THE SECOND AMENDMENT: STRAIGHT IN THE CROSSHAIRS!

With the latest tragic shooting incident – this one taking place at an obscure community college in Oregon on October 1, 2015 – the Mainstream Media is, once again, ever again, thrusting the public’s attention onto guns. Oh, What to do about guns! Well, Carolyn Maloney, Democrat from New York, has a plan. Maloney introduced a bill, back in May of this year: “The Firearm Risk Protection Act.” If this bill were to become law, a person would be required to have liability insurance to purchase a gun or face a $10,000.00 fine. The cost of that insurance would, of course, add to the overall cost of the firearm. But, then, the salient point of Maloney’s bill is to make gun ownership such an onerous, expensive proposition that the American public would be dissuaded from making the purchase of a gun in the first place. But, suppose a person is willing to tighten his or her belt and expend the money. What, then?Just imagine: your firearm is stolen by a psychopathic “gangbanger” or a psychotic, homicidal maniac and that person injures or kills someone, or injures and/or kills several individuals with that weapon. The injured party or parties – or the family or families of individuals killed by the “gangbanger” or maniac – files a lawsuit against you, and not the “gangbanger” or maniac, because liability for the injury or death accrues to you and to you alone by virtue of “The Firearm Risk Protection Act;” and, you, after all, are the deep pocket through the liability insurance coverage on your firearms -- that you were forced to obtain.Now, your insurance company does indemnify you, the insured, against the damages claims. And that’s all well and good. But your insurance premiums go up or, worse, insurance coverage is thereafter denied to you altogether as a result of an astronomical payout to the injured party or parties or to the family or families of the parties suffering harm at the hands of the “gangbanger” or maniac. And that isn’t so good. But Maloney doesn’t wish to talk about that possibility.You decide that it is simply too costly to protect yourself and your family with a firearm, or, perhaps, you have no choice in the matter. But, if you are denied firearm liability insurance coverage, you can no longer lawfully own and possess a firearm. So, then, what do you do? You decide to invest in a Louisville Slugger. Insurance, fortunately, isn’t required for that. Thank you very much, Carolyn Maloney, for your The Firearm Risk Protection Act.Maloney’s bill, will not, of course, pass. Indeed, with Republicans controlling both Houses of Congress, fortunately, the bill will not even make its way out of Committee. Indeed, the bill, has not, as of this date, six months since its introduction by Maloney -- made its way out of Committee. Still, for her effort, introduction of the bill will endear her to those few frightened, lost little lambs who are forever looking to Big Government to protect them from others and, for that matter, who are looking to Big Government to protect them from themselves.But, apart from Maloney’s bill and many other ludicrous ideas of late, concocted by antigun zealots to erode the Second Amendment at both the federal and State levels, there is something more sinister afoot that threatens the Second Amendment directly – something worse than Maloney’s bill, awful as her bill is, even if the bill did gain traction in Congress, which it won’t.As alluded to in the first sentence of this post, the Mainstream Media has provided wide coverage of the latest “mass shooting.” But, we would be wrong to dismiss the impact of this latest incident out-of-hand The reason for this is that so-called “mass shootings” are the impetus behind specific kinds of restrictive firearms language that denies firearms’ access to extremely large segments of the American population. And, the antigun establishment, and President Barack Obama, and Democratic Presidential Candidate, Hillary Clinton, intend to turn this latest incident into a “tipping point” for restrictions on gun possession.The NY Times has pulled out all the stops with the latest incident in Oregon through a series of articles designed  to affect the emotions – not the intellect – of its readers. The October 4, 2015 Sunday edition of the newspaper is replete with articles – news accounts and editorials – by such ostensible “luminaries” as Frank Bruni and Nicholas Kristoff, who feel obliged or, perhaps, were asked, to weigh in.What the NY Times news reports and commentary boils down to is this: since it is difficult if not impossible to ascertain with any degree of certainty who will become a “mass murderer,” the better course of action is to remove firearms from the American citizenry in totality, and in double-quick time.” What is the rationale for this?Well, we, humans, are, after all, beings of emotion as well as intellect. We react to life’s events emotionally as well as intellectually. Each of us, at one time or another, expresses hope and fear, joy and sadness, compassion and resentment. Sometimes we get angry, or we fall into fits of depression or anxiety. Perhaps we lost a loved one, or a job. Perhaps we express concern – much concern – over the manner in which our Government spends our hard-earned tax dollars. Thus is our human-ness expressed.The vast majority of us deal with the vicissitudes of life stoically. A few of us do not – apparently cannot. The NY Times has written a lengthy polemic, posted on line, October 3, 2015, “How They Got Their Guns.” It is curious, though, that no photographs of the individuals who perpetrated the violence are shown – in the digital version of the NY Times article which, clearly, is expected to receive the largest audience and “most hits.” Instead, the NY Times thrusts large, high gloss, high resolution – almost three-dimensional – graphics of firearms upon us – something that the publisher cannot do cost-effectively in the print version of the newspaper. The NY Times' use of large, high gloss, high resolution graphics is not accidental. The Times is suggesting, subliminally, that it is the firearms themselves that are the real sentient actors of the violence, and not the individuals who actually wielded the weapons. But, for all that, our intelligence tells us, contrary to what the NY Times article strongly suggests, that it is individuals, after all, and not inanimate objects, who are the real perpetrators of the violence that occurred.And, what of those perpetrators? The antigun zealots and fanatics intend that those few poor souls, bereft of mind and spirit, who are the cause of violence, whether committed with guns or with any other implement – in a population of millions of law-abiding, sane, rational gun owners – are to be the measure – the standard – by which our Second Amendment right to keep and bear arms is to be finely calibrated. But, most Americans do not expect, certainly do not demand, indeed would not ever wish that Government utilize, as the standard of measurement, the lowest common denominator among us upon which the vast majority of us is to be judged and found wanting of the ability to handle firearms responsibly. But, that is exactly what is happening. And, let there be no mistake: the antigun forces through their stooges in the mainstream media have the entirety of the Second Amendment in their sights.NY Times reviewer, Frank Bruni, in his op-ed, published on October 4, 2015, titled, “Guns, Campuses and Madness,” did not mince words, when he stated: “This is madness. When it comes to guns, we have lost our bearings in this country, allowing misguided chest-thumping about a constitutional amendment penned in an entirely different epoch, under entirely different circumstances, to trump all prudence and decency.” The Bill of Rights, according to Bruni – who is obviously speaking on behalf of the antigun establishment – has no meaning, no purpose, except in the context of a particular place and a particular time. The Bill of Rights – our Bill of Rights – must, consistent with Bruni’s argument, be rewritten, sans any mention of one, particular right pre-existing in Man himself. And, the entirety of our jurisprudence must be reconsidered in light of a new global view of law, as argued by Justice Stephen Breyer in his recently published book, “The Court and the World: American Law and the New Global Realities,” consistent, too, with trade policies, such as the pending, “TPP,” that make mincemeat of our Nation’s laws and of our Constitution.But, no other Country on the face of this Earth has ever expressed a right to keep and bear arms existent in a Country’s citizenry. So, is the U.S. wrong, and every other Country right? Were our Founders so mistaken to profess to create a Bill of Rights, embracing “the right of the people to keep and bear arms” that was deemed to express a sacred right existent in Man for All Time and not just for a particular epoch? Is it time to repeal the Second Amendment to the U.S. Constitution as the antigun establishment, both in this Country and abroad, hope for and are strenuously working toward? And, were that to happen, what, then, becomes of the United States? Would it even be accurate to still call the United States a Free Republic at that point, as that notion was envisioned by our Founders?[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.

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.

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.

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.

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.

NEW TRADE DEAL THREATENS THE CONTINUED EXISTENCE OF GUN RIGHTS AND THE U.S. CONSTITUTION

The events of the last two weeks will be remembered by Americans as the day Congress sold America down the river. Over sixty members of the U.S. Senate, along with the House of Representatives, voted to give President Obama carte blanche “fast track authority” to enter into trade agreements with foreign nations without need to obtain any input from Congress. The majority of the House of Representatives, on June 18, 2015, and two-thirds of the U.S. Senate, on June 23, 2015, cast their votes in favor of the “Trade Promotion Authority” (“TPA”), thereby giving Obama exactly what he wanted.Through the “TPA,” which extends to July 1, 2018, Congress has abdicated its own authority to represent and protect the interests of American citizens as well as many American businesses. With passage of “TPA,” which the President had been anxiously awaiting, Obama will sign “TPA” into law. With that signature Congress has permitted the President to negotiate all trade deals in the name of the American People, without adequate input from Congress.Secret negotiations, between President Obama on the one hand and foreign countries and multi-billion dollar transnational companies on the other, have been taking place for several years, unbeknownst to most Americans, including, apparently, members of Congress. And to date, Congress has had precious little opportunity to scrutinize the proposed Treaty. And the American Public, ostensibly living in a Free Republic, is not permitted to see it. Americans do care what is in this proposed Treaty, but all too many members of Congress, apparently, do not; nor do they wish to enlighten the American Public as to the content of this thing.With passage of “TPA,” having now greased the wheels for implementation of “TPP,” Congress will not have the opportunity to debate the merits of the Treaty, nor will Congress have the opportunity to attach any amendments or make changes of any kind to it; nor will any member of Congress be permitted to use the tactic of filibuster to delay "TPP" or prevent it from being brought to a vote. Congress can do nothing but merely vote "up or down," for or against the Treaty, as "TPP" is written, as "TPP" is given to it. Congress can do nothing more. Congress has willingly handcuffed itself by granting "fast track authority" to the President -- which is precisely what Obama wanted -- and, in so doing, Congress has essentially turned its Article I, Section 1 law-making authority over to the Chief Executive. It has done this without a fight, with hardly a whimper of protest.Now, it is true that Article II, Section 2 of the U.S. Constitution does confer, upon the President, the power to make treaties. But, two-thirds of the Senators must agree to it to give it force. Why, then, would Congress wish not to closely scrutinize the language of any treaty the President happens to negotiate, suspending its own power to debate it, to filibuster it, to offer amendments to it given the all-encompassing influence that it will have on America’s economic life and well-being? That Congress, especially the U.S. Senate which, alone, can agree to a treaty between the U.S. and other Countries or not, would abdicate its duties under the Constitution and forsake its responsibility to the American People is all the more ironical and all the more troubling as both Houses of Congress are controlled by Republicans. Curiously most Democrats are fighting Obama over the "TPP." Yet, Republicans for their part, except for a courageous few, are in lockstep with Obama on this. Indeed, the Republican Senate Majority Leader, Mitch McConnell, and the Speaker of the House, John Boehner, worked in secret with Obama on this. But, is that not a bit odd? Perhaps the distinction between the two parties – at least in the muddled middle of centrism – is illusory, a fabrication to suggest to the American people that a real distinction exists between the two parties when such is not the case at all.Consider: Republicans have consistently, and rightfully, questioned Obama’s judgment on many things in the past. So, why would most Republicans, now, trust Obama’s judgment on a matter that has such all-embracing influence over the lifeblood of this Nation’s economy? Are Americans being played for dupes?Congress has asserted, oddly enough, that while it does not trust Obama on military policy and domestic policy, it does trust Obama on an all-encompassing trade deal that he negotiates with foreign countries. With enactment of TPA, which Obama will sign, this Country is but one step closer to joining an International Socialist Order. But, in the interim, more is at stake here than simply the removal of tariffs to benefit the multinationals; much more.If TPP is enacted, America’s system of laws will become superfluous. International companies will be permitted to contest American laws in foreign tribunals, not in U.S. courts. This means that a decision of a foreign tribunal will have the force of law in our own Country. State Governments and our Federal Government will not only be required to defer to the order of foreign courts and tribunals, but will be required to enforce the laws of those foreign tribunals. This facet of the TPP has received precious little attention but it is, in fact, the cornerstone of TPP. Its importance here transcends trade considerations. TPP weakens and displaces the foundation of America’s own Sovereignty by substituting the laws of foreign tribunals for its own.Where is this all going? As our institutions of law are undermined, our Constitution is invariably weakened. The next step toward a New International Socialist Order involves the creation of a North Atlantic Union that includes the United States, Mexico, and Canada, modeled after the EU. That will issue in the need for a new Constitution – one that is more palatable to powerful business and financial interests in Mexico and Canada and in the U.S. A new common currency will be minted. Spanish, which is insinuating itself into this Country at a record pace, may very well displace English as the common language. Our heritage and culture and history are dissolving.Also, keep in mind, no other Country on Earth has a Bill of Rights like ours. In no other Country’s Constitution does there exist recognition of the right to keep and bear arms that resides in the citizenry itself. It is only a matter of time when our Constitution, that has stood the test of time, is cast aside and rewritten in a manner palatable to and consistent with Globalist interests who see, in the implementation of TPP, a steady movement toward the ultimate dissolution of America as an independent Sovereign Nation State.If you think a slippery slope to America’s demise is far-fetched, consider that a few short years ago any talk of the existence of the “TPP” was met with skepticism, even derision. Only the weblogs brought this matter to the attention of concerned citizens of this Country. The mainstream news media rarely, if ever, even broached the subject. Quite likely, secret discussions are even now underway among internationalists, working out ways to dismantle the U.S. Constitution.Now, of course the United States Constitution spells out the manner in which new Amendments are proposed and ratified. Indeed, Article V sets forth concisely and unambiguously the ways in which Amendments to the U.S. Constitution may be made:“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”But, Article V, as pointed out by the great logician and mathematician, Kurt Gödel, who happened to take a close look at the U.S. Constitution during the time when he decided to apply for U.S. citizenship in 1947,  realized that Article V carries the seeds for the U.S. Constitution's own destruction. He pointed out that Article V permits Congress to amend the Constitution to invite the creation of a dictatorship in this Country. Moreover, consistent with Gödel's reasoned conjecture: nothing in the Constitution of the United States addresses the matter of revocation of the entirety of it outright. If there is nothing in the U.S. Constitution articulating a basis for its own continued existence against the ruthlessness of a duplicitous Executive, operating in tandem with a feeble Congress, what safeguards are in place to protect it? Moreover, secret Executive Orders can, and probably do, exist that are directed to the suspension of it, ostensibly in times of “National Emergency.” Might not those same Executive Orders be directed not merely to the suspension of the U.S. Constitution – horrific as that is – but to its revocation?Now, it is indeed true that the U.S. Constitution sets forth the specific powers and authority of each Branch of Government. No Branch can subsume unto itself more power and authority than is provided to it, as expressly set forth in the Constitution. Yet, in the absence of an express assertion in it that, under no set of circumstances shall any amendment or amendments to it allow for the weakening or total abolishment of it, it is well within the realm of possibility that amendments can slowly be included in the U.S. Constitution that operate together to reduce it, in effect, to a nullity: hence, Kurt Gödel's concern for the continued sanctity of the U.S. Constitution.Clearly, there is nothing to prohibit powerful, ruthless, selfish interests both within this Country and outside it, from taking steps, replacing the Bill of Rights, say, for a new innocuous Bill of Rights conducive to and favorable to the existence of a new International Socialist Order – the existence of which destroys the very fabric of a Nation State, the very fabric of our Nation State, as an independent and absolute Sovereign entity. And, from what we have seen in the recent past, how many members of Congress, do you think, would have the strength and fortitude and conviction to object to that?[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.

