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NEW YORK’S GOVERNOR HOCHUL REFUSES TO ACCEPT THE BRUEN DECISION — “IT’S LIKE DÉJÀ VU ALL OVER AGAIN,” IN THE IMMORTAL WORDS OF YOGI BERRA
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
PART TWO
“I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.” ~ Closing paragraph of Part One of Justice Alito’s Concurring Opinion in BruenThere are two key components of Bruen. One involves the test that Federal, and State Courts must employ when they are called upon to review Governmental actions that impact the Second Amendment of the Bill of Rights. The second involves the matter of “proper cause”/ “may issue” that is at the heart of the gun licensing regime of New York and that was the central topic of concern at oral argument in Bruen. And Bruen impacts other jurisdictions around the Country that have similar handgun licensing structures. As we all know, the High Court in Bruen struck down the foundation of the New York's concealed handgun carry license regime—the salient constituent of which is the unrestricted concealed handgun carry license component. Few people in New York "are privileged" to hold such valued and rare licenses, as those that have them can rely on handguns for self-defense in the public sphere, i.e., outside the home as well as inside it—a right denied to most all New York residents.First things first. We deal with the test that reviewing Courts must use when reviewing Governmental actions impacting 2A. The U.S. Supreme Court did articulate in Heller the test to be utilized by the Federal and State Courts when reviewing Governmental actions impacting the Second Amendment, but all too many Courts demonstrated a barely disguised antipathy toward it, or otherwise exhibited a tired apathy apropos of it. In either case such jurisdictions resorted to their own case precedent.The appropriate test to be employed—the Heller test—involves a two-step process.The first step is easy or should be easy if a reviewing Court doesn’t make what is a simple matter difficult.A reviewing Court first ascertains whether the Governmental action conflicts with the plain meaning of the Second Amendment. This means simply that the Court looks to see if the Governmental action affects the Second Amendment at all. If the Governmental action impacts on the individual right to keep and bear arms, then, the first part of the test is met. The Government action is presumed unconstitutional and the burden to prove that the action is constitutional rests on the Government, not on the individual asserting the right to be exercised—the right of the people to keep and bear arms.Thus, in the second part of the test, the Government must prove that the action is consistent with the historical tradition of firearm’s regulation. If the Government fails to establish historical precedent, then the regulation must be struck down.Justice Thomas, writing for the majority, said this:“We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”Pay close attention to the phrase, “we reiterate” as utilized by Justice Thomas in the main Majority Opinion and as also utilized by Justice Alito in his Concurring Opinion. In colloquial parlance, the word, ‘reiterate’ means ‘to say something again or several times, typically for emphasis or clarity, and often alluding to a feeling of weariness for having to do so.’ Such is the reason for the term’s appearance in Bruen and such is the profound frustration apparent in the Majority Opinion. By using the word, ‘reiterate,’ in Bruen, the High Court expressed its disdain with the lower Courts for continually failing to heed Heller. This may be due to antipathy, even spite toward the Heller decision. Or it may be due to ignorance, apathy or sloppiness, or philosophical leanings, or stubborn adherence to lower Court precedence. That it happens at all is a dreadful thing—thus the need for Bruen—and, still, we see the Federal Government and State Governments and State and Federal Courts contending with Heller and with McDonald, and intending now to contend with Bruen, as well. How many cases must the U.S. Supreme Court hear before Government gets the message: that the right codified in the Second Amendment of the Bill of Rights of the U.S. Constitution is a natural law right: fundamental, unalienable, immutable, illimitable, eternal, and absolute?Heller laid out the test and the Majority Opinion stated that fact explicitly. —The point being that the High Court wasn’t positing a new standard of review of Second Amendment cases in Bruen, but it was merely confirming the test as promulgated in Heller that all too many lower Courts had heretofore failed to apply. And in that failure, the lower Courts were jeopardizing the sanctity of the fundamental right of the people to keep and bear arms, as an individual right unconnected with one’s service in a militia.Justice Thomas, writing for the Court Majority, was telling those lower Federal and State Courts that had heretofore applied a ‘means-test analysis’ in Second Amendment cases—a test also referred to as an ‘interest-balancing approach’ or ‘interest-balancing inquiry,’ or, in Court vernacular, an ‘intermediate scrutiny test’ in testing the Constitutionality of a Governmental action—that those Courts had gotten it all wrong! Those lower Courts were giving their imprimatur to Governmental actions that all was well and good when nothing was well and good with those actions as they infringed the clear intent of the Second Amendment. The Courts should have struck those actions down. They didn’t. And in affirming the constitutional correctness of unconstitutional acts those Courts compounded their sin against the people and against the Divine Creator. For the Divine Creator had bestowed on man and in man the right of self-defense. And the general sacred right of self-defense subsumes armed self-defense, which is but a species of the Divine Right of personal survival of body, mind, and spirit against those people or Government that would dare to destroy or subjugate body, mind, or spirit to another’s will or to the will of the State over the Self.There are several examples of this failure to heed Heller, but the starkest example is Friedman vs. Highland Park, 784 F. 3d, 406 (7th Cir. 2015), cert denied, 577 U.S. 1039 (2015). The Friedman case is particularly noteworthy, especially today, because the Court had the opportunity to deal head-on with the issue whether so-called “assault weapons” fall within the core of Second Amendment protection. Had the Court taken that case up, it would have ruled that “assault weapons” do fall within Second Amendment protection, and that would have saved the American people a lot of aggravation and heartache that is at present heaped on them by a treacherous and obstructionist Biden Administration, a treacherous, obstinate Democrat Party-controlled Congress, an obstreperous, perfidious legacy Press, and a painfully passive, acquiescent, obsequious, worthless Republican Party.Of course, the expression, ‘assault weapon,’ is a fiction. That’s all it ever was. It isn’t a military term of art, and never was a military term of art; and it isn’t and wasn't ever used in the arms industry as such either.Propagandists devised the term for politicians and a seditious Press for its effect on gullible members of the American public who allow the Government and the Press to do their thinking for them—seducing them through emotive words and images to sacrifice their God-Given Rights for nothing but an illusion of or false hope of security if they would but place their faith in the State to protect them, but from what is never made clear. What is clear is that the State wishes to protect itself from the armed citizenry, as it is the end goal of the State to oppress the citizenry, not