ANTI-SECOND AMENDMENT FORCES CONTINUE THEIR PUSH TO ERODE THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS

NEW JERSEY SENATE BILL S. 3757 IS ONE MORE SLAP-IN-THE-FACE FOR THE SECOND AMENDMENT AND HELLER

PART ONE

The Arbalest Quarrel read with interest the NRA-ILA alert concerning New Jersey Senate Bill S. 3757 “that would force gun owners to store their guns and ammo under lock and key or face felony-level penalties.” We also read with interest and agree with Scott Bach’s well-written explication of the bill. Scott points out, “this ill-conceived bill imposes an absurd, one-size-fits-all totalitarian mandate to keep guns unloaded and locked up inside the home and to keep ammunition separately locked up inside the home, except when ‘in use’ – an utterly undefined term that will surely be interpreted to exclude everything except target practice.”As Scott notes, the New Jersey gun bill is absurd. And it is idiotic on logical grounds alone.But there is also a legal matter attendant to the bill. The bill flaunts and raises a disconcerting matter about the law that needs to be addressed.Just how broadly or narrowly is Heller to be read? This idea is not as simple as it may seem.Apart from the clear and categorical holding that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia—ostensibly knocking down once and for all time the erroneous idea often still propounded by some that the Second Amendment refers to a “collective right”—the Court addressed another matter that directly impacts the New Jersey Senate bill.The Heller Court said——“In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Does the New Jersey Senate bill square with the Heller holding? And, if it doesn’t, what is the impetus for the New Jersey Legislature drafting the thing at all?Let’s take a closer look at the bill as written.A preliminary “Statement” of intent, in the bill, reads in pertinent part as follows:“This bill, titled the ‘New Jersey Safe Storage of Firearms Act,’ establishes penalties for improper storage of a firearm that results in access of the firearm; requires a warning to be issued to firearms purchasers; and requires the Attorney General to establish a public awareness campaign regarding the risk associated with improper storage of a firearm. The bill also repeals the provisions of current law that establish penalties only for a minor's access of an improperly stored firearm, and makes an appropriation.Under current law, there are storage requirements and penalties imposed if a minor accesses a loaded firearm that is not in use. However, there currently are no general requirements for storing firearms when they are not in use.This bill requires a legal owner of a firearm to: (1) store or secure a firearm that is not in use at a premises under the owner's control unloaded, in a gun safe or securely locked box or container; and (2) store ammunition, separately, in a securely locked box or container.Under the bill, if the owner of a firearm fails to store the firearm properly as required under the bill, the owner will, for a first offense, be sentenced to period of community service of not less than 10 hours and not more than 40 hours. For a second or subsequent offense, the owner is guilty of a disorderly persons offense. If an improperly stored firearm is accessed by another person, and the access results in serious bodily injury to or the death of the person who accesses the firearm or another person, the owner is guilty of a crime of the fourth degree. A disorderly persons offense is punishable by up to six months' imprisonment, a fine of up to $1,000, or both. A crime of the fourth degree is punishable by up to 18 months' imprisonment, a fine of up to $10,000, or both.”The language of the bill, proper, says in pertinent part:A legal owner of a firearm shall:

• store or secure a firearm that is not in use at a premises under the owner's control, unloaded, in a gun safe or securely locked box or container; and
• store ammunition, separately, in a securely locked box or container.

The bill also imposes requirements on the firearms dealer: The Superintendent of State Police, in conjunction with the Attorney General, shall adopt guidelines in accordance with the Administrative Procedure Act, P.L.1968, c.410 (C.52:14B-1 et seq.), to require each licensed retail firearms dealer in the State, or the retail dealer's employee, to provide to any person who receives, possesses, carries, or uses a firearm, a written warning printed on eight and one-half inches by 11 inches in size paper in not less than 14 point bold point type letters which shall state:“NEW JERSEY STATE LAW REQUIRES THAT ALL FIREARMS MUST BE STORED, UNLOADED, IN A SECURELY LOCKED GUN SAFE OR LOCKED CONTAINER, AND ALL AMMUNITION MUST BE STORED IN A SEPARATE, SECURELY LOCKED GUN SAFE OR LOCKED CONTAINER. FAILURE TO DO SO IS PUNISHABLE BY LAW AND COULD RESULT IN FINES AND IMPRISONMENT.” The written warning provided pursuant to subsection a. of this section shall include the requirements and penalties imposed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).The superintendent shall provide each licensed retail firearms dealer with a sign to be displayed prominently at a conspicuous place on the dealer's business premises at each purchase counter. The sign shall contain the statutory reference to section 3 of P.L., c. (C.). . . .”Left unsaid in the bill, is how the New Jersey Government is to know whether or how a person stores a firearm in his house.Is a New Jersey police officer to be given carte blanche authority to check on this? If so, would this not violate an individual’s Fourth Amendment Right to be free from unreasonable searches and seizures?But the more pressing issue is whether NJ S.B. 3757 is, on its face, patently illegal. Is the bill inconsistent with the Heller holding pertaining to one’s right of immediate access to a firearm in the home for the purpose of self-defense? It would seem so. But there is a problem.Just how broadly, in regard to immediate access to a firearm in one’s home, is Heller to be taken? We look at this in the next segment, and consider the ramifications of Heller, for Bruen.__________________________________________