TRANSFERRING AMMUNITION IN NEW YORK: WHAT YOU NEED TO KNOW

White Paper Summary

The New York Safe Act is a minefield. One notoriously vague area pertains to transfers of ammunition. Only one section of the NY Safe Act deals with ammunition. The matter of transactions involving ammunition is found and dealt with in Section 50 of the New York Safe Act. Section 50 of the NY Safe Act is codified in the Penal Code of New York: NY CLS Penal § 400.03, titled, “Sellers of ammunition.” Moreover, Section 50 is the only section of the NY Safe Act that deals with transfers of ammunition.Section 50 says, in pertinent part, “No commercial transfer of ammunition shall take place unless a licensed dealer in firearms or registered seller of ammunition acts as an intermediary between the transferor and the ultimate transferee of the ammunition for the purposes of contacting the statewide license and record database pursuant to this section. Such transfer between the dealer or seller, and transferee must occur in person.” Section 50 talks about what both licensed dealers in firearms and sellers of ammunition must do in order to comply with the Act and, too, what individuals who are neither licensed dealers in firearms or registered sellers of firearms must do in order to comply with the NY Safe Act, when one of the parties wishes to sell a box of ammunition to another party. So, Section 50 is talking explicitly about sales of ammunition. And, that is fine as far as Section 50 goes. But, the Safe Act presents a problem.The problem is that not all transfers of ammunition between New York residents who lawfully own and possess firearms are typical purchase and sales of ammunition. Some transfers of ammunition from one individual to another individual are not sales at all. They are gifts or bequests of ammunition from one individual to another in a situation where neither individual is in the business of selling firearms or ammunition. So are those kinds of transactions lawful?Unfortunately, the New York Safe Act – which otherwise has much to say regarding the transfer of firearms defined as ‘assault weapons’ from one person to another person – is silent on ammunition transfers that do amount to sales. So, one must delve deeper into the Penal Code of New York in search of an answer, and we have done this for you.The laws of New York dealing with ammunition transfers – as with firearms matters, generally – are confusing and complex. In our “White Paper” we explain in detail the intricacies of ammunition transfers. We clarify the issues for you and do our best to provide you with meaningful answers that you can work with.View And Download The Full White Paper Here.

[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.

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. 

Arbalest Quarrel Newsletter: Spring 2015

The Arbalest Quarrel Spring 2015 Newsletter is now available for viewing and download:The Notion of a Private Property Interest in FirearmsClick to View or Download Newsletter

GUNS, PLANES, AND PERSONAL RESPONSIBILITY

By now, all who keep abreast of the news are well aware of the tragedy that befell Germanwings Flight 9525, last month.The co-pilot of that airplane deliberately flew the passenger plane into a mountain, killing himself and everyone else on board. The public can only speculate as to the thought processes of the killer, Andreas Lubitz, the co-pilot of that Germanwings flight. But, as to one matter, the public need not speculate. Andreas Lubitz suffered from severe depression and should not have been flying an airplane at all, least of all a commercial aircraft, carrying 150 passengers and crew members.Major newspapers, including the New York Times, the Washington Post, and the Wall Street Journal, have reported that officials of Deutsche Lufthansa AG, a prominent commercial airline and parent Company of Germanwings, knew about Lubitz’s mental health condition, and allowed him to pilot Flight 9525 anyway. That error in judgment, on the part of Lufthanza officials, that failure to take responsibility, is the root cause of the tragedy.Unfortunately, the failure to take responsibility is all too often the root cause of many tragedies that would otherwise never occur.Recall the Sandy Hook Elementary School shooting in December of 2012. A very disturbed young man, Adam Lanza, killed over two dozen people, 20 of whom were children, as reported by the New York Times. Lanza then turned the gun on himself. Police investigators encountered an additional victim at Lanza’s home. Adam Lanza had also shot his mother. He did not own the guns he used in the shootings. Those belonged to Adam Lanza’s mother, Nancy.Nancy Lanza, who knew or should have known of her son’s psychosis, ought to have secured her firearms. She had not.As with the recent airplane tragedy, a failure to take responsibility was the root cause of the Sandy Hook Elementary School tragedy. Neither one need have occurred.Yet, in the case of Sandy Hook, the antigun groups wasted no time in calling for new bans on guns.There are no similar calls for bans on use of large commercial airplanes. Of course such a ban, in the latter case, would essentially mark the end of the airline industry. Such action would also put hundreds of thousands of people, around the world – those who work directly or indirectly in the commercial airline industry – out of work.But, apart from pragmatic realities, it is foolish to blame the entire commercial airline industry, much less the unconscious machine itself – the airplane – for the actions of one sentient, albeit deeply disturbed young man. It is also foolish to blame the entire commercial airline industry for the irresponsible behavior of those airline officials who, through their inaction, allowed a disturbed pilot to take control of an aircraft, thereby permitting the tragedy to occur.Parallels certainly may be drawn between the Lufthansa incident and the Sandy Hook incident. But, while no bans are contemplated against the continued use of commercial aircraft, antigun groups argue vociferously for further bans on guns. The public is continually and wearily subject to the same bleat: “get rid of the guns!” No mention is made though – not a squeak – over personal responsibility. Nancy Lanza saw a problem. She chose to ignore it. That negligence on her part allowed her mentally disturbed son to gain access to her firearms. The ensuing tragedy was predictable.Similarly, Lufthansa officials knew or should have known that one of its pilots, Andreas Lubitz, was mentally unbalanced.  But it looked the other way, allowing a mentally unstable individual to pilot a commercial airplane. As with the Sandy Hook Elementary School incident, the catastrophe that befell Germanwings Flight 9525 was also predictable.If people act irresponsibly, the proper course of action is to deal with those individuals alone.In Nancy Lanza’s case, her own irresponsible behavior was the proximate cause of her own death and those, tragically, of many innocent people.In the case of Germanwings flight 9525, the cause of the tragedy falls squarely upon the shoulders of the Lufthansa officials: their failure to take immediate action to prevent a pilot, whom they knew or should have known to be unfit to pilot an aircraft, from flying.Still, just as it would be imbecilic to blame an entire industry for the actions of a few airline company officials who fail to monitor the physical and mental health of their pilots, it is altogether inappropriate to chastise an entire population of responsible gun owners for the actions of the few who behave irresponsibly with their guns. Obviously, it is ludicrous to ground entire fleets of aircraft because of the irresponsible actions of those who can prevent a tragedy from happening, but don’t. It is equally foolish to impose wholesale bans on firearms: punishing millions of responsible gun owners for the irresponsible actions of a few.What should be done?The answer in both cases is the same: calling not for overbearing, thuggish Government regulation and control over everyone and everything, but placing blame where blame properly lies, and dealing with it there.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Vincent L. Pacifico (Orca) All Rights Reserved.

TRANSFERRING AMMUNITION MAGAZINES IN NEW YORK: WHAT YOU NEED TO KNOW

PART 5: Transferring Ammunition Feeding Devices (magazines); Transferring Ammunition; Bequests Of Assault Weapons To Police Officers

SUBPART 1: Transferring Ammunition Magazines In New York: What You Need To Know

Introductory Remarks:

New York gun owners have many questions concerning gun transfers in New York, whether through sales or bequests to heirs. This is not a simple matter. We have dealt with this at length in a previous article on gun transfers. But there is much more to discuss, and we hope to get back to that issue in the foreseeable future. However, one aspect of gun transfers is rarely if ever discussed and that has to do with an important component of many firearms, predominately with semiautomatic pistols: the ammunition magazine. It may seem odd that the transfer of ammunition magazines requires discussion at all. After all, unless one is a licensed gun dealer, the notion of transferring parts of guns – gun barrels, gun grips, triggers, hammers, and so forth – makes little sense. The average consumer is interested in purchasing an entire firearm, not a melange of so many separate parts. And, an ammunition feeding device – generally an ammunition magazine – is certainly a critical part of a semiautomatic handgun. A semiautomatic handgun cannot function without one. And, one must be perplexed that a discussion related to the transfer of ammunition feeding devices, apart from a complete weapon’s system, should be necessary at all. But it is. This topic is not only meaningful, it is, in fact, necessary in the context of the New York Safe Act if one is to have a full and complete understanding of the awful consequences of the Safe Act in matters of gun transfers. And that says quite a lot about the very queer nature of the Safe Act.You will realize just how queer -- just how bizarre -- the Safe Act is once you have completed reading what we have to say here.We have divided Part 5, the last part of this multi-series Article on the issue of private property rights and bequests of firearms in New York, into 3 Subparts. Subpart 1 deals with transfers of ‘large capacity ammunition feeding devices.’Now, what we have to say here applies to all transfers of large capacity ammunition feeding devices. But, apropos of this comprehensive multi-series Article, we are primarily concerned with transfers of guns by way of testamentary bequests by gun owners to their heirs. For, nothing subverts one's private property interest in his or her firearms more than the idea that one's last will and testament should be denied effect because some powerful individuals in Government have a personal distaste for firearms and desire to use that power to enact laws that thwart others Constitutional right and interest in their own private property.Subpart 2 of this multi-series Article deals with the transfer of ammunition by bequest to heirs. And Subpart 3 deals, in pertinent part, with the issue of  transfers and -- more particularly -- bequests of assault weapons to heirs who are active duty police officers or retired police officers, and who, therefore, may not be considered “ordinary” New York residents and citizens of the United States, at least where gun rights are at stake.

