations omitted].”The Plaintiffs provided a sound and cogent argument for the issuance of the TRO. The District Court agreed.In its Decision issued on October 6, 2022, the U.S. District Court granted the Plaintiffs’ TRO but stayed its operation for three days to allow the New York Government to file an emergency appeal.The Midterm Elections are looming, and, with her position as New York Governor on the line, Kathy Hochul will waste no time filing an appeal. She doesn’t want this TRO hanging over her head.It is all the worse for Hochul since she’s made much of how the CCIA protects New Yorkers and that the U.S. District Court, as she claims, agreed with her, in the earlier case, Antonyuk vs. Bruen. It didn’t!So gleeful was the Governor when the District Court dismissed the suit against the CCIA in that case, she didn’t bother to recognize or acknowledge that the Court opposed the CCIA and dismissed the suit on a “technicality”: the standing issue.But with the technicality overcome, and the TRO awarded in Antonyuk vs. Hochul, she harrumphed, on her website the same day the District Court released its decision, October 6, 2022:“While this decision leaves aspects of the law in place, it is deeply disappointing that the Judge wants to limit my ability to keep New Yorkers safe and to prevent more senseless gun violence. We are working with the Attorney General's office to review the decision carefully and discuss next steps in an appeal. I will continue to do everything in my power to combat the gun violence epidemic and protect New Yorkers.”Hochul can barely restrain herself. The decision leaves hardly anything of the principal provisions of Hochul’s CCIA in place. Hochul and the other Anti-Second Amendment zealots in her Administration and in the New York State Legislature are fuming. Hochul knows that the guts of the CCIA are to be excised, and both she and her Administration intend to prevent that.Hochul will file an appeal. That is expected. In fact, it’s a dead certainty. And the U.S. District for the Northern District of New York made provision for it. The Court gave Hochul three days to file her “emergency” appeal to the U.S. Court of Appeals for the Second Circuit. Her people must have been working on it over the weekend.Expect to see news of Hochul’s appeal to the Second Circuit on Monday, October 10, or on Tuesday, October 11, at the latest. _________________________________________________________

THE FEDERAL COURTS OF NEW YORK CAN NO LONGER SHIRK THEIR DUTY TO THE U.S. CONSTITUTION THAT MANDATES AND CELEBRATES THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS

