THE SECOND AMENDMENT BRUEN CASE IS THE MOST IMPORTANT U.S. SUPREME COURT CASE TO BE DECIDED THIS 2021-2022 TERM

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

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THE SECOND AMENDMENT BRUEN CASE IS THE MOST IMPORTANT U.S. SUPREME COURT CASE TO BE DECIDED THIS 2021-2022 TERM

NEW YORK OPENLY DEFIES U.S. SUPREME COURT BRUEN DECISION

PART NINE

PREFACE TO DEEP ANALYSIS OF NEW YORK’S RESPONSE TO BRUEN DECISION

The Arbalest Quarrel (“AQ”) has, in the last few weeks, spent, and will continue to spend, considerable time on the recent case NYSRPA vs. Bruen, for a few important reasons.

FIRST: THE BRUEN RULINGS ARE VITAL TO THE SECURITY OF A FREE STATE

Bruen is the first major Second Amendment case decided by the High Court in twelve years and it is the most important U.S. Supreme Court case to be decided this term, October 2021 through October 2022.Not even the recent “abortion” case, Dobbs vs. Jackson Women’s Health Organization comes close to the import of Bruen. And there is a simple reason for that: There is no fundamental, unalienable, immutable right of abortion even as Congressional Democrats, along with the Biden Administration and proponents for it, in the Country at large, insist otherwise. The High Court made that point clear, in its decision released on June 24, 2022, overturning Roe vs. Wade.Contrariwise, armed self-defense against predatory animal, predatory man, and predatory Government is a fundamental, unalienable, immutable, illimitable, and eternal natural law right even as those same Democrats chime in that it is not. And the High Court made that point clear, too, in its decision released one day before Dobbs, on June 23, 2022. In Bruen, the High Court reaffirmed and clarified its decisions in Heller and McDonald, and pointedly held that the right of the people to keep and bear arms extends beyond the boundaries of one’s home into the public sphere. That means the natural law right of self-defense, generally, and armed self-defense, particularly, isn’t limited in space and time. To hold otherwise is empirically wrong and even nonsensical. Because a firearm provides a person with the best means of defending one’s life, the right of armed self-defense, as subsumed in the natural law right of self-defense/personal survival can't be lawfully proscribed by Government. Associate Justice Thomas, writing for the Court’s Majority, in Bruen, made this point emphatic: “. . . confining the right to ‘bear’ arms to the home would make little sense given that self-defense is ‘the central component of the [Second Amendment] right itself. . .’ [adding] ‘Although we remarked in Heller that the need for armed self-defense is perhaps ‘most acute’ in the home, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it.”Nothing is more essential to the sanctity and inviolability of the individual and to the maintenance of the sovereignty of the American people over the Nation and its Government than the natural law right of armed self-defense.Bruen therefore demands our close attention and scrutiny.

SECOND, NEW YORK’S “PROPER CAUSE” GUN LAW REQUIREMENT IS INCONSISTENT WITH THE SECOND AMENDMENT AND IT IS THEREFORE UNCONSTITUTIONAL ON ITS FACE

Bruen came to the U.S. Supreme Court as a challenge to the core of New York’s handgun law. Therefore, New York’s response to the Bruen decision will be scrutinized by two groups of Americans: those who support and cherish the right of the people to keep and bear arms, and who wish both to preserve and to strengthen that fundamental, unalienable right; and those who do not, and who desire to constrain exercise of this essential natural law right.This latter group that seeks to dismantle our free Constitutional Republic cannot do so for soever as long as an armed citizenry exists. Therefore, they seek de jure or de facto repeal of the right. This isn’t hyperbole. Retired Associate Justice John Paul Steven demonstrated his animosity toward an American armed citizenry in a combined Stevens-Breyer dissent to Heller. And, after he retired from the Court, this U.S. Supreme Court Justice went further. Stevens called for outright repeal of the Second Amendment—something he dared not suggest while serving as a Justice—for the duty of a Justice is to uphold the U.S. Constitution, not tear it down. But the repeal of the Second Amendment is something Justice Stevens profoundly felt. See, e.g.,John Paul Stevens Op-Ed in the New York times, titled, “John Paul Stevens: Repeal the Second Amendment,” published on March 27, 2018. 

THIRD, AN ARMED CITIZENRY IS VITAL TO THE PRESERVATION OF A CONSTITUTIONAL REPUBLIC AND SOVEREIGN PEOPLE OVER GOVERNMENT: THE DISRUPTION OF IT IS MEANT TO T

Our free Republic cannot continue to exist in the absence of America’s citizen army. Those who exercise the right know this as axiomatic. And those powerful forces that seek to destroy the Republic also know this to be self-evident true. But, apart from a few individuals—and most notoriously, John Paul Stevens—few people do not boldly pronounce this. Instead, the legacy Press proclaims disarming the public is all about ensuring public safety, public order, and public harmony, adding as an afterthought, that constraining the right of the people to keep and bear arms, ostensibly for the good of society, does not mean erasing it. But the appeal to public safety is mere deflection. Yet many Americans fall into the trap—all too willing to sacrifice their natural law rights, believing erroneously that this is for the good of society. It is absolute control over the commonalty of this Country that the Neoliberal Globalists and Neo-Marxists want and intend to attain. The continuation of an armed citizenry is inconsistent with that goal. That can't come about as long as an armed citizenry exists in the Nation. 

FOURTH, THE BRUEN CASE CAME ABOUT BECAUSE TOO MANY STATES AND COURTS REFUSED TO COHERE TO THE STRICTURES OF HELLER AND MCDONALD

The Bruen decision is one more salvo in a continuing war for the soul of the Nation. The Hochul Government, for one, has openly defied the U.S. Supreme Court. Why has Hochul done this?The “why” is obvious. Kathy Hochul, who once received an “A” rating from NRA, now works for the Billionaire Neoliberal Globalist “elites” who fund her bid for Governor in 2022. These are the same wealthy and powerful people who had continuously funded her predecessor, Andrew Cuomo’s campaign. See article in the New York Post. The notion of an armed citizenry is incompatible with the goal of the interests of those people who are funding her campaign. These people are Globalists. They seek an end to our Country as an independent, sovereign Nation-State. They perceive the Bill of Rights as inconsistent with their goal of a one-world government devoid of nation-states and devoid of citizen armies. So, Kathy Hochul no longer supports the right of the people to keep and bear arms. But in classic politician-fashion Hochul doesn’t acknowledge the inconsistency in her position, nor does she allude, much less assert, to what and to whom she now owes allegiance. Rather, she maintains her position has “evolved.” 