HOW THE NEW YORK SAFE ACT TREATS AMMUNITION FEEDING DEVICES

An ‘ammunition feeding device’ (whether “large” or “small” – which is a subjective matter unless otherwise defined with particularity in the law) means, typically, an ammunition magazine. Now, it may seem odd to have to talk about transfers of ammunition magazines at all. Ammunition feeding devices, including ammunition magazines, are, after all, an essential and integral component of semiautomatic handguns and they are an essential and integral component of many rifles and of a few shotguns as well.A testator bequeathing a semiautomatic handgun to an heir wouldn’t reasonably think of bequeathing the weapon without the weapon’s accompanying ammunition magazine. And, the heir, as the intended recipient of a weapon, would certainly expect to receive all component parts of that weapon. Otherwise, obviously, the firearm is useless as a firearm, so that, if it were to have any use at all as a defensive weapon, one might consider using it as a club -- an expensive one at that -- and nothing more.Why, then, are we discussing the transfer of ammunition feeding devices at all since such devices are clearly a critical component of many small arms? We are doing so because the New York Safe Act treats ammunition feeding devices as a separate component of weapons – a very odd idea to contemplate but one that must be contemplated nonetheless, and appropriately dealt with.Treating a weapon and the components of a weapon as two distinct things creates an odd set of circumstances for the law-abiding New York gun owner and odd issues arise from those circumstances that have to be resolved if the New York gun owner is to hope to avoid incurring serious misdemeanor charges. And that point gets to the crux of the problem with the New York Safe Act: You may have a weapon the Safe Act doesn’t ban, but you may also have, at one and the same time, the weapon’s ammunition feeding device that the Safe Act does ban. This isn't mere supposition, as you shall see.Again, keep in mind: we are not talking here about weapons banned by the Safe Act. The Safe Act does, of course, ban outright weapons it defines as assault weapons. That, we all know. A New York resident and citizen of the United States cannot currently own -- that is to say, cannot at the present time own lawfully -- a weapon defined as an ‘assault weapon’ under the New York Safe Act unless that weapon was grandfathered in and timely registered as an assault weapon. The expression ‘grandfathered in’ means here that a New York resident who lawfully came into possession of an ‘assault weapon’ prior to enactment of the New York Safe Act, on January 15, 2013, may continue, lawfully, to possess the assault weapon, subsequent to the effective date of enactment of the Safe Act, namely, subsequent to January 15, 2013, so long as that gun owner timely and properly, registered it, namely, so long as that gun owner had, in fact, timely and properly registered it on or before April 15, 2014, as that date has come and gone. If the owner of an assault weapon has not timely and properly registered it on or before April 15, 2014, that gun owner is in unlawful possession of a banned firearm. But, assuming the original owner of a firearm defined as an assault weapon under the Safe Act -- lawfully possessed that weapon prior to the date of enactment of the NY Safe Act -- and, assuming, further, that the original owner of the assault weapon did in fact timely and properly register it so that, at this particular point in time, the gun owner is, in fact, in lawful possession of a firearm that is otherwise banned by the Safe Act, and, so, can continue to lawfully possess that assault weapon, still, that owner cannot, unfortunately, transfer the weapon to his or her heirs even if those heirs are otherwise eligible to own and possess firearms, unless the heirs are exempted from the ban on possession of assault weapons. Those New York residents who are exempted from the ban on possession of assault weapons include licensed New York gun dealers -- a very small number of New York residents to be sure.Moreover, the effect of allowing the original owners of assault weapons alone to continue to own assault weapons so long as they wish, or, otherwise, so long as they live -- means that ownership of and possession of those weapons cannot extend to the original owners' heirs. The drafters of the Safe Act undoubtedly intended to preclude the lawful ownership and possession of assault weapons in New York to extend beyond the original, first generation owners of them. The goal of proponents of the Safe Act is, then, to bring about the extinction of weapons defined as assault weapons from the landscape of New York within 50 years or so -- after the last lawful New York resident and owner of an assault weapon dies and the weapon or weapons is surrendered to the appropriate Government official for transfer to someone out-of-State or, otherwise, is surrendered to the appropriate Government official for no other purpose than for destruction.Similarly, a New York resident and gun owner who lawfully came into possession of a “large capacity ammunition feeding device” prior to enactment of the Safe Act may continue to possess that device, but he or she cannot lawfully transfer it to another law-abiding eligible New York resident in the State, including an heir, unless, once again, the heir is also a licensed gun dealer or falls under another exemption. As with firearms defined as assault weapons, the goal of proponents of the Safe Act is to bring about the extinction of large capacity ammunition feeding devices from the landscape of New York within 50 years or so -- once again, after the last lawful owner of such a device dies.

LET'S TAKE A LOOK AT THE APPLICABLE NY SAFE LAWS

Section 37(H) of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, namely, NY CLS Penal § 265.00(22)(h) bans the transfer of large capacity ammunition feeding devices. NY CLS Penal § 265.00(22)(h) says: “Any weapon . . . and any large capacity ammunition feeding device that was legally possessed by an individual prior to the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to  an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer. An individual who transfers any such weapon or large capacity ammunition device to an individual inside New York state or without complying with the provisions of this paragraph shall be guilty of a class A misdemeanor unless such large capacity ammunition feeding device, the possession of which is made illegal by the chapter of the laws of two thousand thirteen which added this paragraph, is transferred within one year of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph.” Now, NY CLS Penal § 265.00(22) talks specifically about banned weapons, namely weapons defined as assault weapons under Section 37(A through F) of the New York Safe Act, as codified in Subdivision 22(a through f) of Section 265.00 of the Penal Code, namely, NY CLS Penal § 265.00(a through f); and those Sections of the Safe Act must be read in conjunction with Section 37(H) of the Safe Act as codified in NY CLS Penal § 265.00(22)(h). Be advised, failure to comply with these obligatory Sections will subject the New York gun owner to a Class A misdemeanor charge. And, if that happens, the gun owner will lose his or her handgun license and, where applicable, namely, in New York City, the gun owner will lose his or her rifle and shotgun permit as well. That means the gun owner will can no longer lawfully own and possess firearms in New York.But, we are not discussing here the ramifications of the New York Safe Act on those who are in lawful possession of assault weapons, who wish to lawfully dispose of them. The weapons we are talking about here are permitted weapons under the Safe Act. But, many ammunition feeding devices – specifically, “large capacity ammunition feeding devices” manufactured with the weapon, are not. Those devices are banned under the Safe Act. How do we know this? We know this because the NY Safe Act says so. The Safe Act, as we have seen, specifically, in Section 37(H) of the New York Safe Act, as codified in Subdivision 22 of Section 265 of the Penal Code, namely, NY CLS Penal § 265.00(22)(h), explicitly and categorically tells the gun owner that “large capacity ammunition feeding devices” are banned in New York.The Safe Act incongruously views a weapon and the ammunition feeding device as two separate devices – not as an integrated whole weapon. We explain. But, first:

WHAT IS A LARGE CAPACITY AMMUNITION FEEDING DEVICE?

A large capacity ammunition feeding device – typically an ammunition magazine – is a legal fiction, just as the notion of an ‘assault weapon’ is a legal fiction. A large capacity ammunition feeding device is a legal fiction created by the drafters of the Safe Act. The drafters of the Safe Act, obviously enough, created this legal fiction to further whittle down the number and kinds of weapons a gun owner might lawfully own and possess.The New York Safe Act defines a ‘large capacity ammunition feeding device’ in Section 38 of the New York Safe Act. Section 38 of the Safe Act is codified in subdivision 23 of Section 265.00 of the Penal Code of New York, namely, NY CLS Penal § 265.00(23). NY CLS Penal § 265.00(23) sets forth, in critical part: “Large capacity ammunition feeding device means a magazine, belt, drum, feed strip, or similar device that . . . has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.” What does this Section of the New York Safe Act tell us? Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York, namely, NY CLS Penal § 265.00(23), tells us that an ammunition feeding device that is capable of holding more than 10 rounds of ammunition is, by law, a banned and, therefore, illegal device. Granted, a large capacity ammunition feeding device isn’t a weapon itself; it is simply a component of a weapon – a critical component to be sure, but a critical and banned component nonetheless.Now, be aware what NY CLS Penal § 265.00(23) does not say. NY CLS Penal § 265.00(23) does not say – nor does it suggest – that it is legal to own and possess a large capacity ammunition feeding device so long as a person keeps fewer than 10 rounds in it. No. The Safe Act makes abundantly clear -- and it is enough -- that merely possessing a “large capacity ammunition feeding device” is illegal if the gun owner happens to gain possession of it subsequent to enactment of the Safe Act. So, that large capacity ammunition feeding device can be empty. Your possession of it under NY Safe is still illegal, whether the magazine is completely filled with cartridges, partially filled with ammunition, or is, simply, completely empty.But, is there such a thing, under New York law, of a weapon that is legal to own – that isn’t also an assault weapon under the Act – but comprises a component part that is itself illegal? The answer is: Yes!Now, to prove our point, let’s consider a firearm that a New York resident and citizen of the United States can lawfully possess and transfer to eligible recipients in New York – including, then, a weapon that a gun owner can transfer lawfully to one’s eligible heirs – but one that incorporates a large capacity ammunition feeding device that cannot be lawfully transferred to a New York resident and citizen of the United States, unless, again, that New York resident and U.S. citizen falls within a specific exemption in the law.

AN EXAMPLE OF A FIREARM PERMITTED UNDER THE NY SAFE ACT THAT INCLUDES AN AMMUNITION FEEDING DEVICE THAT IS NOT PERMITTED UNDER THE SAFE ACT

One good example of a semiautomatic handgun that the Safe Act does not ban is the popular Glock 17. As the name suggests, the Glock 17 has a magazine that holds 17 rounds of 9x9mm cartridges.The Glock 17, sans the 17 round magazine, is perfectly legal for an eligible New York resident and U.S. citizen to own and possess. That means the Glock 17 is not defined as an assault weapon under the Safe Act. How do we know that? Well, let’s take a look at what the New York Safe Act says.Section 37(C) of the Safe Act is codified in subdivision 22 of Section 265.00(22)(c) of the Penal Code of New York, namely, NY CLS Penal § 265.00(22)(c).  That Section, NY CLS Penal § 265.00(22)(c), says, “Assault weapon” “means a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or (viii) a semiautomatic version of an automatic rifle, shotgun or firearm.” Let's first look at and apply the above definition of an assault weapon. The definition of a handgun that is also an assault weapon under the Safe Act is also the test you use to determine whether your own handgun is also an assault weapon and therefore a banned weapon under the Act. So, let’s see if a stock Glock 17 that is manufactured to be sold in the civilian market is an assault weapon under the Safe Act.According to the manufacturer’s website, a stock Glock 17 weighs 25.06 ounces unloaded. It does not have a folding or telescoping stock; nor does it have a thumbhole stock. It does not have a second handgrip or a protruding grip that can be held by the non-trigger hand. It does not have the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip. Moreover, a stock Glock 17 does not have a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer. Lastly, a stock Glock 17 that is designed for the civilian market is not sensibly a semiautomatic version of an automatic rifle, shotgun or firearm, whatever that means.So, we can conclude with reasonable certainty, that a stock Glock 17 as designed for the civilian market is not an assault weapon under the Safe Act. An eligible New York resident and U.S. citizen can therefore lawfully own one. And you will note, there is nothing in the definition of a pistol that is also an assault weapon that talks about magazine capacity. But, Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York creates a problem for the New York gun owner who lawfully owns and possesses a Glock 17 and wishes to transfer the gun to another eligible New York resident and citizen of the United States. For, NY CLS Penal § 265.00(23) says that it is unlawful for a New York resident to lawfully possess an ammunition feeding device that is capable of holding more than ten rounds of ammunition if that eligible New York resident happened to come into possession of that ammunition feeding device after enactment of the Safe Act.What all this boils down to is this: If you are a New York resident and U.S. citizen that lawfully came into possession of a stock Glock 17 semiautomatic pistol with, reasonably enough, the stock ammunition magazine that was manufactured with and for the Glock 17, prior to enactment of the New York Safe Act, and you wish to transfer that Glock 17 semiautomatic pistol to another eligible New York resident and citizen of the United States, you are permitted, under the Safe Act, to do so and that includes, of course, a transfer of the weapon to your heir by testamentary bequest.  But, what you cannot do– what you are absolutely forbidden from doing – is attempt to transfer to an otherwise eligible New York resident and U.S. citizen, including, particularly, your eligible heir who also resides in New York – the 17 round capacity ammunition magazine that came with the weapon, unless that New York resident is also a licensed New York gun dealer or is otherwise exempted from the applicable provisions of the Safe Act.Again, you can only lawfully transfer that 10+ ammunition magazine to a New York resident and U.S. citizen who happens to be exempted from the applicable provisions of the Safe Act, such as a New York licensed gun dealer, or you can lawfully transfer that 10+ round capacity ammunition magazine to an eligible recipient who resides outside the jurisdiction of New York, or you can simply surrender that device to the appropriate official for destruction.As you can see, the New York Safe Act is horribly convoluted, ill-conceived, poorly drafted, and wrongly enacted. That the New York Safe Act exists and operates in New York at all says much about some – all too many – New York Legislators’ and Government Officials’ who wanted it, who campaigned for it, and who show, even to this present moment in time, a marked contempt for and condescending attitude toward New York residents and citizens of the United States who wish merely to exercise their sacred Second Amendment right to keep and bear arms.In Subpart 2 of Part 5 of this multi-part series Article, that we will present to you shortly, we look at the issue of ammunition. Can ammunition be lawfully transferred from one eligible New York gun owner to another or do strict controls exist in New York on the transfer of ammunition from one New York resident and U.S. citizen to another? Little if anything is said about this. We carefully examined the laws of New York. The answer may surprise 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) and Vincent L. Pacifico (Orca) All Rights Reserved.

QUESTIONS THE NEW YORK GUN OWNER SHOULD ASK BEFORE TRANSFERRING GUNS BY TESTAMENTARY WILL TO ONE’S HEIRS

PART 4: Given The Obvious Difficulties For A New York Resident And Gun Owner Who Wishes To Transfer Firearms To One's Heirs - How Should A Firearms' Owner Proceed If He Or She With BEQUEST Of Firearms To Heirs?

