UNDER THE PRETEXT OF KEEPING THE RESIDENTS OF HER STATE SAFE, NEW YORK GOVERNOR KATHY HOCHUL DEFIES U.S. SUPREME COURT BRUEN RULINGS

MULTIPART SERIES ON POST-BRUEN CASE ANALYSIS

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

PART TWENTY-FIVE

THE TYRANT EVER DISTRUSTS THE ARMED CITIZEN

New York Governor Kathy Hochul and the Democrat Party-controlled Legislature in Albany designed amendments to the State Handgun Law to avoid compliance with the U.S. Supreme Court’s rulings in Bruen and thus avoid the categorical dictates of the Second Amendment of the Bill of Rights. There is no question about this, no tenable away around this. To believe otherwise is a delusion.Hochul makes the case herself. There are numerous accounts detailing this: Press accounts and Press Releases abound. Consider one example: In August 2023, Hochul said this, as presented on the Governor's website:“‘In response to the Supreme Court's decision to strike down New York's century-old concealed carry law, we took swift and thoughtful action to keep New Yorkers safe,’ . . . . ‘I refuse to surrender my right as Governor to protect New Yorkers from gun violence or any other form of harm. In New York State, we will continue leading the way forward and implementing common sense gun safety legislation.’”In other words, Governor Kathy Hochul, in her role as Tyrant Nanny of New York, keeping her wayward children, residents of New York, and citizens of the United States, safe and sound from all those dangerous, nasty firearms, will ignore the fundamental, unalienable right of the people to keep and bear arms, etched in stone in the Second Amendment of the Nation’s Bill of Rights, and will defy the Article III authority of the U.S. Supreme Court.Hochul had unconscionably harsh words for the High Court, calling the Bruen decision “reckless and reprehensible.” See the article in NCPR.One thing motivates Governor Hochul’s actions and others like her who have, through the passing years, decades, and centuries, enacted laws to cut the Bill of Rights to ribbons:INCOMPARABLE LUST FOR POWER, INORDINATE WEALTH, AND SELF-AGGRANDIZEMENT—ALL AT THE EXPENSE OF THE COMMON MAN. IT HAS ALWAYS BEEN SO.The history of civilization illustrates an unfathomable and unquenchable desire of sociopathic/psychopathic individuals to wield control over their respective tribe, nation, or empire, or other political, social, economic, and juridical structure.These ill-begotten men desire to thrust their will, their reality, onto everyone else.The Articles of the Constitution and the Bill of Rights of this Nation—of this Nation alone—were drafted with the aim to at least forestall, if not, prevent the perpetuation of this theme from happening here: the urge to dominate and rule.Of course, the presence of power-hungry misfits in the world is nothing new.Some who have succeeded in wielding control over the life, well-being, and happiness of the populace create the illusion they exercise power by virtue of Divine Right. Through time that odd idea becomes embedded in the public psyche. The public comes to accept this and accepts, too, that the rule over others by Divine Right is in the natural order of things, that it has always been thus.Rule by Divine Right—the wielding of near absolute power over others—is sometimes disguised.In our Nation, a free Constitutional Republic, the sociopaths, and psychopaths who lust for power, wealth, for personal aggrandizement and who have the wherewithal, knack, and tenacity to bend the mechanisms of power to their will, to their liking, must resort to deceptive messaging to woo the public, to lull them into dull complacency to accept the messaging conveyed to them by the deceivers and fabricators to mislead them into thinking that curtailment of their God-Given Rights is for their own good. But the truth is other than what is conveyed to the public.The Nation’s Bill of Rights is a check on the power of Tyrants. These Rights, especially the first two Rights are the final fail-safe to keep would-be Tyrants in check.The First Amendment codifies, inter alia, the right of Free Speech, i.e., the Right to Dissent; the Right to Personal Autonomy; the Right of the Individual TO BE and to Remain Individual, against public pressure, at the behest of the Tyrant to compel compliance to his edicts. Those edicts demand uniformity of thought, of conduct, of action. The idea is to force submission of one’s will to the will of the State, the Greater Society, the “Hive,” the Tyrant.The Right of the people to keep and bear arms is the vehicle through which the Individual prevents the Tyrant from forcing submission. This was meant to be so. Americans, millions of individuals, discrete souls, retain sovereignty over the Tyrant by force of arms and thus prevent usurpation of their will to that of the Tyrant.The Tyrant knows this. Many in our Country do not. They are denied THE TRUTH. Each American should know the TRUTH:The preservation of the right of the people to keep and bear arms, a right to be exercised by the common man, serves as a counterweight to the usurpation of the sovereign power of the people over the power of the Tyrant. The Tyrant seeks to restrict and constrict this right as the Tyrant cannot continue to wield power and cannot accrue more power at the expense of the people so long as they are armed. Thus——The common man cannot be controlled, corralled, nor subjugated so long as he bears arms. That he does so constitutes a threat to the Tyrant. The Tyrant knows this even if the polity does not, and the Tyrant utilizes the organs of a corrupt Press to prevent the people from recognizing the slow disintegration of their basic, core Rights, bestowed on them by the Divine Creator, and not by Government.Corruption of  Government proceeds from corruption existent in the Tyrant himself. Corruption of Government and concomitant corruption of every facet of society and of our institutions are recognized in decay, in the destabilization of society, and in the demoralization and degradation of the common man who resides within it. The physical manifestation of destruction is mirrored in the corrupt soul of the Tyrant. On a macro level, one sees this in the immolation of a once great Nation, and of its institutions, culture, ethos, and people.On the micro level one sees this corruption in the immolation of major cities and in the degradation of the lives of the people who reside in them, run by a host of petty tyrants.The salient purpose of armed Self-Defense is to prevent the onset of Tyranny of Government. If you, the reader, don’t see this, take a look at the Second Treatise of Government by the English Philosopher, John Locke. Our Constitution is constructed from the well-reasoned political philosophical remarks of John Locke.Do you need further proof: Take a look, once again, at the U.S. Supreme Court cases District of Columbia vs. Heller and McDonald vs. City of Chicago.The Tyrant knows that the exercise of the right to armed self-defense must be constrained else he cannot wield and maintain power and control over the commonalty, but he doesn’t say this. The Tyrant makes a different argument, directed to denizens of a free Republic.The argument against the exercise of the right to armed self-defense in this Country is that the Second Amendment is archaic and that the proliferation of guns in this Country causes “Gun Violence.”More recently, consistent with absurd political dogma, the Tyrant claims that the roots of the Second Amendment are racist. And a seditious Press echoes those sentiments.But then, ask yourself: Where is this disorder, this violence manifested? Is it in the actions of tens of millions of average, rational, responsible, American citizens—the commonalty that happens to possess firearms?When was the last time you heard that the common rational, responsible gun owner committed a crime through the use of a firearm or through the use of any other implement? When was the last you heard of an average gun owner who went on a shooting spree? How many of those occur in our Country anyway? How might they be prevented? Has not an armed citizen, in the midst of a “mass shooting, often prevented many deaths because he was able to stop the killer? If more people were armed, would they not be able to secure their life and that of others?Where does this so-called “Gun Violence” emanate and predominate?Is not the escalation of  “Criminal Violence” in the Country and especially in the major urban areas, the deliberate result of Government policy that allows the criminal element and the occasional lunatic to run amok?Why should curtailment of the basic natural law right to armed self-defense proceed from Government’s failure, oft deliberate, TO CONSTRAIN THE LOWEST COMMON DENOMINATOR of society: the foul, drug-addled lunatic; the monstrous, murderous gang member; and the opportunistic criminal—all of whom are devoid of empathy for the innocent person.Why should curtailment of a basic natural law right to armed self-defense proceed from instituting strict control over the natural law right of THE HIGHEST COMMON DENOMINATOR: tens of millions of average Americans?And, if those tens of millions of average Americans were to surrender their firearms to the Tyrant, how might that prevent the criminal and lunatic from engaging in less mayhem? Might not that encourage more illicit behavior and leave the common man absolutely defenseless, dependent completely on the goodwill of the Tyrant to dispel threat?But isn’t that really the point of disarming the citizenry: to leave the common man, the sole sovereign over Government, defenseless, powerless against the Tyrant, lest the common man rises up against the usurper?The New York Handgun Law and related laws as codified in the Consolidated Laws of New York, illustrate the Tyrant’s irrationality, arrogance, and lust for power over the citizens of the Country, residents of New York. But in the Gun Law and in other laws peppered throughout the breadth and depth of the Laws of New York, one sees, if one but reflects on those laws, a raw fear exposed. The Tyrant fears the common man.New York’s Handgun Law, the Sullivan Act, was enacted in 1911. It was predicated on fear of the common man—at the time, those were construed as new Italian immigrants to New York.The Sullivan Act was grounded on a lie at the outset: based on the idea that Italians were by