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

MULTIPART SERIES ON POST-BRUEN CASE ANALYSIS

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

PART TWENTY-FOUR

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

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

THE NEW YORK GOVERNMENT HAS EXPLOITED WEAKNESSES IN THE BRUEN DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

IS STATE GOVERNMENT “MAY ISSUE” HANDGUN LICENSING CONSTITUTIONAL?

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

WHAT IS THE TAKEAWAY FROM JUDGE AMY CONEY BARRETT’S CONFIRMATION HEARING?

AN ARBALEST QUARREL PERSPECTIVE

Liberal and Radical Left media sources made much of Judge Amy Coney Barrett’s failure, as they perceived it, to respond candidly and honestly to questions thrown at her by Senate Judiciary Committee Democrats during her confirmation hearing.The Progressive news source, The American Independent, for one, said this:“Over the three days of hearings by the Senate Judiciary Committee on Judge Amy Coney Barrett’s nomination to the Supreme Court, Barrett refused to answer 95 questions posed to her by members of the committee.In declining, she repeatedly referred to the words spoken by the late Justice Ruth Bader Ginsburg during her own confirmation hearing in 1993: ‘A judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.’” Notwithstanding the words of the late liberal-wing leader of the U.S. Supreme Court, Ruth Bader Ginsburg, the seditious Press concluded that, while they would gladly dismiss the late Associate Justice’s own reticence, they were loath to absolve Judge Barrett for doing the same, attempting, lamely, to draw a distinction between Justice Ginsburg's justifiable hesitation to discuss the specifics of a particular case, and Judge Barrett's demonstrating a similar restraint.MSN news, had this to say about Judge Barrett’s responses Senate Democrat Committee members’ questions designed to commit Judge Barrett to taking a particular stand on Constitutional issues.“During a nearly 12-hour question-and-answer session, Judge Barrett evaded Democratic senators’ attempts to pin down her views on the Affordable Care Act, abortion rights, gay marriage, and a possible election-related case. She played down her history of taking conservative stances in legal writings and personal statements, arguing that she might view issues differently as a sitting justice. ‘I have not made any commitments or deals or anything like that,’ she told the Senate Judiciary Committee on her second day of confirmation hearings. ‘I’m not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.’. . . Judge Barrett’s refusal to discuss specific cases or commit to recusing from particular matters was in line with a decades-old playbook used by Supreme Court nominees to avoid giving substantive answers during confirmation hearings. But her attempts to deflect such questions were more conspicuous than usual, given how explicit Mr. Trump has been about how he would want his nominees to rule.” Huh? Judge Barrett's attempts to deflect questions were more conspicuous than the late Associate Justice Ginsburg's deflecting of questions?The mainstream seditious Press dares to suggest that Judge Amy Barrett’s justifiable wariness to being pinned down—and therefore, thereafter, constrained—were she to give categorical responses to matters of Constitutional dimension amounts to a disturbing lack of candor on her part, if not outright insolence. This is a conscious, unconscionable attempt to malign Judge Barrett.But Judge Barrett needn't assert and, in fact, shouldn’t assert how she would decide legal issues before the fact. Indeed, how could she? Activist jurists, of course, do so all the time as the public knows full well. Reflect, for a moment, if you will, on any one of a plethora of decisions handed down by activist Judges on Second Amendment and immigration matters. Activist judges almost invariably prejudge cases that come before them. They work backward from their decision to the central issue, constructing premises along the way, designed to cohere with the decision they have already made.But a methodical, meticulous, jurist, such