In the previous post of this multi-series article we looked at several New York Statutes impacting the transfer of firearms to one’s heirs. In this post we deal with the technical problems associated with bequests of firearms.To begin, the owner of a firearm or collection of firearms must, of course, be mindful of the laws pertaining to bequests of firearms. And, let it be understood, we are here talking about lawful ownership of firearms and the lawful transfer of firearms, not criminal possession and criminal transfers of firearms.In theory, at least, proponents of NY Safe would likely argue that your firearms are, indeed, your private property. Of course, if that were true, then you would have absolute control over them as well as exclusive ownership of them. After all, that is what the concept of private property means: exclusive ownership and absolute control. And, too, if that were the case, we would not need to spend considerable time, as we have done, discussing bequests of firearms. However, in New York, while you do have exclusive ownership of your firearms – that is to say, your firearms are not the property of the State, and they are not the property of the public at large – you never have absolute control over them. Thus, the statement, "a New York resident has absolute control over his or her firearms," is not truly an accurate one.  Indeed, the idea is highly implausible even to contemplate in a jurisdiction such as New York. Just take a look at the numerous New York laws that negatively impact your control over your own firearms and the specific manner in which your control over those firearms is constrained and restricted! In that regard, if you haven’t already done so, we ask that you take a look at the earlier installments of this multi-series Article: Part 1, Part 2, and Part 3. Doing so will provide you with the conceptual framework you need upon which you can truly understand and appreciate the insidious way in which the New York Safe Act and other New York antigun laws associated with it operate to rob a New York gun owner of the private property interest one has in one's own firearms. You will then be able to place this particular post, Part 4, in the proper context and make maximum use of it as you begin to draft for the first time your testamentary will or otherwise prepare to modify a presently existing testamentary will, to provide for the lawful transfer of your firearms to your heirs.So, if you live in New York and you own and possess firearms, you don’t have absolute control over those firearms, in view of the numerous laws and regulations mandating and detailing how they are to be used and kept. And, the executor of your estate has even less control over them once you are gone, as your executor attempts to transfer the firearms to your heirs. So, in the absent of absolute control over your firearms, you do not have the enjoyment of your firearms while you are alive. And your heirs may not be able to obtain lawful possession of them upon your death.You cannot transfer your firearms to whomever you want whenever you want, during your lifetime. And, your executor may not be able to transfer them at all to your heirs upon your death, regardless of your wishes as expressed in your testamentary will.You are always in danger of losing possession of your firearms at the whim of the State while you are alive. And the State may deny you the right to transfer the firearms to your heirs, through your testamentary will, once you are gone. And, be advised, we are here concerned about transfers of guns after you die – in other words, bequests of firearms to one’s heirs. We are not dealing with the problems attendant to gun transfers while you are alive, which pose their own set of problematic issues.Moreover, as we have heretofore pointed out, although you can, in your will, bequeath your firearms to whomever you wish, that means nothing if nothing can come of it. In other words, a bequest that cannot be effectuated is no real bequest at all. The effectuation of a bequest is what matters: whether the person to whom you make a bequest of firearms is eligible, under the law, to possess them. And, that is what really counts to the testator and to the eventual heir who hopes to inherit the testator’s firearms.So, when making one or more bequests of firearms, you must consider the possibility, a real possibility, that your legatees – that is to say the prospective heirs of your gun collection, as stipulated in your will – may not be able to hold and keep them.To assist you in preparing your will, if you are an owner of firearms and wish to bequeath your firearms to one or more heirs, we have prepared, for you, first, a series of questions that you, as a testator – the maker of the will – ought to ask yourself. These are questions that you, as testator, should ask whether you own one firearm, or a few firearms, or a substantial number of them -- one or more of which may be part of an extremely valuable and rare collection -- when preparing your will. And, we have provided you, second, a checklist that you may find helpful and that you may wish to utilize, as well, when considering the transference of your firearms to one or more heirs.

A WORD OF CAUTION BEFORE WE PROCEED:

We are not providing you here with advice on how to draft a testamentary will. We could not do that even if we wished to do so. That is a legal matter, and we strongly suggest you retain the services of a licensed attorney to assist you in that endeavor. Furthermore, in that regard, be advised there is no such thing as a “simple will.” As everyone is a unique individual – a truth that antigun proponents refuse to accept or to concede – and as every unique individual has his or her own unique set of needs and wishes and concerns and circumstances, a will must be drafted to meet that individual’s unique needs and wishes and concerns and circumstances. Only a licensed attorney can best provide those services for you. There are no shortcuts; there is no person other than a licensed attorney who can properly assist you; and, where firearms are included in one’s estate, specific, considerable, and formidable obstacles exist to will formation that would not otherwise exist. Therefore, the need for a licensed attorney becomes critical. The need for a licensed attorney to assist the testator in drafting his or her will becomes critical because the executor or administrator of the decedent's estate, who first comes into possession of the decedent's firearms, is at considerable risk of incurring misdemeanor or even felony charges for failure to properly and timely deal with those firearms in strict accordance with law.The most important consideration here is, then, that neither the executor of your estate, on the one hand, nor your heirs, on the other, runs afoul of the law once you are gone and your firearms remain to be disposed of. For, the last thing that you would wish to leave the executor or administrator of your estate, and your heirs, is a nest of trouble. And, the existence of firearms in one’s hands in a jurisdiction like New York is, unfortunately, an invitation to trouble – as much, if not more so, for the law-abiding New York resident and U.S. citizen, as for the criminal, the latter of whom couldn’t care less about New York gun laws.What we are providing for you here is a solid foundation for one sort of bequest that you will be making -- a bequest of firearms to your heirs.  If you can answer the questions we provide for you, that will go a long way in assisting your attorney when he prepares your will for you.

QUESTIONS THE NEW YORK GUN OWNER SHOULD ASK BEFORE BEQUEATHING FIREARMS TO ONE’S HEIRS

Below are several of the questions you should ask yourself if you are a New York resident and happen to own one or more firearms and wish to bequeath that firearm or those firearms to others upon your death. Indeed these are the questions we would ask of ourselves. In fact, if anyone who is reading this post is a firearms’ owner, who resides outside New York and who resides in a jurisdiction that might be considered friendly to, or, at least, friendlier to possession of firearms by residents and U.S. citizens, consistent with the import and purport of the Second Amendment, several of the questions set forth below are certainly applicable to your jurisdiction as well, to the extent that you wish to plan now for, or in the foreseeable future for, the disposition of your firearms – your private property – to others upon your death.

ONE FURTHER POINT BEFORE WE PROCEED

The information we are providing for you below is a distillation of and expansion on certain content found in the following law review article: Note: A Testamentary Gift of Felony: Avoiding Criminal Penalties From Estate Firearms," Nathan G. Rawling, 23 Quinn. Prob. Law Journal 286 (2010). The author of the law journal article may disagree with our interpretation of and application of various material that appears in his Note. Be that as it may, we mention the law journal article in order to give due credit to the source for much of the information that follows even if the manner in which we use that information here differs from the manner in which the author himself uses it in his Note, or might wish to use it for other purposes at a later point in time.

QUESTIONS A GUN OWNER SHOULD ASK WHEN CONSIDERING A DISPOSITION OF ONE’S FIREARMS TO ONE’S HEIRS

First, what procedures must the executor of my estate and my heirs be aware of and adhere to when coming into possession of my firearms so as to avoid criminal liability? We have, in this multi-part series, provided you with most, if not all, of the major New York Statutes you must be aware of. There might be others -- at least laws tangentially related to and directed to bequests of firearms.  And, they must all be construed together. The statutes that we have given you here provide your executor – or your heir, if the heir himself or herself is the first person to come into contact with the firearms upon your death – with his or her duty under the law. For example, and most importantly, upon your death, whoever comes into contact with firearms must surrender them to the appropriate authority within 15 days of receipt of them. Failure to do so may result in a felony charge.Second, does the bequest of a particular asset involve an item defined as a firearm? This might not be as obvious at first glance as you may think. For example, suppose you have a firearm that has been rendered permanently inoperable. Does that firearm constitute a firearm qua firearm under the law? And, suppose you have an item that has the appearance of a true, functioning firearm, but it is a “dummy.” Do you still treat it as a firearm under the law? Suppose the firearm is an antique – or a quasi-functioning firearm such as an old musket or wheel lock? Is that object treated as a firearm under the law? Is a “starter pistol” classified as a firearm under the law? You must be prepared to answer these questions.Third, of those objects that I have reason to know are firearms, how are they categorized? Which firearms are pistols? Which firearms are rifles? Which firearms are shotguns? Be prepared to describe the firearms with particularity. Fourth, how many, if any, of my firearms are defined as an assault weapon under New York Law?For New York residents and residents of other States that have laws specifically defining certain weapons as assault weapons and strictly controlling ownership and possession, of them, this question is a particularly critical one, to be given particular consideration to.Fifth, how many, if any, of my firearms are classified as a ‘machine gun’ under New York law; and how many of them are classified as ‘selective-fire weapons’? Does New York law distinguish between selective-fire weapons and full-auto only weapons in its classification scheme? Do selective-fire weapons and full-auto only weapons fall under the nomenclature of assault weapons under New York law? Actually, under New York law selective-fire weapons and full-automatic weapons are not defined as assault weapons under. However, under Connecticut law, selective-fire weapons and full-automatic weapons are also defined as assault weapons.Sixth, are each of my heirs eligible to possess firearms? Suppose that each of my heirs is eligible to possess firearms at the time I draft my testamentary will. But, how do I know that my heirs will be eligible to possess firearms in the future? Suppose I have four heirs and I have a substantial number of firearms that I wish to bequeath to each of them. Now, suppose, further, that, at the time I am preparing my will, each of my heirs has a valid pistol permit; that two of my heirs live in New York City; that one of my heirs lives in upper State New York; and that one of my heirs lives in Connecticut. Suppose further that, of the two heirs who live in New York City, one of them has a valid rifle and shotgun permit, but the second one doesn’t. How do these specific facts affect the eligibility of each of my heirs to receive the specific firearms I wish to bequeath to each of them?Seventh, what are the applicable State laws? Apropos of the above example,  you must be mindful of both New York law and Connecticut law. Both jurisdictions have exceedingly restrictive gun laws, but one, Connecticut, allows an eligible person to receive a firearm defined as an assault weapon. New York does not. As you may recall, we pointed out that, in New York, assault weapons can only be lawfully possessed by the original owner. Assault weapons cannot be transferred to anyone else, including a blood relative and prospective heir to firearms. In Connecticut, they can.Eighth, what are the applicable Federal Laws? We haven’t discussed this, but you must be mindful of the possible impact of Federal laws on gun transfers. There are the Gun Control Act of 1968 and the National Firearms Act of 1934 both of which regulate transfers of guns and the National Firearms Act of 1934 also imposes a tax on gun transfers.Ninth, what are the penalties for failure to follow – to the letter – the applicable State and Federal Laws? You must know the penalties and, to avoid, the penalties, you must know the law. The old adage, “ignorance of the law is no excuse,” is one that gun owners should burn in their memory.Tenth, what do I need to know about gun transfers to heirs who live in another jurisdiction? If an heir to a bequest of firearms lives in another State, you must know and adhere to the requirements of transfers of guns to that resident who lives in a State other in New York. The requirements pertaining to gun transfers may be just as stringent in another jurisdiction as they are in New York. Even so, the laws pertaining to transfers will undoubtedly differ in several respects from one jurisdiction to another, and the very definition of ‘assault weapon,’ in particular, will differ from one State to the next. You must comply with the laws of each jurisdiction in which your firearms happen to be located and your heirs happen to reside.Eleventh, what happens if one of my heirs who is eligible to receive firearms at the time I draft my will, becomes ineligible to receive firearms at the time of my death? Your will should provide the executor with appropriate alternative instructions in the event that certain classes of firearms cannot be transferred to a particular heir or if it comes to light that a particular heir is no longer eligible to receive firearms at all or if the heir simply doesn’t want to take possession of one or more firearms.Twelfth, what do I do if the law pertaining to firearms changes? This is analogous to the question immediately above. Often – all too often of late – firearms laws become ever stricter. Ever more types of firearms become banned. And eligibility requirements become stricter. Once again, the maker of a will, the testator, should provide the executor of the estate, with specific instructions if it becomes evident that the bequest of firearms becomes too difficult to comply with or altogether impossible to administer. Ultimately, the testator may be compelled to sell the entirety of the collection of firearms well prior to his or her death in order to maximize the best price for the firearms. This would be unfortunate but would prevent headaches for the executor and heirs and would prevent the imposition of felony charges for failure to adhere to “the letter of the law” when coming into possession of the testator’s firearms.