nature, criminals, and their conduct in public had to be forcibly restrained lest they commit untold crimes throughout the State. This meant keeping firearms out of the hands of Italians. The form of the argument may have seemed valid to many. The premises were false, laughably so.The idea of converting a fundamental, unalienable right into a privilege is mystifying and disconcerting.Did the New York Government issue handgun licenses to Italians, recent naturalized citizens, residing in New York? One must wonder. If the idea behind the Sullivan Act, seemingly content neutral on its face, was to keep Italians from exercising their right, as citizens, to keep and bear arms, the law makes perfect sense.Yet the Sullivan Act came to be, and it survived, and thrived.The Sullivan Act requires all individuals who seek to carry a handgun in public to first obtain a handgun license from the Government to lawfully exercise their natural law right to armed self-defense.So then, the New York Government insists on inserting itself between the natural law right to armed self-defense, as codified in the Second Amendment, and one's exercise of that right, free of Government interference.The Handgun Law expanded exponentially to include further restraints, to encompass many more groups of people—the common man en masse—and to make the acquisition of a handgun carry license more expensive, time-consuming, and frustrating. That was the point.Many New Yorkers conceded defeat. They threw in the towel. They gave up the effort to obtain a license. The Handgun Law worked THAT well.Through time, the Handgun Licensing Statute became more elaborate. It developed into a cumbersome Handgun Licensing Regime. The challenges were many. But none succeeded in toppling the unconstitutional construct. And, then came the Heller case.The U.S. Supreme Court had for years stood idly by while State Government Tyrants and the Tyrant Federal Government road roughshod over the absolute right of the people to armed self-defense.In the 21^st Century, some Justices on the High Court had had enough. It was clear that Two Branches of the Federal Government, the Executive and the Legislative, and many State Governments, including the District of Columbia, were not going to adhere to the strictures of the Bill of Rights, especially the dictates of the Second Amendment to the Constitution.Associate Justices Scalia, Thomas, and Alito set matters aright.With the indomitability of Associate Justice Antonin Scalia, and assisted by two able Associate Justices, Clarence Thomas, and Samuel Alito, and, having convinced or perhaps cajoled the Chief Justice, John Roberts, and Associate Justice Anthony Kennedy to climb on board, the Court agree to review a case where the District of Columbia had enacted a law banning, outright, civilian citizen possession of handguns for self-defense, in the District.Since the District of Columbia law was predicated on the notion that the right to keep and bear arms was a collective right, not adhering to the individual, an erroneous notion, the Court Majority held clearly, concisely, and categorically that the right of the people to keep and bear arms is an individual right—one unconnected with association with a militia. And, having enunciated the clear, plain meaning of the natural law right codified in the Second Amendment, the High Court struck down the D.C. law.The anti-Second Amendment States were appalled and argued that Heller applied only to the Federal Government. That led to another challenge, this time from Plaintiff gun owners in Illinois, who argued that the right of the people to keep and bear arms applies with equal force to the States. The U.S. Supreme Court agreed. Justice Samuel Alito, who authored the Majority Opinion said, the right of the people to keep and bear arms applies with equal efficacy to the States through the application of the Fourteenth Amendment.Further challenges to States that refused to adhere to the rulings of Heller and McDonald went unreviewed by the Court, until a good ten years after McDonald.The High Court agreed to hear r a challenge to New York’s Handgun Law in New York State Rifle & Pistol Association, et.al. vs. The City Of New York, 140 U.S. S. Ct. 1525 (2020)—the first major assault on the Sullivan Act to be heard by the High Court. In that case, Petitioner holders of valid restrictive handgun premise licenses sought to be able to transport their handguns to target ranges outside the City. The Rules of the City of New York forbade that.the narrow issue in the City of New York case dealt with the Second Amendment rights of holders of highly restrictive New York premise licenses. Yet, the case implicated broad Second Amendment questions impacting Heller and McDonald.Hochul’s predecessor, Andrew Cuomo, feared a decision on the merits of that case would open up a serious challenge to the core and mainstay of the State’s Sullivan Act, pertaining to the carrying of handguns in public.He could not, must not, allow a decision on the merits that would render the Sullivan Act vulnerable to further challenges that might eventually lead to the decimation of Handgun Licensing in New York.The Cuomo Administration weathered the storm by amending the State’s Gun Law. Those amendments required the City of New York to amend its own Gun Rules, pertaining to the transportation of handguns outside the home, by holders of New York City handgun premise licenses.The amendments satisfied Chief Justice John Roberts and Associate Justice  Brett Kavanaugh. Those two votes, together with the votes of the liberal wing of the Court, sufficed to avoid the substantive merits of the case from review.With changes made to both the State Handgun Law and to New York City’s Handgun Licensing Regulations, the High Court dismissed the case, ruling the Plaintiffs’ claims moot.Associate Justice Alito thought otherwise. In his dissent, he argued there was no legal justification for a finding of mootness. Justice Alito laid out his arguments comprehensively and convincingly.Justice Kavanaugh without addressing the mootness matter, mentioned, in a separate Concurring Opinion,“I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”Kavanaugh’s point came to fruition with Bruen, two years later, and in a major way, vexatious to the liberal wing of the Court, and likely so to the Chief Justice as well, and, no less so, the gravest fear of Governor Cuomo.But the conservative wing—now with Justice Amy Coney Barrett on the Bench—would no longer be constrained by foes of the Second Amendment who would erase the exercise of the right altogether if they had their way. Vindication of the Heller and McDonald rulings was at hand.The Hochul Government and Kathy Hochul, especially, weren’t pleased.If the City of New York case gave her predecessor, Governor Andrew Cuomo, a trifling headache, the Bruen case gave Hochul and Albany a full-on migraine.Bruen involved a challenge to the core of the State’s Handgun Law: the Constitutionality of predicating issuance of concealed handgun carry licenses on demonstration of “Proper Cause”/“Extraordinary Need.”Bruen struck down “Proper Cause.” And that required Hochul and the State Legislature in Albany to strike the phrase from the Handgun Law. There was no way around that.But Hochul and Albany had no intention of complying with a ruling that would tear the guts out of a handgun Law that existed for well over a century and that, through time, grew increasingly elaborate and more oppressive.So Governor Hochul and Albany brushed the rulings aside, concocting the Concealed Carry Improvement Act (CCIA) of 2022 that gives lip service to Bruen and is, at once, consistent with the State’s end goal to transform the State, eventually, into one massive “Gun Free Zone.” Likely Hochul and Albany were working on the CCIA once the oral argument had concluded on November 3, 2021, having anticipated the High Court intended to shred the core of the Sullivan Act.The Hochul Government was prepared. The High Court issued its decision on June 23, 2022. Ten days later the State Senate enacted the “CONCEALED HANDGUN CARRY IMPROVEMENT ACT” (CCIA). Hochul signed it into law on the same day, July 3, 2022.That word, ‘Improvement,’ as it appears in the title of the Act is incongruous, even incoherent. For what is it the Act improves? Certainly not the right of the American citizen, residing and/or working in New York, and the Act did not comply with the Bruen rulings.The CCIA was a cleverly, cunningly drawn evasion tactic that strengthened the Handgun Law, consistent with an age-old plan.This plan, this agenda, involved the methodical, evisceration of gun rights—a plan going back over a century ago. The Hochul Government did not design the CCIA to comply with the rulings, except on a superficial level. The Court did not like the words, “PROPER CAUSE,” so the Government would strike those words from the Sullivan Act.Since the Hochul Government still had to contend with the salient ruling that the right of the people to keep and bear arms for self-defense is not confined to one’s home but extends to the public arena, the State would slither around the ruling. That was the intent of the Hochul Government, and the CCIA well reflected that intention. They did that through the creation of a new construct: “SENSITIVE PLACE” restrictions, and through a bold reconfiguration of an old one, “GOOD MORAL CHARACTER.”Through the CCIA Hochul and her cohorts in Albany laid bare their objective: Erosion of the civilian citizen’s right to armed self-defense outside the home, notwithstanding the import of the Bruen decision: recognition of the right to armed self-defense outside the home, no less than inside it.The CCIA was to take effect on September 1, 2022. The Act's challengers wouldn’t wait for that to happen.The ink had not yet dried on the CCIA document Kathy Hochul signed when the Plaintiffs came forward to challenge the amendments to the Gun Law. There would be others—most of them in New York, but several across the Country as well, challenging similar Gun Laws, the language of which is contrary to the Bruen rulings.Several New York cases, including the main one, i.e., Antonyuk vs. Nigrelli, presently sit on review at the U.S. Court of Appeals for the Second Circuit.Fully briefed, the Court conducted oral hearings for each of them, on March 20, 2023. Expect final orders during the summer months.

