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4/14/16 4/14/16

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

PART 1 PREFACE TO ANALYSIS OF THE CASE NRA VERSUS JANET RENO

To test the caliber of a person who would serve as a Justice of the United States Supreme Court – the one Court constituting the Supreme Judicial power in the Land and constituting, as well, the third essential Branch of Government, as established by Article 3, Section 1 of the United States Constitution – which says, in pertinent part, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” – we do look to that person’s intelligence certainly. But great intelligence, while certainly a necessary characteristic of a Justice, does not, of itself, a great Justice make.Much has been made and, undoubtedly, will continue to be made of Judge Garland’s formidable intellectual prowess. A litany of Judge Garland’s intellectual gifts is a continuous refrain we hear from the Judge’s benefactors and proponents. But, when recited in a vacuum, as it invariably is, such praise amounts to little more than empty rhetoric.Of course a person who is gifted with great intelligence – when such intelligence is also coupled with and tempered by collegiality – another quality often attributed to Judge Garland – would seem to be a most suitable candidate to serve on the U.S. Supreme Court. But, is such a person really suitable to serve as Justice on the highest Court of the Land? If a person is indifferent to or contemptuous of our Nation’s Bill of Rights ought that person serve on the highest Court of the Land if, on balance, that person has so many strong qualities, skills, and attributes to be brought to the high Court? We do not believe so.For, such a person, who is indifferent to, places minimal emphasis on, or is altogether contemptuous of our sacred Bill of Rights, is a person who is capable of doing incredible damage to the well-being of a free Republic if confirmed by the U. S. Senate to sit on the highest Court of the Land. For the decisions of the U.S. Supreme Court Justice – even those of a dissenting Justice on the high Court – can have a decided and decisive impact – for good or ill – on our Nation’s institutions, on the continued presence of our Nation’s core values, on the nature of the education of our children, and in the well-being of every American citizen.Thus, we must look to other aspects of a person to ascertain whether, for the good of the Country and for its citizens, that person is best suited to be ensconced as a Justice in our third Branch of Government and therein do service on behalf of the American People – for life or until that Justice otherwise decides, as did Justice Sandra Day O’Connor and Justice David Souter, to retire from the high Court. The work of a Justice becomes so much more important when the other Two Branches fall short – all too often, far short – of their duty to the Nation, to its People, and to the Bill of Rights of the U.S. Constitution. So, we must ask: while character and integrity of a person are certainly critical factors for consideration, along with a perceptive mind and keen intelligence, to what does that person’s character and integrity, perceptiveness and intelligence, as a Jurist extend? Does that person exhibit reverence to and uncompromising devotion toward our Bill of Rights? Or, does that person consider our Bill of Rights dispensable?The first Ten Amendments that comprise our Bill of Rights are, together, the one critical component of the U.S. Constitution that operates as the ultimate restraint on the power of the federal Government and on its standing army to suppress the Nation’s citizenry. The Bill of Rights establishes, in no uncertain terms, that such power and authority the federal government exercises is limited and is granted to the government by the American people in whom absolute power resides and for such period of time that the federal government and its standing army do not forget in whom ultimate and absolute power resides. Thus, a person’s character and integrity, perceptiveness and intelligence are critical factors for consideration but they must be tied to a Jurist’s philosophical attitude toward the American citizenry’s Bill of Rights.So, how does Judge Merrick Garland fare, apropos of one clear and unequivocal right of the people – the Right of the People to keep and bear arms. The case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000) offers a clear, unmistakable, and disturbing clue. The case was decided by a three Court panel that consisted of Judges, Sentelle, Tatel, and Judge Garland, the last of whom is President Barack Obama’s nominee, whom the President has nominated to replace the late Justice, Antonin Scalia, on the high Court.The decision in the Reno case wasn’t unanimous. Judge Tatel wrote the opinion of the Court and Judge Garland agreed with it. Judge Sentelle was the lone Judge, of the three who decided the case, who dissented from the majority opinion. The two member majority, consisting of Judges Tatel and Garland, affirmed the decision of the District Court, for Defendant Appellee, Justice Department Attorney General Janet Reno, against Plaintiff Appellant, NRA, dismissing NRA’s complaint.Keep in mind that, even though Judge Garland did not write the opinion of the Court, the fact that he signed on to it means he agreed with both the decision of Judge Tatel and with Judge Tatel’s reasoning in it. What does that mean? Just this: Had Judge Garland agreed with the decision but disagreed in whole or in part with Judge Tatel’s reasoning, Judge Garland would have written his own concurring opinion; and had Judge Garland disagreed with the decision, then the decision of the District Court would have been reversed and Judge Tatel’s majority opinion would have been a minority dissenting opinion. The two members, Sentelle and Garland, would then have decided in favor of Plaintiff Appellant, NRA, against Defendant Appellee, Janet Reno, thereby reversing the decision of the lower District Court. But that did not happen! The NRA lost and so did those Americans who live in the District of Columbia, and by extension, so did Americans who live throughout the United States because of the impact that a decision of the U.S. Court of Appeals for the District of Columbia Circuit often has on the rest of the Country. The decision in the Reno case has general application beyond the District of Columbia. Moreover, other United States Circuit Courts of Appeal give deference to a decision of the United States Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals for the District of Columbia Circuit is considered the most influential Court in our Federal and State Court System second only to the United States Supreme Court itself.In the next article we look at the particulars of the Reno case. You will come to see that, although, President Obama, argues, as do others who support the President’s nomination, that Judge Garland is a brilliant, thoughtful, meticulous jurist, Judge Garland’s reasoning, as an extension of Judge Tatel who wrote the opinion, is both legally and logically suspect in the Reno case. The reasoning is fraught with legal and logical errors.Of late, we have heard from Vice President Joe Biden, Senate Minority Leader, Harry Reid. Even a few – very few – Republican Senators have chimed in on behalf of Judge Garland. But the U.S. Senate should hold fast, and deny a confirmation hearing. Why do we say this? We say this because Judge Garland, sitting on the high Court as Justice Garland, would change the composition of the Court, and we are not talking here of the obvious change in numerical composition – back to the seeming “magic number, nine.” We are talking here of substantive and substantial compositional changes in the temperament of the high Court; a quantum change in the manner in which the new majority of Justices – Ginsberg, Breyer, Sotomayor, Kagan, and Garland – would decide cases; the rationale the new majority would use; the peculiar legal and logical tests the new majority would employ; the upheavals to Justice Scalia’s legacy on the high Court the new majority would make; of the cases that the new majority would overturn; and a reduction in the emphasis on our National Sovereignty and on the U.S. Constitution in favor of a new international perspective the new majority would introduce. How do we know this?Analysis of actual case law always elicits the truth – the proof of the pudding. So it is that those who trumpet the greatness of Judge Garland do so without bothering to look at the cases he decided during the Judge’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit. It is what Judge Garland’s supporters don’t say about Judge Garland that is worrisome. They don’t discuss the cases he decided and the legal and logical tests he employed in rendering those decisions. For what a person does as a Judge -- that Jurist's ideology and philosophy and methodology of reasoning -- goes with him when that Judge sits as a Justice on the U.S. Supreme Court.Truth always trumps rhetoric. Rhetoric is often eloquent, even effusive. Truth is often blunt; not pretty; it goes down hard. In the ultimate analysis, though, truth always trumps rhetoric. A pity that truth, unlike rhetoric, is something in consistently short supply in the realm of politics.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

4/14/16 4/14/16

THE U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

Obama is tenacious. His intention to make Judge Merrick Garland a Justice of the U.S. Supreme Court will not let up. If anything, Obama’s efforts to place Judge Garland on the high Court are gathering steam. Obama is continuously thrusting Judge Garland into the limelight.Obama is well aware that, if the Senate relents and allows a hearing on Judge Garland’s confirmation, Judge Garland is very likely to become a U.S. Supreme Court Justice, replacing the late Justice Antonin Scalia. If that should occur, Obama’s goal of control over the Judiciary will be complete. Obama will be three for three on his Judicial nominees, and the liberal wing of the Judiciary will have a clear majority. The Democrats would love to see this. That is bad enough. What is worse, two Republican Senators, Mark Kirk of Illinois, and Susan Collins of Maine, have called for a hearing and vote on Obama's nominee, in defiance of Senate Mitch McConnel’s clear orders to Republican Senators that they hold firm: no hearing on Obama’s nominee, Judge Garland!Senator Kirk isn't listening to Senate Majority Leader Mitch McConnel. But, then, Senator Kirk is a virulent opponent of the Second amendment. That, we know; and Senator Susan Collins views on the Second Amendment are suspect now in light of her support for a hearing and vote on Garland’s nomination to the Supreme Court, in defiance of Senate Majority Leader, Mitch McConnel’s call to Senate Republicans to hold firm.Hardly a day goes by without Obama thrusting Judge Garland like a dart into the Senate’s eye. And the mainstream media is doing its part as a puppet of the Obama Administration to keep Garland’s name and photo before the public. The New York Times reported, Tuesday, April 12, 2015, in a news article titled, "Senator Grassley and Judge Garland Meet and Rehash the Obvious," that Judge Garland had an informal meeting over breakfast in the Senate dining room.Although several other Republican Senators have previously met with Judge Garland and have talked informally with him – and more Republican Senators will likely meet with Judge Garland in the near future – a meeting between Senator Grassley and Judge Garland is especially ominous because Senator Grassley is Chairman of the powerful Senate Judiciary Committee.Senator Charles Grassley ultimately decides whether a hearing on Obama’s nominee will take place.For all the fanfare over the finer points of Judge Garland’s intelligence, character, and seemingly benign, pleasant nature, precious little information, if any at all, is available from the mainstream media about Judge Garland’s judicial decisional history. Why is that.The New York Times reports, in the same April 12, 2016 article, that Judge Garland met with U.S. Senator Patrick J. Toomey, Republican of Pennsylvania. The Senator made this cryptic comment about Garland: “Based on a number of decisions and my conversation with Judge Garland, I’m not convinced that he would be willing to play the role of a sufficiently aggressive check on an administration.”The “decisions” Senator Toomey is referring to are case law decisions. Senator Toomey did not, unfortunately, elaborate on the point.How does Judge Garland view the Bill of Rights in light of the decisions he has handed down as United States Court of Appeals Judge for the District of Columbia Circuit? What, specifically, is Judge Garland’s position on the Second Amendment? The President isn’t saying; nor is the Vice President; nor is any Congressman; nor is the mainstream media. We, however, at the Arbalest Quarrel, will do so, as we must.To address the chasm in reporting on Garland’s decisional case law history the Arbalest Quarrel has taken a look at one particular case that provides a very clear indicator of Judge Garland’s position on the Second Amendment.In a multi-part series we peer closely at one particular case. The case is National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).While the case has been mentioned on several websites, not least of which is Ammoland Shooting Sports News, where the Arbalest Quarrel often posts, there has not been, to our knowledge, a thorough analysis of the case. The Arbalest Quarrel plunges deeply into the mind of Judge Garland. You can see for yourself what we have found. It isn’t pretty.Make no mistake, if a hearing is held on Obama’s nominee, and votes are cast, and Judge Garland is confirmed as a U.S. Supreme Court Justice, Justice Scalia’s legacy, as a staunch defender of the Second Amendment, will be systematically eroded. The two seminal Second Amendment cases, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010), will either be overturned outright or whittled away to the point they cease to have legal significance. That means that four lone Justices, who comprise the conservative wing of the Court, will be unable to stop the coming onslaught wrought by the antigun establishment. The endgame – complete destruction of the Second Amendment – would be, then, just a matter of time.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

3/23/16 3/23/16

A STUNNING RULING BY THE SUPREME COURT: HELLER STUNS MASSACHUSETTS HIGH COURT IN CAETANO STUN GUN CASE

No American citizen should take for granted, even for a moment, the importance of the U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The high Court made abundantly clear: the right of the people to keep and bear arms is an individual right, independent of and unconnected to service in the military. Justice Scalia wrote the opinion for the majority of the Court. The Court’s holding is clear and cogent, categorical and unequivocal.Henceforth, so long as the Heller holding remains intact, no law can be enacted that is inconsistent with and denigrates the individual right of the American citizen to keep and bear arms. Laws enacted before Heller that are inconsistent with and which denigrate the free exercise of the individual right to keep and bear arms will be struck down. On March 21, 2016 the U.S. Supreme Court did just that. The high Court struck down just such a law. The case is Caetano vs. Massachusetts, ______ U.S. ______ (2016), 2016 U.S LEXIS 1862 (March 21, 2016). The decision of the U.S. Supreme Court was unanimous.If you are wondering why the left-wing of the Court, comprising Justices, Ginsberg, Breyer, Sotomayor, and Kagan, voted with the conservative wing of the Court, comprising Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy, be advised they did so because they were compelled to do so, not because they truly wished to do so.Heller is precedential authority. Even though the left-wing of the high Court dissented from the decision in Heller, and did so strenuously, the left-wing of the Court was in the minority at the time. The majority rules. So the entire Court must abide by the precedents set by and established by the Court’s majority. This principle of jurisprudence is called stare decisis. It means a Court must abide by and uphold its earlier decisions.What binds the U.S. Supreme Court to legal precedents also binds lesser courts, both State and federal. Furthermore, neither Congress nor the U.S. President can change or ignore U.S. Supreme Court decisions. To do so not only undermines the rule of law; such disregard for U.S. Supreme Court decisions undermines the Separation of Powers Doctrine and destroys the system of checks and balances that exists among the three Branches of Government.Yet, This does not mean that the U.S. Supreme Court cannot, itself, overturn one of its own prior decisions. But, the U.S. Supreme Court is generally loathe to do so, and for good reason. For, to do so undercuts the very integrity of the Court. But, if Judge Merrick Garland, or another Judge with the same legal philosophical bent, ultimately secures a seat on the high Court, the left-wing of the Court – having a clear majority at that point – may very well overturn Heller, given their chance to do so since they never agreed with the conservative wing's majority opinion in Heller in the first place. At present, though, the liberal wing of the high Court cannot muster enough votes. It cannot use Caetano to overturn the precedent setting Heller holding outright at this juncture; so it did not try; and, as it had no alternative, the liberal wing of the high Court was compelled, albeit reluctantly -- but compelled nonetheless -- under the doctrine of stare decisis, to decide Caetano in light of the majority’s holding in Heller. But, the liberal wing sided with the conservative wing of the Court, silently -- that is to say -- sans comment. With the passing of Justice Scalia an uneasy balance now exists between the right-wing and left-wing of the Court: 4 to 4. So, then, what is Caetano all about?

ANALYSIS OF THE CAETANO CASE: FACTS OF THE CASE AND LEGAL ISSUES

In Caetano, the Appellant, a Massachusetts woman, suffered a brutal beating at the hands of her abusive boyfriend, who put her in the hospital. She had obtained numerous restraining orders against her abuser, but they all proved futile, and she constantly feared for her life. She obtained a stun gun from a friend for self-defense. One day, the Appellant’s violent ex-boyfriend paid Appellant a visit. He threatened to harm her once again and, since the abuser outweighed Appellant by 100 pounds, she could not protect herself against another assault except through the use of a weapon. She stood her ground, displayed the stun gun. The abusive ex-boyfriend got scared and left her alone. Unfortunately, for Appellant, possession of a stun gun is illegal under Massachusetts’ law, even though the fact of having it on hand may have saved her life.The police later discovered the weapon and arrested the Appellant.The trial court found her guilty of possessing a contraband weapon under State law, ALM GL ch. 140 § 131J. The State law says, in part, “No person shall possess a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill. . . .”Federal, State, and local law enforcement officers are exempted from application of the Massachusetts law. The penalty for violation of the law for everyone else is harsh: “Whoever violates this section shall be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment in the house of correction for not less than 6 months nor more than 2½ years, or by both such fine and imprisonment.” Note: under the law, “A law enforcement officer may arrest without a warrant any person whom he has probable cause to believe has violated this section.” The Massachusetts law also shreds the Fourth Amendment to the U.S. Constitution.The Appellant was found guilty of violation of the Massachusetts Statute. Circumstances surrounding Appellants’ need for the weapon – namely to protect life and limb – were considered by the trial court to be irrelevant. The Appellant appealed the adverse decision to the Supreme Judicial Court of Massachusetts, the highest Court of the State. The Appellant argued that, under the Second Amendment, she was permitted to possess the stun gun. The Supreme Judicial Court of Massachusetts disagreed, holding “that a stun gun is not the type of weapon that is eligible for Second Amendment protection.” The Massachusetts high Court reasoned that stun guns are unprotected because they were not in common use at the time of enactment of the Second Amendment and because they fall within the general prohibition against carrying dangerous and unusual weapons.The legal issues the U.S. Supreme Court dealt with in Caetano are straightforward: first, whether a stun gun is an “arm” within the meaning of the Second Amendment; second, whether Massachusetts’ blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.

THE IMPORTANCE OF THE CAETANO CASE IN RESPECT TO THE SECOND AMENDMENT: DECISION AND REASONING OF THE COURT

In a unanimous decision, the U.S. Supreme Court relying specifically on Heller, held that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in use at the time of the founding of our Nation.There was no formal majority opinion. That is to say the decision in Caetano was handed down, per curiam. Justice Alito, joined by Justice Thomas, two conservative-wing Justices, did, however, write a concurring opinion. Were he able, Justice Scalia would most certainly have either joined Justice Thomas in Justice Alito’s concurring opinion or would have penned his own. Not surprisingly, as stated, supra, the liberal-wing Justices did not wish to weigh-in with a formal opinion of their own.The left-wing of the high Court is obviously waiting for the day it forms a majority bloc on the high Court. It will then be in the position to overturn Heller when the appropriate Second Amendment case comes before it. If Judge Merrick Garland or someone like him succeeds to Justice Antonin Scalia’s seat, then the day the left-wing of the Court has been anxiously waiting for will have arrived.The Caetano case makes plain that the Second Amendment right of the people to keep and bear arms entails the right of self-defense – a right that antigun groups object to and constantly attack.Justices Alito and Thomas Supreme Court took the Massachusetts high Court to task, attacking both the reasoning and decision of the Supreme Judicial Court of the State. In a blistering critique of the Massachusetts high Court, Justices Alito and Thomas admonished the Court, asserting that the Court professed to apply Heller but, actually wholly ignored it. Justices Alito and Thomas castigated the Supreme Judicial Court for its “ill-treatment of Heller.” The Justices said: “We held {in Heller} that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. It is hard to imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it.”Justices Alito and Thomas were not done with the Supreme Judicial Court of Massachusetts. They added that the issue of dangerousness of a weapon does not apply when a weapon, such as a stun gun, is used for a lawful purpose. The Appellant, Caetano, did in fact use the stun gun for a lawful purpose: self-defense. That is not in dispute. That fact was never in dispute. In emphasizing the point, Justices Alito and Thomas ripped apart another argument the Massachusetts high Court made when affirming the decision of the trial Court, against the Appellant.Justices Alito and Thomas also admonished the Court, and by extension, antigun groups, for assailing those who wish to exercise the fundamental right to keep and bear arms for the purpose of self-defense – a legitimate purpose under the Second Amendment. Justices Alito and Thomas pointed out that some people may have reservations about using deadly force due to moral, religious, or emotional reasons but that such reservations do not and cannot override another person’s desire to exercise his or her right of self-defense, as guaranteed under the Second Amendment.The U.S. Supreme Court thereupon remanded the case to the Supreme Judicial Court of Massachusetts with instructions essentially requiring the high Court of Massachusetts to reverse its earlier finding, affirming judgment for the State against Appellant, and enter judgment for the Appellant, Caetano, consistent with the high Court’s holding and reasoning.

DO OTHER JURISDICTIONS CRIMINALIZE POSSESSION OF STUN GUNS?

Yes. Consider just a couple. New York City, for example, criminalizes the mere possession of electronic stun guns, under NYC Administrative Code § 10-135. Violation of this Section of the Code is a Class A Misdemeanor. Under NY CLS Penal § 70.15, a person found guilty of a Class A Misdemeanor can receive a prison sentence of up to one year. In certain situations, as defined in Statute, that prison sentence can be considerably longer.Another jurisdiction in the State of New York, namely, Long Beach, New York, has an ordinance making possession of a stun gun a Class A misdemeanor: Long Beach, New York Code of Ordinances Sec. 63.The Long Beach Ordinance and the NYC code section are both illegal and must be struck down. How many other States and local governing bodies within States have such illegal laws on the books? One can only wonder. But they must be legion; and they are all illegal under Heller – at least so long as Heller remains valid law and is not overturned. If Judge Merrick Garland were to be confirmed, Heller would likely, at some point in time, be overturned. And Justice Scalia’s work would be undone.

AFTER CAETANO THE U.S. SENATE MUST PROTECT THE HELLER CASE AND ITS PROGENY

THE U.S. SENATE HAS DONE ITS JOB: IT HAS DECIDED TO WITHHOLD ITS CONSENT TO MOVE FORWARD WITH THE CONFIRMATION PROCESS OF OBAMA’S NOMINEE TO THE U.S. SUPREME COURT.

The U.S. Senate must not acquiesce to pressure. It must not move forward with a confirmation hearing and floor vote on Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. For, we know that, under any scenario, Judge Garland – as Justice Garland – will provide the left-wing of the Court with the key vote it needs to overturn Heller. Hopefully, the U.S. Senate Committee on the Judiciary will hold fast and preclude a formal confirmation hearing and refrain from permitting an up or down vote on the Garland nomination.Under Article 2, Section 2 of the U.S. Constitution, the President nominates individuals to the high Court with the advice and consent of the Senate. The President does not, then, simply, appoint a person to the high Court. The Constitution does not permit that. The U.S. Senate can withhold its consent and it has refused, at this time, to give it, and that is its right.The Senate recognizes the danger to precedential setting cases impacting Americans’ fundamental rights and liberties, such as Heller, if the confirmation process were to proceed. Appropriately, the Senate has decided to exercise vigilance and caution in this matter at this poignant time and given the sensitive circumstances presently facing our Nation.The U.S. Senate has done everything required of it. It has performed its duties under the U.S. Constitution, as it must. The President and his sycophants in the mainstream media don’t like the Senate’s decision. But they would do well, now, to accept it and keep their mouths shut![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

3/19/16 3/19/16

CITIZENS BEWARE: JUSTICE SERVED ON A SILVER PLATTER SET TO DESTROY THE SECOND AMENDMENT

THE POSITIONING OF JUDGE MERRICK GARLAND FOR A LIBERAL-WING TAKEOVER OF THE U.S. SUPREME COURT

PART 2A

In the previous article in this series we began with a discussion of our concern over President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. We analyzed a Second Amendment case brought before the United States Court of Appeals for the District of Columbia, Circuit. The case is Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), petition for en banc hearing denied, Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007). An analysis of that case gives an inkling as to Judge Garland’s view of Americans’ Second Amendment right of the people to keep and bear arms. It’s not good. In this Article we provide further perspective.Judge Garland presently serves as one of ten Judges on the United States Court of Appeals for the District of Columbia Circuit. Service on that Court is a stepping stone to a seat on the U.S. Supreme Court. In fact the late Justice Antonin Scalia also served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit before President Reagan nominated him to the United States Supreme Court. The U.S. Senate subsequently confirmed the nomination in 1986. Justice Scalia served as an esteemed Associate Justice on the U.S. Supreme Court until his untimely death on February 13, 2016.Many legal experts consider the U.S. Court of Appeals for the District of Columbia Circuit to be the second most powerful Court in the Country. Other U.S. Circuit Courts of Appeal give considerable deference to a decision by that Court, but they are not obligated to do so. A decision by the U.S. Supreme Court, though, has binding effect over the Nation and its territories. Given the monumental impact of a U.S. Supreme Court decision, it is incumbent on the U.S. Senate to be circumspect in handling a nomination to the high Court. The decisions of the high Court impact the very fabric of society and, in fact, the existence of a free Republic. The framers of our Constitution made certain the U.S. Senate shall have the final say on all appointments to the high Court. The President shall nominate but the only the U.S. Senate can confirm the appointment. The Senate proffers its advice and consent, consistent with Article 2, Section 2 of the U.S. Constitution. Thus, the framers of our Constitution intended, and for good reason, to preclude a President from packing the Court. The U.S. Senate, though, seeks – and rightfully so – to protect the legacy of Justice Scalia, a man who devoted his life to – and focused his brilliant mind on – preserving our Bill of Rights.President Obama is improperly attempting to force the Senate’s hand in this matter and he is using the medium of a compliant Press to do so. He waxes poetic over the intellectual ability and moral character of Judge Garland and the Press echoes the President’s sentiments. One phrase President Obama uses in defining Judge Garland, though, should give the U.S. Senate and the American people pause.The President says Judge Garland is a “consensus builder.” Consider the meaning of that phrase for a moment. The President is saying Judge Garland would likely bridge the gap between the liberal wing of the Court and the conservative wing – a position, at the moment, filled by Justice Kennedy. But, Judge Garland is said to fall “to the left” of Justice Kennedy. Thus, the assertion that Judge Garland would act as a “consensus builder” on the high Court means, disconcertingly, that Judge Garland – serving as Justice Garland – would hand the liberal wing of the Court a decisive majority in every case. Justice Garland would likely support every cause promoted by the progressive left in this Country. The shattering of the Bill of Rights is not a pleasant thought to contemplate.The idea is not wild fancy. Judge Garland, sitting on the U.S. Supreme Court as Justice Garland, would take an active part in drafting opinions weakening the Second Amendment right of the people to keep and bear arms. Most news articles fail to mention Judge Garland’s clear antipathy toward the Second Amendment if those articles happen to mention the Second Amendment at all.Yet, it would be an affront to the memory of Justice Scalia to have, as his replacement, a man – regardless of ability and temperament – who would not continue Justice Scalia’s deference to our Bill of Rights.How do we know this? In our previous article we provided you with a comprehensive analysis of one Second Amendment case, Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), petition for en banc hearing denied, Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007). An analysis of that case gives an inkling into the mindset of Justice Garland. He is not at all a proponent of the Second Amendment. But consider: would President Obama honestly nominate a person to serve on the high Court if that person professed a strong propensity to preserve and strengthen the Second Amendment?Do we find in President Obama’s previous two nominations, whom the U.S. Senate confirmed, namely, Justice Elena Kagan and Justice Sonja Sotomayor, to be proponents of the Second Amendment? If you think so, you should take another look at the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Those two Justices, along with Justices Ruth Bader Ginsberg and Stephen Breyer – the liberal-wing of the Court – dissented from the Majority in that case.Had Judge Garland served on the high Court in lieu of Justice Scalia, at the time the Heller case was decided, the outcome would have been entirely different. Of that, there can be no reasonable doubt. The liberal-wing of the Court would have had a majority and that majority would hold that: the right of the people to keep and bear arms does not entail an individual right, and that the Second Amendment has no meaning except in respect to one who serves in a military capacity.So, contrary to protestations of President Obama, as echoed through and trumpeted by a submissive news media, the U.S. Senate is not shirking its duty by refusing to consider Judge Garland’s confirmation. President Obama tells the Senate that it must do its job, just as President Obama has done his. He says, contemptuously, even perniciously: “to suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise — that would be unprecedented.” The U.S. Senate Committee on the Judiciary takes its role very seriously and it has in fact acted by choosing not to act on the Garland nomination at this time. Indeed, it has taken the only appropriate action it can take at this time – a step necessary to protect our Bill of Rights. The U.S. Senate is fulfilling its obligation under the U.S. Constitution, as the framers of the Constitution entrusted to it. Keep in mind: through Obama’s two prior nominations that the Senate confirmed, the composition of the high Court now tilts dangerously leftward. Equilibrium would be entirely lost were the Senate to confirm the nomination of Judge Garland.In the next article in this series we take a close look at a second U.S. Court of Appeals for the District of Columbia Circuit case – one that Judge Garland had a hand in – a case that bespeaks a positive legal bent away from – not toward – the preservation of the Second Amendment – a case decided by the United States Court of Appeals for the District of Columbia Circuit, eight years before Justice Scalia wrote the Majority opinion in Heller.Citizens beware! Our right to keep and bear arms is grossly threatened – more so than ever before. Stand up and demand that your elected officials protect the Second Amendment![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

3/18/16 3/18/16

JUSTICE: FOR OR AGAINST THE SECOND AMENDMENT? A COMMENTARY ON PRESIDENT OBAMA’S NOMINEE FOR ASSOCIATE JUSTICE ON THE U.S. SUPREME COURT: JUDGE MERRICK GARLAND

JUSTICE GARLAND: A REPLACEMENT FOR JUSTICE SCALIA? NOW, IF ONE DOES NOT SUPPORT THE BILL OF RIGHTS; OR NEVER IF ONE CARES ABOUT AMERICA’S BILL OF RIGHTS!