PART SIXTEEN:  SUBPART B

THE FEDERAL COURTS MUST REIN IN GOVERNOR KATHY HOCHUL’S OUT-OF-CONTROL NEW YORK GOVERNMENT

On the release of the U.S. District Court’s decision, granting Plaintiffs a TRO in the recent case, Antonyuk vs. Hochul, challenging the CCIA, New York Governor Kathy Hochul retorted she “will continue to do everything in [her] power to combat the gun violence epidemic and protect New Yorkers.” Really? Is that true?The New York Post says,“In New York, where gun violence has plagued the Big Apple and other metro areas, 1 in 5 police departments — 469 of 593 — failed to report any crime data.That includes the largest department in the country, the NYPD, which is often held up as the trendsetter for US law enforcement.A spokesperson said the NYPD was in the process of transitioning to the new reporting system but did not answer questions about its timeline or if it accepted any federal grants to get the system up and running.”Meanwhile, New Yorkers are threatened by continued criminal violence. The Governor and the Mayor of New York City, Eric Adams, offer nothing but excuses, platitudes, or outright denials. Yet both the Governor and Mayor continue to make it extraordinarily difficult for average, innocent, responsible, law-abiding New Yorkers to gain access to the most viable means to defend themselves as they walk about in a concrete jungle—a handgun. That, if anything, is contrary to common sense! The Government controls handgun licensing. A Government that mandates licensing and has sole control over licensing prescribes the rules of the game: those few in number who may obtain a handgun license and the manner of use of the handgun for self-defense. It is the citizen who ends up with the short end of the stick. The psychopathic criminal and the lunatic roam freely about, to prey at will on the innocent: men, women, and children. All the while high-ranking City and New York State Government officials such as the Mayor of New York City and the Governor of the State are themselves safe and secure with a team of heavily armed police to protect them day and night.Hochul cares nothing for the life and safety of New Yorkers. All that she and the Democrats in Albany, and other Anti-Second Amendment officials in Hochul’s Government care about is their own hides and the preservation of their program to disarm the common man—an agenda ongoing for well over 110 years—at odds with the natural law right of armed self-defense, codified in the Nation's Bill of Rights.Just as the Sullivan Act of 1911 laid out the basic steps of handgun licensing that started the inexorable process of disarming the citizenry in New York, and just as Hochul’s predecessor, Andrew Cuomo, continued that process through the enactment of the New York Safe Act of 2013, several antigun enactments since, culminating in the CCIA, are designed to further whittle away the natural law right of armed self-defense.As this article goes to publication, Governor Hochul has not yet appealed the District Court decision ordering a TRO preventing enforcement of the CCIA but the filing of her appeal to the U.S. Court of Appeals for the Second Circuit is imminent.So, the questions are, first, what will the Second Circuit do with it, once it receives it, and two, how will Hochul react to the Appellate Court’s rulings if those rulings don’t go her way? And the Appellate Court should keep the TRO stay in place.Indeed, the Federal Court of Appeals must keep the TRO stay in place. But it isn’t clear it will do that. But its failure to do so would lead to irreparable harm to the Plaintiffs and to the New York public that cherishes the natural law right of armed self-defense. The State Governor, Kathy Hochul, and the Mayor of the City of New York, Eric Adams, have forsaken the people to whom it is their duty to serve.One thing is patently clear: the U.S. Court of Appeals for the Second Circuit would prefer it didn’t have to contend with this. Anything involving the Second Amendment is a hot potato for the Second Circuit and for the Federal District Courts of New York. They now must deal with the aftermath of decades of complacency and deference toward a State Government whose policies and laws demonstrate abject ruthlessness toward and callous disregard for the life, safety, and well-being of the people of New York.Heller and McDonald created a host of problems for a jurisdiction historically antithetical to Americans’ exercise of the natural law right of armed self-defense. New York’s attack on the natural law right of armed self-defense goes back well over one hundred yearsBut the Bruen rulings might have shaken the Federal Courts of New York out of their stupor, and out of their heretofore typical hands-off approach toward a State Government inexorably whittling away the right of the people to keep and bear arms to a nullity.The Courts may realize their duty is to the U.S. Constitution and not to the officials of the New York State Government who are intent on erasing the natural law right of armed self-defense in New York.With the Bruen decision the U.S. Court of Appeals for the Second Circuit and the U.S. District Courts of New York realize they can no longer hide their Anti-Second Amendment opinions and musings behind abstruse legal verbiage and sophistry that contravene High Court rulings, and all for the sake of a State Government that abhors the Second Amendment of the Bill of Rights.That makes matters difficult for Governor Hochul. But that won’t prevent her from urging the Second Circuit to embrace and protect her CCIA godchild.So——In her appeal, Hochul may go beyond asking the Circuit Court of Appeals to lift the stay on the CCIA. She may ask the Court to order a permanent injunction against further challenges to the CCIA. It is, however, unlikely the Circuit Court will accede to this as doing so falls beyond its appellate power. But, from this arrogant New York Governor, no less so than from her arrogant predecessor, Andrew Cuomo, one should expect anything.The Plaintiffs will oppose the lifting of the stay, arguing for suspension of the CCIA until the Court rules on the Plaintiffs’ prayer for a preliminary or permanent injunction, enjoining the New York Government from enforcing it.Although the Court of Appeals could, conceivably, although improbably, lift the TRO stay on enforcement, pending trial of the constitutionality of the CCIA, it likely won’t do this.The District Court is no slouch. It gave the Circuit Court every reason to honor the TRO that the District Court had issued.The District Court was careful to provide the Hochul Government with both notice and hearing before the issuance of the TRO. It need not have done so. Court issuance of a TRO doesn’t require prior notice and hearing to the party against whom it is issued.The Federal Circuit Court of Appeals cannot ignore this fact and will take note of it.The Court will point out that it is the Plaintiffs, not the Government, who are likely to prevail in a trial on the merits and that it is the Plaintiffs, not