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THE MECHANISMS FOR BRINGING DOWN A U.S. PRESIDENT
HOW TO DESTROY A U.S. PRESIDENT
PART THREE
THE FIRST MECHANISM: THE ETHICS IN GOVERNMENT ACT OF 1978—NOW DEFUNCT.
One mechanism to bring down a U.S. President is through Congressional Statute that calls for appointment of independent counsel to investigate and to prosecute crimes of the highest Government Officials, including those crimes, most notably, of a U.S. President, but only after the Attorney General has concluded, after conducting a preliminary investigation of possible criminal conduct, that further investigation is warranted.The Ethics in Government Act of 1978 was designed to ensure ethics and integrity in Government.The expression, “independent counsel” refers here to counsel in private practice: an attorney who is not, then, an employee of the federal Government but who wields expansive authority to undertake criminal investigations and prosecutions of high Government officials.The Act had a sunset provision. It would automatically lapse unless Congress reauthorized the Act and Congress did so: in 1982, 1987, and 1994. But the law lapsed in 1999 after Congress, under pressure from Bill Clinton’s Administration and by the Democratic Party, allowed it to lapse.Fifteen plus years passed, and then two Congressmen, Republicans, Michael Turner and Rick Allen, sought to revitalize ethics and integrity in Government, introducing the Independent Counsel Reauthorization Act of 2016, H.R. 5271, on May 20, 2016. The two Congressmen took this action when it became apparent to them that the U.S. Department of Justice demonstrated reluctance to hold Hillary Clinton accountable for numerous and serious criminal acts—criminal acts conducted during Clinton’s tenure as Secretary of State in the Obama Administration.The Independent Counsel Reauthorization Act of 2016 would have required the Attorney General—at the time, Loretta Lynch—to make provision for appointment of outside counsel, in accordance with the procedures set forth in the Act, to investigate Hillary Clinton’s crimes and to prosecute Clinton for her crimes against this Nation and against the American people. Loretta Lynch would have been compelled to exercise her duty under the Act to relinquish further action by her Department in the Clinton investigation of felonious acts and hand over that investigation to outside counsel through the procedures set forth in the Act.Clearly, Hillary Clinton violated federal law—several laws, serious laws—felonies—and she committed those crimes several times, and over several years, during her tenure as Secretary of State in the Obama Administration.The Arbalest Quarrel has dealt with this matter at length in articles posted on the Arbalest Quarrel website. The Arbalest Quarrel urged Congress to enact the Independent Counsel Reauthorization Act of 2016, as it was clear to us that the Director of the Federal Bureau of Investigation, James Comey, would not recommend indictment of Hillary Clinton, or was pressured not to recommend indictment of Clinton. As of this writing, the Independent Counsel Reauthorization Act of 2016 lies dormant—dead, really, in Committee. See, DEMOCRATS AND CENTRIST REPUBLICANS ARE THE PROBLEM. THERE IS A SOLUTION: IMMEDIATE ENACTMENT OF H.R. 5271; and THE FOUNDATION OF JUSTICE UNDONE BY THE FOUNDATION, CLINTON.THE SECOND MECHANISM: A DEPARTMENT-MADE RULE, CALLING FOR APPOINTMENT OF SPECIAL COUNSELOstensibly, to fill the gap left through failure of Congress to reauthorize the Ethics in Government Act of 1978 or to replace it through passage of another similar Act, such as the one languishing in Congressional Committee—the Independent Counsel Reauthorization Act of 2016, H.R. 5271—the Justice Department on its own initiative promulgated a rule, calling for the appointment of special, outside, counsel. That rule constitutes the second mechanism that might be used to destroy a United States President.The device employed by the Justice Department exists in an obscure federal regulation, falling within TITLE 28, JUDICIAL ADMINISTRATION, CHAPTER VI, OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE, PART 600, GENERAL POWERS OF SPECIAL COUNSEL. The mechanism here establishes the procedures for appointment of independent, private counsel to investigate violation of federal law when a conflict of interest within the Department of Justice precludes the Department from properly, effectively engaging in the investigation and prosecution of federal crimes committed by high ranking public officials. The mechanism is found in federal regulation: 28 CFR 600.1, titled, “Grounds for Appointing a Special Counsel.”It is through this mechanism that the Deputy Attorney General, Rod Rosenstein, intends, like Pontius Pilate, to wash the hands of personal responsibility on his part, on the part of his Office in the Justice Department, and on the part of the FBI, as he quietly sits by to watch the undermining of and possible destruction of the U.S. President, Donald Trump and his Administration, and, the undermining of the Second Branch of Government. We will look at this Rule, at length in a subsequent article in this series.We will seek to answer three questions. The first question is this: Is the federal Rule lawful? Americans often presume, wrongly, that rules a Government Agency promulgates, are lawful. A Government Agency can only promulgate rules in accordance with Congressional intent and objective, as reflected in Statute. When doing so properly, lawfully, agencies promulgate rules to give effect to Statutes—to enforce the laws Congress enacts, within the parameters established by Congress in Statute.This is as it should be under our three Branch system of Government. However, if the Statutes promulgated extend beyond the parameters set forth in Statute—or, in a worst-case scenario, are promulgated absent any Congressional Statutory authority, which means the Government agency has acted unlawfully, becoming, in effect, a Legislative Body unto itself—then such rules must be struck down as unconstitutional.The Second question is this: Assuming the Rule is lawful, did the Attorney General, or his Assistant—in the event the Attorney General recuses himself or herself—properly invoke the rule? There is a general assumption—one that the mainstream media has not investigated and one which Congress has not, evidently, bothered to consider—that the Deputy Attorney General, Rod Rosenstein, did properly invoke the Rule, appointing a Special Counsel. But did he? Once again, before we even get to that question, there is the fundamental question that goes to the constitutionality of the Rule itself. For, if the Rule has not been promulgated lawfully, then the issue whether the Deputy Attorney General had properly invoked the Rule is moot since under no circumstance can a special counsel be appointed because the Rule, under which such special counsel is appointed, is per se unconstitutional.There is a third question we must ask and answer. It is this: Assuming 28 CFR 600.1, titled, “Grounds for Appointing a Special Counsel,” is lawful, and, given that Congress would not enact the Independent Counsel Reauthorization Act of 2016, why didn’t the Attorney General under then President Barack Obama--Loretta Lynch--invoke the 28 CFR 600.1, appointing outside “special counsel” to investigate and to proceed with the prosecution of Hillary Rodham Clinton, who, unlike Donald Trump, did in fact commit unlawful felonious acts under federal law? It appears that the Department of Justice, through the Deputy Attorney General, Rod J. Rosenstein, is willing to invoke the Rule against Trump, with little thought as to the legal justification for the appointment, for there is no compelling, justifiable reason for him to do so as there exists an absence of any credible evidence of criminal wrongdoing on the part of the U.S. President, Donald Trump, or on the part of anyone in his Administration or in his campaign, and there exists no probable cause that either the U.S. President or anyone in his Administration or in his campaign committed an act that can reasonably be attached to violation of federal law, despite the tortuous contortions of some politicians who would turn bare and baseless allegations into evidence of wrongdoing, and despite the mainstream media echoing the sentiments of the politicians bent on destroying the U.S. President and bent on destroying those in his Administration. Yet, there existed, at another point in time, in comparison, incongruously, no desire on the part of Obama’s Attorney General, Loretta Lynch, or on the part of Lynch’s then diffident and reticent but now vociferous and strident Deputy Attorney General, Sally Yates, to invoke 28 CFR 600.1 against Hillary Clinton—a person whom the FBI had heretofore investigated over a substantial period of time, having found substantial evidence of multiple counts of serious crimes, committed multiple times, over a lengthy period of time. Fancy that!We will parse 28 CFR 600.1 in the next segment of this multipart series, dealing at length with the three questions posed.
THE THIRD MECHANISM: IMPEACHMENT
Impeachment is a process that Congress may invoke and that Congress alone may invoke. The mainstream media and more than a few unenlightened, vicious members of Congress, bandy impeachment about without a care as to the seriousness of it, especially when applied to the U.S. President—the literal embodiment of the Second Branch of Government.The most important clause, pertaining to the impeachment process, is that found in Article II, Section 4. It says:“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”One must understand that the impeachment process is, notably and singularly, a political process, not a criminal process. The question thus arises whether Congressional use of it, especially as against U.S. Presidents, springs less from the appearance of criminal wrongdoing on the part of a U.S. President, and more from the desire of some members of Congress who wish to use it against a U.S. President whom they simply dislike. We will take a close look at the mechanics of the impeachment process and then ascertain whether those in Congress who would dare use the impeachment process against Donald Trump would do so, not for any perceived wrong committed, but because they happen to bear a personal grudge against this U.S. President. If so, such sanctimonious members of Congress should suffer censure by their brethren.We will look closely at the mechanics of the impeachment process, under our Constitution.
THE FOURTH MECHANISM: APPLICATION OF THE 25TH AMENDMENT
USCS Const. Amend. 25, USCS Const. Amend. 25, § 4 sets forth in pertinent part:“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department [departments] or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office."The forces that would dare destroy Donald Trump’s Presidency seek, in truth, to destroy this Nation and its Constitution, and its Bill of Rights. Until Donald Trump had taken the oath of Office, little if anything had ever been heard of the 25th Amendment either in Congress or in the mainstream media. Curious, now that Donald Trump is the Nation’s 45th President, the hidden forces that envision a New World Order, have pulled out all the stops, looking for a means, any means, through which to take down a man whose one cardinal sin is to dare place “America First” among Nations. For that reason—and as “payback” for upsetting the applecart—defeating their puppet, Hillary Rodham Clinton—the forces that would crush this Country and its people into submission will use a means, any means, however dubious, to destroy Trump and his Administration. If the insidious, powerful, ruthless forces, that hide in the shadows, succeed in undermining Trump's Presidency, the destruction of our free Republic and of our Constitution, upon which our Republic rests, will follow. The one entails the other.We will look at the history of, and the import and purport of, the 25th Amendment in a forthcoming article.
FURTHER ANALYSIS, ON THE MECHANISMS TO DESTROY A U.S. PRESIDENT, TO CONTINUE, IN FUTURE ARTICLES
We will discuss these mechanisms, in depth, in subsequent articles. Congress and the mainstream media simply skirt over them. A deep understanding of these mechanisms deserves the attention of all Americans. The sanctity of the U.S. Constitution and the preservation of our free Republic are at stake. Beyond these critical concerns, we see a duty to protect the honor and good name of the U.S. President, Donald Trump, against the treachery of those who seek to tarnish his good name and his honor.________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
AMERICA FIRST? NOT IF THE CONGRESSIONAL DEMOCRATS AND CONGRESSIONAL CENTRIST REPUBLICANS HAVE THEIR WAY.
HOW TO DESTROY A U.S. PRESIDENT
PART TWO
It should go without saying, but we will say it anyway because few other voices are saying it: This Country needs Donald Trump! A substantial number of Americans understands this and agrees with this assertion. Those who do not are prone to smug self-complacency, or to mournful resignation, or to emotional hand-wringing, or have simply given to parroting the nonsense spouted through the mainstream media believing that the nonsense emanates from their conscience when it is but an external virus thrust deep into the subconscious mind through insidious unrelenting psychological programming, where it remains to do its harm.Our Country has lost its way. For far too long our Nation has been backsliding into defeatist statism. With Trump’s ascendancy, we have the means to return to our traditions, our heritage, our values, our sense of purpose, our pride in Nation, in family, in self. But, Congressional Democrats and Congressional Centrist Republicans don’t want this. The two groups share the same basic political goals and objectives. Those goals and objectives are contrary to the well-being of our Nation and its citizenry. Our President, Donald Trump, has charted a new course for our Country, one in line with the founders’ beliefs and ideals, one that asks the question, what is in our best interests of our Country rather than what is the best interests of other Countries. But, the naysayers—the Congressional Democrats and Centrist Republicans—will have none of it.
THE AIMS AND OBJECTIVES OF CONGRESSIONAL DEMOCRATS AND CENTRIST REPUBLICANS
One, Congressional Democrats and Congressional Centrist Republicans machinate continuously for an expansion of neoliberal globalist economic policies. This operates to the detriment of American labor and small business although beneficial to the multinationals, whose allegiance to any Nation State is nominal at best.Two, Congressional Democrats and Congressional Centrist Republicans support the relaxation of our immigration laws. In so doing, they would effectively destroy the geographical integrity of our Nation. This reflects a conscious desire to mirror the aims of EU leaders, who seek, subtly, to erode the independence and sovereignty of individual European Nation States through uniform economic, political, and social governance, assisted through the slow dissolution of an individual Nation State's national identity.Concomitant with the relaxing of our Nation’s laws on naturalization, the two political groups, comprising the Congressional Democrats and Congressional Centrist Republicans, would give amnesty to millions of illegal immigrants, dismissing concern over the fact that at least hundred thousand of them belong to criminal gangs and drug cartels or are otherwise common criminals. A policy of amnesty for those residents in our Country, who are here illegally and are not, then, of our Country, would do nothing to curtail further influxes of illegal aliens entering our Country. To the contrary, granting amnesty to those persons who reside in our Country illegally would simply encourage millions more to enter this Country illegally, encouraging, also, the disassembling of our Nation’s history, its traditions, mores, and values, all of which would be replaced with a program reflecting new ideas and ideals--ideas and ideals at odds with our Country’s ideals and traditions. These new ideas and ideals include: multiculturalism, bilingualism or multilingualism, historical revisionism, ethical relativism, and obscuration and ambiguation of our sacred rights and liberties.Three, Congressional Democrats and Congressional Centrist Republicans would carelessly invite into our Country—with the connivance of friendly federal Courts—millions of Muslims from failed Arab States, some of whom are, no doubt, actively in league with or who otherwise share sympathies with various Fundamentalist Islamic factions, all of which are resentful toward our Nation, its values, its laws, and which exhibit hatred toward our citizenry.For those Islamists who are not radicalized on admission to this Country, there exists the inherent danger posed by radicalization, after the fact, as we have seen manifesting with disturbing regularity in this Country and in Europe.Radical Islam constitutes a clear and present danger to the security of this Nation and to the safety and well-being of its citizens. Those who espouse utilitarian ethics piously endanger the safety and well-being of our citizenry.Four, Congressional Democrats and Congressional Centrist Republicans adhere to and exhibit a fascination for neoconservative principals that reflect a desire for expanding influence--through any means—diplomatic or military—both in the Middle East and in the Baltic States. This expansionism merely for the sake of expansionism does not serve the security interests of our Nation and is, in fact, detrimental to our national security interests. It has cost our Country dearly in both currency and blood. Moreover, neoconservative policies have destabilized the Middle East. Dictators, such as Hussein, Gaddafi, and Assad have kept radical Islamic rebel groups at bay for decades. Removing two of the three has created a vacuum in the Middle East which has threatened the third. Would removal of Assad reverse the trend? Not likely. Nor would neoconservative policies designed to expand NATO influence in the Baltic States serve our Nation’s security interests. One need only consider how close the world came to nuclear annihilation when the Soviet Union encroached on our hemisphere through plans to plant nuclear weapons in Cuba, aimed at the U.S. We should not encroach on territory abutting Russia. Yet, this idea is not in line with the policies favored by the Congressional Democrats and Congressional Centrist Republicans that treat Russia as an adversary, even an enemy--policies that would in fact turn Russia into a most formidable adversary and enemy—policies in vogue with and pushed by Congressional Democrats and by Congressional Centrist Republicans and by the EU leadership, that profit from those who support them—the internationalist, globalist interests. These internationalist, globalist interests make their financial fortunes by promoting continuous tumultuous international tension, volatility, and upheaval. That is decidedly good for their profit margins. That is their upside. But, an unstable world has a downside for the American people: endangering their well-being, their own financial security, their very lives.Five, the Congressional Democrats and Congressional Centrist Republicans seek to denigrate the notion of the inherent sovereignty of the Nation State. By undermining the value Americans place in this concept, Congressional Democrats and Congressional Centrist Republicans, seek, at the behest of the inordinately wealthy, immensely powerful, highly secretive, and utterly ruthless globalist, international forces that fund and control them, to loosen the historical ties that bind our Nation to its Constitution, that sanctify our rights and liberties, that solidify our values and traditions. With the loss of the ties that bind the American people to their Nation and to their National identity, the rights and liberties of the people are lost; the Constitution is undermined; the Nation’s great body of laws, it system of laws, the legal philosophical principals and jurisprudential underpinnings, all of which provide the foundation of our governance are subordinated to the legal system and laws of foreign courts and international tribunals. The sovereignty of our Nation is jeopardized.Americans would see the eventual absorption of their Country into a wholly new economic, social, and political framework and reality—a new world order—a new economic, social, and political system mandating the disassembling of and the eventual eradication of the sovereignty of all Western Nation States. These Nation States would be reconstituted as subordinate elements within a large corporate consortium of member units, governed by a group of ruthless, inordinately wealthy and immensely powerful overseers who, alone, would wield supreme economic, political, and social powers over the masses. The masses would euphemistically be described as “citizens of the world”—a phrase even now coming into vogue through the assistance of the mainstream media.This is what the destroyers of our Nation, of our Bill of Rights, of our history, of our traditions, and of our values, want, and that is what we will most certainly get, in time, if the powerful, secretive forces that seek to undermine Donald Trump’s Presidency prevail.What is currently underway is no less than a quiet coup dˊétat of Government -- to destroy a U.S. president.In Part three of this series we look at the mechanisms the destroyers of our Nation would use to bring down a United States President.__________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
CONSTITUTIONAL CRISIS? YES! BUT, DOES THAT CRISIS REST WITH TRUMP OR IN THE ACTIONS OF THOSE WHO WISH TO DESTROY TRUMP?