A CHECKLIST FOR TESTATORS WHO OWN FIREARMS AND ARE IN THE PROCESS OF DRAWING UP THEIR TESTAMENTARY WILLS

• Accurately describe all firearms in your collection
• Be sure to provide the executor or administrator of your estate with clear, comprehensive, and explicit instructions for disposing of your firearms, so that all Federal and State gun laws, as well as applicable local ordinances, are adhered to.
• Determine whether each of your heirs to whom you wish to bequeath one or more firearms is eligible to own firearms generally, and, further, is eligible to possess the particular firearms you wish to bequeath to each heir.
• Confirm that each of your heirs has the necessary pistol licenses and, where applicable, such as and namely, New York City, a valid long arm permit.
• Do your heirs all live in New York? if not, what other State do one or more of your heirs live in, to whom you wish to bequeath one or more of your firearms?
• Are you familiar with the laws of each jurisdiction in which you own and possess firearms and in which each of your heirs live to whom you wish to bequeath your firearms?
• Are you familiar with the possible impact of Federal law on transfers of firearms to heirs. Little is said about the operation of Federal law. And we have not gotten into that here. But Federal Law as well as State law may have a decisive impact on the transfer of some or all of your firearms.
• Are any of your firearms classified as ‘assault weapons’ under the law of the jurisdiction where your heir or heirs reside, if other than New York?
• Do you own weapons that are classified as ‘machine guns?’ If so, you must definitely be familiar with Federal law as well as State law, concerning the transfer of those weapons to your heirs. There are specific eligibility requirements for ownership of and possession of fully automatic and selective fire weapons.
• If you own guns defined as machine guns, do your heirs have the appropriate current and valid federal licenses that would allow them to take possession of machine guns?
• Have you confirmed whether your heirs even wish to own and possess the particular firearm or firearms you wish to bequeath to them? You may presume, wrongly, that your heirs wish to take possession of your firearms. This is one type of property – unlike jewelry or expensive art or gold bullion or blue chip stocks or cash – where your presumption may be completely erroneous.
• Suppose, at the time of your death, one or more of your heirs, to whom you wish to bequeath your firearms, is no longer eligible to possess firearms. Or, suppose New York gun laws change and eligible recipients of your firearms, at the time you made out your will, are no longer eligible to receive certain firearms. Have you made arrangements for an alternative disposition of your firearms in the event that one or more of your heirs, to whom you wish to bequeath your firearms, is no longer eligible to possess firearms at the time of your death because of changed circumstances in that person’s life or in the event of further yet more draconian changes in New York gun laws that make it impossible for an executor or administrator to lawfully transfer firearms to your heirs?
• What are the penalties that your executor, or administrator or heirs might face for failure to adhere to all applicable laws pertaining to the lawful transfer of and possession of firearms? Know those laws! And, be certain that the executor or administrator of your will and that your heirs, too, are knowledgeable about the laws.

UPCOMING INSTALLMENT

In the fifth and final installment of this multi-series Article, we will discuss a few other matters we have not previously touched upon – matters that are directly related to bequests of firearms. For example, one might assume that the New York gun owner, like a gun owner residing anywhere else in the United States, will have a store of ammunition for one’s firearms. That is only reasonable. And the gun owner will likely wish to bequeath ammunition to one’s heirs, along with one’s firearm or collection of firearms. That, too, is only reasonable. And, York law has much to say about commercial transactions involving ammunition. Yet, New York law has virtually nothing to say about transfers of ammunition that do not involve commercial transactions. So, can a testator bequeath his or her ammunition to the testator’s heirs? We will get into that in Part 5 of this multi-series Article.And, then there is the issue of “large capacity ammunition feeding devices (magazines).” The New York Safe Act treats so-called large capacity magazines, separate and apart from the firearm itself. So, the firearm and the magazine are two distinct devices under New York law. Thus, the New York resident may have a firearm that is in fact, legal, but may have a magazine for that weapon, that, itself, isn’t legal, even though the magazine came with the gun – was, in fact, clearly, a critical component of the gun. Indeed, imagine, a gun dealer selling you a semiautomatic, but refraining from selling you the magazine that the manufacturer designed for it, to be used and sold together with it. Can a large capacity feeding device be transferred to heirs, along with the weapon that was manufactured with it, insofar as the magazine, reasonably, ought to be construed as integral to the weapon and would certainly have been sold with it? For, otherwise, why would an individual choose to purchase a semiautomatic weapon without the magazine? Would a person wish to purchase an automobile without the engine? The New York Safe Act creates, for the law-abiding New York gun owner, an “Alice and Wonderland World;” a place where things are not always as they seem; a place where you must leave your reason and sanity at the door before entering. If a testator can transfer a semiautomatic firearm to his or her heirs, can that testator also transfer the “large capacity ammunition feeding device” that came with it? We will discuss the ramifications of that question in the next installment of this multi-series Article as well.We will also talk about police officers -- but not in their professional capacity as police officers. We will be addressing the issue of bequests of firearms to police officers. Does New York law treat bequests of firearms to police officers any differently from bequests of firearms made to a New York resident who is not an active duty police officer or is not a police officer retired from the force?Of course, a police officer may lawfully possess and use so-called “assault weapons” when on active-duty, and, while on active-duty, the officer will most likely have access to “large capacity ammunition feeding devices” as well. Perhaps that officer may, and probably can, in accordance with Departmental policy, possess and use that same weapon when off-duty, too. That isn't our concern here. What is of concern here and relevant to the discussion, is whether that officer may receive and possess a non-departmental assault weapon as a bequest, for example, from a dying uncle, who happened to have purchased it lawfully prior to enactment of the NY Safe Act and who had timely registered it subsequent to enactment of the Act, in strict accordance with the Act. The answer to that question may surprise you. The answer may, in fact, surprise many New York police officers as well. We will deal with that matter as well in the upcoming fifth and final installment of this multi-series Article.[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.

The NY Safe Act Strips New York Gun Owners of Property Rights in Their Own Guns

PART 3: A LOOK AT THE NEW YORK SAFE ACT AND RELATED NEW YORK STATUTES THAT DEPRIVE GUN OWNERS OF THEIR PRIVATE PROPERTY INTEREST IN THEIR OWN FIREARMS

CAPSULE SUMMARY

In this installment of our multi-series article on New York's mangling of the private property right interest in one's firearms, we look at actual New York Statutes that deprive New York gun owners of that property rights interest in their own guns from the specific standpoint of bequests of firearms. We list the Statutes, describe them, and explain how they operate to defeat one’s private property interest in one’s firearms as the Statutes. We explain how New York Statutes interfere with one’s right to make bequests of firearms to one’s heirs and, so, undermine one's property interest in one's own firearms.We will show you that, under present New York law, a New York resident and citizen of the United States does not have absolute control over his or her own firearms. That means that one’s private property interest is not preserved. If so, that is in contravention to the U.S. Constitution and in contravention to the New York State Constitution as well.Be forewarned: what follows is not a simple matter under discussion. But for New York gun owners it is certainly a critically important one. As failure to adhere to New York gun laws can create very serious issues for the executor of one's estate and for one's heirs.

NEW YORK STATUTES THAT OPERATE TO RESTRICT OR DEPRIVE A PERSON FROM TRANSFERRING ONE’S FIREARMS – ONE’S PRIVATE PROPERTY – TO ONE’S HEIRS

Now, let us begin.

HOW NEW YORK LAW DEPRIVES NEW YORK RESIDENTS AND CITIZENS OF THEIR ABILITY TO TRANSFER THEIR FIREARMS TO THEIR HEIRS IN CONTRAVENTION OF AND IN DEFIANCE OF A DECEDENT’S SPECIFIC BEQUESTS

22 NYCRR § 207.20 says, “the fiduciary or attorney of record [of a decedent’s estate] shall furnish to the court a list of assets constituting the gross estate for tax purposes, but separately listing those assets that either were owned by the decedent individually including those in which the decedent has a partial interest, or were payable or transferrable to the decedent’s estate; and those assets held in trust, those assets over which the decedent had the power to designate a beneficiary, jointly owned property, and all other non-probate property of the decedent.”The New York Safe Act adds a new and noxious wrinkle to the requirement in 22 NYCRR § 207.20. Under Section 53 of the Act, codified in the Surrogate Court’s Procedure Act, NY CLS SCPA § 2509, titled “Firearm’s Inventory,”  because a decedent’s firearms’ collection must be delineated with particularity. That list must be filed not only with the surrogate’s court for probate, but also with the division of criminal justice services.NY CLS SCPA § 2509, says, “Whenever, by regulation, rule or statute, a fiduciary or attorney of record must file a list of assets constituting a decedent’s estate, such list must include a particularized description of every firearm, shotgun and rifle, as such terms are defined in section 265.00 of the penal law, that are part of such estate. Such list must be filed with the surrogate’s court in the county in which the estate proceeding, if any, is pending and a copy must be filed with the division of criminal justice services.”At first glance, it’s clear that a person’s gun collection is separated out from a decedent’s other assets for special and undesirable treatment because a fiduciary or attorney of record must send an inventory of those firearms’ assets to the division of criminal justice service for action. The fiduciary or attorney of record doesn’t do that for other personal property.Section 53 of the NY Safe Act also mandates that a list of the decedent’s firearms must be listed with particularity, consistent with the definitions for ‘assault weapon’ as set forth in Section 37 of the New York Safe Act, as codified in NY CLS Penal § 265.00(22).Section 37 of the NY Safe Act delineates complex definitional constructions of assault weapons. These definitions are not nearly as clear in meaning as the drafters of the Safe Act may have intended.Now, suppose a New York resident and gun collector has guns that are defined as 'assault weapons' under NY CLS Penal § 265.00(22), Section 37 of the NY Safe Act. Can a testator bequeath those firearms to anyone the testator wishes, including and especially, a family member related to the testator by blood? Well, a testator can certainly bequeath particular items of personal property to whomever the testator wants and that includes bequests of weapons, including the testator’s assault weapons. There is nothing in the probate code of New York to suggest otherwise. And that is consistent with the fundamental right of a testator to bequeath his private property to whomever the testator wishes. And proponents of the New York Safe Act would likely argue that nothing in New York law prohibits a gun owner from bequeathing his or her guns to whomever the gun owner wishes. And, that is certainly true, as far as it goes. But, the real question, the pertinent question, is whether the heir or legatee to the bequest can keep those firearms, especially assault weapons. And there’s the rub. The answer to that question is a resounding, “no!”The New York Safe Act proscribes anyone but the original owner of assault weapons from keeping those firearms. And that includes close family members, whom the testator may wish to bequeath those weapons to. So, the bequest of assault weapons to heirs, who are not also licensed gun dealers, is an empty bequest. The testator’s wishes, upon his death, are unconscionably countermanded by the New York Safe Act; and the heir’s desire to obtain the testator’s private property – the testator’s assault weapons in accordance with the testator’s express wishes – to become, then, the new owner of them, as the testator wished – is helplessly and hopelessly frustrated and thwarted.Section 37(H) of the NY Safe Act, codified in the Penal Code of New York, NY CLS Penal § 265.00(22) (h), says, “Any weapon defined in paragraph (e) or (f) of this subdivision and any large capacity ammunition feeding device that was legally possessed by an individual prior to the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer. An individual who transfers any such weapon or large capacity ammunition device to an individual inside New York state or without complying with the provisions of this paragraph shall be guilty of a class A misdemeanor unless such large capacity ammunition feeding device, the possession of which is made illegal by the chapter of the laws of two thousand thirteen which added this paragraph, is transferred within one year of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph.”Section 37(H) of the NY Safe Act, codified in the Penal Code of New York, NY CLS Penal § 265.00(22) (h), means that any firearm, defined as an ‘assault weapon,’ cannot be lawfully retained by anyone other than the original owner of it.So, while an assault weapon can be bequeathed by a testator to an heir, that bequest is more often than not an empty gesture. It means nothing because, once again, the decedent’s heir cannot keep the assault weapon (or assault weapons if there is more than one) for more than a few days even if that heir otherwise holds a valid pistol license and, where required, namely, in New York City, a valid rifle and shotgun permit as well.Section 37(H) of the NY Safe Act, codified in the Penal Code of New York, NY CLS Penal § 265.00(22) (h), is extraordinarily draconian, for it categorically denies ownership of assault weapons by New York residents beyond first generation, original owners.Do you understand what proponents of the New York Safe Act are doing here?Proponents of the Safe Act are destroying the possibility of ownership of entire categories of firearms, defined as assault weapons, to future generations of New York residents and U.S. citizens. This, clearly and obviously enough, to those who read through the NY Safe Act, was the intent of the drafters of the Act.Curiously, even the neighboring State of Connecticut – which does not, by any stretch of the imagination, have gun laws one might call, “liberal,” apropos of firearms ownership and possession, and is not a State that can honestly be said to respect the import and purport of the Second Amendment to the U.S. Constitution  – does not itself deny ownership of firearms defined as assault weapons to successive generations of gun owners who are otherwise eligible to possess firearms. So, Connecticut, unlike New York, respects, to some extent, at least, the possession of firearms classified as 'assault weapons' by heirs to the original owner of them, in its own Statutes, to heirs who are eligible to possess firearms.To be sure, Connecticut, even more so than New York, has devised an undeniably complex, if more comprehensive, system for categorizing those firearms it calls ‘assault weapons.’ See, Conn. Gen Stat. § 53-202a. In fact Connecticut’s system of categorizing firearms is more comprehensive and complex than New York’s system, if less ambiguous overall.But, Connecticut, unlike New York, does not exclude successive generations of families from owning those assault weapons, assuming heirs to one’s firearms are eligible to possess firearms at all. See Conn. Gen Stat. § 53-202b(b)(3), which exempts from transfers of assault weapons, those transfers of assault weapons to heirs. The Statute sets forth a specific exemption for: “the transfer of an assault weapon for which a certificate of possession has been issued under section 53-202d, by bequest or intestate succession, or, upon the death of a testator or settlor: (A) To a trust, or (B) from a trust to a beneficiary who is eligible to possess the assault weapon." New York, unfortunately, does not have a similar statute. Weapons classified as assault weapons cannot be transferred to heirs under any circumstance in New York.