THE BRUEN CASE DEMANDS THE PUBLIC’S ATTENTION LEST THE PUBLIC LOSE BOTH THEIR NATURAL LAW RIGHT AND THEIR COUNTRY

How is it that Hochul and the New York State Legislature continue to offend the Second Amendment and the U.S. Supreme Court?The “how” unlike the “why” is not obvious and demands thorough attention.The “how” unlike the “why,” apropos of the changes to New York’s gun law, isn’t obvious and it is not easy to understand. It demands explication so Americans who cherish the right of the people to keep and be armed understand what it is they are up against. A new round of lawsuits has recently been filed. This, unfortunately, is a disturbingly familiar pattern-scenario—costly, time-consuming, and wearying on Americans. AQ’s contribution comprises a series of articles to explicate New York’s Gun Law considering Bruen and to provide both first-time prospective New York handgun licensees and those applicants seeking renewals of existing handgun licenses, a roadmap as to what to expect and how to proceed. In that vein, one should keep in mind that, although the Hochul Government has signed new amendments into law, those amendments aren’t operational rules. The City of New York and the Counties, and the State Police must work out what those rules are, to implement the changes in the Gun Law. To that end AQ looks at what Heller, McDonald, and Bruen require apropos of what the New York Government has done to create further obstacles for New Yorkers. A complete treatment requires not only an exploration of the recent New York amendments to its Gun Law in specific response to Bruen, but also a consideration of a panoply of recent changes to and additions to the Gun Law and to the entirety of New York’s elaborate handgun licensing regime that goes back to the Safe Act of 2013, and even before that—to the Sullivan Act of 1911, the progenitor of handgun licensing in New York. Given the present urgency, AQ will spend its energy reviewing both the recent amendments to the Gun licensing regime apropos of Bruen, and amendments to New York’s handgun regime Pre-Bruen that complement the Post-Bruen changes. A full discussion must include a consideration of New York’s recent “Red Flag” law that Hochul and Albany have incorporated into the Post-Bruen amendments, and which further endangers a citizen’s exercise of his or her unalienable right to keep and bear arms.

WHAT IS BRUEN ALL ABOUT?

AQ has heretofore laid out the basics of Bruen. In an earlier segment (Part 2) of our analysis, we pointed out: There are two key components to the Bruen Majority Opinion. One key component involves the test Federal, and State Courts must employ when they review Governmental actions that impact the Second Amendment of the Bill of Rights.The second involves the matter of “proper cause” that is at the heart of the gun licensing regime of New York and was the central topic at oral argument in Bruen, held on February 2022.AQ now deals with those two key component parts in depth, turning first to the “proper cause” aspect of the Bruen ruling, which we get to in the next segment of our Post-Bruen case series analysis._______________________________________________

PROPER CAUSE NO LONGER EXISTS IN NEW YORK GUN LAW BUT ITS REPLACEMENT, TO TAKE EFFECT ON SEPTEMBER 2^ND, LEAVES NEW YORKERS WORSE OFF THAN UNDER THE PRESENT GUN LAW

PART TEN

The “proper cause” issue is what Governor Kathy Hochul’s Administration, along with the New York State Democrat Party-controlled Legislature in Albany, had to contend with, once the U.S. Supreme Court struck down the “proper cause” requirement of the Gun Law, as unconstitutional. Hochul made clear in her statements to the Press that New York would not buckle under to the U.S. Supreme Court. Her remarks are both seditious and provocative. The Governor’s remarks are seditious because the amendments to the Gun Law demonstrate the State’s disregard for the Court’s rulings, even as Hochul claims to adhere to them. She has made clear, on the official Governor's website, that there will be no immediate changes to gun policies and the permitting process.  The Governor’s remarks are also disrespectful and presumptuous. See these remarks as well as published on the Governor's official website. Hochul’s Administration and the Democrat Party-Controlled Legislature, and their respective teams of lawyers, meticulously crafted a set of amendments to the New York handgun law. The amendments they crafted serve not only to preserve the law—the Sullivan Act of 1911, long since codified in NY CLS Penal § 400.00 et. seq.—but, as with the New York Safe Act of 2013, the amendments bolster New York’s stringent gun laws. The amendments exemplify Hochul’s resolve to defeat the impact of the Bruen rulings, notwithstanding the elimination of the “proper cause” requirement and make acquisition of a concealed handgun carry license even more difficult than it had been since the Legislature enacted a “proper cause” requirement. In a feat of legerdemain, the drafters toughened, did not ease, the standard for obtaining an unrestricted concealed handgun carry license. Clearly, Hochul doesn’t want to make acquisition of concealed handgun carry licenses an easy procedure. To frustrate that process, her Government wishes to continue to offer a restricted license as a “booby prize.” Yet, even in that, an applicant will find that obtaining a restricted handgun license is no longer a sure thing either.The amendments to New York’s Sullivan Act negatively impact all categories of handgun licenses, restrictive and unrestrictive. Thus, the stringent character of New York’s Gun Licensing regime remains intact.  To fully comprehend and appreciate how the State maneuvered around Bruen, pulling a switcheroo on both the U.S. Supreme Court and those who may have thought it easy now to obtain an unrestricted New York concealed handgun carry license, we peruse the language of the handgun law, comparing the law as it presently exists and the changes to it, effective September 2, 2022.

THE NEW YORK GUN LAW IS DIFFICULT TO UNDERSTAND

One first notices that New York’s Gun Law is confounding and mystifying. There is a dizzying array of handgun licenses. The full array of handgun licenses is set forth in NY CLS Penal § 400.00(2) of New York’s Penal Code. It is titled, “Types of Licenses,” and it reads:“A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judicial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession; . . . .” You would think that the three seminal Second Amendment case holdings, Heller, McDonald, and now, Bruen, would have swept away NY CLS Penal § 400.00(2) but for NY CLS Penal § 400.00 (2) (f)—a handgun license to “have and carry concealed, without regard to employment or place of possession.” But, surprisingly, NY CLS Penal § 400.00 (2) remains in its entirety, thus demonstrating the Anti-Second Amendment fervor of New York’s Governor and that of the Democrat Party-Controlled Legislature. If the Hochul Government had sought to cohere to the Bruen rulings, she would have called upon the Legislature in Albany to draft the Gun Law to eliminate handgun license categories as redundant, except for the unrestricted concealed handgun carry license category, and she would have liberalized the standard in acquiring an unrestricted handgun carry license. After all, why would a person wish to acquire only a restrictive handgun premise license since the U.S. Supreme Court held the right of armed self-defense extends beyond the home?Yet, Governor Hochul and the Democrat Party-Controlled Legislature in Albany had other ideas, and the multi-tiered hierarchical handgun licensing structure remains intact.

THE TAKEAWAY

That the whole of NY CLS Penal § 400.00 (2) still exists after Bruen, demonstrates not only the tenacity and stubbornness of Anti-Second Amendment politicians to thwart both the Bill of Rights and the rulings of the United States Supreme Court, but their ingenuity and cunning in subverting the rulings of the High Court. The amendments to NY CLS Penal § 400.00 (2) make acquisition of a handgun license tortuous and as difficult to come by as before Bruen.In the next segment, AQ explains how New York’s Anti-Second Amendment Government has exploited a seeming loophole in Bruen to defeat compliance with the Court’s ruling on “proper cause.”_____________________________________Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

NEW YORK GOVERNOR KATHY HOCHUL DOESN’T CARE WHAT THE U.S. SUPREME COURT SAYS ABOUT THE STATE'S HANDGUN LICENSING STATUTE

POST BRUEN—WHAT IT ALL MEANS BOTH FOR THOSE WHO SUPPORT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY EXERCISE OF THE RIGHT

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NY GOVERNOR KATHY HOCHUL CONTINUES TO CONSTRAIN THE CIVILIAN CITIZEN'S RIGHT OF ARMED SELF-DEFENSE