provide for the citizenry's succor, much less its salvation. For salvation can only come from the Divine Creator anyway, not from the State—a false god, a fake, cardboard god.Propagandists originally meant to ascribe the expression, 'assault weapon,' to some but not all semiautomatic handguns, rifles, and shotguns. But, of late, especially with the latest Texas school shooting incident—with the Biden Administration, riding a wave of public anxiety and anger over public school shootings—the Administration has chosen to exasperate public anxiety rather than allay it, seeking to ban all semiautomatic weapons or placing them under the purview of the NFA and that means under the heavy hand of the ATF. And this is as we at AQ had predicted long ago.But this would all be a non-issue if the U.S. Supreme Court had a chance to rule on “assault weapons” in the years following the Heller decision. The Court certainly had the chance to do so in the Friedman case. And, God knows, Justice Thomas for one wanted to deal with this matter, but obviously could not get support from the liberal wing of the Court or from the Chief Justice, John Roberts, or from Justice Kennedy both of whom had no stomach for establishing clearly and categorically the salient reason for the Second Amendment: which is that Government was created to serve the American people, not the other way around.An armed citizenry signals to Government that the people are Sovereign over Government and over their Nation, and that firearms provide the means by which Government must bow to the will and sovereignty of the people, whether Government reluctantly agrees to do so or not.It is a curious thing that the supporters of tyranny constantly complain about the firepower of modern semiautomatic weaponry, emphasizing in a hysterical way that such weapons are designed for the military—the standing army of the Federal Government. To be sure, that weaponry of the American citizen is supposed to be military weaponry, designed for just such a cataclysm: to prevent an unrestrained Government and its standing army, and its militarized police, and its vast intelligence apparatus that seeks to bend the citizenry to its will. The right of the people, and the duty of the people, and the ability of the people to resist Government oppression and subjugation is only feasible where the citizenry is armed, and armed to the hilt, and armed with military weapons. In fact, it is not just the semiautomatic weapons that Americans have a fundamental right to possess then; it is the selective fire weapons and fully automatic personnel weapons that Americans have a God-Given right to wield. Of course, a tyrannical Government would attempt to prevent the citizenry from having access to just that sort of weaponry by which the people might succeed in resisting tyranny. The NFA should be repealed; no question about that. Instead, the Harris-Biden Administration wants to extend its purview over semiautomatic weaponry and, of course, eventually over all weapons. A dire confrontation between the citizenry and the Government is inevitable if the Executive and Legislative Branches do not soon come to their senses and acknowledge that those that serve in those Branches of Government owe their allegiance to the U.S. Constitution as written, and to the American people they have a duty to serve. It is not the American people that must bow down or defer to these Government servants, much less deify them. It is they, the smug, sanctimonious, self-righteous servants of Government that need to be put in their place, and that place may well be the chopping block.______________________________________
THE “ASSAULT WEAPON” TEST CASE: WILL NEW YORK REVERT TO “INTEREST-BALANCING” AFTER BRUEN TO SAFEGUARD AN UNCONSTITUTIONAL HANDGUN LICENSING REGIME?
PART THREE
As explained by the Seventh Circuit in Friedman, “The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large-capacity magazines (those that can accept more than ten rounds).” See AQ article published May 1, 2018, for further explication of Government failure to recognize the Constitutionality of civilian ownership and possession of semiautomatic weapons, derogatorily and erroneously referred to as “assault weapons.” The High Court in Heller ordered Courts not to utilize interest-balancing when reviewing the constitutionality of a Governmental action impacting the Second Amendment. That was explicit. The Seventh Circuit used that test anyway and found the ordinance did not violate the Second Amendment. That was hardly surprising. Whenever a reviewing Court uses interest-balancing to test the constitutionality of a Governmental action impacting the Second Amendment, the Court invariably finds an unconstitutional act to not violate the Constitution. That is why the U.S. Supreme Court dispensed with interest-balancing. When a Court uses that test, it gives the illusion that the Court is truly balancing the interests between the State action and the individual right. But the individual right always loses to the State action. That is inevitable. To add insult to injury, the Seventh Circuit was using the very test that Justice Breyer championed in Heller, and which he referred to again, in Bruen. But Breyer was writing a dissenting opinion in Heller, and he stuck with it in Bruen. A dissenting opinion isn't the Court's holding. But many jurisdictions wanted the dissenting opinion to operate as a holding in Second Amendment cases. And so, they pretend the dissenting opinion in Heller was the majority ruling opinion. It is incredible. Such rulings of lower Courts utilizing a test that the majority in Heller did not countenance and explicitly and emphatically refuted, would rely on that test, interest-balancing, anyway.In Friedman, the Seventh Circuit decided to go with the dissent’s reasoning rather than with the law as propounded by the Majority in Heller. Justice Thomas was justifiably furious. And he took the Seventh Circuit to task, and, by extension, tacitly chastised those members of the High Court who did not want to hear the case. Given its importance to the reasoning and ruling in Bruen we cite at length the comment of Justice Thomas in the Friedman case which the High Court refused to grant hearing on. Justice Thomas said, in substantial and pertinent part—with the late, eminent Justice Scalia joining him, “Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms ‘were common at the time of ratification’ in 1791. But we said in Heller that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.’ The Seventh Circuit alternatively asked whether the banned firearms relate ‘to the preservation or efficiency of a well regulated militia.’ The court concluded that state and local ordinances never run afoul of that objective, since ‘states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.’ But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. . . .The Seventh Circuit alternatively asked whether the banned firearms relate ‘to the preservation or efficiency of a well regulated militia.’ The court concluded that state and local ordinances never run afoul of that objective, since ‘states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.’ But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess. The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. The court conceded that handguns — not ‘assault weapons’ — ‘are responsible for the vast majority of gun violence in the United States.’ Still, the court concluded, the ordinance ‘may increase the public’s sense of safety,’ which alone is ‘a substantial benefit.’ Heller, however, forbids subjecting the Second Amendment’s ‘core protection . . . to a freestanding ‘interest-balancing’ approach. . . .’ There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right [citations omitted; passim].”