PART 1 PRESIDENT OBAMA'S SHORT LIST FOR JUSTICE ON THE U.S. SUPREME COURT: FIRST, SOTOMAYOR, KAGAN; THEN KAGAN; AND NOW, GARLAND

Now that President Obama has nominated a judge to the U.S. Supreme Court, a few pertinent questions arise. What will the Senate do? What ought the Senate do? And, most importantly, what do we, the American people, know about the individual Obama has nominated to replace a respected – indeed, a revered – Supreme Court Justice, a man whose shoes cannot easily be filled, Justice Antonin Scalia.Before we get to the third question, let us respond briefly to the first two. The U.S. Constitution sets forth the authority of the U.S. President to nominate an individual to the U.S. Supreme Court. But the Constitution does so with a most important caveat. Article 2, Section 2 of the U.S. Constitution sets forth, in pertinent part that the President, “. . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”Many news sources are turning this matter into a major spectacle – castigating the U.S. Senate for allegedly dragging its feet in handling this nomination. But, there is nothing in the U.S. Constitution that requires the U.S. Senate to do anything. It need not proffer its advice and consent; and, if it does not, then the appointment cannot be made. In this instance the U.S. Senate has good reason not to proffer its advice and consent.The appointment of a Justice of the U.S. Supreme Court is not to be taken lightly. The appointment of a Supreme Court Justice is for life. A poor decision can undermine the rights and liberties of all Americans. A poor decision can weaken our Republic. The Court’s decisions mold and shape our institutions and impact the life of every American citizen for decades. So, in a very real sense, A U.S. Supreme Court Justice wields more power than the President of the United States. Would President Obama’s nominee truly faithfully support and defend the Constitution of the United States?President Barack Obama has, to date, nominated two Justices to the United States Supreme Court, and the U.S. Senate has confirmed them. They are Justices Elena Kagan and Sonia Sotomayor, two liberal-wing Justices. No one can reasonably contest the sufficiency of the legal and judicial experience of these two Justices; nor can anyone reasonably contest the intellectual acumen of Justices Kagan and Sotomayor. In most cases, Americans may reasonably assume that the individuals, nominated by the United States President and subsequently confirmed by the U.S. Senate to serve as Justices on the U.S. Supreme Court, do have the necessary intellectual gifts, necessary moral stature and character, and necessary experience to serve as Justices on the U.S. Supreme Court. But is that enough?Many news sources suggest that the academic credentials of a nominee, along with that nominee’s intellectual capacity, and along with the breadth and depth of that nominee’s judicial and legal experiences, and, along with that nominee’s necessary moral bearing, stature and character are all the factors the U.S. Senate need consider to support confirmation of a nominee to the highest Court in the Land. But are satisfaction of those factors enough. Are those factors, alone, sufficient to support confirmation of a nominee to the U.S. Supreme Court? The answer is a resounding, “no.” For, before the United States Senate confirms a nominee, the U.S. Senate should definitely take a close look at the prior judicial decisions of a particular nominee if that nominee had happened to serve in a judicial capacity on a lower court prior to his nomination. Such is no less true of Judge Merrick Garland in the event the U.S. Senate does consider the President’s nominee at all.The U.S. Senate must ask, and the American public has a right to know, whether a given nominee – if he or she is to ascend to the position of Justice on the U.S. Supreme Court – is truly likely to render decisions faithful to the U.S. Constitution and, in particular, whether that nominee would render decisions supportive of an American citizen’s fundamental rights and liberties as codified in the Bill of Rights. The United States Senate Committee on the Judiciary, presided by Senator Chuck Grassley, Republican Iowa, obviously has its doubts in the present instance and, rightfully so, and this would account for the Committee’s reluctance to consider President Obama’s nominee – his third – especially since Obama will soon be leaving Office and a Republican Party candidate for U.S. President may very well be taking his place.Republican Senators are asking and we must ask as well: what do Americans really know about President Obama’s nominee, Judge Merrick Garland? What is Judge Garland’s position on the Bill of Rights? Is he a strong proponent of individual Rights and Liberties, as codified in the Bill of Rights, or isn’t he?Each Justice, who presently sits on the U.S. Supreme Court, certainly has a definite idea how he or she construes the Bill of Rights. A few construe the Bill of Rights literally and narrowly, giving particular weight to our founders’ view of it. On this view a U.S. Supreme Court Justice would ascribe to the idea that our founding founders believed that, regardless of the current fashion of any particular age, the import and purport of our fundamental rights and liberties remain constant from one generation to the next. They are not to be tampered with. Justice Scalia certainly fell into this camp. Other Justices tend to consider fundamental rights and liberties of Americans apropos of conditions as they exist in American society and in the world today. Those Justices happen to think our Bill of Rights is malleable; that it is subject to change in accordance with popular opinion vis-à-vis political mandates. They have a decided predilection for legislating from the Bench. The Bill of Rights, though, has nothing to do with one’s being comfortable with it or with particular Amendments within it. The Bill of Rights is what it is. It is not a thing to be toyed with. It is not to be subjugated or changed, along with popular culture. The Bill of Rights defines clearly and explicitly what rights and liberties we, as Americans, are entitled to exercise as a free people, living in a free Republic.The point here is that a particular philosophy, regarding the Bill of Rights, has considerable impact on how a Justice ultimately will decide a case. An opinion by a simple majority of Justices on the U.S. Supreme Court affects us all. It affects America’s institutions. It affects the very nature of and continued existence of our Nation, as conceived by the founding fathers.So, contrary to what the left, reporting through a compliant media, maintains, the question the United States Senate Committee on the Judiciary must wrestle with extends well beyond a nominee’s native ability, intellectual gifts, judicial and legal experience, and moral bearing and character. The question the United States Senate Committee on the Judiciary must wrestle with is subtle and complex. As it pertains to President Obama’s nominee, Judge Merrick Garland, the question goes to the manner in which Judge Garland perceives the Bill of Rights. For, the manner in which Judge Garland perceives our fundamental rights and liberties will color his perception of the cases that come before him. Does he tend to view our fundamental rights and liberties as Justices Breyer, Ginsburg, Kagan, and Sotomayor do – as transitory, ephemeral and infinitely malleable? Or, does Judge Garland view our fundamental rights and liberties in the same vein as Justices Alito and Thomas do, and as Justice Scalia did? Or, perhaps, Judge Garland’s perception of our fundamental rights and liberties fall somewhere in the middle, commensurate with the views of Justice Kennedy and Chief Justice Roberts.As the Wall Street Journal reports, Judge Garland says, “Fidelity to the Constitution has been the cornerstone of my professional life.” Well, one would certainly expect as much. But, that really doesn't take us anywhere. That assertion doesn’t tell us anything about how Judge Garland would really decide a case involving Americans’ fundamental rights and liberties.Each current Justice would certainly assert “fidelity to the Constitution,” and that Justice would honestly believe the assertion. The assertion is little more than a platitude. But, within the U.S. Constitution, the Bill of Rights speaks squarely to the fundamental rights and liberties of the people. In any one case before the U.S. Supreme Court, those rights and liberties will be strengthened or weakened by the Majority on the Court.

THE SECOND AMENDMENT

Of the specific Rights and Liberties expressed in the first Eight Amendments – all critical to a Free Republic – none of those Rights and Liberties speak more loudly to the unique character of the United States than does our Second Amendment. In no other Constitution of any other Nation on the face of this Earth does there exist any Right boldly setting forth: “. . . the right of the people to keep and bear arms shall not be infringed.”Yes, a few nations do permit the citizenry to keep and bear arms but in every such case that “right” is not really a right at all because the purported “right” emanates from government. It does not reside in the people. The “right” expressed is more in the nature of a grant by a nation’s government, or a license, or a privilege.But, the Second Amendment of the Bill of Rights of the United States Constitution operates as a right in the purest sense – preexistent in each individual. If there exists any doubt about that, Justice Scalia, writing for the majority, in the seminal case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), laid that doubt to rest.What the United States Senate Committee on the Judiciary should really be asking, assuming it decides to consider the matter of Judge Merrick Garland’s appointment to the U.S. Supreme Court – or not, as consistent with its prerogative under Article 2, Section 2 of the U.S. Constitution – is this: would Judge Garland if he were to gain the U.S. Supreme Court, tend to weaken or strengthen our Bill of Rights? We can use the Second Amendment as a good example here. How might we explicate this? Just so: would the Heller case have been decided differently if – in a parallel world – Justice Garland had worn the robes of Justice Scalia?Do we have any clues? Well, we have two important clues. The first involves the case Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).Important Note: the Parker case is the seminal Second Amendment Heller case. The Parker case was renamed District of Columbia vs. Heller when the U.S. Supreme Court agreed to hear the case.

ANALYSIS OF THE PARKER CASE

The Appellants, Parker and others, are residents of the District of Columbia. They wanted to carry their handguns in their own homes for self-defense, but the District of Columbia prohibits anyone from having an operable handgun in the home for the purposes of immediate self-defense. The Appellants brought action against the District of Columbia, claiming that the D.C. code violated their Second Amendment “right to keep and bear arms.” The U.S. District Court for the District of Columbia sided with the Appellee government, District of Columbia, finding that the D.C. code did not violate Appellants Second Amendment right to keep and bear arms because, according to the U.S. District Court, the “right to bear arms” only accrues to one who serves in a militia.Appellants, residents of the District of Columbia, appealed. The United States Circuit Court of Appeals for the District of Columbia disagreed with the lower Court. Reversing the U.S. District Court’s decision, the United States Circuit Court of Appeals for the District of Columbia dealt squarely with the issue as to the meaning of and impact of the prefatory and operative portions of the Second Amendment and whether, on the one hand, “the right to keep and bear arms” is an individual right, as Appellant, District of Columbia residents maintain, or whether, on the other hand, “the right to keep and bear arms” is a collective right that applies only to those who serve in a militia, as the Appellee, District of Columbia had argues.In finding for the Appellant residents, against the District of Columbia, the United States Circuit Court of Appeals for the District of Columbia pointed out that the wording of the operative clause also indicates that “the right to keep and bear arms” was not created by government, but rather preserved by it. The United States Circuit Court of Appeals specifically rejected the Appellee District of Columbia’s claim that the phrase, “keep and bear arms” has only a military purpose related to the “militia.” Two of the three Judges on the Circuit Court sided with the Appellants in the case and thereupon reversed the decision of the U.S. District Court.The losing party in the Parker case, namely the District of Columbia, then petitioned the U.S. Court of Appeals for reconsideration, asking the United States Court of Appeals to hear the case en banc. What this means is that the Appellee District Columbia petitioned to have the entire United States Circuit Court of Appeals for the District of Columbia hear the case.Keep in mind that, although Judge Garland serves as Judge on the United States Court of Appeals for the District of Columbia, there are several U.S. Circuit Court Judges. Generally, a panel of three Circuit Court Judges hears a case on appeal from the lower District Court.Judge Garland did not sit on the three-man panel in the Parker case. We are not, though, left merely to speculate as to how he might have ruled in Parker had he served as one of the three original Judges who heard the case. We do have an inkling as to how Judge Garland would have ruled, and therein rests one reason, at least, why the U.S. Senate, on behalf of the American people and on behalf of the well-being of Americans’ Bill of Rights, has no desire to so much as contemplate the nomination, during the remaining months of Obama’s term as U.S. President.Likely, Judge Garland would have ruled against the Appellant D.C. residents and for the District of Columbia in Parker. We know this because of a further action involving the Parker case that transpired before the case was heard by the U.S. Supreme Court, renamed, District of Columbia vs. Heller.Now, no party, in any jurisdiction, can insist, as a matter of right, to have an entire United States Circuit Court of Appeals to reconsider its own decision. A United States Circuit Court of Appeals will do so only if a majority of the Court’s Judges agree to reconsider the decision, in which case the entirety of the Court will rehear the case – that is to say – the Court will hear the case, en banc.There are ten Judges on the D.C. Circuit. Only four of those ten agreed to hear the Parker case en banc. Notably, Judge Garland was one of those four Judges. The case is Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007).We really do not need to spend an inordinate amount of time speculating as to why Judge Garland had sought to have the Parker case reheard by all ten United States Circuit Court of Appeals judges. Yes, Judge Garland may have thought – as some news sources infer – that the Second Amendment issue was important enough to warrant a hearing by the entire Court, so that all of the Judges could weigh in. After all, the Parker case dealt directly and squarely with the fundamental right of the people to keep and bear arms. But, likely, there was more to Judge Garland’s desire to have an en banc hearing of the case. And it is just this: if Judge Merrick Garland really feels strongly about Americans’ fundamental rights and liberties, as had Justice Scalia, it is likely that Judge Garland would have voted with the majority of the Court. That means he would have voted against taking up the Second Amendment issue again in an en banc hearing of the case. For, what more could be gained through an en banc hearing of the case? The majority opinion, which supported Appellants’ Second Amendment right to keep and bear arms, was clear, and cogent, and unequivocal. Moreover, a vote in favor of an en banc hearing would, quite probably, invite a reversal of the decision by the three member United States Circuit Court of Appeals panel. A true advocate for the Second Amendment would never have voted in favor of a rehearing. Tactically, it would make no sense. Appellants, District of Columbia residents had already won. The case should have stopped there.Be that as it may, the Appellant, District of Columbia, having failed to secure a rehearing of the Parker case by the full United States Court of Appeals for the District of Columbia thereupon petitioned the U.S. Supreme Court. The Supreme Court, of course, agreed to hear the case. Parker vs. District of Columbia was renamed District of Columbia vs. Heller. Justice Scalia, writing for the Majority, affirmed the decision of the United States Circuit Court of Appeals for the District of Columbia by a narrow margin: 5 to 4.Granted, while it is not absolutely clear that Judge Garland would not have voted with the Majority in Heller, had he sat on the U.S. Supreme Court, the fact that he voted for en banc review of Parker, as a Judge sitting on the U.S. Circuit Court of Appeals for the District of Columbia, strongly suggests an unhappiness with and uneasiness with the panel's decision -- 2 to 1 in favor of Appellant District of Columbia residents -- a decision clearly supporting the right of the people to keep and bear arms; hence, we may reasonably conclude a general reluctance on the part of Judge Garland to view the Second Amendment right of the people to keep and bear arms generally favorably and expansively. Imagine, then, Judge Garland's decision in Heller, had he sat on the U.S. Supreme Court. Would he not have sided with the liberal-wing in that case? And, if so, would not the Heller case have been decided differently? Would not the Heller case reflect the reasoning of the U.S. District Court in Parker, rather than the decision of the U.S. Circuit Court of Appeals for the District of Columbia in that case -- a U.S. District Court decision specifically undermining rather than strengthening the right of the people to keep and bear arms?A second and, perhaps, even stronger clue suggesting that Judge Garland is not likely to be a strong proponent of the Second Amendment -- and, indeed, someone who is likely to eviscerate the Second Amendment rather than strengthen it -- is evidenced from a perusal of the United States Court of Appeals for the District of Columbia’s decision in NRA vs. Reno, 216 F.3d 2000 (D.C. Cir. 2000). Judge Garland did have a hand in that decision and, while the case does not deal directly with the meaning of language in the Second Amendment, the case does deal with matters impacting the Second Amendment, and negatively impacting the Fourth Amendment as well.In Part 2 of this article, we will explicate the NRA case for you and explain why, more likely than not, Judge Garland is not a proponent of the Second Amendment -- not by a long shot -- and that, for this reason alone, the United States Senate Committee on the Judiciary should not consider Obama’s appointment of Judge Garland to the U.S. Supreme Court, as an Associate Justice.To be continued. . . .[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

3/4/16 3/4/16

JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE

UNITED STATES vs. VOISINE

PART 1

This is the first of a three part series article.Anyone who keeps abreast of the U. S. Supreme Court knows that Justice Clarence Thomas broke a ten-year silence when he posed questions to counsel during oral argument on February 29, 2016 in the case United States vs. Voisine, No. 14-10154 (S. Ct. Dec. 17, 2015). The other seven Justices retained an austere demeanor. But they must surely have been surprised at Justice Thomas’ uncharacteristic lack of reticence. The Press, for its part, was noticeably, and understandably, thunderstruck.One may speculate why Justice Thomas chose to take part in the questioning of counsel in this case, at this time. Not improbably, Justice Thomas did so, in part, out of deep respect for the memory of Justice Antonin Scalia. Justice Scalia would have had much to say in Voisine as the case touches on two landmark Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.” In the subsequent McDonald case, the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” Together, the two cases strengthen the Second Amendment more so than any previous holding of the high Court. The two cases constrain local, State and federal governments from whittling away at Americans’ fundamental right of the people to keep and bear arms in their individual capacity.Justice Scalia wrote the Majority Opinion in Heller, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy. Justice Samuel Alito wrote the Opinion for the Majority in McDonald, joined by Chief Justice Roberts, and Justices Scalia, Thomas and Kennedy. Not surprisingly, the liberal wing of the Court, comprising Justices Ginsburg, Sotomayor, Kagan, and Breyer dissented, and they did so strenuously.Now, contrary to common belief, the U.S. Supreme Court, does not have to accept and, indeed, does not accept every case that happens to come before it. No one can appeal an adverse decision to the U.S. Supreme Court as a matter of right. Indeed, the Supreme Court grants A Petitioner’s writ of certiorari in only a few cases in any given term. And, in the Court’s information sheet, presented to those who seek to have their case heard, the Court says clearly, even bluntly, that “review on writ of certiorari is not a matter of right but of judicial discretion.”Generally, the high Court will agree to hear a case where there is disagreement and conflict among the various federal Circuit Courts of Appeal. This often takes years to develop. Even so, many cases that the high Court does agree to hear often involve arcane legal issues, very narrow in scope, that are difficult for the non-lawyer to grasp, and, so, quite understandably, difficult for anyone but a lawyer to appreciate. The Voisine case may, at first glance, appear to be just such a case. It isn’t.To be sure there is a complex, arcane issue here, but there is also a straight-forward Second Amendment issue as well. The Second Amendment issue would have been given no consideration at all but for Justice Thomas’ interjection. Be thankful that Justice Thomas spoke up during oral argument in the Voisine case. This is not theatrics as presented by the mainstream media. Justice Thomas' questions and remarks were precise, well-honed, to the point and surely took the U.S. Government off guard.In the Opinion to be handed down in the coming months it is unlikely that the Court will not give the Second Amendment issue at least some consideration and will do so precisely because of, one, Justice Thomas’ questions to counsel for Respondent, U.S. Government, two, counsel's responses to the Court, and, three, Justice Thomas' comments. If no other Justice mentions the Second Amendment in the Majority's Opinion, or in a concurring or dissenting Opinion, Justice Thomas most certainly will.Now, a salient issue in Voisine does involve the meaning to be given a word phrase in one particular section of a lengthy federal Statute. Nonetheless, as we heretofore explained, the Voisine case is the first Supreme Court case to be heard by the high Court that does impact the Second Amendment. In fact, Petitioners did timely and properly raise a Second Amendment claim in their Briefs to the United States Court of Appeals for the First Circuit. And that claim was preserved; and that issue was ripe for review by the U.S. Supreme Court when it granted Petitioners’ Writ of Certiorari. Moreover, while the Second Amendment issue was set forth with particularity as a salient issue in Petitioners’ Brief, the Second Amendment claim was not set forth as an issue in the Government’s own Brief in Opposition to the Brief of Petitioners. And the Government, in its Brief in Opposition to the Brief of Petitioners, addressed Petitioners’ Second Amendment claim only perfunctorily, giving little thought to it, seemingly in deference to and happily therefor to the United States Court of Appeals for the First Circuit's treatment of it, for the First Circuit dismissed Petitioners' Second Amendment claim outright.In fact during oral argument before the Supreme Court, the Second Amendment was only mentioned twice and that occurred toward the end of oral argument when Justice Thomas brought the issue up. Justice Thomas did so, in part, as we said earlier, because Justice Scalia certainly would have done so had he lived. And, Justice Scalia would have done so for a very good reason, quite apart from and notwithstanding the otherwise cursory treatment of the Second Amendment issue by the United States Court of Appeals for the First Circuit Court. For Voisine is the first case to come before the Supreme Court that implicates the Second Amendment, however obliquely or tangentially, or seemingly cursorily since the high Court decided the McDonald case in 2010, over one-half decade ago.Although the other Justices took great pains to avoid entertaining the Second Amendment issue in Voisine – preferring to address, alone, the meaning attached to a few words in one federal Statute – Justice Thomas would not let the matter rest, much to the satisfaction of Petitioners, who clearly sought to have their Second Amendment issue heard, and much to the chagrin of Respondent, the United States Government, that sought to keep the Second Amendment issue moot.Moreover, by querying Government’s counsel on Petitioners’ Second Amendment claim, Justice Thomas may have been initiating a not so subtle payback to other Justices for a snubbing that both he and Justice Scalia suffered at the hands of those other Justices. For, both Justices Scalia and Thomas were more than a trifle perturbed that the majority of the Justices of the Supreme Court denied certiorari in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). The Seventh Circuit in Friedman clearly manifested its contempt for the high Court’s holdings in Heller and McDonald. Justices Scalia and Thomas clearly wanted, and had expected, the high Court to grant certiorari in Friedman and, by failing to do so, Justices Scalia and Thomas expressed their righteous indignation by drafting a dissenting Opinion in Friedman.Very rarely do Justices explain their reason for refusing to grant a writ of certiorari in a case. Even more rarely will one find a dissenting opinion written by a Justice, expressing disfavor for the failure of the majority of Justices to grant the writ in a case.Surely, had the Supreme Court granted Petitioner’s writ of certiorari in Friedman, Justices Scalia and Thomas would have taken the Seventh Circuit to task for patently ignoring the Heller and McDonald holdings. The Arbalest Quarrel discusses the Friedman case at length in the article, titled, “A Court Of Law That Rejects U.S. Supreme Court Precedent Undermines The Rule Of Law And Undercuts The U.S. Constitution,” posted on December 14, 2015. For our discussion of Friedman and its importance to the Heller and McDonald cases, readers are encouraged to read our article.In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. Since the Supreme Court would not entertain the Friedman case which was a direct and audacious attack by a United States Circuit Court of Appeals on the clear and cogent holdings in Heller and McDonald, Justice Thomas, on behalf of Justice Scalia, clearly intended to raise and, so, did raise Petitioner’s Second Amendment issue in Voisine – a case that the U.S. Supreme Court did decide to entertain.From the get-go it had been clear that no other Justice would weigh in on the Second Amendment implications of Voisine, and take the Government to task. Justice Thomas made certain that Justice Scalia’s disdain for a federal Government that cares not one whit for the sanctity of the Second Amendment would dare not go unchallenged.Americans who understand and can appreciate the importance of our Bill of Rights as the foundation of a free Republic and who can, in particular, understand and appreciate the importance of the Second Amendment as a critical check on the accumulation of power by the Federal Government, and by improvident State governments as well, will do well to ponder the Nation's incredible loss. Justice Scalia, together with Justice Thomas, made adamantly clear that the right of the people to keep and bear arms is an individual right unconnected to a person’s participation in a militia. The Heller decision rankles several Justices on the Supreme Court and many Globalists, both in this Country and outside it, as well, who are working quietly but incessantly and inexorably in the shadows, intent on undercutting America’s Bill of Rights, generally, and undermining America’s Second Amendment, particularly.We know, without doubt, that President Obama – or her royal Majesty, Queen Hillary Rodham Clinton – seek to nominate to the highest Court of the Land, a person who would chomp at the bit to reverse Heller and McDonald on the ground that, for them, the cases are discordant. They are discordant to these judges and to powerful, ruthless individuals because they happen to strengthen rather than weaken America’s Bill of Rights.In Part 2 of this Article, we will deal in depth, with the legal issues in Voisine and you will come to understand, one, why the high Court, apart from Justice Thomas, does not wish to deal with the impact that a negative decision in Voisine would have on the Second Amendment and, two, how it is that a specific question posed by Justice Thomas to counsel for the U.S. Government elicited from counsel a most remarkable, illuminating, and, in fact, frightening comment. You will come to see why a negative holding in Voisine does have negative implications for our Second Amendment.So it is that the mainstream media would much rather keep the dire implications of Voisine in the shadows. We, on the other hand, intend to bring those implications out, for all to see, into the light of day. In so doing, we trust we will help keep the memory of Justice Scalia alive, and in keeping Justice Scalia’s memory alive, preserve, as well, the holdings in Heller and McDonald that bespeak Justice Scalia’s devotion to the import of the Second Amendment. Ever mindful, then, are we of those who are hell-bent in destroying it.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

2/8/16 2/8/16

GUNS ARE VIRULENT VIRUSES: WIPE THEM OUT!

Guns are virulent viruses: wipe them out! Consider the phrase as a slogan. Mull it over in your mind. Really think about it: the phrase’s nuances, its connotations. Now, suppose a member of the public who has never given firearms much thought is continually bombarded with the slogan: “Guns are virulent viruses: wipe them out!” He hears the slogan on the evening news. He sees it in the newspapers. Pundits voice it loudly on the radio. Pastors preach it to their congregations. The public comes to see that firearms are indeed virulent viruses. Of course they must be wiped out! Perception is reality. Isn’t it?Clinical psychologists and political propagandists know very well that, how a person perceives reality – how a person perceives the world around him – becomes the world a person lives in. No one knows this better than members of the antigun movement and those that support its efforts, including antigun legislators and billionaire globalists, all of whom see, in America’s Second Amendment, something incompatible with the new pan-Western ethos. They unabashedly seek not only to repeal the Second Amendment to the U.S. Constitution, but to debase it, to demolish it, to obliterate it.The mainstream media is a useful vehicle for conveying the messages of the antigun movement. Thus, of late, we are witnessing a twist to the antigun movements’ messaging – a twist at once subtle but noteworthy. The mainstream media – the pawns of and at the behest of antigun groups and like-thinking intellectual and business “elites” both here and abroad, and of their friends and fellow travelers in Congress, in State Legislatures across the Nation, and in the Oval Office – has made a pronounced and explicit change to its messaging.Heretofore, the public has been conditioned to associate guns with criminals, with lunatics, with terrorists. The phrase, “gun violence,” has been, and rightly so, inextricably tied to the individual – the sentient being responsible for the gun violence. The antigun movement has now, as a matter of strategy, completely severed that connection. The mainstream media, the voice of the antigun movement, is addressing guns as the sole true scourge of all violence associated with guns and paying less heed to the individuals who wield the guns and who commit violence with them.Consider a few examples. In the July 31st 2016 edition of the NY Times, the editorial staff, in an article proclaiming the paper's endorsement of Hillary Clinton for the Democratic Party nomination, said, “Mrs. Clinton is a strong advocate of sensible and effective measures to combat the plague of firearms.”A firearm, though, is merely a tool, a physical object, manufactured from metallic or non-metallic materials. By referring to the firearm, a non-living object as a “plague,” antigun groups, through the mainstream media, are subtly, diabolically changing the public’s perception of them. They are slowly, subtly nudging and shifting the manner in which the public perceives gun violence – shifting the public’s perception of gun violence away from the criminal, and the lunatic, and jihadist as the primary agents of violence, who happen to use a firearm to commit acts of unconscionable violence, and shifting the public’s perception toward the firearm itself as the primary agent of violence.The firearm is depicted today as a virus that infests human beings. Not surprisingly, the numerous antigun movement requests for CDC studies into the “plague of firearms” is consistent with the incongruous attempt to associate firearms with virulent viruses that, as with all disease viruses, must be eradicated. Indeed, one left-wing web blog, "The Iowa Daily Democrats," supportive of the antigun movement’s efforts, in an article, with the emotionally charged title, "Guns: Democrats vow to end the American Plague," unashamedly and viciously attack the Second Amendment right of the people to keep and bear arms, by comparing firearms, incongruously, to virulent viruses. The world-wide web is filled with this claptrap. The public’s attention and perception is directed to guns as the primary agent for violence, rather than to the sentient beings who wield the guns and who, alone, logically, are solely responsible for the violence committed with guns.The firearm, as the primary actor of violence, relieves the human actor of moral and legal responsibility. This idea is preposterous, of course. But, the rationale behind it is diabolically clever. It is the antigun movement’s response to the gun advocate’s argument that the law-abiding gun owner – tens of millions of us – do not and never will pose a "gun" problem. But, if guns are construed as disease viruses, then the mere existence of them is the problem. What sane person wants to be a carrier of a virulent disease? Obviously, no one. Ergo, a healthy society must eradicate the plague of firearms. This means the government can and must – and will – forcibly remove guns from those otherwise law-abiding members of society who feel comfortable living with the plague of firearms. This, of course, is all for the best – the Second Amendment be damned!The stratagem places in high relief the salient goal of the antigun movement which really has little if anything to do with – and never did have anything to do with – criminal use of firearms. The stratagem has everything to do with dispossessing the law-abiding citizen of his or her firearms, that is to say, elimination of the firearm from American society. Thus, the U.S. becomes a society not unlike that of the UK, or Canada, or Australia.Newspapers across America are jumping on the “guns are the problem” bandwagon, directing the public’s attention away from the individuals who create the violence and redirecting the public’s attention onto the mechanism itself: the gun as disease virus.The Plain Dealer, A Cleveland, Ohio newspaper, in an editorial appearing on Sunday, January 3, 2016, by George Rodrigue, under the title, "Fear, facts, and the question of guns: George Rodrigue," minimizes the importance of the Islamic jihadists who were responsible for dozens of deaths in San Bernardino, California, and emphasizes the implement – the gun – that they used. The writer says, “[l]ast month, two radicalized Muslims [and note the absence of the word ‘terrorist’ to describe these two] shot 36 people at a San Bernardino holiday party. That touched off an anti-Muslim backlash, along with a wave of new gun purchases. Those reactions overestimate the risk of domestic Islamic terrorism, and underestimate the risks of firearms.” What?The writer of this Cleveland Plain Dealer editorial is strongly suggesting to the reader that the jihadists are not the primary agents of the despicable acts of violence they caused. It was the firearm’s fault. The killers were only along for the ride. The writer of the editorial is bluntly telling the reader that, if Islamist terrorists kill Americans, we, Americans, are to blame the gun for this – for our acquiescence to the existence of guns in our Nation – and we are not to blame the terrorist because there are more guns than terrorists in America. This means, according to the writer of the editorial, that more guns kill Americans than Islamist terrorists do. So, guns, according to Rodrigue, pose a greater threat to Americans, are more dangerous to Americans and, therefore ought to be despised more by Americans than ought the threat posed by Islamic terrorists. This is ludicrous. For those college students happening to take an introductory course in formal and informal logic, discerning and describing the numerous fallacies inherent in the Cleveland Plain Dealer editorial would make for an illuminating, educational exercise.If the antigun movement, and its supporters both here and abroad, succeed in their singular, all-consuming effort to end lawful ownership and possession of firearms, the right of the people to keep and bear arms will have been erased from the collective consciousness of the American people. The Second Amendment will no longer exist as a natural, right preexistent in the people. It will exist only as an obscure, fragmentary footnote in history, devoid of legal efficacy. In time the notion that the American people actually had a fundamental right to keep and bear arms – a right that could not be infringed by government – will become but a distant memory, relegated to folklore. The United States will have ceased to exist as a free republic.The antigun movement doesn’t care. It is oblivious to the import of the Bill of Rights and to the notion of America as a free republic if such is conditioned on the existence of a right that the movement finds repugnant to its sensibilities. It intends to infect the entirety of the American public with its own psychosis.Oh, how much easier, it would have been to constrain civilian ownership and possession of firearms if the Second Amendment had never existed or had, at least, excluded the cogent, independent and insufferable clause, “the right of the people to keep and bear arms shall not be infringed.” That it does exist, the antigun movement intends to change the public’s perception of guns so that the public will become, eventually, amenable to relinquishing them. Public perception can be molded. It is infinitely malleable.So, remember, perception = reality. If the public comes to associate guns as living things and, too, as things, inherently evil, the public will come to feel ill simply to come into contact with a firearm. If guns are associated with disease viruses, which humankind obviously and with good reason, has a natural antipathy and, indeed, understandably, a raw, intrinsic fear of – think of Typhus, the Black Death, the Bubonic Plague, Influenza, the Ebola virus – then, naturally, and with good reason, the public will perceive firearms as a thing to be despised, and loathed, and feared. The antigun movement treats the American public like Pavlov’s dog.So it is that antigun groups, through the mainstream media, have devised a new stratagem for getting rid of guns: equate guns with virulent viruses, and hit the public hard with that message.The ludicrousness of the idea is lost in the perception of it that affects – and is meant to affect – a person on an emotional, visceral level.Perception is, after all, reality![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