HOW TO DESTROY A UNITED STATES PRESIDENT
PART ONE
Several Congressional Democrats, along with their fellow travelers in the mainstream media, have claimed, in recent days, that our Nation faces a “Constitutional crisis.” That is the phrase they use: serious to contemplate, surely, and dangerous in its implications. They are correct, but not in the way they think and, so, not in the way they present their claim to the American people. The claim they present to the American public is based on the notion that our President has no legitimate claim to the U.S. Presidency and that, as long as he retains the Presidency, our Nation suffers Constitutional crisis. The notion is absurd, of course.Our President, Donald Trump, has campaigned vigorously and fairly in a difficult election and the American people have elected Trump in strict accordance with our system of laws. Yet these Democrats, along with journalists of the liberal mainstream media, assert, nonetheless, that Trump is not the legitimate U.S. President, and, therefore, must go.You would think that politicians who have the audacity to make the assertion would explain what they mean by it. But they prefer to presume Americans will accept their claim on faith as self-evident, when of course it is not. Some Americans, surprisingly, do accept the claim on faith. Most, though, do not. Those who do not accept the claim on faith insist on an explanation for it. They will never receive one. If pressed, politicians will grow irritated. They become upset because no discernible, concrete facts support the claim they have made. They are dumbfounded that a person would dare question them. They are flummoxed if one persists; if one insists on an answer.With casual, familiar bluster, ignoring remonstrations from Americans who do not accept the pompous empty claim made—that Donald Trump and his Administration are illegitimate pretenders—these politicians simply reiterate their empty, hollow, baseless claim, and the mainstream media callously echoes the sentiment.If one looks for independent confirmation of the empty claim, they will find none. For, no discernible, concrete facts support the claim asserted. It is pointedly ludicrous. But, it makes for good theater, as the bald claim shocks both the consciousness and the conscience of Americans, as it was meant to do.Congressional investigations are called to support the claim of the illegitimacy of the Trump Presidency. The conclusion is predicated on an assumption: that Trump’s "legitimate" victory is impossible. So, then, how did it happen? There must be an answer. Politicians chase, hither and yon, after ghosts—Russians, WikiLeaks, Comey, Flynn; this one and that one; assorted denizens of fevered imaginations: unicorns and centaurs; fairies and elves; Martians and Venusians. Take your pick! But all this comes at public expense—costing the taxpayers millions of dollars—looking for a reason, a rationale, a scapegoat, however dubious, however implausible, however unlikely or however nonsensical—something, anything, to support, to give credence to, to account for a Trump inauguration, rather than a Clinton coronation. Meanwhile Congress does not do the business of Government, as the real business of Congress, serving the American people, languishes as Congress traipses, aimlessly, looking for bugaboos in the bushes.Unfortunately, this “theatrical display” of hypocritical righteousness and sanctimonious indignation comes with tangible and substantial cost, wholly apart from the monetary outlay; for, a real threat to the preservation of our Nation as a free Republic and to our Constitution, as the foundation of that Free Republic, does exist and has existed for some time. We have seen this threat played out in the actions of the previous U.S. President, Barack Obama, as he slowly dismantled our Bill of Rights through Executive fiat, predicating his actions, defiantly, presumptuously, on a private notion of morality that he thinks more fitting than the profound wisdom of the founders of our Nation; the framers of our Constitution. But, the Press raised nary an eyebrow.Make no mistake: the threat to the preservation of our Nation as a free Republic and the threat to the underpinnings of our Constitution would have continued with a Clinton Presidency. To begin, Hillary Rodham Clinton is a criminal. Of that, there is no doubt. Her crimes are both serious and legion. The idea that she, rather than Trump, would better serve the American people is laughable to consider; yet, the reality would be no laughing matter. It would be horrific.A Clinton Presidency would be an affront to the dignity of the Office of the Chief Executive of our Nation; a sacrilege to the rule of law that our public servants claim, mendaciously, to adhere to; an assault against our Constitution and against our sacred Bill of Rights; and a jagged knife thrust into the chest of common decency and moral propriety.Yet, politicians of all stripes, Democrats, of course, but some Republicans, too, and bureaucrats hiding within the Deep State, along with the ubiquitous mainstream media, and Hollywood moguls and performers; and members of the Bilderberg Group and of similar secretive groups conclaves, were “all in” for Clinton. Yet, she lost the election as the American public wasn’t buying any of the nonsense that spouted from her mouth and from that of her surrogates.It was Clinton, the false voices of Democracy wanted, and it was Clinton they would have had, but for the fact that millions of American voters thought otherwise—that and the mechanism the framers perceptively and propitiously cemented in our Constitution—the Electoral College—protected the rights of smaller States to have a voice in our Presidential elections and helped protect the Country from seating a tyrant in the White House.In the 2016 U.S. Presidential election, the Electoral College did operate as a fortunate “fail-safe” device to what otherwise would have resulted in a Clinton Presidency—and the seating of an actual tyrant in the White House. But, there are those in Congress who would much prefer having the tyrant, Hillary Clinton, as U.S. President. And, if they cannot, they intend to destroy a man who seeks to set things right with this Nation—who seeks no less than to place this Nation back on a sound footing, making certain that this Nation's needs and concerns take precedence over those of all other Nations or groups of Nations, and that the laws governing our Nation remain supreme, not subject to subordination to those of any other Nation or international tribunal.This is as the founders of our Nation had intended. This is as they established. This, however, is in contradistinction to what Hillary Clinton had planned for this Nation had she succeeded Obama, as she would have continued his policies: undermining the Constitution; erasing our rights and liberties; and subordinating our Nation's needs, concerns, and laws to those of internationalists, pan-nationalists, and to those espousing multiculturalism, globalization, multilateral trade agreements, historical revisionism, and the removal of all immigration barriers--the vehicles for and harbingers of the eventual dismantling of our Sovereign Nation State and the disassembling of, the disintegration of the very idea of what it means to be an American qua citizen who is not, at once, merely a "citizen of the world," not aligned with or to any particular Country: but a serf of the New World Order. So, then, a true threat to our Nation, in the form of a Constitutional crisis, does exist, but that threat does not lie with Trump or with his Administration. No such threat to our Nation ever existed that can be pinned on our President or laid at his feet. A threat does exist but it has nothing to do with a Trump Presidency. The threat to our Nation lurks in the shadows. It rests in devious, insidious and utterly false challenges to the legitimacy of the Trump Presidency—challenges that arose in the planning stages immediately after the 2016 U.S Presidential election went decidedly and decisively to Trump—and challenges that had commenced immediately after Trump took the oath of Office. Yet these challenges have no tenable legal basis. Why, then, do we see these challenges to the Presidency of Donald Trump?There are forces at work both in this Country, and outside it—forces operating to undermine the Trump Presidency. These forces are extraordinarily wealthy, immensely powerful, extremely adept, inordinately secretive, ruthless in the extreme, assiduous and resolute in their efforts to bring down Donald Trump and his Presidency. These forces are livid over Donald Trump’s electoral success in the 2016 U.S. Presidential election. For, here is a man who has made clear his intent to raise the United States to preeminent status among Nations, a goal manifest in his campaign slogan, “America First.”Donald Trump means to take head-on the destroyers of our Nation State—those forces that seek to undercut our Nation as an independent, sovereign Nation; those forces that seek to rewrite our Constitution; those forces that seek to erase our Bill of Rights; those forces that seek—in the unabashed words of one of their principal spokesmen and pseudo defender of our Republic, U.S. Senator John McCain—to undercut our Democratic Republic through the creation of “a new world order.” John McCain did not elaborate on his use of the phrase when he repeated it over and over one Sunday afternoon on Meet the Press.Yet, Chuck Todd, host of the Sunday news program, did not ask McCain what McCain meant by use of the phrase—even as McCain repeated it, emphatically, several times.The expression alludes clearly and unmistakably to the destruction of our Country as an independent, sovereign Nation; the dismantling of our Constitution, its system of laws, and its jurisprudence; and the obliteration, the eradication of the very idea that the American people have natural rights and liberties that cannot be lawfully taken away by Governmental edict or by force of arms.Those forces that desire to crush our Nation and its People into submission have mechanisms at their disposal. There is impeachment, of course—a political process. In that, we see Centrist Republicans playing into the hands of the Democrats—setting up Committees, engaging in a fishing expedition, in a naked, illicit attempt to bring down a U.S. President simply because the forces that would crush this Nation will not abide a U.S. President who is not their puppet.Donald Trump is not “their boy.” Donald Trump had not been bought and cannot be bought. Hillary Rodham Clinton, on the other hand, has been bought; and, for her blind obedience to these puppet masters, Clinton and her husband were paid handsomely; and they were paid in full. The forces that crush feel cheated. They require their quid pro quo for their investment. No less than destruction of the Trump Presidency and reassembling of Order, their notion of Order, will do to set things right—to set matters back on track.But an effete and effeminate Congress, alone, cannot, defeat Trump. Independent Counsel, operating secretly, with full prosecutorial powers can. Appointment of private counsel, with full powers of the Department of Justice, presents a tangible threat to the Trump Presidency. We explain why that is and how that is in the next article.________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
THE MILITIA CLAUSE IN THE SECOND AMENDMENT: IT IS, UNFORTUNATELY, STILL AT LOGGERHEADS WITH THE INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS
Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety
KOLBE VS. HOGAN:
PART EIGHT
Those Lower Federal District Courts And Higher Federal Circuit Courts Of Appeal That Seek To Disarm Americans, Do So In Clear Denigration Of The Core Of The Second Amendment And In Clear Defiance Of The U.S. Supreme Court Decision And Reasoning In Heller.
When deconstructing the history of Kolbe, (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individual’s service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movement’s benefactors in Congress, in the media, in finance, and in several of the Courts, may finally be laid to rest. Yet, that isn’t true at all. Those opposed to Heller's rulings maintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though, should not be surprised about this. After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by, the positions embraced by, and the legal and logical conclusions deduced from the premises accepted by the Court's majority in reaching their conclusions. For, the Heller Court majority accepted, as axiomatic, and, in the first instance, that the right of the people to keep and bear arms is a natural right, preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. This sacred principal, that the right of the people to keep and bear arms is a natural right, preexistent in man, is consistent with the framers' belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through its Government, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept, would never accept. Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed to those conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Court’s majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of the nature of and extent of the philosophical differences that lay between them, that informed their notions of the individual's relation to Government. They pushed back and pushed back hard against the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions, in Heller are legally and logically weak. The reasoning of the dissenting Justices is logically faulty, often internally inconsistent, incoherent, and clearly antithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdle that weakens their position and ultimately makes their position untenable, ultimately reducing their argument to a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can, at least in theory, under the dissenting Justices' thesis, be vindicated. This is critical. For, if the right of the people to keep and bear arms cannot be vindicated, then the right does not exist, and the right codified in the Second Amendment reduces the Second Amendment to a nullity as the right sits empty in the Second Amendment, as a bald face lie. Of course the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say that even as inconsistencies in their position illustrate that the right codified in the Second Amendment simply cannot, under their thesis, be vindicated. It is a painful thing to see--and their contempt for the right codified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet, Justice Stevens lays out this odd gambit, proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear arms can be vindicated, notwithstanding that the right is tied exclusively to one’s connection with and service in a militia. But, is not the right of the people to keep and bear arms, then, as argued by Justice Stevens, a collective right, after all? If so, the right cannot be an individual right. It is one or the other, not both; and it must be one or the other. But, the two are mutually exclusive. But, if the right of the people to keep and bear arms is a collective right, after all, then, how is the right ever to be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, the point that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.Justice Stevens attempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits that the reader can and should dispense with the individual right/collective right distinction in the context of the Second Amendment. He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding of the import and purport of the sacred right embodied in the Second Amendment. Still, he posits, up front, that the reader can and should dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural law--that the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens asserts it anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can exist within the notion of connection with one's service in a militia--a collective right, after all, a collective right that does not and cannot exist legally, and, more importantly, a right that does not and cannot exist logically. Justice Stevens thereupon, negates, tacitly, at least, the truth of the assumption he makes, and his argument, existing as it does on that single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia, Justice Stevens continues with the crux of his thesis, namely that the Second Amendment's dependent clause, that he refers to as a "preamble," carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by, limited by the "preamble." Justice Stevens claims that the preamble is critical to an understanding of the meaning of the right established. He emphasizes the importance of the "preamble" to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all. Enforceable rights do not exist in the preambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The right is contained solely in the independent, operative clause of Second Amendment. And, in that operative clause of the Second Amendment there is no qualification or condition, limiting the extent of the right. Moreover, as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. He opines, “The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be ‘well regulated.’ In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.” District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687. Were Justice Stevens correct—an opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as well—a question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to one’s service in a militia, does not that interpretation essentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.Justice Stevens was, apparently, astute enough to recognize the problem with his position. It’s a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.Attempting to circumvent Justice Scalia’s point, Justice Stevens asserted in his typical roundabout, fashion that, “The Court assumes—incorrectly, in my view—that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to ‘organiz[e], ar[m], and disciplin[e], the Militia,’ Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees ‘citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them.’ Ante, at 600, 171 L. Ed. 2d, at 662.” District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20. Justice Stevens argues in his dissenting opinion that Congress cannot exclude one’s right to keep and bear arms. But, suppose a State should decide to exclude one’s right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against one’s own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a State’s militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made construct--a militia--and, if so, the right, then, does not exist and never existed at all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then, in the individual. A State’s militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a State’s National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. “Today, the states’ security personnel are not militiamen, but principally are the members of local law enforcement—and the bulk of counterterrorism work will fall to them.” “The Security Constitution,” 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School. Expanding upon the point, the author says, in a footnote, “In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the ‘State National Guard,’ in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, ‘the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis.’ Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment - the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard - as part of the national military - for homeland security purposes.” 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.To tie the right of the people to keep and bear arms into the notion of a "militia" or into the descendent of the militia--the National Guard, which is essentially a part of a "standing army"--the very thing the framers sought, in the codification of the right in the Second Amendment to be a guard against--turns the right into a blasphemous, ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens’ intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburg concurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the public--where excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendment--a contempt shared by the liberal wing of the Court that concurred in his opinion--is on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing, in Printz, essentially that the Federal Government must require the individual States to clamp down on an "armed citizenry." This according to Justice Stevens, in his usual twisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference? In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Court—in an opinion penned by Justice Scalia, for the majority—invalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting “the epidemic of gun violence”—which, Stevens felt the Brady Act was enacted to combat.With his proclivity to contort ideas through verbal legerdemain, Justice Stevens argued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to “create vast national bureaucracies to implement its policies.” Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959 (1997). Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individual’s right to keep and bear arms is a function of one’s connection with a State militia qua a State’s National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenry’s connection with a State’s militia qua National Guard, as merely an adjunct of the Federal Government’s standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?Does it matter whether it is the State that constrains the individual or the State that constrains the individual on behalf of and at the behest of the Federal Government, or the Federal Government that constrains the individual on its own behalf and at its own behest? Tyranny is the end result in any event, however one chooses to look at it.________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
RATIONALIZING AWAY THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: THE LENGTHS SOME COURTS WILL GO "TO DISARM" HELLER
Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety.