“SENSITIVE PLACE” AND “GOOD MORAL CHARACTER”

As we stated supra, two provisions of the CCIA stand out as they serve as the basis of the State’s defiance of the Second Amendment and the Bruen rulings: “SENSITIVE PLACE” and “GOOD MORAL CHARACTER.”The “Sensitive Place” provision is new. There is no correlation with it in the prior version of the Law or in any previous version, hearkening back to the commencement of handgun licensing in 1911 with the enactment of the Sullivan Act. Much has been said about the “Sensitive Place” provision and challenges to the CCIA invariably point to it.The “Good Moral Character” requirement, on the other hand, is not new.Little is said about it in the prior version of the Handgun Law. And, apart from mentioning it in Bruen, the High Court had nothing to say about it.As applied to applications for restrictive handgun premise licenses—and a multi-tiered Handgun structure remains in the New York Gun Law—there is no change from the prior Law.However, as applied to applications for concealed handgun carry licenses, the State Legislature added substantial and significant provisions—a massive transformation from what had existed before.A major distinction between the two provisions, “Sensitive Place” and “Good Moral Character,” needs to be mentioned and discussed before we proceed to a comprehensive analysis of the latter provision.

THE NUANCES OF “SENSITIVE PLACE” RESTRICTIONS

“Sensitive Place” restrictions affect holders of State concealed handgun carry licenses only, not those holders of highly restrictive premise handgun licenses —a point seemingly trivial. It isn’t.A holder of a premise license cannot lawfully utilize a handgun for self-defense outside the home or place of business, notwithstanding instances of dire threats to life presenting themselves outside the home or one’s place of business.The lawful use of a handgun for self-defense begins and ends within the confines of the walls of the structure.As if to emphasize the point, the holder of a home or business license, who wishes to transport his handgun outside the home, lawfully, must keep the handgun in a handgun case, not in a holster on his person. Ammunition must be kept in the case as well and separate from the handgun itself.This means that, if the holder of a restricted premise license were confronted by a deadly threat while out in public, the handgun won’t be readily accessible. And that is the point. And that is concerning for two reasons.First, a handgun case is easily identifiable as such.If the licensee is in a subway, say, on the way to a New York City target range, a determined and highly aggressive thief can strongarm the case away from the owner.In that event, the owner must immediately notify the NYPD of the fact of the theft, and he will likely be required to surrender his premise handgun license during the investigation. If the police fail to recover the handgun, the owner will likely be denied issuance of a replacement license, which is a condition precedent to lawful receipt of a new handgun. And to add insult to injury, the owner will likely be blamed for the theft having occurred. The police report will indicate that the owner had lost possession of the case, suggesting that, if the owner had been deficient in protecting the property, and, perhaps, should haven’t taken the handgun outside the home or place of business in the first instance.Second, if the licensee were threatened with violence to self and were able to access the handgun and successfully avert a tragedy to self by incapacitating the aggressor by shooting him, the licensee would lose his license. There is no question about that.Worse, the licensee would be prosecuted for misuse of the handgun.Worst of all, the aggressor would likely be charged with criminal assault and wrongful possession of a handgun, for the premise license doesn’t lawfully allow the licensee to wield a handgun in public. As if to emphasize this point, Governor Hochul made patently clear that Bruen doesn’t authorize a person to carry a handgun in public for self-defense. In other words, New York remains a Handgun Licensing State Par Excellence among Anti-Second Amendment fanatics.Further, if the aggressor died of his wounds, the licensee would be indicted for manslaughter or murder. That outcome isn’t merely likely. It is certain and inevitable.Under New York Law self-defense may be a perfect defense to a charge of manslaughter or murder if one didn’t initiate the aggressive act, but “armed” self-defense isn’t if the person appealing to it happens to use a handgun in the absence of a valid State issued concealed handgun carry license.This is true even if the perpetrator himself is armed and threatens to kill the innocent person.The idea that an innocent person cannot defend him or herself but for use of a handgun and would suffer indictment for unlawful homicide notwithstanding, is ludicrous. But that is the nature of New York law.Isn’t that the tacit point of a fundamental right of the people to keep and bear arms? And isn’t that the central point of the Bruen rulings?Raw abhorrence of firearms precludes rational debate over the right to armed self-defense in the face of imminent violent assault against self.In fact, even if the licensee does hold a valid concealed handgun carry license, that may not protect him from a charge of manslaughter or murder. The best that can be said about this is that at least the licensee is alive when he would otherwise be dead. But the ramifications of armed self-defense reflect the sad truth about living and working in New York.The Hochul Government’s aversion toward firearms and civilian citizen gun ownership is so strong that the New York Government begrudges the issuance of handgun licenses at all.And it gets worse. Of late, even where a handgun isn’t employed in self-defense, any use of self-defense that results in harm or death to an assailant may still result in a felony indictment. Recall the recent incident involving a retired Marine whom Manhattan DA, Alvin Bragg, brought a charge of manslaughter against. See, e.g., the article in Reuters. Even as violent crime escalates around the Country, especially in the major cities run by Democrat-Party administrations, the right to self-defense, armed or not, is under assault.The irony of an increasingly dangerous society, a wary, tentative police force post-Floyd George, and the incessant Government attack on Americans who would logically wish to carry a handgun for self-defense—since it is the most effective means available to defend one’s life—is both a disheartening and disorienting fact of life for those living or working in New York and in similar jurisdictions across the Country. That is what they must contend with.As if reading the minds of New Yorkers, the Hochul Government issued a reminder (actually a warning) to all New York residents, on June 24, 2022, one day after the Bruen decision came out, that New Yorkers should take care not to carry a handgun in public without a valid concealed handgun carry license, that Bruen hasn’t changed anything.“Governor Kathy Hochul today issued a reminder to gun owners that the U.S. Supreme Court's Thursday decision to strike down New York's concealed carry law does not mean New York State's licensure processes and rules do not need to be followed. It does not automatically give current residential permit owners the ability to carry guns outside the home. Gun owners are required by law to follow current restrictions.” Hochul made these remarks on June 24, 2023, one day after the publication of the Bruen decision.Hochul would have known that most of the amendments to the Handgun Law were already drafted and coming down the pike, momentarily. That meant the nuances and peculiarities of multi-tier Gun licensing Statutes would remain.And that raises the question, post-Bruen: Why would a person seek to acquire a restricted New York handgun premise license in lieu of a concealed handgun carry license? After all, didn’t the elimination of the “Proper Cause”/“Extraordinary Need” requirement make the acquisition of a concealed handgun carry license easier? Not really.Sure, the Hochul Government struck “Proper Cause”/“Extraordinary Need” from the Sullivan Act. But she remains stubborn and undeterred.Hochul continues to place roadblocks in the path of those individuals who wish to exercise their natural law right to armed self-defense. A plethora of sensitive place restrictions on lawful carry and use of a handgun for self-defense now plague holders of concealed handgun carry licenses: both new applications and renewals.The inclusion of the “Sensitive Place” provision and the “Good Moral Character” requirement in the CCIA operate essentially as stand-ins for “Proper Cause.”If the Hochul Government must acknowledge the right to armed self-defense outside the home no less than inside it, then the New York Government will place a plethora of obstacles in the path of those whom the State issues licenses to carry.The holder of such a license now finds himself constrained in the act of lawful carrying of a handgun and, therefore, constrained from lawfully using a handgun for self-defense in places that heretofore had no such restrictions.New York State, and New York City, especially, has become a patchwork quilt of places where the carrying of a handgun for self-defense—and therefore the use of it for self-defense—is illegal, notwithstanding the issuance of a concealed handgun carry license.Pre-Bruen, the only place restrictions pertained to were school zones and Federal and State Government buildings. The licensee knew that and avoided carrying a handgun in those areas and buildings. Now, the holder of a valid concealed handgun carry license must play a child’s game of  “Hopscotch”—kept mentally off-balance not precisely aware whether he and his handgun and the concealed handgun license he carries, are situated in a prohibited “Sensitive Place.” Did he miss a marker? What if he has to walk through or drive through a designated “Sensitive Place” to arrive at his destination? Must he detour around the area?The concealed handgun carry licensee must also keep in mind that “Sensitive Locations” are subject to revision. New restricted areas may be listed, and he must keep assiduously abreast of all amendments to those“Sensitive Place” restrictions.So then, “full carry” UNRESTRICTED handgun licenses no longer exist in New York. Under the CCIA, such “full carry” licenses, are constrained by numerous rigidly enforced place restrictions—which the Government may add to at any time.New York UNRESTRICTED “FULL CARRY” CONCEALED HANDGUN LICENSES are for all intents and purposes now reduced to RESTRICTED “LIMITED CARRY” CONCEALED HANDGUN CARRY LICENSES, most notably, on Manhattan Island.

NUANCES OF THE “GOOD MORAL CHARACTER” REQUIREMENT

The “Good Moral Character” requirement operates differently from the State’s “Sensitive Place” provision.The idea behind amendments to “Good Moral Character” as applied to applications for New York concealed handgun carry licenses is to dissuade an applicant from going through the hurdles of obtaining one.That is a strong inducement for the applicant to forego attempting to acquire such a license, opting instead for a restrictive premise license. That is why the Hochul Government has maintained the confounding multi-tiered handgun licensing structure post-Bruen.While there would appear, at first glance, no rational reason for a person to opt for a HIGHLY RESTRICTED New York premise handgun license Post-Bruen, the Hochul Government there are more than enough hurdles in place, making the acquisition of a RESTRICTED concealed handgun carry license no assured proposition, and the detailed information the CCIA mandates might cause a conscientious person to wish to refrain from divulging substantial details of his private life to the Government. In that case, a person might wish to forego the intricate, confusing, and intrusive process to obtain a concealed carry license and accept, instead, a New York premise handgun license.

INDIVIDUALS PURSUING A NEW YORK CONCEALED HANDGUN CARRY LICENSE MUST BE WILLING TO WAIVE THEIR FUNDAMENTAL RIGHT OF PERSONAL AUTONOMY AND PRIVACY, ALLOWING THE NEW YORK GOVERNMENT TO INTRUDE MERCILESSLY INTO EVERY ASPECT OF THEIR LIFE

For the individual undeterred in his quest to acquire a concealed handgun carry license, he must willingly accept Government interference with his fundamental right to privacy and autonomy.Application of this bolstered “GOOD MORAL CHARACTER” provision has a chilling effect on the First Amendment Freedom of Speech clause and on tacit Freedom of Association, and on the Fourth Amendment right of a person to be free from unreasonable searches and seizures. An Applicant must now waive those rights if he wishes to pursue the acquisition of a concealed handgun carry license.“GOOD MORAL CHARACTER” also butts up against one’s right to due process and equal protection under the Fourteenth Amendment—the very reason the U.S. Supreme Court struck down the“PROPER CAUSE” requirement.As applied to applicants for either highly restricted or restrictive premise handgun licenses only, the 2023 version of New York’s Handgun Law does not change anything. The CCIA reads as the prior version of the Gun Law read:NY CLS Penal §400.00(1):“Eligibility. No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true. No license shall be issued or renewed except for an applicant (a) twenty-one years of age or older, provided, however, that where such applicant has been honorably discharged from the United States army, navy, marine corps, air force or coast guard, or the national guard of the state of New York, no such age restriction shall apply; (b) of good moral character, which, for the purposes of this article, shall mean having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others (c) who has not been convicted anywhere of a felony or a serious offense or who is not the subject of an outstanding warrant of arrest issued upon the alleged commission of a felony or serious offense; (d) who is not a fugitive from justice; (e) who is not an unlawful user of or addicted to any controlled substance as defined in section 21 U.S.C. 802; (f) who being an a noncitizen (i) is not illegally or unlawfully in the United States or (ii) has not been admitted to the United States under a nonimmigrant visa subject to the exception in 18 U.S.C. 922(y)(2); (g) who has not been discharged from the Armed Forces under dishonorable conditions; (h) who, having been a citizen of the United States, has not renounced his or her citizenship; (i) who has stated whether he or she has ever suffered any mental illness; (j) who has not been involuntarily committed to a facility under the jurisdiction of an office of the department of mental hygiene pursuant to article nine or fifteen of the mental hygiene law, article seven hundred thirty or section 330.20 of the criminal procedure law or substantially similar laws of any other state, section four hundred two or five hundred eight of the correction law, section 322.2 or 353.4 of the family court act, has not been civilly confined in a secure treatment facility pursuant to article ten of the mental hygiene law, or has not been the subject of a report made pursuant to section 9.46 of the mental hygiene law; (k) who has not had a license revoked or who is not under a suspension or ineligibility order issued pursuant to the provisions of section 530.14 of the criminal procedure law or section eight hundred forty-two-a of the family court act.”The above requirements apply to the issuance of all New York handgun licenses: the highly restrictive premise home or business license and the concealed handgun “full carry” license.Note that the requirements set forth in the aforesaid section of the Handgun Law mirror the requirements of Federal Law, 18 USCS § 922, but also, in some instances, as illustrated in the State law, go well beyond what counts as a disability under Federal law. But understand——

FEDERAL LAW DISQUALIFIERS FOR POSSESSING A FIREARM DO NOT INCLUDE A GOOD MORAL CHARACTER REQUIREMENT. NEW YORK LAW DOES.