WHAT MUST THE EXECUTOR, ADMINISTRATOR, OR HEIR DO ONCE HE OR SHE COMES INTO CONTACT WITH DECEDENT’S FIREARM OR FIREARM’S COLLECTION?

Once a New York firearms’ owner dies, the executor or administrator of the decedent’s estate who comes into possession of the decedent's firearms, or, otherwise, the heir who comes into immediate possession of decedent’s firearms, has a very short window in which to surrender the firearms to the appropriate official.NY CLS § 265.20(a) (1) (f) of the New York Penal Code says, in pertinent part, “. . . A person who possesses any such weapon, instrument, appliance or substance as an executor or administrator or any other lawful possessor of such property of a decedent may continue to possess such property for a period not over fifteen days. If such property is not lawfully disposed of within such period the possessor shall deliver it to an appropriate official described in this paragraph or such property may be delivered to the superintendent of state police. Such officer shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.”This Section is very important. It tells the administrator, executor, or holder of firearms that the firearms – all of them, not merely those that are defined as assault weapons – must be surrendered to the appropriate authority within 15 days of receipt of the firearms, upon the death of the owner of the firearms.And, who is an appropriate authority who can receive firearms? The first – and lengthy – sentence of NY CLS § 265.20(a) (1) (f) of the New York Penal Code sets forth: “A person voluntarily surrendering such weapon, instrument, appliance or substance, provided that such surrender shall be made to the superintendent of the division of state police or a member thereof designated by such superintendent, or to the sheriff of the county in which such person resides, or in the county of Nassau or in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown in the county of Suffolk to the commissioner of police or a member of the police department thereof designated by such commissioner, or if such person resides in a city, town other than one named in this subparagraph, or village to the police commissioner or head of the police force or department thereof or to a member of the force or department designated by such commissioner or head; and provided, further, that the same shall be surrendered by such person in accordance with such terms and conditions as may be established by such superintendent, sheriff, police force or department.”This means that firearms must not be surrendered to just any governmental official. Firearms must be surrendered to the appropriate official as defined in CLS Penal § 265.20(a) (1) (f) of the New York Penal Code.Now, suppose the administrator, executor, or holder of the firearms of decedent fails to surrender the weapons within fifteen days of receipt of them as the law requires. Well, under NY CLS Penal § 265.01-b, “A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of two thousand thirteen which added this section subject to the registration requirements of subdivision sixteen-a of section 400.00 of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Criminal possession of a firearm is a class E felony.”If a person – namely, the executor or administrator of an estate or the heir to a firearm or firearms, who comes into immediate possession of the firearm or firearms upon the death of the original owner of the firearms – fails, within fifteen days, to transfer the firearm or firearms to the appropriate official – that person is in unlawful possession of said firearm or firearms. Thus, failure to timely transfer a firearm or firearms of a decedent to the appropriate official, upon the death of the decedent – whether such failure to transfer is deliberate or inadvertent – places the possessor of the firearm or firearms in an untenable position. For that person is in felony possession of a firearm. That person is a criminal under New York law!Now, suppose a firearm or collection of firearms is in fact timely delivered to the appropriate official upon the death of the original owner. In that case NY CLS Penal § 400.05(6) says, “A firearm or other weapon which is surrendered, or is otherwise voluntarily delivered pursuant to section 265.20 of this chapter and which has not been declared a nuisance pursuant to subdivision one of this section, shall be retained by the official to whom it was delivered for a period not to exceed one year. Prior to the expiration of such time period, a person who surrenders a firearm shall have the right to arrange for the sale, or transfer, of such firearm to a dealer in firearms licensed in accordance with this chapter or for the transfer of such firearm to himself or herself provided that a license therefor has been issued in accordance with this chapter. If no lawful disposition of the firearm or other weapon is made within the time provided, the firearm or weapon concerned shall be declared a nuisance and shall be disposed of in accordance with the provisions of this section.”The last paragraph of NY CLS Penal § 400.05(6) makes clear that a firearm or other weapon will be disposed of if the party who surrendered the weapon does not arrange for the sale or transfer of it within the applicable time frame – one year from the date that the firearm or collection of firearms is delivered to the appropriate official.And, what does the expression ‘disposed of’ mean? NY CLS Penal § 400.05(2) spells that out bluntly. The Statute says, “The official to whom the weapon, instrument, appliance or substance which has subsequently been declared a nuisance pursuant to subdivision one of this section is so surrendered shall, at any time but at least once each year, destroy the same or cause it to be destroyed, or render the same or cause it to be rendered ineffective and useless for its intended purpose and harmless to human life.”The expression, 'disposed of' by an official” means 'destroyed' by that official.Now, NY CLS Penal § 400.05(1) defines ‘nuisance’ as, “Any weapon, instrument, appliance or substance specified in article two hundred sixty-five, when unlawfully possessed, manufactured, transported or disposed of, or when utilized in the commission of an offense, is hereby declared a nuisance.”We know that any firearm or weapon that is surrendered to the appropriate official by an executor or administrator of an estate or by another lawful possessor of such weapon, namely and particularly, an heir of decedent to whom a bequest of firearms has been made, in accordance with NY CLS § 265.20(a) (1) (f), is specifically not a nuisance under the applicable Statute, NY CLS Penal § 400.05(6), and therefore is not subject to summary destruction.NY CLS Penal § 265.20(a) (1) (f), provides that the officer to whom such weapon (or weapons) has been surrendered, “shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.”NY CLS Penal § 400.05(2) makes abundantly clear that the official – to whom a decedent’s firearms’ collection is delivered, in accordance with NY CLS § 265.20(a) (1), namely within 15 days of a party’s possession of it – cannot summarily destroy the weapons. He is the custodian of them. The firearms are still the property of decedent’s estate. And so long as decedent’s heir to the bequest of firearms timely informs the official as to the ultimate disposition of them, namely, within one year of the date of surrender of those firearms to the official, that official, the custodian of them, is responsible for their safekeeping.This does not mean that the official to whom the weapons are surrendered will perform his or her duty. What, then, is the responsibility of the State when those firearms are prematurely damaged, lost, or destroyed, prior to the one-year time period? That issue turns on whether the official would have known that failure to preserve the firearms violated the owner heir’s clearly established statutory or constitutional rights. See, Maio vs. Kralik, 70 A.D.3d 1; 888 N.Y.S.2d 582; 2009 N.Y. App. Div. LEXIS 8062; 2009 NY Slip Op 8187.In the next installment of this series, Part 4, we will provide you with a checklist for gun owners. Given present New York law, a testator who wishes to bequeath firearms to his living heirs, must be aware of traps and snares that lurk for the unwary.Be advised: failure to consider contingencies may place both the executor of one's estate as well as one's heirs in real danger of incurring felony charges for failure to make proper disposition of firearms in strict accordance with the applicable laws.[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.

EVERYTOWN FOR GUN SAFETY PROMOTES PETITION DRIVE TO UNDERMINE THE SECOND AMENDMENT

There is an old adage that has gained some currency of late. It is this: “keep your friends close; keep your enemies closer.” Some attribute the adage to Sun-Tsu, the brilliant Chinese military genius and strategist, who authored, “The Art of War.” Others attribute the adage to Niccolo Machiavelli, the Italian Politician and Philosopher, who authored, “The Prince.” Whoever first came up with that saying is not a matter of particular importance. What is important is the import of the saying. It is certainly one that any American who cherishes the Bill of Rights ought to keep uppermost in mind. Why do we bring this up? We do so for this reason: to keep you apprised of new developments in the antigun community as we become aware of them, as antigun groups work toward their endgame: Destruction of the Second Amendment to the U.S. Constitution. Forewarned is, indeed, forearmed. The liberal weblog, “AlterNet,” has very recently sponsored a petition drive on behalf of the antigun Group, Everytown for Gun Safety. We cite it here for your perusal, together with links to the webpages that are promoting this drivel._____________________________________________

 Join The Movement To End Gun Violence In America. Join Everytown For Gun Safety. Everytown is a movement of Americans working together to end gun violence and build safer communities. Gun violence touches every town in America. For a generation, change has been thwarted by the Washington gun lobby and by a broken Congress that has failed to take common-sense steps that will save lives. But something is changing. More than 2.5 million mayors, moms, survivors, law enforcement, teachers, gun owners, and everyday Americans have stepped up to demand more of our country and our elected officials -- and it's working. Because of this movement, the NRA is losing its grip on state houses across America. In 2015, we will continue to fight for laws that will keep guns out of the hands of dangerous people by requiring a simple background check for every gun sale. And we'll hold our lawmakers accountable when they put the gun lobby's interests before the safety of our communities. Everytown starts with you, and it starts in your town. Sign up here to help bring an end to gun violence in your community and across the country.As a movement of Americans fighting for common-sense gun policies, we depend on contributions from supporters like you to fund important work to reduce gun violence.Paid for by Everytown for Gun Safety Action Fund. Contributions to Everytown for Gun Safety Action Fund are not tax-deductible.____________________________________________It is not our purpose here to explicate this propaganda for you. It is all nonsense, anyway. However, there are a couple of reasons we are bringing this matter to your attention.First, take a close look at this propaganda advert and petition. Something is missing from it, something important. Do you know what is missing? It is this: "Everytown for Gun Safety Action" is the brainchild of former New York City Mayor, Michael R. Bloomberg. Apparently, Bloomberg doesn't want the public to know that a multi-billionaire is the driving force behind the effort to destroy the Second Amendment to the U.S. Constitution. The Arbalest Quarrel discussed Michael Bloomberg's, "Everytown" organization in depth, when he  first created it, almost one year ago. The Article in the Arbalest Quarrel is titled, "'Everytown for Gun Safety": Bloomberg's Blueprint for Destruction of the Second Amendment?'" "Everytown" is Bloomberg's raison d'etre, since leaving public office.Second, anyone who is ignorant enough to sign Bloomberg's petition is signing away and, in fact, wishing away his or her Second Amendment right to keep and bear arms: a sacred right that one is unlikely to find in the Constitution of any other nation in the world. If a person is willing to sign away even one Constitutional Right, that person obviously can be duped into signing away others. Once gone, one's rights and liberties are gone forever. Autocratic rulers and autocratic ruling bodies seek to reduce individual rights and liberties to a nullity. Destruction of the Second Amendment is a major step in that direction. Michael Bloomberg doesn't want to talk about that, though. He would rather talk about "violence" and, in so doing, he tortuously attempts to tie violence to guns -- inanimate objects. Bloomberg might just as sensibly tie violence to knives, and hammers, and broomstick handles -- the point being that the real issue here isn't guns at all -- it is people -- "dangerous people" as the "Everytown" petition says. And, who, are the dangerous people?  Why, everyone who owns and possesses a gun: people like you and me because, to the antigun crowd, a dangerous person is a person who would wish to own and possess a gun at all. Imagine that! So, don't for a minute believe that Michael Bloomberg's "Everytown" antigun group is concerned only with guns in the hands of criminals, and psychopaths, and lunatics. If that were so, the myriad gun laws in force today would be sufficient, for those laws would be enforced. They aren't. The Everytown petition drive is nothing more than a naked ploy, playing to irrational emotion. It is a devious attempt to obtain support from as wide a swathe of the American population as it can. With that support Bloomberg's "Everytown" organization will certainly attempt, anew, to make a case before the U.S. Congress and before the State Legislatures that ownership of and possession of firearms must be ever more stringently controlled and restricted -- controlled and restricted, ultimately, out of existence.The only real violence here is the violence to our Bill of Rights. Hopefully, the American public will see through the "Everytown" petition charade.[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.

Do New York Residents and Citizens Really Have a Private Property Right Interest in Their Guns?

Part 2: Do New York Residents and Citizens Really Have a Private Property Right Interest in Their Guns?

CAPSULE SUMMARY

In the previous installment of this multi-part series, we discussed the notion of a private property interest as existent in the U.S. Constitution, and we provided you with various legal definitions of ‘property.’ We did this so you would be able to better understand and appreciate how the New York Safe Act and related New York law operate to deprive New York residents and gun owners of their right to effectively transfer their firearms to other individuals, namely and particularly, their heirs, upon the death of the original owners of the firearms.If you wish to give your firearms to your heirs when you die, you need to become familiar with substantially more legal terminology that you will come across in New York law.In this installment, Part 2, we will accomplish two things. First, we will provide you with several more definitions of common legal terminology that appear in New York law that negatively impact a gun owner’s private property interest in his or her own firearms. Second, we will drill down into the notion ‘private property.’ You will come to appreciate that the Founders of our Republic did, in fact, respect the notion of a private property right and private property interest as reflected in the Bill of Rights, and you will also come to understand that New York law insidiously undermines one’s private property right and interest as applied to one’s own guns.