the Hochul Government, who will suffer grievous harm if the Government can continue to enforce the CCIA during discovery and trial.Do not expect the Second Circuit to blithely lift the stay on the TRO.But that raises the question: “how long is the District Court’s TRO stay on enforcement of the CCIA to remain in effect?” And the District Court did not leave that matter hanging open-ended, either. Among its orders in Antonyuk vs. Hochul, the Court said that its——“Temporary Restraining Order shall remain in effect pending a hearing and ruling on Plaintiffs’ motion for a preliminary injunction.”Unless the Second Circuit is as remiss of its duties toward the Constitution and as dismissive of the citizenry as the Hochul Government and Democrat Legislators in Albany clearly are, we anticipate the TRO will remain in place until final resolution.The U.S. Supreme Court has ruled that the right of armed self-defense extends to the public realm. This is consistent with the language of the Second Amendment to the U.S. Constitution, In fact, the natural law right of armed self-defense is embedded in the right of the people to keep and bear arms. The natural law right of armed self-defense against predatory man, beast, or Government is embedded in the Second Amendment, and it follows by logical implication.The High Court did not make new law in NYSRPA vs. Bruen, as many people in the Federal and State Governments wrongly believe; as Hochul wrongly thinks.The High Court simply recited and reiterated what plainly exists in the codification of natural law that Marxists and Globalists find repugnant to their belief system, and antithetical to their Collectivist mindset and to their political and social philosophy, which they intend to thrust on the rest of us.One should reasonably expect the Second Circuit will remand the Hochul case to the District Court.The Federal Appellate Court will likely order the lower District Court to resolve the substantive issues pertaining to the Constitutionality of the CCIA and determine whether to award Plaintiffs with a preliminary or permanent injunction against enforcement of the CCIA. All the while the TRO stay against enforcement of the CCIA should remain in place.Once the District Court issues either a preliminary or permanent injunction against Hochul, the injunction will have the effect of a final appealable order.This raises the question of whether, in the interim, Governor Hochul will abide by a TRO stay of enforcement of the CCIA pending resolution of the Antonyuk vs. Hochul case, or will she defy the Second Circuit Court of Appeals just as she blatantly defied the U.S. Supreme Court on signing the CCIA into law?Hochul might defy the Court’s order and enforce the CCIA. If so, the Plaintiffs will then need to return to the Federal Court of Appeals to get the Second Circuit Court to issue its “Contempt of Court Show Cause Order” against Hochul.If she does defy an order from the U.S. Court of Appeals for the Second Circuit staying the enforcement of the CCIA, it would be impossible for Hochul to continue, however plausibly or implausibly maintained, to disguise that defiance of a Federal Court order as compliance.Perhaps Hochul doesn’t care.Court Orders and Rulings mean nothing to her if Hochul happens to disagree with them. The CCIA is evidence of that.But would the public care?And would the public demand the Hochul Government comply with an order from the Second Circuit Court of Appeals?The public should care and should demand the Hochul Government’s compliance with Federal Court orders and case rulings, regardless of her dislike for them. Hochul's specious claim that her wish, ostensibly, to protect New Yorkers against harm is neither a sound nor valid moral nor sound nor valid legal argument to support defiance of the United States Supreme Court, and the U.S. District Court, and the U.S. Court of Appeals for the Second Circuit. And, her not-so-tacit assumption that the Courts don't care about the life and well-being of New Yorkers is not only false it is absurd.Will the New York electorate embrace or reject Kathy Hochul? The Midterm Election will tell the story. The result depends on the electorate’s justified outrage toward an obstinate Governor that claims she knows or pretends to know what is in the best interests of the people of New York, or their active or passive support of her words and actions.The reprobates in New York will, of course, support Hochul. But they look forward to the destruction of our free Constitutional Republic anyway, relishing the coming of the Soros “Open Society” in which the U.S. is just another cog in a grotesque, monstrous machine, and its people, hapless, vanquished subjects.These Neo-Marxists and Neoliberal Globalists are beyond the pale and are beyond redemption. Forget about debating them. Love for God, Country, and Family, and for the continuation of a free Constitutional Republic that the founding fathers bestowed on us mean nothing to them. Their ideology is grounded in the tenets, principles, and precepts of Collectivism and they have concocted a new mechanism to promote it, a vehicle through which the public is enmeshed in it, internalizes it, and becomes vested in it: the gospel of “Diversity, Equity, and Inclusion,”   now, adopted and pushed by the Federal Government, no less, and codified in an Executive Order. Many other New Yorkers will passively accept whatever befalls them even if they happen to disagree with Hochul’s abject defiance of the Courts, and that is most unfortunate. Passivity and sloth are killers. Forget about them, too. These people are asleep and cannot be roused from their slumber.The fact remains that a handgun is the only viable means to effectively counteract random, intractable criminal violence that threatens the life and safety of innocent people as they go about their day-to-day activities in New York. Plaintiffs in the Antonyuk vs. Hochul made that point poignantly clear to the U.S. District Court. They also made patently clear to the Court that the CCIA is, in large part, unconscionable and unconstitutional. That was the reason for the Court’s issuance of the TRO stay in the first place.If Hochul refuses to adhere to Court orders and rulings, it is up to these members of the public remaining, the true Patriots in New York, to hold Hochul’s feet to the fire. May they prevail and preserve the success of the American Revolution of 1776 for both themselves and for future generations of Americans!*___________________________________________*Hochul is apparently afraid that the Midterms will see her out of office. She would like to purge all Republicans from the State. An August 2022 New York Post article is worth a read:“Gov. Kathy Hochul, who hasn’t proven shy about issuing orders, had one for the state’s Republicans this week — all 5.4 million of them: ‘Just jump on a bus and head down to Florida where you belong, OK?’ she said. ‘You are not New Yorkers.’”___________________________________Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