The requirement is both inherently vague and markedly, nakedly subjective.How does a licensing officer determine an applicant has “the essential character, temperament, and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others”? If the individual falls into a Federal disability—for example, the individual has been involuntarily committed to a mental asylum, has a felony conviction, or having served in the military, has received a dishonorable discharge—the licensing officer will point to the disability and likely add the applicant lacks the necessary character to be trusted with possession of a handgun or with the possession of any firearm. But then, a claim of lack of proper character and temperament adds nothing to a notice of denial to issue a handgun license. THE REQUIREMENT IS REDUNDANT.But, if the licensing officer does not specify a disability in the notice of denial apart from the assertion that, in the licensing officer’s opinion, the applicant lacks proper character and temperament, then, in the absence of a factual basis for such a finding, other than mere recitation of subjective, personal opinion, a Court of competent jurisdiction would likely find the decision to be arbitrary and capricious.But an applicant would have to go through the lengthy, arduous, and costly process of filing a New York “ARTICLE 78” action, challenging the licensing officer’s decision, to obtain relief from a Notice of Denial to Issue a License.That has always been a problem with the use of a Character requirement in the Handgun Law. But, prior to the enactment of the CCIA, the requirement never posed a viable problem.The licensing officer wouldn’t point to the absence of proper character and temperament EXCEPT if the denial were grounded on an objective disability. Recitation of the disability would suffice to deny the issuance of a handgun license. But, of itself, recitation of lack of proper character would not suffice to support a notice of denial to issue a handgun license. Lack of Good Moral Character was, heretofore, in New York, neither a necessary nor sufficient condition to obtaining a license.The Licensing Officer might append his Notice of Denial with a finding that the applicant lacks proper temperament and character, but its inclusion would not add anything portentous to the Notice of Denial.An Article 78 judicial action challenging the Notice of Denial would address the license officer’s litany of disabilities—discrete and specific matters. For, it would be on the basis of the disabilities that character objectively comes into play. Still, one might make the case that severe mental illness, severe enough to require institutionalization is not of itself demonstrative of “BAD MORAL CHARACTER,” any more than a person having a serious heart condition, or cancer, should be considered to have “BAD MORAL CHARACTER” due to illness.Where a person has committed a serious crime due to mental illness (for example, a person is found not guilty by reason of insanity), a case may or not be made out that such a person has “BAD MORAL CHARACTER.” It is a gray area. But, in any event, the New York licensing officer would refuse to issue a handgun license to that person. The issue of “GOOD” or “BAD” MORAL CHARACTER is really irrelevant in that case.Moreover, by itself, the issue of “CHARACTER” counts for nothing. And yet, for those individuals now applying for a concealed handgun carry license, this elusive and illusive provision becomes a new highly ramped-up basis to deny issuance of a handgun license. It is even more subjective, and just as arbitrary, as New York’s old “Proper Cause” requirement.Like the multi-tier structure of handgun licensing, the inclusion of a character requirement in the Handgun Law has itself developed into a complex multi-tier structure.The requirement for those applying for a concealed handgun carry license, the “GOOD MORAL CHARACTER” requirement established for application for a highly restricted handgun carry license is now merely the first step in a two-step process to demonstrate to the satisfaction of the licensing authority, that the applicant has the proper character to be issued a concealed handgun carry license.Post-CCIA, NY CLS Penal §400.00(1)(o):“for a license issued under paragraph (f) of subdivision two of this section the applicant shall meet in person with the licensing officer for an interview and shall, in addition to any other information or forms required by the license application submit to the licensing officer the following information: (i) names and contact information for the applicant’s current spouse, or domestic partner, any other adults residing in the applicant’s home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant’s home; (ii) names and contact information of no less than four character references who can attest to the applicant’s good moral character and that such applicant has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others; (iii) certification of completion of the training required in subdivision nineteen of this section; (iv) a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicants character and conduct as required in subparagraph (ii) of this paragraph; and (v) such other information required by the licensing officer that is reasonably necessary and related to the review of the licensing application.”It isn’t clear whether only one, or two, or all five requirements listed above all fall into the sphere of “Good Moral Character” and we must wend our way through the thicket to get a handle on this.To begin, it is odd to require more than one standard of proper character in the State’s Handgun Law.Logically, if a person cannot be deemed to have sufficient good character to possess a handgun at all, what does it mean and why should it matter to require more of one’s character to carry a handgun in public?Surely, if a “Character” requirement is going to be posited at all, then it follows that a person either has the proper character and temperament to possess a handgun or does not. This is not to suggest that a person should be required to demonstrate special Character traits. Indeed a person can have bad character, but, unless he is a blatant threat to others, a licensing authority should not wield one’s Character as a sword against him.The problem here rests with the Government licensing of handguns. The multi-tier handgun scheme that New York has constructed around which the Government creates ridiculous requirements to justify, or rationalize, the need for such a tiered structure, only makes the entire notion of “CHARACTER” more ridiculous. But, to employ a “CHARACTER” provision in a licensing scheme at all is just “nuts.”Government creates handgun licensing schemes and then interjects requirements that beg the question of whether Government should be in the game of licensing exercise of a fundamental right at all.Sure, a person requires a license to practice law or to practice medicine, but, while a person does enjoy a basic (we would argue an unenumerated Ninth Amendment) right to make a living, and, in fact, has a duty to provide for himself and for his family, so as not to be a burden on himself and on society, a person does not have a Constitutional right to practice law or medicine.And the professions, not the Government, regulate whether one has the proper character to practice law or medicine, anyway. If a professional Board sitting on review of a person’s character does not believe a candidate has the proper character, the Board will not allow a person to sit for the Bar Exam or, in the case of the medical profession, to sit for the Medical Licensing Examinations. These exams are necessary conditions precedent to acquire a State License to practice law or medicine.But the inclusion of a “Good Moral Character” requirement as a condition precedent to obtaining a license to exercise the fundamental right to armed self-defense is bizarre, and, in practice, application of the requirement adds nothing substantive, definitive, or even rational to the process. Application of the requirement merely reflects the personal bias of the licensing authority.And there never was anything substantive about it. It is just a makeweight, and wholly subjective.The Federal grounds for disqualification are sufficient,* as they are, for the most part, objective and tend to preclude the insinuation of personal bias, conscious or not, into the process of adducing whether one can or cannot possess a firearm. The instant background check undertaken at a firearms dealer is enough.The mindset of the Hochul Government is crucial in analyzing and evaluating these new requirements in the CCIA.We will delve into this in the next article, beginning with whether New York makes use of this thing, in other State Statutes. It does. And we will take a look at how other States that have such a provision, utilize it, and lay out our arguments in support of the remarks made herein that there is no justification for employment of “GOOD MORAL CHARACTER” in New York’s Handgun Law.____________________________________*We must stress, consistent with prior statements made in previous articles, that our position is that, despite the seeming contradiction, the natural law right to armed self-defense is absolute.

But does this mean that all individuals should possess a firearm if they wish? The term ‘absolute,’ means ‘unqualified,’ and ‘without restriction.’ This logically entails the proposition that the natural law right to armed self-defense is an unqualified right of man, hence a right, without restriction.

But refer back to the word, ‘should,’ in the afore-referenced question, “Should all individuals possess a firearm if they wish? Further to the point, should there be some limitation on who possesses a firearm?

The word ‘should’ changes a proposition into a normative, moral statement that does not readily fall into the basic “true”/“false” paradigm. Our position is that pragmatic considerations require tough choices when it comes to who “should” “be allowed” to possess a firearm. That ultimately means some people, for pragmatic reasons, “should not” be permitted to possess guns.

Murderous psychopaths and psychotic maniacs fall into categories of individuals who should not possess firearms because their use of firearms is not limited to self-defense or for such benign purposes as hunting, target practice, or sport, such as skeet or trap-shooting, or Olympic events. And, recall the codification of the natural law right to armed self-defense (subsumed into “self-defense”/“self-preservation”) as the core predicate of the right, eliminating, then, use of firearms to commit murder or to threaten murder or other violence.

Federal Law also prohibits “illegal aliens” from possessing firearms. And that is right and proper. The United States is a Nation State, with physical geographical borders, comprised of citizens, whose allegiance, whether they accept it or not, is to the Nation—its Constitution, history, heritage, culture, ethos, and core ethical values.

By definition, an ‘illegal alien,’ is a person who intentionally defies our National geographical Integrity, our Constitutional integrity, and our Laws. His allegiance is not to our Country, nor to our Constitution. Therefore he, like a murderer, is a threat to our natural law right to self-defense, and therefore is prohibited from possessing a firearm, and, from a normative perspective, “ought” rightfully to be prohibited from possessing a firearm.

“Mental Defectives” are another category of individuals that are not in a position to be trusted with a gun as a very young child, as they pose a threat to others if they have access to a firearm. And as for those members of the armed forces who have been dishonorably discharged, they have brought dishonor on their Nation and on themselves and have demonstrated an inability to be trusted with a firearm, as, by definition, they pose a danger to the Nation, People, and Constitution.

But how far should these pragmatic bases to deny possession of firearms extend? The Government itself exists to preserve and protect the Constitution and provide for the common welfare of the citizens.

But Government is naturally inclined—given the power it wields—to subvert those ends, usurping the sovereignty of the American people.