1/20/16 1/20/16

NRA: THE AMERICAN PEOPLE’S VOICE

Antigun Groups Curry Favor with the President to Further Personal Agenda and to Attack the NRA

NRA: The People's Voice Nothing speaks more clearly and cogently of the duplicity and hypocrisy existent in Obama’s efforts to undermine the right of the people to keep and bear arms than the personal attacks he levels against NRA. The singular aim of NRA is nothing less than defense of the inalienable, natural, and fundamental right to keep and bear arms – clearly and cogently articulated and codified in the Bill of Rights, as the second of ten critical, enumerated rights.We all know that the President and the various antigun interest groups habitually refer to NRA, disparagingly, as the “Gun Lobby.” They do this to suggest that NRA represents a small, select interest group, namely, gun manufacturers, whose singular objective is to make money from the sale of firearms. If true, NRA would be a “trade” group. Now, trade groups, on behalf of their members, do lobby Congress. And, there is nothing wrong with that. But, NRA is not a trade group.Although firearms’ manufacturers – which, by the way have their own trade groups – may benefit tangentially from the efforts of NRA to secure the sacred right of people to keep and bear arms, NRA does not represent gun manufacturers, and NRA is not an organization that comprises gun manufacturers. To the contrary, NRA is composed of American citizens – millions of Americans. Americans do not become members of NRA because they are interested in making money off NRA’s efforts. Americans become members of NRA because they know the United States will not long stand as a free republic if the right of each American to keep and bear firearms is curtailed. NRA is one organization that embodies and engenders the spirit of America as a free republic.The salient purpose of the NRA is to protect and preserve, for Americans the sanctity of the Second Amendment to the U.S. Constitution. It works on behalf of its members, certainly, but, in fact, it works on behalf of all Americans who cherish their Bill of Rights.NRA does lobby on behalf of its members, just as the antigun interest groups lobby on behalf of their members, although the antigun groups’ members amount to a miniscule fraction of Americans. Moreover, unlike the antigun groups that are essentially nothing more than a lobbying vehicle for those individuals and cabals both here and abroad who wish to erode the Bill of Rights and to destroy the Second Amendment, NRA is much more than a lobby group.The Arbalest Quarrel has written extensively on the many services NRA provides for average Americans, law enforcement, and, traditionally, for the U.S. military. Readers are invited to read the Arbalest Quarrel's extensive article on the history of the NRA, posted on April 8, 2015.President Obama and Hillary Clinton and the antigun groups attack the lobbying efforts of NRA. But, there is nothing wrong in the act of lobbying, per se. Lobbying is an activity protected under the First Amendment. And, it would hardly do for the antigun forces in this Country to attack the NRA on the ground that NRA's lobbying efforts are wrongly directed to defending and preserving one of America’s inalienable, natural, and fundamental rights, especially in light of the lobbying efforts of the antigun groups that are directed to attaining the opposite end – the tearing down of a sacred right that the founders of a free republic gave to us. And it would hardly do for antigun groups to attack the NRA's defense of the Second Amendment when those same antigun forces openly declare, albeit disingenuously, that they do not wish to tear down the Second Amendment, when they seek to do just that. For, if they were serious in their assertions and declarations that they do in fact support the Second Amendment, then they would not be continuously, endlessly, and vociferously attacking NRA. That they do incessantly attack NRA, their hypocrisy and duplicity is glaringly obvious for all to see.At the behest of the President and at the behest of the antigun groups the mainstream media argues, emphatically, but falsely, that NRA represents and conducts lobbying activities on behalf of firearms' manufacturers, whose interests, the selling of firearms, play well to the ignorant among America’s populace who are conditioned, through the power of the mainstream media, to equate guns solely with violence – that is to say – with nothing good, even as that violence, as everyone knows, is produced, not by the tens of millions of law-abiding gun owners but, rather by a notably few, the very worst who live among us – namely, career criminals, psychopathic gang members -- many of whom have entered and remain in the U.S. illegally -- assorted lunatics and, of late, radical and radicalized Islamic jihadists.But, it is one thing for antigun groups to attack the NRA, as an organization whose goal it is to preserve the right of Americans to keep and bear arms, and to attack, too, those Americans who choose to exercise that right. It is quite another for the President to do so. Why is that? For this reason: when the President of the United States attacks NRA and, by extension, attacks millions of Americans who simply wish to exercise their fundamental right to keep and bear arms, the President is, himself, operating as a lobbyist for a specific interest group, at the detriment of the interests of another group. In this instance we see the President, Barack Obama, representing groups whose interests – the destruction of the Second Amendment and the erosion of the other nine Amendments – are at odds with the well-being of a free republic and with the safeguarding of the Bill of Rights.The duplicity and hypocrisy of the President of the United States are obvious and self-evident. President Obama and, before him, President Clinton, have used the power and influence of the Office of the Chief Executive, to condemn the lobbying efforts of the NRA and, in so, doing, they have played favorites: furthering the dubious interests of those interest groups whose avowed goal is the dismantling of the Second Amendment to the U.S. Constitution and the undermining of our Bill of Rights.In contradistinction to the underhanded, secretive use of the Office of the President (the Chief Executive of the Nation) by antigun interest groups to further their own nefarious, insidious objectives, NRA’s lobbying efforts have been subject to full disclosure, have been directed to the most honorable of goals – preservation of Americans’ fundamental right to keep and bear arms set forth with specificity in the Second Amendment to the U.S. Constitution – and have been directed to securing appropriate legislation through Congress, not through the Office of the President.The right of an interest group to lobby Congress to further that group’s objectives, if those objectives are properly disclosed, is legitimate, fully protected political speech, under the free speech clause of the First Amendment to the U.S. Constitution. On the other hand, the antigun groups, apart from lobbying Congress to further their own ends – upending the Second Amendment through the Legislative process – have, inappropriately, sought intervention by the Chief Executive, as well -- have, in fact, concentrated their lobbying campaign on the Chief Executive because Congress won't do their bidding. They trust that the Chief Executive will. But that means the Chief Executive is expected to legislate antigun laws on their behalf. And that is monstrous. We see the ludicrousness of President Obama's message to the public: asserting that he must intervene because Congress won't legislate in this area, but then asserting that he isn't making new law but simply operating within the constraints of present Congressional legislation! While an interest group is not prohibited from seeking special favor of, or groveling before, or currying favor from the Chief Executive, such instant and easy access to the President of the United States by one group, to the detriment of others, is fraught with danger especially when this behind-the-scenes actions of noxious special interest groups, namely and specifically, antigun interest groups, furthers goals that are diametrically opposed both to the well-being of a free republic and to the safeguarding of the Bill of Rights upon which a free republic depends for its survival.One must wonder whether President Obama’s recent impermissible promulgation of antigun legislation, through the device of executive directives, was not inspired by, or, more to the point, directed by antigun interest groups. Did not these antigun interest groups – angered by the failure of Congress to extend the parameters of the national instant criminal background check system of the “Brady Handgun Violence Prevention Act of 1994” – exert pressure on the President – convincing Obama, who was amenable to their goals anyway, to use the power of his Office to further the antigun agenda along precisely because Congress wouldn’t? And, does not this circumvention of Congress by the antigun interest groups constitute an illegitimate exertion of influence by these groups on the Executive, contrary to and irrespective of the will of the American people? Do not the actions of Obama amount to a compounding of fault, having allowed his Office to be a conduit for illegal law-making?Indeed, one antigun group, “the Brady Campaign to Prevent Gun Violence,” has, for decades, attempted to use the power of the Executive to further its own nefarious goals.The Brady Campaign, an antigun lobbying group, had appealed directly to President Carter, in the 1970s, to harass gun owners; and Carter did just that. The Brady Campaign had little success with the Republican Presidents, Reagan and H.W. Bush. But, then, Bill Clinton entered the picture. The Brady Campaign sent a confidential memorandum to the White House, setting out exactly what the Brady Campaign antigun interest and lobbying group wanted from and expected to obtain from Clinton, including, inter alia, licensing requirements and registration for handgun owners, bans on firearms, defined as ‘assault weapons,’ waiting periods, and a required “arsenal license” for anyone who owned 20 firearms or more.The Brady Campaign sought to use the power of the Executive Branch to put pressure on the Legislative Branch to further the interest of a small, virulently antigun segment of the population. Obviously, the Brady Campaign and other antigun groups have been working behind-the-scenes in recent times, as well, to push Obama to accede to their desires. Since Obama harbors anti-Second Amendment, antigun sentiments, anyway, he has been all-to-willing to use the power and influence of his Office to push the agenda of these groups – especially now, as he, in his final year of Office, is no longer afraid of offending Congress.If Hillary Clinton becomes her Party’s nominee and, thereafter, gains the Presidency, her Administration will be essentially an extension of her husband’s previous Administration, and the Brady Campaign and other antigun lobbying groups will continue to exert inappropriate, illegitimate, and, in fact, illegal influence over Hillary Clinton, just as they had exerted such influence over her husband and over Obama.Clinton, as we know, is more than merely amenable to this influence. She will be enthusiastic about using the Office of the Presidency to further the antigun agenda, even as this means by-passing Congress, and notwithstanding that Congress has sole authority to enact the laws of the Land, consistent with its law-making powers under Article I, Section 8 of the U.S. Constitution. If Hillary Clinton is successful in securing the Office of President of the United States, Americans will see further erosion of their Second Amendment right to keep and bear arms. They will see the continued erosion, too, of the Separation of Powers Doctrine as the Executive Branch amasses ever more power unto itself.You can help prevent Hillary Clinton’s ascendancy to the highest Office of the Land. If you are an NRA member, that is good. If you are a “Life Member” of the NRA, that is even better. America’s interests in preserving the Second Amendment and in preserving, as well, the other Nine Amendments of our Bill of Rights, are enhanced, and the influence exerted by the anti-American, antigun interest groups are, contrariwise, diminished, as NRA accrues more members. We ask that you encourage your family and friends to become members of NRA. And, please do not forget to vote![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

1/18/16 1/18/16

GUN LAWS THAT DO NOT MAKE SENSE, LITERALLY!

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

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

12/14/15 12/14/15

A COURT OF LAW THAT REJECTS U.S. SUPREME COURT PRECEDENT UNDERMINES THE RULE OF LAW AND UNDERCUTS THE U.S. CONSTITUTION

CITY OF HIGHLAND PARK, ILLINOIS DEFIES U.S. SUPREME COURT HOLDINGS IN HELLER AND MCDONALD AND SEVENTH CIRCUIT COURT OF APPEALS BOWS TO THE WILL OF GOVERNMENT IN FRIEDMAN CASE

State governments and local governments that enact or establish antigun laws, ordinances, rules, and regulations must comply with the U.S. Supreme Court's rulings in District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). State and local governments are not allowed to take the rulings of the U.S. Supreme Court lightly; and they are certainly not permitted to ignore the rulings of the High Court in the Heller and McDonald cases out-of-hand. This is not an option. It may therefore come as a shock to some people and an unpleasant surprise to many that State and local governments often do just that. Many State and local governments, not only ignore, but openly defy the U.S. Supreme Court’s holdings in Heller and McDonald. Worse, some federal and State courts, when called upon in lawsuits filed by plaintiffs -- individuals and groups -- to review plaintiffs' challenges to governmental actions, directly and negatively impacting the Second Amendment right of the people to keep and bear arms, often give legitimacy to unconstitutional laws enacted by State legislatures and to unconstitutional ordinances, rules, and regulations adopted by local governments, rather than striking them down as an unconstitutional restraint on the exercise of a fundamental right. Antigun proponents zealots, unsurprisingly and unremarkably, don’t see -- never see -- a problem with this. Indeed, Michael Bloomberg’s antigun group, “Everytown for Gun Safety,” for one -- the antigun political group that Bloomberg created upon leaving office as Mayor of New York City, after serving as its Mayor for twelve years -- is ecstatic over an April, 2015 decision of the Seventh Circuit Court of Appeals in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). Just read the report by the left-wing news commentary site, “AlterNet,” on this. The article, which was posted on December 12, 2015, is titled, “Aggressive Pushback at Evil NRA Is Working; Lives Will Be Saved as a Result.”While the antigun crowd sees reason to applaud any attack on Americans’ Second Amendment right of the people to keep and bear arms, even, and especially, those negative decisions, impacting the Second Amendment, handed down by courts of law -- the institution of last resort, called upon to defend Americans' rights and liberties -- an institution that reasonably would be expected to preserve and defend, assiduously, the fundamental rights and liberties of Americans -- no American, regardless of personal sentiment, or ethical view or political persuasion, should be pleased when the Second Amendment is in fact denigrated. No one should be pleased when the Second Amendment is attacked and denigrated because an attack on the sanctity of any one Amendment of our sacred Bill of Rights is, in essence, an attack on the sanctity of all of them. Political rhetoric should not be given equal weight with – much less lord over -- our system of laws, and political rhetoric should not be used as a wedge to divide the public on matters directly impacting our fundamental rights and liberties, guaranteed to all Americans in our Bill of Rights.Steven Rosenfeld, the author of the aforesaid “Alternet” article obviously disagrees. He argues that curtailment of Americans’ Second Amendment right to keep and bear arms, politically motivated, is politically warranted, even if not legally warranted, consistent with antigun rhetoric, spawned in the political world. And, Rosenfeld laments that our Second Amendment right is “bogged-down” in the legal world. So it is that Steven Rosenfeld waxes poetic and exclaims, exuberantly, how wonderful it is when the Second Amendment of our Bill of Rights is denigrated, and when unconscionable, abhorrent and unconstitutional laws, ordinances, rules, and regulations of States and Cities, that negatively impact our Second Amendment right to keep and bear arms, are allowed to flourish -- with the assistance of and, indeed, blessing of those courts of law that write decisions, giving credence to and that sanctify those State and local laws, ordinances, rules, and regulations; and that advance no compelling governmental purpose; and that, in fact, are specifically designed to undermine and defeat Americans’ fundamental rights.Courts that give credence to and that, in effect, sanctify such restrictive and oppressive and unconstitutional "edicts" of government are to be singled out for condemnation. In lieu of rendering decisions that defend and preserve Americans' fundamental rights, such courts of law are to be seen as operating subordinate to, subservient to and merely as an extension of government, rather than as a component of a legitimate, independent institution in its own right, whose singular purpose is as overseer of government and protector of our laws and of our fundamental rights and liberties under the U.S. Constitution. Case in point: the aforesaid Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015), decided in April of 2015.In the Friedman case the Plaintiff Appellants, including an individual, Ari Friedman, and a group, the Illinois State Rifle Association, brought suit against Defendant Appellee, City of Highland Park, in the State of Illinois. Highland Park had passed an ordinance, prohibiting the possession of “assault weapons” and “large capacity magazines,” namely ammunition magazines that can accept more than ten rounds. The ordinance defines an ‘assault weapon’ as any semiautomatic gun that can accept a ‘large capacity magazine’ and has at least one of five banned features, including, inter alia, a pistol grip without stock; a folding, telescoping stock; a grip for the non-trigger hand; or a barrel shroud. Moreover, the ordinance prohibits the ownership and possession of some firearms by name, such as AR-15s and AK47s.Plaintiff Appellant Friedman lawfully owned a banned rifle and several large capacity magazines, before the ban took effect. The prohibited firearm and magazines are not "grandfathered in" by the ordinance. In that respect, the Highland Park ordinance goes well beyond the highly restrictive and oppressive New York Safe Act, insofar as and particularly as those residents of New York who lawfully owned and possessed firearms defined as 'assault weapons' prior to the effective date of the NY Safe Act, on January 15, 2013, are permitted to retain their weapons so long as they are timely registered in accordance with New York law. In Illinois, though, under the unconscionable City of Highland Park ordinance, Plaintiff Appellant Friedman was forced to surrender his banned weapon and banned ammunition magazines to the government. And had he failed to do so, he would be criminally prosecuted for possessing the very items that were perfectly legal for him to own prior to implementation of the ordinance. Friedman, as a law-abiding citizen dutifully, albeit certainly not happily, surrendered his "assault weapon" in order to avoid certain prosecution, and he wants to own these weapons back.To have any chance of regaining possession of his weapons -- his personal property -- Friedman had no recourse but to file an action in the United States District Court for the Northern District of Illinois, challenging the oppressive ordinance and hoping that the federal court would strike down the restrictive gun ordinance as an unconstitutional infringement on the exercise of a fundamental right. Friedman, along with the Illinois State Rifle Association, that joined him in the lawsuit, argued that the City of Highland Park ordinance was inconsistent with the right of the people to keep and bear arms, guaranteed to all Americans, as an individual right under the Second Amendment of the U.S. Constitution and inconsistent, too, with Supreme Court holdings in Heller and McDonald. The District Court, nonetheless, found in favor of the Defendant Appellee, City of Highland Park, and Plaintiffs thereupon appealed the adverse decision to the Seventh Circuit Court of Appeals.The Seventh Circuit Court of Appeals, citing Heller, at the outset of its Opinion, acknowledged that “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.” The Seventh Circuit also pointed to the holding of the high Court in the subsequent McDonald case, decided in 2010, where the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” McDonald essentially took the holding of Heller -- which applies to unconstitutional actions of the federal Government impacting the Second Amendment, under the due process clause of the Fifth Amendment -- to unconstitutional actions of State and local governments, impacting the Second Amendment under the due process clause of the Fourteenth Amendment.Given the clear, cogent, unambiguous, and comprehensive import of these two holdings in Heller and McDonald, the salient issue before the Seventh Circuit Court of Appeals was certainly easy to promulgate and should have been: whether the Highland Park ordinance, that proscribes certain weapons, operates as an unconstitutional constraint on a person’s right to keep and bear arms and, if not, then, whether the ordinance is the least restrictive means available to the City for advancing a compelling governmental purpose. Had the legal issue been set forth in this way, in accordance with the actual holdings of the U.S. Supreme Court in Heller and McDonald, utilizing the appropriate standard of review, namely the stringent strict scrutiny standard, to test the constitutionality of the Highland Park ordinance, the Seventh Circuit Court would have struck down the ordinance as an impermissible constraint on an Americans’ right to keep and bear arms under the Second Amendment, consistent with the holdings of the U.S. Supreme Court in the Heller and McDonald cases. For, under the strict scrutiny test there is no logical, coherent reason for the City of Highland Park to adopt an ordinance, negatively impinging upon and infringing a fundamental right that mandates a wholesale ban on an entire category of firearms, firearms that had been, prior to adoption of the ordinance, perfectly legal for law-abiding residents of the City to own and possess -- namely and specifically firearms that the City arbitrarily defines as impermissible “assault weapons" and on ammunition magazines that happen to hold more than ten rounds. And, the government proffered no empirically and legally sound reason for the ban. Yet, the Seventh Circuit refused to apply the strict scrutiny test to the Highland Park ordinance even though, the City ordinance, on its face, impinged upon and infringed a fundamental right, and, indeed, the ordinance was specifically designed to do so.*In its decision the Seventh Circuit also dismissed, inexplicably, the holdings of the U.S. Supreme Court in Heller and McDonald, giving nothing but lip-service to them, through the mere act of reciting the holdings in the Court’s opinion, but failing, utterly, in adhering to them. In fact, not only did the Seventh Circuit Court of Appeals fail to apply – as it should have done – a strict scrutiny standard of review to an ordinance impacting a fundamental right, the Court really failed to apply any standard of review in assessing the constitutionality of the Highland Park ordinance. Instead, notwithstanding the clear import and purport of the High Court’s holdings in Heller and McDonald and, notwithstanding that the Seventh Court of Appeals had before it, for its review, an ordinance directly, and emphatically, and categorically impacting a fundamental right, under the Second Amendment to the U.S. Constitution, the Seventh Circuit upheld the City of Highland Park ordinance. In permitting an unconstitutional local ordinance to stand, rather than striking it down, the Court of Appeals relied not on actual holdings of the high Court in Heller and McDonald, but on dicta in those cases, arguing that, because the high Court did not – according to the Seventh Circuit’s faulty reasoning – define the scope of the Second Amendment in its entirety, the Seventh Circuit was free to read into Heller and McDonald essentially whatever it wanted to.Curiously, the Seventh Circuit Court of Appeals applied a “political” rationale to its decision, foregoing, altogether, application of the appropriate legal standard of review, and this becomes evident in the issue that the Court framed for itself and thereupon sought to resolve, namely: “whether the ordinance leaves residents of Highland Park ample means to exercise the ‘inherent right of self-defense’ that the Second Amendment protects.” The legal issue, that the Court framed for itself in this odd way, totally ignores the fact that many of Highland Park residents desire to hold onto an entire category of weapons and magazines that were and are perfectly legal to own and possess under the Second Amendment, consistent with the holdings in Heller and McDonald, where the U.S. Supreme Court made absolutely clear that government laws and ordinances that ban, wholesale, entire categories of weapons, are patently illegal.By constructing the legal issue in the way that it did, the Seventh Circuit not only took away the freedom of the people to own and possess firearms that they previously had lawful access to but deliberately and defiantly refused to consider the constitutionality of the City ordinance at all in light of the Second Amendment and in light of the holdings of the U.S. Supreme Court in Heller and McDonald. In the issue that the Seventh Circuit Court of Appeals devised for itself, the Court insinuated politics into the issue, and in the resolution of the issue that the Seventh Circuit constructed for itself, the Court begged in the question the very answer it sought.The Seventh Circuit surmised that, because the City of Highland Park did not prohibit all weapons, the City could prohibit some of them – including an entire category of weapons that had been perfectly lawful to own and possess prior to adoption of the City ordinance – and that the City could, in fact, prohibit, perfunctorily, without cause, those weapons and weapons' paraphernalia, such as – what the City deemed to be – high capacity ammunition magazines, as it wished. In the issue that the Court devised for itself to resolve, the Seventh Circuit didn't even need to listen to and consider the absurd arguments that the City put forth ostensibly in support of its wholesale gun ban. The Court included the rationale of the City government in its Opinion, to give seeming weight to its decision. But it was all empty "effect," for the Court had ipso facto decided that, so long as the City of Highland Park left its residents with the means to own and possess at least one kind of firearm -- whatever firearm the City deigned to allow its law-abiding citizens to possess -- say an antique Blunderbuss -- virtually all other firearms could lawfully be, and eventually would be, banned. In fact the Court's reasoning leaves the door open for just that result: eventual adoption of yet further gun bans.The Seventh Circuit Court of Appeal's decision is grounded not only on faulty legal reasoning, but on faulty logical reasoning -- reasoning truly at odds with the principles of sound logic and reasoning that is, at once, at odds with the holding in Heller. The Heller holding entails, by logical implication, that bans on entire categories of weapons are impermissible absent a clear and compelling reason for government to do so and this means that a government is not permitted to ban entire categories of weapons unless the court of review satisfies itself that a particular governmental law, or ordinance, or rule, or regulation is the least restrictive means available for advancing a compelling governmental interest.Moreover, The Heller holding that constrains the federal government from enacting laws that constitutionally impinge upon and infringe the Second Amendment right of the people to keep and bear arms applies to the States and local governments through the due process clause of the Fourteenth Amendment, in accordance with the holding in McDonald. Thus, neither the federal Government, nor State and local governments, are permitted to infringe the Second Amendment’s right of the people to keep and bear arms absent extremely stringent scrutiny of the laws, ordinances, rules, and regulations by a reviewing court of competent jurisdiction. The Seventh Circuit failed, utterly, in performing its legal duties. Let's take a closer look at the Seventh Circuit's reasoning in Friedman to see more precisely where faults in the Court's legal and logical reasoning rest.The Seventh Circuit’s reasoning in Friedman is faulty, first, because the holdings of Heller and McDonald make abundantly clear that choice of weapons – those that have been available to Americans in the past – should continue to be available to Americans in the present, and into the future, absent a compelling reason set forth by government, to the satisfaction of the reviewing court, that establishes a lawful need to preclude ownership and possession of those weapons. In that regard, it is not for government to decide which firearms to permit Americans to continue to own and possess and which ones must be surrendered, based on mere personal predilections of government. That the City of Highland Park would do so – that it would dare to do so – amounts to an unconstitutional taking of property and serves at once to denigrate the import and purport of the holdings in Heller and McDonald because the ordinance amounts to a ban on an entire category of firearms and ammunition magazines absent any showing by the City of Highland Park that the City has in fact a compelling reason to do adopt such bans and absent any showing on the part of the City that the language of the ordinance as adopted is the least restrictive means available to the City to advance a compelling local governmental interest -- which is to say that the compelling governmental interest is so critical that the government is justified in infringing a fundamental right – the right of the people to keep and bear arms. This is the strict scrutiny test.*The Seventh Circuit did not consider strict scrutiny criteria at all when rendering its decision, and it should have done so. It simply allowed the City of Highland Park to assert an ad hoc assortment and array of non-empirical declarations of the usual sort developed by and utilized by antigun proponents to further a personal social and political agenda: de facto repeal of the Second Amendment to the U.S. Constitution, to force our unique Constitution toe the line with those of other Western nations -- nations whose history and culture are markedly different from our own.The Supreme Court, in Heller, made abundantly clear that the District of Columbia could not ban an entire category of firearms. In Heller, the District of Columbia attempted, unlawfully, to ban all handguns from the hands of the District of Columbia populace. The Supreme Court struck down the ordinance as unconscionably broad and an unconstitutional infringement of the Second amendment right of the people to keep and bear arms. Similarly, and by logical implication, then, the City of Highland Park could not constitutionally mandate a wholesale ban on so-called “assault weapons” and on magazines that happen to hold more than ten rounds of ammunition. Certainly the Seventh Circuit Court of Appeals could not allow the Highland Park ordinance to stand without first applying strict scrutiny to the City’s infringement of a fundamental right. The Seventh Circuit devised a makeshift standard of review, relying on political considerations to arrive at the "political" decision it wanted. The Court failed to apply the appropriate standard of review – or any recognized legal standard of review, for that matter. This amounts to prejudicial error, subjecting its decision to remand for further consideration, requiring application of the appropriate standard of review. The Seventh Circuit devised a makeshift standard to arrive at the "political" decision it wanted.Second, in affirming the decision of the lower, District Court, the Seventh Circuit made the dubious assertion that, “the best way to evaluate the relation between assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions.” But, there is nothing in the holdings of the U.S. Supreme Court in the Heller and McDonald cases that are ambiguous, and there is nothing in those decisions that suggest that a court of review can or should consider political matters when rendering a legal decision, impacting a fundamental right. Certainly, the Seventh Circuit did not point to any ambiguities in the Justices’ text, and there is nothing in the Supreme Court holdings that so much as intimate that political considerations are merited when testing the constitutionality of a governmental law, ordinance, rule or regulation. The Seventh Circuit simply made a bald and bold pronouncement.The best way for a court of review – in fact the only lawful way for a court of review – to review a governmental law, or ordinance, or rule, or regulation that impinges on and infringes a fundamental right is for that court of review to demand that the government that enacts or adopts such a law, or ordinance, or rule, or regulation, sets forth, in the first instance and to the complete satisfaction of the reviewing court, the government's legal argument, supporting the government's contention that a given law, ordinance, rule, or regulation is, in that government's contention is constitutional. The government necessarily has a heavy legal burden to carry for a court of law must assume that any such law, ordinance, rule, or regulation that negatively impacts a fundamental right is unconstitutional. A court of law, reviewing such governmental law, ordinance, rule, or regulation, negatively impacting an American's fundamental right, has no discretion in the matter. The reviewing court must apply the strict scrutiny standard to test whether the governmental action can stand or be struck down. Moreover, and importantly, judicial deference to the political process is not a legally tenable basis or mechanism through which to test whether a law, or ordinance, or rule, or regulation that is clearly directed to and impacts a fundamental right is permitted to stand. The matter before the court is a purely legal one, and it is one that goes directly to the constitutionality of the law or ordinance. Political concerns are of no moment, or consequence in the reviewing court’s determination.The issue of the constitutionality of a law, or ordinance, or rule, or regulation that impinges upon and infringes a fundamental right is solely and precisely and absolutely a legal issue, not a political one. Deference to political concerns has no place, where, as here, in the Friedman case, an ordinance directly impacts a fundamental right, and the Seventh Circuit Court of Appeals was wrong in opining that there is one.Furthermore, and it bears repeating, where fundamental rights are at stake, government is under a heavy burden to justify any restriction on an American’s exercise of a fundamental right. That means, once again, that a governmental law, or ordinance, or rule, or regulation is presumed, from the get-go, to be unconstitutional, when a court of review begins its analysis of the impact of a law or ordinance on a fundamental right, such as the right of the people to keep and bear arms, and the burden of proof is on the government to demonstrate that a given law or ordinance is in fact constitutional. If a court of review finds that the government has failed to meet its burden, which is to say, that the court of review finds that the law or ordinance is, prima facie, unconstitutional, then that court of review must strike down the offending statute or ordinance. It has no choice in the matter, regardless of what it may otherwise wish to do. But suppose the court of review finds that the government has met its burden of proof and that the court finds the offending statute or ordinance to be facially constitutional. That doesn’t end the matter under the standard of strict scrutiny. That doesn't mean that the governmental law, ordinance, rule, or regulation is permitted to stand. For, even if the government, in the first instance, is able to carry the heavy burden of proof and demonstrates to the satisfaction of the court that the law or ordinance is not facially unconstitutional, the matter doesn’t end there. Strict scrutiny embraces a two-part test. The court of review must then decide whether a given law or ordinance that is ostensibly constitutional is, for all that, still, in the government’s adoption of that statute or ordinance, or rule, or regulation, the least restrictive means available to the government by which to advance a compelling governmental purpose. If so and only if the court of review finds to its satisfaction that an oppressive law or ordinance that impacts a fundamental right is the least restrictive means available to that government to enable it to advance a compelling governmental purpose, can the court of review then and only then allow the oppressive law or ordinance to stand. Otherwise the court must strike down the offending law, or ordinance, or rule, or regulation. In that judicial review of a State law or local governmental ordinance, rule, or regulation impacting a fundamental right, no deference is to be given to the political process. When a court of competent jurisdiction is called upon to review the constitutionality of laws, ordinances, rules, or regulations that impact fundamental rights, consideration of political issues, social issues and the political process are wholly inappropriate. Governmental laws and ordinances and rules and regulations impacting fundamental rights are most serious. An analysis of them involves the application of law, not politics, and courts of review are called upon to make a legal assessment of them. Matters impacting fundamental rights are never to be left to the wishes or to the wants or to the will of government. And, the Seventh Circuit Court of Appeals is absolutely wrong to assert that they can be and, for that matter, ought to be, left to government. And, by failing to apply the legal standard of strict scrutiny to an ordinance that directly impinges upon and infringes a fundamental right, the Seventh Circuit reduced itself to a servile vessel of government, giving deference to government action, where it should never have done so.Third, in its deferential, even obsequious regard for government, the Seventh Circuit Court of Appeals added that, “the central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.” This is patently false. The matter before the Seventh Circuit has nothing to do here with public policy any more than it has to do with the political process. The matter before the Court in the Friedman case has everything to do with the City government’s creation of and adoption of an ordinance directly and negatively impacting a fundamental right. And, a definitive constitutional rule, established by the U.S. Supreme Court in Heller, does exist, contrary to the Seventh Circuit's assertion that there is none. The Seventh Circuit simply decided to ignore the Supreme Court’s clear and categorical and cogent holding. The Seventh Circuit’s argument in the Friedman case is not a direct and perceptive and critical review of a governmental ordinance, directly impinging upon and infringing the fundamental right of the people to keep and bear arms, but an unconscionable digression from its duty to review, critically, the constitutionality of the Highland Park ordinance. The Seventh Circuit altogether ignores its duty, a that duty rests squarely on testing the constitutionality of the Highland Park ordinance in light of the holdings in Heller and McDonald.Fourth, the Seventh Circuit said, “another constitutional principle is relevant: The Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in search for national uniformity.” Even so, where, as here, the exercise of a fundamental right is at stake, the assertion of such a principle in this instance amounts to nothing more than rhetorical flourish, not sound legal reasoning. The Court’s assertion is not sound and has absolutely no relevance here because, once again, where a fundamental right is at stake, the application of that right – the right of the people to keep and bear arms – applies “across the board,” that is to say, nationally – and the holdings of the U.S. Supreme Court in the Heller and McDonald cases make this point poignant, clear, categorical, and unequivocal. “Local differences” are absolutely beside the point where fundamental rights, as set forth in our Bill of Rights, are at stake.The Seventh Circuit simply and erroneously sets up a peripheral straw man issue and ignores the salient one which goes to the very heart of the import of the Second Amendment: whether the City of Highland Park Ordinance is unconstitutional on its face and, were it not so, then, whether that ordinance is, nonetheless, the least restrictive means available to the City of Highland Park for advancing a compelling governmental interest. By failing to consider the impact of the City of Highland Park ordinance on the fundamental right of the people to keep and bear arms, the Seventh Circuit improperly reduced a serious constitutional issue before it to one of mere public policy, political process, and local political and social concerns. Such analysis by a court of review might be adequate to address some minimal social concern or political matter, but not one that goes to the heart of our rights and liberties under the U.S. Constitution, namely and specifically, the right of the people to keep and bear arms, under the Second Amendment of the U.S. Constitution.In his lengthy dissent, Judge Manion asserted, in his opening remarks, that “by prohibiting a class of weapons commonly used throughout the country, Highland Park’s ordinance infringes upon the rights of its citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property. Both the ordinance and this court’s opinion upholding it are directly at odds with the central holdings of Heller and McDonald: that the Second Amendment protects a personal right to keep arms for lawful purposes, most notably for self-defense within the home.” The dissenting Judge also noted that Plaintiff Appellant Friedman did, in fact, lawfully keep in his home, for self-defense, the weapons and ammunition magazines that the ordinance now bans, and that Friedman was compelled to surrender them to the authorities or face a misdemeanor conviction that is punishable by up to six months in jail and a fine of between $500.00 and $1,000.00. The City of Highland Park ordinance thus forces a law-abiding citizen either to forsake his Second Amendment right to keep and bear arms or to become a misdemeanant, end up in jail, pay a fine, and probably never again be able to own or possess any firearm.Once the Seventh Circuit Court of Appeals affirmed the decision of the U.S. District Court for the Northern District of Illinois, Eastern Division, finding for the Defendant Appellee, City of Highland Park, against Plaintiff Appellants, Friedman and the Illinois State Rifle Association, the Appellants petitioned for a writ of certiorari to the U.S. Supreme Court. Justices Roberts, Scalia, Thomas, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, Kagan all were in attendance to consider the writ of certiorari. A majority of Justices denied the writ. Justices Thomas and Scalia were so incensed at the refusal to grant the petition for writ that Justice Thomas, joined by Justice Scalia, admonished their brethren in a dissent.In his opening remarks, Justice Thomas wrote, “‘[O]ur central holding in’ District of Columbia v. Heller, 554 U. S. 570 (2008), was ‘that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.’ And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals including the Court of Appeals for the Seventh Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.” It is abundantly clear that the Seventh Circuit Court of Appeals has failed in its duty to carefully review a governmental ordinance that, on its face, amounts to a deliberate, audacious, callous, caustic, and defiant attack, not only on the Second Amendment to the U.S. Constitution, but on clear and unambiguous holdings of the U.S. Supreme Court in Heller and McDonald that directly apply to the Friedman case and inform the Court how to review an ordinance that impacts the fundamental right of the people to keep and bear arms. By failing to consider the import and purport of the U.S. Supreme Court’s holdings in Heller and McDonald, the Seventh Circuit Court of Appeals in its holding in Friedman improperly and defiantly ignored the holdings of the U.S. Supreme Court in Heller and McDonald.The Seventh Circuit has capitulated to local government; ignored the directives of the U.S. Supreme Court; failed to apply the appropriate legal standard when testing the constitutionality of a law or ordinance, infringing a fundamental right; reduced a serious constitutional issue to a mere administrative one; saw fit to prostate itself before a mere local government, raising that government to the level of potentate; made itself, wittingly or not, into a subservient ally of antigun groups; and allowed its status as an independent trier of law and fact to play a subordinate role to political forces. In ceding its own, critical judicial role, the Seventh Circuit Court of Appeals has demonstrated a callous disregard of its duties and joined with government in undermining the Second Amendment to the U.S. Constitution. It is most unfortunate that the majority of the U.S. Supreme Court Justices paid no heed to the remonstrations of Justices Thomas and Scalia. In denying the Friedman Appellants' petition for writ of certiorari, the majority of Justices allowed a clearly unsound and deeply offensive ruling of the Seventh Circuit to stand, unchallenged.The adverse and legally and logically unsound decision of the Seventh Circuit Court of Appeals in Friedman, coupled with the failure of the U.S. Supreme Court to grant Appellants' petition for writ sets a bad precedent. Had the Justices, instead, granted the petition and determined to review the decision of the Seventh Circuit, then, thereafter, federal, State, and local governments and, too, federal and State courts would be placed on notice that the holdings of Heller and McDonald are not to be taken lightly. What has transpired in the Friedman case will only embolden antigun groups and their allies in government and in courts friendly to their political objectives to take further steps and ever more daring and outrageous steps to undercut the fundamental right of the people to keep and bear arms. Erosion of our remaining rights and liberties, as set forth in our Bill of Rights will, as well, follow suit.Indeed, when one takes the time to pause and consider what has, of late, been occurring in our Nation, one becomes immediately aware that the destruction of our Bill of Rights -- most prominently, our First, Fourth, and Fifth Amendments, along with our sacred Second Amendment -- is already well underway.____________________________________