ANTI-SECOND AMENDMENT JURISDICTIONS ROUTINELY AND BLATANTLY IGNORE HELLER AND MCDONALD PRECEDENTS

PART TWO

To both proponents of the Second Amendment and its detractors, Heller is known for its salient holding: that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia. No one has any doubt about that holding whether one accepts the truth of it or not.It is the central holding of Heller and it is a broad ruling; no question about it. This is as it was always meant to be, and the Heller majority opinion says this clearly, succinctly, and categorically. And the Court meant for this holding to have universal application—applicable to every jurisdiction in the Country.Moreover, contrary to what some say or wish to believe, this central holding of Heller is consonant and consistent with the plain meaning of the language of the Second Amendment. The language of the Amendment does nothing more than codify a fundamental, unalienable, illimitable, immutable, natural right that exists intrinsically in every person. The one odd thing about the Heller case is that the High Court would have to point this out at all.Even so—All too many Courts blithely ignore Heller’s holding notwithstanding they are all dutybound to be mindful of and rigorously adhere to the import of it when reviewing government actions that target it. The implication of Heller cuts across and into all government actions directed against the application of the right embodied in the Second Amendment.These Anti-Second Amendment Courts merely rubberstamp unconstitutional government actions when they should be striking down government actions that, on their face, infringe the core of the right of the people to keep and bear arms.But there are other holdings in Heller that Anti-Second Amendment proponents and other “neutral” Americans miss.Unlike Heller’s paramount and broad holding pertaining to the universal nature of the right of the people to keep and bear arms as an individual rather than as a mere collective right, there are other seeming “narrow” holdings in Heller.These additional holdings address the District of Columbia’s actions concerning handguns and the right of the people to have immediate access to them in one’s own home, for the purpose of self-defense.The New Jersey gun bill, S. 3757, if enacted, would preclude a gun owner’s immediate access to a firearm for self-defense in the gun owner’s own home. On its face, NJ S.B. 3757 mirrors the major import and purport of the D.C. law that the Heller Court struck down as unconstitutional. Justice Scalia, writing for the majority, said this:“In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” But is this seeming narrow holding, directed as it is to the District of Columbia, truly meant to be confined only to the District? Or, is it a broad-based, universal holding, applicable across the board, to every jurisdiction in the Land even as the High Court addressed the language of a law enacted by the District of Columbia that could only apply to the District?Assume for purpose of argument that this holding is meant to be confined to D.C. This isn’t to suggest that, if the New Jersey’s gun bill were enacted and someone were to challenge its constitutionality on appeal, the High Court would find the New Jersey law to be constitutional when the District’s law wasn’t.With the conservative wing in the majority, New Jersey’s gun bill, if enacted, would be summarily struck down, as patently illegal. No question about it.But who knows if the High Court would ever hear the case? Likely it wouldn’t, presumably because the New Jersey gun bill is similar to the D.C. law that was struck down. The New Jersey Legislature knows this. Very few cases make it to the U.S. Supreme Court for review.The New Jersey bill, as law, would be inconsistent with the D.C. gun bill but would be enforced by New Jersey anyway, unless or until it was struck down.Consider longstanding unconstitutional gun laws such as New York’s notorious “Safe Act”—which, itself, merely expands on unconstitutional laws going back decades. And the New York Legislature still expands upon the “Safe Act” slowly and inexorably engulfing and dissolving the whole of the Second Amendment.The “Safe Act” is, as we have expressly said, not the finalization of the work of Anti-Second Amendment zealots, but a work in progress, building upon the notorious, discriminatory Sullivan Act, enacted over one hundred and ten years ago.And while there have been challenges to New York’s gun laws through the century, following upon enactment of the Sullivan Act of 1911, look how long it took for the U.S. Supreme Court to accept review of a major challenge to New York’s firearms’ licensing scheme. The case is New York State Rifle & Pistol Association, Inc., vs. Petitioners vs. City Of New York, commonly referred to and known as the New York City Gun Transport case. That case was decided in 2020, and it did not meet expectations.The liberal wing of the Court, along with the ostensibly conservative wing Chief Justice John Roberts—who, it seems, cajoled the Trump nominee Associate Justice Brett Kavanaugh to go along with him, adding a crucial fifth vote—emasculated the Gun Transport case. Justices Thomas and Alito were justifiably outraged.The High Court majority refused to review the case on the merits, thus allowing the massive, bloated, convoluted, confusing gun licensing edifice to remain intact.How much more damage can Anti-Second jurisdictions and the Harris-Biden Administration do to the Second Amendment before a decision in Bruen is published? Even today, we can see the stirrings of unrest among the anti-Second Amendment proponents.Using propaganda to focus the public’s attention anew on guns, the corrupt and senile messenger boy for the Marxists and Globalists is attempting to drum up public support for new assaults on the Second Amendment. Resurrecting the Sandy Hook Elementary School incident, Biden said, as reported by The Hill:“‘As a nation, we owe all these families more than our prayers. We owe them action,’ Biden said in a video message released by the White House.He said the Senate needed to quickly pass three House-passed bills, one to extend background checks, another to keep guns out of the hands of abusers and his Build Back Better act that includes a $5 billion investment in community violence prevention and intervention.‘I know our politics are frustrating and can be frustrating and it’s particularly frustrating now. But we can’t give up hope, we can’t stop,’ Biden said.The president mentioned the school shootings in Parkland, Fla., in 2018 and in Oxford, Mich., last week, adding that similar shootings occur in Black and brown communities every day. The White House unveiled a fact sheet on Tuesday on the work the administration has done to combat gun violence, touting executive orders from the president to reduce the proliferation of ghost guns, which are untraceable guns assembled using parts bought online; regulate stabilizing braces used on firearms and help states enact red flag legislation, among other things. It also noted that local governments have used funding from the American Rescue Plan, which Biden signed into law in March, towards community violence intervention and hiring more law enforcement officers.When asked if there are any conversations about a filibuster carve-out to pursue gun legislation, a senior White House official didn’t comment directly.‘I think the president and the direct to camera really speaks to this issue in an impactful way. He shares in the frustration with gun safety advocates regarding the lack of progress made in Congress, and he also talks about the progress made in the past,’ a senior White House official said, referring to the video released on Tuesday. In the video, the president called Sandy Hook, which occurred during the Obama administration when he was vice president, ‘one of the saddest days we were in office. . . . We have to keep up the pressure.’”This is more than just a veiled threat. The Harris-Biden Administration is preparing a major assault on the Second Amendment, in part to deflect attention from Biden’s dismal poll numbers—hoping that most Americans will support a campaign to destroy the right of the people to keep and bear arms. But it is a dangerous gamble that can backfire. The Neo-Marxist and Neoliberal Globalists know this but figure they have no choice given the 2022 Midterm elections that they must prepare for. The economy is in tatters. Foreign and Domestic policy is in complete disarray. Geopolitically, militarily, economically, socially, politically, the Country is in the throes of chaos. This is just as the Destructors of the Marxist/Globalist agenda intend, but they must convince the American public that the Nation is on the right path, “to build back better.”One must wonder who dreamed up that imbecilic slogan. It sounds oddly like the slogan in the old Burger King commercial: “the bigger the burger the better the burger. . . .” And that is what the Destructors of our Nation and their puppets are doing: grinding our Country and its people into hamburger meat._____________________________________

REGARDLESS OF THE IMPACT OF THE BRUEN RULINGS IN NEW YORK, WHAT IMPACT WOULD BRUEN LIKELY HAVE ON OTHER JURISDICTIONS?

PART THREE

A ruling on Bruen likely won’t be handed down until next summer, keeping many New York gun owners and applicants for concealed handgun carry licenses in limbo for months. And it will be months longer still for the State and the New York City Licensing Division to redraft its concealed handgun carry license Rules, assuming a Bruen ruling requires that to happen.And what would be the impact of a ruling on Bruen in all other “may issue” jurisdictions?Would those jurisdictions construe the rulings in Bruen narrowly or broadly: applicable to those jurisdictions as well, or as having no impact on them?Given what we have seen to date, many jurisdictions blatantly ignore Heller whether the Heller holdings and reasoning are construed broadly or not.So, why then would or should one expect other “may issue” jurisdictions to give Bruen any credence?They ought to, of course. The right of armed self-defense, as a natural right, is not to be taken lightly in the United States, even as it goes unrecognized in other western nations, including the Commonwealth Nations and countries of the EU. And it is unrecognized by the UN, as we pointed out in prior articles.The breadth and depth of High Court rulings is not to be considered a matter of academic interest to legal scholars and legal historians only—as rulings to be adhered to or not, or as stringently or not, as this or that lower Federal and State Court wishes.U.S. Supreme Court holdings often do have or should have, real impact on our Nation even as many jurisdictions routinely misconstrue them. But is this inadvertent or not? Do these jurisdictions deliberately twist, contort and distort Second Amendment Heller and McDonald holdings and reasoning they don’t like?Do these jurisdictions alter Heller and McDonald rulings and reasoning to suit their personal fancy about guns and gun possession, thus allowing Anti-Second Amendment agendas can continue to be pursued, unimpeded? It would seem so.And, this, is, unfortunately, a disturbingly familiar occurrence we see with those government actions that infringe the core of the Second Amendment.