The Biden Administration has disdainfully, unabashedly usurped the sovereignty of the American people and has deliberately, and maliciously failed to faithfully serve and protect the Nation, and has intentionally, malevolently, and spitefully, ignored enforcement of the Laws of the Land. And the Administration has gone further yet: coldly, callously, designing and implementing policy for the purpose of subverting and sabotaging the Laws of the Land.

It is not by accident this Administration has deliberately thwarted the citizenry's exercise of their Bill of Rights. The Administration has designed and implemented policy systematically designed to weaken the right of the people to keep and bear arms.

The Biden Administration is hell-bent determined to dismantle the institutions of our Country, to destroy our history, heritage, culture, and Judeo-Christian ethical values, fully embracing a Tyranny to thrust upon the Nation. And Democrat Party-controlled State Governments across the Country have taken the policy positions and messaging of the Biden Administration to heart: zealously following in the Administration’s footsteps, designing and implementing similar policies, all with the aim of destabilizing society, destroying the economy, demoralizing the people, and promoting all matter of vices against God, Country, and People.

It is but an understatement to assert that neither the Federal Government nor many State Governments are the best arbiter to decide how or whether the natural law right to armed self-defense is to be exercised.

As we see most clearly today, Government tends, through time, to institute more and more restrictions on who may “lawfully” possess firearms, and places ever more draconian restrictions on the types, kinds, and quantity of firearms and ammunition one may possess, and on the component parts and paraphernalia a person may “lawfully” keep.

The Arbalest Quarrel has discussed this notion of ‘Tyranny’ in some depth, in previous articles and we will have much more to say about it and will do so in future articles. We will also deal at length with the notion of ‘absoluteness’ of our natural law rights and lay out further how that concept can be seen to cohere with a seeming logical inconsistency of ‘limitation’ placed on absoluteness in the exercise of natural law rights, utilizing “pragmatic realism” and “normative principles” to secure the Bill of Rights for all time, notwithstanding the strong desire and goal of the Neo-Marxist Internationalists and Neoliberal Globalist Empire Builders that insist the U.S. Constitution's Bill of Rights is archaic, unworkable, and, therefore, must eventually be eliminated, as part of their major overhaul of this Nation’s  Constitution.

___________________________________Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

WHO IS SHERIFF RICHARD GIARDINO AND HOW IS HE DEALING WITH NEW YORK’S UNCONSTITUTIONAL CONCEALED HANDGUN CARRY LAW?

[NOTE TO OUR READERS: THIS ARTICLE IS A WORK IN PROGRESS AND WILL BE EDITED AND EXPANDED UPON IN THE DAYS AHEAD]

MULTIPART SERIES

PART ONE

FULTON COUNTY SHERIFF RICHARD GIARDINO STANDS FIRM AGAINST NEW YORK’S UNCONSTITUTIONAL HANDGUN SCHEME

In the March 2023 issue of the NRA publication, “America’s 1^st Freedom,” the Arbalest Quarrel, in its daily review of publications, came across an article titled, “Shooting Straight with Sheriff Richard Giardino,” by Frank Miniter, Editor in Chief of the magazine.The NRA published the article in the form of a straightforward question-answer interview.The NRA contacted Sheriff Giardino to get his take on a pressing matter affecting law enforcement in New York: the impact of the Hochul Government’s amendments to New York’s Handgun Law, the deceptively named “Concealed Carry Improvement Act” (“CCIA”), and its impact on policing.That was what NRA’s Frank Miniter wanted to know. That is what we wanted to know.The NRA said this about Sheriff Giardino:“As an elected official, Sheriff Giardino doesn’t mind being in front of the cameras. But I [the NRA Editor in Chief, Frank Miniter] also found him to be a serious and humble official. He listens. He thinks of the people first. He next thinks of his deputies and the other employees he manages. Finally, he responds based on his long experience. And he does have a lot of legal experience. Sheriff Giardino graduated in 1984 from Albany Law School. While in college and law school, he served as a part-time police officer. After law school, he was hired as an assistant district attorney in Nassau County, N.Y. In 1986, he returned to Fulton County as an assistant district attorney and, in 1991, he was elected to be the second-youngest district attorney in the state. In 1996, he was appointed by New York’s governor to be a county court judge. In this role, he was a local licensing official for concealed-carry permits in what was then a ‘may-issue’ state, but he behaved as if he was in a “shall-issue” state. He served 18 years as a judge. In that time, he tried over 200 cases, including over 40 murder or attempted-murder cases.Of course, as with anyone we interview, Sheriff Giardino’s opinions are his own. I [Frank Miniter] point this out because, as he is a county sheriff in a state run by a governor who sees the Second Amendment as a problem, Giardino does find himself in some uncomfortable legal positions. He has to abide by the state laws, but he also raised his right hand and swore to uphold the U.S. Constitution, and lately—again, thanks to officials such as Gov. Hochul—those two things have come into conflict. This conundrum puts him—as well as many other law-enforcement officials and citizens who simply want to exercise their rights in various states and jurisdictions around the country—in some legally problematic situations.”The “Leader-Herald” newspaper, in a January 23, 2023 article, added this about Sheriff Giardino:“Giardino, a 64-year-old Republican, first ran for countywide office in 1991. He is the only person in New York state history to have served as a county district attorney, county judge and county sheriff, having won eight consecutive countywide elections.” These articles by the NRA and the Leader Herald newspaper whet our appetite to learn more about this intriguing, and highly learned man. And so, we got in touch with Sheriff Giardino.Thinking that we intended to employ a basic question/answer interview approach, as the NRA did, we instead pointed out that we wished to engage Sheriff Giardino in an informal, open-ended conversation, as that would be less constraining and, we felt, more productive.We spent substantial time talking to him, gaining insightful knowledge from the perspective of a man who deals, on a daily basis, with the practical problems associated with the CCIA and with the problems attendant to policing.This article segment and the segments to follow are a distillation of our talks with Sheriff Giardino, presented in the context of our own work, apropos of the Arbalest Quarrel’s raison d’être: to preserve, protect, and defend the Second Amendment of the Bill of Rights of the United States Constitution from all threats to it from forces both here and abroad aligned against the sovereignty of the American people.We learned a lot about and from this man, and he, in turn, learned a lot about and from us at the Arbalest Quarrel.Sheriff Giardino’s philosophy pertaining to the import and purport of the Bill of Rights, and his socio-political attitude and stance apropos of the threats that face our Country today, are on all fours with our own.Sheriff Giardino’s adoration for our Constitution—especially for the natural law right to armed self-defense as codified in the Second Amendment of the Bill of Rights is the cornerstone of a Free Constitutional Republic, the foundation of the sovereignty of the American people over Government, and the source of our Nation’s greatness, strength.Through what the NRA and the Leader Herald newspaper say, we add a point derived from our own conversations with Sheriff Giardino.The Sheriff’s service to the Fulton County community means service to the U.S. Constitution. And what Sheriff Giardino means by “service to the U.S. Constitution” is no small matter.Service to the U.S. Constitution is what his job is all about. And the Rights contained in it are not to be dismissed.Those Rights are not—as many politicians argue, and as the legacy Press echoes—to be construed as some sort of archaic, mutable appendix to the Articles, to be constrained, modified, abrogated, or ignored because, to some, those rights don’t cohere with the current fad or fashion.The Bill of Rights is a codification of natural law.The Rights enshrined in the U.S. Constitution are not man-made constructs. These Rights are not subject to modification, alteration, abrogation, obliteration, or perfunctory dismissal. These Rights are not attendant to a particular time and place. They are eternal, and they reside in man, as bestowed on man by the Divine Creator. That is how the framers of the Constitution understood them and that, in fact, is what they are.That is our position and that is Sheriff Giardino’s position.It is the very sanctity, strength, and enduring power of the Bill of Rights that drives the would-be Destroyers of our Country to mount an incessant and aggressive campaign against it. Without the exercise of these cherished rights and liberties, our free Republic would cease to exist. But then, that is the aim of those ruthless forces that intend to eliminate their exercise of them: to dismantle a free Constitutional Republic and the sovereignty of the people. These malevolent forces intend to create a completely different sort of socio, political, economic, and juridical framework—one antithetical to the Government the framers of the U.S. Constitution created for themselves and for their descendants. It is one where the people are seen as subservient to the Government, not the masters of and over the Government.Of all the fundamental, unalienable rights, the right of the people to keep and bear arms—the right to armed self-defense against lowly creatures, aggressive men, and tyrannical Government—is absolutely essential to the preservation of a free Constitutional Republic and the supremacy of the American citizenry over Government.Without the force of arms, this Country, as an independent, sovereign Nation-State and free Republic, could not exist; nor can our Republic persist through time if the citizen is denied access to firearms and ammunition.The conservative wing of the U.S. Supreme Court knows this to be true. Sheriff Giardino knows this to be true. And we know this to be true. Yet, many Americans in the Federal and State Governments, including the New York State Government do not know this to be so, or, otherwise, choose to ignore Truth, because it is counter to their running narrative and to their agenda. They, therefore, deny the TRUTH, outright.And, that has placed Sheriff Giardino and others in law enforcement, in a bind: Either uphold recent law that contradicts the Bill of Rights or uphold the Truth of the Bill of Rights and incur the wrath of “woke” leadership.This isn’t an academic matter. It is playing out now, and most acutely, in New York.The Hochul Government has placed Sheriff Giardino like his fellow Sheriffs in a difficult position.How does law enforcement chart a course between a transitory, ill-conceived man-made handgun law, the CCIA on the one hand, with man’s fundamental, unalienable, unalterable, eternal, immutable, natural law right to armed self-defense, codified in the Second Amendment?How does Sheriff Giardino “square that circle.” That question was the focus of our conversation with him, and it raised a host of questions and concerns that we dealt with in depth during our conversations with him.___________________________________________

“DISCRETION” IS THE MECHANISM NEW YORK FULTON COUNTY SHERIFF RICHARD GIARDINO UTILIZES TO DEAL WITH NEW YORK’S INTRACTABLE CONCEALED CARRTY IMPROVEMENT ACT (“CCIA”)