*UPDATE AND CLARIFICATION:

Reviewing this post, we must clarify the points made in our analysis of strict scrutiny as a standard of review in Second Amendment cases. In our jurisprudence, where fundamental rights are at stake, such as exercise of one's Second Amendment right of the people to keep and bear arms, governments must apply the least restrictive means to accomplish their goals. And, Courts will use strict scrutiny to assess the constitutionality of laws, impacting fundamental rights, when a challenge is made as to the constitutionality of them.The U.S. Supreme Court in Heller did not, though, articulate a specific standard of review a court must use when assessing the constitutionality of a law when a constitutional challenge to a law impacting the Second Amendment is raised, apart from stating that the most liberal standard of judicial review, rational basis as a means test, is altogether inappropriate for means testing. It is not clear that the Highland Park Court used any standard of review but merely and essentially rubber stamped government edit. If the Seventh Circuit Court of Appeals applied any standard of review, in Friedman vs. Highland Park, then, tacitly, the Court applied "rational basis," the lowest most deferential standard of review. But, The U.S. Supreme Court in Heller pointedly remarked that rational basis was never the correct standard of review in Second Amendment cases and can never be appropriately applied in any Second Amendment case.That the high Court did not apply a standard of review in Heller though was probably due to the fact that the Court found the District of Columbia's total ban on handguns to be facially, per se, invalid. The law was designed to destroy the core value of the Second Amendment and therefore had to be struck down as a blatant example of a law that was unconstitutional. So, the high Court found it unnecessary to apply strict scrutiny.For those laws, infringing the Second Amendment right that do not, on their face, appear to be invalid, then, arguably, consistent with Heller, heightened scrutiny of such law must be invoked and applied by a court of review.Strict scrutiny, as a means test, is, traditionally, the most durable and most stringent standard of heightened security a court or judicial review can apply, when deciding the constitutionality of a law. Yet, some Courts--those obviously antithetical to the Second Amendment-- have, through the failure of the Heller Court to articulate a definitive standard of review, tended to apply an intermediate scrutiny test or, as in the Friedman vs. Highland Park case, a rational basis, if a standard of review was applied by a Court at all, if only tacitly. Again, rational basis is not an appropriate standard for means testing a law infringing upon the Second Amendment in any circumstance. Curiously, rational basis is used by New York Courts and is used by those Courts with regularity to justify the NY Safe Act and to justify any other restrictive gun law that the New York State Legislature and other governmental bodies in New York implement. Under strict scrutiny or even under intermediate scrutiny, it is unlikely that New York's draconian gun laws would stand. New York Courts know this, and that may explain why they rigidly adhere to application of an incorrect, liberal standard of review at all.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

12/7/15 12/7/15

THE NEW YORK TIMES’ CALL FOR NATIONAL GUN CONFISCATION IS LEGALLY INSUPPORTABLE AND MORALLY INSUFFERABLE

THE NEW YORK TIMES RESURRECTS FEINSTEIN'S MONSTER

The antigun groups have now made clear beyond any doubt their singular goal: remove firearms from the hands of Americans, nationally. In a rare editorial, appearing on the front page of the Saturday, December 5, 2015 edition of The New York Times, titled, “The Gun Epidemic,” the Times editorial staff presents its arguments for massive gun confiscation, at the national level. The New York Times – a vehicle of international socialist and globalist interests – is intent on divesting Americans of their sacred right to keep and bear arms. Simultaneously, the Times is clearly and unconscionably setting the stage for a Clinton Presidency in 2016.The San Bernardino shooting incident, carried out by Islamic extremists – foreign invaders, whose allegiance, as the Times reports, are to the Islamic State – should be a clarion call to arms to all Americans. Instead, the Times uses this despicable attack by the Islamic State on innocent American citizens as a pretext for disarming all Americans. Treating this invasion on our shores as simply one more mass shooting, without regard to the motivation behind it, the Times calls for a massive, gun confiscation program at the national level. The rationale given for this unprecedented call for gun confiscation is reduction of gun violence – the same platitude voiced over and over by those individuals and groups intent on divesting Americans of their natural birthright and denying to Americans the right of self-defense, notwithstanding that the Federal Government either cannot adequately protect Americans from mass shootings -- whether or not these attacks are random or carefully planned and organized -- or the Government simply will not do so, despite constant assertions and assertions to the contrary.Since President Barack Obama refuses, incongruously, to seal our borders despite clear evidence of an attack in our Country by Islamic radicals, and since he continues to allow into our Country those of the Islamic faith, who are impossible to vet, one must wonder whether Obama is intentionally jeopardizing the security of the American people, to keep the American public off-guard, consistent with international globalist and international socialist interests and objectives, in preparation for America’s integration into a unified Socialist State at some point in the not too distant future. If so, the salient reason for the NY Times’ call for a program of massive gun confiscation has little, if anything, to do with reducing gun violence in this Country -- from whatever source -- and has everything to do with destruction of America’s sovereignty and subjugation of its citizenry. A massive gun confiscation program on the national stage would certainly hasten the accomplishment of that goal, paving the way for repeal of America’s Constitution, and, therefore, repeal of a critical portion of the Constitution -- America's Bill of Rights. Thus, would we see the international globalists and socialists smoothing the transition for the Nation's incorporation into a unified mega-international Socialist Order. And, the American people would be given a new constitution sans any mention of a right, existent in the people, to keep and bear arms.To Americans who see the United States as an independent sovereign Nation, beholding to and dependent on no other nation, and who place their faith in their Bill of Rights and, particularly, on the strength of the Second Amendment within the Bill of Rights, such acts of gun violence, committed by criminals, lunatics, and, of late, by Islamic jihadists, there bespeaks a need for a strong citizenry, and that means an armed citizenry, not a disarmed, weakened one. But, a disarmed, weakened citizenry is clearly and specifically what the federal government has in mind for Americans. President Barack Obama has made that point many times and more incessantly -- with an air of urgency in recent days. Lest there be any doubt about this -- about the intention of wealthy, powerful, ruthless interests behind this effort to disarm the American citizenry, who use the mainstream news media to confound Americans and who proclaim that the only answer to this onslaught of gun violence in America is for American citizens to place their blind faith in and allegiance to the federal government, rather than to place faith in themselves and to take personal responsibility for defense of self and family -- suggesting, then, that the federal government -- and only the federal government can and, more to the point, is warranted and permitted to protect them -- one ought to stop and consider the import of the following two remarks, appearing in the sixth paragraph of the NY Times front page, editorial: “It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation.” The average person may not be quick to catch this, but there is an oblique message in these two assertions – both of which are utterly damning to American sensibilities, to the autonomy of the individual, to the sanctity of Americans’ Second Amendment, and certainly divisive, as the editorial can and is probably meant to tear the public apart, for The New York Times' assertions do most assuredly play to the sentiments of antigun proponents and zealots, even as those same sentiments will anger, and rightly so, every other American. So let us parse those assertions.The NY Times says the language of the Second Amendment is “peculiar.” Yet, the Times’ use of the word, ‘peculiar,’ to describe the language of the Second Amendment, is itself peculiar. The meaning of the independent clause in the Second Amendment – “the right of the people to keep and bear arms shall not be infringed” – is straightforward, cogent, clear, and certainly not “peculiar” to the American people. Indeed, that The New York Times would use the word, ‘peculiar,’ to describe the Second Amendment at all, suggests that the newspaper does not reflect America’s interests but, rather, the interests of the international socialists and globalists, intent on dismantling the Second Amendment in particular and dismantling the nine other Amendments, generally, which depend on the Second Amendment, ultimately, for their preservation. For, only to foreign governments whose history is unlike ours and whose constitutions are devoid of any mention of an inalienable right of the people to keep and bear arms would America's Second Amendment possibly look "peculiar." But for an American newspaper to use that adjective to describe the Second Amendment, that should give the public pause.Take a look at the constitution of any other Western nation. Even if a constitution talks about firearms in the hands of the citizenry at all -- and very few constitutions do -- no constitution but that of the United States places that right squarely in the hands of the citizenry itself. In no other nation on this Earth does the right to keep and bear arms reside in the People. Rather, that right resides exclusively in the State. In those Western Countries that the New York Times clearly emulates, namely, France, England, and Norway, which the Times mentions in its editorial, the constitutions of those Countries do not respect the inalienable right of their citizens to keep and bear weapons in their own defense and as a means to secure their individual rights and liberties. Therefore, Countries such as France, England, and Norway, unlike the United States, clearly do not recognize that the citizens, themselves, are the ultimate guardians of their own rights and liberties, and so their citizens do not have the inalienable right to defend themselves with the most effective means available for doing so – that provided by a firearm; nor do those Countries recognize, in their people, the right of their people to secure their own rights and liberties through firearms, if the need should ever arise.Indeed, the Times admits, “that determined killers obtained weapons illegally in places like France, England, and Norway that have strict gun laws. Yes they did.” But, in that very admission, the Times follows up with the singularly bizarre assertion, “But at least those Countries are trying.” Really, “trying?” What are those Countries trying to do through strict gun laws? The Times' assertion is incoherent. If those Countries are trying to provide safe havens for Islamic foreign invaders, and convert their citizenry into a flock of defenseless sheep, then those Countries are certainly succeeding! Must the U.S. follow the lead of those Countries? The New York Times says, unequivocally, “yes.” The language of our Second Amendment, however, manifestly counters the Times’ assertion with an emphatic, “no!”The New York Times also says, “No right is unlimited and immune from reasonable regulation.” This, too, is a particularly odd and outrageous remark as it denigrates our jurisprudence.First, the right of the people to keep and bear arms is a fundamental right, expressly set forth in the language of our Country’s Bill of Rights. The New York Times cannot reasonably deny the truth of that assertion. And, as a fundamental right, the right of the people to keep and bear arms is deserving of something more than some protection. As a fundamental right, the right of the people to keep and bear arms is deserving of the strongest possible protection. Second, to say that a fundamental right is not unlimited, namely, absolute, is merely a legal platitude. The Times is incorrect to suggest, as it does, that the Government can employ whatever regulation of the right it wants, whenever it wants, simply because no right, even a fundamental right, is not absolute.Second, the Times says that the right of the people to keep and bear arms is subject to “reasonable regulation.” Understand, the New York Times is making a legal pronouncement, here, not merely – as most readers are inclined to see it – a colorful, somewhat innocuous, editorial remark. The Times is tacitly invoking a criterion of judicial review that many State courts use in order to determine whether a State law – regulating gun possession and gun ownership, say -- can withstand judicial scrutiny. The Times is asserting, albeit cryptically, that this standard of judicial review, ‘reasonable regulation,’ should apply, across the board, without exception, to each and every legal challenge a complainant may bring to the constitutionality of a federal or state gun law restriction. But, there is a serious problem with this. The problem is that the criterion of ‘reasonable regulation’ is a very weak standard, virtually indistinguishable from the ‘rational basis test’ which many State courts, such as those in New York, the home of the New York Times, routinely use to test the constitutionality of their State's own draconian gun laws.Under both the ‘reasonable regulation’ standard and ‘rational basis test,’ State courts simply look to see whether a particular law is rationally related to a particular governmental purpose. In effect, this weak standard of review hamstrings Courts and allows States to impose draconian gun laws on the public. The New York Safe Act, which is one of the most restrictive gun measures in the Nation, when compared to the gun measures of any other jurisdiction in the United States, passes judicial scrutiny in New York precisely because the New York State Government need only assert – and need not argue – that the NY Safe Act is rationally directed to a legitimate government purpose – say, reduction in gun violence. If the New York Safe Act were challenged in a court of competent jurisdiction in New York – and of course various provisions of the Act, as well as the Act in its entirety, have been challenged in New York courts since enactment of the NY Safe Act – that court of competent jurisdiction is only permitted to decide whether the Safe Act is rationally related to a legitimate government purpose. In applying that standard of judicial review -- rational basis -- a court must give considerable deference to a legislative action. So, unless the law is clearly arbitrary on its face or clearly has no relationship at all to the matter for which it ostensibly was enacted, which is to say, that the government cannot demonstrate that the law is rationally related to a legitimate government purpose, the law will be upheld. So, under either the rational basis test or the reasonable regulation standard, the latter of which the Times makes specific reference to in its front page editorial, a court of competent jurisdiction is prohibited from going further in its scrutiny of the constitutionality of the law or governmental regulation. So, under the rational basis test a law can be very broad in scope and overreach its stated objective. That is of no consequence to the basic question of the constitutionality of it under either the rational basis test or under the essentially identical reasonable regulation standard. And the result is – as the NY Safe Act clearly demonstrates – that extraordinarily draconian gun laws pass constitutional muster. This is perverse. And, in light of the U.S. Supreme Court’s decision in District of Columbia vs. Heller (2008), the NY Safe Act flies in the face of the high Court’s holding because New York courts continue to use a relaxed standard of review in testing the constitutionality of the NY Safe Act, notwithstanding that the Act has a highly corrosive effect on a fundamental right: the right of the people to keep and bear arms.Gun ownership and gun possession is a fundamental right. Even antigun proponents and zealots cannot reasonably deny the legal certainty of that fact. Legislation that impacts the fundamental right of the people to keep and bear arms demands extraordinary judicial scrutiny, not weakened, relaxed scrutiny. State courts and federal courts are, under our jurisprudence, expected to utilize the strict scrutiny test where fundamental rights are impacted. Can the New York Safe Act withstand judicial scrutiny under a strict scrutiny criterion? The answer is clearly, “no.” Under a strict scrutiny criterion, the State Government has the burden of showing that the NY Safe Act, which places inordinate restrictions on a citizen’s fundamental right to keep and bear arms, is nonetheless necessary to satisfy a compelling State interest – in this case: the compelling interest of the State to reduce gun violence. But, importantly, under the strict scrutiny test, the constitutionality of the law or governmental regulation under review is not presumed, unlike the constitutionality of a law or governmental regulation would be presumed under the rational basis test, or under that test's functional equivalent, the reasonable regulation standard. Therefore, the burden of proof for the State of New York is a difficult one under strict scrutiny would be exceedingly difficult to overcome. Under either the rational basis test or “reasonable regulation” standard, on the other hand, a court of review in New York is legally required to presume, in the first instance, that a law or regulation is constitutional, hence valid. So, under the rational basis test or “reasonable regulation” standard, the New York State Government is able, very easily, to enact draconian gun laws that, just as easily, pass constitutional muster. This explains why challenges to various provisions of the Safe Act – except in one or two instances – fail, and this explains why challenges to the Safe Act in its entirety have, to date, also failed. And, this explains why draconian gun laws, such as the New York Safe Act, are able to exist and continue to exist at all. And, critically, this also clearly explains why The New York Times expresses a desire for courts of competent jurisdiction to use a relaxed standard of judicial review when testing the constitutionality of a draconian State or federal gun law or governmental regulation.Through application of the rational basis test or reasonable regulation standard, New York, and any other State, and, for that matter, Congress itself, can enact gun laws that infringe the fundamental right of the people to keep and bear arms, and such laws will still, almost invariably, pass a constitutional challenge. And that is why, traditionally at least, our jurisprudence respects challenges to laws that impact fundamental rights such as the right of the people to keep and bear arms, requiring State and federal governments to overcome an extremely difficult standard of judicial review if their restrictive gun laws are to be held constitutional and, therefore, to survive challenges to their constitutionality. This means that the burden of proof is on the government to prove that a law or regulation is constitutional. But, under either the rational basis test or "reasonable regulation" standard that the NY Times refers to in its editorial, the burden rests with the challenger, in the first instance, to show that a particular law or governmental regulation is, in fact, unconstitutional. Under strict scrutiny, the burden rests squarely on the government to prove to the satisfaction of the court that the law or regulation is, in fact, constitutional. That is a crucial difference and explains why the New York Times not only asks for enactment of extremely restrictive gun laws on the national stage but, as well, explains why the Times would mandate use of a relaxed standard of review once the laws were challenged in federal court, and the constitutionality of those laws would be challenged. Under a relaxed standard of judicial review, such draconian gun laws would very likely survive a court challenge, testing the laws' constitutionality. Thus, the Times calls for use of the "reasonable regulation" standard of judicial review.But, if a New York State or New York federal court of competent jurisdiction applies strict scrutiny, say, to the New York Safe Act, for example, as it should, in lieu of the rational basis test, the New York State Government must prove to the Court’s satisfaction that the NY Safe Act furthers a compelling government interest. But that doesn’t end the inquiry. Strict scrutiny embraces a two-part test. Assuming the Government can prove to the satisfaction of the court that the New York Safe Act does serve a compelling State interest, the State Government must then show that the NY Safe Act is narrowly tailored to meet that objective – say, reduction of gun violence. That means the Government must prove to the satisfaction of the court, that the NY Safe Act is the least restrictive means available to the Government for reducing gun violence in the State even if the State can show that the Act is directed to satisfying a compelling State interest. If and only if the reviewing court is satisfied that the NY Safe Act amounts to the least restrictive means available to the Government for reducing gun violence will that court of review hold the Act constitutional. Otherwise, it will not do so, and cannot legally do so. Application of strict scrutiny to a law or governmental regulation is very difficult for a government to overcome. Application of the standard of strict scrutiny is meant to be difficult to overcome when a restriction on the exercise of a fundamental right is at stake.Challenges to fundamental rights are meant to fail precisely because preservation of the fundamental rights of the American people is itself fundamental to preservation of a free Republic. And a free Republic cannot long endure if State and federal governments can, virtually at will, enact laws that tend to undercut and negate the Bill of Rights. Hence, it is highly unlikely that the New York Safe Act would survive judicial review under a strict scrutiny test. Since the NY Safe Act directly impacts a fundamental right it is presumed from the get-go, that the Act is constitutionally invalid. Thus the burden on a State government or on the federal government to show that a draconian gun law is legally required is considerable, and necessarily so. A reviewing court is likely to see the NY Safe Act as the charade and subterfuge it really is: an underhanded attempt to undercut and negate the efficacy of the Second Amendment to the U.S. Constitution, under the guise of protecting the public from gun violence.Clearly, for the New York State Government to argue that denying to thousands of law-abiding New York residents access to large categories of firearms is the least restrictive means available to it for reducing gun violence is neither logically sound nor legally defensible. It is therefore highly unlikely that the NY Safe Act could withstand judicial scrutiny under a strict scrutiny standard. Thus, to say that no right – even a fundamental right – is not absolute, is not to suggest that a government can essentially regulate the right away whenever it so wishes. And, The New York Times is wrong in suggesting that it can.Now it is one thing for courts in New York to apply a weak standard of judicial review that allows for the existence of draconian gun laws, negatively impacting the fundamental right of the people to keep and bear arms; it is quite another to suggest that such a weak judicial standard should be applied across the board. Yet, this is precisely what the NY Times is asking for: that Congress should enact laws denying to tens of millions of law-abiding Americans the right to own and possess entire categories of firearms and that, if anyone should challenge the constitutionality of such a law, then a court of competent jurisdiction should be required to apply a relaxed standard of review, namely ‘reasonable regulation,’ which would virtually guarantee that an unconstitutional law would pass constitutional muster when it should not and would not if challenged under the strict scrutiny test.As you may recall, Democrats attempted, essentially, to expand the NY Safe Act nationally in 2013. The "illustrious," Dianne Feinstein, Democratic Party Senator from California, introduced a bill, in 2013, in the Senate, to ban so-called “assault weapons” and so-called “high capacity ammunition magazines.” Her bill, “The Assault Weapons Ban of 2013,” included 157 kinds of firearms that the American public would no longer be able to lawfully own and possess. And Americans could no longer own and possess ammunition magazines that held more than 10 cartridges, if that bill became law. Feinstein's “Assault Weapons Ban of 2013" was meant to resurrect the earlier “Assault Weapons Ban of 1994,” which banned 19 weapons and, in fact, to expand upon “The Assault Weapons of 1994,” which expired in accordance with its sunset provision in 2004. Fortunately, attempts by antigun Senators to renew the law, failed. And, Feinstein’s new 2013 bill could never gain traction. It failed by a vote of the Senate, 40 to 60, in April of 2013. Now, through despicable hubris and subterfuge on the part of a newspaper, The New York Times, that newspaper is attempting to resurrect Feinstein’s own dead antigun bill, using “fear," together with sleight-of-hand, to encourage the American public to take action against its own best self-interest – in effect calling upon the public to contact Congress to bring Feinstein’s Monster, “The Assault Weapons Ban of 2013,” back to life in the form of an “Assault Weapons Ban of 2016.”If there is any doubt about the New York Times’ deplorable intentions actions, attacking the right of the people to keep and bear arms, the Times makes the point that: “certain kinds of weapons . . . and certain kinds of ammunition must be outlawed for civilian ownership. It is possible to define those guns in a clear and effective way and, yes, it would require Americans who own those kinds of weapons to give them up. . . .” This is essentially Feinstein’s: “Assault Weapons Ban of 2013.” Now, under a strict scrutiny standard of review, Feinstein’s resurrected antigun bill, as a draconian antigun law – essentially the New York Safe Act, applied nationally (assuming for purpose of argument that an assault weapons ban could succeed, at all, in 2016, when the Act failed in 2013) -- would almost certainly be struck down by federal courts, once challenged, and it would be challenged. But, under a relaxed “reasonable regulation” standard or under its functional equivalent, the “rational basis” test, such a law would more easily pass judicial scrutiny. This is why the New York Times presses for both an assault weapons ban and, at once, deviously, insists upon a relaxed legal standard of review, so that the Government can legally require Americans who own “certain kinds of weapons” – and one can fill in the blank as to what those weapons are, although the list would probably and eventually be extended to encompass all of them – to surrender them to government authorities and if such overreaching law were challenged in federal court, such challenge would almost certainly fail.The Times adds, piously, that Americans must give up their weapons "for the good of their fellow citizens.” In other words, the Times is saying that, for the “good” of the Collective, as defined by the puppet masters of Government, the sanctity and autonomy of each individual American must be forfeited. Of course, this will not make Americans safer. In fact it will make Americans substantially less safe as American citizens will be more prone to gun violence by sociopathic Islamic jihadists, psychopathic criminals and criminal gangs, and assorted lunatics. No doubt, the Times had substantial assistance from a phalanx of antigun lawyers to assist it when drafting its front page editorial.And, keep in mind that, if the New York Times is suggesting that, in the very act of dispossessing Americans of their firearms, thereby dismantling the Second Amendment, the Government is in some bizarre manner doing something beneficial for Americans, it is abundantly clear the Times is actually doing something quite contrary to the seemingly benign act of disarming Americans. The New York Times is actually targeting all Americans – hence, resurrection of Feinstein’s Monster. Clearly, the desire of the Times editorial staff is to target the millions of law-abiding, sane, rational American gun owners – not simply Islamic jihadists, criminals and lunatics. For, in this same front page editorial, the Times asserts, that any American who wants those weapons, which the Times calls “weapons of war,” must be corralled and considered criminally suspect. The Times asserts in the flamboyant, typically pious manner of the antigun zealot: “It is a moral outrage and a national disgrace that people can legally purchase weapons designed specifically to kill with brutal speed and efficiency. These are weapons of war, barely modified and deliberately marketed as tools of macho vigilantism and even insurrection.” Ergo, if an American would want such a weapon, much less insist on owning and possessing such a weapon, there must be something seriously wrong with that individual. Thus, The New York Times is targeting essentially all Americans. This is a frontal assault on the Second Amendment itself – a frontal assault on the exercise of a fundamental right of every law-abiding American. The only outrage and national disgrace here is The New York Times itself that would undercut our Free Republic and undermine the Bill of Rights that is the bedrock of our Free Republic.If the Second Amendment is frontally assaulted by the very Government -- the federal Government that is supposed to defend and preserve it, since it is a component of our Constitution – indeed a fundamental part of it -- then the People must defend it because a quiet coup d’etat of the federal government is already underway. Thus, The New York Times isn’t preventing insurrection, it is fomenting it, inviting it, daring Americans to take arms against the very federal Government that was created to serve the People, as that same federal Government now boldly asserts its dominion over the People – with the devout blessing of, and encouragement of, a member of the “Fourth Estate,” that the founders had themselves blessed with protection through the language of the First Amendment, guaranteeing the freedom of the Press. That same Press is now working with the federal Government -- not as a check against it but as a tool of it -- against the American people.The New York Times has, in its front page editorial, insidiously suggested, through a very thin veil, that any American who would fight to preserve that “peculiar” Second Amendment is an American who must be treated no differently than a lunatic, criminal, or Islamic jihadist. And, as if the incendiary nature of that front page editorial were not enough, the Times continues feeding the American public with copious amounts of nonsensical fodder inside that same Saturday, December 5, 2015 edition.In another article, appearing on page 5 of the Saturday edition of the New York Times, the newspaper cites to Hillary Clinton and President Barack Obama’s emulation of Australia’s gun laws. The New York times says, “President Obama has cited the country’s gun laws as a model for the United States, calling Australia a nation ‘like ours.’” The newspaper also mentions Clinton’s statement that “the Australian approach is ‘worth considering.’” Actually, Australia is anything but a nation like ours. In our article posted on December 1, 2015, in the Arbalest Quarrel, and which was also posted in Ammoland Shooting Sports News in condensed summary, we emphasized that Clinton’s support for a national gun confiscation program, if actually implemented, would be patently illegal. The mainstream news media did not, at that time, give wide coverage of her remarks at last month’s Town Hall Meeting in Keene, New Hampshire, as Clinton’s remarks were seen as too farfetched even for the mainstream news media, as her remarks show a callous disregard and disrespect for the U.S. Constitution – this coming from a person with legal training who was educated at an elite university – and most Americans would clearly take serious exception with those remark if they were subject to widespread coverage and her chances of securing the U.S. Presidency in 2016 would be jeopardized. The mainstream news media did not, apparently, wish to ruin Clinton’s chances. Apparently, the New York Times, as one mainstream news media source, has, almost two months since that Town Hall meeting, reconsidered and decided to fully support Clinton’s position on gun ownership and possession, extreme as it is and trust that, by adopting that extreme position, itself, make it appear less extreme to the American people. Of course, The Times is well aware that it is actively creating dissension in the American populace, but it is betting that most Americans will side with Clinton on Second Amendment issues. Supposedly, public addresses by the current U.S. President will also serve to make assaults on the Second Amendment less “off-putting” to most Americans. At least that is the grand design of the international globalists and socialists, who control the mainstream media and who pull the strings of many Government Officials, including those of the present U.S. President, Barack Obama.The Times newspaper is clearly setting the stage for a Clinton Presidency. But that Presidency will pave the way for the dismantling of the U.S. Constitution by way of a full frontal assault on the Second Amendment. A Republican Congress would never allow the Second Amendment to be defeated. But, assuming arguendo, Congress were to enact a law requiring confiscation of guns on an unprecedented scale, the law would not withstand judicial review under a strict scrutiny standard. The U.S. Supreme Court would be the last Branch of Government called upon to protect the U.S. Constitution. For, if federal courts applied a lesser standard of scrutiny to a massive national gun confiscation law, such as ‘reasonable regulation,’ that the New York Times is asking for, Congress would be defying the U.S. Supreme Court which has the last word on the constitutionality of a Congressional Act. For a massive gun confiscation scheme would effectively nullify the U.S. Supreme Court’s holding in the 2008 Heller case and, so, would be unconstitutional on its face. That, the majority of the U.S. Supreme Court would not allow.For this reason, in yet a third article appearing in the Saturday edition of the NY Times, there is posed the possibility of the U.S. President defying both Congress and the U.S. Supreme Court by imposing a massive gun confiscation scheme through executive order. Of course the NY Times would like to see this but even the Times recognizes that such an action by a U.S. President would be patently illegal. Still, if Barack Obama dared to do that – attack the Second Amendment head-on – such unilateral action by the Chief Executive, who is not reluctant to use executive orders would, in this instance, amount to an impeachable offense. But, if the Democrats take control of Congress and if Clinton secures the “Oval Office,” then Americans have much to worry about. For Clinton would certainly make several federal district court and appellate court appointments and U.S. Supreme Court nominations and such people, whom she would appoint to the federal courts and nominate to the highest Court of the Land would generally support unconstitutional executive orders, designed to weaken the Second Amendment. Ultimately, a Clinton Presidency could very well pave the way for de facto, revocation of the Second Amendment, if not outright repeal of it. Other rights under the Bill of Rights would fall like dominos.If the New York Times would manifest a concern over an assault on the First Amendment’s Freedom of the Press, it is disheartening that it would demonstrate such a callous disregard for the Second. The Bill of Rights is not to be thought of like so many flavors of ice cream. One doesn’t pick and choose which ones to approve of and which ones to disapprove of. Thus, one must ask the publishers and editors of the New York Times, who, in this front page editorial, have attacked the Second Amendment without even a semblance of restraint: "have you lost your minds?" They may think that the American public is behind them on this. The Times is clearly directing its attention to the frightened and ignorant among us, who see in a Clinton Presidency what the Times says the public needs: protection that only Big Government can provide. What the Times fails to see, though, is that, if most Americans perceive a threat to their sacred rights and liberties, they will defend those rights and liberties at whatever cost, not merely from lunatics, criminals, and foreign invaders, but from an overreaching government itself. Indeed, the threat to the rights and liberties of the American People posed by the federal government itself is significantly more dangerous – infinitely more dangerous – than acts of gun violence perpetrated by lunatics, criminals and, of late, from radicalized Islamic sociopaths. The New York Times is hoping and trusting that most Americans do not -- and will not -- realize what it is they are being asked to sacrifice in the name of feigned security.So it is that the real threat to America is becoming increasingly plain to most Americans. That threat is posed by powerful, ruthless individuals and groups – the international globalists and socialists – both inside this Country and abroad, who seek to take control of the federal government from the American People, to pave the way for an International Socialist State, and they are using, through the New York Times newspaper, the bugaboo of Islamic jihadists to frighten the American public into forsaking its sacred rights and liberties. The New York Times is obviously the sounding board that gives voice to the propaganda such powerful, ruthless individuals and groups seek to use against the American People – that the People will give up their rights and liberties, unknowingly, through subterfuge, possibly, and, if that fails, then through coercion. As these un-American interests so dare to bring America to its knees, there will be a day of reckoning. And that day of reckoning is fast approaching.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