ON THE MATTER OF “NARROW” AND “BROAD” U.S. SUPREME COURT HOLDINGS

But what constitutes a narrow or broad U.S. Supreme Court holding, really? What does the expression “narrowly tailored ruling” mean?This often perplexes the Federal Appellate Courts.See, e.g., United States vs. Skoien, 614 F.3d 638 (7th Cir. 2010). The Seventh Circuit opined,“We do not think it profitable to parse [all the] passages of Heller as if they contained an answer to [all] the question[s] [of what] is valid. They are precautionary language. Instead of resolving questions such as the one we must confront, the Justices have told us that the matters have been left open. The language we have quoted warns readers not to treat Heller as containing broader holdings than the Court set out to establish: thatthe Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open. The opinion is not a comprehensive code; it is just an explanation for the Court's disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration.”So, if the issue of immediate access to a firearm for self-defense in the home is, as the 7th Circuit says, meant to be broadly construed—then why is it that some jurisdictions routinely choose to ignore Heller?The answer is plain: because they can and because they want to.NJ S.B. 3757 is a blatant example of this practice. The language of this bill is, in its import, essentially a rehash of the original D.C. handgun bill that the High Court struck down as unconstitutional.Many jurisdictions across the Country loathe the Second Amendment. And it is apparent that, given this loathing of the right of the people to keep and bear arms, they pretend Heller and McDonald don’t exist. This blatant dismissal of these two seminal cases enrages Justices Thomas and Alito to no end, and justifiably so.But the U.S. Supreme Court has no enforcement mechanism to see to it that its Heller and McDonald rulings and reasoning are adhered to.Lower Courts are required to adhere to precedential rulings of higher Courts in their jurisdiction. And all Courts, State and Federal, are required to adhere to U.S. Supreme Court rulings. They are obligated to but often do not.Courts, in a very real sense, are merely on the honor system in this regard. They may be roundly chastised for failing to adhere to higher Court rulings, and should be, but, really, the worst that happens is these Court holdings are, simply, overturned on appeal.Jurists who flagrantly fail to adhere to precedential rulings get a pass. They have absolute immunity from liability.And, as we have heretofore pointed out, even if the High Court rulings were truly expansive, it is unlikely that Anti-Second Amendment jurisdictions will pay heed to those rulings. They will attempt to find ways around them just as they have done with the rulings in Heller and McDonald; treating them with the same disdain and incredulity; rendering opinions that serve merely to torture and obfuscate the rulings and reasoning of the High Court. Nothing is likely to change as long as the citizenry keeps voting into Office individuals who support the Neo-Marxist/Neoliberal Globalist agenda.Anti-Second Amendment State legislatures that enact laws that violate the core of the Second Amendment continue the practice because they know their Courts will uphold the constitutionality of illegal laws if challenged. Thus, plaintiffs who might otherwise challenge the constitutionality of gun laws that flagrantly defy the Second Amendment and blithely ignore U.S. Supreme Court precedent must think twice before doing so. They know they have an uphill battle.The attendant time wasted for plaintiffs, who challenge unconstitutional government gun regulations, and the attendant monetary costs associated with bringing such actions, are significant, and will usually amount to wasted effort.State and local Governments know this as do Anti-Second Amendment members of Congress.One must appeal to the next higher Court to obtain relief from adverse lower Court decisions. And Appellate Courts will often just rubber-stamp decisions of the Trial Courts. And, appealing to the U.S. Supreme Court for review is, especially, no easy task. It is time-consuming and extremely expensive. And the High Court grants review in a pitifully small number of cases.It would be nice if the High Court could issue orders sua sponte, enjoining Governments from enacting laws that blithely ignore its Second Amendment Heller and McDonald rulings. But the Court cannot do this.Indeed, it would require a separate office within the Court just to keep tabs on all the unconstitutional actions of the State and Federal Governments and of the erroneous rulings coming out of lower Courts.But the U.S. Supreme Court doesn’t have the authority even to efficiently monitor unconstitutional actions of government and erroneous rulings of lower Courts that negatively impact the exercise of the right of the people to keep and bear arms, even if it had the wherewithal and resources to keep tabs on unconstitutional gun laws.And within the High Court itself, several of the Justices all too often interpose their own philosophical prejudices and biases on the Second Amendment issues to be decided. And those prejudices and biases come into play even in the very construction of the legal issues.This has disturbing implications for Bruen. We discuss this matter in the next segment and in future articles._______________________________________________

THE LIBERAL WING OF THE HIGH COURT WITH THE HELP OF THE CHIEF JUSTICE CONSTRAINS BRUEN

PART FOUR

It is a rather curious thing, when one stops to think about it, that the broad right of self-defense, and the narrower fundamental right contained in it and inextricably bound to it—the fundamental, natural, and unalienable right of armed self-defense—would have to come up for review by the U.S. Supreme at all. After all, the right of self-defense/the right of self-preservation and the concomitant natural right of armed self-defense are axiomatic; self-evident true.One would think that, a Country such as ours, with a rich heritage of cherishing natural rights, would not have to suffer enactment of laws that place so many hurdles in the path of citizens who wish nothing more than to be able to exercise the rights the Bill of Rights guarantees them. The Second Amendment, though, is treated by those jurisdictions, controlled by Marxists and Neoliberal Globalists as an outlier, even an outcast—a thing inconsistent with international norms and, so, something to be mercilessly attacked and eventually abrogated. Will this change?Many people, both proponents of the natural right of armed self-defense and its detractors, expect a decision in Bruen, when handed down next summer, will be expansive and all-encompassing and resurrect the Second Amendment’s status as a cherished right—a right absolutely essential to the maintenance of the Nation as a free Constitutional Republic and for the preservation of the Nation in the form of a free Republic for centuries to come.But, even with an expected Conservative wing majority, a positive decision will likely not be as broad-based and all-encompassing as proponents of the Second Amendment yearn for and expect and as the Amendment’s opponents anticipate and dread.Assume, for purpose of argument, that the High Court does strike down New York City’s notoriously oppressive and repressive “may issue” requirements involving the issuance of concealed handgun carry licenses outright. How will this impact similar statutes in other “may issue” jurisdictions? The answer is clear.The Bruen ruling won’t affect other “may-issue” jurisdictions. It won’t affect the prerogative of State and Local Governments in these other jurisdictions that have, in place, their own may-issue procedures. The Chief Justice and the liberal wing of the Court have seen to that in having reframed the issue, as we explain below.A ruling for Plaintiff Petitioner would probably, at best, only serve to strike down unconstitutional procedures established by the City’s gun Licensing Division. Such a ruling would not logically or legally entail the dissolution of “may issue” regulations. It would just impact the particular procedures the City presently employs when rendering its decision.In order for a Bruen majority opinion ruling to be compelling, it would have to be all-encompassing. This means the Court would have to rule that the very notion of “may issue” concealed handgun carry licenses, instead of “shall issue” concealed handgun carry licenses—in the absence of major failings in a person, including, for example, a felony conviction, a dishonorable discharge from the military, mental incompetence, or illegal alien residency in the Country—are logically inconsistent with the import of the right codified in the Second Amendment regardless of procedures utilized. See, 18 USCS § 922(g).And the Court should render a ruling on this because geographical constraints on the exercise of armed self-defense are absurd.For, if a law-abiding, rational, responsible person has the right to preserve his or her life and safety with a firearm, being no threat to another innocent person, how is one’s life and safety to be adduced more valuable in one locale—one’s home say—but not in another locale, i.e., outside one’s home.The Court should respond to this but won’t do that, and the reason is plain: Built-in constraints due to the framing of the issue before the Court preclude a decisive ruling on the exercise of armed self-defense outside one’s home.That is not to say all the Justices would be pleased by this, for the idea behind “may issue” impacts and infringes the very core of the right of the people to keep and bear arms. “May issue” is an affront to the Second Amendment and logically contradicts the very import and purport of the sacred right.From their writings and musings on the Second Amendment, Justices Alito and Thomas would, if they could, strike down “may issue” gun regulations across the board, both as utilized in the City of New York and around the Country. But they can’t. Chief Justice Roberts and the liberal wing of the Court have seen to this.Chief Justice Roberts and the liberal wing of the Court were keenly aware of the ramifications of a major ruling on New York City’s “may issue” regimen if “may issue” were on the table. These Justices abhor other profound rulings as in Heller and McDonald. The entire legality of “may issue” should have been on the table. It should have been on the table, but it isn’t.Roberts and the liberal wing had thought very carefully through this, and they made sure that “may issue” gun licenses would not be targeted, even as Plaintiff Petitioner brought the very issue of “may issue” to the fore, as the question goes to the heart of whether, or to what extent, there should be limitations on where the right of armed self-defense is to be exercised.There should be no geographical parameters defined apropos of one’s exercise of the right of armed self-defense but there will be.____________________________________________