KOLBE VS. HOGAN:
PART SIX
Kolbe Is Not Merely An Example Of A Poorly Decided Case; It Is Illustrative Of The Way In Which Courts, Antithetical To The Second Amendment Right Of The People To Keep And Bear Arms, Use Legal Argot To Disguise Their Contempt For And, Indeed, Abhorrence Of Our Sacred Right And Their Disdain For The Heller Court Rulings.
To understand the Kolbe case*—to truly understand its diabolical import—it is incumbent to delve into the intricacies and nuances of the seminal 2008 U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). It is difficult to appreciate the lengths to which some federal courts will go to undermine the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution; and it is difficult to appreciate just how horrific the decision in Kolbe is—certainly to those who take seriously the right of the people to keep and bear arms—without considering the thought that went into the Heller decision, as penned by the late Justice Antonin Scalia, writing for the Majority of the high Court.Heller is the most important Second Amendment case to come out of the U.S. Supreme Court since the 1939 case, U.S. vs. Miller, 307 U.S. 174; 59 S. Ct. 816; 83 L. Ed. 1206 (1939). The high Court in Heller has, for the first time in the Court’s history, enunciated and elucidated several critical precepts that constitute the impetus for the Framers' inclusion of the Amendment in the Bill of Rights. The import of the Heller case rulings and reasoning of the Court's Majority can be reasonably perceived as the purest, clearest recognition by the high Court, to date, of the Framers' expression of the inviolability of and sanctity of the individual, within the Nation State. This is seen in the individual's position of and status, in this Nation State, as the armed citizen. The armed citizen stands above the Federal Government. The armed citizen stands as the guarantor of and guardian of a Free Republic. The armed citizen stands as the resolute and absolute check against tyranny. These points frighten those that espouse a collectivist society, operated by powerful interests that lurk unseen in the interstices of Government and in the World at large. It is not the criminal element that is feared by these collectivists. It isn't the occasional lunatic that is feared by these collectivists. It isn't even Islamic terrorists that is feared by these collectivists. No! It is the armed citizen that these collectivists fear; and they use, for propaganda purposes, the criminal psychopath, the lunatic, and the rapacious Islamist terrorist as a rationale for disarming the average, rational law-abiding, American citizen--the one element that, alone, can prevent the collapse of a Free Republic and the shredding of the U.S. Constitution. For, it is the end of our Free Republic and the erasing of the U.S. Constitution and of our sacred Bill of Rights that is the endgame for these silent, secretive, seductive, seditious collectivists. The Second Amendment and the Heller case stand, like a massive, impenetrable, concrete wall in their way.The following ten precepts follow from the rulings of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008):First, the right of the people to keep and bear arms is a natural right, preexistent in the people. Second, since the right of the people to keep and bear arms is a natural right, preexistent in the people, the right is not to be considered man-made; the right is not, then, a creature of Statute, created by government. Third, since the right of the people to keep and bear arms is not a right created by government, the right cannot be lawfully taken away from the people by government. Fourth, the Second Amendment exists merely as a codification of the right of the people to keep and bear arms. That means the right doesn’t flow from or spring into existence due to its presence in the U.S. Constitution as the Second Amendment. Rather, the Second Amendment exemplifies—is a literal token for—the intangible, indestructible right that preexists in the people. Fifth, the right of the People to keep and bear arms is an individual right, unconnected to one’s service in a militia. Sixth, the dependent clause, “a well-regulated militia being necessary to the security of a free State” does not function as a limitation on the right of the people to keep and bear arms. The words, “a well-regulated militia being necessary to the security of a free State,” functions merely as a rationale for the codification of the right in the Constitution. The prefatory, dependent clause is not the operative clause and must not be taken as such. For, it is not the militia that has the right to keep and bear arms and it is not one’s service in a militia that serves as a basis upon which the right, if any, to keep and bear arms, exists; for, once again, the right to keep and bear arms preexists in the people. Seventh, the 'people' refers to each individual American. The term, as utilized in the Second Amendment is not referring to 'people' in a collective or group sense. Eighth, to minimize the operative clause, “the right of the people to keep and bear arms,” in relation to the prefatory clause, “a well-regulated militia being necessary to the security of a free State—not only denigrates the right inherent in the people, but destroys any notion that the right of the people to keep and bear arms exists inherently, primordially, intrinsically, in the individual. Ninth, the right of the people to keep and bear arms is not a social construct, but exists within the essence of man. Tenth, the right of the people to keep and bear arms exists immutably, independently in the individual self, completely apart from all social, political, or legal systems. The Court’s Majority in Heller accepts these precepts. The dissenting Minority Justices did not, and do not, and to date—along with like-minded Federal Appellate and District Courts, and like-minded antigun groups and like-minded mainstream media publishers, editors, and journalists, and like-minded legislators at the local, State and federal levels—the distaste for the Heller rulings, among those who have no regard for the Second Amendment, remains strong, virulent.Local and State governments that draft codes, regulations, and Statutes in denigration of the plain, explicit meaning of the Second Amendment, do so at their peril for they are operating in clear defiance of our Constitution; they are demonstrating ignorance of the Framers’ intentions; they are exhibiting disdain for the rulings of the U.S. Supreme Court in Heller; and, therewith, they do show an abject lack of concern for the rights and liberties of the American people.Worse, yet, lower federal District Courts and higher federal Appellate Courts that dare to uphold rather than strike down unconstitutional laws that collide with the right codified in the Second Amendment show their disdain for legal precedent when they opine injudiciously and deprecatingly the inscrutability of Heller and try, ignominiously and duplicitously, to distinguish Heller from the case before them, thereby forsaking all sound judgment and jurisprudential consideration to obtain a ruling that meets with their personal feelings of what the law pertaining to fundamental rights ought to be, rather than what the law is.The Heller case is notable for dispelling—decidedly, decisively completely—any lingering doubt that antigun groups and like-minded Courts, and the mainstream media might have that the Second Amendment bestows, upon Americans, a collective right to bear arms only—a right to bear arms connected with one’s service in a State militia and nothing more. Thus, local and State governments hell-bent on curbing the Second Amendment and Courts of competent jurisdiction that are called upon to give their imprimatur on Statutes and codes and regulations that are inconsistent with the Second Amendment and inconsistent with U.S. Supreme Court precedent are caught in a vise. So, how do they proceed?These renegade State governments and their fellow travelers in the federal Court system operate as if the Heller rulings don’t exist. The Governments continue to draft and to enact draconian gun laws, inconsistent with and detrimental to the meaning and purport of the Second Amendment, while lower federal courts and the higher federal Appellate Courts, working in lockstep with these renegade governments defy U.S. Supreme Court precedent, rather than render decisions in deference to it, albeit no doubt, concerned that their decisions will be overturned—as well they should—by the U.S. Supreme Court if the high Court accepts the case for hearing.Of course, the hope of those who oppose the Heller decision and who seek to chisel away at the imposing immutability of the right of the people to keep and bear arms has been dashed. Opponents of the Heller decision had expected, but failed, to place on the high Court, Judge Merrick Garland who had sat, and now, once again sits, on the U.S. Court of Appeals for the D.C. Circuit. Judge Garland is an intractable foe of the fundamental right of the people to keep and bear arms—Americans’ most sacred right. The reaction of those in the Government bureaucracy, and those in the Courts, and those in Congress, and those in the mainstream media that seek de facto repeal of the Second Amendment through the overturning of Heller, is palpable, visceral—more so now that a Judge, nominated by U.S. President Donald Trump, and confirmed by the United States Senate, and who respects U.S. Supreme Court precedent, sits on the high Court, Justice Neil Gorsuch.Now that Justice Neil Gorsuch has taken his seat on the United States Supreme Court, Americans have a man who will give due regard to the rulings in Heller—rulings that Judge Merrick Garland, were he to sit on the high Court instead, would, with the other liberal wing Justices, most certainly, shred. There's no doubt about that. With Justice Neil Gorsuch on the high Court, however, the legacy of the late Justice Antonin Scalia, as ardent defender of Americans’ fundamental right to keep and bear arms as codified in the Second Amendment, should remain secure. But, no one individual can ever guarantee that our Bill of Rights will remain secure. Federal Court cases such as the Kolbe case illustrate that lower Federal District Courts and higher U.S. Circuit Courts of Appeal that disagree with the Heller Majority’s legal and logical reasoning, jurisprudential methodology and philosophy, and the Majority’s precedential holdings, will slither around the clear, precise, emphatic instructions of the Heller Court to uphold draconian gun laws that strike at the core, the essence, of the Second Amendment right--laws that, are, then, like Maryland's Firearm Safety Act, per se unconstitutional.
THE DISSENTING JUSTICES DISAGREEMENT WITH THE MAJORITY’S RULINGS IN HELLER IS NOT PREDICATED ON FINE POINTS OF LAW BUT RESTS ON PROFOUND PHILOSOPHICAL DIFFERENCES CONCERNING WHERE THE FOUNTAIN OF RIGHTS AND LIBERTIES OF MAN DRAW THEIR STRENGTH, THEIR VERY EXISTENCE: WHETHER FROM MAN-MADE SOCIAL CONSTRUCTS, AS THOSE DISSENTING JUSTICES BELIEVE, OR FROM RIGHTS AND LIBERTIES PREEXISTENT IN MAN THAT THEREFORE TRANSCEND ALL SOCIAL, POLITICAL, AND LEGAL CONSTRUCTS, AS THE MAJORITY OF THE HELLER COURT BELIEVES.
The dissenting Justices disagreed strenuously, mightily with the Majority’s reasoning, conclusions, and decisions in Heller. This disagreement between the liberal wing of the high Court and the Court’s conservative wing bespeaks more than a mere difference in approach to legal decision-making. No! The disputation is more profound and sublime. Disputation extends to the essence of a Jurist’s being. Writing for the Majority, Justice Scalia refers several times to the right of the people to keep and bear arms as a “natural right.” Reference to the phrase, “natural right” is not to be dismissed as affectation. Justice Antonin Scalia would have none of that. Every word the late Justice had penned has clear, precise, and critical meaning. The right of the people to keep and bear arms, as a natural right, means that the right exists inherently in man. The right of the American people to keep and bear arms is not a creation of man. It is not a creature of Statute. It is not to be deigned merely a social construct as a thing devoid of clear, irrefutable, power. No! The right to keep and bear arms exists over and above the Constitution itself. The right of the people to keep and bear arms stems from the Divine. The Right needs no proof. It needs no clarification. It needs no justification.The Bill of Rights as constituted in—as an imposing component of the United States Constitution —acknowledges through the codification of the right of the people to keep and bear arms—the preeminence of the right that existed prior to the creation of the Country, as an independent, preeminent and Sovereign Nation. But the right of the people to keep and bear arms is not forsaken with the creation of the Nation State, nor is the right discounted or reduced in some sense through the creation of the Nation State. Rather, the Nation exalts the right, and, in so doing exalts the individual to be and remain individual.The right of the people to keep and bear arms is not and cannot be limited or constrained. Any attempt to do so by government operates as a betrayal of the relationship of individual to State. For this Nation State has, itself, limited powers. The People do not. Thus, it is that the Federal Government, through which the Nation State operates, obtains its power and authority by grace of the People. The People created the Government of the United States and it is within the power and right and duty of the American people to dismantle that Government if it devolves to tyranny. The Heller decision has, then, far-reaching implications, as the right of the people to keep and bear arms, preexistent in the people—and therefore existing in the people prior to the creation of the Constitution—reiterates the Framers’ intention that the Nation is the servant of the people, and not that the people are servants—merely subjects—of the State.Thus, Justice Scalia takes strong exception to Justice Stevens’ remark, set forth in Justice Stevens’ dissenting opinion in District of Columbia vs. Heller, 554 U.S. at 678, 679; 128 S. Ct. at 2845, that the Majority’s opinion, somehow rests for support merely upon Second Amendment “drafting history.” Justice Scalia makes short work of that, saying: “Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” District of Columbia vs. Heller, 554 U.S. at 603; 128 S. Ct. at 2804. Not surprisingly, none of the dissenting Justices—not one—accepts as axiomatic, as self-evident, that the right of the people to keep and bear arms is intrinsic to the very being of an American. Drafting history—however language of the Second Amendment is ultimately formulated, as Justice Scalia makes clear, does no more than to codify the right—the natural right of the people to keep and bear arms.A codification of a preexistent right is not equivalent to and, by logical implication, it is not instrumental in creating the right. Justice Scalia makes plain that the Second Amendment merely codifies a preexisting right; that the Framers’ did not create the right and did not importunately, intend to create rights. There is nothing in any of the various gyrations that the written Amendment went through to so much as suggest that the right of the people to keep and bear arms is to be construed as a right the framers had created for the American people. Such an idea would have been ridiculous to them and the suggestion would probably have been abhorrent to them, as well.
THE DISSENTING JUSTICES, IN HELLER, EITHER HAVE NO CONCEPTION OF THE FRAMERS’ BELIEF IN THE NOTION OF NATURAL RIGHTS AND LIBERTIES THAT EXIST IN MEN OR THEY DON’T CARE, PREFERRING INSTEAD TO READ OUR BILL OF RIGHTS IN RELATION TO THE CONSTITUTIONS AND BELIEF SYSTEMS OF OTHER COUNTRIES AS SUCH CONSTITUTIONS EXIST AT THE PRESENT TIME—TOGETHER WITH NOTIONS ANTITHETICAL TO THE VERY CONCEPT OF NATURAL RIGHTS AND LIBERTIES.
Justices Stevens and Breyer and the other Justices who dissented in the Heller case refuse to accept the Second Amendment as anything more or other than a creation of man. This is clear from their exposition. Thus, Justices Stevens and Breyer and the other dissenting Justices consider the right of the people to keep and bear arms as nothing more or other than a mere social construct. It isn’t remarkable, then, that the dissenting Justices would argue that the right of the people to keep and bear arms is tied merely to service in a militia; but, in so tying the right to the militia, the dissenting Justices do more than merely set forth a misguided interpretation of the Framers’ belief in the truth and sanctity of a natural right of the people to keep and bear arms, these Justices essentially eviscerate the right—a critical point that Justice Scalia, looking at the writings of a professor, judge, and Civil War commentator, Thomas Cooley, aptly propounds. See District of Columbia vs. Heller, 554 U.S. at 617; 128 S. Ct. at 2812.The point made—that the dissenting Justices’ position, tying the right of the people to keep and bear arms singularly to service in a militia, functions, logically, to destroy the right—is one that cannot be overemphasized. For it is not a minor point. It is one critical to understanding the logical impasse that exists between the liberal wing of the high Court and the conservative wing. For, differences in viewpoint commence and proceed on a very basic level. The differences in viewpoint suffuse and percolate through the reasoning of each of the two wings of the high Court and manifest as an irrefutable and irreconcilable conflict among the Justices on a level transcending mere disagreement about the law. The import of the Second Amendment as the dissenting Justices view it and as the high Court’s Majority view it may be likened to a chasm that cannot be bridged. The differences are deep-seated, intractable, grounded in unshakeable convictions of philosophical and ethical dimensions. They reflect distinctive notions concerning the relation of individual to State. The one accepting as axiomatic that rights and liberties are government constructs and, as such, those rights and liberties can be lawfully amended, disregarded, or erased altogether. The other accepting as self-evident that rights and liberties are indelibly imprinted in the individual—existing beyond space and time—part of the soul of the individual, critical to a person’s essence, and beyond a government’s lawful ability to change, disregard or eliminate.We continue with our exposition of Kolbe and the importance of Heller in Second Amendment case decisions in Part Seven of this series.________________________*Case History: Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.
MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.
A Court Of Review Is Blind To Inappropriate, And Unlawful Government Action When A Court Of Review Is Philosophically Predisposed To Inhibit The Right Of The People To Keep And Bear Arms.
KOLBE VS. HOGAN:
PART FIVE
HAD THE DISTRICT COURT OF MARYLAND REVIEWED MARYLAND’S FIREARM SAFETY ACT AS THE HELLER COURT REQUIRED, THE DISTRICT COURT WOULD HAVE SEEN THROUGH THE CHARADE OF THAT RESTRICTIVE GUN ACT THAT ATTACKS THE CORE OF THE SECOND AMENDMENT.THE U.S. SUPREME COURT MAJORITY CAUTIONED, IN HELLER, AGAINST USE OF ANY TRADITIONAL STANDARD OF REVIEW TO TEST THE CONSTITUTIONALITY OF A LAW THAT IMPACTS THE CORE OF THE SECOND AMENDMENT.The Arbalest Quarrel continues with its comprehensive, in depth analysis of Kolbe in light of the seminal U.S. Supreme Court Heller case.Realizing the futility of articulating any standard of review for testing the constitutionality of government action that attacks the very core--the very essence--of a fundamental right, the Heller majority realized the need to dispense with all traditional standards of review and all hybrid versions of conventional standards of review in those instances where governmental action—in the Heller case, a total ban on firearms that the public traditionally and commonly uses for self-defense, namely firearms categorized as handguns, be those handguns semiautomatic pistols or single or double action revolvers—attacks the very essence, or core of the right. Justice Breyer, himself, who wrote a dissenting opinion in Heller, realized the conundrum posed in the application of traditional standards of review for testing the constitutionality of government action that is directed to the core of a fundamental right.The dissenting Justice, Stephen Breyer, did realize, perceptively, that application of even a stringent standard, strict scrutiny—no less than application of the most relaxed standard of review, rational basis—would not be a fair standard for a Court to employ to test the lawfulness of a governmental action that is directed to the core of a fundamental right because Courts could still come to the wrong conclusion and effectively destroy a fundamental right. Breyer therefore thought that his novel interest-balancing inquiry would overcome problems associated with conventional standards of review. In support of use of his novel interest-balancing inquiry to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District, Justice Breyer said this (and we quote Justice Breyer, at length):“In weighing needs and burdens [utilizing my interest-balancing standard to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District] we must take account of the possibility that there are reasonable, but less restrictive, alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions [Citation Omitted]? Here I see none. The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. It does not help respondent’s [D.C. Government’s] case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use [Citation omitted]. That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery [Citations omitted]. This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence [Citations omitted]. If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.”Justice Breyer concludes that no less restrictive means exists to promote the goal of promoting public safety than the District of Columbia’s total ban on handguns promotes and that, under the strict scrutiny standard, a total ban on handguns would therefore pass judicial scrutiny and therefore be found constitutional even though the Second Amendment right of the people to keep and bear arms is clearly burdened. As he says:“The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the ‘permissible regulation’ question: Does the District's law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.”So, is that the end of the inquiry? Does Justice Breyer assert that the D.C. handgun ban is constitutional even though a total ban on possession of handguns clearly burdens, and in a substantial way, the American citizen’s exercise of his or her fundamental right? No. Justice Breyer says that application of his standard is superior to that of application of even a stringent standard like strict scrutiny, for there is a second part to Justice Breyer’s test, even though he has already inferred that the burden on those who seek to exercise their Second Amendment right is substantial." Justice Breyer goes on to say (and once again we quote Justice Breyer at length):“First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban [Citation omitted]. That urban area suffers from a serious handgun-fatality problem. The District's law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks.”“Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a ‘Militia,’ says nothing of ‘self-defense.’ As Justice Stevens points out, the Second Amendment;s drafting history shows that the language reflects the Framers' primary, if not exclusive, objective [Citation omitted]. And the majority itself says that ‘the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right . . . was codified in a written Constitution’ [Citation omitted]. The way in which the Amendment's operative clause seeks to promote that interest--by protecting a right ‘to keep and bear Arms’ may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U.S., at 178, 59 S. Ct. 816, 83 L. Ed. 1206 (‘With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,’ and the Amendment ‘must be interpreted and applied with that end in view’).”“Further, any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays' Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways [Citation omitted]. Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not [Citation omitted]. They were likely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment's more basic protective ends [Citation omitted].”“Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late-18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular.”Justice Breyer continues with his polemic, adding: “Regardless, why would the [Heller] majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge?” The answer to Justice Breyer's question should be obvious to anyone who recognizes the importance of the Second Amendment--as much now, in the present, as then, in the past. The Heller majority felt compelled to respond to antigun critics, including, most notably, those who, like Justice Breyer and Justice Stevens, curiously enough, have, in extrajudicial commentary and publications, made clear their desire to interpose foreign laws foreign jurisprudential values--alien to our unique history, our unique laws, and our unique Constitution--into their own methodological approach to U.S. Supreme Court case analysis and decision-making. Since the laws of Countries such as Great Britain and Australia, for example, have nothing even remotely analogous to our Second Amendment, one should reasonably conclude that anything set forth in the laws and jurisprudence of those Nations would be legally irrelevant to and certainly impossible to reconcile with our own system of laws and jurisprudence should anyone wish to insinuate such laws and jurisprudence into our case law anyway.Justice Breyer concludes his polemic, by asserting essentially the argument we hear ad nauseum from antigun groups. It is this: Americans should leave to “democratically elected officials” of government the power to impose government's will on the rest of us because government knows what’s best for all of us, even unto the veritable destruction of our fundamental rights and liberties. Justice Breyer asserts,“‘As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District ‘a variety of tools for combating’ such problems [Citation omitted]. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”So it is that Justice Breyer would apply his novel “interest-balancing” inquiry to test the lawfulness, the very constitutionality, of Maryland's Firearm Safety Act, fully believing in and having complete faith in the usefulness of his novel standard for application to governmental actions that attack the core of the Second Amendment. Having, then, utilized his interest-balancing inquiry standard, he seems oblivious to the fact that, even with his preferred new test, no less than with any of the other conventional standards, he, along with anyone else who might be tempted to use his novel approach, would not be prevented from automatically ordaining the result wanted--which means that, notwithstanding Justice Breyer's conviction that his novel test would preclude a foreordained conclusion, a Court that finds the Second Amendment repugnant will still come to the conclusion desired: a finding that governmental action that effectively bans the lawful possession of an entire category of firearms and that negatively impacts the core of the Second Amendment is lawful when, in fact, it isn’t. Indeed, one finds that Justice Breyer was not immune to the fatal flaw that can and often is the bane of all otherwise brilliant Jurists. We find that the fatal flaw that exists is found to reside less in a presumed fault with any conventional or fanciful approach used by a Jurist to test the constitutionality of a governmental action than in the depth of the Jurist's very being. That is to say, the fault, we see, rests, first and foremost, in the Jurist's heart, not in the Jurist's analytical and intellectual acumen. The late Justice Scalia recognized this, which is why he felt it necessary to discard any Judge-made test that might be applied to governmental actions that target the core of a fundamental right. Sadly, Justice Breyer did not see this, even when Justice Scalia pointed out the fatal flaw, which he, tactfully ascribed to Justice Breyer's interest-balancing inquiry, rather than to Justice Breyer, himself.
INTEREST-BALANCING INQUIRY ANALYSIS SHOULD NEVER BE USED TO TEST THE CONSTITUTIONALITY OF GOVERNMENTAL ACTION THAT ATTACKS THE CORE OF THE SECOND AMENDMENT RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.
What more do we find problematic in Justice Breyer's Dissenting Opinion? Justice Breyer quibbles when he suggests that the Framers of the Constitution had considered muskets--Americans' early long guns, rather than handguns--as the sorts of weapons that fall under the purview of Second Amendment protection. But, there is really nothing concrete to suggest that the Framers of the Constitution had sought to specify those particular weapons that fall within the core of the Second Amendment protection and those that do not. Had the Framers had any idea that, in the future, there would exist individuals and groups whose repugnance of firearms was so strong and whose efforts to abolish the right to keep and bear arms so emphatic--who would go to such great lengths to abolish that right, working methodically and inexorably to ban first one category of weapons and then another until the entirety of weapons in civilian hands would effectively be banned by Statute, irrespective of the language of the Constitution--then, we suspect, the Framers' codification of the natural and fundamental right of the people to keep and bear arms in the Constitution would have been set forth with perspicuity. That the Framers thought the right codified in the Second Amendment so clear and obvious, and the need for it so transparent, they obviously didn't feel further explication in the language of the Amendment necessary.Since Heller had set forth in case law what had previously been set forth in most of the academic articles on the subject—the fact that the right of the people to keep and bear arms is an individual right, not merely a collective right, relegated to one's service in a militia—antigun groups are now forced to attack the fundamental right of the people to keep and bear arms, one category of weaponry at a time. That is a slow, tedious process for them and one that antigun groups were, it seems, loathe to contend with but realize now they must contend with. So they are now, once again, since the early 1990's, seeking to ban individual categories of weapons—one category at a time, until all firearms are banned. Exemptions would exist for certain groups such as police and the military. But, those exemptions would be stated with specificity and very narrowly drawn.Antigun groups have found that the appellation, 'assault weapon' is a useful category because they can place a substantially large number of firearms in that makeshift category. The goal of antigun groups is to ban all semiautomatic weapons. So, if they are successful through use of the nomenclature, 'assault weapon,' as a prohibited category of weapons in State Statute, we will see more and more semiautomatic weapons placed in that category until all semiautomatic weapons are banned.The loss of an antigun proponent, Judge Merrick Garland does not sit well with antigun proponents. Judge Garland might have sat on the high Court had the U.S. Senate Judiciary Committee capitulated to cajoling from Congressional Democrats and cajoling from the mainstream media. Judge Garland would now sit on the high Court, and Heller might, eventually, be overturned outright. And, had Hillary Clinton, a virulent attack dog, been elected U.S. President, we would see much of the Second Amendment dismantled by Executive fiat. Fortunately, neither one of these two worst cases scenarios came to pass. That doesn't mean that antigun groups and antigun State Legislatures, and antigun members of the U.S. Congress, are not actively working, even as these words are being written, to weaken the Second Amendment. Those Americans who cherish their Bill of Rights and, especially, the sacred Second Amendment, must remain ever vigilant.In reading Heller, one must keep uppermost in mind that Justice Breyer wrote a dissenting opinion, not a concurring opinion, where, utilizing his novel interest-balancing inquiry test, he found the District of Columbia’s ban on possession of handguns not to be unconstitutional even though the D.C. handgun ban infringed the very core of, the very essence of the Second Amendment. Yet, for all of his seemingly carefully executed, assiduous remarks, Justice Breyer ultimately “makes” Justice Scalia’s case for the futility of applying any standard of review to what is clearly a facially unconstitutional act. Justice Breyer ultimately presents, quite eloquently, actually, how a seemingly meticulously crafted argument can have absolutely devastating consequences for Americans if Justice Breyer were writing for the Majority in Heller, rather than for the Dissent. The "Pen" can destroy the Bill of Rights even more effectively than a force of arms.As Justice Scalia made eminently clear, albeit tacitly, application of a standard of a conventional standard of review or application of Breyer’s novel interest-balancing inquiry to governmental action that attacks the core of the Second Amendment would still not prevent a Court that is philosophically opposed to the natural, right codified in the Second Amendment from drawing the wrong conclusion--a conclusion a Court wants: namely that an attack on the core of the Second Amendment will nonetheless pass judicial scrutiny, when such governmental action should not--when such governmental action should be struck down, and struck down hard.Indeed, the interest-balancing inquiry test that Justice Breyer devised and used in Heller demonstrates the futility of employing a makeshift standard, any more than any of the conventional standards, because, once having applied his test, Justice Breyer finds--no less than would he find through application of rational basis, intermediate scrutiny, or strict scrutiny--the result he wants, the result he knew he would obtain: namely that a clearly unconstitutional law—the District of Columbia’s total ban on possession of handguns—is lawful.Consider: if utilization of any test, rational basis, intermediate scrutiny, strict scrutiny, or Justice Breyer's interest-balancing inquiry test cannot reasonably guarantee a sound conclusion, then perhaps the U.S. Supreme Court should consider dispensing with--scrapping--all of them, certainly where it is clear that governmental action is targeting the very core, the very essence of a fundamental right. A Court should not bother to go through, should not have to go through, numerous intricate, tortuous gyrations, pretending or fooling itself that it is possible to salvage a government action that is designed, on its face, to destroy a fundamental right, codified in the Bill of Rights. For, a government--be it federal, State, or local--can, under no circumstance or set of circumstances, constitutionally, rationally, legitimately, justify burdening the core, the very essence of our Constitutional rights and liberties.How, then, ought a Court of competent jurisdiction proceed? A Court should simply ascertain, first, whether a governmental action is attacking the core of a sacred right. If so, then, that should end the matter. No further analysis is needed. The governmental action should indeed be struck down; must be struck down. There is no need to beat around the bush on this. The Heller Majority Opinion, penned by Justice Scalia, made that point abundantly clear.
PROCEEDING FURTHER WITH OUR ANALYSIS:
Commencing with the U.S. District Court of Maryland opinion, having, as the lower Court, the first look at the case presented to it by Plaintiff, Kolbe, and others, the District Court failed to heed Heller, falling into the same trap that Justice Breyer fell into.The District Court of Maryland could not, though, employ Justice Breyer’s interest-balancing inquiry standard—much as it would have liked to—as that test was one devised by the Dissenting Opinion Justice, not the Majority, and, so, the case analysis presented by the Dissenting Justice in Heller, does not have precedential value.What, then, did the District Court of Maryland do? The District Court of Maryland employed as a standard of review, a fallback—in this case, intermediate scrutiny--and the Court did so on the mistaken belief that the Heller Court Majority’s failure to clearly articulate a test--the failure of the Heller Court's Majority to set forth, convincingly, at least to the satisfaction of the lower District Court of Maryland--a test or standard of review through which a Court might definitively determine, definitively ascertain, the constitutionality of a government action, meant that a lower Court is free to utilize any standard of review it wants, consistent—so it is—with prior rulings, in this instance, Fourth Circuit Court rulings, rulings, then, that precede Heller. The District Court of Maryland then fooled itself into believing it could apply its test reasonably, rationally, judicially, to reach the correct conclusion. But the Court could not do so and did not do so. The District Court reached a wrong conclusion: finding Maryland’s “Firearm Safety Act” to be lawful, constitutional, notwithstanding that implementation of it burdens the exercise of the fundamental right of the people to keep and bear arms, and that the government action does so in an extensive, intensive, and inordinately intrusive manner.In asserting the deficiencies inherent in interest-balancing, for ascertaining the moral good of actions, the great German Philosopher, Immanuel Kant, said this: “Woe unto him who searches in the winding paths of the theory of interest-balancing for some technique to uphold the debasing of human dignity.” “The Metaphysics of Morals 141 (Mary Gregor trans., 1991),” as cited in “Essay: In God’s Image: The Religious Imperative Of Equality Under Law,” 99 Colum. L. Rev. 1608, 1624 (October 1999). We continue with our in-depth analysis of the dangerous and horrible Kolbe decision in Part Six of this ongoing series of articles.________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!
KOLBE VS. HOGAN:
INTERIM REMARKS
The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe. Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
KOLBE VS. HOGAN: THE U.S. DISTRICT COURT OF MARYLAND IGNORES U.S. SUPREME COURT PRECEDENT, OPENLY AND BLATANTLY DEFYING HELLER.