THE HELLER TEST
Justice Thomas spent considerable time in Bruen outlining the Heller test so that there would be no doubt as to the standard of review lower Federal and State Courts must employ when a Government action impinges upon the Second Amendment. He said:“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. . . .”“In Heller, we began with a ‘textual analysis’ focused on the ‘normal and ordinary’ meaning of the Second Amendment’s language. That analysis suggested that the Amendment’s operative clause—‘the right of the people to keep and bear Arms shall not be infringed’—‘guarantee[s] the individual right to possess and carry weapons in case of confrontation that does not depend on service in the militia. From there, we assessed whether our initial conclusion was ‘confirmed by the historical background of the Second Amendment. . . .’ We looked to history because ‘it has always been widely understood that the Second Amendment . . . codified a pre-existing right.’ The Amendment ‘was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.” After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found ‘no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.’ We then canvassed the historical record and found yet further confirmation. That history included the ‘analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment’ and ‘how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century,” . . . . When the principal dissent charged that the latter category of sources was illegitimate ‘post enactment legislative history’. . . . We clarified that ‘examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification’ was “a critical tool of constitutional interpretation. . . .’”This boils down to the following:First, look at the plain meaning of the Second Amendment: The right of the people to keep and bear arms is an individual right. The militia clause sets forth simply a rationale for it—to inhibit the incursion of Tyranny in Government—which therefore emphasizes the need for the American people—as individuals—to keep Tyranny in check through the best means available: force of arms. In fact, this is the only way to keep Tyranny in check. And we see this now. Tyranny now exists in Government. Sadly, there’s no question about it.It is more than mere wish that drives Anti-Second Amendment usurpers to deny Americans their right to keep and bear arms. It is abject fear, even panic, which motivates them to openly defy the transparent and categorical meaning of the Second Amendment.Among many Americans who had placed their faith in Government but who hadn't succumbed to Government's new religious dogma of “Diversity, Equity, and Inclusion”—upon which the Destroyers of our Nation, and of our Constitution, and of a free and sovereign people insidiously cloaked their aims to dismantle the Republic so that they may thrust the remains into the “NWO” a.k.a. “Neoliberal World Order” a.k.a. “International World Order,” a.k.a. the “Open Society,”—the truth is becoming known. Even the most obtuse of American sees that the Federal Government and that the Soros-funded State and local Governments are moving this Nation perilously close to destruction and oblivion. And it is much too late for these ruthless creatures that seek the demise of a free Constitutional Republic and a Sovereign American people over Nation and Government to disguise that fact.The Bruen decision establishes the stakes for the American people. It is a zero-sum game. There is no compromise. There can be no compromise with a Tyrant. Americans have a fundamental God-Given unalienable right of armed self-defense against predatory beast, predatory man-beast, and predatory Government, i.e., tyranny. Heller and McDonald made this Truth plain. The Federal Government and many States refused to listen. So, the U.S. Supreme Court reiterated the right of armed self-defense. Will the Federal Government and the States listen? Judging by what we see from the actions of New York, the State Government intends to do war with Americans. Far from complying with Bruen, Governor Hochul and the New York Legislature in Albany have no intention of complying with Bruen, any more than New York did with Heller and McDonald. In fact, Bruen makes gun ownership in New York worse, much worse, especially for those that wish to secure an unrestricted concealed handgun carry license.The New York Government has told the U.S. Supreme Court plainly "to go to Hell," and they mean the same for those citizens who reside in New York who wish to exercise their God-Given right of armed self-defense. The danger to the security of a free State is currently very much in doubt. That is why we are spending considerable time on Bruen and will continue to do so in the next several installments, leading up to the critical Midterm Elections in November._________________________________________________Copyright © 2022 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
INTRODUCTION TO ARBALEST QUARREL SERIES ON RADICAL LEFT/PROGRESSIVE DUPLICITY, MENDACITY, AND HYPOCRISY
PART ONE
“Those whom heaven helps we call the sons of heaven. They do not learn this by learning. They do not work it by working. They do not reason it by using reason. To let understanding stop at what cannot be understood is a high attainment. Those who cannot do it will be destroyed on the lathe of heaven." ~Chuang Tse: XXIII, translated by the American writer, Ursula K. Le Guin; epigraph to Chapter 3 of her 1971 Sci Fi novella, “The Lathe of Heaven”
THE RADICAL LEFT AND PROGRESSIVES WILL CRUSH AMERICA INTO SUBMISSION IF THE NATION CONTINUES TO LISTEN TO THE NONSENSE THEY SPOUT, FOR IT ISN'T KNOWLEDGE OR UNDERSTANDING THEY HAVE; AND HAVING NO WISDOM TO IMPART, THEY HAVE NOTHING OF NOTE TO SHARE
LOSS OF OUR NATION BEGINS WITH LOSS OF AN ARMED CITIZENRY
Never in our history, since the birth of the Nation itself, has our Nation faced a direct threat to its survival as it is facing today. This isn’t hyperbole. This is fact. Even in the face of the ravages of the American Civil War, and the calamity of the Second World War, and the threat posed to our Nation by Russia during its existence as the once powerful Soviet Union, during the Cold War era, has this Nation come closer to Armageddon. This fact is plain as day, on constant display, having commenced on the very day the Presidency of Donald Trump began—on noon EST on January 20, 2017, when Trump was inaugurated as the 45th President of the United States.Jealous and powerful elements both here and abroad have mobilized and joined forces to bring Trump down and have failed miserably. They are apoplectic over their consistent failures, and have been raging ever since.Immensely powerful, extraordinarily wealthy, abjectly ruthless, sinister, secretive forces, residing both here and abroad, have operated in concert to attack Trump’s Presidency and by extension to attack millions of Americans who voted for him in the General Election of 2016.These rapacious forces are ever devising and orchestrating, machinating and scheming. And they do so through the amalgam of: a duplicitous and compliant Press; treacherous and hypocritical politicians; recalcitrant and poisonous Federal Government bureaucrats; pestilential sympathizers in the entertainment business; virulent and violent and bellicose Radical Left activists; injurious or lackadaisical jurists; a pernicious academia; rapacious technology chieftains; and a host of hangers-on and fellow travelers and