LEGAL TERMINOLOGY YOU NEED TO KNOW

Several legal terminology that you need to have an understanding of and appreciation for include: ‘testator,’ ‘will,’ ‘heir,’ ‘legatee,’ ‘bequest,’ ‘decedent,’ ‘estate,’ ‘executor,’ and ‘fiduciary.’The word, ‘testator,’ refers to “a person who makes a will; esp. a person who dies leaving a will.” A similar word, ‘testation’ refers to the “disposal of property by will.”The term, ‘will,’ – more usually referring to a written instrument – means, ‘the legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death.”The term, ‘executor,’ means ‘a person named by a testator to carry out the provisions of the testator’s will.’The term, ‘fiduciary,’ means ‘a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor.’ So, the executor of a testator’s will owes the testator the duties of good faith, trust, confidence and candor in carrying out the provisions of the testator’s will.Suppose a person doesn’t leave a will. How is the decedent’s property to be disposed of?Every State has laws that determine how a person’s property is to be distributed in the event a person doesn’t leave a will. This process of distribution, in the absence of a will, is called intestate succession. An heir, also referred to as ‘legal heir,’ is ‘a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property.’The term, ‘decedent,’ means, simply, ‘a dead person, especially, one who has died recently.’ And the term, ‘legatee,’ is defined as ‘one who is named in a will to take personal property; one who has received a legacy or bequest.’ Think of the legatee as an heir who is specifically named in a will. The legatee is a person who takes property under the will of the testator.The term, ‘bequest,’ is ‘the act of giving property (usually personal property) by will.’ The verb form of that word, ‘bequeath,’ means, then, ‘to give property (usually personal property) by will.’In this multi-series article we will use the term ‘heir’ to refer generally to a close family relation to whom a decedent’s firearms, as personal property, go, whether by intestate succession or by the written will of the decedent testator.Finally, the term ‘estate’ means, in law, “the amount, degree, nature, and quality of a person’s interest in land or other property.”Let’s consider an example to see how these various legal expressions work.Let’s say, I am a New York resident and I have one adult son. I own and possess several firearms, many of which are extremely rare heirlooms – commemorative editions of rifles, pistols and shotguns, plated in gold and silver. Let us say that much of my wealth is tied to these firearms that, collectively, are worth several thousand dollars, perhaps tens of thousands of dollars, and that, together, they constitute a considerable dollar sum of my estate. I wish to give the entire collection to my son once I am gone. I hire an attorney to draft a will for me. I am the testator of that will. In that will, I bequeath the entire collection of firearms to my son, the legatee and legal heir of my firearms’ collection. I also choose to appoint the lawyer as my executor. As executor of my will, the lawyer has a fiduciary obligation to me is to see that my wishes are fulfilled in accordance with the terms of my will, after I am gone. The executor will have an extraordinarily difficult time executing my will because New York gun laws are extremely restrictive and complex, not at all straightforward.

THE NOTION OF ‘PRIVATE PROPERTY’ IN AMERICA

Before we tackle the problems associated with New York law that generally defeat one’s property interest in his or her firearm or collection of firearms, we need to spend a little more time on the notion of ‘private property.’

Does An American Citizen Really Have A Right In And To Private Property?

We have previously pointed to the Fifth Amendment “Takings clause” as the place where one finds a right of ownership in property. The Fifth Amendment sets forth in full: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”Now, to be clear, the Fifth Amendment doesn’t expressly assert private ownership of property in terms of a specific, expressly asserted “right” in the sense, for example, that the Second Amendment clearly speaks of “the right of the People to Keep and Bear Arms. . . .” Nonetheless, the implication is clear.The last clause of the Fifth Amendment says “. . . nor shall private property be taken for public use, without just compensation.” The expression ‘private property’ does expressly appear in the Fifth Amendment even if the right underlying it does not. Still, the right exists, even if only implied. For, if the right to own property in a personal capacity did not exist, then the “Takings Clause” of the Fifth Amendment would be meaningless. The Federal Government or a State Government would have no duty to provide a person just compensation for one’s property if a “right” in and to that property didn’t first exist. So, the right in and to private property must exist in order to make sense of a Government’s duty to provide just compensation for the taking of it.Basically, the “Takings Clause” of the Fifth Amendment says that no governmental body shall take a person’s private property for public benefit, without compensating the owner justly for it. The expression ‘just compensation’ is understood in law to mean ‘fair market value.’ Now proponents of the NY Safe Act will likely point out that the “Takings Clause” of the Fifth Amendment doesn’t apply here even if New York law does interfere with a gun owner’s desire to transfer his firearms to others. Proponents of NY Safe may argue that such interference with one’s private property – one’s firearms – doesn’t amount to a “Taking” under the Fifth Amendment at all because New York isn’t actually appropriating the firearms. Proponents of NY Safe might point out that the executor of the decedent original owner of the firearms isn’t prevented from selling the guns to a resident outside of New York or selling them to a licensed gun dealer in New York.  Still, one might reasonably respond that, to the extent a firearms’ owner isn’t able to do what he wishes with them – bequeath them to his or her heirs – the result is a constructive taking of them.Moreover, if a firearms’ owner is prevented from transferring his firearms to his or her heirs and the executor of the gun owner’s estate is compelled to sell the firearms in order to realize some monetary gain for them on behalf of the heirs, that gain is likely to be far less than the fair market value for the firearms.  A prospective buyer of the firearms would be well aware that the executor of the firearms’ owner’s estate is compelled to sell the firearms or, otherwise, the prospective buyer could certainly learn, with little effort, that the firearms must be disposed of because the heirs are ineligible under New York law to receive them.But proponents of the NY Safe Act might then argue that the State of New York isn’t taking one’s firearms because, under the Fifth Amendment, the taking of private property must be for a public benefit, and there is no public benefit associated with the firearms. There are two responses to that argument.First, since proponents of NY Safe presume that firearms are, ipso facto, dangerous instrumentalities, whose mere presence constitutes a danger to the public, the interference with one’s private property interest in them does, to the minds of proponents of NY Safe, confer a benefit on the public – namely, the removal of them from private hands. The firearms likely must either be transferred to someone outside the State or destroyed by the police, in the State.The benefit, at least to proponents of the Safe Act, however faulty their reasoning, is that public safety in general is increased to the extent that the number of firearms in private hands is decreased. The benefit to the public might be considered, then, a ‘constructive benefit’ if not an actual benefit. So, interference with one’s private property interest in firearms does amount to a taking for the public benefit. If so, then the Government is itself obligated, under the Fifth Amendment to the U.S. Constitution, to provide the owner’s heirs, the fair market value for the firearms – if New York law does not otherwise permit the owner’s heirs to receive the firearms upon the original owner’s death, pursuant to the original owner’s intent as expressed in his will and if the executor of the estate is unable, after diligent effort, to find a buyer outside the State or a licensed gun dealer inside the State who is willing to pay the executor the fair market value for them.Second, even if the interference with one’s ownership interest in firearms does not really amount to a taking under the Fifth Amendment precisely because no actual public benefit exists, still, in some instances, where private property interests are at stake, the Government’s interference with one’s private property interests may amount to a taking, notwithstanding the absence of a public benefit. The U.S. Supreme Court has held that interference with a person’s attempt to pass property to others upon death may constitute a “per se” taking. See, Hodel v. Irving, 481 U.S. 704, 716-18 (1987). If so, then, New York’s interference with a person’s desire to pass one’s firearms to one’s heirs may constitute a per se taking under the Hodel holding.The concept of ‘private property’ also appears, although tacitly,’ in the Third Amendment to the U.S. Constitution. The Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”The Third Amendment presumption is that a person owns his or her house. One’s house is, then, one’s private property. The Third Amendment makes clear that a soldier of the Federal Government shall not, in peace time, be allowed to enter or to stay in a person’s house unless the owner of the house – that is to say, the owner of that property – so allows it. During times of war, the Government can override the consent of the owner but, any overriding proviso must clearly be set forth in law.How many American citizens do you suppose are familiar with the Third Amendment to the U.S. Constitution? Probably, not many to be sure. Just imagine a circumstance, in the not too distant future, when, as economic calamity strikes this Country, and as our sacred rights and liberties become further eroded, under the guise of “National Security, the police and military demand access to an American’s home, your home. If this idea seems far-fetched, just keep in mind that it is only through the U.S. Constitution that Government in this Country is kept in check. As the mainframe of our Constitution -- the Articles and Sections and Amendments that comprise it -- becomes ignored or defeated – improbable events become likely events, and unlikely events become actual.In the next installment of this multi-series Article We will show you that, under present New York law, a New York resident and citizen of the United States does not have absolute control over his or her own firearms. That means that one’s private property interest is not preserved. If so, that is in contravention to the U.S. Constitution and in contravention to the New York State Constitution as well. We will begin to look at actual New York Statutes. We will list them, describe them, and explain how they operate to defeat one’s private property interest in one’s own firearms as they interfere with one’s right to make bequests of firearms to one’s heirs.[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.

GUNS, PRIVATE PROPERTY RIGHTS, AND THE CONSTITUTION

PART 1: GUNS, PRIVATE PROPERTY RIGHTS, AND THE CONSTITUTION

Question For New York Gun Owners: Do You Think Your Firearms Are Your Private Property? If So, You Are In For A Rude Awakening!The NY Safe Act And Other Provisions Of New York Antigun Laws Wrongly Destroy Gun Owners Private Property Rights And Interest In Their Own Guns.No one can rationally deny that the Second Amendment to the U.S. Constitution is the cornerstone of the right of the American People to possess firearms. Still, scant attention is paid to the private property interest embedded in the Second Amendment right of the People to Keep and Bear arms. And too little attention is paid to the independent nature of private property interests in this Country.The “Takings Clause” of the Fifth Amendment prevents the Federal Government from taking one’s private property without just compensation. The “Takings Clause” of the Fifth Amendment, as directed originally and alone to the Federal Government, applies to the States, as well, through the Fourteenth Amendment.  This means that a State Government, too, is not permitted to take one’s private property without just compensation.The “Takings Clause,” as applied to both State Governments and to the Federal Government operates as a check and safeguard against a Government’s unlawful attempt to secure unto itself the private property of a citizen. Such taking of a citizen’s private property without just compensation deprives and denies a citizen the use and enjoyment of it and destroys the economic value associated with it.In our previous article we discussed generally how New York law undercuts one’s possessory and legal interest in one’s firearms – firearms that are a person’s private property. We discussed how New York law operates to dispossess the owner of his or her personal interest in and enjoyment of those firearms as private property. We pointed to New York law that effectively denies a gun owner the inalienable right to effectuate the bequest of firearms to his or her heirs.We now take a closer look at those New York Statutes that make it extremely difficult for person to transfer his or her private property – one’s firearms – to one’s heirs. By denying a New York resident and citizen of the United States the right to quickly and easily transfer legal ownership and possession of one’s firearms to one’s heirs – assuming the law permits one to do so at all – New York law essentially and effectively deprives the owner of his or her property without just compensation and without due process of law.Because of the length of this article, we have broken it down into several parts. One new part or installment will be posted every day.

NEW YORK STATUTES CONTRAVENE BOTH THE U.S. CONSTITUTION AND NEW YORK’S STATE CONSTITUTION

New York State Statutes operate in derogation to the U.S. Constitution and in derogation of New York’s State Constitution, undermining New York firearms’ owners’ property interest in their own firearms.New York Statutes deprive gun owners of their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. And New York Statutes amount to an unconscionable taking of gun owners’ private property without just compensation in derogation of the Takings Clause of the Fifth Amendment to the U.S. Constitution. New York Statutes are also inconsistent with New York’s State Constitution. New York Statutes deprive gun owners of their private property rights in firearms in contravention to NY CLS Const Art I, § 7(a). That Article prohibits the taking of private property for public use without just compensation. And New York Statutes deprive gun owners of their private property rights in contravention to NY CLS Const Art I, § 11, which states categorically that New York residents and citizens shall not be denied the equal protection of the laws to which they are entitled.

WHAT IS “PROPERTY?”