PART TWO

The CCIA is the Hochul Government’s response to the June 23, 2022, U.S. Supreme Court decision in NYSRPA vs. Bruen.The Hochul Government fabricated the CCIA to defy and defeat the High Court rulings in Bruen that reinforce the natural law right to armed self-defense.How does a law enforcement officer square enforcement of the CCIA when that enforcement conflicts with the language of the Second Amendment and U.S. Supreme Court rulings?This is what we wanted to obtain Sheriff Giardino’s thoughts on, as did NRA’s Editor in Chief of the NRA publication, “America’s 1st Freedom,” that preceded our own conversations with Sheriff Giardino. What we learned from the interview that NRA’s Editor in Chief conducted with Sheriff Giardino became the springboard for further explication of the Sheriff’s thoughts on the CCIA, the U.S. Constitution and Second Amendment, U.S. Supreme Court rulings, attacks on police, and violent crime in New York.In his interview with Sheriff Giardino, NRA’s Frank Miniter asked the Sheriff point blank: “Will you enforce New York’s concealed carry restrictions?”Without pause and in no uncertain terms, the Sheriff responded, “I raised my right hand to uphold the constitution. Now the governor of New York wants me to break that oath. Law enforcement has been placed in an untenable position of enforcing laws that we might believe are unconstitutional. As a former judge and district attorney, I still have my law license. My legal experience tells me that many provisions of this new gun-control law are unconstitutional. So, given all of that, I see the law here in a state of flux and we have a tremendous amount of discretion as to what we enforce. So, we’re going to use our discretion. We’re not going to just arrest someone who carries concealed into a barbershop he has been going to his entire life. We’ll inform the person what the law [CCIA] now says, and then we’ll focus our resources on actual criminals.”The issue of police “discretion” is something the NRA glossed over, perhaps given time constraints or publishing restrictions. Yet, to our mind, the point of “discretion” in light of the CCIA is of paramount importance to a consideration of the daily dilemma law enforcement officers are confronted with, especially when they must make a split-second decision.The NRA interviewer did not pursue what Sheriff Giardino meant by   “discretion” and Andrew Waite, a columnist for the Daily Gazette newspaper, whom Sheriff Giardino also spoke with, misconstrued what Sheriff Giardino meant by the term.The use of discretion in policing does not give carte blank authority to law enforcement. And Sheriff Giardino is not saying here or implying that he can do whatever he wants.The columnist for the Daily Gazette, Andrew Waite, incorrectly interpreted Sheriff Giardino as inferring, erroneously, that,“The sheriff is absolutely entitled to choose how to enforce just about any rule.”No! Sheriff Giardino is not saying or suggesting that. Rather, he is pointing to a confounding box the CCIA places him in and the way—the only way—he can extricate himself from it without offending the U.S. Constitution. Sheriff Giardino took an oath to enforce the U.S. Constitution. He did not take an oath to enforce the CCIA.The CCIA is codified in State Statute, Section 400. That is the State's handgun law. It is therefore a component of the Consolidated Laws of New York.A State Statute is not in any manner to be construed as part of the U.S. Constitution. In fact, a State Statute doesn’t stand on the same footing as a State Constitution.The New York State Constitution stands above State Statute in prominence and authority. And, the U.S. Constitution stands above both State Statute and State Constitution, except where the doctrine of Federalism gives the States complementary power or powers that reside exclusively with the States that the Federal Government is not permitted to intrude upon.Sheriff Giardino is told to enforce New York law, but he must also enforce the Constitution of the United States, consistent with his oath. And where the two collide, the U.S. Constitution dictates his actions. That is an unalterable, inescapable TRUTH.Where the CCIA conflicts with the U.S. Constitution, Sheriff Giardino says he must adhere to the Constitution.Where the CCIA doesn’t make clear his duties or where there doesn’t seem to be a clear conflict with the Constitution, then he will use his discretion to chart a proper course, guided, all the while, by the Second Amendment guarantee.That is the import of Sheriff Giardino’s assertion, that——“I see the law [the CCIA] here in a state of flux and we have a tremendous amount of discretion as to what we enforce.”The CCIA is a logical, legal, and logistical mess, a quagmire, manufactured by the Hochul Government to serve an agenda, one antagonistic to the right of the people to keep and bear arms, a right that shall not be infringed. And, since all or part of the CCIA will, at some point in time be overturned either by the U.S. Court of Appeals for the Second Circuit or by the U.S. Supreme Court, as litigation is ongoing at this time, that is the “state of flux” that Sheriff Giardino is referring to.Law enforcement officials, like Sheriff Giardino, cannot extricate themselves easily from this morass but must contend with it.The application of “broad discretion” to deal effectively with a multiplicity of contingencies and complexities is necessitated by the inherent illegality of the salient portions of the CCIA. Further, the inscrutability of some of its sections, and internal inconsistencies along with inconsistencies with other portions of New York law and inconsistencies with the First, Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution, apart from the CCIA’s inherent inconsistency with the Second, abound. That is why we call the CCIA a mess.Sheriff Giardino’s actions must therefore be nuanced. But, where conflict is clear, i.e., where illegal constraints on the exercise of armed self-defense are acute and blatant, then he will enforce the U.S. Constitution, not the CCIA.As Sheriff Giardino says,“The fact that there are currently more than a dozen State and Federal Lawsuits at various stages in the litigation process in New York, over the new CCIA, can be very confusing, especially to those people who presently hold valid concealed handgun carry licenses.* And this confusion will continue to exist until, ultimately, the US Supreme Court decides, supports, and defends my decision to exercise broad discretion in favor of law-abiding citizens.”Adding to this awful burden there is a bitter irony.Sheriff Giardino points out that “on any given weekend, criminals, who can’t lawfully possess firearms, use firearms and, especially handguns, to commit dozens of robberies, murders, and attempted murders. Bear in mind that the chances that a holder of a valid concealed handgun carry license will use that handgun or any firearm in a crime is less than 1/6 of 1%, based on national studies.” So, ask yourself: ‘how many criminals will be adhering to Hochul’s new CCIA?” And to add insult to injury, Sheriff Giardino exclaims, “‘The Concealed Carry Improvement Act’ criminalizes conduct that, under the original New York handgun law, the law in place prior to September 1, 2022, the day the CCIA took effect, was legal.”The CCIA is simply a clever ruse——

• The CCIA is a scheme designed to further the Government agenda while giving lip service to the U.S. Supreme Court rulings in Bruen.
• The CCIA further constrains the average law-abiding, responsible, rational citizen, who happens to reside and/or work in the State, from exercising his natural law right to armed self-defense.
• The CCIA does nothing to curb the misuse of firearms by the psychopathic criminal element running amok throughout the State, most noticeably in New York City.

The Daily Gazette columnist Andrew Waite doesn’t weigh in on any of this because he doesn’t truly understand the nature of the issues, or, otherwise, he doesn’t even begin to perceive a problem.Like most newspaper reporters and columnists, Waite sees “gun rights” vs. “gun control”/“gun safety” as a legitimate issue because politicians and news people manufacture that issue. But it has no substance. It is a fabrication, an illusion, a makeweight.There is the natural law right to armed self-defense. That is a fact. But those who abhor firearms and who fear and detest Americans who keep and bear them and who wish firearms and the right to keep and bear them would just go away, perpetrate and perpetuate a phantom issue, and thrust that specter on the public.These same people also deny the existence of natural law rights. They see the Bill of Rights as man-made artifices, no different than any other law, and therefore subject to modification or abrogation like any other law when whim dictates.They see people like Sheriff Giardino as driving a wedge between those Americans who desire to exercise their natural law right to armed self-defense and those who wish to severely constrain the exercise of the right or eliminate it.Yet, Sheriff Giardino is doing no such thing.Andrew Waite infers, oddly, that application of police discretion is less the result of a failure of the Government to acknowledge the right of the people to keep and bear arms in defense of self and in defense of innocent others, and to guard against the tyranny of Government, and more a personal predilection that causes consternation among those who abhor firearms and who hold disdain toward those Americans who do choose to exercise their natural law right.He says, in his article, supra: “But even gun-rights advocates who support Giardino’s positions on this issue should be worried about the ways in which a local sheriff’s discretion may only serve to further drive us apart.”Who are these “gun-rights advocates” that Waite refers to? Waite doesn’t say.Anyway, his remark is irrelevant, even discordant.It’s a logical red herring, introduced by unscrupulous politicians, and echoed by those in the legacy Press and social media, whether knowingly or not, to confound the public.Andrew Waite is right in the groove, reflexively singing a refrain piped into his psyche and then transmitted to millions of Americans.It is all projection, the product of an elaborate campaign of psychological conditioning, disbursed on an industrial scale, touching every part of the Country.Waite’s remark also shows a misunderstanding of the salient duty of all law enforcement officers.As Sheriff Giardino stated clearly, succinctly, and categorically in the Daily Gazette article, and as he has reiterated for those who do not understand:The duty of a law-enforcement officer is to “uphold the constitution.” That is the oath law enforcement officers swear to. That is and must be the predicate basis for and guiding principle for all his conduct in the field.Yet, in a Nation where the U.S. Constitution is routinely ignored, dismissed, deliberately misread, or even slammed and denigrated, there is, in that, for many, explanation enough explanation.That is how something as poisonous as New York’s “Concealed Carry Improvement Act” comes to be conceived, drafted, passed, and signed into law, and then, exalted as a fine, proper, and good thing.In a Country turned upside down and inside out, law enforcement officers like Sheriff Giardino must perforce contend with a situation that Government throws him into. It isn’t one of his own makings, but that of Hochul and the Democrat-Party-controlled Legislature in Albany, and the secretive powers behind both that have engineered the destruction of our Country.Is Andrew Waite even aware of this?The reporter for the Daily Gazette falls into the very trap that many reporters and columnists fall into, viewing fundamental, immutable natural law rights as a matter of public opinion and failing to grasp that some rights are not a matter of natural law, but are merely man-made constructs.The public’s reaction to the Dobbs “abortion” case is a prime example of this.Andrew Waite writes,“With diametrically opposed laws and individualized interpretations of how to enforce those laws, it can be hard to know which way is up, and which way is down. Amid the confusion and the divergent standards, we become even more divided, and our positions can become even more extreme.”A person becomes lost when he is unaware of or fails to follow the proper guideposts. Such is the case presented above.In the matter of fundamental rights, a person’s guide is the U.S. Constitution. It has always been thus, and must always be so.The Dobbs case is inapposite because “abortion” isn’t a fundamental right. It isn’t natural law. It is a man-made artifice, a judge-made right, fabricated as a matter of convenience, because the U.S. Supreme Court was, at the time, apparently, too afraid to acknowledge that the issue of abortion is not a Federal Constitutional issue. It is merely a matter for public debate, and as such, it should be left to the States to determine how each wishes to treat abortion. And, no the U.S. Supreme Court has done just that. It leaves the matter to the States to work out.But many Americans don’t see this. The Press doesn’t allow them to see this, but, disreputably, stirs up conflict as does Congress. The public gets caught up in a maelstrom of confusion, anxiety, and rage deliberately fomented by politicians and vociferously magnified by the Press, relying on incessant sloganeering and messaging, at once vacuous and malevolent.Many Americans fall for the garbled nonsense visited upon them by unscrupulous politicians, and then amplified through social media and the Press. The results are dangerous, reverberating throughout the Nation, causing discord, social instability, and violence, none of which is unanticipated, but all calibrated to attain the end goal:The annihilation of an independent sovereign Nation, a free Republic, and a free and sovereign citizenry.____________________________________*The Arbalest Quarrel has written extensively on both the parent U.S. Supreme Court case, NYSRPA vs. Bruen, and on Post-Bruen New York cases and we are keeping track of the progress of the litigation. To date, we have published over 40 articles on these cases.See, e.g., our article, posted on the AQ website on October 22, 2022, pertaining to the New York Government's interlocutory appeal to the U.S. Supreme Court, requesting the High Court to lift the Stay on enforcement of the CCIA during the pendency of the lawsuit in Antonyuk vs. Hochul.The Antonyuk case was subsequently recaptioned, Antonyuk vs. Nigrelli when the U.S. District Court for the Northern District of New York dismissed Governor Hochul from the lawsuit.Steven Nigrelli is the new “Acting” Superintendant of the New York State Police, appointed by Governor Hochul. Steven Nigrelli replaces both the Governor and Kevin Bruen, as the principal named Party Defendant, the latter of whom was the previous Superintendant of the New York State Police, appointed by Kathy Hochul's predecessor, Governor Andrew Cuomo.  See the AQ article posted on January 2, 2023.____________________________________Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