Anti-American sympathizers among the polity, have—all of them—failed to bring destruction both to the man and the Nation. They have failed to topple Trump and to destroy his Administration; and they have failed to destroy the will of the American people; and, to date, they have failed, utterly, to convince Americans to relinquish their Second Amendment right to keep and bear arms; albeit, not for want of trying; and they are still doggedly trying.The only thing these perfidious, treacherous, malevolent, abhorrent forces have succeeded in doing is to draw unwanted attention to their goal of sucking the lifeblood out of this Nation, in a naked attempt to bring the Nation to heel; into the fold of the EU; and eventually, inexorably, unerringly into the grip of a new trans-global, supranational political, social, cultural, economic, financial, and legal system of governance; a new socialist world order ruled by a small cadre of sinister ministers, its heart resting in the interstices and bowels of Brussels.With 2020 hindsight the envious, fuming forces that had connived, threatened, and cajoled, albeit all for naught, to bring their stooge, the duplicitous, hypocritical, arrogant, and loathsome Hillary Rodham Clinton, to the seat of power in Washington, D.C., have licked their wounds and are intent on redressing their previous failure; to force the United States back on track toward realization of the goal of a one world socialist Government. And, if these ruthless forces succeed in placing their lackey, their factotum in the Oval Office, in 2020, everything this Nation has gained through the sacrifices of American patriots, from the American Revolution to the present day, will have been in vain. For, Americans will lose everything that has defined them and that has defined the Nation for over two hundred hears, commencing with loss of the right of the people to keep and bear arms, the most sacred fundamental, immutable right of all.
WHAT CAN ALL OF US DO TO KEEP THE RADICAL LEFT ANTIGUN MOB FROM INFRINGING THE FUNDAMENTAL, NATURAL, UNALIENABLE, IMMUTABLE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS?
Tell your Congressional Delegation, and your State and local Legislators that you expect them to honor their sworn oath and commitment to uphold the U.S. Constitution, as this requires them to take action to preserve and strengthen the right of the people to keep and bear arms; and that means protecting the natural right of self-defense. It also means that such firearms that are in common use including semiautomatic rifles, shotguns, and handguns, as well as revolvers, should be available to the average, law-abiding, rational American citizen. How can we best to achieve this goal? We can achieve this goal by meeting the threat to our most sacred, sacrosanct right by meeting those who would destroy our Nation’s Birthright head-on. Tell your Congressional Delegation to recommit to passing National Concealed Handgun Carry legislation.The most effective way to attack antigun Radical Leftists seeking to weaken the Second Amendment that it may wither on the vine, is not—as all too many Republicans have been seen doing—by capitulating to the Radical Left on the issue of gun ownership and gun possession; nor is it by sheepishly agreeing with and groveling to Radical Left antigun politicians in the Democratic Party and to Grassroots antigun activists. Doing so won’t serve to preserve our sacred right, but, rather, will compromise our sacred, unalienable right. No! We must not capitulate and we must convince Republicans in Congress not to capitulate to the antigun mob. They must never capitulate.
WE CANNOT SECURE OUR NATION BY RELINQUISHING OUR FIREARMS BUT WE SHALL SURELY LOSE OUR NATION FOR HAVING DONE SO
Americans cannot preserve the Second Amendment by negotiating with those intent on destroying it. And the Radical Left, along with the inordinately wealthy Globalist elites, who lust for world domination, have no intention of preserving the Second Amendment to the U.S. Constitution in any form. Consider: no American can any longer easily and readily obtain a machine gun, submachine gun, selective fire assault rifle, short barrel shotguns and rifles, since they are all stringently regulated by the Federal Government. Even though these rifles, shotguns, and other firearms are personnel weapons, they are no longer readily available to the public, as the availability of these weapons went out the door with the passage of the National Firearms Act of 1934 (NFA), over eighty years. And, as the Arbalest Quarrel has repeatedly stated, the assault on “assault weapons” is an attack on all semiautomatic weapons, as the Radical Left antigun mob is aggressively mounting a campaign to ban all of them, not just some of them. Recently, the Radical Left “Mother Jones” made this very point. The title of the article, written by the Blogger, Kevin Drum, says it all: “We Need to Ban Semi-Automatic Firearms.”At least the guy is being honest, and not pretending to convey the impression that most Radical Left antigun proponents attempt to convey to the public, namely, that they wish to ban only some semiautomatic weapons, not all of them, just “weapons of war,” qua “assault weapons.” Were the antigun mob to get their way, an effective ban on some semiautomatic weapons would lead eventually and invariably to a ban on all semiautomatic weapons. And, from there, the Radical Left antigun mob would move for a ban on revolvers, single action and double action; and, on and on, to a ban on single shot firearms and black powder muzzle loaders. The Radical Left intends to confiscate all firearms, thus essentially negating lawful exercise of the right of the people to keep and bear arms.The best way to defend the unalienable right of the people to keep and bear arms is by clashing with the Radical Left elements in Congress and in the populace who seek to destroy it—bringing the fight directly, unabashedly, unreservedly, and forcefully to them.Keep uppermost in mind: the goal of the Radical Left is the same as the goal of transnationalist Globalist Elites. For, they both seek to undermine the United States as an independent sovereign Nation-State—to transform the Nation into a Socialist haven for millions of illegal aliens who have no understanding of our Nation’s history or any appreciation for our Nation’s Constitution, or of the nature of natural rights upon which our free Republic is grounded. The Radical Left and the transnationalists Global elite have no desire to educate illegal aliens, or even legal immigrants, for that matter, that they may readily assimilate; for, to do so, would defeat the aim of the Radical Left and the transnationalist Global elites, as they are in agreement on what they both seek to accomplish. They seek to effectuate a massive political, social, cultural, and economic transformation of our Country and, thereby, to bring the United States into the fold of the European Union. This was already underway during the Obama era, and it was to continue under Hillary Clinton, had she been “crowned” President.Fortunately, the Clinton Presidency bid failed. But, undaunted, the rapacious forces, that have sought ever to destroy this Nation, fervently desire to get back on track and to get back on track quickly, if need be, no later than 2020. They could not do so to date, try as they did, orchestrating a complex strategy directed to impeaching President Trump and removing him from Office. That didn’t happen. And it isn’t going to happen. But, there is no guarantee that these anti-American forces won’t succeed in sitting a Democratic Party stooge in the White House in 2020, and they are plugging away to do just that. But, in the interim, with their plan of undermining the sovereignty of our Nation—if not sooner, then later—they know they must weaken the Bill of Rights. And to do so, they know they must commence with de facto repeal of the Second Amendment. We see this occurring with the latest call for new curbs on semiautomatic weapons that the Radical Left subsumes under the false vernacular of ‘assault weapon.’ We see it in the Radical Left’s call for universal background checks, whatever that means. And, we see it in the call for application of so-called “Red Flag” laws, throughout the Nation.As the Arbalest Quarrel has previously stated, antigun groups have undertaken three salient tactics in their aggressive assault on the right of the people to keep and bear arms, and these tactics are always taken out of the closet whenever a mass shooting occurs, as such a tragic event operates as a useful pretext for through which the Radical Left antigun zealots assail the Second Amendment again and again.Their tactics include, first, expanding the domain of banned firearms. Americans see this in the ferocious, noxious, incessant attack on semiautomatic firearms, aka, assault weapons.Their tactics include, second, expanding the domain of individuals who are not permitted to own or possess any firearm. Americans see this in the attempt to impose draconian, unconstitutional “Red Flag” laws on thousands of average, law-abiding American citizens. Red Flags operate by turning this Country into a Nation of spies, Shoo-flies. Doing so is the hallmark of the Totalitarian State, where people spy on others and pry into the affairs of others.And, their tactics include, third, making it increasingly difficult for Americans to exercise the right to keep and bear arms—increasingly difficult for those Americans who don’t otherwise fall within a statutory prohibition preventing them from owning and possessing firearms or fall victim to oppressive Red Flag laws.This third tactic involves making gun ownership and possession an administratively demanding, daunting, onerous, expensive, and psychologically depressing experience and proposition for gun owners, as gun owners will never know when something they do or something they say might tend to negatively impact continued exercise of their Second Amendment right. Radical Left antigun elements in our Nation, along with their transnationalist benefactors, know that one major stumbling block to defeating the Second Amendment and, in fact, one major stumbling block in compromising any of the other Nine Amendments to the U.S. Constitution that comprise our Bill of Rights, is to effectuate a change in the way in which Americans view their Bill of Rights, to change their mindset. What does that mean? Just this: The founders of our Free Republic perceived the Bill of Rights to comprise laws intrinsic to man. That is to say, the founders perceived the rights, codified in the Bill of Rights, to precede the creation of the Nation. They perceived the rights as an indelible part of the psyche of man. And, what does that mean? It means that the first Ten Amendments comprise rights and liberties bequeathed to man by the Divine Creator. This is what the founders meant by referring to the rights as fundamental, unalienable, and immutable. Since such rights are not created by man, no man can lawfully or morally rescind those rights. This proposition entails that Government, as a man-made construct, cannot lawfully or morally rescind the rights embodied the Bill of Rights, either.For the Radical Left and their transnationalist benefactors, these ideas, that serve both as the cornerstone of our Constitutional Republic, and the cornerstone of individual autonomy, are an anathema. That is why they feel obliged to ignore, modify, abrogate or utterly erase any Right set forth in the Bill of Rights, when circumstance, as they see it, dictates, or mere fancy happens to affect them. For both the Radical Left and for their transnationalist benefactors, no rights and liberties exist that are not perceived as man-made, bestowed on man by other men or by Government; and, so, they perceive nothing in rights and liberties and laws that isn’t subject to refinement or outright abrogation. This is a very dangerous viewpoint; one that is at loggerheads with the very preservation of our Nation as a free Republic; and one that is at loggerheads with the idea of the dignity and autonomy of man.We will explore these ideas in depth in the next several articles, utilizing the assertions and policy statements of two Radical Left “Potentates,” New York Governor Andrew Cuomo and U.S. Senator (D-CA), Kamala Harris, as examples of the logically unsound underpinnings of the Collectivist ideology that the Radical Left embraces.We will demonstrate, through an analysis of their assertions and policy statements, the true danger the Radical Left poses to our Nation, to its Constitution and to its people. By extension we will show how the assertions and policy positions of the Radical Left are incoherent and nonsensical, and that, on logical grounds, alone, do not provide an intellectually satisfactory and morally and legally sustainable basis for transformation of this Nation in the way and manner they seek.The Socialist Utopian dream that both the Radical Left and the Globalist “elites” envision, as bringing public order and comfort to its inhabitants, is doomed to failure. Indeed what it is they truly seek to accomplish is more likely a cold calculated ruse in which to bind this Nation to other Western Nations, in a reprehensible attempt to effectuate a one world Socialist union of once independent nation-states. In that effort, if they succeed, we will witness the dire realization of a Radical Left Socialist Dystopian nightmare; a nightmare that will bring misery, remorse, and profound unease to us all.__________________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
CONGRESSMAN CHRIS COLLINS’ SECOND AMENDMENT GUARANTEE ACT (“SAGA”): A GOOD START BUT NOT A FINISHED PRODUCT
THE SECOND AMENDMENT GUARANTEE ACT
INTRODUCTION
The seminal Second Amendment Heller case (District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) made categorically clear and unequivocal that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia; and the seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)) that followed Heller, two years later, made clear that the right of the people to keep and bear arms—an individual right—applies to the States as well as to the federal Government. Unfortunately, many State Legislatures, along with many legislators in Congress and, worst of all, many jurists on State or Federal Courts strongly oppose the holdings and reasoning of the Majority in Heller and McDonald. This animosity carries over to and is reflected in poorly drafted legislation and in poorly crafted legal opinions. Occasionally, though, State Legislatures and Congress get it right, and do draft laws recognizing the fundamental right of the people to keep and bear arms. Congressman Chris Collins’ (NY-27) Second Amendment Guarantee Act (“SAGA”) that the Congressman recently introduced in Congress is just such a bill. We heartily support the Congressman’s efforts. But, what might we expect?