PART FOUR
The Maryland District Court incorrectly and improperly interpreted Justice Scalia as saying: “the Supreme Court held in Heller I* that a heightened level of scrutiny applies to regulations found to burden the Second Amendment right, 554 U.S. at 628 n.27, but did not further articulate whether and when strict or intermediate scrutiny applies.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 789 (U.S. Dist. Ct. Md. 2014), affirmed in part, vacated in part, and remanded to the District Court by the three Judge Panel in Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016). It was not by accident that the high Court in Heller refrained from articulating when intermediate scrutiny or strict scrutiny, as a legal standard, applies to test the constitutionality of legislation impinging on the Second Amendment. The Heller Court deliberately refrained from doing so.The high Court intentionally refrained from articulating any standard of review—whether rational basis, intermediate scrutiny, strict scrutiny, some hybrid standard, or a completely new and novel standard of review, such as the one Justice Breyer devised for Heller, in his dissenting opinion—because Justice Scalia, who wrote the majority’s opinion, knew that any standard a lower court or the U.S. Supreme Court utilized to test the constitutionality of legislation, impinging upon and directly infringing the right of the people to keep and bear arms, would likely fail if a lower Court—antithetical to the very existence of the Second Amendment—wished to uphold an unconstitutional law. The decision and reasoning of the U.S. District Court of Maryland in Kolbe vs. O’Malley demonstrably bears out Justice Scalia’s concern.Justice Scalia knew full well a lower Court would foreordain the result it wanted, through any standard of review the high Court might articulate. Thus, a lower Court could cloak a wrongly decided case by simply pointing to the standard the high Court happens to tell a lower Court to use, and, in so “applying” that standard, uphold a facially unconstitutional law, finding the law to be perfectly valid and, hence, lawful, when in fact it isn’t.Justice Scalia apparently felt confident that, by refusing to articulate a standard of review for testing the constitutionality of a government action that directly impinges and infringes the core of the Second Amendment, a lower Court will draw the right conclusion and strike down such government action—even if a lower Court does so reluctantly because it happens to harbor animosity toward the Second Amendment. But, Justice Scalia did not, apparently, realize the lengths to which a lower Court would go to defend governmental actions directed to the core of the Second Amendment even if such Courts flirt with injudicious defiance of clear U.S. Supreme Court precedent.The District Court of Maryland extrapolated from a totally erroneous interpretation of Heller, relying on exposition from an earlier Fourth Circuit case that reflects law decidedly and decisively overridden by Heller. The District Court of Maryland said, “From the Court’s holding in Heller I, the Fourth Circuit has subsequently determined that whether strict or intermediate scrutiny applies requires the court to consider ‘the nature of the person’s Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government’s justifications for the regulation.’” Kolbe vs. O’Malley, 42 F. Supp. 3d at 789, relying for support on United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).The District Court’s understanding of Heller is flat-out wrong. The District Court points for support, for its reasoning and for its decision, to parenthetical material, dicta, appearing in Heller. Dicta, though, does not constitute the salient ruling of the high Court—hence the reason that such material appears in a footnote and not in the body of the high Court’s opinion.In that footnote to the Heller Opinion, Justice Scalia was doing nothing more than responding to Justice Breyer’s comment—a comment that appeared in Justice Breyer’s dissenting opinion. Justice Scalia was simply agreeing with Breyer that rational basis—the lowest standard of review to test the constitutionality of government action—is never an appropriate standard when that government action directly and clearly and fatally impinges on and infringes an enumerated right, such as the Second Amendment. What Justice Scalia said in “fn27,” which the District Court refers to, and as we pointed out in Part Three of this series, and which bears repeating is this:“Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n 4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) (‘There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . . .’ If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."From these remarks the U.S. District Court for the District of Maryland felt justified, nonetheless, to apply some standard of review—when the Heller majority did not warrant use of any standard of review to test the constitutionality of governmental action that impinges on and infringes the very core of the Second Amendment. Justice Scalia, writing for the majority in Heller, made abundantly clear that all standards of review are inadequate when the core of the Second Amendment is attacked.Justice Scalia therefore refused to be pinned down to elucidating a test to be used by the courts when analyzing whether a given law that operates to ban an entire category of weapons that the public commonly uses for self-defense might feasibly survive a constitutional challenge. Justice Scalia, writing for the majority, refused to be pinned down because he realized that, under any of the standard tests Court’s employ to test the constitutionality of a legislative act—specifically where a legislature attacks a core component of the Second Amendment—will often be found to be constitutional if the Court and an antigun government are of like mind.Responding to Justice Breyer’s criticism of the majority for not elucidating a standard of review, Justice Scalia said this:"Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ [citation omitted]. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—and the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”Curiously, Justice Breyer, in his dissenting opinion, makes Justice Scalia’s point for Scalia’s refusal to articulate a standard of review—even strict scrutiny. Justice Breyer says:“. . . adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’” United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). The Court has deemed that interest, as well as "the Government's general interest in preventing crime," to be "compelling," see id., at 750, 754, 107 S. Ct. 2095, 95 L. Ed. 2d 697, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam) (First Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)); Salerno, supra, at 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter. I would simply adopt such an interest-balancing inquiry explicitly.” And, in so doing, Justice Breyer made a glaring mistake. Justice Breyer was so convinced that a test of some sort must be used, he failed to realize that, in some instances, as in Heller, a governmental action that effectively neutralizes a fundamental right does not require application of some sort of Court devised test, as the governmental action is per se invalid. A governmental action must be struck down if it is directed to the core of a fundamental right. If a governmental action is directed to the core of a fundamental right, that means the governmental action is invalid on its face, i.e., facially, or per se, invalid. That is a salient, if tacit point of Heller. The point made is really nothing new. The U.S. Supreme Court has struck down facially unconstitutional laws, repeatedly, in the past, bypassing application of any test to ascertain constitutionality of a governmental action when the governmental action attacks the very core of the right protected by the Bill of Rights. For a general review of and good discussion of cases involving laws that the U.S. Supreme Court struck down on the ground of facial invalidity, see, e.g., two academic articles, written by an expert on the issue of facially unconstitutional laws, Richard H. Fallon, Jr., Professor of Law at Harvard university, "Fact and Fiction About Facial Challenges," 99 California Law Review 915 (August 2011); and, "As-Applied and Facial Challenges and Third Party Standing," Harvard Law Review (April 2000). There are a plethora of academic articles on this subject.Granted, Heller appears to be the first and only Second Amendment case, to date, where the U.S. Supreme Court has struck down a governmental action on the ground of facial invalidity—Justice Scalia finding application of any standard of review either to be redundant or possibly eliciting the wrong conclusion if applied--even if the words, "facial invalidity" do not appear expressly in Scalia's Heller opinion.Courts should seriously consider the reality and enormity of government transgression as government, at the federal, State, and local levels, callously enacts laws and regulations that attack the core of the Second Amendment, albeit doing so under the obvious guise of promoting public safety. Courts of competent jurisdiction should call out such patently unlawful government actions for what they are--scarcely covert attempts to destroy the Second Amendment to the U.S. Constitution. Laws and regulations, such as Maryland's Firearm Safety Act, should be found to be facially invalid as such laws and regulations are designed and implemented for no real purpose other than to prevent an American citizen from exercising his natural right to keep and bear arms under the Second Amendment. Courts should strike down such laws and regulations, unequivocally, peremptorily, totally, thereby sending a clear message to Congress, to the State Legislatures, and to local governments, that the Third Branch of Government, the Judiciary will not sit idly by as government seeks to legislate away the American citizen's fundamental right to keep and bear arms as codified under the Second Amendment. We continue with our analysis of Kolbe in Part Five of this series._________________________*Occasionally, Courts will use a Roman numeral as an informal designation for a case, if a plaintiff in an older case files a new action, raising a similar issue in the new case, against the same defendant. In fact, the principal plaintiff, in the seminal Heller case—a case subsequently and often referred to, as the U.S. District Court of Maryland refers to it, as Heller I—filed a new action against the District of Columbia, challenging the District of Columbia’s registration requirement on handguns and long guns and also challenging the District of Columbia’s ban on so-called “assault weapons” and so-called large capacity magazines—the same sort of challenge that Plaintiffs make to the Maryland Firearm Safety Act, in the Kolbe case.The citation of the recent Federal Circuit Heller case is, Heller vs. District of Columbia, 670 F.3d 1244 (Fed. Cir. 2011). This more recent case is often referred to, informally, as Heller II. We will be taking a close look at this case, as we continue with this important series of articles.Note: it isn’t coincidence that antigun Courts all use the same faulty reasoning when ruling that facially unconstitutional laws, infringing the Second Amendment, nonetheless pass constitutional muster. These Federal Circuit Courts of Appeal—notably, the Second, Fourth, Seventh, and Ninth—dealing with the same or similar fact patterns, are, we believe, clearly working in concert, having created an unholy alliance to uphold laws unconstitutionally infringing the core of the Second Amendment. These Courts, an important component of the Judiciary—that should rise above the fray--above political and social dissension, exercising independent legal judgment—become, all too often, a lackey of political forces, doing nothing, really, to disguise that fact and doing nothing to disguise the fact, too, that they will ignore U.S. Supreme Court precedent when they wish to impose their own social and political will on society. What makes the actions of these Courts particularly reprehensible is that their actions always have the pious imprimatur of the law—falsely suggesting that their conduct is forever above the fray of politics when it really isn't as they are merely masking, in their judicial orders, what it is they are really doing--what they have done all along--making political and legislative pronouncements, becoming a servant of the Press and of the First Branch of Government--the Legislature--rather than operating as a co-equal Branch of Government as the Founders of our Republic intended for them to operate--namely as the grand interpreter of the law that the Constitution has given them the singular power and authority to oversee._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
KOLBE VS. HOGAN: WILL THE CORRECT STANDARD OF REVIEW IN A SECOND AMENDMENT CASE PLEASE STAND UP!
PART THREE
THE U.S. DISTRICT COURT OF MARYLAND EMPLOYED THE WRONG STANDARD OF REVIEW IN FINDING THAT MARYLAND’S DRACONIAN FIREARM SAFETY ACT IS LAWFUL.
The U.S. Supreme Court, in the case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), wrestled with the legal test to be applied when determining if a law, impacting the Second Amendment, would pass Constitutional muster. The U.S. Supreme Court has, through time, in its great body of case law, developed three salient standards of review, or tests, one of the three which a court of competent jurisdiction must apply when testing the constitutionality of government action. But which test a court must apply to test the constitutionality of a particular government action depends on the nature and importance of the right protected, the extent to which a government--local, State, or federal--infringes that right, and the class of persons impacted by that governmental action.Apart from the high Court's three seminal holdings on the Second Amendment, in Heller, the Heller case is notable for explicating problems associated with all of those standard tests previously employed—and with problems associated with a new one that the dissenting Justice, Stephen Breyer, would like to have applied—when government enacts a law directly impinging on and infringing the very core of the Second Amendment. The late Justice, Antonin Scalia, writing for the majority in Heller, discussed the problems of each of these standard tests, concluding that none of the traditional tests, including the balancing of interests test proposed by Justice Breyer, are adequate to protect the core of the Second Amendment, when a government deliberately, unabashedly attacks the very core of it.Justice Scalia began by pointing out that the weakest standard of judicial scrutiny, “rational basis,” should never be used to test the constitutionality of legislation, that, on its face, is directed against the exercise of a fundamental right, especially when legislation negatively impacts the Second Amendment. “Rational basis” is an unacceptable standard to be used because, if it is used, a governmental entity--be that a local, State, or Federal governmental entity—need only demonstrate that the governmental legislation is rationally related to a legitimate government purpose. Where the Second Amendment is impacted, this generally means that a governmental entity need only demonstrate that the governmental action is rationally related to a legitimate goal such as promoting public safety in order for that governmental entity to successfully defend against a challenge to the constitutionality of the governmental action.Rational basis, as a standard of review, to test the constitutionality of governmental action, where, as here, the Second Amendment is negatively impacted, is categorically inappropriate. Even the left-wing Justice, Stephen Breyer, agreed. As Justice Scalia stated, in Heller, “Justice Breyer correctly notes that this law [Maryland’s Firearm Safety Act] like almost all laws, would pass rational-basis scrutiny. [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee.” Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms [citation omitted].” District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Justice Scalia points out clearly, categorically the inappropriateness of rational basis in testing the constitutionality of legislation negatively impacting the Second Amendment. For a Court using that lax standard could easily find that laws that unconstitutionally impinge on and infringe fundamental rights would, nonetheless, pass judicial scrutiny every time unless the governmental action is determined, by a court of competent jurisdiction, to be arbitrary and capricious—a notoriously difficult burden for a challenger to overcome, and something which a Court very rarely finds in governmental actions.On Second Amendment matters, where public safety is always asserted as the, or certainly a, salient reason for restrictive gun legislation, it is highly unlikely that a Court of competent jurisdiction would ever find any restrictive gun legislation—even an absolute gun restriction—to be arbitrary and capricious when public safety is asserted as at least one of the primary bases for the legislation. Of course, drafters of restrictive gun legislation, and the mainstream media that always trumpets such legislation, invariably assert “public safety” as the salient, predicate basis for enacting such legislation in the first place. Courts rarely, if ever, look beyond and behind the assertion to determine whether “public safety” is truly the basis for restrictive gun legislation and not simply a makeweight employed for the specific purpose of defeating any challenge made to it.Thus, a challenger—who, under rational basis, always bears the burden of proof, at the get-go, to demonstrate that a particular government action is unconstitutional—would have a very difficult time, demonstrating, to the satisfaction of a court of review, that such restrictive legislation is, under law, unconstitutional. This means, of course, that, under rational basis, any infringement of an American's fundamental right to keep and bear arms always passes constitutional muster. This isn’t an academic consideration. For New York Courts routinely use rational basis as a standard of review and have found, not unsurprisingly, the New York Safe Act—one of the most restrictive and notorious gun enactments in the Nation, that clearly, negatively impacts the core of the Second Amendment—to pass constitutional muster.But, would application of the highest standard of review, strict scrutiny, defeat restrictive gun legislation that hides behind the cloak of promoting public safety? Justice Scalia didn’t think so, notwithstanding the import of such heightened scrutiny.
WHAT DOES JUDICIAL REVIEW UNDER STRICT SCRUTINY MEAN?