as Judge Barrett, is perspicacious, not judgmental.Judge Barrett carefully analyzes a case; draws her inferences therefrom; and comes to a purposeful, informed, well-considered decision, never a spontaneous one. As Judge Barrett has demonstrated through her dissenting opinion in the Second Amendment Kanter case, she applies sound logical reasoning before rendering a decision. See Arbalest Quarrel article. And Judge Barrett complies with, is devoted to, and pays assiduous, diligent, and laborious attention to firmly established jurisprudential doctrinal methodology, a methodology grounded in strict adherence to the import and purport of the U.S. Constitution as written, consistent with and faithful to the intention of the framers of it. In this way—and only in this way—can a jurist know that he or she is protecting the fundamental, natural, rights and liberties and sovereignty of the citizenry, and preserving a free Constitutional Republic.Of course, ruthless elements both here and abroad want none of that. They have made clear an intention to tear down our Republic, erase our history and traditions, destroy our sacred rights and liberties, and undercut our Judeo-Christian ethic and faith in a loving Divine Creator. And they have been assiduously, seditiously at work and, now, openly rewriting the U.S. Constitution to cohere with a weakened Nation, a subjugated, subservient citizenry, and a bloated Government subordinated to the will and dictates of the EU and Xi Jinping's China.These ruthless elements, through their puppets—Democrats sitting on the Senate Judiciary Committee—do not want a jurist on the High Court who happens to appreciate, and who esteems, and who cherishes the U.S. Constitution as written. They want a jurist who does the bidding of Democrats in Congress, thereby turning the Court into an adjunct of the Legislature and of the ignorant mobocracy among the polity who obediently obey the commands of their taskmasters as conveyed to them through incessant, noxious propaganda.The Democrat Party lackeys of China and of secretive Billionaire Globalists are, understandably, upset with Judge Barrett, sitting on the U.S. Supreme Court; as she is a person “who will not get with the game plan,” who will not pay homage to them and who will not defer to their wishes. That is something they cannot and will not abide.Judge Barrett has made abundantly clear to all who would pay note, that she is a person of integrity, both in her personal conduct and in her role as a jurist. She has made clear that, as a U.S. Supreme Court Justice, she will never interpose her personal predilections in the judicial decision making process. She hasn't done so as a Judge on the U.S. Court of Appeals for the Seventh Circuit and she would not do so as an Associate Justice on the U.S. Supreme Court. How can the American public be certain of this?It is through the methodology employed in deciding cases that the full measure of a jurist can be accurately, adequately deduced. And, on that score, Judge Barrett has been honest, forthright, and open, and, on the methodology she employs in deciding cases, she has been completely candid. That should give Americans—who, as with Judge Barrett, cherish a free Constitutional Republic, who cherish the U.S. Constitution as written, and who cherish our natural, fundamental rights and liberties, as bestowed on and in man, etched into man's very being by a loving Creator—the necessary, requisite assurances that Judge Barrett qua Associate Justice Barrett will never betray the Constitution and will always remain true to our sacred, natural, fundamental rights and liberties.  This of course drives the Destructors of our Nation into a psychotic rage as they have other plans for our Nation, for our Constitution, and for our people; and they have not been shy about what those plans portend. If these Destructors can deceive enough Americans to vote for the so-called “moderate” Joe Biden and if they are able to take control of the United States Senate, then all is lost. The American electorate must see to it that this doesn’t happen.___________________________________________________________