The words ‘property’ and ‘private property’ are often bandied about. And the meanings of these expressions may seem obvious. But, colloquial meanings aside, you should know what the legal definitions of the words are.Legal definitions of words are important – in fact, critical – because the legal meanings given to words as embodied in law impact your rights and liberties. By the same token, when government officials ignore the plain legal meanings of words, they denigrate the U.S. Constitution, and the American People suffer the consequences.The primary source for the legal definitions of words is Black’s Law Dictionary. The definitions we give you here are those listed in the Ninth Edition of that Dictionary.Property takes one of two forms: personal property and real property. The expression ‘real property’ means ‘land and everything attached to, or erected on it, excluding anything that can be severed without injury to the land.’ We are not concerned with the notion of ‘real property’ here. We are concerned with the notion of ‘personal property.’ The expression, ‘personal property’ means ‘any movable or intangible property that is subject to ownership and not classified as real property.’Intangible personal property refers to intellectual property such as patents and trademarks and copyrights. And we are not talking about intangible personal property here either. We are talking about tangible personal property – that is to say, physical property. Firearms fall within the definition ‘tangible personal property’ because firearms are physical, movable objects, not attached to or erected on land. Now, both real property and personal property can be one of two types: public or private. The expression, ‘public property’ means ‘State or community-owned property not restricted to any one individual’s use or possession.’ The other kind of ‘real property’ and ‘personal property’ is ‘private property.’When talking about firearms, we are referring to ‘private property’ – property that is owned by the individual. We are not talking about property that is owned by the State or property that is owned collectively by the public – that is to say – the community.Your firearms are private property, not public property. Your firearms are not the property of the State and they are not owned collectively by the public. You paid for your firearms out-of-pocket with hard-earned dollars. They belong to you and to you alone. So your firearms are private property – your private property.In law, ‘private property’ means something more than simply property that isn’t State owned or community owned. The expression ‘private property’ means, in law, ‘property protected from public appropriation – over which the owner has exclusive and absolute rights.’ Think about that definition for a moment. The notion of private property exemplifies ideas of exclusive ownership and absolute control by the individual.Your firearms, like the clothes on your back and the automobile in your garage and the gas range and refrigerator in your home, all of which you paid out-of-pocket for, are your private property – property that you have exclusive ownership rights in and to and absolute power over. That is what it means for a citizen in a capitalist society to own property.To the extent that you control your property and to the extent that you have exclusive right to the use and enjoyment of it – to keep it or to sell it or to gift it to another, as you wish – the notion of ‘private property’ is preserved. And, to the extent that your private property rights are infringed or impinged upon, the notion of ‘private property’ is defeated.In the next installment of this article we will provide you with terminology that you need to know to fully appreciate the extent to which the NY Safe Act upends your property interest in your own firearms.[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.

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

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

THURSDAY, FEBRUARY 12, 2015

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

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

PRIVATE PROPERTY RIGHTS AND THE SECOND AMENDMENT

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

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

HOW DID THE NEW YORK SAFE ACT BECOME LAW? LET’S ASK THE “THREE MEN IN A ROOM?

A new scandal has hit Albany, New York – a big one!  The arrest of the powerful New York State Assembly Speaker Sheldon Silver, by the FBI, on Friday, January 23, 2015, has sent shock waves across the State, most likely affecting Governor Andrew Cuomo’s Administration. The arrest of Sheldon Silver on corruption charges has less to do with Silver than it does for the way legislation affecting the rights and liberties of over 20 million New Yorkers has been and continues to be compromised by an elite group of elected officials – the “three men in a room” – Governor Cuomo, Assembly Speaker Silver, and the State Senate leader – whom the Governor has jokingly referred to as “the three amigos.” An overview of the Complaint filed in federal court, on January 21, 2015, bears this point out. It provides a disturbing picture of how business has been conducted in Albany for many, many years. The Complaint says in pertinent part: “Sheldon Silver, the defendant, has engaged in and continues to engage in a secret and corrupt scheme to deprive the citizens of the State of New York of his honest services, and to extort individuals and entities under color of official right, as an elected legislator and as Speaker of the New York State Assembly.”The U.S. Attorney for the Southern District of New York’s filing of felony corruption charges against Silver may cause Governor Cuomo to distance himself from the Assembly Speaker. Cuomo’s own actions cast a bright and disturbing light on Cuomo as well.On July 2, 2013 Cuomo created the Moreland Commission. Its purpose was twofold: to root out the very corruption the Complaint alleges Silver must now answer for and provide better governance for the residents of the State of New York. The Moreland Commission had the potential to be a good thing for New York State residents and it appears to be a bad thing for Silver.U.S. Attorney Preet Bharara, who filed the criminal case against Sheldon Silver on January 21, 2015, had testified before the Moreland Commission more than one year earlier. On September 17, 2013, Bharara pledged “the cooperation and assistance of [his] office with the Commission’s vitally important work.” He added, “Fighting public corruption has been a top priority for [Bharara] for a long while. . . .”Many of New York’s elite Legislators railed against the Commission and sued to have it disbanded. In their own filing, those Legislators argued the Commission’s actions trampled the Legislators’ Constitutional Rights. Imagine that.Less than one year after forming the Commission, Cuomo said, on March 29, 2014, he was disbanding it. On April 3, 2014 the U.S. Attorney for the Southern District sent a letter to the Commission. In it Bharara said he was taking possession of the Commission’s case files. He questioned whether the Governor was abandoning his commitment to fight public corruption. Cuomo, for his part, was petulant. According to a story published in Crain’s Insider on April 24, 2014, Cuomo told Crain’s: “‘It’s not a legal question. It’s my commission. My subpoena power, my Moreland Commission. I can appoint it, I can disband it. I appoint you, I can un-appoint you tomorrow.’” His power seems omnipotent.The concentration of power in New York has been, for many years, in the hands of a Triarchy, reminiscent of the First and Second Triumvirates that ruled ancient Rome. This modern Triarchy consists of the Governor, the Assembly Speaker, and the State Senate Leader. It has worked in secret, under cloak of darkness, without accountability. These three individuals seem to answer only to themselves as if they do not have to account to the public and do not have to account for their actions.Did these “three amigos” engineer the New York Safe Act and thrust it down the throats of New York residents and gun owners sans debate? It certainly seems so.News accounts report that Silver has temporarily stepped down as Assembly Speaker. However, in light of the serious criminal corruption charges the U.S. Attorney has brought against the Assembly Speaker, we question the wisdom of allowing Silver to continue to serve in the New York Assembly at all during the pendency of the case against him.There is another pressing issue that must be addressed. Since the propriety of the actions of “the three amigos” is in question, we feel the New York public has the right – in fact, the duty – to insist on a probe of how the New York Safe Act was drafted; how it was enacted; and, to what extent, if any, the creators of it knew or had good reason to know that enactment of the Act might undermine New York residents’ Constitutional Rights.If corruption is uncovered any step of the way, then the Safe Act should be repealed in its entirety.Despite the fact that some New York residents exhibit animosity toward guns and gun possession, elected officials, including and especially New York Legislators and the Governor, must operate with transparency and fairness on behalf of their constituencies.Any legislation – especially far-reaching legislation, such as the New York Safe Act, that negatively impacts not only one’s Second Amendment Right to keep and bear arms, but one’s Fifth Amendment private property interest in those firearms, and one’s Fourteenth Amendment Due Process and Equal Protection Rights – must be discussed in the light of day, before enactment. The New York Safe Act wasn’t enacted protecting these Rights. The impetus for it and passage of it all took place in secretive session, out of the public view. Why? The “three amigos” must explain their actions.How was the New York Safe Act pushed through the Legislature so quickly? How were these individuals able to get away with this? Did the “three amigos” honestly think they were acting on behalf of the New York public for the benefit of the public, as the mainstream media portrayed them? Or were they merely furthering a private agenda, using the power of their respective Office to systematically deprive millions of New York residents and gun owners of their Rights and Liberties under both the U.S. Constitution and the New York State Constitution? Did political ambitions motivate these individuals? If so, how? These are serious questions. And they deserve serious consideration. The public demands answers. The public demands accountability. New York residents and citizens must speak up. The damage to the Public’s Constitutional Rights and Liberties must be undone. The time to act is now.[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.

GUN RIGHTS ARE NOT SIMPLY EMBODIED IN THE SACRED SECOND AMENDMENT. AMERICANS HAVE A FUNDAMENTAL RIGHT TO THE PRIVATE OWNERSHIP OF GUNS TOO.

GUN RIGHTS ACTUALLY TRANSCEND THE SECOND AMENDMENT; AN AMERICAN’S FIREARMS ARE HIS SACRED PRIVATE PROPERTY. AND ONE’S RIGHT IN ONE’S SACRED PRIVATE PROPERTY SHALL NOT BE INFRINGED EITHER.

Gun collections are private property. This may seem obvious to you. After all the concept of a private property right is deeply embedded in American culture. It is deeply embedded in America’s economic traditions. And it is deeply embedded in the hearts and minds of Americans. The right to own and possess private property is as fundamental a right in this Country as is the freedom of speech under the First Amendment to the United States Constitution and as the freedom to keep and bear arms is under the Second Amendment.Unfortunately, New York law doesn't really treat guns as private property. But, then, New York law views gun possession as a privilege rather than as an inalienable right. So, it should come as no surprise that guns are treated less as private property and more like rental property. We say this because strict limitations are placed on New York residents' ability to transfer their firearms, especially apropos of transfers  of guns or gun collections to heirs. If one's right of enjoyment in and to one's private property were truly honored as a right, then no express or tacit limitation would be placed on one's full enjoyment of that private property. That enjoyment includes the right to dispose of the private property as one wishes, to those whom one wishes to give that property, assuming one wishes to dispose of his or her firearms at all. A person should not be required to dispose of his firearms or firearms' collection if those firearms or collection of firearms are truly private property. Nonetheless, New York Statute tells a person not only when or that he or she must dispose of a gun or collection of guns, but also how a disposal of guns or of an entire gun collection must take place. And the language of gun transfers is laid out not at all succinctly, clearly, and plainly, as one might reasonably expect, but in lengthy, agonizing, and often incoherent detail.

THE RIGHT TO KEEP AND BEAR ARMS ENTAILS THE RIGHT TO OWN FIREARMS AS ONE'S SOLE AND EXCLUSIVE PRIVATE PROPERTY.

The concept of private property rights underlies and precedes the imperative of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” Further, the fundamental right of Americans to own, possess, and enjoy their private property is embraced in the language of the Takings Clause of the Fifth Amendment to the United States Constitution, as specifically applied to the States under the Fourteenth Amendment to the U.S. Constitution. Further, the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution secure for American gun owners the right to enjoy the liberties the Founders of our Republic intended for them as for all Americans. Present New York law denigrates the rights and protections and liberties of New York gun owners.Many New York residents have firearms’ collections worth many tens if not hundreds of thousands of dollars – perhaps millions of dollars. The fair market value of these firearms’ collections is placed in jeopardy by specific language of the NY Safe Act, and in the language of the Penal Code of New York, and, by implication, in other Rules and Regulations of New York. In that regard it is not sound to argue that New York law provides firearms owners with mechanisms through which they can freely transfer, or sell, or otherwise dispose of their firearms to appropriate parties within the State or outside it. For the language of New York law is coercive. New York law often requires a gun owner to sell, transfer, or dispose of a particular gun or an entire gun collection when he doesn’t want to and prohibits him from bequeathing his gun collection to those whom he does want to bequeath his gun collection to. And he obtains little or no monetary compensation for that gun collection. Such coercion is antithetical to free market practices and turns the very notion of a free market on its head.Oddly, Governor Cuomo doesn’t address how a property interest in a firearms’ collection might be secured. We know this to be true as we have checked out the Governor’s website. You can check it out for yourself. This is the link: http://programs.governor.ny.gov/nysafeact/gun-owners.The Governor’s website provides absolutely no information or guidance for New York gun owners who seek to bequeath a gun collection to their next of kin. Doesn’t Governor Cuomo believe this matter to be important? If that is the case, clearly, tens of thousands of law-abiding New York gun owners would disagree with the Governor. They believe this to be a matter of utmost importance. Many of our readers have expressed considerable bewilderment over the matter of transferring gun collections to their heirs, and they have expressed substantial confusion as to the specific manner of transferring gun collections to their heirs.The testator owner of an expensive gun collection who wishes to bequeath a gun collection to his heirs should not be subject to impediments. But he is. New York law takes his expensive gun collection away from him. It takes his private property away from him without justly compensating him for it. And it deprives the New York gun owner of his expensive firearms collection, his private property, in complete derogation of the precepts laid out in the United States Constitution.In fact the taking of a New York resident’s gun collection without just compensation is not only in contradistinction to the United States Constitution; such taking is in derogation of the New York State Constitution, too.NY CLS Const Art I, § 7(a) says, “Private property shall not be taken for public use without just compensation.” A person’s gun collection is his private property and the State essentially takes it from the owner and prospective heirs without just compensation. And, what public use is attendant to this “taking” of the firearms’ collection? Is the public use merely that a police department may, unbeknownst to the gun owner’s heirs, and, in fact, contrary even to the laws of New York, make use of the gun collection sans compensation to the owner’s heirs? Is the public use merely and incoherently that some of the firearms or the entirety of it will be destroyed by the police official and, so, the decedent’s heirs wind up with zero compensation for the firearms? The taking of private property without just compensation is also inconsistent with NY CLS Const Art I, § 11 which sets forth in pertinent part, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof. By failing to safeguard the monetary value of a New York resident’s gun collection, through the taking of it without just compensation, New York clearly and categorically denies to gun owners the equal protection of the laws to which they are entitled.The Bottom line:New York Statute altogether ignores the precepts implicit in the United States Constitution and in New York’s own State Constitution. New York’s governments operate in complete derogation of and, in fact, in unconscionable defiance to the dictates of both. Whether New York residents own firearms or not, they must wake up to the monstrous destruction of sacred rights and liberties, lest they lose all rights and liberties. [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.