What does review of legislation, under “strict scrutiny,” entail? Under strict scrutiny, a governmental body must show, one, that legislation impinging upon and infringing upon a constitutional right, must serve a “compelling governmental interest” and, two, that the law that ostensibly serves a compelling governmental interest, is, in fact, the least restrictive means government has available to it for achieving its stated goal.Such a test, properly used, would, one might reasonably think, preclude implementation of--or if implemented, would require a Court to strike down--devious antigun legislation, designed primarily to curtail the legitimate right of gun owners to own and possess firearms by unconstitutionally, and, therefore, unlawfully, divesting them of that right. For, the mere and obviously false and ridiculous assertion by government that restrictive gun legislation is not designed to divest gun owners of their guns--as government doesn’t really wish to deny average law-abiding, rational Americans their right to own and possess firearms--but is designed merely to promote public safety--will not, by itself, satisfy strict scrutiny.The mere trivial claim of government--adequate to satisfy rational basis--is not enough to satisfy strict scrutiny. Such legislation would, it is reasoned, fail such severe judicial scrutiny, time and time again. That, of course, is what application of strict scrutiny is designed to do. But that is not always what happens--especially where legislation impinging on and infringing the right of the people to keep and bear arms exists. Justice Scalia knew this. He wasn’t fooled by the promise that strict scrutiny sought to engender. Justice Scalia saw the fallibility in the test of strict scrutiny—in any test or standard, really, that a Court may be called upon to employ when testing the constitutionality of restrictive gun legislation—even the test of strict scrutiny as applied to test the constitutionality of governmental enactments.Justice Scalia reasoned, in the Heller opinion, that, if the Courts use the most stringent standard, strict scrutiny, then government action, negatively impacting the right of the people to keep and bear arms—a fundamental right as codified under the Second Amendment—could still feasibly pass Constitutional muster.He said in Heller, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’” [citation omitted] would fail constitutional muster. District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Academicians concur. One legal scholar writes, “Strict scrutiny must be worthy of its name; ‘strict’ should be truly ‘strict,’ not merely ‘significant.’ It should take more than a good college try to satisfy strict scrutiny. Otherwise aspects of liberty encapsulated in fundamental rights will lack the vigor the Supreme Law of the Land should command in a free society. That is why strict scrutiny is ‘the most demanding test known to constitutional law.’” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, Kenneth A. Klukowski, University of Notre Dame Law School, J.D., 93 Nebraska Law Review 429, 444 (2014). The author says, unabashedly, that the courts have “emasculated strict scrutiny.” Certainly, Justice Scalia was aware of this “emasculation” of the strict scrutiny test. It was for this reason that he was skeptical of asserting a standard of review for Second Amendment cases at all. Justice Scalia knew that many courts, federal and State, frown on the very existence of the Second Amendment. Given the chance, judges that despise the Second Amendment would find a restrictive gun law constitutional using any articulated standard of review. Justice Scalia also obviously knew that, to enhance the effectiveness of Heller, it was necessary to make clear to courts of inquiry that outright bans on entire categories of guns that the public has traditionally and commonly used for self-defense are per se unconstitutional. “There are situations in which even strict scrutiny proves insufficient to vindicate constitutional rights. Those are (1) categorical bans on firearms, and (2) firearm confiscations. . . . Per se rulings will . . . take off the table certain questions wherein courts are giving short shrift to the Second Amendment. The Second and Fourth Circuits have held that near-absolute bans on carrying firearms outside the home are constitutional, applying a faux intermediate scrutiny that more resembles rational-basis review.” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, 93 Nebraska Law Review at 446-447.
WHAT STANDARD OF REVIEW DID THE U.S. DISTRICT COURT OF MARYLAND USE IN DECIDING KOLBE?
But, what did the U.S. District Court of the District of Maryland, in Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014), do? The lower Court didn’t apply strict scrutiny, nor did it apply rational basis. The U.S. District Court applied another standard of review—intermediate scrutiny, and, having done, the Court, held, not surprisingly, that facially unconstitutional legislation nonetheless passes judicial inquiry into the constitutionality of that legislation--namely, that the Maryland Firearm Safety Act is lawful and consistent with the Second Amendment right of the people to keep and bear arms. Under “intermediate scrutiny,” a standard of review created by the U.S. Supreme Court, that ostensibly falls between the very lax “rational basis” standard and the seemingly strong “strict scrutiny” standard, a Court, using the intermediate scrutiny test, commences by asking whether legislation is rationally related to a legitimate government goal. That of course is the rational basis test; and, under that test, if the government action meets that liberal test, as it almost invariably does, the Court must need go no further in determining the constitutionality of the government action. But, rational basis is only the first step when a Court employs intermediate scrutiny. The Court then proceeds to the next step, and asks whether the legislation is substantially related to the governmental interest in achieving that goal. How did intermediate scrutiny come to pass? Originally, intermediate scrutiny was devised by the U.S. Supreme Court for use in gender discrimination cases. Intermediate scrutiny, though, has increasingly been used by Courts, in lieu of the heightened strict scrutiny, in cases where fundamental rights are at stake—most notably under the First and Second Amendments.Antigun Courts that are generally restrained from using rational basis—apart from the Courts of New York that have systematically gotten away with use of this altogether inapt standard of review—the standard of review of choice of these antigun Courts, tasked with ruling on the constitutionality of a government action that negatively impacts the Second Amendment, is intermediate scrutiny.But there is a problem with this standard of review. The problem with “intermediate scrutiny” is that it is difficult to get a handle on it. What does “substantially related” mean? It means different things to different Courts.Understand, if, as Justice Scalia pointed out in Heller, strict scrutiny is not an appropriate test to be used in testing the constitutionality of government action that infringes the core of the Second Amendment, intermediate scrutiny, as with the lax test, rational basis, is clearly not the appropriate test for a Court to use either. The U.S. District Court of Maryland used the test of intermediate scrutiny, anyway.Maryland’s Firearm Safety Act, operating as a total ban on an entire category of firearms that the law-abiding citizenry traditionally and commonly uses for self-defense—namely, those firearms the State arbitrarily defines as “copycat weapons” or “assault weapons” or “military style weapons” and ammunition magazines classified as “LCM” (Large Capacity Magazines)” commonly used for those weapons—passes constitutional muster on a standard of review the U.S. District Court for the District of Maryland decided to use—a standard of review to test the constitutionality of the Maryland Firearm Safety Act that the Heller majority discussed—along with rational basis and strict scrutiny—and summarily rejected.Why did the U.S. District Court of Maryland use a standard of review in clear contravention to Heller in testing the constitutionality of the Maryland Firearm Safety Act—that so blatantly infringes the right of the people to keep and bear arms? What was the U.S. District Court of Maryland thinking? Did the U.S. District Court of Maryland really believe that it could so easily snub the U.S. Supreme Court? What was the reasoning of the U.S. District Court? We deal with these questions in Part Four of this multipart series on Kolbe.__________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
NEW YORK PUSHES FOR LAW REQUIRING GUN OWNERS TO PURCHASE LIABILITY INSURANCE
On January 17, 2017, Assistant Speaker of the New York State Assembly, Felix W. Ortiz, a Democrat, introduced a bill in the New York State Assembly aimed directly at gun owners. The bill, A2260, if enacted, would require all firearm owners to purchase liability insurance for their firearms. The bill would amend the Insurance Law of the State. A2260 would require gun owners to obtain and to maintain liability insurance in an amount not less than $250,000.00 to cover damages resulting from the negligent use of that firearm. Failure to hold such insurance would result “in the immediate revocation of such owner’s registration, license and any other privilege to own such firearm.” The bill exempts peace officers.This bill is nothing new, really. It is simply a repackaged version of earlier bill that State Assemblyman, Ortiz, introduced to the New York State Assembly in 2013: AB 3908. The earlier bill was even more ambitious. Had the New York State Legislature enacted the earlier bill, the owner of a firearm would be required to obtain and maintain liability insurance in the amount of one million dollars. Moreover, the insurance would have had to cover damages for both negligent and willful acts involving use of a firearm owned by the policy holder.You will note that nothing in either bill addresses the party who might be responsible for causing negligent or intentional harm.The 2013 bill went nowhere. Ortiz made changes, reflected in the newer version of the bill, to exclude liability for intentional acts—a matter obviously of great concern to insurers.As of this date, to the best of our knowledge and belief, no State has successfully enacted legislation mandating that gun owners purchase and maintain liability insurance on the firearms they own.There is a good reason for this. Insurance companies don’t want to be embroiled in gun liability. It is an expensive proposition for them. If so, insurance companies won’t wish to provide such insurance. That raises another problem. Suppose a State, such as New York, does enact such legislation, requiring all gun owners to obtain and to maintain liability insurance. There is nothing in the bill—A2260 or AB3908—that requires insurance companies to provide such coverage. And, if insurance companies refuse, en masse, to provide such coverage, where does that leave gun owners? Not in a good place, for sure. For this would mean that law-abiding gun owners could not lawfully retain the guns they presently own. And, if they are required to show a gun dealer that they have gun liability insurance coverage as a condition to purchasing a new firearm, New York gun owners would not be able to purchase an additional firearm as they would not be able to obtain gun liability insurance. They would not be able to do so because insurance companies wouldn’t provide gun owners with gun liability coverage.Liability insurance is simply another gimmick, conceived by antigun groups, to make gun acquisition a difficult and expensive, if not altogether impossible, process for the average, law-abiding, rational American citizen. Antigun groups won’t say this, of course. They analogize gun liability insurance to auto insurance. They argue that the purpose is to promote safe handling of firearms and to compensate injured parties. But insurance companies that offer casualty insurance are not likely to wish to get into the business of insuring against negligent, much less intentional, harm resulting from misuse of firearms.But, suppose States, through legislation, required insurance companies to offer gun liability coverage if insurance companies wished to continue to do business in the State. Some insurers may very well simply leave the State. But, those companies that remained would find themselves in the gun business and in the gun business in a way they certainly wouldn’t want to be. To reduce risk to their “bottom line,” companies would likely institute rigorous, draconian screening procedures for prospective policy holders.Screening procedures could include requirements that policy holders undergo extensive mental and physical examinations. Insurers may mandate that policy holders undertake firearm safety training on a regular basis. One academician writes: “encouraging or mandating liability insurance to cover more firearms-related injuries would shift some of the costs associated with this harm to property casualty insurers, thereby creating greater financial incentives for them to utilize their expertise in classifying and spreading risk, promoting gun safety, and engaging in other risk mitigation strategies. Within the insurance world, health, life, and disability insurers currently bear the financial costs of firearm violence, at least to the extent that victims have such insurance coverage.” Liability Insurance and Gun Violence, 46 Conn. Law Review 1265, 1271 (May 2014), by Peter Kochenburger, Associate Clinical Professor of Law and Executive Director, Insurance Law Center, University of Connecticut School of Law.Another Academician, writing in the same periodical, points out that, “Proponents of compulsory liability insurance for gun owners hope that insurance would provide a source of monetary compensation for shooting victims and their families, while serving as a source of private regulation that would determine who may have a firearm, create incentives for insurers to require firearm owners to take care that their weapons are not involved in gun crime, and place the costs created by guns onto their owners.” Insuring Against Guns? 46 Conn. Law Review 1209, 1211 (May 2014), George A. Mocsary, Assistant Professor, Southern Illinois School of Law. Mandating firearm liability insurance is clearly problematic. The same writer says, “Opponents, including insurers, have argued that, instead of achieving its stated goals, compulsory insurance would likely compensate only a few shooting victims, would not impact gun possession by those who misuse firearms, would create incentives for gun owners to be less careful with their weapons, and would be problematic to implement. Some also raise concerns that forcing firearm owners to insure themselves and their weapons may suffer from constitutional infirmities. Id. At 1212.Lost in the discussion of guns and insurance is the fact that gun owners do often obtain insurance for the firearms they own. But, they do so, voluntarily, to protect their guns from risk of loss. They don't do so to insure against possible harm caused through misuse of one's firearm by a thief who has stolen it; nor should they be compelled to do so. “Although homeowners’ insurers ask about gun ownership in the course of their underwriting, they do not ask that question for purposes of liability underwriting. Rather, they ask to evaluate whether the applicant needs a special rider to cover the theft or damage of a valuable gun. Insurers selling commercial insurance policies to gun retailers do consider loss prevention during their underwriting, but they are more concerned with safeguarding guns and weapons from theft or other property damage than with reducing liability risks.” “Twenty-first century litigation: pathologies and possibilites: a symposium in honor of Stephen Yeazell: regulation by liability insurance: from auto to lawyers professional liability, 60 UCLA Law Review 1412, 1432.Antigun groups—fast to enact draconian new antigun laws—remain unconcerned about pragmatic considerations, or even ethical ones; and they are altogether oblivious to Constitutional constraints. Their single-minded obsession with guns is directed to making it exceedingly onerous for the average person to own and possess them.Restrictive gun bills that are drafted and restrictive gun laws that are ultimately enacted are done so with a feverish intensity with little if any regard to the negative impact such legislation has on the rights and liberties of individuals living in a free Republic; and with little or no regard to the administrative burdens such legislation places on public agencies, taxed with carrying out the legislation; and with little or no regard to the negative impact such legislation has on business and, therefore, on the economic well-being of our Nation.New York’s latest ridiculous antigun legislation—A2260—mandating that all gun owners in New York purchase and maintain liability insurance for their firearms will, as with the previous bill, go nowhere. Nor should it go anywhere. NYS Assemblyman Ortiz has drafted his bill with no comprehension of how the casualty insurance industry operates. He has no conception of the import of our Nation’s Bill of Rights. And, he obviously has little if any regard for the rights of law-abiding gun owners.Someone might suggest to Ortiz that he take a refresher course on the meaning and purpose of our Constitution. Were he to take a course in freshman economics and bone up a bit on casualty insurance basics, that wouldn’t hurt either.__________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
KOLBE VERSUS HOGAN: A CASE AT ODDS WITH HELLER
PART TWO
FACTS AND HISTORY OF THE CASE
The Plaintiffs in Kolbe, include two American citizens and residents of the State of Maryland, a gun club, a gun dealer, and several gun associations. The Plaintiffs filed an action in Maryland District Court, in 2013, against several Maryland State Officials: Martin J. O’Malley, in his official capacity as Governor of the State of Maryland, Douglas F. Gansler, in his official capacity as Attorney General of the State of Maryland, Marcus L. Brown, Col., in his official capacity as Secretary of the Department of State Police and Superintendent of the Maryland State Police, Maryland State Police, Defendants.The citation for the original case, filed in the U.S. District Court for the District of Maryland, with a slightly different case name is: Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014). On appeal to the U.S. Circuit Court of Appeals for the Fourth Circuit, the caption of the case was changed to reflect the new Governor, as party Defendant, Larry Hogan, who superseded Governor Martin O’Malley.In their Complaint, the Plaintiffs alleged that Maryland’s restrictive gun legislation, titled “The Firearm Safety Act of 2013,” is unconstitutional. Plaintiffs alleged specifically that the Maryland Firearm Safety Act infringes the Second Amendment to the U.S. Constitution, the Due Process Clause of the Fourteenth Amendment, and that the Act should be declared void for vagueness.The Firearm Safety Act is codified, in substantial part, in the Maryland Penal Code, Crim. Law (“CR”) §§ 4-301(d), 4-303(a)(2), and § 4-305(b). What does The Firearm Safety Act of 2013 say? The Act says that, “after October 1, 2013, no person may possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat weapons.’ These banned weapons are, collectively, defined as ‘assault weapons’ under the Act. In addition, the Act states that a person “may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm.” The focus of Plaintiffs’ Complaint was on challenging the constitutionality of Md. Criminal Law Code § 4-403, titled, Assault Weapons—Prohibited. § 4-403(a) says: “Except as provided in subsection (b) of this section, a person may not transport an assault weapon into the State or possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.”What constitutes an ‘assault weapon’ under Maryland law? An ‘assault weapon’ is no more than a legal fiction. Md. Criminal Law Code § 4-401, titled, simply, Assault Weapons, defines ‘assault weapon’ as an ‘assault long gun’ or ‘assault pistol’ or a ‘copycat weapon.’ Those three expressions are, in turn, defined as follows:“‘Assault long gun’ means any assault weapon listed under § 5-101(r)(2) of the Public Safety Article.‘Assault pistol’ means any of the following firearms or a copy regardless of the producer or manufacturer:AA Arms AP-9 semiautomatic pistol;Bushmaster semiautomatic pistol;Claridge HI-TEC semiautomatic pistol;D Max Industries semiautomatic pistol;Encom MK-IV, MP-9, or MP-45 semiautomatic pistol;Heckler and Koch semiautomatic SP-89 pistol;Holmes MP-83 semiautomatic pistol;Ingram MAC 10/11 semiautomatic pistol and variations including the Partisan Avenger and the SWD Cobray;Intratec TEC-9/DC-9 semiautomatic pistol in any centerfire variation;P.A.W.S. type semiautomatic pistol;Skorpion semiautomatic pistol;Spectre double action semiautomatic pistol (Sile, F.I.E., Mitchell);UZI semiautomatic pistol;Weaver Arms semiautomatic Nighthawk pistol; orWilkinson semiautomatic ‘Linda’ pistol. ‘Assault weapon’ means:an assault long gun;an assault pistol; ora copycat weapon. ‘Copycat weapon’ means:a semiautomatic centerfire rifle that can accept a detachable magazine and has any two of the following:a folding stock;a grenade launcher or flare launcher; ora flash suppressor;a semiautomatic centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;a semiautomatic centerfire rifle that has an overall length of less than 29 inches;a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds;a semiautomatic shotgun that has a folding stock; ora shotgun with a revolving cylinder.‘Copycat weapon’ does not include an assault long gun or an assault pistol.”Penalties for violation of the law are harsh. A person who violates the Act “is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.” Does the Act apply evenly to everyone? No. The law exempts retired law enforcement officers.