JUDGE BARRETT'S METHODOLOGY FOR DECIDING CASES EXPLAINED

Unlike activist lower Court Judges and liberal-wing High Court Justices who routinely affirm legislative enactments they find palatable, couching their personal predilections in convoluted legalese, rubber-stamping unconstitutional government action, Judge Barrett—soon to be Justice Barrett if all goes well—stated clearly, unequivocally, and categorically that she does not and would not render judgment on the basis of personal bias for or against a particular statute. And, from the cases she has heard and opined upon as a Judge, sitting on the U.S. Court of Appeals for the Seventh Circuit, and from her academic writings, Americans can rest secure in the knowledge that Judge Barrett, will remain true to the written word of the U.S. Constitution and to the sanctity of the Bill of Rights.Judge Barrett grounds her decisions on legal and judicial considerations alone, not on legislative policy considerations that fall within the purview of legislative bodies, outside the purview of courts.She asks: “Is this legislative enactment consistent with the import and purport of the U.S. Constitution, as written?” She frames her analysis accordingly, and her decision follows logically from that analysis. Judge Barrett does not ask, nor should she ask: “Does this legislative enactment cohere with prevailing public whim and fancy, fashion and sentiment, shaped and molded by Progressive ideologues with whom I must adhere?”Through Senate Democrat questioning of Judge Barrett, it becomes abundantly clear that Democrats perceive the U.S. Supreme Court not as an independent Third Branch of Government, but merely as an adjunct of the legislature—a body that has no other purpose than to rubber-stamp Congressional enactments—statutory enactments that cohere with international law and norms, superior to the U.S. Constitution and dismissive of and antithetical to our citizenry’s fundamental rights and liberties. That is what these Democrats want. That is what they desire from a U.S. Supreme Court Justice. But that isn’t what they will get once Judge Amy Coney Barrett is confirmed to sit on the High Court as Justice Amy Coney Barrett. And that enrages Democrats. And, so, they threaten “to pack the Court” if they are able to gain control of the Executive Branch of Government, along with control of the U.S. Senate.During the Senate confirmation hearing, Judiciary Committee Chairman, Lindsey Graham, Republican South Carolina, asked Judge Barrett matter-of-factly how she perceives the role of a jurist.Senator Graham's question was a proper and fitting one to ask of a nominee who might sit on the U.S. Supreme Court, and Judge Barrett welcomed the opportunity to answer the Senator's question, and she was remarkably candid in her response.Senator Graham likely asked this question of Judge Barrett, first, to impress on members of the public—many of whom probably have little comprehension of the specific and appropriate role of a jurist—what the proper role of a jurist is under our Constitutional and jurisprudential framework. And he likely asked this question of Judge Barrett, second, to impress on Senate Democrats who most certainly do comprehend the proper role of a jurist but who desire to impose an improper role on our jurists, that their insinuation that Judge Barrett must do the bidding of Congress—that she owes her soul to the company store, so to speak—is wrong and wrong-headed, for such a role that Senate Democrats demand of our jurists is: one, antithetical to our Nation's Constitutional framework; two, antithetical to our Nation's jurisprudential traditions; and three, antithetical to the separation of powers doctrine. The desire of Senate Democrats to impose their will on judicial nominees was clearly apparent through their long-winded, generally imbecilic monologues and through their impertinent, often insulting queries directed to Judge Barrett. Senate Democrats' insinuation that the U.S. Supreme Court belongs to Congress, and must do the bidding of Congress, is blasphemous. It is dangerous to the well-being of our Nation. It is arrogant in the extreme, and wholly untenable.In response to Senator Graham, Judge Barrett, explained clearly and succinctly: “I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.” See, Washington Examiner article, as posted by MSN news.Judge Barrett explained that the framers of our Constitution never meant for the U.S. Supreme Court to operate like Congress, and, more to the point, never intended for the U.S. Supreme Court to take its cue from Congress, advocating for and on behalf of Congress.Congress enacts laws predicated on policy choices. Those policy choices may or may not be consistent with the Constitution. If those policy choices, as reflected in law, are at loggerheads with the textual meaning of the Constitution as the embodiment of the intent of the framers of it, then the Court must step in to overturn the law. That is the solemn duty of an American jurist.That isn’t what activist Judges and Justices do and, so, that isn’t what Senate Democrats on the Senate Judiciary Committee wanted to hear. They want docile, obedient jurists, answerable to Congress. Their frustration with, resentment of, even anger with Judge Amy Coney Barrett, was painfully evident.They remonstrated over Judge Barrett's refusal to take a definitive stand on pending legal issues and on legal issues apt to come before the U.S. Supreme Court in the future. They insisted that she acquiesce to their absurd policy objectives; demanding that she declare categorical, unequivocal, acceptance of and adherence to their pernicious, horrific Collectivist vision for the Country, one that reduces Americans to subservient cattle. This Collectivist vision is characterized by uniformity in thought and conduct among the masses; dependency on Government largess for one's physical needs; and the deliberate inculcation of confusion and fear in the masses, effectuated through a targeted campaign of systematic predation on the polity that is unable to effectively defend itself because firearms will have been universally banned.It was all on constant, ignominious display throughout the hearing. And through it all Judge Barrett remained noticeably and notably calm but alert; courteous; unruffled; even, at times, convivial. And that must have enraged Senate Democrats even more; their vote against confirming Judge Barrett to a seat on the High Court a foregone conclusion, a vote that Senate Republicans, fortunately, do not or ought not need._______________________________________________