CHIEF JUSTICE ROBERTS AND THE LIBERAL WING OF THE HIGH COURT DIDN’T LIKE THE ISSUE AS PETITIONERS PRESENTED IT IN BRUEN

PART FIVE

CHIEF JUSTICE ROBERTS AND THE LIBERAL WING DEMANDED THE ISSUE TO BE RESOLVED, BE RECAST, TO MAKE IT PALATABLE TO THEM

The question for review, succinctly but broadly presented by Petitioner in his Brief in Corlett(recaptioned Bruen) was,“Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”This is a broad-based issue that questions the legality/constitutionality of may issue/atypicality requirements, on any conceivable interpretation.The issue as presented to the Court is meant to question the constitutionality of “may issue” concealed handgun carry regimes not only in New York City but in every jurisdiction in the Land. And that is precisely what Petitioners set out to do.The Bruen Petitioners clearly and concisely challenged the idea of Anti-Second Amendment proponents that an unassailable right of armed self-defense does not extend beyond the doorstep of one’s home.Recall that the Heller Court confined its ruling on the geographical perimeters of armed self-defense to the issue at hand: whether an individual has a right of immediate access to a handgun for self-defense inside one’s home.In answering that question, many jurisdictions interpreted the ruling as applying only to the District of Columbia, when the Court never stated or implied that the ruling on the right of immediate access to a firearm inside one’s home is directed to the District of Columbia gun codes and doesn’t implicate similar gun codes or laws in other jurisdictions. In fact, the implication is that the right of immediate access to a firearm for self-defense in one’s home does apply to all jurisdictions.Many State Governments and State and Federal Courts also interpreted the Heller decision as suggesting that a right of armed self-defense doesn’t extend beyond the doorstep to one’s home, regardless of the jurisdiction, but is to be confined—if there is to be such a recognized right at all—only to one’s home.But that idea is simply wrong. The High Court’s silence on the issue meant only that the issue was not before the Court. So, nothing further was to be presumed or deduced from that ruling.New Jersey’s bill, S. 3757, requiring disassembly of firearms in one’s home erroneously presumes the Heller ruling was meant to apply very narrowly only to the District of Columbia. Either that or the New Jersey Legislature didn’t care if the Heller ruling was meant to apply to other jurisdictions, figuring that, if wrong about its application to other jurisdictions, it didn’t matter. The Legislature knew that, if S. 3757 were enacted, a gun owner, unhappy with the law, would have to challenge its constitutionality in Court to obtain recourse—a time-consuming and expensive ordeal.Yet, one’s right of immediate access to a firearm for self-defense in one’s home is not to be presumed to be locale-specific. The ruling applies to all jurisdictions, albeit tacitly, but still unmistakably, by logical implication. Still, the Heller Court ruling didn’t expressly assert the universality of the ruling. It should have done so. The Court should have articulated clearly and categorically that its ruling on one’s Constitutional right of immediate access to a handgun inside the home, for purpose of self-defense—although directed to the D.C. gun codes—was meant to apply, as a general holding, throughout the Country. But the Court didn’t do that.Likely Associate Justices Scalia, Thomas, and Alito wanted to make the ruling unambiguous on that score but could not do so if they were to gain a majority. That would require positive votes from Chief Justice Roberts and from Justice Kennedy, and those Justices wanted the ruling to remain narrow and nebulous as to its application in other jurisdictions. The only clearly broad-based holding in Heller is that where the Heller Court held that the right of the people to keep and bear arms is an individual right unconnected to one’s service in a militia.As to the impact of specific rulings on the D.C. gun codes on other jurisdictions, for one to infer or assume that the rulings on the D.C. gun code rulings do not apply and were not meant to apply outside the District is implausible, but theoretically possible—hence the draft legislation in New Jersey:S. 3757. And that follows from the fact that the Chief Justice and Associate Justice Kennedy wanted to make clear that the Heller ruling was not intended to constrain the right of States to regulate the citizen’s access to guns. That message came out loud and clear and Justice Scalia was compelled to make that assertion explicit, assertingAnd this takes us back to Bruen.On granting the writ for certiorari in Bruen, on April 26, 2021, the Court recast the salient issue very narrowly: “Granted limited to the following question: Whether the State's denial of Petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.”Chief Justice Roberts and the liberal wing of the Court “gamed the system,” even though some legal scholars don’t wish to acknowledge this and some patently deny it.Amy Howe, for one, erstwhile preeminent editor and reporter of SCOTUSblog, who regularly covers U.S. Supreme Court cases, and who ostensibly has an inside track on the musings of the High Court, made light of the Court’s recasting of the issue. Howewrites, in part, “After considering the case at three conferences, the justices agreed to weigh in. They instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. But the case nonetheless has the potential to be a landmark ruling. It will be argued in the fall with a decision expected sometime next year.” But will Bruen lead to a landmark ruling? Is this recasting of the issue in Bruen a big deal? Amy Howe, apparently, doesn’t think it is, or at least, won’t admit it if she harbors any reservation about it. But we do believe the matter is a big deal and are not reticent about asserting this. If this recasting of the issue in Bruen amounted truly to a slightly narrower question, as Amy Howe asserts, then why would the Court bother to reconfigure the issue at all? The answer to this question is alluded in Heller, as we explain in the next segment.____________________________________