THE LOWER COURT’S DECISION
In ruling for the Defendants, upholding the constitutionality of a highly restrictive Firearm Safety Act, amounting essentially to a gun ban on an entire category of firearms, the lower Court said this: “the Firearm Safety Act of 2013, which represents the considered judgment of this State’s legislature and its governor, seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines. The Act substantially serves the government's interest in protecting public safety, and it does so without significantly burdening what the Supreme Court has now explained is the core Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’”The ruling, far from clarifying the purported constitutionality of Maryland’s restrictive Act, begs the very question at issue: does the Act, banning citizen ownership of an entire category of firearms, violate the Second Amendment to the U.S. Constitution precisely because the Act precludes to law-abiding citizens the right to own an entire category of firearms they have owned for decades; and does the Act violate, as well, the Equal Protection Clause of the Fourteenth Amendment insofar as it extends to retired law enforcement officers a right to own a large category of firearms the Act denies to everyone else?
THE DECISION OF THE LOWER, U.S. DISTRICT OF MARYLAND, IS NOT CONSISTENT WITH THE HOLDING, REASONING, OR METHODOLOGY OF HELLER
Whenever a Second Amendment challenge is raised, courts of competent jurisdiction must consider the impact of and import of the U.S. Supreme Court’s decision in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), made applicable to the States in McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010). To most people—those who have at least an inkling as to the import of Heller—the Heller case stands for the proposition that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Upon acknowledging that holding as they must, Courts, such as the U.S. District Court for the District of Maryland, that profess an open dislike for the Heller case generally and for the Second Amendment particularly, proceed on their merry way to misread Heller. They do so to uphold draconian gun laws that are clearly inconsistent with Heller.Is Heller so difficult to understand? No! Even through a cursory reading of Heller, one can see that Justice Scalia, who wrote for the majority, provided specific, clearly articulated guidance for Courts to follow when a Second Amendment challenge to restrictive gun legislation comes before a Court.The U.S. Supreme Court in Heller, laid out, succinctly, the Court’s findings in its Syllabus. The Court Syllabus precedes discussion of the facts and issues of a case, and law applicable to a case. The Syllabus is not part of the main opinion but provides, for judges and attorneys, an abbreviated roadmap for getting a handle on a case.From the Syllabus in Heller, we see that the majority in Heller sets forth three distinct holdings. Apart from the first holding—namely that the right of the people to keep and bear arms is a right that accrues to the individual and, so, unconnected to that individual’s service in a militia—there are two other holdings that must be considered, along with the reasoning of the majority in Heller.The failure of the lower U.S. District Court and the failure of the higher Fourth Circuit Court of Appeals to adhere to the holdings of Heller and to apply the reasoning and methodology of the Heller Court, led to wrong decisions—decisions grounded on poor legal reasoning.Apart from holding that the right of the people to keep and bear arms is an individual right, the U.S. Supreme Court in Heller held that: “The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.”It is precisely on the issue as to whether a complete ban on “an entire class of ‘ arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense,”—weapons that Maryland and several other jurisdictions define as ‘assault weapons’— does or does not amount to an unconstitutional infringement of the American citizen’s right to keep and bear arms, that the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit should have focused their inquiry.Instead the lower U.S. District Court and the en banc Fourth Circuit meander into political discussions of whether this or that weapon that a citizen commonly owns constitutes a weapon of war and finding that this is so, deliver their rulings, namely, that the Maryland Firearm Safety Act, banning a very large category of weapons that the public commonly uses for self-defense, does not infringe the Second Amendment in an unconstitutionally impermissible way.Moreover, the lower District Court and the Fourth Circuit’s en banc majority admitted that the weapons the State of Maryland seeks to ban are not really weapons of war at all but are merely like military weapons—weapons the State refers to as “military-style weapons,” namely, “assault weapons”—weapons, nonetheless, similar enough to actual military weapons, according to these Court opinions, so as to be construed as military weapons and therefore not within the scope of the Second Amendment. But, assuming, for purpose of argument, that so-called “military-style weapons” or “copycat weapons” or “assault weapons” were true military weapons that the military does use—which, in fact, the military doesn’t—still, that doesn’t ipso facto mean such weapons do not deserve constitutional protection.After all, the Second Amendment, as written, and as intended by the founders of our free Republic, sought specifically to place military weapons in the hands of the citizenry, that citizens may protect themselves and the States from foreign aggression—threats outside the United States—and from a tyrannical federal government—threats to our individual liberty inside the United States. Thus, even if the Court in Heller didn’t rule directly on whether American citizens may lawfully keep and bear true military arms for self-defense, this does not mean lower Courts may willy-nilly rule they can’t. The high Court, in Heller, left that issue open as the issue wasn't directly before the Court; but, in raising the issue at all, in dicta, the high Court was at least laying the foundation for considering the constitutionality of whether American citizens, in their individual capacity, unconnected with service in a militia, may keep and bear military arms. Yet, in all too many Court opinions today, antigun judges are quick to pass judgment on matters not before it--assuming, as if the matter were self-evident that the public is not permitted, under the Second Amendment, under any circumstances, to keep and bear military arms and, from that premise which they take to be axiomatic--holding that the Second Amendment does not protect a right to keep and bear arms that, in a Court's judgment, are like military arms, even if they aren’t actually military arms and, notwithstanding that such weapons that are like military arms are those that are commonly used by American citizens for self-defense--a salient test for whether such weapons are protected under the Second Amendment at all.Again, keep in mind and burn into your memory: What the Heller Court did point out is that weapons that the public commonly uses for self-defense are weapons that do fall within the scope and protection of the Second Amendment.Now, such weapons that the Maryland Legislature, and several other State Legislatures, define as prohibited ‘assault weapons’ are those that the public commonly uses for self-defense. And, if so, such so-called “assault weapons” are a category of weapons, like handguns, that no Legislature may lawfully ban. To do so constitutes an impermissible infringement of an American citizen’s right to keep and bear arms under the Second Amendment, and constitutes an action by State government that is at loggerheads with the Heller decision.We continue with our analysis of Kolbe in Part Three of this series.______________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
IS USE OF ‘CCW,’ IN REFERENCE TO CONNECTICUT’S PERMIT TO CARRY HANDGUNS APPROPRIATE?
In the latest set of articles in the continuing ROAD TRIP series, the Arbalest Quarrel discussed the handgun permit schema of Connecticut. The State Legislature has tasked to the Special Licensing and Firearms Unit of Connecticut’s Division of State Police the processing of applications for permits to carry pistols and revolvers. The Division of State Police is a component of The Department of Emergency Services and Public Protection (DESSP).In analyzing Connecticut gun permit laws and procedures the Arbalest Quarrel has used the acronym ‘CCW’ (‘Concealed Carry Weapon’) as a shorthand notation for the lengthier phrase, “Permit to Carry Pistols and Revolvers,” which is the official, statutorily correct phrase.The acronym ‘CCW’ doesn’t appear in Connecticut State Statute and it isn’t an acronym that the Special Licensing and Firearms Unit of the Connecticut Division of State Police uses to describe handgun permits.The question is whether our use of the acronym ‘CCW’ is acceptable shorthand notation for the lengthier official phrase, “State Permit to Carry Pistols and Revolvers.” The specific phrase, ‘permit to carry pistol or revolver’ appears in Conn. Gen. Stat. § 29-28, titled, “Permit for sale at retail of pistol or revolver. Permit to carry pistol or revolver. Confidentiality of name and address of permit holder. Permits for out-of-state residents.”
WHY HAVE WE BROUGHT THIS MATTER UP?
Upon reading our latest article on Connecticut firearms’ laws and licensing procedures, an expert on Connecticut gun laws contacted the Arbalest Quarrel, yesterday, January 18, 2017, exclaiming that we should not have used the acronym, ‘CCW,’ in reference to Connecticut handgun permits because, as this party said, in part, “Connecticut does not have a 'ccw'. We have a Permit to Carry Pistols and Revolvers.”The Arbalest Quarrel is sensitive about the information it provides to its readers. Our goal is to provide the reader with comprehensive, detailed, and accurate information about State and federal firearms’ laws. We therefore undertook an investigation of the points made by this individual to ascertain whether the acronym, ‘CCW,’ as a shorthand descriptor of the lengthy statutory phrase, 'Permit to Carry Pistol or Revolver,’ is inappropriate because, 'CCW,' misconstrues the kind of handgun permit or license the Special Licensing and Firearms Unit of the Division of State Police issues to qualified applicants.To be sure, every State has its own nomenclature apropos of the handgun licenses and permits it issues to qualified applicants.The party who took exception with our use of the acronym, ‘CCW,’ also said, “There is no such thing as concealment in Connecticut as far as the law is concerned.” Now this assertion raises a bone of contention. The Arbalest Quarrel takes the position that the point is not precisely true because, while a holder of a valid Connecticut Permit to Carry Pistols and Revolvers may carry a handgun openly, the holder of a valid permit to carry may also carry a handgun concealed. How do we know this? We know this to be true because we had contacted the Division of State Police before posting our articles on Connecticut handgun licensing and we spoke directly with an Officer of the Special Licensing and Firearms Unit of the Division of State Police. The Officer of the Special Licensing and Firearms Unit told us matter-of- factly that the Connecticut handgun permit holder may carry his weapon either openly or concealed on his person as the permit holder wishes. Ostensibly, the expert on Connecticut gun laws who contacted us, knows this, but then his assertion that “There is no such thing as concealment in Connecticut as far as the law is concerned” is not consistent with the clear import of the statement he makes. It may be that this party meant nothing more than to point out to us that Connecticut law is silent about how the holder of a valid Connecticut handgun carry permit may carry a handgun. But, then, if there is no such thing as concealment in Connecticut as far as the law is concerned because Connecticut law is silent on the subject, then there is no such thing as open carry in Connecticut either, as far as the law is concerned, as Connecticut law, to the extent that our research has shown, appears to be silent on that as well. Conn. Gen. Stat. § 29-35b, says, simply, "The holder of a permit issued pursuant to section 29-28 shall carry such permit upon one's person while carrying such pistol or revolver." The Statute simply doesn't specify the manner in which the pistol or revolver is to be carried on one's person--whether, only openly, or only concealed, or either openly or concealed, as the permit holder wishes.Of course, assuming, as is the case, according to the licensing Officer with whom we spoke that the holder of a valid handgun permit may carry a handgun, in Connecticut, openly or concealed, as the permit holder wishes, why it is that anyone, who is not otherwise out hunting in the wild, would want to carry a handgun openly, strikes us as odd to say the least. But, the question here is whether the acronym, 'CCW,' is an appropriate and fair shorthand descriptor for handgun permits the Special Licensing and Firearms Unit of the Division of State Police issues to qualified applicants.Now, some jurisdictions that issue handgun weapons’ permits or licenses do not allow one to carry a handgun openly. In that case, use of the acronym, ‘CCW,’ is arguably an appropriate descriptor for handgun permits or licenses issued by the jurisdiction whether the jurisdiction uses the acronym, ‘CCW,’ or not; and we trust no one would take issue with us for using the acronym, ‘CCW,’ in that instance in respect to those jurisdictions that do not allow the carrying of a handgun openly--that is to say--do not allow a handgun license holder to carry a weapon on his or her person, in plain sight.But, if the expression, 'CCW,' connotes a permit or license to carry a handgun openly or concealed where the disjunctive, 'or,' is used in the inclusive, not exclusive sense—the question is whether we have been remiss in using the abbreviation, ‘CCW,’ to describe Connecticut’s Permit to Carry Pistols and Revolvers” since the holder of a valid Connecticut handgun permit can carry his handgun either concealed or openly.A more apt acronym here might be “RTC” (‘Right to Carry’) as that acronym does not specify that the holder of a gun permit or gun license must carry a gun in any particular way. That said, if the notation, ‘CCW,’ is used connotatively to suggest a person may but is not required to carry a handgun concealed--which is what we surmise most, if not all, individuals who hold a valid handgun permit or license to carry would wish to do if they were in fact carrying a handgun in public, so as not to alarm other members of the public and to preserve one's privacy and security--then the fact that one may carry a gun openly in public, in lieu of carrying a weapon concealed, is beside the point and essentially irrelevant.This is not just our thought about the matter. Through our research, we found a Connecticut Court that, when discussing Connecticut’s gun permits, made use of the phrase “concealed carry permit” expressly to refer, as a shorthand phrase, to Connecticut’s Permit to Carry Pistols and Revolvers. The acronym “CCW” is functionally equivalent to the phrase, “concealed carry permit.” So, from a legal standpoint, the Arbalest Quarrel has some legal support for using the acronym, 'CCW,' as a shorthand descriptor for the longer, statutorily precise expression, “State Permit to Carry Pistols and Revolvers.”See, Higbie vs. Higbie, 2016 Conn. Super. LEXIS 810*; 2016 WL 2602653 (Superior Court, Conn., Decided April 16, 2016). This is a recent dissolution of marriage case. One of the issues was, “whether there should be any restrictions on the plaintiff's right to possess firearms while in the presence of the parties' child.” The Court said, ‘The defendant/mother (age 31) is a hospital emergency room nurse who has experience with firearms as well. When the parties lived together in Virginia, during the early years of their marriage, she was trained in firearms and obtained a concealed carry permit. She testified that she never carried a firearm on her person but she did participate in the activity of shooting with her husband and others.” For our purposes, further discussion of and disposition of the case is unimportant. What is important here is that the Superior Court itself used the phrase, “concealed carry permit,” in lieu of the Statutory phrase, ‘State Permit to Carry Pistols and Revolvers’ in reference to the Defendant’s Connecticut handgun permit. The operative word in the Court’s opinion is ‘concealed carry.’Similarly, in the case, Carabetta Mgmt. Co. vs. Borsari, 2014 Conn. Super. LEXIS 1597*; 2014 WL 3893163 (Superior Court, Connecticut, decided July 3, 2014), the Superior Court said that the Defendant, “Borsari has been a gun and target shooting enthusiast since the age of sixteen. He has taken firearms safety training courses, most recently five years ago, and possesses a concealed carry permit. On the date of the incident subject of Carabetta's complaint, January 21, 2014, he legally owned three handguns, one shotgun and an air pistol, all of which he had in his possession in his apartment.” Given these Connecticut Court opinions, we feel that the party who told us, “There is no such thing as concealment in Connecticut as far as the law is concerned,” has made a statement that is on weak legal ground on any reasonable interpretation of his comment.If a Court in Connecticut uses the phrase, ‘concealed carry permit,’ we are not far afield in having used the acronym 'CCW.' For the acronym, ‘CCW,’ and the phrase, ‘concealed carry permit’ mean essentially the same thing. The operative word in both is ‘concealed.’ So, if our use of ‘CCW’ to refer to the handgun permits issued by the Special Licensing and Firearms Unit of the Division of State Police is not technically precise, it is not clearly and irreverently wrong either given use of the phrase, ‘concealed carry permit,’ by at least one Connecticut Court in its opinions. If it is wrong to use the one expression, then it is just as wrong to use the other.Since Connecticut does allow for both open and concealed carrying of handguns—assuming one has a valid Connecticut permit to do so—the question is what shorthand phrase can one use or should one use if a shorthand phrase can justifiably be used at all to describe the State's "Permit to Carry Pistols and Revolvers"? Since objection has been made to our use of the acronym, 'CCW,' in reference to Connecticut handgun permits, and, since that nomenclature is not precisely correct even if at least one Connecticut Court uses the expression, ‘concealed carry permit,’ we will henceforth refrain from further use of the expression, ‘CCW,’ when discussing the Connecticut handgun permit scheme and we will be circumspect hereafter when using that expression when discussing the licensing of handguns in other jurisdictions as well, unless the jurisdiction uses that acronym.We will use the expression “handgun carry permit” as a shortened phrase for the longer, statutorily correct phrase “State Permit to Carry Pistols and Revolvers.” Whatever fault exists in our use of the phrase ‘handgun carry permit,’ we trust we won’t, for the sake of expediency, offend those who seek absolute precision.Again, we wish to emphasize that the Arbalest Quarrel strives for accuracy as well as completeness in its discussion of State and Federal firearms’ laws and procedures, and we understand our readers have come to expect that of us and have the right to demand that of us.By using the phrase, ‘handgun carry permit,’ here we are leaving open the manner of carry—whether concealed or in plain sight—and that is in fact in keeping with the present status of Connecticut law on the subject.We take the comments of our readers seriously. So, we have taken time to respond carefully and fully to the concern raised as to our use of the notation, ‘CCW,’ in respect to Connecticut’s State Permit to Carry Pistols and Revolvers.If anyone has further comment to make in respect to this matter, please feel free to contact us._______________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
THE CONNECTICUT HANDGUN CARRY PERMIT: BASIC PROCEDURES
A ROAD TRIP WITH A HANDGUN: The Case For Universal State Concealed Handgun Carry Reciprocity
CONNECTICUT PISTOL PERMIT PROCEDURES FOR NON-RESIDENTS ARE DIFFERENT THAN FOR THOSE WHO RESIDE IN THE STATE: NON-RESIDENTS MUST SECURE A VALID CCW FROM ANOTHER JURISDICTION BEFORE AN APPLICATION FOR A CONNECTICUT PISTOL PERMIT WILL BE CONSIDERED
THE ADVENTURES OF ONE LAW-ABIDING AMERICAN CITIZEN AS HE TRAVERSES THE MINEFIELD OF FIREARMS’ LAWS, ATTEMPTING TO SECURE FOR HIMSELF MULTIPLE CONCEALED HANDGUN CARRY LICENSES FROM A MULTITUDE OF JURISDICTIONS THAT HE MAY EXERCISE HIS FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS UNDER THE SECOND AMENDMENT TO THE U.S. CONSTITUTION FOR THE PURPOSE OF SELF-DEFENSE
A COMPREHENSIVE ANALYSIS OF THE PROCEDURES FOR OBTAINING A CONCEALED HANDGUN CARRY LICENSE IN VARIOUS STATES, FOR THE LAYMAN
PART FOUR: THE CONNECTICUT FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE
THE CIRCUITOUS, TORTUOUS ROUTE TO OBTAINING MULTIPLE UNRESTRICTED CONCEALED HANDGUN CARRY LICENSES, AS EXPERIENCED BY OUR INTREPID CITIZEN, MR. WRIGHT.