PART FIVE

Not content simply to say New York won’t comply with Bruen, the New York Governor’s response to Bruen points to open revolt with the U.S. Supreme Court and the U.S. Constitution.On June 23, 2022, the U.S. Supreme Court officially released its decision in the Bruen case. On that same date a Press Release appeared on New York Governor Kathy Hochul’s website. It says much about her position on civilian citizen possession of handguns in public and what she thinks about the Court and its decision in Bruen. It reads as follows:“Good morning, everyone. We just received some very disturbing news from Washington; that the Supreme Court of the United States of America has stripped away the state of New York's right and responsibility to protect its citizens with a decision—which we are still digesting—which is frightful in its scope of how they are setting back this nation and our ability to protect our citizens back to the days of our founding fathers. And the language we're reading is shocking.As Governor of the State of New York, my number one priority is to keep New Yorkers safe, but today the Supreme Court is sending us backwards in our efforts to protect families and prevent gun violence. And it's particularly painful that this came down at this moment. . . . Today, the Supreme Court struck down a New York law that limits who can carry concealed weapons. Does everyone understand what a concealed weapon means? That you have no forewarning that someone can hide a weapon on them and go into our subways, go into our grocery stores like stores up in Buffalo, New York, where I'm from, go into a school in Parkland or Uvalde.This could place millions of New Yorkers in harm's way. And this is at a time when we're still mourning the loss of lives, as I just mentioned. This decision isn't just reckless, it's reprehensible. It's not what New Yorkers want. We should have the right of determination of what we want to do in terms of our gun laws in our state.If the federal government will not have sweeping laws to protect us, then our states and our governors have a moral responsibility to do what we can and have laws that protect our citizens because of what is going on—the insanity of the gun culture that has now possessed everyone all the way up to even to the Supreme Court.The law we're talking about has been in place since the early 1900s. And now to have our ability to determine who is eligible for a concealed carry permit—this is not an ordinary permit. This is a special use that you can hide it from people. We have limitations, if it's for a proper cause, someone who's been threatened, someone who needs it for their job as a security guard. We have classifications where it is allowed and has been allowed for over a hundred years.”In tone and content Hochul’s message is astonishing. It is a polemic directed at both present and future handgun license holders in New York. But, more than that, it is a presumptuous and dangerous assault on the Third Branch of Government, the U.S. Supreme Court, and on the sanctity and inviolability of the citizen’s natural law right of armed self-defense as codified in the Second Amendment of the Nation’s Bill of Rights.In that Press Release, Hochul says she’s “still digesting” the scope of the decision. But is that true? Hardly. New York had prepared its response to Bruen months ago.Consider——On July 2, 2022, seven days after the release of the decision, and a scant two days after she called for an “extraordinary session of the Legislature in Albany . . . to discuss the impacts of the [Bruen]. . . decision overturning New York State law that previously placed ‘proper cause’ restrictions on the issuance of permits for concealed carry firearms in the state,” Hochul signed into law an extensive and elaborate array of amendments to New York’s handgun licensing statute, including amendments to related statutes, that sailed through the State Legislature in Albany. See article on the jdsupra website.The speed of the process—from drafting of amendments, to their introduction in the State Senate and Assembly, then on to assignment to Committee, Committee markups, then passage of the amendments by both the Senate and the Assembly and the forwarding of the amendments to Governor Kathy Hochul for her signature—all in the space of a week is remarkable—too remarkable to be believed. One must infer that Hochul had notice of the decision well in advance of the official release of the case decision—probably at some point after oral argument that took place in November 2022. The amendments were ready to go upon official release of the Bruen decision. Hochul’s signing off on the amendments was, then, a foregone conclusion. The release of the Bruen decision simply served to trigger enactment of the amendments to New York’s handgun licensing Statute.How bad are these amendments? They are worse than one can imagine. Present holders of valid unrestricted and restricted New York concealed handgun carry licenses will find renewing their licenses difficult. And first-time applicants for concealed handgun carry licenses will find the requirements for issuance of them no less confounding and onerous than before Bruen, and much more vexing.How did New York get to this point? Actually, New York had been moving toward this point for quite some time!The progenitor of New York’s modern handgun licensing regime codified in NY CLS Penal § 400.00 et. seq., that took effect on September 1, 1967, is the Sullivan Dangerous Weapons Act of 1911. It was enacted on August 31, 1911. Handgun carry licensing is not of recent vintage, then. The State has required handgun licensing for close to 112 years, and the State’s desire to keep it is deeply entrenched in the psyche of the Government, and in the psyche of many residents of the State.New York’s handgun license statute—the Sullivan Act that Kathy Hochul refers to in her Press Release—is a reminder to the State, to the Nation, and to the U.S. Supreme Court that the Sullivan Act is here to stay in New York, regardless of anything the U.S. Supreme Court has to say about it. The Sullivan Act has gone through several incarnations since its enactment in 1967—but it always remains true to form—a handgun licensing regime, whose roots are deep and wide. Ostensibly created to deal with incessant crime by constraining the public’s access to handguns, the Sullivan Act failed in that objective, but New York kept it anyway, adding to it through the subsequent years and decades.Indeed, the fairly recent New York Safe Act of 2013 is merely an aspect and extension of it, not distinct from it. And several amendments to the Safe Act have proceeded since—a flurry of them only in the past couple of years. The most recent amendments, springing directly from the Bruen decision, take effect, formally, on Monday September 4, 2022. As the New York State Court of Appeals has explained, the Sullivan Act qua Penal Law § 400.00 “is the exclusive statutory mechanism for the licensing of firearms in New York State. O’Connor v. Scarpino,” 83 N.Y.2d 919, 638 N.E.2d 950 (N.Y. Ct. App. 1994). And that means, for the civilian citizen, there is no way to get around it. Handgun licensing is the foundation of New York’s assault on the Second Amendment and that of many other jurisdictions as well.New York’s handgun license statute has gone through several iterations since its enactment in 1967. But the most recent amendments to it, coming on the heels of Bruen, will take effect on September 4, 2022. Section 400.00 plus the Post-Bruen Amendments IS the Sullivan Act brought into the 21^st Century.Back then as now, New York, and other jurisdictions, including California and Illinois, rationalized civilian arms control as necessary to promote “public safety.” And Governor Hochul’s Press Release echoes that sentiment that hearkens back to the turn of the 20^th Century, even as the crime rate in New York in the 21^st Century continues to soar. Continued constraints on civilian access to firearms in defiance of the Second Amendment has become an end in itself although Anti-Second Amendment proponents will rarely, if ever, say that and as many in Government will readily deny it even as they push for further constraints on the exercise of it.“As the California Supreme Court ruled in People v. Camperlingo (69 Cal. 466 [1924]), ‘It is clear that, in the exercise of the police power of the state, that is, for public safety or the public welfare generally, such right [to bear arms] may be either regulated or, in proper cases, entirely destroyed.’ The Illinois Supreme Court ruled in Biffer v. City of Chicago (278 Ill. 562 [1917]) that ‘the sale of deadly weapons may be absolutely prohibited.’” “Firearms Regulation: A Historical Overview,” 28 Crime & Just. 137, by Michael A. Bellesiles, Professor of History, Emory University. The New York Governor, Kathy Hochul, and the State Legislature, and the State and Federal District and U.S. Circuit Court of Appeals are all onboard with this. The average civilian citizen resident of New York has wide chasm to cross to obtain the coveted prize of an unrestricted concealed handgun carry license. And that chasm has just become wider.___________________________________