ON THE DOCTRINES OF PRECEDENT AND SUPER-PRECEDENT IN U.S. SUPREME COURT CASE LAW

A legitimate, perceptive question for Judge Barrett—one that has been asked of previous nominees but, was not asked of her, during the hearing, or otherwise was not dealt with in any extensive appreciable way—involves the judicial doctrine of case law Precedent, referred to as Stare Decisis. The Cornell Law School website defines ‘Stare Decisis,’ thus:“Stare decisis is Latin for ‘to stand by things decided.’ In short, it is the doctrine of precedent.Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.” Democrats on the Senate Judiciary though weren't interested in eliciting profound, insightful responses  from Judge Barrett on that score, which they certainly could have obtained had they bothered to ask her to expound upon the the doctrine of stare decisis. Judge Barrett would certainly have been inclined to elaborate on that matter. But, Democrats weren't interested in that or on any other jurisprudential or juridical subject of any real significance. They were only interested in, or mostly interested in, scoring political points to help them get the feeble, frail Joe Biden over the finish line in November, and in maintaining a majority of Democrats in the House, and taking control of the Senate. If successful, that would give them all the power they would ever need "to pack the High Court" with their lackeys, thereby neutralizing Judge Barrett's seat on the Court.So caught up were Senate Democrats in the frenzy of the moment that, what otherwise could have been a profitable, informative confirmation hearing, devolved, by turns, into, one, a harangue against Trump; two, an annoying, uncalled for, insulting accusation that Judge Barrett must be a pawn of the President; three, a demand that Judge Barrett recuse herself on this, that, or the other case that might happen to come before her once she is seated on the High Court; four, incessant odious, presumptuous, recitations of  Democrat Party policy positions that Judge Barrett was compelled to suffer through; five, insulting innuendoes concerning Judge Barrett's private life and personal religious convictions; and, six, an extended, extensive Democrat Party campaign advert in support of the Harris/Biden ticket.During the hearing, Senate Democrats made manifestly and adamantly clear their fervent desire and their firm intention to raise both abortion on demand and the ACA to the level of fundamental rights, and, as if that weren't enough, they audaciously sought Judge Barrett's imprimatur on abortion and the ACA. They never obtained it. Senate Democrats also made abundantly clear their vehement abhorrence of the right of the people to keep and bear arms and of their deep-seated, enduring wish to reduce a clear illimitable, immutable, unalienable, fundamental, natural right—the right of the people to keep and bear arms—to the status of a mere Governmental privilege, to be bestowed upon and rescinded at the whim of Government bureaucrats.Had someone but troubled to ask Judge Barrett to expound on a paper she had written on the very subject of stare decisis, she would have acknowledged that resolution of Constitutional issues is not always clear-cut, thereby ameliorating, perhaps, some of the harsh criticism leveled against her by Senate Democrats. Then, too, if Senate Democrats devoted more time eliciting critical juridical doctrinal ideas from the nominee and less time delivering heated polemics and exhibiting fits and bursts of histrionics, the confirmation hearing could have been, and likely would have been, much more productive. Alas, they didn't; and, it wasn’t.In her article, written for a symposium on Constitutional disagreement, Judge Barrett laid out her thesis on U.S. Supreme Court precedent, thus:“Over the years, some have lamented the Supreme Court's willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error, and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution. Because the justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying ‘error’ in constitutional cases. Rejection of a controversial precedent does not always mean that the case is wrong when judged by its own lights; it sometimes means that the justices voting to reverse rejected the interpretive premise of the case. In such cases, ‘error’ is a stand-in for jurisprudential disagreement.”A lesser known, quasi-judicial, principle, that of ‘super-precedent,’—was raised by Senate Democrat Amy Klobuchar, but, unfortunately, wasn't pursued. Senator Klobuchar simply brought up the principle to emphasize and to capitalize on a Democrat Party talking point. She wanted to know whether Judge