12/1/15 12/1/15

CLINTON CLAMORS, ALL GUNS MUST GO!

The current leading Democratic Party contender for the U.S. Presidency in 2016, Hillary Clinton, who equivocates on most issues, has no qualms about letting the American public know precisely where she stands on the matter of gun ownership and gun possession in this Country. On that issue she speaks with self-assurance, even arrogance, expecting the public to accept her false, illogical pronouncements about guns and gun violence as self-evident truths, requiring neither legal analysis or logical validity, nor accurate statistical evidentiary support.Case in point: during a town hall meeting, held on a College Campus in Keene, New Hampshire, in October of this year, Clinton responded to a question posed by an elderly man from the audience who, apparently referring to the 1996 Australian Government gun confiscation program of which he was aware, asked, beseechingly, whether we could do that here and if not why not. Clinton clearly relished the question. In response she remarked that Canada, the UK, and Australia have all implemented national “gun buyback” programs. Remarking further on Australia’s 1996 massive gun buyback program, Clinton asserted, in her typical preachy, irritating way, that the Australian Government offered to purchase hundreds of thousands of “automatic weapons” at “a good price” and that the Government then “clamped down [on gun purchases] going forward.”The Government’s “gun buyback” program to reduce the number of firearms in the hands of the Australian populace was hardly voluntary. It was a carefully orchestrated compulsory, gun confiscation scheme, concocted by the Government, ostensibly in response to a lunatic’s April 28, 1996 shooting of 35 tourists in Port Arthur, Tasmania. Yet, Clinton deviously intimates that this clearly coercive 1996 Government “gun buyback” program was, in some sense, truly voluntary, since, according to Clinton, the Government offered to give to Australian gun owners a “good price” for their weapons. But, it stretches credulity to believe that hundreds of thousands of Australian citizens would voluntarily surrender to their Government for wasteful destruction, well over 600,000 perfectly functional firearms, even if one accepts at face value Clinton’s disingenuous remark that the Australian populace was actually getting a “good price” for them.Of note, Clinton didn’t bother to elaborate on what specific “automatic” weapons were surrendered to the Government authorities; nor did she bother to elaborate on the specific “good price” each Australian happened to receive for his or her weapon or weapons. Indeed, how would Clinton know the price any Australian received for a particular weapon? And, if the price were unknown, then it would be patently ridiculous to assert that Australians received a “good price” for those weapons.Indeed, Australians, who were compelled to surrender their weapons, may not feel that the Australian Government gave them a “good price” for their weapons. More to the point, one might stop to consider that, to the typical Australian gun owner, who thought it important enough to purchase and possess a firearm in the first place, no price is a good price for a weapon that had to be forfeited to the Government. For, once forfeited, Australians knew that they would never again be able, lawfully, to obtain suitable replacement firearms.Of course, no one at the New Hampshire Town Hall meeting bothered to weigh-in on these matters. And Clinton, for her part, did not trouble herself to offer argument in support of her statements, relying only on bald assertions, lest she defeat the poignancy of her rhetoric. And, this is the most aggravating thing about Clinton, even if one is drawn to her at all. She treats her adult, target audience as if she were speaking to grade school children. In her remarks to the public she routinely tends toward gross exaggeration, conflation, pontification, embellishment, evasion, falsehoods, over-generalizations, over-simplifications and outright lies. If one tries to pin her down, she refuses to respond, flamboyantly throwing her hands up in disgust.Clinton’s goal is securing the Oval Office, whatever the cost. Doing so would be the culmination of her quest for self-aggrandizement. In pursuit of that goal she forever engages in shameless self-promotion. Everything she says is carefully orchestrated for emotional effect, not for intellectual clarity. A Town Hall meeting is not, apparently, the place where the American public is expected to pose hard, well composed questions to this Democratic Party candidate for President of the United States; nor should the public expect detailed, cogent, intelligent answers. Clinton doesn’t relish a lively, frank, intelligent debate before the public – ever!Continuing to address the matter of “gun buyback” programs, at the Town Hall meeting in Keene, New Hampshire, Clinton said that communities in this Country have implemented such programs. She added that she would like to see a gun buyback program instituted on a national level, asserting, “I think it would be worth considering doing it on the national level, if that could be arranged. . . . I do not know enough detail to tell you how we would do it, or how would it work, but certainly your [the audience member’s point] is worth looking at.” And, in those candid declarations rest a critical slip-up to Clinton’s otherwise carefully framed, calibrated remarks concerning her policy position on gun ownership and possession in the U.S. For, as an attorney, Clinton must know that a coercive “gun buyback” program, on a national level, is patently illegal. Congress would never oblige. And, even if she, as U.S. President, would dare, through an illegal executive order, to implement such a vast gun forfeiture scheme, she must know that the result could invite insurrection. Perhaps that is why Clinton added, somewhat obliquely and lamely – although the damage had already been done – that she didn’t know how such a massive undertaking could be instituted here in the U.S., for the mechanism of a gun buyback is surely simple enough. Just ask the Australian Government. But, in the U.S., it is the public’s response to such a program that would be particularly problematic to Clinton and to other antigun proponents, both in this Country and abroad, who wish to dispossess Americans of their firearms. Clinton is evidently suggesting that she doesn’t know how she could get the majority of law-abiding American gun-owners to acquiesce to a quiet coup d’état by the Federal Government; for a massive gun confiscation scheme is exactly that: a takeover of the Federal Government from the People.The mainstream news media – apparently, and rightfully, concerned that members of the public who do not share Clinton’s views on gun ownership and possession – namely, the vast majority of us – might object to the idea of a massive gun forfeiture scheme carried out on the national stage – created a news blackout of her remarks, lest the American public find a Hillary Clinton Presidency too repugnant to even contemplate. The mainstream news media obviously realized -- even if Clinton, herself, did not immediately realize the serious ramifications of her blunder -- that a federal government seizure of millions of firearms from the hands of the American public means nothing less than the seizure of government from the People! Such an undertaking is unforgivable. It is legally and ethically indefensible even if seemingly tenable to an irrational antigun crowd, unable to truly appreciate what it would presage for Americans’ rights and liberties, and even if desirable to a predacious, calculating and scheming cabal of international socialists who would like very much to see the United States Constitution discarded and a Free Republic dismantled.Under our Constitution a national, coercive gun confiscation program is patently illegal, and rightly so. Such coercive confiscation programs that have taken place in Australia and in other commonwealth nations are only possible given those Countries' history. If one can appreciate the critical differences between Australia and the U.S., one can truly appreciate how outrageous – even insulting to the American public – Hillary Clinton’s emulation of the Australian Government’s coercive 1996 gun buyback program truly is.So, let us for a moment consider Australia’s history and compare it to our own. For, one must consider the context in which a massive gun confiscation program might occur that would make it feasible and legal in one Western Country, but not in another. It is legally defensible and feasible in Australia. It is not legally defensible here in the U.S., even if it were feasible, and it isn’t. Australia’s history as a Nation is wholly unlike that of our own. And the Constitutions of Australia and the U.S. are notably quite different.Before the American Revolutionary War, the United States was not a sovereign Nation. The “United States,” as such, did not exist. The Country was simply a loose collection of colonies – thirteen of them – dependent upon Great Britain. And it was Great Britain that exerted its sovereignty over these thirteen colonies. It took a war against Great Britain to completely sever that dependency. Unlike the United States, Australia, like Canada, never fought a war of independence from Great Britain. As an ex-commonwealth Nation, Australia, unlike the U.S., is still, in a real sense, a subject State of Great Britain. In fact Australia is described as an “autonomous” Constitutional Monarchy. Queen Elizabeth II, the reigning Monarch of Great Britain, is also Queen of Australia. She is not Queen of the United States. Moreover, Great Britain has a deeply entrenched class structure – consisting of the royalty and nobility at one end, and the commonalty on the other. A rigid class structure that is a mainstay of Great Britain’s history sees expression in Australia’s Constitution. The royalty and nobility do not trust the commonalty – the “ordinary people” – to keep and bear arms. This mindset exists in the Government of Australia. It is a carry-over of a time when Australia was a commonwealth of Great Britain.Consider, too, the framework of Australia’s Government in comparison to our own. Our Legislative Branch consists of a House of Representatives and a Senate. The Legislative Branch of Australia’s Government – the Parliament – consists of, one, the House of Representatives, two, the Senate, and, three, and most extraordinarily, the Queen, who is represented in Australia by a Governor-General.Certain members of Australia’s Parliament – its ministers – also function as members of the Executive. Thus, the British Queen not only has influence over Australia’s national government, she has both a law-making function in Australia and an executive function, the latter of which sees that her laws are carried out. In the U.S., which our founders created as a Free Republic, the Queen of England has no place in the Legislature Branch or in the Executive Branch of our Government. Just imagine if she did!So it is that Australia’s Constitution is framed as one of powers, existent in the Government itself, not in its People, who are treated more like subjects of “the Crown,” and less like citizens in their own right. Our Constitution, unlike that of Australia, is framed as one of rights and liberties preexistent in the People. And “We the People” are not subjects of the State, much less of a monarchy. The powers of our federal government are expressly limited and such powers that the federal government does have exist only by grace of the People, in whose hands true and ultimate power alone rests. But, since Australia’s Constitution is framed, in the first instance, as one of powers, existent in the Government itself, rather than as rights and liberties preexistent in the People, such rights and liberties that Australians might have are not preeminent. In fact, Australia’s Constitution does not speak of rights and liberties of the People at all. Try as you may you will find Australia’s Constitution devoid of a Bill of Rights, which means that, in Australia, there are no rights preexistent in the People and, therefore, no rights existent in the People, independently of a Government maxim that extends particular rights and liberties to the People. Properly speaking, Australians are not “citizens” at all. They are subjects of "the Crown." Thus, it should come as no surprise to anyone that a gun confiscation program, on an order of magnitude that took place in Australia in 1996 – and others that have taken place in that Country in the past and more that may take place in the future – are an anathema here. Clinton’s off-the-cuff remark, if effectuated, would be tantamount to an illegal usurpation of power by the federal government from the American People.What, specifically, precludes a national gun confiscation program from occurring in this Country that took place in Australia is established in the Preamble of the U.S. Constitution: “We the People.” The primacy of “We the People” over the federal government is particularly efficacious precisely because of the Second Amendment to the U.S. Constitution. Secondarily, the primacy of “We the People” is protected through a system of checks and balances within the federal government itself, as established in the Articles. But, it is the very existence of the Second Amendment, as a codification of a natural and inalienable right of the American People to keep and bear arms – "the right of the people to keep and bear arms shall not be infringed" – that precludes confiscation of guns from the hands of the People.The assertion of that right, etched in stone, serves two purposes. It serves, one, as an emphatic reminder to those who serve the People – the Congress, the Executive and its bureaucrats, and the Judiciary – that together comprise the federal government – that the sovereignty of this Nation rests in, with, and upon “We the People.” The American People will suffer no rule under any other nation or under any trans-national or international ruling body; nor will they be subordinate to the federal government. And, the assertion of that right in the Second Amendment to the U.S. Constitution serves, two, as a constant reminder to those elected to serve the American People and to those appointed or hired as functionaries to serve the American People that ultimate power rests in, with, and upon the People and that those limited powers the People have granted to the federal government are for no purpose other than to serve the People. The American People reserve to and for themselves alone, the absolute power to revoke any and all federal government powers if or when that government ever subverts the Will of the American People.In light of these facts it is exceedingly odd, even perverse, that the leading Democratic Party candidate for President in 2016, Hillary Clinton – who graduated from an elite law school in the United States – would dare emulate Australia’s gun buyback, confiscation program and that she would assert how much she would like to see a national gun “buyback” program played out in this Country since such an undertaking is patently illegal under our Constitution. In the assertion Clinton dares to express her blatant contempt for the American People.But there is more. Apart from the legal constraints, precluding a massive, coercive national gun confiscation program, there is another matter to consider. It is one that is rarely if ever discussed. It is the ethical theory upon which massive, coercive gun confiscation programs are grounded. The Australian Government argues, at least tacitly, that gun confiscation programs maximize “the good” for society, for “the Collective.” But, “the good” referred to here has nothing to do with crime reduction. It has everything to do with maximizing control over the citizenry, over the commonalty. This ethical theory is called utilitarianism. It is based on the notion that “the good” equals what is best for society, that is to say, what has “maximum utility” for society as a whole. But who decides what “the good” for society is? In Australia, it is the Government that decides. Moreover, whatever “the good” for society – for “the Collective” – is or is presumed to be, will, most likely, not be good for the individual in that society. And, therein lies the root problem with utilitarianism. The drafters of our Constitution did not subscribe to utilitarianism. Our Constitution, framed on the idea of limited government and on a Bill of Rights, incorporating the right of the People to keep and bear arms – a right that shall not be infringed – clearly expresses the sanctity and autonomy of the individual over the collective “good” of society. Ethics in this Country, as manifested in our Bill of Rights, is grounded on what is “morally right,” not on what maximizes utility (“the good”) for the collective. Ethical theories that are based on the notion of what is morally right are known as deontological theories, in philosophy. The two ethical theories, utilitarianism and deontology, are mutually exclusive; for, what is morally right and in the best interests of the individual in society is antithetical to what may happen to maximize “the good” for society as a whole, for “the Collective.” No better example of the conflict of the two ethical theories exists than that illustrated by massive, coercive gun confiscation programs, such as those created and implemented by Australia’s Government, on the national stage.Taking away the guns of the citizenry will enhance a government’s control over its citizenry. Enhancing government control, as perceived by the antigun crowd and by international socialists, equates with maximizing “the good,” maximizing “utility” for society, under the utilitarian ethical model. But, taking away guns from the law-abiding citizen does not enhance safety for that citizen, as an individual, in his or her own right. Rather, the individual is less safe as the individual is essentially defenseless against an armed psychopathic criminal or a lunatic. Moreover, the individual is harmed by that individual’s own government since an unarmed citizenry cannot adequately defend itself against the suppression of the citizenry’s rights and liberties. So, gun coercive confiscations programs are unethical under a deontological theory of ethics, grounded on what is “morally right,” even if such programs may, to some, appear to maximize “the good” for society as a whole, that is to say, for “the Collective.” And, in light of the Second Amendment to the U.S. Constitution, and given the primacy of “We the People” as set forth in the Preamble to our Constitution, such coercive gun confiscation programs – whether or not cloaked as seemingly benign gun buyback programs – are facially illegal.Hillary Clinton, as well as President Barack Obama, clearly holds to utilitarianism – an ethical theory that is repugnant to the sensibilities of our founders as reflected in the Constitution the Founders drafted for future generations of Americans. On both legal and ethical grounds the position of President Obama and Hillary Clinton on gun ownership and gun possession in this Country is unsound. It is little wonder, then, that, although voicing constant rancorous, vociferous objection to gun ownership and gun possession in this Country, they offer no sound argument in support of their position – only empty emotional rhetoric and platitudes – because sound argument in support of their dubious position on gun ownership and gun possession in America simply does not exist.The existence of our Bill of Rights is a testament to the fact that our founders did not hold to utilitarianism. Our Constitution is predicated on a moral code, not a utilitarian one. The criterion of moral conduct is based on what is right; not one that is based on a Quixotic quest to maximize utility for society, for the Collective. The Second Amendment is an assertion of the importance of individual responsibility; and morality is predicated on the right of the individual to take responsibility for his or her actions. Thus, the founders of our Republic believed all the more in emphasizing, exemplifying, and extolling the sanctity of and the moral worth of the individual, and significantly less on maximizing utility for an amorphous society – for “the Collective,” which effectively denigrates the individual. Gun confiscation/forfeiture programs illustrate distrust of government in its own citizens. The citizen is told that, for his or her own good, the citizen must be dispossessed of firearms. The philosophy of President Obama and Hillary Clinton exemplify the predominance of government might over individual rights and liberty; government control over the citizen, rather than citizen control over government; inculcating obedience to authority and subservience to the State, rather than enhancing freedom of expression, individuality, and personal autonomy.Americans, of late, suffer endless exhortations that they ought sacrifice their rights and liberties for the Societal Collective “good.” Strident remarks against gun ownership and gun possession should serve, especially, as a warning to Americans that if they do not take steps to preserve their Constitution, they will lose it. A Free Republic cannot long endure under a Constitution whose precepts are ignored and denigrated. And, a free People cannot long remain free if the rights and liberties of the individual are systematically trampled upon. It has become abundantly clear that neither President Obama nor Hillary Clinton really care.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