WHY CHIEF JUSTICE ROBERTS AND THE LIBERAL WING OF THE HIGH COURT INSISTED ON RECASTING THE LEGAL ISSUE IN BRUEN

PART SIX

To understand why Chief Justice Roberts and the liberal wing of the Court were adamant that the Bruen issue be recast narrowly and in the form that it was, it is necessary to go back to the reasoning in Heller. It is pertinent to the matter at hand to understand why the Court dealt with the paramount issue of whether the right of the people to keep and bear arms is an individual right unconnected to one’s service in a militia because that wasn’t an issue in the case, as framed. In the opening sentences of Heller case, the late Justice Antonin Scalia, writing for the majority, said:“We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution. The District of Columbia generally prohibits the possession of handguns.  It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited [citations omitted]. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods [citations omitted]. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, ‘unloaded and dissembled or bound by a trigger lock or similar device’ unless they are located in a place of business or are being used for lawful recreational activities [citation omitted].”The Heller majority opined that the District of Columbia’s total ban on handgun possession in the home along with the requirement of disassembly of all firearms in the home hit at the very heart of the Second Amendment, as the D.C. Government did intend for it to do.But, Justice Scalia, along with Justices Thomas and Alito, knew quite well, that it was impossible logically to rule against the District of Columbia’s draconian gun law without ruling on the ultimate issue—tantalizingly kept at bay since ratification of the Bill of Rights in 1791:Does the right of the people to keep and bear arms constitute an individual right unconnected with one’s service in a militia” or only a collective right, contingent on one’s service in a militia?Of course, to anyone with even a smidgeon of understanding of law and logic, and who is intellectually honest, knows that the import of the right as codified in the Second Amendment is clear on its face.But many academicians and many jurists, too, have for decades, erroneously treated the right as a “collective right” only. And they still maintain that, even after Heller made categorical and irrefutable what was already clear from the plain meaning of the Second Amendment’s language.One’s philosophical or emotional bent often gets in the way of one’s intellectual reasoning faculty.If proponents of the collective right thesis were correct, then any government regulation on gun ownership and possession must be construed as lawful and constitutional so long as a “rational basis” for the government action existed.This means that, while a collective right of the militia to keep and bear arms must be construed as a fundamental right and an action infringing that right would require stringent review of the government’s action, an individual’s right to keep and bear arms would not require such scrutiny. That is bizarre, to be sure, but that is consistent with the “collective right to keep and bear arms” thesis.Taking that thesis as true, arguendo, then an individual challenging the legality of government action, arguing an infringement of his right to keep and bear arms would not invoke stringent court review of the constitutionality of the Court action. A reviewing Court would only have to determine whether the government action bore a reasonable connection to achieving a legitimate State or Federal objective, nothing more. And That is an easy test to meet.Thus, if the Heller Court had not dealt with the underlying issue at the heart of the case—the case would have been decided much differently. The District of Columbia’s total ban on handguns would be ruled legal and Constitutional, as would the government’s requirement that all firearms be disassembled and not available for immediate self-defense use, even in the confines of one’s home. This is tantamount to denying a right to armed self-defense—period.Justices Scalia, Thomas, and Alito determined that they would not let the opportunity to decide the paramount Second Amendment issue pass. And, given the indomitability of Scalia’s will, and through the power and tenacity of his spirit, Chief Justice Roberts and Justice Kennedy, reluctantly went along. And, so, the Court majority ruled that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia.But Justice Scalia is no longer with us. Can Justices Thomas and Alito take up the slack? Bruen likely won’t be the next blockbuster case supporting the right of the people to keep and bear arms to the extent that Heller is. And, a decision on the merits, unlike the New York Gun Transport case, will be forthcoming. The New York Government cannot amend the gun licensing scheme in a manner that would keep the entire structure intact as it did in the Gun Transport case.For “may issue” is really at the heart of New York’s licensing regime. If “may issue” goes, the entire New York handgun licensing structure comes crashing down._________________________________________

WHY ANTI-SECOND AMENDMENT FORCES ABHOR AND FEAR HELLER

PART SEVEN

The U.S. Supreme Court, knows that the driving mechanism of the right of the people to keep and bear arms rests on the assumption, taken as axiomatic, self-evident true, that the right is grounded on the natural, fundamental right of armed self-defense that itself is inextricably bound to the basic right of self-preservation and personal selfhood, i.e., personal autonomy. The right exists inherently in each person as an individual Soul, as the Divine Creator intended.If the Second Amendment were to be treated as a “collective right,” that is tantamount to saying there is no right at all. The right would be nugatory, because  right would belong solely to the State, not to the person.The framers of the Constitution couldn’t have meant that. They didn’t put pen to paper just to waste ink. Moreover, such an interpretation would conflict with the very import of the Bill of Rights, essentially deflating the import of the entirety of it. For, without a personal right of armed self-defense, man is vulnerable to attack from predatory beast, which is bad; and from predatory man, which is worse; and  from the predatory government, which is worst of all.So, in Heller, Justices Scalia, Thomas, and Alito took that opportunity—when it finally came around—to pointedly and decisively hold that the right of the people to keep and bear arms is an individual right, unconnected with one’s service in a militia. This of, course, is plain from the text of the Second Amendment but since many courts and scholars choose to ignore it, pretending that the language of the Second Amendment doesn’t mean what it says, the High Court made the point clear, so that no one can conveniently obfuscate the meaning of the language.Note: the issue as to the meaning of the nature of the right of the people to keep and bear arms was never before the Heller Court. The only two issues before the Court were whether:“the total ban on handguns under D.C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4), as well as the requirement under D.C. Code § 7-2507.02 that firearms be kept nonfunctional, violated exercise of the constitutional right of the people to keep and bear arms.”But, Justices Scalia, Thomas and Alito knew that striking down these Statutes would do little to constrain a government that abhors civilian citizen exercise of the Second Amendment right, unless the High Court made clear that the right of the people to keep and bear arms is an individual right, and not a privilege to be bestowed on a person by government prior to exercising the right.The District of Columbia would continue to enact new laws that did much the same thing as the old laws. Anti-Second Amendment Governments would have to exercise more discretion and creativity in denying Americans their God-given right.Once the right is understood clearly, succinctly, and unambiguously, to be an individual natural right, rather than a Government bestowed privilege, it is easy for reviewing courts to ascertain whether government action constrain exercise of the core individual right.Of course that should happen but didn’t happen. The recent New Jersey bill, for one, is evidence of  rabid disdain of many in Government toward the Second Amendment. It also demonstrates the tenacity of Anti-Second Amendment in continuing to drum up more and more unconstitutional codes, regulations, ordinances, and statutes despite of and in spite of the clear pronouncement in Heller. Resistance to Heller is obdurate.Still, Justices Scalia, Thomas, and Alito had held out the hope that a clear and categorical pronouncement on the import of the Second Amendment would constrain resistant vocal forces in Government. And, in fact Anti-Second Amendment Courts cannot dismiss the salient holding of Heller out-of-hand, but must remark on it, even as they strain to uphold unconstitutional gun laws, as they continually do.Be that as it may—At least in Heller, with the idea that the right of the people to keep and bear arms is a collective right now, finally, laid to rest—and not to be denied out-of-hand the Heller Court could deal effectively with the issue at bar in Heller. Justice Scalia, writing for the majority, said,“We turn finally to the law at issue here.  As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.” But, the impact of Heller on Bruen may be minimal. Even if the High Court finds the New York City Rule to be unconstitutional and strikes it down, this only amounts to a finding simply that the decision on the Plaintiff Petitioners’ applications for an unrestricted concealed handgun carry license was unconstitutional. An answer to the “narrow question” as reframed, only requires that; nothing more.At best, the High Court can, consistent with the rephrasing of the question on review, find the City’s procedures for determining whether an applicant meets the stringent requirements of ‘atypicality’ to be inadequate.If that is to happen, a remand of the case to the trial court would require the trial court to strike down the procedures now in place in New York City, and instruct the Government to promulgate new procedures for handling the licensing of concealed handgun carry licenses. This, unsurprisingly, is what the Respondents have requested. It would be a satisfactory win for them. For the constitutionality of atypicality would go unanswered: The handgun licensing structure of New York would remain intact; and the core issue the Petitioners wanted decided—an unqualified right of armed self-defense outside the home—would remain unresolved.And the redrafting of New York City’s “may issue” procedures would likely be no better than the ones currently in place, because the NYPD License Division would still retain authority to grant or reject applications: an inherently subjective judgment call.Moreover, the ramifications of “may issue” procedures only impact New York—consistent with the issue as restated. Other “may issue” jurisdictions can proceed as they always have.Anyone who questions “may issue” procedures in other jurisdictions would have to file their own challenges. This would necessitate another appeal, by another petitioner, to the High Court, requesting review of another “may issue” procedure of that other Anti-Second Amendment jurisdiction, assuming relief from a lower court is not forthcoming.The ensuing problems for Americans who simply seek to exercise their God-given right to keep and bear arms are endless and intractable. And the Court is not likely to take up a similar issue, leaving forever open the right of armed self-defense.But the most critical point to be made is one that no one else, to our knowledge has even considered. It is  that—The right of the people to keep and bear arms tacitly embraces the right of self-defense which entails the right of personal autonomy——the quintessential right upon which the sanctity and inviolability of one’s own Soul depends.The framers of the Constitution took that most basic of natural rights to be self-evident true. They took this fact to be so obvious that express mention of it was deemed unnecessary—even by the Antifederalist framers who demanded that several of the salient natural rights be codified.Thus, the Second Amendment expressly asserts and emphasizes only the need for the people to always be armed and at the ready to secure a free State, against incursion of tyranny of Government. It is for this reason that the people remain armed that the sanctity of their Selfhood can be free from Government intrusion and free from Government impediment: untouched, unsoiled, untrampled, undiminished.Having successfully fought off one tyrannical government, the founders of the Republic had dire concerns of any strong centralized government. Even with the checks and balances of the Federal Government they constructed, they knew that this Government, too, had within the seeds of it, the danger of tyranny—an unavoidable fact of the worst of human nature. An armed citizenry was the ultimate preventive medicine against that.But, if armed defense is contained and constrained within the confines of one’s home, then the implicit message is that no American has the unalienable right to employ defensive arms against tyranny of Government, for the structures of Government power exist outside one’s home.And containment of the Second Amendment and the panoply of other Rights of the Bill of Rights is just how Neo-Marxists and Neoliberal Globalists presently running the show in Government and throughout the Country intend to keep it at least for the time being, until such time as they consolidate enough control and power to erase all of it.___________________________________