Barrett thought that Roe vs. Wade was so fixed in Supreme Court precedent that it could not or should not be overruled, which is to say that it should be perceived, then, as a super-precedent.Judge Barrett rightfully demurred. The pointed question pertaining to Roe vs. Wade was altogether inappropriate, and Judge Barrett respectfully, but firmly, declined to take the bait.In any event, Roe vs. Wade may be cast in stone as some people see it, but that is no reason to believe its precedential value is beyond reasonable legal dispute.The fact remains that Roe vs. Wade was a bizarre attempt at a judicial “squaring of the circle.” Yet, it was no more than a crude attempt to create a fundamental right out of whole cloth. Still, notwithstanding that some people strenuously and indefatigably, albeit bizarrely, extol that ruling as a thing sacrosanct and inviolate, is not to mean that the ruling carries with it or should carry with it some paramount attribute or weight and must, therefore, never be overruled—only enhanced, if anything, to the point where the murder of a child is lawfully permitted up to the moment of live birth.In fact, New York Governor Andrew Cuomo’s law on abortion does allow for abortion up to the very moment of birth, contrary to Cuomo’s claims that the new, strengthened, New York law is consistent with Roe vs. Wade. It isn’t. Cuomo is either a liar or ignorant of the import of his own law because the word ‘abortion’ has been excised from the New York Criminal Code. The AQ has explained Cuomo’s duplicity on this issue.On the other hand, in contradistinction to Roe vs. Wade, one might ask if Heller vs. District of Columbia is super-precedent case law. Senate Democrats and other political and social progressives would argue it isn’t, predicated, no doubt, on their abject abhorrence of and repugnance toward firearms and firearms' possession, which raises an aesthetic and/or psychological argument against the Second Amendment, not a pertinent legal one.The critical legal question in Heller was whether the Second Amendment embraces an individual right.The High Court Majority held that the Second Amendment—the Majority Opinion written by the late, eminent Associate Justice, Antonin Scalia—does embrace an individual right; and that it does so on logical, as well as legal, grounds; for were it not so, then the right codified in it would be reduced to a nullity and there would have been no point to it.Heller, unlike Roe vs. Wade, must, then, be construed as a manifestly super-precedent ruling: a ruling that resists overturning lest irreparable damage be done to the Bill of Rights itself and, no less, to the sovereignty of the American people whose sovereignty is only assured through force of arms; the principal bulwark against the inexorable slide toward and inevitable onset of tyranny.But, assuming arguendo that Heller were to be overruled—something well within the realm of possibility if the Democrats make good their threat “to pack the Court” if they gain control of the Executive and of the Senate, and a Second Amendment case then wended its way to the Court. But, for Heller to be overturned, a High Court majority would be compelled to opine that the original holding was wrong, which is tantamount to saying the Second Amendment has no meaning at all. But Democrats wouldn’t have a problem drawing that conclusion anyway. Yet, it is patently absurd to say the Second Amendment has no import. From a logical point of view, apart from the legal certainty, the Second Amendment does embrace and must embrace an individual right. So the Heller ruling that the Second Amendment codifies an individual right is dead-on correct. This brings us to Senator Dick Durbin, Democrat, Illinois, and to his singularly odd remarks during the hearing. For all that he had to say about firearms, it would have been interesting if he had had the wherewithal to broach the import of, and the historical imperative of the Second Amendment, with Judge Barrett—instead of going on about black powder muzzle-loaders as if he had any idea what he was talking about, anyway. But he didn’t. And that is just as well, for Senator Durbin obviously has no comprehensive knowledge of nor appreciation for the technical characteristics of firearms; nor does he care one whit about the sacred, natural, immutable, unalienable right of the American people to keep and bear them._____________________________________________________________Copyright © 2020 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!

KOLBE VS. HOGAN:

INTERIM REMARKS

The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe. Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.