“PUBLIC SAFETY” IS A RUSE TO GET NEW YORKERS ON BOARD WITH FURTHER RESTRICTIONS TO THE LICENSING STATUTE

PART SIX

The lure of “public safety” explains the Sullivan Act’s longevity. Anti-Second Amendment jurisdictions refer to it often. Yet, to what extent Governor Kathy Hochul and the Legislature can honestly be said to believe that stringent curbs to civilian citizen possession of firearms does truly promote public safety—given the horrific upward spiral of violent crime in New York, predominantly in New York City, is open to conjecture. But the fact many New Yorkers believe that keeping handguns out of the hands of average, law-abiding, and responsible civilian citizens does contain violent crime, is apparently enough for both the Governor and for the State Legislature in Albany to continue to promote further and severe constraints on civilian citizen armed self-defense. If “Public safety”—whether clever, deceptive Government ruse or honest, albeit erroneous, Government belief—serves as the raison d’être for the handgun licensing regime, then application of “proper cause” is the mechanism that serves to constrain the average, rational, responsible, law-abiding civilian citizen from lawfully possessing a handgun in the public sphere. Armed self-defense thus remains a privilege in New York, notwithstanding the language of the Second Amendment that professes to express armed self-defense as a fundamental, unalienable right of the people.New Yorkers can change handgun carry laws in New York. And it is a simple process to do so as long as the public has the will to do so: simply vote Governor Hochul and those Legislators who hold the same views as she does toward handgun licensing in New York, out-of-office. New Yorkers have an opportunity to do so this November 2022.If New Yorkers demur, then they will continue to suffer. Violent crime will continue to rise, and innocent people will continue to die.A leap of faith is required here. It shouldn’t be difficult, given the irrationality of restrictive gun measures that simply target the law-abiding citizen, and not the criminal. But strong beliefs, even irrational ones die hard.

NEW YORK GOVERNOR KATHY HOCHUL DOESN’T GIVE A DAMN WHAT THE U.S. SUPREME COURT SAYS ABOUT NEW YORK’S HANDGUN CARRY LAW, SHE PRESUMES TO KNOW BETTER THAN THE COURT.

It is one thing for a Government to rely on an erroneous belief as justification for infringing a fundamental, unalienable, immutable, eternal natural law right of the American people. It is quite another thing to brashly defy the U.S. Constitution and the U.S. Supreme Court, substituting one’s own judgment, and normative beliefs, and personal political and social philosophy, for that of the precepts and stricture of the U.S. Constitution.The U.S. Constitution, as promulgated by men much wiser than Governor Hochul and Anti-Second Amendment Legislators in Albany has, through the test of time, proved its value. This Country, in the space of almost 250 years, has outstripped any other modern Nation, becoming by far the wealthiest, most powerful, most prosperous, any Nation on Earth. The U.S. Constitution, grounded on the precepts of Individualism has enabled this. It is no accident.The prescription for the Nation’s success is simple: Government exists to serve the interests of the American people, and they, not Government, are sovereign over Government and over their own destiny.Indeed, the tacit theme of all three seminal Second Amendment cases—Heller, McDonald, and Bruen—is that Government must pay homage to the natural law rights of man.But Governor Hochul and the New York State Legislature will have none of that just that. The forces they represent and pay homage to have other plans for Americans. There is no limit to their disdain for the Constitution, their rudeness toward the U.S. Supreme Court, and their contempt for the American people.Through tortuous, guileful legislative legerdemain, the New York Government has enacted an elaborate set of amendments to the State’s handgun licensing Statute, Section 400.00, and to the concealed handgun carry Section of the Statute, especially, NY CLS Penal § 400.00(2)(f).  These amendments serve merely as a pretense of compliance with Bruen, and a poor one at that.But they don’t fool anyone, especially the Court. On inspection, the State’s “Post-Bruen” Amendments to Section 400.00 are excessively harsh, brutal really.   To understand how that is, it helps to understand what the New York handgun licensing Statute looked like prior to Bruen. We delve into that and compare and contrast the original Section 400.00 handgun licensing Statute with the amendments to it in the next article.

NEW YORK’S HANDGUN LICENSE STATUTE PRIOR TO BRUEN IS BAD; AFTER BRUEN IT IS WORSE

In the most recent iteration, prior to Bruen, applicants for any New York handgun license—whether restricted or not—had to comply with Section 400.00(a), which denies possession of a handgun to anyone who is under disability as defined in Federal Statute, 18 U.S.C § 922.  New York has adopted that Statute for its own use. Up till now, to obtain a concealed handgun carry license, applicants in the general population had to demonstrate “proper cause,” set forth in, but never defined in, Penal Code Section 400.00(a).The State Legislature has left it up to the licensing authorities of the Counties to specify “proper cause,” and what that is has remained quite nebulous. The whole point of this is to make it difficult for the average person to acquire a carry license. So, few have tried, and most that have tried have failed secured such licenses. Under the New York Constitution’s Home Rule provision, though, New York City is permitted to adopt its own “proper cause” requirements for applicants of concealed handgun carry licenses, and it has done so. These are set forth in 38 RCNY 5-03. They are stringent, but, at least, not inherently nebulous.Individuals who presently hold valid concealed handgun carry licenses in the City, which NYPD License Division has exclusive authority to issue, have, through time, adapted to the NYPD License Division’s “proper cause” requirements. These requirements are aimed at providing a mechanism for the City’s entrepreneurial class to obtain licenses.It suggests an explicit attempt at accommodation of business practices—operating as both cause and effect. The NYPD License Division establishes the requirements for business entrepreneurs to qualify for a concealed handgun carry license, and those entrepreneurs do their best to comply with those requirements. Compliance with those requirements have thus enabled a small number of people, New York City’s entrepreneurial class that happens to handle substantial amounts of cash in the usual course of their business, to obtain a coveted handgun carry license. The NYPD License Division establishes the criteria under which applicants for handgun carry licenses can satisfy requirements, and those business applicants oblige the NYPD. So, it has been for decades. That now goes out the door.Under the requirements for a concealed handgun carry license in New York City and in the rest of the State—that take effect in September—the City’s Rules will not be valid. Be that as it may, at present, the NYPD License Division has yet to revise its Rules for issuance of concealed handgun licenses. But the Division will have to. The City’s Home Rule Charter gives the NYPD License Division substantial leeway to establish its “proper cause” criteria, but the City’s criteria have to be consistent with the intent of the Statute. The present rules are not consistent with the amendments to Section 400.00 that take effect in September.Those entrepreneurs who have business establishments in the City and who have adapted their business procedures to cohere to the NYPD License Divisions procedure will find their pro forma renewal process no longer open to them. They are in jeopardy of losing acquisition of concealed handgun carry licenses that heretofore they could rely on as long as their business operations and practices remained consistent through time. Upon renewal of their present license, they must comply with the new requirements or forsake their concealed handgun carry license. We investigate those in the next article, Part Seven of this series._____________________________________Copyright © 2022 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