11/21/15 11/21/15

ON THE SUBJECT OF A NATION’S CONSTITUTION

It may seem of more interest to legal scholars than to those with a decidedly less academic bent to give serious consideration to the import of and, indeed, necessity for a Nation’s written Constitution, but no citizen of any Country should pass off an understanding of that citizen’s system of laws, considering it too complex a subject to devote substantial time to study. Still, in this day and age where the very concept of the ‘nation state’ has, for powerful and ruthless international socialists and socialist technocrats, outlived its usefulness and is seen as an anachronism that should be dispensed with, along with a nation state’s constitution, it is incumbent upon the citizen of a nation state to take a closer look at his or her nation’s constitution -- assuming a nation state has one at all -- to better understand what rights and liberties are also being dispensed with.In our own Country, where the expression, ‘isolationism,’ is today treated unkindly by the mainstream media, where the expression ‘Made in America’ has become archaic, and where our Country’s Bill of Rights is considered old and dusty, it behooves Americans now, more than ever, to take a very close look at the Constitution that the founders of our Republic created, and which our citizen soldiers have fought and died for in the years since, to preserve.There is pressure exerted by internationalists in our own Nation State who feel that our Constitution needs to be revised so that it “fits with” the reality of “globalization” and with “neoliberal economic principles” and with international jurisprudence – matters and notions truly antithetical to the continued existence of our Nation State as an independent and free Republic.As our Nation and other Western Nations are increasingly under attack by savages from the Middle East and from international socialists in the West who use the unrest in the Middle East to further their own agenda, citizens of all Western Nations -- and most importantly citizens of our own Nation -- ought to “think through” what they are being asked to trade: personal rights and liberties for seeming internal security.Americans, in particular, might reflect on the fact that our Fourth Amendment right to privacy is being slowly and systematically eradicated as surveillance becomes ubiquitous. Our First Amendment Right of Free Speech is being challenged by the agents of censorship who seek to ram “political correctness” down our throats. And, what of the Second Amendment. The right to keep and bear arms, unlike the notions of free speech and privacy, cannot be so easily molded and reconfigured like pottery clay by international socialists and their technocrats -- to be rendered “harmless.” The very physicality of firearms strengthens the reality of them so that their loss would be immediately felt by the American citizenry -- in a way and in a manner that the loss of the right to free speech and the loss of privacy may not be immediately felt.Now much is said, by those who wish to disarm the American public, of the harm that guns may cause to innocents, but virtually nothing is said of the necessity for an armed citizenry as the Founders of our Republic envisioned. Worse, for those of us who value the continued existence of our rights and liberties – much worse than any harm caused by guns in the hands of psychopathic, violent criminals and psychotic lunatics, that are but a tiny segment of the population, to be sure – is the lack of guns in the hands of an armed citizenry if it should ever have to deal with a federal government run amok. The Founders knew this and for that reason the inalienable right of the people to keep and bear arms was indelibly incorporated into our Constitution.Now our armed citizenry is sometimes compared to the armed citizenry of Switzerland and the armed citizenry of Israel. Those two Countries, Israel and Switzerland, do not suffer incessant attacks by gun grabbers. But, before we wax poetic over the virtue of Switzerland’s lenient attitude toward gun ownership, where able-bodied citizens are, in fact, required to keep firearms in their household, or, where, in Israel, its citizens are generally able to obtain licenses to possess firearms, relatively easily, including automatic weapons in some cases, one should understand that there is nothing in the Swiss Constitution that informs the Swiss citizen that he has a fundamental right to keep and bear arms. And Israel doesn’t even have a written Constitution.Even though Switzerland demands that its citizens be armed for defense of Country, Swiss law can change that requirement, literally overnight. So, the present maintenance of an armed Swiss citizenry must, then, be statutory, that is to say, not part of Switzerland’s Constitution. And, in Israel, a citizen must indicate a need for a firearm before a firearm is issued to that person – even if the application process is a simple and relatively painless. Moreover, Switzerland changes its Constitution quite regularly. The latest Constitution was adopted in 2000. And, Israel, for its part, has not, since its inception as a Nation State, in 1948, drafted a Constitution; nor has Israel indicated, to this day, any serious desire to do so.Keep in mind, too, that the population of Switzerland is or, at least, had been, at one time, essentially Germanic, homogenous, and the people are tied closely to their Country’s Government. In Israel, too, the population is essentially homogenous, since the majority of its citizens are Jews. So, a codification of a right to keep and bear arms may, perhaps, be deemed unnecessary and superfluous by the citizens of those Countries. But, in the absence of Constitutional language, enshrining a right to keep and bear arms, the idea that a codification of a right to keep arms is unnecessary would be given serious consideration if Swiss law and Israeli law were to change. Suppose the Swiss Government reversed its position on gun ownership by Swiss citizens – no longer allowing -- indeed no longer ordering -- its citizens to be armed, but, instead, requiring its citizens to surrender their firearms to Government authorities. And, suppose the Israeli government imposed stringent restrictions on gun ownership by Israeli citizens, making the process of obtaining a gun license extremely onerous. Neither Swiss citizens, nor Israeli citizens would appreciate that turn of events, but in the absence of a Constitutional guarantee, the citizens of those two Countries would have no legal recourse. Still the possibility that Swiss or Israeli attitudes toward gun possession and ownership would change in the foreseeable future is remote. Now imagine the likelihood of the average law-abiding American citizen continuing to own and possess firearms were the U.S. to adopt the Swiss Constitution and Swiss procedures for easily rewriting its Constitution. Or imagine the likelihood of the average law-abiding American citizen owing and possessing firearms were the U.S. to adopt the governmental framework of Israel which has no written Constitution.Now, the population in the U.S. – with millions of illegal immigrants, currently residing in the U.S., tens of thousands of whom are known criminals and probably drug cartel gang members – is hardly homogenous, unlike the populations in Switzerland and Israel. Nonetheless, American citizens emanating from many Countries – certainly the vast majority who came to this Country through legal channels – inevitably develop a love for this Country. They learn our Country’s history, study its laws, learn its language – English – even as they maintain, and rightfully so, their own unique history, and as they celebrate the traditions of their native Countries, in their homes. But, we are all Americans. And, what secures the rights and liberties of all Americans is our written Constitution – a remarkable Constitution that has stood the test of time. Most remarkably, our Constitution enshrines the importance of the individual over that of a central government. This was no accident. It was as the framers of our Constitution intended.The framers of our Constitution were, rightfully so, always suspicious of a strong central government and that fear is well borne out today as the U.S. Government has been taken over by plutocrats, whose desires and goals for the United States are not co-extensive with those of the People. Hence, the U.S. is the only Country on the face of the Earth that has codified the fundamental right of the People to keep and bear arms – a right preexistent in the People – not a privilege extended to the People by grace of the State as is the case in those Countries – those very few Countries that deign to permit, authorize and, in Switzerland, even require its citizens to keep and bear arms.Still, as weight of World Opinion is decidedly against an armed citizenry – especially an armed citizenry that exists by right, not by license – we, Americans, must be extremely and forever extra vigilant. The Second Amendment has become the bete noire not only of misguided, frightened sheep at home, but of powerful, ruthless, and cunning oligarchic international socialist groups abroad, such as those who designed and implemented the EU. And, they are hell-bent on world domination. Their principal goal extends to destruction of the very notion of the “Nation State.” These groups likely intend to reduce the American citizenry to abject penury – in mind and spirit, as well as in the American citizenry’s pocketbook.The existence of our Second Amendment is inconsistent with the objective of these groups. Through their agents in the U.S. Government, they can ignore out-of-hand, and by able sleight-of-hand, the precepts of the Fourth Amendment. And they can with a little more effort, shackle our Right of Free Speech as embodied in the First Amendment. But they cannot effectively dismantle or disregard the Second Amendment until or unless they can physically remove firearms from the hands of the U.S. citizens. That is an arduous task, as well the Founders of our Nation intended it to be.It is not, then, just a singular currency and a singular language that unites the American citizenry. It is the “Bill of Rights” as secured essentially by the “Second Amendment.” A strong central U.S. Government remains in check less by the three Branches of Government – for, as we have seen, these three Branches have been essentially subsumed into one – and more by the Second Amendment to the U.S. Constitution.And, the Second Amendment is the one clear, undeniable chink in the plan of these international socialist oligarchs for a one world government – a government ruled by them and by them alone. These international socialists know that they cannot adequately, effectively control Americans until they are able to control their access to physical firearms.In 1933 President Roosevelt – via executive order, ostensibly based on national emergency – demanded that every American turn in that American’s gold bullion and coins. And many Americans did so. Thus, the Government itself hoards most of the gold. How many Americans do you suppose would voluntarily turn in their firearms today if, by executive order, a President, at the behest of the puppet-masters – claiming national exigency or emergency – asked, or urged, or ordered every American to do so – that the Government itself may, alone, hoard weapons? Very few, would be our guess. Americans know that such executive order would be patently illegal. National exigency or emergency -- whether purported or real -- does not warrant -- can never legally warrant the trampling of the Second Amendment to the U.S. Constitution, so long as the Second Amendment exist. Americans certainly know this. Such an executive order would require not a surrender of arms but, rather, a call to arms![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

10/12/15 10/12/15

NASSAU COUNTY, LONG ISLAND, NEW YORK, APPLICATION FOR AN UNRESTRICTED, CONCEALED HANDGUN CARRY LICENSE

A ROAD TRIP WITH A HANDGUN: THE CASE FOR UNIVERSAL STATE CONCEALED HANDGUN CARRY RECIPROCITY

PART THREE: PRAGMATIC BASIS FOR UNIVERSAL STATE CONCEALED HANDGUN CARRY RECIPROCITY -- A LOOK AT ACTUAL APPLICATION LICENSING PROCEDURES IN THE SEVERAL STATES

SUBPART ONE: NASSAU COUNTY, LONG ISLAND, NEW YORK FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE

THE CIRCUITOUS, TORTUOUS ROUTE TO OBTAINING MULTIPLE UNRESTRICTED CONCEALED HANDGUN LICENSES AS EXPERIENCED BY OUR INTREPID CITIZEN, MR. RIGHT.

Mr. Wright is a resident of New York State, and, as we previously mentioned, in Part Two of this multi-part series article, he lives in Nassau County, but his corporate offices are in New York City. MrWright first sought to obtain a concealed handgun carry license for his hometown, in Nassau County, Long Island, New York. And, he believed, logically, that once he secured the license, the license would be valid through the entirety of New York, at least, if not valid in any other State. Simple enough, you might think. Simple enough, Mr. Wright thought. Mr. Wright was wrong in his assessment. As he found out, through some digging, New York does not issue one concealed handgun carry license that is good throughout the State for most individuals, unless they are retired, qualified police officers or retired, qualified federal law enforcement officers. Of course, current active-duty New York police officers and current active-duty law-enforcement officers do not require a license to carry a firearm. Their badge and ID is license enough to carry anywhere in the State.Mr. Wright soon learned that a concealed handgun carry license that is issued by the County of Nassau would allow Mr. Wright to carry a handgun concealed in Nassau County and in all Counties within the State of New York, but would not allow him to carry a handgun concealed in any of the five Boroughs of New York City. So, Mr. Wright first decided that, as it made sense for him at least, at the outset, to obtain a concealed handgun carry license in his hometown of Nassau County, he would begin there. If Mr. Wright wishes to carry a handgun anywhere within the five Boroughs of New York City, he would unload his handgun and place it in a locked container during a continuous and uninterrupted trip through the city’s five boroughs. Ammunition must be stored in its own locked container. Both the handgun and ammunition should be stored in the trunk of the vehicle. If the vehicle does not have a trunk, the locked containers must be kept the furthest distance as possible from your person. Of course, Mr. Wright did not know this at the time, but would learn just how complicated and convoluted the laws of New York City, in particular, are, once he became knowledgeable of the City’s firearms’ Rules.

THE PROCESS OF ACQUIRING A NASSAU COUNTY, LONG ISLAND, NEW YORK HANDGUN CARRY LICENSE

So, Mr. Wright went about the arduous task of obtaining a concealed handgun carry license in Nassau County. Mr. Wright learned that the Nassau County Police Department is the issuing agency authorized by law to grant handgun licenses in the county. Mr. Wright then learned that the holder of a valid license may carry a handgun loaded in all counties in the State of New York, except for all five boroughs of the City of New York. Mr. Wright could download an application and, as well, for a handgun license, but once completed, he realized that he personally had to go to the Police Department’s headquarters located at 1490 Franklin Avenue, Mineola, New York 11501 to file it. Mr. Wright also downloaded Nassau County’s “Pistol License Section Handbook.” During some off-time, during the weekend, Mr. Wright sat down to read the “Handbook.”Mr. Wright learned that the Nassau County Police Department issues six types of handgun licenses: one, “Target/Hunting License;” two, “Business License;” three, “Restricted Business License for Armed Guard & Armored Car Guard;” four, “Civilian Full Carry License;” five, “Retired Police Officer/Federal Law Enforcement Officer License;” and, six, “Retired Peace Officer License.”Mr. Wright reviewed the requirements for each type of license and the restrictions, if any, on the licenses. Mr. Wright found it easy enough to rule out several licenses. Since he resided in Nassau County, but his business was in New York, he decided that he would like to apply for a “Civilian Full Carry License.”Mr. Wright then reviewed the actual “PISTOL LICENSE APPLICATION INSTRUCTIONS” that he had printed out along with the “Handbook.” From a quick scan of the Handbook, Mr. Wright ascertained, immediately, that the Application did not provide any space allocation for setting down the type of handgun license the applicant wished to apply for. Mr. Wright wondered, then, whether the “Application” was, for all intents and purposes, an initial application and that, based on Mr. Wright’s responses, and on the basis of the Nassau County Police Department’s initial investigation of him, the Application would either be accepted for further processing, or his Application for a pistol license – any kind of a pistol license – would be summarily rejected. But, Mr. Wright, realized that his initial assessment was wrong, once, after a cursory inspection of the Handbook, he carefully read and memorized important details. He noticed that, on the very first page of the handbook, the NCPD had this to say:"Please note that while pistol licenses are processed as quickly as possible, the present processing time is approximately six (6) months. All applicants will be sent a notice as soon as their license is ready. PLEASE DO NOT CALL TO INQUIRE AS TO THE STATUS OF A PENDING APPLICATION."Mr. Wright’s gaze was drawn to a particular sentence that wasn’t in bold type: “All applicants will be sent a notice as soon as their license is ready.” This sentence proclaimed that the NCPD would, itself, determine what kind of license it would issue to an Applicant, if a handgun license would be issued at all. So, Mr. Wright reasoned, he would not have any choice in the matter after all. The next day Mr. Wright phoned the NCPD and asked to speak to an Officer with the “Pistol License Section” of the NCPD. Once connected to the appropriate Officer, Mr. Wright explained that he was reading through the handbook and he was aware that the NCPD issues six types of handgun licenses and that he is aware of only two that could feasibly apply to him: the “target/hunting license” and the “civilian full carry license.” Mr. Wright explained that he wanted a handgun for self-defense, adding that he was not interested in hunting or for plinking at targets. The Officer replied in an offhanded way that, if Mr. Wright qualified for a license at all, he would not be receiving a “civilian full carry license.” Mr. Wright wanted to know why that is. The Officer pointed out that very few of those are issued. Mr. Wright asked him if the NCPD obtains many requests for “civilian full carry licenses.” The Officer stated that, in fact, many New York residents do want full carry licenses but very few are ever issued. “Who,” Mr. Wright asked, “receives ‘civilian full carry licenses.” The Officer replied: “judges and politicians.” Mr. Wright thanked the Officer for his time and for his honesty and, once he hung up the telephone, he wondered if it would be worthwhile for him to spend the time, which would be considerable, and a sum of money, which would not be inconsiderable, to apply for a handgun license at all, in his own home town, if, at best, he would receive nothing more than a “target/hunting license.” Mr. Wright decided that he would complete the application process.In continuing to read through the application process, it was very clear to Mr. Wright that, if a person, was to receive a handgun license at all – any kind of license, that person would need to be literally squeaky clean. Indeed, one question required Mr. Wright to indicate whether he had received a traffic violation within the last five years and “traffic violation” included “traffic infractions.” This was what the Handbook set forth:“An applicant for the issuance of a pistol license must:

Provide two passport-size photos with their application;

Reside within the confines of the County of Nassau;

Complete the notarized form letter (found in the application package) which states all persons 18 years of age or older who reside with the applicant are aware applicant will be securing a firearm(s) in the residence.

Be at least twenty-one (21) 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;

Not have been discharged from the Armed Forces under dishonorable conditions;

Not have had a license revoked or be under a suspension or ineligibility order issued pursuant to the provisions of Section 530.14 of the NYS Criminal Procedure Law or Section 842-A of the NYS Family Court Act;

Not be an alien who is illegally or unlawfully residing in the United States;

Not have been admitted to the United States under a nonimmigrant visa subject to the exception in 18 U.S.C. § 922(y)(2);

Having been a citizen of the United States, never renounced his or her citizenship;

Be of good moral character;

Demonstrate the existence of proper cause or legitimate business necessity for the issuance of a license other than Target/Hunting or Retired Officer;

Note: The NCPD may alter a licensee’s classification at any time upon a finding that proper cause/legitimate business necessity no longer exists. Proper cause, like any license requirement stated herein, must be demonstrated each time the license is renewed and at any time upon request by NCPD Pistol License Section personnel. If proper cause is not proven, the license will be modified accordingly to reflect the appropriate classification.

Have no prior conviction anywhere of a felony or other serious offense, as defined in Section 265.00(17) of the NYSPL;

Have no prior conviction anywhere of a misdemeanor crime of domestic violence;

Disclose whether he or she has been the subject or recipient of an Order of Protection or a Temporary Order of Protection;

Not be a fugitive from justice;

Not be an unlawful user of, or addicted to, any controlled substance as defined in 21 U.S.C. § 802;

Not have been involuntarily committed to a facility under the jurisdiction of the Department of Mental Hygiene pursuant to Article 9 or 15 of the NYS Mental Hygiene Law, Article 730 or Section 330.20 of the NYS Criminal Procedure Law, Article 402 or 508 of the NYS Correction Law or Section 322.2 or 353.4 of the NYS Family Court Act;

Not have been civilly confined in a secure treatment facility pursuant to Article 10 of the NYS Mental Hygiene Law;

Not have had a guardian appointed for him or her pursuant to any provision of New York State law, based upon a determination that as a result of marked subnormal intelligence, mental illness, incapacity, condition or disease, he or she lacks the mental capacity to contract or manage his or her own affairs;

Not have a history of suffering from a mental illness;

Be free from any mental disorders, conditions, defects or diseases that would impair or affect his or her ability to safely possess or use a firearm;

Note: If an applicant is being treated by a psychiatrist or psychotherapist, he or she must obtain a letter of “no objection” from that caregiver.

Demonstrate that no good cause exists for the denial of such license.”

Mr. Wright could deduce from the nature of the questions in the handbook, which were mirrored in thirteen questions that required a simple “yes” or “no” answer, that a “yes” answer was sufficient grounds for immediate disqualification for any handgun license. And, if an applicant were to lie, in the hope that the NCPD might not, through its investigation, uncover the deception – well – the NCPD had that possibility covered as well, for the “Pistol License Application Questionnaire” set forth this:“ANY OMISSION OF FACT OR ANY FALSE STATEMENT WILL BE SUFFICIENT CAUSE TO DENY THIS APPLICATION AND CONSTITUTES A CRIME PUNISHABLE BYFINE, IMPRISONMENT OR BOTH.”Mr. Wright, who is a man of impeccable integrity and honesty would never lie; nor had he need to. He could honestly answer, “no” to each question. Mr. Wright’s main concern – indeed – Mr. Wright’s only concern was that he would likely not receive a “civilian full carry license.” Having reviewed both the Application Questionnaire and the “Pistol License Section Handbook” in depth, Mr. Wright, who was also a man who was methodical and meticulous in attending to details decided that if he were to enhance his prospect for obtaining a civilian full carry license, he should consult with both an attorney and with a professional organization adept at understanding and handling the intricate process of obtaining a handgun license.At the end of the day, after waiting the full six months to obtain a handgun license, issued by the NCPD, Mr. Wright obtained his handgun license: a “target/hunting license.” He was unable to obtain a “civilian full carry license” as issued by Nassau County, his own hometown. Had he been a judge or a politician, instead of a mere “businessman,” as the NCPD Officer explained to him, the outcome would likely have been different. Apparently, the NCPD has determined that the life of a politician or a judge is more valuable than that of an American citizen who is only a businessman. One can only wonder what the founders of this Republic would have said about that!If Mr. Wright wished to acquire a handgun license for self-defense, he realized that he would have to obtain one in another New York jurisdiction. As his business was located in New York City and, as his attorney and other specialists suggested that his opportunity for securing an unrestricted “full carry” license may actually be better once he applied for a handgun license as issued by the NYPD, Mr. Wright now used considerable energy and resources to obtain what he hoped would culminate in his first unrestricted full carry concealed handgun carry license. In the back of his mind Mr. Wright was more than a trifle upset that he – an honest, law-abiding American citizen and a successful businessman who has helped fill the State and City and County coffers with substantial tax dollars, much of which would go to the very police departments bestowed with the singular power to determine how much value to place on his life – should deny him the right of access to a handgun simply that he might exercise his right under the Second Amendment to the U.S. Constitution and deny him one of the most basic of human imperatives: the impulse to defend one’s own life.Would the NYPD treat Mr. Wright just as curtly? Mr. Wright aimed to find out. In the next subpart of this multi-series article, we will discuss Mr. Wright’s experiences involving his application for a New York City unrestricted, “full carry,” concealed handgun license.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

10/6/15 10/6/15

THE PRAGMATIC BASIS FOR UNIVERSAL CONCEALED HANDGUN CARRY RECIPROCITY AMONG THE SEVERAL STATES

A Roadtrip With A Handgun: The Case For Universal State Reciprocity

PART TWO: The Pragmatic Basis For Universal Concealed Handgun Carry Among The Several States

INTRODUCTION

This article is the second of a multi-part series. The purpose of this second article, and of those that follow, is to establish a cogent, coherent case for universal concealed handgun carry reciprocity based on pragmatic grounds. In our first article of this multi-part series, as posted on the Arbalest Quarrel website, we provided you with the legal and moral grounds for universal concealed handgun carry reciprocity and responded to the usual arguments that antigun proponents and zealots raise against implementation of concealed handgun carry reciprocity across the United States. In this segment of our series, and of those that follow, we provide you with the pragmatic grounds for universal concealed handgun carry reciprocity. We illustrate for you the travails encountered by one individual as he attempts to secure for himself a number of concealed handgun carry licenses from multiple jurisdictions that will allow him to protect his life and well-being with the most effective means possible – a handgun – as he travels in and through several States to conduct business. We look at: one, the actual police licensing division handbooks and application forms of particular jurisdictions; and, two, the actual procedures involved in applying for and securing a handgun license.

QUALIFICATION CONCERNING THE MANNER IN WHICH WE DISCUSS THE CONCEALED HANDGUN LICENSING APPLICATION PROCESS IN MULTIPLE JURISDICTIONS

In providing you with and discussing the content of actual licensing handbooks and application forms, and, in setting out the procedures and events that took place for our businessman, whom we employ as a test-bed for illustrating the onerous nature of handgun licensing generally and whose personal experiences form the basis for this exercise, we have taken certain liberties. First, the handgun licensing manuals or handbooks and application forms, that we point to and discuss at some length, are current as of the time that any particular article in this multi-part series is posted. We do this for a couple of reasons: One, firearms laws and procedures go through a process of change in the course of years – often, unfortunately, becoming more draconian and formidable, rather than less so as time passes. If we are going to explain to you the handgun licensing procedures of various jurisdictions, it would be more helpful to you, if we explain the state of firearms’ laws today, rather than yesterday. Two, at the time that the individual, who is the subject of this multi-part series, obtained his first few concealed handgun licenses, police department websites that make it easy to obtain handgun licensing handbooks and application forms were nonexistent. So a person – in this case, our businessman – had to allocate the time to drive to the appropriate police station to obtain the necessary handbooks and forms. And a personal visit often required him to wait in line, for an hour or more, simply to request a copy of the handgun licensing handbook and forms, that he needed, as these documents and forms were not “hanging on a rack” or “sitting on a table” – readily accessible to the public. Second, we have found it difficult to reconstruct the exact sequence of events that our businessman went through to secure his first handgun licenses and it is difficult to reconstruct the precise sequence of events involving renewal of those licenses. So, we have had to attempt, as best we could, to reconstruct those sequence of events. But, keep in mind that the important objective here is to make the point, demonstrably, that obtaining an unrestricted concealed handgun carry license is not a simple endeavor, to be undertaken casually.The process of obtaining even one concealed handgun carry license can be time-consuming, convoluted, and incredibly complex, and, for most of us, quite expensive. Moreover, at the end of the day, there is no guarantee that an applicant will obtain his or her prize. We would hazard a guess that police departments across the Country are, generally, reluctant to issue unrestricted, “full concealed carry” handgun licenses. And, the licensing officers are often given wide latitude and discretion in doing so. If, then, a person is refused issuance of a concealed handgun carry license, that person must go through the ordeal of a police administrative hearing, and, sometimes, administrative appeals that, ultimately, may very well go against the applicant, thus requiring a lawsuit after all administrative all appeals have been exhausted. And law courts, too, are not generally predisposed to find in favor of the applicant who desires a “full carry” handgun license. The standard, in many courts, is “abuse of discretion.” If the applicant fails to prove, through the proffering of evidence, that “abuse of discretion,” occurred in his case, that applicant will end up empty-handed, with nothing to show for the experience but frustration, some not unexpected anguish, and the loss of considerable time and money spent chasing shadows.

THE QUAGMIRE OF HANDGUN LICENSING PROCEDURES

At present, since universal concealed handgun carry reciprocity doesn’t exist, the law-abiding American citizen who wishes to exercise his natural right of self-defense as embodied in the Second Amendment must wade through a quagmire of laws, rules and procedures if he or she wishes to secure a concealed carry handgun license. The application process in the vast majority of jurisdictions across the Country is complicated, expensive, and time-consuming. The law-abiding citizen, who wishes to secure one or more handgun licenses for himself or herself, must exemplify the qualities of patience and fortitude. According to the NRA-ILA, only a handful of States, as of the posted date of this article, allow the law-abiding American to carry a handgun concealed, for lawful purposes.In the following segments, beginning with Part 3 of “A Road Trip with a Handgun” we provide you with a pragmatic look at what the typical law-abiding American citizen must contend with as he undertakes the arduous task of obtaining concealed handgun carry licenses in a multitude of States – licenses he needs that allow him to protect his life as he conducts business across State lines.In what follows, the identity of the businessman, upon whose experiences this exercise is loosely based, has been kept confidential in order to protect his privacy. We have also changed certain details of this person’s life, including the nature of his business, and specific points in time when he actually applied for the various jurisdictional pistol licenses. But, the situations that we discuss here – the hurdles this American citizen, and resident of Nassau County, Long Island, New York, has had to face and overcome to first obtain and then, periodically, maintain his concealed handgun carry licenses – are all true. The point of this exercise, in describing the complexity of securing concealed handgun licenses in several States, is to educate you and to sensitize you to the harsh realities involved in simply securing for yourself the means by which you might best exercise the basic right of self-defense that underlies the Second Amendment guarantee. In a very real sense the sacred right to keep and bear arms that is etched in high relief in our Bill of Rights – a Right that would not exist but for the blood that was spilled by Americans in forging our Nation – must be fought for yet again, but this time Americans must wage war against oppressive governmental bureaucracies that our Nation has devolved into. That this war must be waged at all is due entirely to the efforts of all too many State and federal Legislators and to the efforts of their backers. Antigun proponents and zealots do not recognize or have otherwise long-since forgotten that the average law-abiding American citizen has the right to defend his or her life and if that right is exist as something more tangible than vacuous words, it must be permitted real expression. And this means that Americans ought to be able to defend their lives and well-being with the best means available for namely, through that provided by a firearm.Universal concealed handgun carry reciprocity among the several States would go a long way to safeguarding and effectuating the import of self-defense as embodied in the Second Amendment.