“‘PROPER CAUSE’ IS DEAD”! “LONG LIVE ‘PROPER CAUSE’”?

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 TO DESTROY EXERCISE OF THE RIGHT AND THOSE WHO SEEK TO PRESERVE AND STRENGTHEN THE RIGHT BOTH FOR THEMSELVES AND THEIR DESCENDANTS

MULTISERIES

PART ELEVEN

“‘PROPER CAUSE’ IS DEAD”! “LONG LIVE ‘PROPER CAUSE’”?

Any State that would denigrate the right of the people to keep and bear arms is a throwback to monarchical tyranny—the very thing the founders of our Republic fought against. New York is one such State of the Union that operates as a throwback to monarchical tyranny.How did this animosity toward the Second Amendment come to pass in New York? Truth to tell, it had been so for a very long time.New York has fought against recognition of the right of the people to keep and bear arms for over one hundred years. And the State is all the worse for it. Even as New York ostensibly extols concern for democracy and claims regard for the oppressed in society, it arguably harbors a scarcely disguised bias against the common man. New York’s Sullivan Act, the progenitor of the present oppressive and repressive Gun Law, codified in NY CLS Penal § 400.00 et. seq. as amended (2021 Bill Text NY S.B. 1B), effective September 2, 2022, has a legacy of iniquity behind it:“An ethnic bias lurked behind this act. There had long been an association in New York of Italians and crime, and, starting in 1903, the police routinely denied Italians permits for the carrying of pistols. In 1905 the state legitimated this bias by outlawing the possession of firearms in any public place by the foreign born (New York State 1905). The police wanted more authority to prevent the carrying of concealed handguns. Even with the existing weak legislation, the police seized 10,567 handguns between 1907 and 1910, or seven a day. The assassination attempt against Mayor William J. Gaynor in 1910 riveted the city's attention and brought renewed calls for the regulation of handguns. . . .A new Democratic member of the state senate from New York City, Timothy D. Sullivan, immediately proposed legislation regulating the purchase, possession, and carrying of firearms throughout the state. That ‘Big Tim’ Sullivan, one of Tammany Hall's most prominent figures, would promote such legislation seems a sure indication of its popularity. The only hostile testimony came, not surprisingly, from gun manufacturers and sellers. The bill received broad support from the cultural and economic elite of New York, which saw it as a necessary part of the civilizing process. The Senate passed the Sullivan Act by a vote of 37 to 5 and the House by 123 to 7, and Governor John A. Dix signed it into law on May 29, 1911 (Weller 1962). The Sullivan Act reinforced older legislation on weapons other than firearms (slingshots and such) and limitations on the ownership and carrying of firearms by aliens and minors. The Sullivan Act instituted three additions to existing firearms acts: it added pistols to section 1897 of the criminal code, making it a felony to carry concealed weapons; required residents of cities to get a permit to carry concealable firearms—though failure to do so only constituted a misdemeanor; and required those who sold pistols to first examine a permit and to keep a record of the sale recording the purchaser and firearm. In an effort to contain the spread of the ‘$ 5 specials,’ the cost of these permits was fixed at $ 10. The bill also retained the prohibition of firearm possession by aliens (New York State 1911). Based on letters and editorials in the leading newspapers, the public reaction was overwhelmingly positive.” ~“Firearms Regulation: A Historical Overview,” 28 Crime & Just. 137 (2001), by Michael A. Bellesiles, Professor of History, Emory University.As if the Sullivan Act, as originally drafted and enacted, wasn’t bad enough, through time it became worse. Just two years after Sullivan was enacted, the Legislature amended it “in 1913 to provide the proper-cause standard for the issuance of public carry licenses throughout New York.” ~“The Constitutional ‘Terra Incognita’ Of Discretionary Concealed Carry Laws, 2015 U. Ill. L. Rev. 909 (2015), by Brian Enright, J.D. Candidate, University of Illinois College of Law.Until Bruen came down, ruling that New York’s “proper cause” requirement is unconstitutional, the inclusion of “proper cause” in New York’s gun law precluded issuance of a handgun carry license to a license applicant in the absence of a convincing showing of it. The expression, ‘proper cause,’ is not defined in the Sullivan Act itself. The Judiciary was left to fill in the gap. As explained by the Second Amendment scholar, David Kopel, “The text of the Sullivan Act simply requires that a person have ‘proper cause’ to possess a carry permit. In New York City, lawful self-defense is not a ‘proper cause’ unless a person has a ‘special need’ that is different from the rest of the community, a standard that was first upheld in a 1980 decision, Klenosky vs. N.Y.C. Police Department, 428 N.Y.S.2d 256 (N.Y. App. Div. 1980). Aff’d, 421 N.E.2d 503 (N.Y. 1981).” ~“Gun control and the second amendment: developments and controversies in the wake of District of Columbia v. Heller and Mcdonald v. Chicago: Article: The Great Gun Control War Of The Twentieth Century—And Its Lessons For Gun Laws Today,” 39 Fordham Urb. L.J. 1527 (October 2012), David B. Kopel, Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law. Research Director, Independence Institute, Denver, Colorado. Associate Policy Analyst, Cato Institute, Washington, D.C. The law remained on the books, uninterrupted, for one hundred and ten years after enactment.New York’s “proper cause” requirement became a “cause célèbre” of Anti-Second Amendment proponents who abhor the notion of civilian citizens carrying firearms in public, as the application of it has effectively precluded the vast majority of people who sought to carry a handgun for self-defense from doing so. The inanity and insanity of New York’s “proper cause” requirement reverberated and rippled up to the present time, culminating in the Bruen case. The New York Government’s arrogant insistence on it provoked the ire of Justice Thomas, et. al.  Yet, New Yorkers who cherish the unalienable, natural law right of the people to keep and bear arms, didn’t wait for a chance to defeat “proper cause” through the Bruen case. They saw an opening after the High Court came out with the McDonald decision in 2010—which followed its sister, the Heller case in 2008.  The insidiousness of the insertion of a “proper-cause” requirement in the Sullivan Act cannot be overstated. For over one hundred and ten years—New York did not recognize a right of armed self-defense outside an interior dwelling—i.e., outside one’s home, or place of business. To this day, the New York Government refuses to acknowledge or recognize a right of armed self-defense outside one’s home or place of business, notwithstanding that the Governor of New York, Kathy Hochul, along with the Democrat Party-controlled Legislature in Albany, deleted the “proper cause” requirement in response to the Bruen case decision, effective, shortly, on September 2, 2022.To understand what is transpiring here it is necessary to step back and take a close look at the New York case Kachalsky v. Cacace, 817 F. Supp. 2d 235, (S.D.N.Y. 2011), forKachalsky is critical to understanding the modus operandi of New York Gun Law both Pre-Bruen, since 1912, when “proper cause” was added to the Sullivan Act, and defended in the and Post-Bruen, when the Hochul Government developed a workaround to maintain the import of “proper cause” sans the verbiage. Kachalsky, citing for support the earlier 1980 Kenosky case, referred to supra, dealt directly with the “proper cause” requirement, shooting down any suggestion that the State’s “proper cause” requirement is somehow unconstitutional.