NEW YORK SANCTIONS MURDER THROUGH ENACTMENT OF REPRODUCTIVE HEALTH ACT OF 2019

Americans will remember Andrew Cuomo, the 56^th Governor of New York, long after he leaves Office and longer still, once he has departed from this Earth. They will remember Andrew Cuomo, but not in a good way. They will remember him for ramming through the State Government in Albany, two policy measures, both of which are antithetical to the core values, beliefs, and traditions of Americans, and both of which are inconsistent with the core tenets of the Bill of Rights of the United States Constitution.These two reprehensible policy measures go by the names: New York Safe Act and the Reproductive Health Act. Governor Cuomo has championed both these policies. With his political clout Cuomo forced both measures through the State Legislature, in Albany. Cuomo signed the former into law on February 15, 2013. He signed the latter into law, recently, on January 22, 2019.The descriptors employed for these two laws belie their purpose, as most laws do. Cuomo tells New York’s residents that the salient purpose and goal of the NY Safe Act is to promote and enhance public safety. But a perusal of the Act makes clear its true purpose and goal: disarming law-abiding members of the public.The NY Safe Act operates through a multitude of arcane laws that place extraordinary restrictions on firearms’ ownership and possession. A person has difficulty finding them all, as they are peppered throughout the New York State Code. Once found, their meaning is difficult to discern and fathom, even for lawyers, as the verbiage is ambiguous and vague. Whether due to unintentional poor draftsmanship or due to a deliberate attempt to obscure and confound, Cuomo and other antigun zealots do intend to frustrate the citizen, and, so, dissuade the citizen from obtaining and maintaining firearms within the jurisdiction of New York.Cuomo exclaims that he is more desirous of promoting, enhancing, and securing public safety and less intent on defeating the citizen’s exercise of a fundamental, enumerated, unalienable right. Hardly true, but, one thing is true enough. The NY Safe Act makes the public decidedly less, not more, safe, as it becomes an easy target for armed predators who demonstrate regard neither for law nor for the sanctity of human life. Thus, one is left to draw the inescapable conclusion that the NY Safe Act has, ultimately, nothing tangible to do with promoting, securing, and enhancing public safety and everything to do with undermining the ideals of individual responsibility, autonomy, and inviolability.It should come as no surprise then, that Andrew Cuomo would endorse a measure that amounts to legally sanctioned murder in the case of the State’s new “Reproductive Health Act,” for it is the individual—in this case the most innocent among us, the unborn child—whom the Reproductive Health Act targets. Murder, after all, may, in a figurative sense apply to an assault on society at large, writ large, but murder is a literal, life-ending assault on the integrity, and inviolability of the individual, as so defined with particularity in both Federal and State law.As with those who espouse the radical left-wing doctrines of Socialism and Communism, Cuomo is a ‘Collectivist.’ When Cuomo expresses concern for the health, well-being, safety, or welfare of the public, he uses the word, ‘public’ in a broad sense, consistent with the precepts of Collectivism. He refers to the body politic in its entirety; not to the individuals who comprise it.The ethical system Cuomo and other Collectivists embrace is called utilitarian consequentialism. This is an ethical system devoid of reference to or concern with a person’s intentions and motivations; only with the results of one’s actions. Motives and intentions fall out of the equation entirely. An action is deemed morally good or morally evil from the standpoint of consequences only. A morally good act is one that maximizes utility for the collective, the hive. A morally evil act or a morally neutral act is one that does not maximize utility for the collective.The notion of ‘utility maximization’ is nebulous. It means whatever the proponent of utilitarian consequentialism, says it means; nothing more. Utilitarian consequentialism an ethically bankrupt system as is ‘utility maximization, underlying it since, for the utilitarian consequentialist, good and evil are relative to times and circumstances. They aren’t, contrary to a person’s expectations. with the notion of fundamental rights and liberties, as relative concepts derived from and created by man, not by God.Not surprisingly, utilitarian consequentialists espouse no concern for the health, welfare, and well-being of the individual but only for that of an amorphous mass. Thus, Cuomo, the Collectivist and Utilitarian Consequentialist, does not express concern for the life, health, well-being and welfare of the individual souls of the body politic, but only concern for the well-being and welfare of the collective, “the hive.” Understandably, Andrew Cuomo would help draft the text of, avidly support enactment of, and sign into law such morally reprehensible schemes as the Reproductive Health Act and the New York Safe Act. Both these Acts have a decisive, negative impact on the life, health, safety, welfare, and well-being of each American citizen. Cuomo and others attempt to hide the awful impact of these schemes on Americans. They do this through carefully conceived and orchestrated campaigns of deception.Not unsurprisingly, the wording of New York’s Reproductive Health Act, as with the wording of the New York Safe Act, deliberately obscures and, in fact, belies its true purpose and effect. One sees the true import and purport of the Act only when one drills down into the language of it. Like the New York Safe Act, the Reproductive Health Act betrays the sanctity and inviolability of the life. It betrays the welfare and well-being of the American citizen. The New York Safe Act has nothing to do with promoting and enhancing safety. And the Reproductive Health Act has nothing to do with promoting health. It is a Death Act, not a Life and Health Act.Most Americans do not share Andrew Cuomo’s beliefs and wish neither to adopt nor suffer his political, social, and bankrupt moral belief system. But he thrusts his beliefs and belief system on others anyway. Since Cuomo wields considerable power and influence in New York and shows no reluctance in utilizing that power and outsize influence, those falling within the purview of his jurisdiction—namely the State of New York—are compelled to live in a reality, a hell-world, he has created for them. Few can object as Cuomo seeks to control public discourse, thought, and action; and, with the avid assistance of the mainstream media, he has become very successful at it.The qualities of compassion, restraint, humility, and respect for the beliefs of other Americans simply don’t exist in Andrew Cuomo’s psychological makeup. Cuomo, as with so many other Collectivists that comprise the Democratic Party, both on the State and Federal level, demonstrates callous disregard for the feelings and beliefs of others. Forcing his peculiar belief system onto millions of others, he does so with the conviction and certitude of a fanatic and sociopath, seemingly convinced of the infallibility of and superiority of his beliefs, and unmindful and, indeed, disdainful for the thoughts and feelings of others.As a private citizen of the United States, Cuomo may, of course, hold to and cultivate and express any belief or belief system he wishes. That’s his right--the right of free speech--as guaranteed in the First Amendment to the U.S. Constitution. That harms no one. But, as Governor of New York, one would hope the Governor would be circumspect. He isn't. As a Public Official, Cuomo thrusts his belief system onto others. He now harms everyone; and what he has ordained cannot and ought not be countenanced; and, indeed, ought to be roundly and soundly condemned.Through enactment of the NY Safe Act, Cuomo at once denied and denigrated a fundamental right, the right of the people to keep and bear arms—a right that is clearly, concisely, and categorically articulated in the Second Amendment to the U.S. Constitution. He did this because he utterly detests the Second Amendment and he finds the right of the people to keep and bear arms to be repugnant to his own peculiar sensibilities. Cuomo operates as if the Second Amendment did not exist. Similarly, through enactment of the Reproductive Health Act, he operates as if the unborn child is a non-entity and may therefore be erased from existence.

GOVERNOR CUOMO DEMONSTRATES NO RELUCTANCE IN DENYING, TO A CITIZEN OF THE UNITED STATES, THE FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS--A RIGHT CLEARLY CODIFIED IN THE BILL OF RIGHTS OF THE U.S. CONSTITUTION, YET HE DEMONSTRATES, AT ONE AND THE SAME TIME, A WILLINGNESS TO READ INTO THE BILL OF RIGHTS A FUNDAMENTAL RIGHT TO MURDER AN UNBORN CHILD, WHICH HE VIEWS AS INHERENT IN A CONSTITUTIONAL RIGHT TO PRIVACY EVEN THOUGH SUCH NOTION IS NEITHER EXPLICITLY STATED IN THE CONSTITUTION NOR IMPLIED.