DON’T EXPECT BRUEN TO BE THE DECISIVE PRONOUNCEMENT OF ONE’S SECOND AMENDMENT RIGHT AS HELLER AND MCDONALD PROVIDED

PART EIGHT

The issue before the High Court, as reformulated, in Bruen, requires the Court only to determine whether the City’s rules for granting concealed carry handgun licenses are arbitrary and capricious.The Court thus leaves undecided the principal issue that the Petitioner wanted the Court to review, namely whether the right of armed self-defense extends beyond the confines of one’s home, making clear what the Heller Court didn’t rule on: the expansiveness of armed self-defense—beyond the confines of the home—as the founders of a free Republic understood the natural right.After all, what is one to make of saying a person has a right to armed self-defense in some places but not others, other than to reaffirm the right of Government to continue to place unconstitutional restrictions the on exercise of the right of armed self-defense. The idea is absurd on its face, and negatively implicates the very notion of self-defense, armed or otherwise.Of course, Justices Alito and Thomas could write concurring opinions taking the Court to task for not ruling on the most important issue, whether armed self-defense extends everywhere; and probably will do this if one or the other Justice is not assigned to draft the majority opinion. But a concurrence would amount to dicta only, not a Court ruling.The High Court will most likely confine its ruling, or rulings, to addressing New York City’s “may issue” procedure, which is the way Chief Justice Roberts and the liberal wing of the Court had the issue restructured and that is what the Respondents wanted.This smacks of a “cop-out.” And we have seen this before, in the Court’s handling of the previous New York City Gun Transport case. That is what the Respondent City had in fact requested in oral argument. If the City gets that much, then they essentially win, and anti-Second Amendment advocates will breathe a collective sigh of relief. For, the salient issue, as to whether the right of the people to carry firearms for self-defense outside one’s home, which Heller didn’t address and, in fact, painfully avoided—as Roberts and Kennedy likely insisted upon—remained unexamined.And, this would be just as Roberts and the liberal wing of the Court would want to continue to leave it, as this would keep the perceived “damage” ofHeller and McDonald within rigid, narrowly defined contours.Anti-Second Amendment Courts and governments will continue operating as they have been operating all along: pretending Heller and McDonald never existed, and continually pressing for more and more repugnant, restrictive, repressive firearms' laws. And as those seminal Second Amendment cases have routinely been ignored, now one would add Bruen.This must have vexed Justice Scalia. The Chief Justice, John Roberts and Associate Justice Anthony Kennedy, compelled Justices Scalia, Thomas, and Alito to soften the impact of Heller, which, at its core made clear that the right of the people to keep and bear arms rests well beyond the lawful ability of Government to abrogate. But tension would remain between the categorical natural right of the people to own and possess firearms and the desire of State Governments to exercise their own police powers to constrain and restrict the right to the point that the right would cease to exist. And, the Federal Government, for its part, would have its own reason to erase the idea of a right of the people to keep and bear arms that rests beyond the lawful power of that Federal Government to erase, modify, abrogate, dismiss, or simply ignore. For an armed citizenry would, in its very existence threaten tyranny. And that is something the Federal Government has always been uneasy with, and all the more so now, with Counterrevolutionary Marxists and Neoliberal Globalists hell-bent on disassembling a free Constitutional Republic and independent, sovereign nation-state that it may be successfully merged into a supra-national, transnational governmental construct.Did the late Justice Antonin Scalia surmise this? Did he see this coming? Did he attempt to prevent it? And did powerful, ruthless forces, beholding to no nation and to no set of laws recognize this, and initiate plans to prevent anyone and anything that might thwart their plans for a new political, social, economic, financial, cultural, and juridical governmental construct: a new world order. In such a scheme the concept of the nation-state is archaic, serving no functional purpose. And the idea of a people as sole sovereign ruling body over Government is particularly dangerous and abhorrent. _________________________________

THE HELLER CASE ILLUSTRATES THE TENSION AT WORK TODAY IN AMERICA, BETWEEN TRUE PATRIOTS WHO WISH TO PRESERVE THE NATION AS A FREE REPUBLIC AND THE TRAITORS INTENT ON DEMOLISHING ALL OF IT