WHAT IS THE POSSIBILITY OF PASSAGE OF THE SECOND AMENDMENT GUARANTEE ACT?
Unfortunately, not good. We take our cue from other pro-Second Amendment bills. We have yet to see movement on several national handgun carry reciprocity bills that presently exist in a state of limbo, locked up in Committee. Even if Congressman Collins’ bill makes it out of Committee, and, further, is voted on and passes a full House vote, it likely would be held up in the Senate where it must garner a super majority—60 votes—to pass and see enactment. The bill likely would not pass as a “stand-alone” bill in any event. That means the bill would have to be tacked on to other legislation to have any chance of passage. But, assuming the bill were enacted, what might we expect from it?
WHY DID CONGRESSMAN COLLINS DRAFT THE SECOND AMENDMENT GUARANTEE ACT AND WHAT IS THE PURPOSE OF THE BILL?
Congressman Collins, a Representative of New York, obviously had Governor Cuomo’s signature anti-Second Amendment legislation, the NY Safe Act, in mind, when he drafted this bill; for the bill, if enacted, is, ostensibly at least, at loggerheads with a key feature of the Safe Act—Section 37 of the Act—the Section that bans the possession and sale of all firearms defined as ‘assault weapons.’According to the Congressman’s Press Release “Congressman Chris Collins (NY-27) has proposed new measures for protecting Second Amendment rights by introducing legislation to limit states authority when it comes to regulating rifles and shotguns, commonly used by sportsmen and sportswomen. The Second Amendment Guarantee Act (SAGA) would prevent states from implementing any regulations on these weapons that are more restrictive than what is required by federal law. Upon passage of this bill, most of the language included in New York State’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 signed into law by Governor Cuomo would be void." But, is that true? Is the Press Release accurate? Or, does the Press Release presume more about the bill than what the bill produces, in the event the bill, as drafted, sees the light of day and becomes law?
WHAT DOES THE BILL SAY?
The bill (H.R. 3576), amends Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code.As presently enacted Section 927, says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” In pertinent part, Congressman Collins’ modification of Section 927 of Title 18 sets forth:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”What does the modification of Section 927 of Title 18 of the U.S. Code purport to do; and what does the modification of Section 927 of Title 18 of the U.S. Code mean?To understand the import of Congressman Collins’ bill, it is first helpful, in this instance, to understand what those who oppose it would do to challenge it, assuming the Second Amendment Guarantee Act does become law—which is far from clear given Democrats’ hysterical aversion to the Second Amendment and Republicans’ constant foot-dragging.
IF ANTIGUN GROUPS AND LEGISLATORS CHALLENGE THE BILL IN THE EVENT IT BECAME LAW, UNDER WHAT GROUND MIGHT THE BILL BE CHALLENGED?
Congressman Collins’ bill is likely to face stiff opposition and resistance in Congress prior to enactment—assuming it even moves out of Committee—as it would almost certainly be challenged, inter alia, on Constitutional, Tenth Amendment grounds were the bill to become law.What does the Tenth Amendment say? The Tenth Amendment to the U.S. Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment has always been a sticky wicket, especially in matters involving the Second Amendment because the matter of firearms’ regulations and licensing, apart from the regulation and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices, falls, traditionally, within the police powers of a State. Although the federal Government has, in the last several decades, amassed ever more powers unto itself, the fact of the matter is that this Nation is a confederation of independent sovereign States. This idea seems to be lost on people, not least of all in light of the present “Charlottesville” episode—a matter which the Arbalest Quarrel will be writing on in the near future, taking the mainstream news media to task for unleashing a wave of opinionated fake news on the matter, and which the mainstream media is egging the Trump Administration to handle, on the federal level, to support Marxist efforts to erase our Nation’s history, traditions, and core values.Yet, the federal Government cannot indiscriminately, lawfully, run roughshod over the States and the people. In the matter of Congressman Collins’ bill, the Second Amendment Guarantee Act, this creates something of a quandary; for, the bill—as the Congressman articulates through his Press Release—substantially preempts States’ rights on matters of firearms regulations and licensing. The paramount question is this: if Congressman Collins’ bill does become law, can those, who would then seek to mount a Tenth Amendment challenge against it, likely succeed in the Courts? The answer isn’t clear, but, a careful analysis of the bill’s text suggests the bill can survive a Tenth Amendment challenge, as it was carefully drafted to sidestep just such a challenge. Why do we say this? Well, looking at the Tenth Amendment issue, the actual drafter or drafters of the bill made clear the intent of the Act to supersede State regulation of and licensing of firearms; for, Congress would, under the Second Amendment Guarantee Act, be exercising its authority to regulate firearms moving in interstate commerce. It is a categorical, unequivocal principle of law that Congress has plenary power to regulate goods moving in interstate commerce under the Commerce clause. On that matter, no legitimate legal question exists, as the U.S. Supreme Court has made this point abundantly clear.“As we observed in Lopez, [United States v Lopez (1995) 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624] modern Commerce Clause jurisprudence has ‘identified three broad categories of activity that Congress may regulate under its commerce power.’ 514 U.S. at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). ‘First, Congress may regulate the use of the channels of interstate commerce.’ 514 U.S. at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941)). ‘Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.’ 514 U.S. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72 (1911); Perez, supra, at 150). ‘Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.’ 