Let us take a look at what the Reproductive Health Act, 2019 N.Y. SB 240, Chaptered, January 22, 2019, 2019 N.Y. ALS 1; 2019 N.Y. Laws 1; 2019 N.Y. Ch. 1; 2019 N.Y. SB 240, actually says. Section 1, titled, “Legislative Intent,” sets forth:“The legislature finds that comprehensive reproductive health care, including contraception and abortion, is a fundamental component of a woman’s health, privacy and equality. The New York Constitution and United States Constitution protect a woman’s fundamental right to access safe, legal abortion, courts have repeatedly reaffirmed this right and further emphasized that states may not place undue burdens on women seeking to access such right.Moreover, the legislature finds, as with other medical procedures, the safety of abortion is furthered by evidence-based practices developed and supported by medical professionals. Abortion is one of the safest medical procedures performed in the United States; the goal of medical regulation should be to improve the quality and availability of health care services.Furthermore, the legislature declares that it is the public policy of New York State that every individual possesses a fundamental right of privacy and equality with respect to their personal reproductive decisions and should be able to safely effectuate those decisions, including by seeking and obtaining abortion care, free from discrimination in the provision of health care.Therefore, it is the intent of the legislature to prevent the enforcement of laws or regulations that are not in furtherance of a legitimate state interest in protecting a woman’s health that burden abortion access.”As made abundantly clear, through this Section of the Act, titled, “Legislative Intent,” Cuomo dares to raise to the level of a fundamental right, something that is nowhere explicit or implied in the Bill of Rights, or, for that matter, anywhere else, in the Constitution. Yet, those members of the New York Legislature who enacted New York’s Reproductive Health Act, and Governor Andrew Cuomo, who signed the Reproductive Health Act into law, have the audacity to raise the killing of an unborn child to the level of a fundamental Constitutional Right. And, having done so, these people dare deny to the unborn child, the sanctity and autonomy, to which that living soul, as any other soul, is rightfully entitled: the right to exist as a living being, created by the Lord.Contrary to the wording of New York’s Reproductive Health Act, no person has a fundamental right to abortion. The Constitution of the United States does not sanction abortion, under any set of circumstances. But, with enactment of the Reproductive Health Act, an oxymoron, the State of York now sanctions murder, and has the audacity of raising murder to the level of a fundamental right.How does Cuomo and other proponents literally get away with murder? They do this by denying personhood to a living soul. And, how do they do that? They do that by declaring, in principal part, that the mother’s right to privacy, outweighs the life of the unborn child. But, where in the Constitution does this right of presumptive privacy for the mother over the life and well-being of the unborn child exist? The answer is: nowhere.Privacy is nowhere mentioned in any one of the Articles of the United States Constitution; and certainly not in the Bill of Rights of the Constitution subsequent amendment to the U.S Constitution. To be sure, the Fourth Amendment to the U.S. Constitution does indeed codify the fundamental right of the individual to be free from unreasonable searches and seizures. But, only through a feat of legerdemain can one claim that a general right of privacy exists within the definitive explicit right of the citizen to be free from unreasonable searches and seizures. The concept of “unreasonable searches and seizures” is precise. The concept of ‘privacy’ is abstract and vague. Certainly, no sane argument can be made that a right to deny life to an unborn child equates with a right to be free from unreasonable searches and seizures. The framers of the Constitution could not have feasibly, rationally have intended that. Obviously, they have not. Only a fevered mind would believe otherwise.Now, one may argue that a general right to privacy, apart from the fundamental, unalienable, enumerated right of each American to be free from unreasonable searches and seizures does, arguably, exist as an unenumerated right of the Ninth Amendment to the U.S. Constitution, but, again, no one can reasonably construe the idea of the assault on the life of an unborn child as something that is to be subsumed in or as something that can rationally be subsumed in a general notion of privacy, even if only as an unenumerated right in the Ninth Amendment. Further, although there have been attempts to interject privacy into the discussion of abortion, one cannot do so without dismissing out-of-hand the fact that abortion logically entails the killing of an unborn child.The New York abortion law dares raise abortion to the level of a substantive, fundamental right. It does so despite the absence of either a clear legal or moral foundation for it. And for those who assert with conviction a woman’s unalienable right to an abortion, they must contend with the necessary consequence of it: the death of the unborn child. They do not wish to contend with that fact. But, if pressed, supporters of abortion will simply assert that the unborn child isn’t a person. The unborn child is simply perceived as a nonentity. Advocates of abortion thereupon deny to the unborn child the most sacred right of all—that of life itself. The moral dubiousness of and indeed the outright absurdity of their position is, thus, laid bare.For those State Officials, who, like Cuomo, claim concern for human life—there is a curious and odd “consanguinity” in both the recent abortion Act, and in the New York Safe Act. Both acts proceed from the false assumption that what Government deems best for society, perceived in its entirety, must take precedence over the welfare of the individuals who comprise that society.Ostensible concern for public safety is the pretext for the New York Safe Act of 2013. But, as with all restrictive firearms’ measures, the NY Safe Act demonstrates a lack of concern for the health, safety, and well-being of the citizen. Thus, the proponents of restrictive gun laws, such as the NY Safe Act, claim to maximize benefit for society, but that presumed benefit to society comes at a cost: the concomitant loss of any benefit accruing to the individual.Similarly, the Reproductive Health Act of 2019 claims to extol the virtue of health, privacy, and equal protection to society comprising a class of women who seek abortion; but, in so doing, the proponents of the Reproductive Health Act demonstrate a lack of concern for the health, safety, and well-being of the most innocent beings. Thus, the proponents of abortion on demand, claim to maximize a benefit for society, but that presumed benefit to society comes at a most severe cost: the concomitant loss of the most critical need of all—life itself—as it is individuals who suffer the consequence of abortion as their life is snuffed out.