KACHALSKY

In Kachalsky v. Cacace, 817 F. Supp. 2d 235, (S.D.N.Y. 2011), Plaintiff Petitioner Kachalsky, a citizen who resides in Westchester County, and several other individuals similarly situated, filed suit in the United States District Court for the Southern District of New York against Defendant Respondent Cacace, the Police Licensing officer for denying Plaintiffs’ applications for an unrestricted concealed handgun carry license. The Plaintiffs specifically challenged the constitutionality of “proper cause,” the vehicle through which the handgun licensing authority denied issuance of an unrestricted handgun carry license to the Plaintiffs.The District Court explained the facts as follows:“In May 2008, Plaintiff Kachalsky applied for a full-carry permit to be able to carry a concealed handgun while in public. In his application, Kachalsky asserted that he believed he satisfied Section 400.00(2)(f)'s ‘proper cause’ requirement because he was a U.S. citizen and therefore entitled to ‘the right to bear arms’ under the Second Amendment, [stating] ‘we live in a world where sporadic random violence might at any moment place one in a position where one needs to defend oneself or possibly others,’ and he was ‘a law-abiding citizen’ who had neither ‘been convicted of a crime’ nor ‘assaulted or threatened to assault another person.’ Upon reviewing Kachalsky's application and completing a corresponding investigation, the Department of Public Safety recommended that the permit be denied. The application, investigation file, and recommendation were forwarded to Defendant Cacace, who, acting as licensing officer, reviewed those materials and issued a decision and order, dated October 8, 2008, denying Kachalsky's application. Cacace observed that Kachalsky failed to state ‘any facts which would demonstrate a need for self protection distinguishable from that of the general public,’ and that ‘based upon all the facts and circumstances of this application, it is my opinion that proper cause does not exist for the issuance of an unrestricted 'full carry' pistol license.’” [references to pleadings redacted]In finding for the Police Licensing Officer, against Plaintiffs, the Court said, “To establish proper cause to obtain a license without any restrictions—the full-carry license that Plaintiffs seek in this case—an applicant must; demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.’ There is a substantial body of law instructing licensing officials on the application of this standard. Unlike a license for target shooting or hunting, ‘[a] generalized desire to carry a concealed weapon to protect one's person and property does not constitute ‘proper cause.’”  Good moral character plus a simple desire to carry a weapon is not enough. Nor is living or being employed in a ‘high crime area.’” [citations omitted].The reader should note the District Court in Kachalsky opined that a showing of “good moral character,” while necessary to obtain a carry license in New York, isn’t sufficient to warrant issuance of a carry license. This is a salient point. And AQ will come back to this when we discuss “good moral character” in depth. Suffice it to say, at this time, having struck out “proper cause” from the Sullivan Act, NY CLS Penal § 400.00 et. seq. as amended (2021 Bill Text NY S.B. 1B), the Hochul Government has bolstered the “good moral character,” requirement, essentially refabricating and reframing it to do double-duty, operating like the old “proper cause” requirement to drastically cut the number of individuals who, although under no Federal law disability to own an possess firearms, would still be denied exercise of their fundamental right.Governor Hochul and Albany have altered “good moral character” to make it a challenging obstacle to overcome. The “good moral character” remains as vague as ever, but the Hochul Government has mandated that new applications for an unrestricted concealed handgun carry license, and renewals as well, must include information that casts a bright light on one’s personal political, social, and religious beliefs. With this information, the licensing official can ostensibly deduce psychological aspects of one's character as well as his ideological and socio-philosophical leanings. To ask for such information is unconscionable and unconstitutional. An applicant is thus faced with a dilemma, a veritable, proverbial Hobson choice.Most everyone today has some sort of social media account and has commented on