514 U.S. at 558-559 (citing Jones & Laughlin Steel, supra, at 37). United States v. Morrison, 529 U.S. 598, 609; 120 S Ct. 1740, 1749; 146 L. Ed. 2d 658, 670 (2000).”So, the Second Amendment Guarantee Act would likely survive a Tenth Amendment challenge. But, the strength of the bill, as drafted, also poses a weakness, notwithstanding. For, while State laws, such as New York’s SAFE Act and Maryland’s Firearm Safety Act, cannot, if Collins’ bill is enacted, most likely preclude importation of firearms into their State—including and importantly so-called assault weapons, as importation of such firearms affects interstate commerce and federal law, would, under the Second Amendment Guarantee Act, preempt State law in matters affecting interstate commerce—still, once the firearms are presented in States such as New York and Maryland, it isn’t clear, from the present language of the bill, that firearms’ dealers would be able to sell or trade such “assault weapons” to individuals residing in those States, so long as laws such as the SAFE Act and the Firearm Safety Act are in effect. And, those Acts would still be in effect. For, contrary to Collins’ Press Release, restrictive State gun laws, such as the NY Safe Act, do not, ipso facto, become nugatory. A legal challenge to the constitutionality of New York’s Safe Act and Maryland’s Firearm Safety Act would have to be made. But, once made, it is still unclear whether the Safe Act and the Firearm Safety Act could not prevent transfers of "assault weapons" to individuals, not under disability, within the State, on the ground that regulation of "assault weapons" was being conducted intrastate, thereby not affecting interstate commerce.The question, from the standpoint of those challenging restrictive gun legislation existent in States such as New York, Maryland, California, Hawaii, and others, then becomes whether so-called “assault weapons” that some States wish to ban and, at present, have banned outright, can be sold as “protected” firearms under federal law, once they are in a State, such as New York. If so, that means, then, that States could not legally proscribe the transfer, ownership, and possession of those weapons, try as they might. The issue raised by the Second Amendment Guarantee Act is analogous to the matter pertaining to machine guns, submachine guns, and selective fire weapons, as federal law completely preempts the field concerning those weapons, which means that States have absolutely no legal power to enact laws involving the regulation, licensing, and disposition of those kinds of weapons in their States. Federal law completely preempts the field in matters involving the licensing, regulation, and disposition of machine guns. Language in Section 922 (Unlawful Acts) of Title 18 of the U.S. Code makes clear the intent of Congress to preempt the field, in its entirety, in matters pertaining to the transfer and ownership and possession of machine guns. Paragraph “o” of Section 922 of Title 18 says,“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.(2) This subsection does not apply with respect to—(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986].”Curiously, the expressions, ‘firearm,’ ‘rifle,’ ‘shotgun,’ and ‘machine gun,’ are not defined in Section 922 of Chapter 4 (Firearms) of Title 18 of the U.S. Code, where a person might expect to find them, but in Section 5845 of the Internal Revenue Service Code of the U.S. Code, 26 USCS § 5845. In 26 USCS § 5845(b), “The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”Keep in mind that Congressman Collins’ bill modifies Section 927 of Title 18 of the U.S. Code only, which deals with federal preemption of State law regulation of firearms, generally, but the bill modifies nothing in Section 922 of Title 18, where one would expect to find an assertion of those particular firearms and firearms’ components that federal law is preempting States from regulating and there is no modification of Section 5845 of Title 26 (Internal Revenue Code) where firearm terminology is specifically defined. And, it is in Section 922 of Title 18 of the U.S. Code that we see federal preemption of regulation of machine guns; and it is in that same Section of Title 18 that, in 1994, Congress expressly banned ownership and possession of “assault weapons,” nationally—as part of antigun efforts that orchestrated enactment of the “Violent Crime Control and Law Enforcement Act of 1994.” A national ban on the transfer of and ownership of so-called “assault weapons,” along with a ban on LCMs, was set forth in federal law, subsumed in Section 922 of Title 18 of the U.S. Code. But inclusion of an “assault weapons” provision of Section 922 of Title 18 of the U.S. Code, which added a paragraph “v” which made it “unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon,” and inclusion of a ban on large capacity magazines, set forth in paragraph “w” of Section 922 of Title 18 of the U.S. Code, which made it “unlawful for a person to transfer or possess a large capacity ammunition feeding device,” both expired in September of 2003. Those provisions of Section 922 of Title 18 of the U.S. Code were never reauthorized, despite subsequent and numerous efforts by antigun politicians to do so.Since the impetus for the Second Amendment Guarantee Act was predicated, obviously and reasonably, on Congressman Collins' laudable desire to negate the impact of the NY Safe Act on the federal level, through the federal preemption—since Albany appears either unwilling or incapable of repealing the NY Safe Act on the State level itself—we can infer that the Second Amendment Guarantee Act was designed principally to preclude States, such as New York, from banning substantial numbers of semiautomatic firearms that’s State antigun legislators, with great fanfare, cast into the category of “assault weapons.”Congressman Collins, a staunch proponent of the Second Amendment, clearly seeks, through enactment of his bill, to provide Americans the converse—the flipside—of efforts to curb exercise of the right of the people to keep and bear arms. The Second Amendment Guarantee Act, as some would argue, proscribes States from regulating all categories of rifle and shotgun, thereby curbing, with one fell swoop, attempts by any State Legislature to impose specific restrictions on the ownership and possession of one large category of firearms, those subsumed under the nomenclature “assault weapons,” and curbing, as well, attempts by any State Legislature to impose size restrictions on ammunition magazines.But, does Congressman Collins’ bill, that modifies Section 927 of Title 18 of the U.S. Code, make federal preemption of regulation of assault weapons and other firearms’ components absolutely clear?Once again, as presently enacted Section 927 says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” But, and this is an important, but, is such language enough to negate restrictive State firearms’ legislation such as the NY Safe Act? We don’t think so—thus, the failings of the bill, in its current form. For, what do the words, ‘more restrictive with respect to such a rifle or shotgun,’ mean, here?The reader must understand that federal law preemption of firearms, Sections 921, et. seq., of Title 18 of the U.S. Code, is directed essentially to a specific class of firearms, namely machine guns. As made clear in paragraph "o" of Section 922 of Title 18 of the U.S. Code, Federal law preempts the field as to those kinds of firearms