WHY DO SOME STATE GOVERNMENTS AND THE FEDERAL GOVERNMENT BLATANTLY DEFY SECOND AMENDMENT RULINGS OF THE UNITED STATES SUPREME COURT?

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

MULTI SERIES

PART FOURTEEN

WHY DO SOME STATE GOVERNMENTS AND THE FEDERAL GOVERNMENT BLATANTLY DEFY SECOND AMENDMENT RULINGS OF THE UNITED STATES SUPREME COURT?

Scarcely eight years had passed since ratification of the U.S. Constitution in 1788 when the question of the power and authority of the U.S. Supreme Court came to a head in the famous case of Marbury versus Madison. The High Court made its authority felt in a clear, cogent, categorical, and indisputable language in this seminal 1803 case.The facts surrounding the case are abstruse, generating substantial scholarly debate. But what some legal scholars discern as having little importance to the logical and legal gymnastics the Court at the time had to wrestle with, and upon which legal scholars, historians, and logicians have directed their attention today, has become a cause célèbre today:“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. . . . This is of the very essence of judicial duty.” Marbury vs. Madison, 5 U.S. 137; 2 L. Ed. 60; Cranch 137 (1803)Article 3, Section Two of the U.S. Constitution establishes the powers of the Court:“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . .” The Constitution’s Framers sought to make the import of the articles and amendments to it as plain and succinct. And they did a good job of it.Even so, ruthless, powerful individuals in the Federal Government and in the States ever strive to thwart the plain meaning and purport of the U.S. Constitution in pursuit of their own selfish interests, imputing vagaries to language even where the language is plain and unambiguous to serve their own selfish ends to the detriment of both Country and people. And that ruthlessness extends to those who, with vast sums of money at their disposal, influence these “servants of the people,” in pursuit of and to achieve their own nefarious interests and goals.Back then, over two centuries ago, when the U.S. Supreme Court agreed to hear the case of Marbury vs. Madison, the Court deftly side-stepped the delicate political and legislative issues of the day that gave rise to the case and carved out the Court’s own territory.The High Court made two points abundantly clear:One, the U.S. Supreme Court does not answer to either the Executive or Legislative Branch. It is not to be perceived as a poor stepchild of either of those two Branches. It is a Co-Equal Branch of the Federal Government.Two, on matters impacting the meaning and purpose of the U.S. Constitution, neither the U.S. President nor Congress can lawfully ignore the Court’s rulings. This means that, where the Court has spoken on challenges to unconstitutional laws, finding particular laws of Congress to be unconstitutional, Congress has no lawful authority to ignore and countermand those rulings, or circumvent those rulings by enacting new laws that purport to do the same thing as the laws that the Court has struck down. Nor can the U.S. President cannot override the Constitutional constraints imposed on his actions.The States, too, are forbidden to ignore Supreme Court rulings, striking down unconstitutional State enactments. Nor are the States permitted to repurpose old laws or create new laws that do the same thing—operate in violate of the U.S. Constitution.  Jump forward in time to the present day.The Federal Government and all too many State and municipal Governments routinely defy the High Court’s rulings, engaging in unconstitutional conduct.But this defiance and even contempt of the High Court rulings leaves an American to ponder, “why?”Even cursory reflection elucidates the answer to that question. The answer is as plain as the text of Article Three, Section 2 of the Constitution, itself.The High Court has neither power over “the purse” that Congress wields, nor power over the Nation’s “standing army” the Chief Executive controls.Yet, the fact remains the U.S. Supreme Court is the only Branch of Government with ultimate say over the meaning of the U.S. Constitution, as Marbury made clear, well over two hundred years ago. To say what the Constitution means, when conflict or challenge to that meaning arises is within the sole province of the High Court.Unfortunately, without the capacity to withhold funds over the operation of Government, nor power to enforce its judgments by force of arms, the Court’s rulings are all too often, blatantly ignored or cavalierly dismissed.As if this weren’t bad enough, the mere fact of the Court’s authority is now actively contested.Audaciously, some individuals in Government, in the Press, and in academia, have recently argued the U.S. Supreme Court’s authority to say what the law is, should not be vested in the High Court, regardless of the strictures of Article Three, Section Two of the U.S. Constitution.Consider, an Op-Ed, titled, “Should the Supreme Court Matter So Much?” The essay appeared in The New York Times, and not that long ago, in 2018, written by Barry P. McDonald, an attorney and Law Professor no less who exclaims:“When the founders established our system of self-government, they didn’t expend much effort on the judicial branch. Of the roughly three and a half long pieces of inscribed parchment that make up the Constitution, the first two pages are devoted to designing Congress. Most of the next full page focuses on the president. The final three-quarters of a page contains various provisions, including just five sentences establishing a ‘supreme court,’ any optional lower courts Congress might create and the types of cases those courts could hear.Why was the judicial branch given such short shrift? Because in a democracy, the political branches of government — those accountable to the people through elections — were expected to run things. The courts could get involved only as was necessary to resolve disputes, and even then under congressional supervision of their dockets.It was widely recognized that the Supreme Court was the least important of the three branches: It was the only branch to lack its own building (it was housed in a chamber of Congress), and the best lawyers were seldom enthusiastic about serving on it (John Jay, the Court’s first chief justice, resigned within six years and described the institution as lacking ‘energy, weight and dignity’).When disputes came before the Supreme Court, the justices were expected to ensure that Americans received ‘due process’ — that they would be ruled by the ‘law of the land’ rather than the whims of ruling individuals. In short, the Court was to play a limited role in American democracy, and when it did get involved, its job was to ensure that its judgments were based on legal rules that were applied fairly and impartially.What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).” The question of interpreting the Constitution is the subject of some debate? Really? Apparently, this Law Professor, Barry McDonald, has wholly forgotten the import of Marbury versus Madison, a case burnt into the mind of every first-year law student. His remarks are eccentric, disturbing, and disheartening.If the Framers of the U.S. Constitution really had such a low opinion of the High Court, they would not have constructed a Government with a Third Branch but would have subsumed it into one of the first two? Obviously, the Framers thought enough about the singular importance of the U.S. Supreme Court, to include it in the framework of the Federal Government, and as a co-equal Branch of that Government.It is one thing to ignore the U.S. Supreme Court’s rulings because of an antipathy toward those rulings and claim the Court can’t do anything about it anyway because the Court hasn’t power to enforce its rulings. That is bad enough. But it is quite another thing to argue the Court has no reason to exist, ought not to exist, and thereupon rationalize doing away with the Third Branch of Government or otherwise reducing its authority to render rulings to a nullity by Executive Branch or Legislative Branch edict.Application of alien predilections, predispositions, and ideology to the Nation’s governance is a path to abject tyranny; to dissolution of the Republic; defilement of the Nation’s culture and history and heritage; destruction of societal order and cohesion; and abasement and subjugation of a sovereign people. The Nation is on a runaway train, running full throttle, about to make an impact with a massive brick wall.The New York Times just loves to publish articles by credentialed individuals who hold views well beyond the pale of those held by their brethren if those views happen to conform to, and strengthen, and push the socio-political narrative of the newspaper’s publishers and editorial staff.Use of such dubious, fringe views to support a viewpoint is a classic example of “confirmation bias,” an informal fallacy.There are dozens of informal fallacies. And the American public is force-fed ideas that routinely exemplify one or more of them.This defiance of State and Federal Government actors to adhere to the Court’s rulings and even to contest the authority of the Court is most pronounced, most acute, and, unfortunately, most prevalent, in matters pertaining to the import of fundamental, unalienable rights and liberties of the American people—and none more so than the citizen’s right of armed self-defense.Consider——In the first decade of the 21st Century, the U.S. Supreme Court ruled clearly and unequivocally in Heller versus District of Columbia that the right of the people to keep and bear arms is an individual right, unconnected with one’s service in a militia. Associate Justice Antonin Scalia penned the majority opinion.Among its other rulings in Heller, the High Court held the District of Columbia’s blanket ban on handguns impermissibly infringes the core of the Second Amendment. It thereupon struck down the D.C. ban on handguns as unconstitutional.And the Court also held a person has a right to immediate access to a handgun in one’s self-defense. Not surprisingly, Anti-Second Amendment jurisdictions disliked these rulings and were intent on disobeying them, and arrogantly defied the Court.Looking for an excuse to defy Heller, these jurisdictions argued that Heller applies only to the Federal Government, not to them. That led to an immediate challenge, and the High Court took up the case in McDonald vs. City of Chicago.Here, Justice Alito writing for the majority, opined the Heller rulings apply with equal force to the States, through operation of the Fourteenth Amendment.Did the Anti-Second Amendment States abide by the Court’s rulings, after McDonald? No, they did not!They again defied the Court, conjuring up all sorts of reasons to deny to the American citizen his unalienable right to keep and bear arms in his self-defense.The States in these Anti-Second Amendment jurisdictions claimed that, even if a person has a right to armed self-defense inside his home, the right to do so does not extend to the carrying of a handgun outside the home.The State and Federal Courts in these jurisdictions conveniently misconstrued the Supreme Court’s test for ascertaining the constitutionality of Government action infringing exercise of the right codified in the Second Amendment. These Anti-Second Amendment jurisdictions also placed bans on semiautomatic weapons, fabricating a legal fiction for them; referring to them as “assault weapons.”  American citizens challenged the constitutionality of all these issues. And many of these cases wended their way up to the U.S. Supreme Court, only to be thwarted because the Court could not muster sufficient support among the Justices to deal with the flagrant violation of Second Amendment Heller and McDonald rulings and reasoning.One of these cases was the 2015 Seventh Circuit case, Friedman versus City of Highland Park, Illinois.The liberal wing of the Court didn’t want the case to be heard. That was no surprise.But, apparently, Chief Justice John Roberts, and Associate Justice Anthony Kennedy didn’t want to hear the case either.Justices Clarence Thomas and Antonin Scalia were furious and said so in a comprehensive dissenting opinion.Had the Court taken up the Friedman case, Americans would have been spared this nonsense of “assault weapon” bans. The Court would have ruled these bans unconstitutional on their face, in which event the Federal Government and Anti-Second Amendment State governments would be hard-pressed to make a case for wasting valuable time and taxpayer monies dealing with an issue the High Court had ruled on. Unfortunately, the Friedman case and many others were not taken up by the Court.Americans are compelled to continue to spend considerable time and money in challenging a continuous stream of unconstitutional Second Amendment Government action. And often, this is a futile expenditure of time, money, and effort, albeit a noble and necessary one all the same._________________________________________