websites or has created a website of one’s own. The information conveyed on these sites can likely touch upon personal sensitive financial and medical information. On these websites, one's hopes, wishes, prayers, fears, and reveries may be laid bare. Government and employers, gaining access to this rich body of data, have used it to deny employment, or to fire a person from employment. And the Federal Government is soaking up petabytes of information on individuals. One can only wonder at the amount of data that the NSA is compiling on everyone and everything and storing in its colossal information holding tanks in Bluffdale, Utah. See, e.g., Fox News article and article in The Guardian. Most all records are electronically digitalized and available on the world wide web. If an applicant provides this information to a Government handgun licensing official, such information may become part of a Government public record. This information will certainly become the basis to deny a person a concealed handgun carry license if, for example, the licensing officer happens to disagree with one’s political, social, or religious viewpoints and leanings. And the information will likely be forwarded to police authorities throughout the State and to the Federal authorities as well, including, DOJ, DHS, and the FBI, organizations that have a very dim view of individuals who are deemed “social and political conservatives.” This is not a theoretical concern or “conspiratorial musing.” It is real, as recent events confirm.Especially concerning and disconcerting is that such private information will make its way to the DOJ/FBI and CIA, where an individual can be scrutinized and marked for special treatment. Our Federal Government's Departments, Bureaus, and Agencies are slowly and inexorably taking on the characteristics of horrific secret police and intelligence gathering organizations reminiscent of the Third Reich's Gestapo/Kripo police organizations and of the secretive Sicherheitsdienst-SD (Security Service of the SS); and of the secret police of the interior ministry of the Stalin Government, the NKVD. One is reminded of Senator Chuck Schumer's remark, as reported in The Federalist, “Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you.” It is an idiotic assertion to be sure, but more so because Schumer comes across as a fawning jackass for the intelligence community; boasting of its power; conveying to the public his admiration of it,  rather than acknowledging that it has gotten out of hand and needs to be controlled. In that regard, isn't Congress supposed to monitor and control the police and intelligence apparatuses of the Nation? After all, Congress created these things. It has ultimate oversight authority over them. Yet, rather than keeping these things on a tight leash, Schumer would allow these creatures to run amok, or worse, admits that Congress can't do a damn thing to control them. And, instead of attempting to do so, he would rather stand stupified, in utter awe of them.And then there is the illustrious Attorney General.The DOJ/FBI, through statements and actions of the Attorney General, Merrick Garland, has made plain that those Americans who happen to have a “conservative” political and social mindset are construed as exhibiting deviant thought and behavior. So the DOJ/FBI treats such American citizens as “Domestic Terrorists,” or certainly as potential “Domestic Terrorists”—and a “Domestic Terrorist”  or one who is deemed by the “woke police” to have the wrong psychological attributes, i.e., one who doesn't accept the new religious dogma of “Diversity, Equity, and Inclusion,” and who isn't a proponent of the rules-based neoliberal international order isn't the sort of person that a handgun licensing authority would deign to issue an unrestricted concealed handgun carry license too, anyway. In fact, why should any proper thinking civilized human being want a gun anyway? Aren't those people who cherish their Second Amendment right to keep and bear arms and who desire to exercise that right a throwback to a time long since past and best laid to rest? Wouldn't that be nice, or so the Neoliberal Globalists and Neo-Marxists would have Americans believe? And, if they can seduce enough Americans, perhaps then, they can dispense with the muddy problem, and one fraught with considerable peril, of attempting to remove hundreds of millions of firearms and millions of rounds of ammunition from over one hundred million Americans. 