only, and the language of the law makes federal preemption in matters involving the regulation of machine guns patently clear. Congressman Collins’ bill is silent on the subject of so-called “assault weapons”—which some believe Congressman Collins’ bill, if enacted, would adequately address, and which it must address if it were to do what it purports to do: preclude States from prohibiting the transfer and possession of firearms that New York’s Safe Act and Maryland’s Firearm Safety Act prohibit, expressly, and prohibit outright--"assault weapons."Had Congressman Collins’ bill been more explicit and precise, we believe that language should appear in Section 922 of Title 18 of the U.S. Code that would work in tandem with the language appearing in Section 927 of Title 18 of the U.S. Code. And, in Section 5845 of Title 26, we would like to see language that clearly and specifically defines the expression 'semiautomatic weapons.' And, in Section 922 of Title 18, we would like to see language that sets forth the lawful transfer of all semiautomatic weapons to individuals, not under disability. The federal preemption Statute, namely, Section 927 of Title 18, as modified in the Second Amendment Guarantee Act would then make federal preemption of the entire field of semiautomatic firearms abundantly and categorically clear. Ideally, language modifying Section 5845 of Title 26, and modifying Sections 922 and 927 of Title 18 of the U.S. Code would establish federal preemption of the entire field of firearms but--and this next point is critical--only to the extent that such modifications serve to enhance the citizen’s right to keep and bear arms under the Second Amendment. We have no desire to see federal preemption leading to mass registration of firearms and draconian licensing measures on the federal level that we already see much too often on the State level.Ideally, language in the Congressman’s bill would have set forth, in Section 922 of Title 18 of the U.S. Code explicit protection of all commercial transactions, among all the people, who are not under disability (as categories of disability are set forth with particularity in paragraph “g” of Section 922 of Title 18), involving all firearms—rifles, shotguns and pistols, whatever the configuration or mode of operation of those rifles, shotguns, and pistols; and, further, Collins’ bill should have included language doing away with BATFE licensing of such firearms as well, which, in the case of machine guns, involves a lengthy, time-consuming, expensive and mentally exhaustive process that does nothing to enshrine the Second Amendment right of the people to keep and bear arms, as exercise of that fundamental right is unduly hampered by a multitude of administrative obstacles. Lastly, we would like to see firearms’ licensing at both the State and Federal levels ended. As a parenthetical note, we point out that Congressman Collins’ bill is altogether silent on the matter of handguns which means that, under his bill, handguns would not be subject to federal preemption. States would still be able to impose draconian restrictions on the American citizenry in matters involving handguns. But, why should Americans suffer the indignity of exhaustive, extensive, and expensive firearms’ regulatory hurdles at all?One doesn’t need a license to freely exercise one’s right of free speech—at least at the moment—although leftwing groups—most notoriously, the so-called “ANTIFA,” an anarchist/communist, domestic terrorist group (as much as any other terrorist group that this Country formally recognizes), is doing its best to constrain the right of free expression in this Country. Why must one secure a license to exercise a fundamental natural right of self-defense, as firearms are the best means available to secure one's safety and well-being when threatened and access to firearms, for those not under disability (as set forth in paragraph "g" of Section 922 of Title 18 of the U.S. Code), is guaranteed under the Second Amendment!Congressman Collins’ modification of Section 927 of Title 18 of the U.S. Code, alone, does not, we believe, adequately establish federal preemption of firearms’ regulation because the purpose of Section 927 is simply designed to preclude conflict between State and Federal firearms laws. That is the Section’s only purpose. Its purpose is not to define the kinds of firearms that fall under the auspices of federal preemption—which is addressed, and is meant to be addressed in Section 5845 of Title 26 of the U.S. Code (referred to more specifically as the Internal Revenue Code of the U.S. Code) and does not set forth the manner in which federal preemption of firearms is specifically addressed, as is the case with machine guns, as set forth in paragraph "o" of Section 922 of Title 18 of the U.S. Code. We also note that the Congressman’s bill, as drafted, uses the permissive ‘may,’ rather than the obligatory ‘shall’ suggesting, then, that States might still regulate firearms, transecting, then, federal preemption, rather than being totally eclipsed by it. Furthermore, as drafted, Congressman Collins’ bill does not adequately establish the kinds of firearms that he intends federal law to preempt. The draft language of the bill simply sets forth that State law “may not” enact a law “that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law.” But, federal law, Sections 921 et. seq., direct attention to machine guns. Federal law does not address so-called “assault weapons”—semiautomatic weapons and, in New York, revolving cylinder shotguns (which are also defined as 'assault weapons'). Consider: had federal law still imposed federal licensing requirements on “assault weapons,” as it once had, in 1994, then New York’s SAFE Act and Maryland’s Firearm Safety Act, regulating such weapons, likely would have been struck down as unlawful under Section 927 because Federal law had, at that time, in effect, at least, preempted the field as to the regulation of assault weapons and large capacity magazines. What this means is that such restrictive State gun laws, regulating or proscribing ownership and possession of “assault weapons,” at that time, would either have been redundant, if otherwise consistent with federal law, or unlawful, if inconsistent with federal law.
CONCLUSION
The bottom line: In its present form, Congressman Collins’ Second Amendment Guarantee Act (“SAGA”), is a good start toward giving the Second Amendment full effect, as the framers of our Bill of Rights intended. And the Congressman is to be commended for his effort. But the bill, as drafted, leaves, we feel, too much uncertainty, in its present form, to be effective in defeating restrictive, draconian State gun measures like the New York’s Safe Act and Maryland’s Firearm Safety Act, contrary to the opinions of some. More work on the bill is needed. But, such work would, we feel, certainly be a worthwhile endeavor._________________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.