BACKSTORY, CONCERNING OUR BUSINESSMAN

We refer to our businessman, here, by the name Mr. Wright. Mr. Wright has an impeccable, unblemished record: no arrests, no instance of drug abuse, no history of mental illness, no domestic disturbance incident and no physical handicap that would otherwise preclude the issuance of some sort of handgun license. In other words, there is nothing in our businessman’s past or present life and circumstances that could conceivably be ground for immediate rejection of issuance of a handgun license of some sort. That is to say, good cause for denying our businessman the right to possess a handgun or, for that matter, from possessing any firearm does not exist. But, our businessman doesn’t want a restricted handgun license because that would effectively preclude him the use of the weapon for self-defense in many environments, which is precisely why many jurisdictions are loathe to issues such licenses to average, law-abiding Americans. They do not want Americans having access to handguns for self-defense. Yet, our businessman seeks an unrestricted, concealed, “full carry” handgun license or permit for just that purpose: self-defense.But, to obtain an unrestricted, “full carry” license in many jurisdictions, such as New York, there is a higher standard that an applicant must meet. It is not enough to show that good cause does not exist for denying a person the right to possess a handgun. The applicant must show that good cause exists why that person should be permitted the right to carry a handgun, concealed, for the purpose of self-defense, in a public space – that is to say – outside of one’s home or business. In other words, the applicant must show why some aspect of that person’s life places that person in more serious danger than the average law-abiding American faces. That higher standard is very difficult to meet and often requires the assistance of a professional firm that specializes in firearms’ licensing and, in some cases, the expertise of an attorney may be required. And, those services are not cheap. They may very well cost the applicant thousands of dollars.Our objective is, then, to expose, in minute detail, just how difficult it is for most law-abiding Americans – other than those individuals who fall within certain exceptional categories, such as retired police officers, judges, and politicians – to simply exercise their natural right of self-defense as codified in the Second Amendment to the U.S. Constitution.In our next article, we get into the guts proper of what is actually involved in obtaining an unrestricted concealed carry handgun license. We begin by discussing the procedure for obtaining a “Civilian Full Carry License” in Nassau County, Long Island, New York. As Nassau County is our businessman’s hometown, he decided that he would obtain a Nassau County handgun license first. He would learn that a “Civilian Full Carry License” is not easy to come by. He would also learn that, once he received that license, a Nassau County “Civilian Full Carry License” would permit him to carry a handgun concealed anywhere in the State of New York, except for the five Boroughs of New York City. And our businessman, whom we will hereafter call Mr. Wright, will realize, shortly, that, one valid unrestricted concealed handgun carry license is, then, insufficient if one wishes to exercise the natural right of self-defense.So, join our businessman on his journey. Both he and you are in for quite a ride.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

8/11/15 8/11/15

Subverting the Second Amendment: The Subtle Road to Injustice

Antigun proponents and zealots are quick to qualify their remarks about guns so as not to openly disparage American citizens who cherish their Bill of Rights – all ten of them. “Yes,” the antigun proponents and zealots chant over and over again: “we need ‘commonsense’ gun laws, and of course we respect the Second Amendment.” The obligatory parenthetical remark, “of course we respect the Second Amendment,” hangs at the end of the phrase, “commonsense gun laws,” like a puppy dog’s tail. The gun grabbers “wag it” in our faces as if to suggest that American citizens who wish to exercise their Second Amendment right to keep and bear arms should be “sensible about guns” – as if we aren’t and, so, must be made to be. Antigun proponents and zealots always have the Second Amendment in the cross-hairs, ready to wound it, eventually to kill it, even as they proclaim no such intention to do so.The fact of the matter is that the antigun movement seeks to end civilian ownership of firearms. The movement’s entire reason for being is focused on that end. Second Amendment adherents know or should know that more “commonsense gun laws” mean, ultimately, nothing more than “total gun confiscation,” except for those individuals who happen to fall into some “small, select, special, trusted, elite class.” The goal of all antigun proponents and zealots is omnipresent; it never changes even as it remains tacit, unspoken. The American public should be under no illusion about that. The antigun mantra – “commonsense gun laws,” – is ultimately meaningless, senseless, and even nonsensical. It echoes hollowly in the void.The gun grabbers use that meaningless, senseless, nonsensical slogan, “commonsense gun laws,” every chance they get. Just recently, as reported by The Associated Press through The New York Times newspaper, President Barack Obama – a staunch advocate for dispossessing Americans of their firearms – also used that familiar, wearisome, tiresome refrain when he spoke to the BBC (the British Broadcasting Corporation). Obama apparently does not understand, or simply chooses not to understand or, perhaps, is utterly incapable of understanding the import of the Second Amendment to Americans, which the founders of the Republic bequeathed to Americans, to us – to cherish, to treasure, to hold most dear. The issue of gun control, President Obama says, has left him “the most stymied” . . . [and, he] “tells the BBC he is ‘frustrated’ that the U.S. does not have ‘commonsense gun safety laws,’ even in the face of repeated mass killings.”The BBC is, as most people know, a major British news outlet. Great Britain does not have anything comparable to our Second Amendment. Indeed, Great Britain doesn’t even have one specific document that might be considered a written Constitution, let alone anything remotely like America’s “Bill of Rights.” In a land whose social structure is grounded on class distinctions, well-honed and solidified after hundreds of years of existence, the British royalty and nobility would not trust, and never have trusted the British commonalty, with possession of firearms. Apparently, the British commonalty doesn’t see anything wrong with that. True Americans, however, do. So, Obama preaches to the choir over there. And that choir would like to sing Obama’s praises over here. “What is the problem with Americans, the British ask?” “Why must Americans own and possess firearms at all?” And, if they must possess firearms, what do they have against “commonsense gun safety laws.” The British might reflect on American history before suggesting answers to those questions. And, President Obama, for his part, would have done better to reflect on the import of and impact of his ‘commonsense gun safety laws’ message on Americans before he conveyed that message, strangely as he did, to the British.Without firearms, America would still be under British rule, subservient to and paying homage, today, to the Queen of England; pledging allegiance to the United Kingdom of Great Britain, under the Union Jack, rather than to an independent Democratic Republic under the Stars and Stripes – having nothing to do with the United Kingdom.Clearly, Americans do not need another set of so-called “commonsense” gun laws. And the inclusion, now, of the word, ‘safety,’ into the phrase, doesn’t alter that fact. Thousands of federal and State gun “safety” laws already exist. Why have another slew of them? What does it even mean to think we need more? Indeed, what must it mean to even suggest the need for more restrictive, oppressive, so-called “commonsense” gun “safety” laws but that the Obama Administration and like-minded individuals both inside and outside Government – and like-minded individuals and groups both inside and outside this Country – seek to divest average, law-abiding Americans of their natural right to own and possess firearms as guaranteed to them under the Second Amendment to the U.S. Constitution?Lest there be any mistake about the intention of the antigun groups in this Country and those abroad, an article in a recent Sunday Review Section of The New York Times, makes plain the agenda of these groups. Mike McIntire, a reporter for The New York Times, asks, “What Makes a Shooter Do It?” That question – the title of McIntire’s op-ed – is rhetorical. McIntire answers his own question, when, toward the end of his article, he says: “What makes someone seek solace in a spasm of bloodshed is perhaps unknowable.” Because no one knows for certain – because no one can ever really know for certain – who might resort to violence, McIntire is making a not so subtle suggestion that the better approach is to get rid of the guns now, from as many Americans as possible – namely, and particularly, from law-abiding Americans – so that any temptation to commit violence with guns in the future – the mere possibility that a law-abiding American might, even if improbably, commit violence with guns in the future – is substantially lessened, if not altogether removed.What McIntire and those like him are opting for, then, is a “Minority Report” type of society in America.In the film, “Minority Report,” starring Tom Cruise, a police force called “PreCrime” arrests citizens before they commit their crimes of murder. “PreCrime” uses three “Precogs,” quasi-human beings whose dreams predict murders to come, along with the individuals who ostensibly commit them. “PreCrime” then locates, arrests, charges, and sentences those people for crimes of murder they never committed – and, at the time of their arrest, had no inkling they would ever form an intention to commit them – but, apparently, according to the “Precogs,” would have committed murder if they weren’t prevented from doing so in the first place. The people, so apprehended by PreCrime police, are duly and brutally punished, and in a novel and most bizarre fashion, even though they never actually committed crimes of murder.Notwithstanding the problematical philosophical and legal issues of arresting, charging, convicting, and sentencing an individual for a crime before a person develops the very intention to commit the crime, the true import of the film has less to do with drawing attention to the legal and philosophical implications and ramifications of damning a person for commission of a crime before the fact, which is simply a plot device, and more to do with the oppressive control exerted by the Security State over the individual, presumably for the sake of preemption and prevention of violence.Yet, as bad as a “Minority Report” society is, what McIntire and other antigun zealots envision for Americans is just as bad if not worse than a “Minority Report.” Consider: A call for an eventual, total civilian gun ban, which, for gun proponents and zealots is on the horizon, is based on the notion that a person does not ever have to commit an actual crime with a gun to be, in a sense, guilty of having committed a crime with a gun. That is to say, the mere possibility that a sane, rational, responsible, honest, law-abiding American citizen may – at some indefinable point in the future – commit a crime with a gun becomes the justification – the Cause Cèlébre of the antigun proponent and zealot – for denying a person access to a gun in the present. Antigun proponents and zealots seek to remove the logical possibility of a crime ever being committed with a gun. They seek to accomplish that feat by banning, outright, the mechanism for that violence from the vast majority of honest, sane, rational, law-abiding American citizens – millions of average American citizens – who have never acted out a violent crime with a gun and who never would do so.The rationale implicit in the antigun proponents’ and zealots’ call for ever more restrictive gun laws is that every American – including and notably, the average, sane, rational, responsible, honest, trustworthy, law-abiding American citizen – is essentially, mystifyingly, bafflingly, ultimately, a cipher. Since no one can know for certain “who will go off the deep-end” at some indefinable point in the future – so their argument goes – it behooves the Government to suspect everyone of eventually resorting to violence. That, apparently, is the “safer” practice: the Government protecting people from people, themselves, and the Government protecting itself from the people.So, if one can harbor the intention to commit a crime, then one can feasibly act on that intention: preemption and prevention of even the possibility – however remote the possibility – of gun violence demand seizure of all weapons from virtually everyone. This is what the antigun proponents and zealots would decree; what they would ordain. And, this is the misguided philosophy of ethical consequential utilitarianism. The American citizenry would see ever more restrictions and controls placed on its movements, upon its actions. Surveillance becomes ubiquitous. The Government begins the process of dispossessing the American commonalty of its guns. The Government, through the mainstream media, controls the citizen’s thought processes. The mainstream media broadcasts, the same messages over and over again, in a hypnotic tone: “Guns are bad for you!” “You will hurt yourself with a gun!” If you see a gun report that immediately to the police!” If you see a family member or neighbor acting oddly, report that person’s actions immediately to the police!” “Stay tuned as we happily provide you with more commonsense safety laws.” This is a portrait of the “Minority Report” society that the antigun proponents and zealots seek to bring to fruition. This is the kind of society that the antigun proponents and zealots are working day and night on to manifest into Reality. If they succeed, the Bill of Rights, itself, becomes meaningless. It begins to crumble. One Amendment after another is formally repealed. The first Amendment to go is actually the Second, followed by the First. Everything the antigun movement seeks to accomplish in America is illustrative of totalitarianism. What they seek to do is the hallmark of the Security State, and it all boils down to suspicion of and paranoid preoccupation with an entire class of citizenry, virtually the entire citizen population, the commonalty of America. The apparent single-minded quest to quell gun violence hides, then, an insidious agenda: the alteration of our society – converting a free, Democratic Republic into a component of a unified international Socialist World Order. And, it all begins through subtle steps to dispossess the average, rational, sane, responsible, honest, trustworthy, law-abiding American citizen of that citizen’s firearms.But such massive undertaking cannot get traction – nor should it ever get traction in a Democratic Republic such as the United States. And it won’t gain traction, so long as this Country remains a Democratic Republic – a Democratic Republic in fact, not merely in name.At present millions of American citizens own firearms. They are sane, rational, responsible, honest, trustworthy, law-abiding members of society. The number of people who actually resort to violence with guns – who are not, otherwise, from the get-go, either hardened, career criminals on the one hand, or psychopathic or psychotic killers, on the other – is virtually negligible. Yet, the antigun zealots, and the antigun Globalists, and the International Socialist elites – who see no saving grace for Americans’ Second Amendment in a future Socialist World Government – seek to impose ever more restrictive gun laws on millions of sane, rational, responsible, honest, trustworthy law-abiding American citizens. And, if the antigun proponents and zealots, and like-minded groups and individuals such as antigun Globalists and International Socialist elites succeed, the Bill of Rights would be at its end.The Second Amendment is particularly problematic and vexing to antigun proponents and zealots, to antigun Globalists, and to International Socialist elites – to such people and groups both inside this Country and outside it. As they see it, the average, sane, rational, responsible, honest, trustworthy, law-abiding American citizen must be controlled – just as much as the career criminal or the raving lunatic must be controlled if, for no reason, than that there exists millions of them. And, who knows when any one or more of those millions “will turn.”And, so, it is seen as necessary to remove the gun from that average, sane, rational, responsible, honest, trustworthy, law-abiding American citizen American citizen before the fact so that the mere possibility of “acting out” a delusional violent fantasy with a gun – however remote that might be – will be impossible. And, as nothing remotely like America’s Second Amendment exists anywhere in the World today – nothing remotely like it exists that cedes such power to the average, sane, rational, responsible, honest, trustworthy, law-abiding American citizen – that power must be constrained. The Second Amendment must be dismantled. Further, all memory of the Second Amendment must eventually be erased. That Amendment must be consigned to the dustbin of history. And the history behind it must be rewritten.Make no mistake. The dream of the antigun zealots in this Country and their many counterparts elsewhere in this Country and in the world at large would be a nightmare for Americans. If there is anything the law-abiding American citizen ought, rationally, to fear more than hardened criminals getting their hands on guns and harming someone or, if there is anything the law-abiding American citizen ought to fear more than a few paranoid lunatics getting their hands on guns and harming anyone, it is the presence of a powerful, paranoid Government operating without Constitutional restraint, clamping down on an individual’s every thought, action, and deed, imposing its will on everyone.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

8/4/15 8/4/15

WHO’S PACKING IN NEW YORK CITY?

If ever there existed a testament to the need for universal concealed handgun license reciprocity, New York City is glaring proof of it. Yesterday, August 3, 2015, an honest U.S. citizen, Marine Corps veteran, resident of Texas, and mother of three, was visiting the 9/11 memorial with her friend in the City, when she was arrested for carrying two handguns. The story appeared, yesterday, August 3, 2015, in the New York Post, under the title, “Pistol Packin’ Mama Under Fire.” The person arrested, Elizabeth Anne Enderli, does possess a valid concealed carry permit. But, Mrs. Enderli’s concealed carry pistol permit was issued in Texas, not in New York City. Her Texas concealed carry license isn’t recognized as valid in New York City or, for that matter, anywhere else in the State of New York. Mrs. Enderli didn’t know that. And, since she doesn’t also possess a valid, unrestricted New York City handgun concealed carry license, she found herself spending the night in jail rather than in her hotel room. An otherwise law-abiding American citizen became a de facto law-breaker simply because she was unaware of the impact of New York City’s restrictive gun laws.Mrs. Enderli was subsequently arraigned on weapons possession charges. If convicted, she could face prison time. Is this just a quirk? Unfortunately, the answer is “no.” What happened to Mrs. Enderli, could happen to any honest and otherwise law-abiding American citizen, and, in fact, has happened to other honest, law-abiding American citizens – with disturbing regularity.But, this should not happen and need not happen. It would not happen if each State recognized the validity of a concealed handgun carry license issued by other States. Curiously, according to the New York Post, Texas does recognize the validity of New York firearms’ licenses, and has done so since 2006, even as New York does not recognize the validity of Texas firearms’ permits. This might explain why Mrs. Enderli thought, reasonably enough, although wrongly, that her Texas concealed handgun carry permit was valid in New York. Handgun license reciprocity ought not to be so blatantly one-sided. State reciprocity is not, we see, always reciprocal.Many States, such as New York, have archaic, draconian, and mind-numbingly convoluted firearms’ laws. These laws are clearly aimed at the average, law-abiding citizen, not the criminal, for they do virtually nothing to prevent criminals from obtaining guns and committing crimes with them. This is clear, obvious, and beyond reasonable refutation.But, the irrationality of firearms’ laws such as those of New York does not lead to the repeal of them because the goal of these laws has little if anything to do with reducing crimes committed with guns – and, so, the laws, not surprisingly, fail. Restrictive firearms’ laws have more to do with disarming the honest, law-abiding American citizen – and, so, the laws, on that score, not surprisingly, tend to succeed. New York’s firearms’ laws were, clearly enough, not designed – were never really designed – to encourage the exercise of one’s Second Amendment right of self-defense. They were designed, rather, with the opposite goal in mind: to discourage the exercise of that right. But, why is that?For honest American citizens, like Mrs. Enderli, who wish to exercise their natural right of self-defense, it is hardly welcoming to say: “if you wish to visit New York City, leave your firearms at home; your out-of-State handgun license is not valid here; and, if you feel that you must carry a handgun, then you would do well to secure an unrestricted New York City handgun carry license.” That license is, by the way, exceedingly difficult to obtain. An applicant for an unrestricted concealed handgun carry license must go through a lengthy, arduous, and expensive investigative process. And, after all is said and done, that applicant may, more often than not, end up empty-handed anyway because the modus operandi is "may issue," not "shall issue." In the State of New York – and even more particularly in New York City – the law-abiding American citizen does not have the inalienable right to carry a handgun, as guaranteed by and through the Second Amendment, only the privilege to do so, as warranted by and through government. And, as a privilege to carry a handgun, that privilege can be revoked at any time.So, once again, we ask: "Why is that?" Why does New York City – and the State of New York, for that matter – make it so difficult for the average, honest, law-abiding citizen to secure for him or herself a concealed handgun carry license merely to exercise the natural right of self-defense as embodied in and guaranteed by and though the Second Amendment to the U.S. Constitution? Why does New York City and the State of New York wish so fervently to discourage the exercise of a fundamental right? Is this due to the irrational notion that a firearm in the hands of the law-abiding citizen is more to be feared than a firearm in the hands of a criminal? Given the nature of New York’s draconian firearms’ laws – directed more to oppressing the law-abiding U.S. citizen than effectively restraining the criminal – one could reasonably draw that conclusion.Consider: the law-abiding American citizen and motorist needs one and only one valid driver’s license, issued by any one State, to secure the privilege of driving a motor vehicle lawfully in any other State. It is extremely odd that the same law-abiding American citizen must secure multiple State-issued concealed handgun carry licenses and permits, merely to exercise his or her natural right of self-defense, as sanctified in the Second Amendment.If the one license is so easy to obtain but amounts merely to a privilege proffered by a State government -- which that government may refrain from granting to a citizen because the granting of a license to drive a vehicle on public roads is a government sanctioned privilege, not an inalienable right -- why is the other so difficult to secure, when the right of self-defense – the effective right of self-defense that a firearm provides – is so much more than the mere privilege to drive an automobile on a public road? The right of self-defense is a basic and fundamental right existent in the individual and, therefore, a thing that neither a State Government, nor the federal government, can justifiably deny to a citizen, absent sufficient and good cause for doing so.For those readers who are interested in the issue of handgun carry reciprocity, we explain the merits of universal concealed handgun carry reciprocity, and respond to those who criticize it, in our article, “A Road Trip with a Handgun: The Case for Universal Handgun Reciprocity,” posted on July 12, 2015. In future articles we explain just how arduous, time-consuming, and expensive it is for a law-abiding American citizen to secure concealed handgun carry licenses and permits from a plethora of States.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

7/22/15 7/22/15

A GUN AT RISK: THE CRIMINAL’S ADVANTAGE

INTRODUCTORY THESIS

We begin this article with three statements.ONE: The life, safety, and well-being of every law-abiding American citizen are sacrosanct and inviolate. TWO: The best means of securing one’s life, safety and well-being against assault is by having immediate access to a firearm. THREE: Since a firearm provides a law-abiding American citizen with the best means available to protect his or her life, safety, and well-being, that person ought to be able to have immediate access to his or her personal, lawfully owned firearm at all times and in all places for the stated purpose of securing that person’s life, safety, and well-being, consistent with the inalienable right to keep and bear arms as codified in the Second Amendment to the U.S. Constitution and consistent with the holdings of United States Supreme Court in the 2008 Heller case and the 2010 McDonald case. The first statement is a subjective assessment, grounded on the notion of the sanctity of each and every law-abiding American citizen as a unique, rational, discerning, and responsible individual in his or her own right. This assessment is taken as self-evident, true, sans need of justification, vindication, or independent proof. Antigun proponents would not likely deny the import of it, but, their “hive” mentality and “swarm behavior” ethos invariably betray their clear aversion to it. The second statement is a testable hypothesis. Antigun proponents may deny the truth of it or otherwise deny the singular importance of it, but, time after time, it has been shown to be demonstrably true. The third statement is a normative prescription, a statement asserting appropriate, correct moral conduct. It is a statement that no antigun proponent will ascribe to because antigun proponents denigrate firearms and, as well, denigrate those members of the law-abiding American public that wish to exercise their inalienable right as clearly and cogently expressed in the Second Amendment to the United States Constitution. The notion that only small, select, special groups of people within the Country, such as police officers, ought to be allowed access to the best means available to secure their own life, safety, and well-being is unconscionable. We ask that you keep these three statements in mind as we run through the following four scenarios.

SCENARIO ONE

A female New York City police officer “. . . who is 41 and has been on the force for 10 years, was taking an elevator down to a parking garage at Bronx Boulevard and 226th Street around 5 a.m., preparing to drive to her command, which is in northern Manhattan. She was carrying her gun in her purse. . . . As soon as she stepped out of the elevator, a man thought to be in his late teens or early 20s ripped a gold chain from around her neck and grabbed at her purse. He demanded her wallet. ‘She fought him, and they were going back and forth in a tug-of-war type of situation. . . .’” “The officer reached into her purse to try to get the firearm, a 9-millimeter semiautomatic handgun . . . . But the man punched her in the face two or three times, causing her to lose control of the gun [but, actually] She never did have control of the gun [because it was in her purse, not on her person]. He stole it and fled on foot. . . .”For those of you who have kept abreast of the news, the above scenario, as quoted, describes an actual situation that occurred on Wednesday, July 15, 2015, as reported in The New York Times newspaper, under the title, “Off-Duty Police Officer Robbed of Gun After Attack.”The police officer, as reported, was physically injured and suffered the disgrace of having lost her handgun because she did not follow police protocol. That is to say, she did not have the handgun “on her person.” “The Patrol Guide, the Police Department’s voluminous policy manual, spells out the rules for how officers should ‘safeguard weapons at all times.’ Do not carry firearms in briefcases, handbags, fanny packs, hip packs, tote bags, knapsacks, paper bags or similar devices.’” The guide sets forth that a police officer is to “‘carry firearms, on the person, in an appropriate holster specifically designed to afford maximum protection against loss of weapon.’” The reason for this is clear: “Never losing your gun is among the most basic obligations of police work. . . .” NY Times, “Off-Duty Police Officer Robbed of Gun After Attack.”The scenario played out for you here as a real-life drama aptly illustrates the reason for the New York Police Department’s “Patrol Guide” policy and places the rationale for it in high relief. Had the police officer, in the above scenario, complied with Police Department patrol guide policy, by keeping her weapon in an appropriate holster on her person, she likely would not have been injured by her assailant. Moreover, she would have been in the best position to retain possession of her weapon.

SCENARIO TWO

In this scenario, the police officer complies with New York City Police Department policy. The officer wears her weapon on her person in an appropriate holster. As before, once the police officer walks from the elevator out into the parking garage, the assailant is waiting for her. The assailant rips the gold chain from around the officer’s neck and grabs at the officer’s purse. But this time the officer does not fight to retain control over it. She doesn’t have to because her weapon isn’t in her purse; it’s in an appropriate holster on her person, where it belongs. So, once the assailant grabs her purse, the officer immediately lets go of it and reaches for her weapon that is in her holster – the weapon that is where it’s supposed to be; the weapon that is immediately accessible to her; and a weapon that is in a place that offers maximum protection for retention against the possibility of theft, for the weapon is in the officer’s exclusive control.Now the assailant has a choice. He may comply with the officer’s order to cease his attack and submit to arrest or he can continue to attack the officer. If he continues his assault on the officer, the officer will have every right to shoot him, in self-defense if she feels, one, that her life is in danger and, two, that she can do nothing to alleviate that danger to her life, safety, and well-being other than to shoot her assailant. And, if the officer does shoot her assailant, the assailant may very well die. Whether the assailant dies or not, however, he will be incapacitated. The officer is likely to be commended for her action. She may very well receive a medal. Perhaps she will be promoted.But, in the previous scenario – the situation that actually occurred – the officer failed to adhere to Police Department policy. She did not protect her weapon. For her troubles, she received serious injury that landed her in a hospital. She suffered the loss of her weapon. Worse, she suffered the disgrace of loss of her weapon to a criminal, her assailant. And, to add to her woes she now faces the prospect of possible disciplinary action.Consider, now, two more scenarios. In these last two scenarios we will assume the sequence of events is essentially the same as set forth in Scenarios One and Two but with an important wrinkle. The party who is assaulted isn’t an active duty female police officer, but an average, law-abiding American female citizen, and resident of New York City.

SCENARIO THREE

We will assume, further, that this female American citizen and resident of New York City, holds a valid New York City handgun license. The license she has been issued is a restricted “Premises License.” She is on her way to a gun range for shooting practice, and her semiautomatic handgun is tucked away in a locked handgun container, unloaded. She carries two ammunition magazines in a separate container – her purse. Her purse is slung over her left shoulder. She carries the handgun container in her right hand. She wears a gold chain around her neck. She gets off the elevator, walks into the parking garage, and is immediately accosted by a male assailant. He tears the gold chain from around her neck and then demands the wallet that is in her purse. She gives the assailant her purse. The assailant notices the small case that she holds in her right hand and he demands that she give up the case to him as well.The assailant may or may not know that the case holds a real handgun although the case is a typical small gun case that the party in this scenario purchased from a licensed dealer at the time she had purchased her handgun; and the case is specifically designed to hold a handgun. Our citizen does not wish to part with the gun case for obvious reasons. And she refuses to do so. The assailant thereupon grabs the case. Our citizen and the assailant both grapple for possession of it. The assailant punches our citizen in the face. She cannot hold onto the case. The assailant runs away with a gun case carrying a semiautomatic handgun, along with a purse holding two ammunition magazines that contain cartridges. At the hospital, where our citizen and New York City resident is being treated for her injuries, she informs the police that her assailant has stolen more than a purse, containing her cosmetics and a wallet filled with cash. The assailant has stolen much more. He has stolen her handgun, along with two ammunition magazines. Once our New York City resident is sufficiently able to communicate with the License Division’s Incident Section, she informs the Incident Section of the loss of her handgun and ammunition magazines. She subsequently suffers the suspension of her handgun license, pending the outcome of an investigation into the incident. She wants to obtain reinstatement of her Premises License quickly so that she may purchase a new handgun for the purpose of personal protection on her premises. But, the License Division’s investigation of the incident move’s ahead at a snail’s pace. It may take the License Division six months or one year to conclude its investigation of the incident. It may take even longer. The New York Police Department’s License Division is not bound by time constraints. Our American citizen and New York City resident may never see reinstatement of her Premises License. And, if that is the case, she will not be able, lawfully, to purchase another handgun from a licensed dealer of firearms because she requires a valid New York City handgun license to do so. The License Division has complete discretion in this matter.