NEW YORK’S REPRODUCTIVE HEALTH ACT SANCTIONS MURDER

Under any objective appraisal, New York’s Reproductive Health Act is an abomination. It sanctions as permissible conduct, acts of unimaginable savagery that other States codify in their own laws as impermissible, reprehensible, heinous criminal conduct: namely, murder.How does New York’s Reproductive Health Act do this? The Act sanctions murder by amending New York law: by adding to and deleting various provisions of New York public health law, penal law, the criminal procedure law, and other laws related to and regarding abortion.A new section of the Public Health Law of New York, Section 2599-bb reads:"A health care practitioner licensed, certified, or authorized under title eight of the education law, acting within his or her lawful scope of practice, may perform an abortion, when according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health."Those who defend the Reproductive Health Act argue that the law, as written, only prohibits abortion up to the third trimester, and at no time thereafter, unless “there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” A few points must be made to counter this unsound conclusion.First, by emphasizing prohibition of at will abortion after the third trimester, one loses sight of the fact that the Act does allow at will abortion during the first two trimesters, regardless of the viability of a child. Those favoring abortion point to the idea that the unborn child is not viable outside the womb before 20 weeks. Whether true or not that misses the point of the horror of abortion at all. It is simply a straw man argument in favor of abortion. If a child is healthy at any point during pregnancy, then the idea of viability inside or outside the womb should not be considered a rational factor in determining the legitimacy of abortion, whether during the first, second, or third trimester. In other words, abortion should not be countenanced at any point during pregnancy.Second, the New York Reproductive Health Act, as enacted, doesn’t limit the act of aborting a child to the services of a medical doctor. Virtually any individual who is licensed in New York, and “acting within his or her lawful scope of practice” may now lawfully perform an abortion in New York. The law broadly expands those who may conduct an abortion well beyond that of a medically trained and licensed physician certified in the field of obstetrics or gynecology. That should give anyone pause.Third, when analyzing the Act, one should pay attention to how the Reproductive Health Act changes New York’s Penal Code. The Penal Code has been extensively rewritten.Every Section of the Penal Code that refers to Abortion as a crime has been either deleted or repealed. Since abortion is no longer a crime, no one can, any longer, be charged with the crime for performing an abortion. Thus, even if one chooses to read Section 2599-bb very narrowly to proscribe abortions during the third trimester, in fact abortions are now perfectly legal in New York up to the point of birth of the child.Since criminal liability for abortion no longer exists in New York, no one can be held criminally liable for performing an abortion. This means that, in effect, anyone—literally anyone—can perform an abortion, contrary to the dictates of Section 2599-bb; and abortions can be lawfully performed up to and including the point where the mother is giving birth to a viable, perfectly formed, and healthy child.If there is any doubt about this, consider that New York’s County Coroners are now absolutely prohibited under the Reproductive Health Act from investigating abortion as a crime, in New York.“Section 11. Subdivision 1 of section of 673 of the county law, as added by chapter 545 of the laws of 1965, is amended to read as follows:A coroner or medical examiner has jurisdiction and authority to investigate the death of every person dying within his county, or whose body is found within the county, which is or appears to be:

• A violent death, whether by criminal violence, suicide or casualty;
• death caused by unlawful act or criminal neglect;
• death occurring in a suspicious, unusual or unexplained manner;

(d) A death caused by suspected criminal abortion;(e)A death while unattended by a physician, so far as can be discovered, or where no physician able to certify the cause of death as provided in the public health law and in form as prescribed by the commissioner of health can be found.”What does this Section of New York law mean? It means abortion—any abortion of a child—is perfectly legal in New York. It can be performed by anyone, and at any time.Where there is no liability for criminal conduct, there is, in effect, if not in fact, no crime. Abortion has literally been written out of the criminal code of New York.What is the bottom line here? Just this: In the absence of liability, one can reasonably conclude that:  Under New York’s Reproductive Health Act, abortion in New York is now permissible at any time, for any reason, performed by anyone. And, it gets even worse. Consider the following scenario: Suppose a woman, pregnant with child, has every intention of having a baby and that woman is assaulted by a criminal and, as a result of criminal assault, loses the baby. While the attacker can can be held criminally liable for harm to the mother, the attacker cannot now, unlike in the past, be held criminally liable for the death of the unborn child. The attacker cannot no longer be held liable for murder, for manslaughter, for criminal negligence—for anything related to the death of the unborn child.We can thus extrapolate from the law the following, where a pregnant woman is attacked an loses a child as a result of the attack:The loss of the child, as a result of an attack on the mother, may be construed as an unintended abortion. Since abortion is no longer a crime, the loss of the child from the abortion can no longer be deemed a crime. Cuomo himself makes the point by proclaiming that the mother cannot be held responsible for the loss of the child. But that misses the critical point. The question is not whether the mother can be held criminally liable for the loss of her child. Obviously, she cannot and ought not. Rather, the issue is whether the perpetrator of the violence on the mother can be held criminally liable for the harm done to the unborn child—i.e., the death of the child—caused by the perpetrator’s attack on the mother. He cannot!Since abortion is now ruled out as a homicide in New York in every instance, the child, as such, does not in law exist. One cannot be charged for a crime perpetrated on a non-entity. It is as if the mother were not pregnant at all. It simply no longer matters under New York law. It is not, then, merely that an unborn child is perceived as not worthy of life. It is as if the unborn child doesn’t exist; that the unborn child never existed. The child is not perceived as a person, but merely as an unwanted thing to be discarded.This is the new reality, the hellish cauldron of insanity and horror that Governor Andrew Cuomo’s Reproductive Health Act has thrown all New York residents into and which, like the reprehensible New York Safe Act, he would unleash on the entire Country if he were but given the chance.______________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

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

THE SECOND AMENDMENT GUARANTEE ACT

INTRODUCTION

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

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

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

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

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

WHAT DOES THE BILL SAY?

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

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

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

CONCLUSION

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

GUN LAWS THAT DO NOT MAKE SENSE, LITERALLY!

A Critical Look at California's New 'Assault Weapons' Bill and a Comparison and Contrast with New York's 'Assault Weapons' Laws