THE CATCH-22 OF HANDGUN LICENSING IN NEW YORK

The Anti-Second Amendment New York Government sees guns as troublesome and gun owners as inherently troubled individuals, and New York's Gun Law, as conceived, and implemented conveys that idea. Succinctly stated it is this: “You can have a concealed handgun carry license if you don't want one because you are sane to not want one, and all you have to do to obtain one is to file an application to get one, and then you can carry a handgun. But, then, if you do file an application for a handgun carry license that must mean to us that you do want one, which is apparent through your filing an application to obtain one. But, then, you must be insane and must therefore be denied one because the State cannot abide a person carrying a handgun who is insane.”

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“There Was Only One Catch And That Was Catch-22, Which Specified That A Concern For One's Safety In The Face Of Dangers That Were Real And Immediate Was The Process Of A Rational Mind. Orr Was Crazy And Could Be Grounded. All He Had To Do Was Ask; And As Soon As He Did, He Would No Longer Be Crazy And Would Have To Fly More Missions. Orr Would Be Crazy To Fly More Missions And Sane If He Didn't, But If He Was Sane He Had To Fly Them. If He Flew Them He Was Crazy And Didn't Have To; But If He Didn't Want To He Was Sane And Had To. Yossarian Was Moved Very Deeply By The Absolute Simplicity Of This Clause Of Catch-22 And Let Out A Respectful Whistle.‘That's Some Catch, That Catch-22,’ He Observed.‘It's The Best There Is,’ Doc Daneeka Agreed.” ~From the novel, “Catch 22,” by Joseph Heller, first published in 1961

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Of course, a person ostensibly willingly divulging a wealth of personal information to a police licensing officer, which, under the Governor's newly reconfigured, convoluted, consecrated  “good moral character” requirement, one must do, makes the work of police investigation of compiling dossiers on everyone in New York, substantially less time-consuming and expensive. The applicant does the “dirty work” for the police. He or she is forced to waive his or her Fifth Amendment right against self-incrimination with little chance at best, anyway, of receiving the coveted prize: an unrestricted concealed handgun carry license by which one might be able to adequately defend life and limb in the concrete jungle that New York has degenerated to.There is no upside to any of this for the average citizen, and there is certainly no upside in the release of vast stores of personal data, highlighting one's personal thoughts, beliefs, and idiosyncrasies to the State Government.In the end, the applicant is left in a worse situation than before the filing. He or she is denied a concealed handgun carry license, and the State Government has a veritable cornucopia of personal data on a person as there is nothing in the amendments to the Sullivan Act that require a licensing officer to destroy the information obtained after the officer denies the application. The Government holds onto that information, and can, thereafter, use it to keep tabs on the individual and for extrajudicial, nefarious purposes that a person can only guess at. And, if the applicant refuses to divulge such information, what then? The handgun licensing authority will immediately refuse issuance of a concealed handgun carry license on the ground of failure of the applicant to comply with Sullivan Act requirements that the applicant divulge personal social media information and any other data the officer, in his discretion, demands so that the officer can properly assess one's personal, psychological makeup.Hence, the applicant is placed in an impossible situation—the proverbial Hobson Choice—i.e. no tenable choice at all. After September 2, 2022, when the amendments to the Sullivan Act take effect, the Hochul Government will start to use “good moral character” like the “proper cause” requirement before it, a veritable brick wall. The new requirement will operate much like and as well as the old requirement: to deny to the vast majority of individuals seeking a valid unrestricted New York State concealed handgun carry license the ability to lawfully carry a handgun in the State.This is in keeping with New York Government tradition that does not recognize armed self-defense outside the home or place of business, as a fundamental natural law right. Nothing changes. And it is consistent with New York Governor Hochul's Press Release, released on the day the U.S. Supreme Court officially released the Bruen decision. New York would go through the pretense of complying with the High Court's rulings, but, in practice, the amendments to the Sullivan Act are designed to make it difficult to obtain a concealed handgun carry license, and, in fact, the amendments make it more difficult, not less so, for the average citizen to obtain one. And, for those individuals who presently have a valid New York City or State concealed handgun carry license, the amendments place renewals of existing licenses on an equal footing with first-time applicants. A pro forma exercise for renewal applicants is a thing of the past. The application process for a concealed handgun carry license begins anew for everyone. And that raises another issue: the operational rules, implementing the amendments to the Gun Law have yet to be finalized. In fact, one might ask if the Government bureaucrats have even drafted them yet. That is a big if! So, where does that leave current handgun licensees in the interim, whose licenses for renewal are imminent?The simple fact is this: The New York Government will defeat any attempt by those who desire to exercise their Second Amendment right of armed self-defense outside the home. At the very least, the changes to New York’s Sullivan Act will create as many obstacles as it can get away with to frustrate those applicants who seek to carry a handgun outside the home or place of business. Thus, in New York, the Bruen decision will do little to assuage difficulty in obtaining a concealed handgun carry license.