NEW YORK GOVERNOR KATHY HOCHUL UNFAZED BY CHALLENGES TO NEW YORK GUN LAW: “GO FOR IT,” SHE RETORTS!

One of the most persistent and virulently Anti-Second Amendment jurisdictions, that has spurred numerous challenges to unconstitutional and unconscionable constraints on the Second Amendment through the decades, is New York.In 2020, four years after Associate Justice Antonin Scalia died, under disturbingly suspicious circumstances, and shortly after Justice Anthony Kennedy retired from the Bench, and the U.S. Senate confirmed President Donald Trump’s first nominee, Brett Kavanaugh, to a seat on the High Court, the Court took up the case, NYSRPA vs. City of New York—often referred to colloquially as the “NY Gun Transport” case. An extensive explication of that case is found in a series of AQ articles posted on our website. See, e.g., our article posted on April 27, 2020, and reposted in Ammoland Shooting Sports News on the same date. A second U.S. Supreme Court case, coming out of New York, NYSRPA versus Bruen, officially released on June 23, 2022, ruled New York’s “proper cause” requirement unconstitutional.New York Governor Kathy Hochul and the Democrat Party-controlled Legislature in Albany thereupon struck the words “proper cause” from the State’s Gun Law, the Sullivan Act, codified in Section 400.00 of the State’s Penal Code. But, doing so served merely as a blind.Had the Hochul Government refrained from tinkering with the rest of the text of the Statute and other Code sections, it might well have avoided further constitutional challenges from justifiably irate New Yorkers. It did not.Hochul and Albany did not stop with the striking of “proper cause” from the Gun Law. It went well beyond that. Her Government and Albany wrote a detailed set of amendments to the Gun Law. The package of amendments, titled the “Concealed Carry Law Improvement Act,” “CCIA,” do not conform to the Bruen rulings but, rather, slither all around them. On a superficial level, deletion of the words “proper cause” might be seen by some, as Hochul and Albany had perhaps hoped, to forestall legal challenge. But, if challenge came, time would be, after all, on the Government’s side. And Hochul knew this.The Government has money enough to fight a protracted Court battle. The challenger, more likely, does not. Even finding a suitable challenger takes considerable time, exorbitant sums of money to file a lawsuit, and substantial time to take a Second Amendment case to the U.S. Supreme Court. And it is far from certain the Court will review a case even if a petition for hearing is filed, for the Court grants very few petitions.For well over a century the New York Government has inexorably whittled away at the right of armed self-defense in New York. And it has successfully weathered all attacks all the while. The New York Government wasn’t going to let the U.S. Supreme Court now, in the Bruen case, to throw a wrench into attaining its end goal: the elimination of armed self-defense in New York. Much energy went into the creation of the CCIA. It is a decisive and defiant response to the U.S. Supreme Court and furthers its goal to constrain armed self-defense in the public sphere.Likely, given the length, breadth, and depth of the CCIA, the Government saw Bruen coming, long before the case was filed, and had ample time to draft the contours of the CCIA a couple of years ago. A clue that another U.S. Supreme Court case, challenging New York’s Gun Law, would loom, presented itself in Associate Justice Samuel Alito’s dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch.  Justices Alito, Thomas, and Gorsuch had made known their strong disapproval of the way the “Gun Transport” case was handled, after the Chief Justice and Associate Justice Brett Kavanaugh cast their lot with the Anti-Second Amendment liberal wing of the Court, allowing the case to be unceremoniously and erroneously shunted aside, sans review of the merits of the case. A day of reckoning with New York’s insufferable Gun Law was coming. The Government of New York could not reasonably doubt that. The core of the Gun Law would be challenged, and the U.S. Supreme Court would hear that challenge. The Government likely worked up a draft response to an antagonistic U.S. Supreme Court ruling on the core of the Gun Law in 2020, shortly after the New York “Gun Transport” case ruling came down. That draft response would become the CCIA.The Government likely completed its draft of the CCIA well before Bruen was taken up by the High Court. The Government had only to fine-tune the CCIA immediately after oral argument in early November 2021. And the Government did so. Hochul almost certainly received advance notice of the text of the majority opinion within days or weeks after the hearing before the New Year had rung in. Nothing else can explain the speed at which Albany had passed the CCIA and Hochul had signed it into law: July 1, 2022, just eight days after the Court had released the Bruen decision, June 23, 2022.The CCIA amendments to the Gun Law integrate very nicely with and into other recent New York antigun legislation, passed by Albany and signed into law by Hochul. Thus, contrary to what the Governor’s website proclaims, the amendments were not “devised to align with the Supreme Court’s recent decision in NYSRPA v. Bruen.” Rather these amendments were devised to align with other New York antigun legislation. What does this portend for New Yorkers? Those New Yorkers who had hoped to be able to obtain a New York concealed handgun carry license with relative ease will now find procuring such a license no less difficult than before the enactment of the CCIA.Most hard-hit are those present holders of New York City and New York County unrestricted concealed handgun carry licenses. The “proper cause” hoop that present holders of such concealed handgun carry licenses were able to successfully jump through is of no use to them now. These renewal applicants must now satisfy a slew of new requirements—more draconian than the original ones they had previously successfully navigated. All New York concealed handgun carry applicants are now in the same boat. And meeting the new requirements are exceedingly difficult. Despite the clear intent of the Bruen rulings, to make it easier for more Americans to obtain a New York concealed handgun carry license, it is now harder. Likely, very few individuals will be able to successfully pass through the hurdles necessary to obtain a New York license the CCIA requires. Thus, getting a license will remain a coveted prize, difficult to gain as previously, and likely even more so.And the few individuals who do happen to secure a valid New York concealed handgun carry license will find themselves in a precarious situation for all the troubles they had in getting it.These new license holders will find exercise of the right of armed self-defense outside one’s home or place of business, in the public realm, full of traps and snares that did not previously exist. And there is something more alarming.The mere act of applying for a concealed carry license—whether the license is issued or not—now requires the applicant to divulge a wealth of highly personal information that, hitherto, an applicant never had to divulge, and the licensing authority had never asked an applicant to divulge. And, if a person fails to secure a license, his personal data will remain in his State police file, indefinitely, and will likely be turned over to the DOJ, DHS, ATF, IRS, and/or to a slew of State or Federal mental health agencies. All manner of harm may be visited upon the person that otherwise would not have occurred had the individual not bothered to apply for a New York concealed handgun carry license in the first place. To apply for a New York concealed handgun carry license, an applicant may unwittingly be alerting both the New York Government and the Federal Government that he is a “MAGA” supporter, and therefore a potential “Domestic Terrorist.” And, if so, he is then targeted for special treatment: surveillance, harassment, exploitation, or extortion. And he cannot claim a violation of his Fourth Amendment right to be free from unreasonable searches and seizures because he voluntarily relinquished that right when he applied for a concealed handgun carry license.If one thinks this is farfetched, consider the excesses committed by the Biden Administration directed to average Americans in the last several months.We explore these troubling matters, in connection with the application requirements for a New York concealed handgun carry license, in the next few articles.____________________________________Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

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

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

MULTISERIES

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

PART FIVE

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

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

PART SIX

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

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

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

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

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