PART NINE

In the last paragraph of the Heller majority opinion, one sees the results of the demand placed on Justice Scalia. Chief Justice Roberts and Justice Kennedy compelled Scalia to expressly assert the right of States to exert control over the right of the people to keep and bear arms.There is manifest tension here between the right and of the individual to retain sole and absolute possession and control over and enjoyment of use in his firearms as his personal property and the State's opposition to the individual's absolute authority over his personal property rights in his firearms. The State insists on placing constraints on the exercise of the citizen's control over his own firearms, and the citizen insists on repulsing the State. Scalia was forced to make allowance for Government to constrain what is an irrefutable, absolute right. He was compelled to throw a bone to the Anti-Second Amendment Marxists and Globalists by making explicit the reference to “gun violence, they insisted on.But one also sees Scalia’s intention to have the last word, both alluding to and denying that the Second Amendment will not be made extinct—at least not on Scalia’s watch. The pity that this eminent, jurist, who had demonstrated true reverence for our Nation’s Bill of Rights would have no hand in penning an opinion in Bruen. That Justice Scalia is no longer with us, Americans are all the worst without him.For the danger of tyranny of Government is most acute today, and there is no greater need for an armed citizenry today, to thwart tyranny. And Justice Scalia knew this well. He ended the Heller majority opinion with these words: “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.  The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns [citation omitted]. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.  That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”Unfortunately for us Americans, the Second Amendment could very well go extinct given the current unhealthy climate in this Country, deliberately worsened through Neo-Marxist/Neoliberal Globalist provocation, driving the Country to a Civil War.Retired Justice John Paul Stevens and Justice Stephen Breyer responded directly to Justice Scalia’s closing remarks in Heller. They caustically remonstrated against him, provoking him by asserting erroneously and absurdly that, to call the right of the people to keep and bear arms an individual right, is to have the Court create a right that doesn’t exist in the Bill of Rights. Really?And, Stevens and Breyer further insulted the late Justice by remarking that it is for Government to define the rights that the people have through the policy choices that Government makes. Justice Stevens and Breyer invoked the tired erroneous claim that whatever right to keep and bear arms exists in the Second Amendment,that right is a collective right, which is to say, a Government sanctioned privilege. In so saying they rebuked Justice Scalia, and Justices Thomas and Alito, casually dismissing out-of-hand, the salient, paramount holding of Heller.In their joined Dissent, Stevens and Breyer write,“Untiltoday, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia.  The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations.  Today judicial craftsmen have confidently asserted that a policy choice that denies a ‘law-abiding, responsible citize[n]’ the right to keep and use weapons in the home for self-defense is ‘off the table.’    Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, fear that the District's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.”“I do not know whether today's decision will increase the labor of federal judges to the ‘breaking point’ envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.” Note, that Breyer, who still serves on the High Court, asserts his fear, in Heller, that the Court might actually proclaim that armed self-defense does exist outside the realm of one’s home.If Justice Scalia were still alive and serving on the Court, he would indeed make clear, in Bruen, that the right of armed self-defense outside the home is within the core meaning of the language of the Second Amendment. But, with Scalia gone, the Bruen case—that would have become the third seminal Second Amendment case—creating a triumphant Second Amendment Triumvirate of seminal cases, sanctifying the Bill of Rights, will not be.The Destroyers, Destructors, and Defilers of our Republic will continue pressing to wear down the American psyche and spirit.The Bruen rulings will likely amount to little more than a bee sting to the Neo-Marxists and Neoliberal Globalists, having little negative impact on New York, and no impact on Anti-Second Amendment Governments across the Nation and no discernible impact on Anti-Second Amendment forces in the Federal Government.The “atypicality” requirement will remain. Just the procedures in granting concealed handgun carry licenses in New York City would change.And nothing would change for other Anti-Second Amendment jurisdictions as they will retain their own “atypicality” requirements unless those procedures are successfully challenged in their own Courts of competent jurisdiction.All the problems attendant to the Federal and State Governments’ refusal to recognize the sanctity and inviolability of the right of the people to keep and bear arms will remain unscathed.And, from what we gather coming out of Biden’s maw and that of the illustrious Marxist/Neoliberal Globalist Governor of California, Gavin Newsom, of late, the seeming impenetrable castle walls assiduously built by the Heller and McDonald rulings and reasoning, remain under siege, and in danger of successful breach at the first opportunity._____________________________________Copyright © 2021 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

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

THE SECOND AMENDMENT GUARANTEE ACT

INTRODUCTION

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

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

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

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

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

WHAT DOES THE BILL SAY?

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

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

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

CONCLUSION

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

OPEN LETTER TO THE NEW YORK LEGISLATURE AND TO NEW YORK STATE OFFICIALS

ARBALEST GROUP'S OPEN LETTER TO EACH AND EVERY MEMBER OF THE NEW YORK STATE LEGISLATURE, AND TO THE GOVERNOR AND LIEUTENANT GOVERNOR OF THE STATE OF NEW YORK, AND TO THE NEW YORK ATTORNEY GENERAL

THURSDAY, FEBRUARY 12, 2015

POSTED BY THE FOUNDERS OF ARBALEST GROUP, LLC., CREATORS OF THE ARBALEST QUARREL WEBSITE

_________________________________________________February 9, 2015The Honorable______________________Legislative Office BuildingAlbany, New York  12247Dear Senator/Assemblyman/Assemblywoman:We are writing to you on our own behalf and on behalf of tens of thousands of concerned New York gun owners and visitors to our website, the Arbalest Quarrel. You may not be aware of this but a major flaw exists in the New York Safe Act and in the Penal Code of New York that has not been previously addressed. The existence of this flaw, involving bequests of gun collections, undercuts the fundamental right a New York resident and citizen has in his private property.Many New York residents have extraordinarily valuable firearms collections that fall under the Safe Act. These collections are worth tens of thousands, hundreds of thousands, or even millions of dollars. The owners of these valuable gun collections may wish to pass the collections to their heirs who live in New York State. They cannot do so. We urge you to change New York law to permit the transfer of a decedent’s gun collection to the decedent’s heir or heirs, who reside in the State of New York, and to allow the transfer to proceed quickly, free of obstacles.Consider how present New York law operates to denigrate private property rights.The executor of a decedent’s estate seeks to fulfill the terms of the decedent’s will. The will specifies that an expensive gun collection is to go to the decedent’s spouse or to one or more of decedent’s adult children. Present New York law doesn’t permit the executor or administrator of the decedent’s estate simply to turn the gun collection directly over to the decedent’s heirs who reside in New York; nor can the lawful possessor of such property of a decedent continue to hold onto the property so long as the possessor of that property remains in New York.NY CLS Penal § 265.20a(1)(f) says, “A person who possesses any such weapon, instrument, appliance or substance as an executor or administrator or any other lawful posessor of such property of a decedent may continue to possess such property for a period not over fifteen days. If such property is not lawfully disposed of within such period the possessor shall deliver it to an appropriate official described in this paragraph or such property may be delivered to the superintendent of state police. Such officer shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.” And the difficulties for the executor or administrator of a decedent’s estate, or for the lawful possessor of and heir to that valuable gun collection who resides in New York, do not end there.Under Section 37(A) through (F) of the Safe Act, codified in NY CLS Penal § 265.00(22) (a) through (f), many firearms are defined as assault weapons. A gun that is defined as an ‘assault weapon’ is a banned weapon. The Safe Act prohibits the sale or exchange of assault weapons between New York residents unless the sale or exchange is to an authorized New York purchaser, namely a licensed New York gun dealer. Otherwise, the sale or exchange must be to an individual or entity residing outside of New York. So, an heir to a valuable collection of assault weapons, who resides in New York, cannot keep those weapons even if that heir is duly licensed to possess firearms unless that heir holds a valid New York gun dealer or gunsmith license issued pursuant to NY CLS Penal § 400.00(2).Section 37(H) of the NY Safe Act, codified in NY CLS Penal § 265.00(22)(h), says, inter alia,“ Any weapon defined in paragraph (e) or (f) of this subdivision . . . that was legally possessed by an individual prior to the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state. . . .” Now suppose the heir to a decedent’s expensive gun collection, who resides in New York, doesn’t want to dispose of the gun collection but wishes to keep it, in accordance with the decedent’s express wishes. That heir has no choice if he or she wishes to remain in New York. New York law is coercive. It severely limits a person’s enjoyment in one’s own private property. Moreover, to compel disposal of a gun collection almost certainly will substantially diminish the dollar value of that property. A New York resident and heir to an expensive gun collection may not – probably will not – be able to find a buyer, out-of-state, willing or able to purchase the gun collection at a fair market price.A New York resident and his or her family who have lived their entire lives in New York are faced, then, with an intractable problem. If the heir to a valuable firearms’ collection wishes to remain in New York, as the heir would, the heir must give up possession of the gun collection, which he or she definitely would not wish to do. Present New York law does not permit the heir to both remain in New York and hold onto the decedent’s entire bequest. Present New York law places the heir to a valuable gun collection in extremity. This is an intolerable situation. It’s a situation that need not exist and will not continue to exist if appropriate changes to New York law are made. And changes to New York law must be made to honor a decedent’s wishes. These changes to the law are necessary if the idea of the sanctity of one’s private property is to be credible in New York.Please give the matter discussed here your urgent attention. Tens of thousands of New York residents and gun owners are negatively impacted by the language of New York law, as shown in this letter. They are bewildered by and frustrated by provisions of the NY Safe Act and the Penal Code of New York that operate to take their private property from them without due process of law and without just compensation. Be advised, we share our information and our views with many distinguished individuals, other major websites, and several noteworthy organizations with whom and with which we have a close business and professional relationship.A prompt reply is requested so we can respond to the thousands of New York residents who are seeking an effective resolution to the critical private property rights issue discussed in this letter.Sincerely, Stephen L. D’Andrilli, President, Arbalest Group, LLC.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