THE U.S. SUPREME COURT SHOULD HAVE STRUCK DOWN NEW YORK’S HANDGUN LICENSING REGIME

How do Governor Hochul and the Legislature in Albany get away with this? They are able to do so because the main mechanism of defeating the Second Amendment remains unscathed. New York, like several other jurisdictions around the Country is a handgun licensing jurisdiction. The average civilian citizen cannot lawfully possess a handgun anywhere in New York unless one secures a valid license from the appropriate licensing authority in New York. That is the source of the present problem in New York.The High Court did not go far enough. The Court did not strike down, as unconstitutional, the licensing of handguns. Handgun licensing regimes are inherently incompatible with the Second Amendment guarantee. No other fundamental right requires the acquisition of a license before an American may lawfully exercise a natural law right. One doesn't need a license to exercise his right of free speech or to practice religion or to associate with those people or groups one wishes to associate with. It would be bizarre to require a Government issued license before one might lawfully do so. Similarly, to acknowledge a right of the people to keep and bear arms and at one and the same time to recognize the licensing of handguns as a privilege and a condition precedent to the exercise of the basic, unalienable right is inconsistent with the very nature of natural law, God-given rights. These rights exist intrinsically in the person. They are not priviliges bestowed on one by the grace of the State. They are fundamental, unalienable, immutable, and eternal. That the U.S. Supreme Court did not rule that licensing of handguns or any firearm a condition precedent to exercise of a fundamental natural law right is a major flaw of the Bruen case, as it was a major flaw of Heller and McDonald before it. None of these seminal Second Amendment cases dealt head-on with this. And jurisdictions like New York will continue to use licensing of handguns and other firearms as a difficult obstacle to overcome or, for most people, an impenetrable barrier, preventing one from exercising the basic, natural law right of armed self-defense.  Licensing of handguns, operating as a condition precedent to the exercise of a fundamental, unalienable, natural law right, is legally indefensible. And the practice is irreconcilable with basic principles of elementary logic. Associate Justices Thomas and Alito must have been aware of this fatal flaw in the Bruen decision. One must wonder: Did Justices Thomas and Alito concede the constitutionality of handgun licensing to obtain Roberts’ vote and that of Kavanaugh? Was that the price Justices Thomas and Alito had to pay to obtain the acquiescence of Roberts and Kavanaugh? If so, that brings disturbingly to mind the price the three Associate Justices—Scalia, Thomas, and Alito—had to pay to get Roberts and Kennedy on board, in the Heller case. Justices Scalia, Thomas, and Alito had to openly acknowledge the right of State Governments to continue to impinge upon the core of the Second Amendment. But doing so guaranteed continued Court action as Governments would always find ways to frustrate the citizen’s exercise of armed self-defense, and citizens, for their part, would find it necessary to continue to file lawsuits against unconscionable, unconstitutional Government action—an expensive, time-consuming, frustrating, and physically and psychologically tiring, exhausting ordeal. And a favorable outcome for the would-be gun owners can never be assured.Of course, State Governments know all this, and New York Governor Kathy Hochul and the New York Legislature in Albany certainly know this. Letters have already been sent to Government officials around the Country, contesting the “good moral character” requirement. For, these jurisdictions are using “good moral character” as they had heretofore utilized  “proper cause,” as an effective means to deny a person a coveted handgun carry license. And lawsuits are being prepared. And, once again, ever again, Americans face the same frustrations, when it comes to the exercise of the natural law right of armed self-defense.Litigation is to be avoided if possible. There is a better way; more effective; substantially less time-consuming; and certainly more cost-effective. In New York, voters have a chance this November to overturn the present oppressive and repressive handgun licensing regime and  their oppressive, unresponsive Government. They can accomplish this by electing, as the new Governor of New York, Lee Zeldin. Unlike the present Governor of New York, Kathy Hochul, Lee Zeldin is a true and fervent advocate of one’s right of armed self-defense. And he is also something that Kathy Hochul is not. He is a law and order Candidate for New York Governor. Lee Zeldin would also take definite steps—rather than rely on the same tiresome words and the same lame excuses to rationalize an inability or, worse, a clear lack of will—to come to grips with the intractable, horrific crime problem plaguing and engulfing New York, especially the City of New York.Many New Yorkers understand this. Will political independents and a sufficient number of Democrats take a leap of faith and vote for people who have their best interests at heart this November? Will they forbear from voting for people who say they care about the well-being of New York and of the residents in it, but, through their actions, make clear they do not?Governor Kathy Hochul and New York City Mayor Eric Adams, and Democrat Party Legislators in Albany do not represent the interests of New Yorkers. They represent the interests of a small group of billionaire Neoliberal Globalist “elites” and Neo-Marxist cultists. And the aims of these people are not the preservation of a free Constitutional Republic, but, rather, as becomes more evident with each passing day, its destruction.____________________________________Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.