SCENARIO FOUR

In this scenario our citizen and New York City resident, who holds a valid “Premises License” leaves her apartment suite, carrying her handgun, loaded, in a holster, concealed on her person. The holster isdesigned for the semiautomatic handgun she owns and possesses. She walks out of the elevator into the parking garage. She is accosted by an assailant. He tears the gold chain from around her neck and demands her wallet. She refuses to relinquish her purse that contains her wallet. The assailant thereupon grabs her purse. She fights to protect her purse. The assailant punches her in the face. She releases her purse. The assailant continues to assault her. She feels at this very moment that her life is in imminent danger. She sees no one around her in the parking garage that might run to her assistance, and she sees no way to retreat from the physical assault. She firmly believes the assailant intends to kill her. She thereupon removes her handgun from the holster and fires two rounds into the assailant’s chest, killing him. At the hospital, where our citizen and New York City resident is being treated for serious injuries as a result of the assault, she is unable to promptly notify the License Division’s Incident Section of the discharging of her handgun and the circumstances related to the discharging of the handgun. But, she does relate the circumstances of the discharging of her handgun to the police officer whom she first comes into contact with at the hospital. That police officer, on her behalf, due to the inability to immediately notify the License Division’s Incident Section of the incident, herself, relays the incident to the License Division’s Incident Section. Upon her release from the hospital later in the day our citizen, in this scenario, surrenders her handgun and all other firearms she happens to own and possess, as directed, to the License Division. Our citizen and New York City resident is arrested and charged with the crimes of unlicensed concealed carry of a firearm and unjustified use of deadly force because, in accordance with the limitations imposed on her handgun license, she was unjustified to have a handgun on her person. She is arraigned and fingerprinted. Her “Premise License” is revoked.The ultimate disposition of the case will be determined by the City Prosecutor. One thing, however, is certain. The prospect of reinstatement of this citizen’s “Premises License” is, at best, dim. If she ever does undertake reinstatement of the handgun license, she should know that the process of reinstatement will take substantial time, will require no little effort on her part, and will come at substantial financial cost in terms of legal fees.

ANALYSIS

Obviously, what is good for the goose is not also good for the gander. For, while the New York City Police Department “Patrol Guide” sets forth clearly and concisely the manner in which New York City police officers should carry their handguns – namely, on the person and in an appropriate holster specifically designed to afford maximum protection against loss of weapon” – the Rules of the City of New York, that apply to virtually everyone else, set forth quite different requirements.38 RCNY §5-01 sets forth several categories of handgun licenses for civilians. One category is the “Premises License,” for residence or business. This is considered a “restricted” license. For an American citizen and resident of New York City who holds a restricted “Premises License,” 38 RCNY §5-01 says “This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately.” That licensee cannot lawfully carry a handgun, concealed in a holster. What this means is that New York City does not permit the holder of a “Premises License” to utilize his or her handgun for self-defense. That person must not carry the firearm outside of the licensee’s residence or business at all. Again, the firearm must be transported, unloaded in a locked container. But, as we have just seen, if a New York City police officer carried a handgun in such a manner, that officer would be doing so contrary to Departmental policy. For, to carry a handgun in such a manner does not provide maximum protection against theft, apart from being absolutely useless to the officer in the event of assault on officer’s person.Why, then, would New York Rules absolutely prohibit the carrying of a firearm in a holster on one’s person for most civilians who are issued handgun licenses when they are out in public? Does the carrying of a handgun in a locked container provide the licensee with any more protection against theft? Hardly! If a criminal is able to grab hold of the locked case, he will find a way to open it, and he will gain unlawful access to the gun that rests inside it. Indeed, why should the City of New York promulgate rules establishing a confusing, irrational set of distinctive requirements and restrictions for a plethora of handgun license types, anyway?Consider, too, the carrying of a handgun – on the streets of New York City or in a subway – in a case specifically designed for transportation of a handgun alerts a would-be thief to the fact that the container does contain a real handgun. The licensee who carries a firearm in such a manner might just as well carry a plaque as well, proclaiming to the world that the licensee is transporting a firearm. Who would disagree with the soundness of that assertion? Does not use of a handgun container, to stow a handgun while out in public, invite the theft of that handgun? The NYPD thinks so! The NYPD has said so, in its “Patrol Guide.” Moreover, why should a firearm’s licensee’s natural right of self-defense be compromised through constraints placed on the use of the best means available to secure it – a firearm? Why must the law-abiding American citizen and New York City resident suffer the imposition of limitations on the right to secure his or her life, safety, and well-being within the confines of his or her particular residence or place of business?Understand, the New York City License Division will not issue any kind of firearm’s license to a person unless that person meets stringent standards as established by the State of New York. Those standards are set forth in NY CLS Penal Code §400.00. Yet, the City of New York establishes a ludicrous hierarchy of licenses, notwithstanding that a person meets the requirements for issuance of a handgun license at all. And, while a holder of a so-called “Premises License” can, transport a handgun in public, on occasion – namely and particularly when going to and from a target range – and, then, only unloaded in a locked container, thereby positively inviting theft of the handgun and, at one and same time, denying one the use of the handgun for self-defense.The New York Police Department would agree – indeed, must agree – that the probability of loss or theft of a gun transported in public in a container of any sort – especially a “locked container” – increases exponentially for anyone – police officer or civilian. Clearly, it is not the preferred way to safeguard the weapon for a police officer. Why, then, would transportation of a handgun in a locked container be the preferred way – in fact, the only lawful way – for most other law-abiding American citizens and New York City residents to tote a handgun in public – that is to say – for most other law-abiding citizens and residents of New York City who happen not to be New York police officers or New York peace officers, or federal agents or who, otherwise, do not belong to another special class, such as courtroom judges, to whom unrestricted licenses are routinely issued? Why would the average law-abiding American citizen and New York resident be required to transport a gun in a locked container, when in public, that – as the NYPD has reasonably concluded – practically begs to be stolen when it is the case that police officers, for their part, would face a disciplinary hearing for doing the very same thing?The drafters of New York City’s firearms’ Rules, either through design or oversight, invite the loss or theft of a firearm. They deny a law-abiding citizen and resident of the City of New York the best means available both to secure the firearm from theft and to protect that person’s life with it.

AND WHAT HAPPENS IF LOSS OR THEFT OF A FIREARM DOES OCCUR?

Suppose loss or theft of a firearm does occur. Under 38 RCNY §5-22(b)(1), “the licensee shall make an immediate report to the License Division-Incident Section, telephone #(212) 374-5538, 5539, and to the precinct where the incident occurred." Failure to do so will, in accordance with 38 RCNY §5-22(a)(15), result in suspension or revocation of the license.

NEW YORK FIREARMS’ LAWS ARE ILLUSTRATIVE OF DUPLICITY, HYPOCRISY, AND IRRATIONALITY

So, where does that leave us? We are left with a double-standard in the matter of firearms ownership and possession. There is a standard that exists for some law-abiding American citizens such as police officers and there is a standard that exists for average law-abiding American citizens – the hoi polloi – those members of society who are not police officers or who are not members of any other special class. There is clearly a double standard at work here in New York City, and, by extension, in much of the State. And a peculiar schizophrenia exists in the manner in which firearm ownership and possession are perceived and handled by this or that class of society. We see evidence of a police officer facing possible disciplinary charges for loss of a handgun to a criminal assailant because she failed to keep the handgun in a holster on her person – where she would have immediate access to it – maximizing both the protection of the weapon and that of herself. Contrariwise, we see a probable situation where a law-abiding American citizen and resident of the City of New York faces possible criminal charges precisely because that person kept a handgun in an appropriate holster on that person, thus maximizing both the protection of the weapon and that of self. But, because the nature of that person’s license does not permit the carrying of a weapon on the person, that person faces revocation of his or her handgun license, the loss of all firearms in that party’s possession, and likely imposition of criminal charges, as well.In a “Police State,” where all civilians are looked upon as potential adversaries and “potential problems,” it makes sense that possession of firearms would be strictly controlled. In a “Free Republic,” though, no such schism exists between the police and other special classes on the one hand and the “proles” – that is to say – everyone else on the other hand. In a Free Republic that distinction should not be tenable at all. That it has become so, this says much about the direction this Country has taken.

CONCLUSION

Recall our three opening statements:ONE: The life, safety, and well-being of every law-abiding American citizen are sacrosanct and inviolate. TWO: The best means of securing one’s life, safety and well-being against assault is by having immediate access to a firearm. THREE: Since a firearm provides a law-abiding American citizen with the best means available to protect his or her life, safety, and well-being, that person ought to be able to have immediate access to his or her personal, lawfully owned firearm at all times and in all places for the stated purpose of securing that person’s life, safety, and well-being, consistent with the inalienable right to keep and bear arms as codified in the Second Amendment to the U.S. Constitution and consistent with the holdings of United States Supreme Court in the 2008 Heller case and the 2010 McDonald case. New York’s disregard for the sanctity of individuals is reflected in New York’s convoluted firearms’ laws. And that disregard for the sanctity of individuals is on the grandest display in New York City. When New York City Rules are compared to New York Police Department patrol policy, the duplicity, hypocrisy, irrationality, and inconsistency are on grand display.A handgun can effectively protect an individual’s life. And the best way to safeguard a handgun from theft and, at one and the same time, secure one’s life, safety, and well-being with it, is for one to wear it in an appropriate holster, on one’s person. The NYPD certainly knows this. Indeed, the NYPD clearly asserted this in The New York Times July 15, 2015 article.Unfortunately, except for a small select group of individuals, namely police officers and a few – very few – law-abiding American citizens who are issued unrestricted “Business Carry” licenses, or who otherwise belong to another select, special class, such as New York judges, New York does not recognize the sanctity of the law-abiding American citizen. Thus, New York firearms’ laws reflect the notion that not every law-abiding American citizen life is sacrosanct and inviolate. This follows from the proposition that the vast majority of law-abiding New York residents and American citizens are denied the inalienable right to defend their lives with the best means available for doing so: a firearm. This doesn’t seem to be a concern for some people. The question is: Does it concern you?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

7/12/15 7/12/15

A ROAD TRIP WITH A HANDGUN: THE CASE FOR UNIVERSAL STATE RECIPROCITY

A ROADTRIP WITH A GUN: THE CASE FOR UNIVERSAL STATE RECIPROCITY

PART ONE: THE LEGAL AND MORAL BASES FOR UNIVERSAL CONCEALED HANDGUN CARRY RECIPROCITY AMONG THE SEVERAL STATES

PERSONAL SURVIVAL IS THE STRONGEST OF ALL HUMAN IMPULSES

PREMISE: The law-abiding American citizen ought to be able to carry, concealed, a handgun in whatever State, within the United States, that the law-abiding American citizen happens to travel to, and within any one of the Territories of the United States that the law-abiding American citizen happens to visit, to best secure that American citizen's personal safety.Survival is a basic instinct of every living organism. The impulse to survive is biological and absolute. And, for man, the desire to survive is also a moral imperative. A threat to one’s survival activates the “fight or flight” response. If a person cannot reasonably flee from a threat to his or her survival, that person must, and will, and ought to fight for his or her survival. And, if one must fight, no better protection exists than that provided by a firearm.Many Americans were brought up with firearms. They were taught how to use a firearm properly and safely. They are comfortable with firearms. Other Americans are not. And that is fine. Those people who do not feel comfortable possessing firearms need not do so. No one requires that they do so. Firearms’ owners do not impose their will on others. But, by the same token, those Americans who are not comfortable possessing firearms should not prevent other Americans who wish to possess firearms from doing so. Americans who demonstrate antipathy toward firearms should not and, under our system of laws, cannot and therefore must not prevent or ever try to prevent a law-abiding American citizen from possessing a firearm if that American citizen chooses to do so. Americans who have a personal aversion to firearms and who express their dismay toward and even disdain for firearms possession and ownership should not be permitted to impose their will on gun owners. But they often do, or otherwise attempt to do so.The Founders of our Republic recognized a person’s right to protect his or her life. That right is embodied in the Second Amendment to the U.S. Constitution. Since the right of the individual to keep and bear arms is a natural right, the Constitution does not create the right but simply exemplifies it – has etched it in stone – through codification of that right in our Nation’s Bill of Rights. And, for those Americans who happen to doubt that the right to keep and bear arms is an individual right, the U.S. Supreme Court laid that doubt to rest with its decision in the 2008 Heller case. The Court made clear that the right to keep and bear arms is an individual right, unconnected with service in a militia, to be used for traditional lawful purposes such as self-defense.Now, since the Bill of Rights traditionally applied to the Federal Government, the question arose whether the Heller case also applies to the States. That question, too, was laid to rest in the 2010 McDonald case. The Supreme Court ruled that the individual right of self-defense applies to the States through the Fourteenth Amendment. Unfortunately, many States undermine the clear import of these two U.S. Supreme Court cases by keeping in place restrictive and oppressive firearms’ laws and by focusing their efforts in creating ever more restrictive and oppressive firearms' laws to confound and frustrate gun owners.To overcome obstacles posed by myriad, inconsistent firearms' laws, some State Legislatures have created a mechanism by which a resident, who holds a valid concealed handgun carry permit or license as issued in one State, may legally carry a handgun in another State without fear of arrest. This mechanism is known as “reciprocity.”

HOW DOES STATE CONCEALED HANDGUN CARRY RECIPROCITY WORK AND HOW PREVALENT IS STATE CONCEALED HANDGUN CARRY RECIPROCITY?

State “concealed handgun carry” reciprocity is not difficult to understand. It works much like State motor vehicle license reciprocity. As every motorist knows, so long as a person holds a valid driver’s license as issued in the person’s State of residency, that person may lawfully drive a motor vehicle into and through any other State. State reciprocity of driver’s licenses frees a person from having to carry multiple State drivers’ licenses and relieves a person from the burden and the cost of having to apply for them and being forced, periodically, to renew a slew of them.The remarkable thing here is that we need to have this discussion about State concealed handgun license reciprocity at all since the right of each law-abiding American citizen to keep and bear arms is clearly expressed in the Second Amendment. You might think, then, that concealed handgun license reciprocity already exists. In fact, some Americans believe, reasonably enough, that possession of a concealed handgun carry license, issued in one State, does enable the law-abiding American citizen to lawfully carry his handgun concealed in every other State. After all, unlike driving a motor vehicle on public roadways, possession of firearms is a right existing in the individual, not merely a privilege bestowed on an individual by government. But, if you believe that State concealed handgun carry reciprocity exists among all the States by simple virtue of your possessing a valid concealed handgun carry permit or license issued by one of the States, you would be wrong. And more than a few American citizens have paid a steep price for harboring that mistaken belief.Now, the U.S. Constitution does not mandate the issuance of driver’s licenses to motorists. Yet, if a State does issue a driver’s license to a motorist, every other State will recognize the validity of that license. Certainly no State would wish to inconvenience a motorist by requiring a motorist to hold that State’s own validly issued driver’s license.Imagine the nightmare that would ensue if every State required a motorist to hold a valid driver’s license issued by that State, just for the privilege of driving into and through the State. But that fictional situation is analogous to a very real situation that exists for the holder of a valid concealed handgun carry license. Evidently, many States do not mind “inconveniencing” an American who seeks nothing more than to exercise the natural right of self-defense, as implied in and manifest in the Second Amendment, even as those States would not think of inconveniencing a non-resident motorist.Presently, 18 States do recognize the validity of unrestricted concealed handgun carry licenses issued by other States. Most States, unfortunately, do not. Recognition of unrestricted concealed handgun carry license reciprocity by all the States would help eliminate the problem of inconsistent gun laws existent between and among the States and, too, relieve a law-abiding American from the burden of acquiring and holding multiple concealed handgun licenses. This would do much to safeguard the Second Amendment right to keep and bear arms. Universal unrestricted concealed handgun license reciprocity among the States would overcome a host of obstacles to Americans' exercise of their Second Amendment right to keep and bear arms.

WHY ARE MANY STATES RELUCTANT TO GRANT RECIPROCITY?

We do not, at present, see universal unrestricted concealed handgun license reciprocity because antigun legislatures in many States do not respect the Second Amendment. Those State legislatures deliberately place obstacles in their own resident citizen’s path to gun ownership and possession, and so, not surprisingly, they refuse to provide for State concealed handgun license reciprocity to non-resident American citizens. But their arguments for doing so are weak. Let’s look at a few of the arguments that antigun proponents assert against implementation of universal unrestricted concealed handgun license reciprocity.Antigun proponents who reside in States that have very restrictive gun laws, such as New York, New Jersey and California, to name a few, argue, first, that draconian gun laws are necessary because of the existence of high crime areas in those States. Various areas in some States are high crime areas. But, guns aren’t responsible for crime that exists. Individuals who commit the crimes are to blame for any crime that exists in those areas. Moreover, the incidence of high crime areas in some States as the apparent impetus for restrictive gun laws is a “straw man” created by antigun proponents as a makeweight and evasion because one’s right of self-defense exists wherever one happens to find himself, in any State of the Union. The U.S. Constitution applies to the entire Nation, not to distinctive parts of it. So, one’s right of self-defense, as tacit in the Second Amendment, exists throughout the Country, irrespective of the incidence of crime in any one part of the Country. No one can reasonably argue against the truth of the assertion that the firearm is the single best means available to one for self-defense. Moreover, the law-abiding American citizen’s tacit right to defend his or her life is not a function of – is never a function of – where that person happens to live or work, or where that American happens to travel to, within the United States. Application of the Second Amendment is not limited to specific areas or zones within the United States. In fact, one may also reasonably rebut the antigun proponent’s position here by sensibly pointing out that the need for a firearm to protect one’s life is that much greater for a person who resides in or works in or happens to find himself or herself in a high crime area than is the case for a person who resides in or works in or simply happens to be in an area that is essentially devoid of crime.Antigun proponents argue, second, that State reciprocity would conflict with a State’s exercise of its own police powers. The rejoinder is that State reciprocity for holders of valid unrestricted concealed handgun carry licenses does not impinge on the manner in which a State regulates its police agencies. State reciprocity simply involves recognition of the Second Amendment right to keep and bear arms for the purpose of self-defense and serves, as well, to carry out the U.S. Supreme Court’s intention as expressed in the holdings of Heller and McDonald, which, together, stand as a testament to that sacred right.Antigun proponents argue, third, that State reciprocity isn’t necessary because Americans don’t need to bring their firearms to other States. They will say that those Americans who wish to exercise their Second Amendment right are at most simply inconvenienced if they have to keep their firearms at home when they travel to other States. This argument may be easily disposed of because a governmental constraint on the exercise of a fundamental right can never be defended on the ground that the constraint operates merely as a mild or temporary inconvenience to one’s enjoyment of that right. For, even if one were to assume the assertion to be true, which it certainly is not, constraints on a fundamental right are not to be and cannot ever be casually, perfunctorily, and summarily dismissed. Moreover, from a common-sense perspective, to require one to forsake one’s right to defend his or her life with, feasibly, the best means available – a handgun, bar none – demonstrates a cavalier attitude toward if not complete disdain for the sanctity of the individual American citizen’s health, safety, and well-being.Such constraints also demonstrate an abuse of power on the part of States that enact draconian firearms’ laws. Such laws operate as an unconstitutional and unconscionable restraint on one’s exercise of the fundamental right to keep and bear arms for the perfectly rational, and legitimate, and critical purpose of self-defense, as clearly recognized by the U.S. Supreme Court. Fourth, the antigun proponents’ clincher is that, if a person really wants to possess firearms in more than one State, that person can simply apply for a firearm’s license in that State. But, this argument is, as well, unsound for the obvious reason that obtaining gun permits in other States is a costly process from the standpoint of time, and money, and energy. The task of first obtaining and subsequently renewing multiple gun licenses and permits issued in a multitude of States is mind-numbingly complicated and extremely burdensome. Just imagine how expensive, complicated, and burdensome it would be for a motorist to have to obtain a separate driver’s license for each State he or she happened to drive to or through and the difficulties inherent in constantly being required to renew those licenses. Even so, the requirements for obtaining a State driver’s license more often than not pale in comparison to the difficulties that beset a person who seeks to obtain even one validly issued State concealed handgun license. And the concealed handgun carry license renewal process isn’t any easier. For example, the date of renewal of a State driver’s license generally falls on a motorist’s birthday. But States do not coordinate renewal of firearm licenses. Renewal dates can fall on virtually any day of the year. A harried businessman, for example, is often required to revise a busy and critical business schedule to accommodate licensing renewal schedules that require the licensee’s physical presence in each jurisdiction in which a concealed handgun carry license is renewed. To truly understand just how complicated and burdensome it is for an American who wishes nothing more than to exercise his Second Amendment right as that person travels across the Country on business we have provided an example: a road trip. What makes this example all the more illustrative, significant, and forceful is that it is not fictitious. It is the real deal. What follows is a tale of what one person has had to put up with for several years and what that person must continually put up with as he navigates the sheer number and complexity of State firearms’ laws in existence today, as he seeks to secure initially or renew a multitude of firearms’ licenses in multiple jurisdictions.

ONE BUSINESSMAN’S STORY:

This is the personal story of a law-abiding American citizen and resident of Nassau County, Long Island, New York. The story is true.This individual has applied for and has been granted a Nassau County pistol license. As a businessman in the City of New York, he also applied for and was issued a New York City business carry pistol license, which is valid throughout the State of New York. He owns a house in Maine, and he does business in Maine. He also does business in each of the remaining five New England States: Connecticut, Rhode Island, Massachusetts, New Hampshire and Vermont. Our businessman’s excursions often take him through each of these States. And each State has its own unique set of handgun licensing requirements. The sole exception is Vermont. This New England State does not require a permit to carry a firearm concealed so long as the carrying of a firearm is for a lawful purpose.Our businessman must comply with and has complied with the firearm licensing requirements of each State. The acquisition of and maintenance of a plethora of State firearms’ licenses translate into an inordinate amount of time, money, and effort spent by this individual just for “the privilege” of lawfully carrying a handgun in his car on his person through each one of several States, for self-defense, as he conducts business away from his main base of business operations in New York.

QUESTIONS WE POSE TO THOSE STATES THAT DO NOT WISH TO RECOGNIZE UNRESTRICTED CONCEALED HANDGUN CARRY RECIPROCITY

Why should our businessman be so burdened with the need to acquire multiple, essentially duplicative firearms licenses from each jurisdiction when he simply wishes to exercise his fundamental right of self-defense in every jurisdiction? Why should the fundamental right to keep and bear arms be reduced to mere privilege? Why won’t all of the States recognize and accept one valid, current unrestricted concealed pistol carry license issued by any one of them? Since this businessman’s New York driver’s license is recognized in all 50 States, why won’t all of the States recognize and accept a concealed carry pistol license issued to this businessman by New York City, under the laws of the State of New York? Why must our businessman carry a plethora of State issued pistol licenses, when one alone ought to be sufficient?The important point to consider as we undertake this exercise is that this American citizen and businessman is not alone. Anyone, similarly situated, has to go through the ordeal of first obtaining and then continually renewing one’s firearms’ licenses and permits, in a multitude of States; and many American citizens presently do so.

CONCLUSION

To truly appreciate the difficult hoops a person must jump through merely to exercise one’s Constitutional right to keep and bear arms for personal protection, we invite you to join us, along with this businessman, on his business road trip.Our businessman will be carrying in his car and on his person a Smith & Wesson, .38 caliber, “Bodyguard” revolver for the purpose of self-protection. He will also be carrying a batch of validly issued concealed handgun carry licenses issued by multiple jurisdictions. What we ask ourselves is this: What did this businessman have to go through to obtain these licenses? What does he continually have to go through to maintain and therefore retain these licenses? We will look at the handgun licensing procedures of several jurisdictions so you will get a good idea just how complicated, and convoluted, and expensive, and time-consuming, and physically and mentally taxing on an individual the entire process is.In our next article we will begin with a discussion of the handgun licensing procedures in Nassau County, NY; the handgun licensing procedures in New York City, NY; and the handgun licensing procedures in the State of Maine.In subsequent articles we will take a look at the licensing procedures of Connecticut, Massachusetts, Rhode Island and New Hampshire. Our businessman has been issued valid pistol licenses in each of these States. These licenses were not easy to obtain, nor are they easy to retain. Our businessman has complied with all State laws and regulations for acquiring State business carry pistol licenses and he continually complies with all laws and regulations pertaining to license renewals in each of these States.When we have completed our tour of the multi-State handgun licensing procedure schemas that our businessman has gone through and continues to go through just to be permitted “the luxury” to preserve his life as he conducts business in multiple jurisdictions, you will come to appreciate just how fragile our Second Amendment right to keep and bear arms really is; how stubborn States can be; how bloated State firearms’ laws have become; and, how unmanageable the acquisition of and retention of a plethora of multi-State firearms’ licenses truly is.We trust that, at the conclusion of this comprehensive exercise, you will truly understand the need for universal unrestricted State concealed handgun carry license reciprocity. Traveling across State lines on business, or for pleasure, should not create an either/or situation for the law-abiding American citizen -- should certainly not create an either/or situation for the American citizen and businessman in our true-life example. But, at the moment, that is what we have; that is what this law-abiding American citizen and businessman faces. He must either forego the acquisition of a multiplicity of concealed handgun carry licenses for each State in which he does business, thereby saving time, and money, and energy but at the cost of relinquishing his right of self-defense; or he must jump through hoops to first acquire and then constantly renew a plethora of concealed handgun carry licenses that serve best to protect his life, but at the cost of time, money, and energy necessary to acquire the licenses initially and then to retain them through time. Which one of these two options should he choose? Which one of these two options would you choose? More to the point, why should a law-abiding American citizen have to choose one or the other option at all. Why should you have to make a choice. Why should you be compelled to find yourself in a situation like this in the first place? Why must this law-abiding American citizen and businessman be compelled to deal with this dilemma at all in view of the Second Amendment imperative. Why should you be compelled to deal with this dilemma? But for the reluctance of most States to provide for the implementation of universal unrestricted State concealed handgun carry license reciprocity, this dilemma would be obviated. It would not exist. A law-abiding American citizen would not have to choose between securing his or her life and well-being but at the cost of undergoing a multitude of time-consuming, extraordinarily arduous, repetitious, and invariably wasteful processes on the one hand, or, on the other, being compelled to relinquish his or her right of self-defense by foregoing the acquisition of the best means available to secure it -- a handgun.To be continued. . . .[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

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THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS EMBRACES A PROPERTY INTEREST IN FIREARMS

The Second Amendment is the cornerstone of America’s rights and liberties. This, we know. But, tucked away in the Second Amendment right to keep and bear arms is another right. It is the right to own property. Its place in and impact on the Second Amendment are rarely, if ever, mentioned.State laws that deny your right to keep and bear arms also deny your ownership right and interest in your firearms. Let’s look at a couple of examples.Many States utilize licensing schemes to control and restrict civilian access to firearms. Government licensing of firearms is incompatible with the right to keep and bear arms because licensing of firearms is a condition precedent to possession. That means a license to keep and bear arms is nothing more than a privilege to keep and bear arms since possession of firearms is contingent on the government’s willingness to grant a license at all. The right is forsaken through licensing. But more is lost.Once a government revokes the license to possess firearms, as it can since it granted the license in the first place, the owner loses his property. You may have spent thousands of dollars on your firearms. No matter. Your dollar investment is forfeited, along with your firearms. So, a government’s abrogation of the Second Amendment guarantee entails the denigration of your private property right and interest in your firearms. If you lose your license, you lose your firearms. Two basic rights are lost, then, not one. The two go hand-in-hand.States that utilize firearms licensing schemes employ firearms’ transfer schemes too. Suppose you, as a law-abiding citizen, lawfully acquired your firearms: through bequest, gift, or commercial transaction. The firearms belong to you. You have full and complete title to and control over them, and exclusive and absolute right in them. That’s what it means to have a private property interest in your firearms.Now, suppose you wish to bequeath your firearms to your son, or daughter. Laws that interfere with your ability to transfer your firearms as you wish inhibit your enjoyment of them because you are unable to exercise complete dominion over them. This amounts to an unconstitutional taking of them without due process.So, the right to keep and bear arms and the right to acquire, own, and hold them perpetually, or transfer them, operate in tandem. Moreover, they are both natural rights.The Second Amendment merely codifies a preexisting right. Since government cannot rationally bestow a right that already exists within you, government cannot lawfully take that right from you.The preexisting right to acquire, own, and hold property isn’t codified in the Second Amendment, but it is codified in the Due Process Clause and in the Takings Clause of the Fifth Amendment to the U.S. Constitution.The Fifth Amendment says in critical part: “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The private property interest is, arguably, also one of the unenumerated rights of the catchall Ninth Amendment. It is intrinsic to the Fourth Amendment and it even implicates the Third Amendment, as well as the Second Amendment.The Due Process Clause and Takings Clause of the Fifth Amendment operate as constraints on the federal government. The Due Process Clause of the Fifth Amendment is mirrored in the Due Process Clause of the Fourteenth Amendment and applies to the States. The Takings Clause of the Fifth Amendment has no correlate in the Fourteenth Amendment but it applies to the States through operation of law as does the Second Amendment.Your right to keep and bear arms means precisely that you have the inalienable right to acquire and own and hold indefinitely, or transfer without government interference, those arms you bear and keep. The private property right and interest in your firearms must, then, be regarded as a tacit part of the Second Amendment’s guarantee. This surely is as the Founders of the Republic intended. The firearms you have a right to bear and keep are your private property, not the State’s. You have full and complete title to them, absolute control over them, and exclusive rights in them. To denigrate a person’s ownership interest in his firearms is to abrogate the Second Amendment right to bear and keep them.So, in defending our Second Amendment right to keep and bear arms we must never lose sight of the equally important private property interest inherent in and coextensive with that Second Amendment right.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.