California is playing the child’s game of “leapfrog” with New York and with other States that enact draconian firearms laws. What do we mean by that? Just this: as one State Legislature drafts and enacts ever more draconian gun laws, the other States follow suit and attempt to do the first State, one better. Let’s see how this plays out.The New York State Legislature in Albany, NY, rewrote the law defining the expression ‘assault weapon.’ The Safe Act became effective on January 15, 2013 and was the de facto model for new antigun laws around the Country. The Safe Act was also the de facto model for Dianne Feinstein’s failed effort to enact a new federal assault weapons’ ban and ammunition ban in 2013. Fortunately, Republicans in Congress and the NRA stopped a federal “Safe Act” in its tracks.The Sandy Hook Elementary School shooting incident that occurred on December 14, 2012, in Newtown, Connecticut, was the impetus for – actually the pretext for – implementation of new and highly restrictive gun and ammunition bans.Notwithstanding oppressive gun restrictions in New York, the Safe Act further encroached on Americans' Second Amendment right to keep and bear arms, adding new restrictive provisions to the New York Penal Code and to other Statutory Sections of the Consolidated Laws of New York and making existing gun provisions even harsher.The drafters of the Safe Act aimed to ban ever more types of guns. To make guns bans palatable to the public, the drafters of the Safe Act continued, through the artifice of rhetoric to create the illusion that some firearms were evil. They called these firearms assault weapons.Once a firearm is defined as an ‘assault weapon,’ that firearm becomes, at the stroke of a pen, a “banned weapon.” Under present New York law, specifically, NY CLS Penal § 265.00(22)(A) and (C), firearms, namely, rifles and pistols that, one, are semiautomatic in operation, two, can accept a detachable magazine and – if the first two necessary conditions are met – then three, if those firearms have at least one of a specific set of features as set forth in NY CLS Penal § 265.00(22)(A) or (C). If all three conditions are met, then, under New York law, those rifles and pistols are, by virtue of a legal fiction, ‘assault weapons,’ and are, therefore, banned weapons.Under NY CLS Penal § 265.00(22)(B), Shotguns that are, one, semiautomatic in operation and, two, have at least one of a particular set of characteristics as set forth in NY CLS Penal § 265.00(22)(B) are also ‘assault weapons.’ And the New York Safe Act adds a fourth category of “assault weapons.” Under NY CLS Penal § 265.00(22)(D), Shotguns that utilize a revolving cylinder are, by definition, also ‘assault weapons’ and therefore banned weapons. We have discussed the legal fiction of 'assault weapons' as constructed by the drafters of the New York Safe Act, at length, in previous articles that appear on this site. See in particular: "Cuomo's NY Safe Act and the notion of 'assault weapon;'" "NY Safe: Looking at the 'assault weapon;'" and, "NY Safe: 'assault weapon' definitions.'"At the moment, typical handguns that utilize a revolving cylinder, and rifles that utilize a revolving cylinder – rare as revolving cylinder rifles  are – are not, under present New York law, defined as ‘assault weapons;’ but who can say what the future holds if antigun legislators, like New York Senator Jeffrey D. Klein, continue to control the politics of gun ownership and possession, and draft ever more onerous and heinous gun laws for law-abiding Americans who happen to reside in New York.Let us now compare the definitions for rifles that are also ‘assault weapons,’ as those definitions appear in both the California Penal Code and the New York Penal Code, because CA A.B. 1663, throws a wrench into the mix, specifically in respect to rifles.In the New York Penal Code rifles that are also assault weapons must, as we have said, be semiautomatic in operation and also be capable of accepting a detachable magazine. These are necessary conditions that must be fulfilled before a weapon can be considered an ‘assault weapon’ in New York. If and only if a rifle is semiautomatic in operation and is capable of accepting a detachable magazine, then NY CLS Penal § 265.00(22)(A), says that we look for additional characteristics that a rifle might have if it is to be deemed an ‘assault weapon’ under New York law. So, then, if the rifle has at least one additional characteristic, for example, a second handgrip, or a flash suppressor, or a folding or telescoping stock, or a bayonet mount, then the rifle is, under, NY CLS Penal § 265.00(22)(A), an assault weapon. Otherwise it isn’t.Cal Pen Code § 30515(a)(1), at the moment, reads much like NY CLS Penal § 265.00(22)(A). Cal Pen Code § 30515(a)(1) sets forth three requirements for rifles that are also assault weapons, two, of which, like New York, are necessary conditions that must be fulfilled: one, the rifle must be centerfire semiautomatic in operation, and two, the rifle must have the capacity to accept a detachable magazine. If those necessary conditions are met, then we look to see if the rifle has at least one of several listed features such as, inter alia, a pistol grip, a flash suppressor, a folding or telescoping stock, or thumbhole stock. If these three conditions are met, the firearm in question is an “assault weapon” and, therefore, a banned weapon under California law. Thus, we see that Cal Pen Code § 30515(a)(1), as it presently reads, mirrors NY CLS Penal § 265.00(22)(A) in every critical respect.Even before CA A.B. 1663 was drafted, California “did New York one better.” Under present California law, rifles that are also assault weapons include, under Cal Pen Code 30515(a)(2), “A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.” Recall, under New York law, rifles that are also assault weapons must be semiautomatic in operation and be capable of accepting a detachable magazine only. So, under present New York law, no rifle is an assault weapon that happens to have a non-detachable, i.e., fixed, magazine. A rifle might have a magazine that can hold 100 rounds of ammunition. If that magazine is fixed to the rifle, that is to say, if that magazine cannot be readily detached from the body of the rifle, the rifle is not an ‘assault weapon’ under present New York law.In California, on the other hand, under Cal Pen Code § 30515(a)(2), a rifle that has a fixed magazine that is capable of holding more than ten rounds of ammunition is an ‘assault weapon.’ So, in the California Penal Code, unlike the New York Penal Code, a semiautomatic rifle may, under the appropriate circumstances, based on definition, be deemed an assault weapon if the rifle utilizes either a detachable or fixed ammunition magazine.Now, what would CA A.B. 1663 do, if enacted? CA A.B. 1663 modifies Cal Pen Code § 30515(a)(1), which would be amended to read: a rifle is an assault weapon if that weapon is a “semiautomatic centerfire rifle that does not have a fixed magazine with the capacity to accept no more than 10 rounds.” Do you understand the meaning of that sentence? Read it again. In fact, read it several times, but don’t be upset if you continue to scratch your head in bewilderment as to the meaning of that sentence; for, the meaning of that sentence isn’t clear to us either.The California legislators, who drafted that sentence – making liberal use of negatives – apparently derive pleasure from torturing the English language as much as they enjoy torturing those California residents and U.S. citizens who choose to exercise their fundamental right to keep and bear arms. Cal Pen Code § 30515(a)(1), as drafted by the Legislature, is inherently ambiguous. That was obviously the intention of its drafters.Under one interpretation – a more conservative interpretation – a rifle is an assault weapon, in California, if it is a centerfire semiautomatic weapon that can accept a detachable magazine that is capable of holding more than ten rounds. However, under a liberal interpretation of the ambiguous sentence, a centerfire semiautomatic rifle is an assault weapon that can accept a detachable magazine, regardless of the number of rounds of ammunition the magazine might be capable of holding. An argument can be made for either interpretation and, if CA A.B. 1663 is enacted, and thereafter challenged, it will take a court of law to decide which interpretation is correct. You will note, too, something else about the definition of ‘assault weapon’ as promulgated in the revised Cal Pen Code § 30515(a)(1). In the revised Cal Pen Code § 30515(a)(1), there is something missing. In the original version of that statutory section, a centerfire semiautomatic rifle is not deemed to be an assault weapon, unless it have at least one of several enumerated characteristics. That requirement has been eliminated in the revision.Essentially, the new Cal Pen Code § 30515(a)(1) – if CA A.B. 1663 is enacted and codified into law – is the obverse of Cal Pen Code § 30515(a)(2), which reads that a rifle is an assault weapon if it is “A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.” But, the idea here is that, under a liberal interpretation of the ambiguous sentence – as the new Cal Pen Code § 30515(a)(1) reads – the number of rounds that a detachable magazine can hold is not decisive or even relevant to the issue whether a centerfire semiautomatic rifle is an assault weapon. So long as a rifle is capable of accepting a detachable  magazine – even if the magazine is capable of holding only one round – that will be sufficient to transform the rifle into an assault weapon, and, therefore, a banned weapon, in California.Let’s distill all of this. So, if CA A.B. 1663, becomes law a rifle is also an assault weapon, and therefore, a banned weapon in California under two scenarios:Under Cal Pen Code § 30515(a)(1), as amended by CA A.B. 1663, a rifle is an assault weapon if it is a centerfire, semiautomatic, and it is capable of accepting a detachable magazine, regardless of the number of rounds that the rifle’s detachable magazine may hold (under a liberal interpretation of the amended statute). And, under Cal Pen Code § 30515(a)(2) – the language which remains unchanged – a rifle is an assault weapon if it is a centerfire, semiautomatic and has a fixed magazine that is capable of holding more than ten rounds.In the continuing game of “leapfrog,” antigun forces in the New York Legislature may be, even now, drafting new legislation, redefining and refining the definition of ‘assault weapon’ to “improve upon” California’s 'assault weapons' fetish. If right of the American people to keep and bear arms, as embodied in the Second Amendment, is to survive in the 21^st Century, it is incumbent upon each American to defend that right against the forces intent on destroying it, just as the Second Amendment was, itself, meant to defend the sanctity of each individual law-abiding American. The Second Amendment protects us so long as we protect it. [separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.