PRIVATE PROPERTY RIGHTS AND THE SECOND AMENDMENT

THE ARBALEST QUARREL'S RATIONALE FOR WRITING TO THE NEW YORK STATE LEGISLATURE, TO THE GOVERNOR AND LIEUTENANT GOVERNOR OF THE STATE OF NEW YORK, AND TO THE NEW YORK ATTORNEY GENERAL

The New York Safe Act, signed into law by New York Governor, Andrew M. Cuomo, on January 15, 2013, is poorly drafted legislation. It was authorized without due process and in defiance of New York’s own State Constitution.The Safe Act is the Government’s model for undercutting the Second Amendment. The public knows this. But, what is not understood by most is that the Safe Act is destructive of private property rights too. The antigun establishment argues that the right to keep and bear arms is a collective right, not an individual right. But, in the seminal case, District of Columbia vs. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court made clear that the right to keep and bear arms is an individual right, not merely a collective right. A person need not be a member of a State militia or other governmental military force to exercise the right to keep and bear arms.Moreover, an implication can be drawn from the Heller decision. Since an American citizen has the right, as an individual, to keep and bear arms, irrespective of membership in a State militia, this individual right to keep and bear arms presumes the citizen’s right to own the firearms he bears and keeps. Private property ownership is basic to a free America.The right of an American citizen to own property – to have exclusive and absolute ownership of property – is as fundamental a right to an American as the right to speak openly and freely under the First Amendment or to keep and bear arms under the Second.But, under the Safe Act a resident’s right of ownership in his own firearms is strained and constrained. New York law severely restricts a New York resident’s right to transfer ownership in his or her firearms to others upon the person’s death.New York residents may have one firearm worth a few hundred dollars or they may have collections of rare and expensive firearms worth many hundreds of thousands of dollars – perhaps millions of dollars. In either case, New York law restrains one’s ability to transfer firearms during one’s lifetime and restricts one’s ability to transfer firearms to one’s heirs upon the firearms’ owner’s death.The dollar value of a rare and expensive firearms’ collection may be severely compromised upon the death of a New York resident gun owner because New York law restricts transfers of firearms to heirs who happen to live in New York.In particular the New York Safe Act absolutely forbids the transfer of any firearm to an heir that is a Safe Act registered weapon unless that heir happens also to be a licensed New York gun dealer or an authorized police official.What does this mean for an individual who may happen to own a very rare and expensive firearm that happens to be a New York Safe Act registered weapon. Let’s consider an example.Suppose you have a gold-plated commemorative firearm that has a fair market value of $50,000.00, and suppose you wish to bequeath that firearm to your adult son or daughter upon your death. Suppose, further, that this gold-plated commemorative firearm is classified as a New York Safe Act registered weapon. Can you transfer that firearm – your personal property – to your adult son or daughter?Well, certainly nothing in New York law prevents you from bequeathing that firearm to your next of kin. But, the important question is whether your son or daughter can keep and enjoy that personal property, just as you had. And, there’s the rub.Your adult son or daughter can keep the firearm for up to 15 days. After that, the firearm must be turned over to the appropriate police official. At that point your son or daughter has up to one year to transfer or sell the firearm either to a licensed New York gun dealer or to a person or entity outside the State. If your adult heir fails to tell the police official how the Safe Act registered weapon is to be disposed of, the police official will destroy that firearm – a valuable collectible – one year from the date he or she obtains custody of it. There is no recourse. There is no remedy. There is no redress.Transference of firearms to a decedent’s rightful heirs creates an undue burden on the estate as the heirs may be ineligible to receive the firearms under the Safe Act. Thus, the Safe Act operates as an unconstitutional “taking” of one’s firearm in violation of the “Takings Clause” of the Fifth Amendment to the U.S. Constitution. This cannot be tolerated. This contempt for our Bill of Rights cannot be condoned.The Arbalest Quarrel has recently written to every member of the New York State Senate and Assembly, in Albany, New York, and to the Governor and Lieutenant Governor of the New York and to the Attorney General for New York, requesting each of them to use his or her authority to amend New York law so that a New York resident and citizen of the United States may exercise the fundamental right of enjoyment in his or her private property – that such right may be preserved, consistent with the intent of the United States Constitution, the New York State Constitution, and the precepts of a capitalist society. The Arbalest Quarrel has also notified the New York Delegation in Washington D.C. of its action as well.If the notion of private property is to mean anything concrete in this Country, then no governmental body, State or Federal, should be allowed to undermine an American’s exclusive power over his or her private property. That means American citizens and law-abiding gun owners, including those citizens and gun owners who are residents of New York, should be able to transfer their firearms to their heirs, free of governmental interference and constraint. That is why New York law must be changed. It must comply with the U.S. Constitution and the New York State Constitution, and with principles of a free market economy.The fundamental right of ownership and power over one’s private property must not be diminished by political machination. The fundamental right of enjoyment in one’s private property, as protected in the “Takings Clause” of the Fifth Amendment, is as basic and as important and as fundamental a right to an American as any other right set forth in the Bill of Rights.We are posting our letter on the Arbalest Quarrel website. It appears as a separate blog post. We shall keep our readers apprised of the results: who responds, and who fails to respond to our letter; and what each respondent has said in reply to our letter.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.