SUBPART THREE
RECAP AND ASIDE
As we continue to work through a detailed examination of the licensing schemes of a few States, we do so following in the footsteps of Mr. Wright, an American citizen, a successful business owner, and fervent supporter of our “Bill of Rights”— all ten of them, including then, our sacred Second Amendment. Mr. Wright, travels regularly on business throughout the United States. The nature of Mr. Wright’s business requires him to carry valuables, consisting of products associated with his business and, as well, valuable negotiable instruments, and substantial amounts of cash. As he travels throughout the U.S. on business, Mr. Wright is an obvious target of assault. And, since Mr. Wright carries products and negotiable instruments of significant and substantial value, he is, as well, a tempting target.Mr. Wright had first sought to obtain an unrestricted concealed handgun carry license for Nassau County. The licensing of firearms is handled exclusively by the Nassau County Police Department. Mr. Wright is a resident of Nassau County, Long Island, New York. We discussed, in previous articles in the ROAD TRIP series, the onerous steps involved in attempting to secure handgun carry licenses in New York. In fact, various jurisdictions, County and City, within the State of New York, such as New York City, have instituted their own requirements for obtaining a concealed handgun carry license. That means, for example, the NYPD, that has exclusive authority for issuing all firearms’ licenses for the City, won’t recognize a handgun carry license validly issued from any New York jurisdiction other than its own. A New York resident who seeks, then, to exercise his or her fundamental right under the Second Amendment to carry a handgun concealed for self-defense anywhere in the State, but who doesn’t reside or work in any one of the five Boroughs of New York City, must obtain an additional CCW issued by the Licensing Division of the NYPD if he or she wishes to carry a concealed handgun, lawfully, in any one or more of those five Boroughs that comprise the City.Our intrepid citizen, Mr. Wright, holds valid handgun licenses issued by the appropriate licensing official of Maine, of Nassau County, Long Island, New York, of New York City, and licensing officials of other jurisdictions.State laws governing firearms ownership and possession are constantly changing. For the ROAD TRIP series, we will present you with the latest firearms’ licensing procedures as of the date of posting of the respective article.Each State, and the District of Columbia, has its own set of firearms’ laws including its own laws pertaining to the licensing of firearms to citizens. Those laws are often changing and they are often complicated, sometimes exceedingly so. That is the case, especially, in those jurisdictions that don’t desire American civilians to own and possess firearms—and there are more than a few of those.Since State firearms’ laws do change—sometimes quickly and often drastically, subject to the whims of Legislatures operating on the latest “gun news” story of the day—the Arbalest Quarrel will keep abreast of the changes of the law in the jurisdictions—local, State, and federal—that we discuss. As we go through the steps Mr. Wright went through to secure his handgun licenses, we will take some liberty. We will discuss the firearms’ laws and procedures as those procedures exist today, which may be different in small or large part from the time Mr. Wright applied for and received his handgun permits and licenses. We will also discuss, as they pertain to the often frustrating circumstances surrounding Mr. Wright’s experiences, what one might expect as he or she attempts to secure a concealed handgun carry license for one’s self. The actual tortuous hurdles are not exemplified in the droll and dry application papers themselves. Real world circumstances illustrate plainly and painfully, just what a person must go through simply to exercise his or her fundamental right to keep and bear arms for self-defense.As we have pointed out both here and in previous articles, Mr. Wright applied for and received his concealed handgun carry licenses many years ago, albeit he periodically must renew those licenses to keep them in force, and he does so. You might think that renewals of one’s licenses would be a relatively simple and straightforward process, compared to the lengthy process of securing a concealed handgun carry license for the first time. But, that is not always the case. Moreover, even where renewing a license is a relatively simple and painless process, it still involves the laying out of additional sums of money, and each jurisdiction has its own timetable for renewing a license. The timing of renewals is not consistent from one jurisdiction to the next and, if a handgun licensee should miss the renewal period, there is no grace period, and licensing officials do not excuse a mistake in missing a deadline. That means an individual must go through the entire process to secure a concealed handgun carry license again, as if for the first time. That means: do not miss a deadline for renewing your handgun license!We will provide you with accurate gun licensing information as of the date of the posting of the article as if Mr. Wright were applying for a concealed handgun carry license at this moment in time, noting differences in past and present laws to the extent we believe those differences critical in understanding the reason jurisdictions have made the changes in firearms’ laws that they do and to point to ambiguities and vagueness in gun laws as we see them.The steps involved in securing a concealed handgun carry license are time-consuming and expensive. Don’t think they aren’t. In some jurisdictions, the application procedure is extremely extensive and tedious, sometimes confoundingly complex or confusing, and any two processes are invariably duplicative. Jurisdictions will require the applicant to present fingerprint cards, signed and completed. Many questions as to one’s physical and mental health, and criminal record, if any, will be duplicative, if somewhat nuanced from one jurisdiction to the next. Photographs and proof of citizenship will likely be standard from one jurisdiction to the next.The ROAD TRIP series should demonstrate to you, if nothing else, the need for simple, straightforward, streamlining of the application process—keeping in mind that, after all, the law-abiding American citizen who seeks to obtain a handgun carry license for self-defense is undertaking a task that should not be inconsistent with the customs and values of our Nation. Yet, the procedures in place today, in many jurisdictions, are reminiscent of or suggestive of values and customs and traditions of other nations or groups of nations, such as those that comprise the EU. Understand: no other Country on Earth recognizes the singular right of the individual citizen to keep and bear arms as accruing in and existent in the individual. Yes, the cantons of Switzerland permit, perhaps—at one time—may even have required citizens to own firearms, including machine guns. That may no longer be the case as Switzerland, being pressured by the “elites” who had created the EU, have a strong distaste toward the average citizen owning firearms. Switzerland has acquiesced somewhat to the dictates of the EU even though it isn’t formally part of the EU.Israeli citizens, too, may apply for and readily obtain a permit to own and possess firearms, including machine guns. But the right of the Swiss citizen or the Israeli citizen to own and possess any firearm doesn’t accrue to the individual—that is to say, the right is not intrinsic to the individual, as a natural right, preeminent in and preexistent in the individual. It is a privilege bestowed on the citizen by the government—bestowed easily and routinely, but a privilege nonetheless.The United States is the only Nation on the face of the Earth that recognizes, in the Country’s Second Amendment, that the right of self-defense is basic, natural, primordial and that the right accrues to the individual. It is not something that is bestowed upon a person by government. That right is not to be denigrated or denied. No better means for defending one’s life and well-being against physical threat exists than that of a firearm in the hands of one properly trained in its use. Yet, why is it that the average law-abiding American citizen must jump through hoops simply to exercise that right?The right of self-defense is, after all, embedded in the Second Amendment. The federal Government does not bestow that right upon American citizens. It cannot bestow that right because the right preexists in each American citizen. Antigun groups either don’t realize this basic incontrovertible fact or otherwise choose to ignore it. They claim the right to keep and bear arms exists merely as a collective right in the context of militias, suggesting that the right has no meaning except in the context of the collective need of the State to protect itself against threats from outside the State—outside the Nation.We see this idea echoed constantly in innuendos, in suggestions, as exemplified in policies, that rights and liberties are tied not to Americans as individuals, but to American citizens as nameless components of society; to Americans as they exist as part of a huge collective; as part of a hive, as so many nameless cogs in a wheel. That, of course, is a false notion, one the founders had not and would not ever ascribe to. But, it is a myth presented to the public, as perpetrated by and engrained in the public through the mainstream media, at the behest of those ruthless forces that seek an end to the Republic and an end to this Country as an independent, sovereign Nation.
A WORD OF ADVICE FOR THOSE AMERICAN CITIZENS WHO WISH TO SECURE ONE OR MORE CONCEALED HANDGUN CARRY LICENSES
The first step an American citizen should take when seeking to acquire a concealed handgun carry license is to peruse the website of the gun licensing authority closely. Each of the jurisdictions we have examined, during our research, maintain a website through which one may find information pertaining to firearms’ laws applicable to the jurisdiction. The information provided is basic, but it is a good starting point. The websites we have looked at provide, as well, information pertaining to the licensing of firearms in the subject jurisdiction. The information we found to be presented in an honest and forthright manner in even if you must, in some instances, have to dig deep to uncover that information through several layers of menus and through more than a few web pages.The website will plainly lay out the governmental authority that has primary or exclusive authority for licensing of firearms in the jurisdiction. Often, but not invariably, this will be the duty of police authority in the jurisdiction. The applicant for a firearm’s license should familiarize himself or herself with the applicable licensing procedures. Sometimes, it will be relatively easy to do this as the menu items directed to firearms’ licensing are easy to locate and decipher. At other times that can be difficult. We find this to be true for those jurisdictions that have had a history of draconian gun laws and that are antithetical to the notion of an armed citizenry. Thus, you may need to drill down through several menu options to obtain the information you need.You should contact the issuing authority directly if you have any question or seek confirmation of how you are to proceed in acquiring a firearm’s license or permit. We have, in our work, found the licensing authorities to be helpful, knowledgeable, and attentive in responding to questions about firearm’s licensing, and have found these officials to be, as well, forthright about the prospects of obtaining a firearm’s license—especially about the prospect of securing a concealed handgun carry license in the particular jurisdiction for one’s self. Although Mr. Wright has applied for and obtained his concealed handgun carry licenses many years ago—subject, of course, to jurisdictional renewal requirements—keep in mind, once again, that we will provide you, the reader of this article, with current licensing standards and procedures for the jurisdiction we are covering.Bringing the procedures and standards up-to-date will serve two purposes. First, doing this will provide the reader with a useful vehicle for understanding the salient laws and procedures of the jurisdiction in question, as they exist presently. This will save the reader time and energy he or she would otherwise have to expend were that person to research the laws and procedures on their own.We have, in a previous article, when discussing changes in concealed handgun carry laws for the State of Maine, spent time looking at changes in Maine law. This, we felt, was necessary to explain apparent inconsistencies or ambiguities existent in the present law and to provide context for the changes. We will continue to do this in forthcoming “ROAD TRIP” articles where we feel explanatory information would be helpful to individuals who may wish to acquire a concealed handgun carry license in the jurisdiction we happen to be covering.Second, in our ROAD TRIP articles, we aptly demonstrate the difficulties attendant to acquiring a concealed handgun carry license in a State or City or County jurisdiction.What an individual must go through--indeed, suffer--merely to exercise his natural right of self-defense will not, then, and should not, be lost on anyone. It is ironical, even shameful, that citizens of a free Republic should have to expend substantial time and exorbitant sums of money simply to exercise the natural right guaranteed to them, codified in the Bill of Rights. But, that is the case and has been the case for some time. Effective, national concealed handgun carry reciprocity legislation would do much to end the need to acquire more than one valid concealed handgun carry license. Thus, an individual will be spared the needless, senseless, duplicative, wasteful expenditure of time and money presently required to obtain and renew multiple licenses issued by multiple jurisdictions.Note: if one has any doubt as to how to proceed to acquire a concealed handgun carry license, one should contact a licensed attorney and/or respected professional security consultant and expert in firearms’ laws and procedures. This can save one time and, more importantly, preclude the possibility the applicant for a concealed handgun carry license fails to fill out an application completely, or fills an application out improperly or includes the wrong information on the application form, or includes more information than the information that is required and thereupon jeopardizes one’s chances for securing a license.As to the last point, this is not to say or suggest an applicant should lie on an application or be less than forthright. One should never lie or ever be less than forthright, especially when completing an application for a firearm’s license or permit. You will never fool the licensing official and if you attempt to do so, you will fail. If one isn’t honest, that is the surest way to be denied issuance of a concealed handgun carry license.Moreover, attempting to obtain a firearm license if you are not permitted to own and possess a firearm—for example, if you have been convicted of a felony or if you were in the military and you received a dishonorable discharge, or if you have renounced your citizenship, or if you have a history of serious mental disorder, psychosis, or if you have been convicted of domestic violence, to name a few bases for disqualification— you may open yourself up to civil or even criminal liability by applying for a handgun license and failing to include these matters if an application asks for information pertaining to these matters—and, make no mistake, an application for a concealed handgun permit or, for that matter, an application for issuance of any firearm will require to respond honestly to any of these. That said, one doesn’t have to include in his or her application and ought not voluntarily include anything more or other than the information the application specifically asks for. If, after completing and submitting the application for processing, the licensing officer contacts the applicant to request additional information, the applicant must comply. If again, the applicant has any question as to what information is sought or has concern about the information sought, the applicant should contact a licensed attorney in the jurisdiction in which he or she seeks the license or should contact a security consultant whose expertise rests in or includes application for possession of firearms.Let’s now begin on the matter of obtaining a concealed handgun carry license. Below, we discuss the procedures that Mr. Wright had to follow to obtain a license permitting him to lawfully carry a handgun concealed in the State of Connecticut.
PROCEDURES FOR OBTAINING A CONCEALED HANDGUN CARRY LICENSE IN CONNECTICUT
The basic Connecticut firearms’ licensing procedures are available for perusal on the State's website.We note that, in Connecticut, the Department responsible for licensing of firearms is the Department of Emergency Services and Public Protection (DESPP) of the State Police.There are several menu options. The one we want and the one Mr. Wright wants is this one:Special Licensing and Firearms.There are distinct procedures depending on whether one is a resident of Connecticut or not. Mr. Wright does not reside in Connecticut. You cannot obtain an application on-line. Mr. Wright isn’t a resident of Connecticut. He is a resident of New York. A non-resident must obtain an application by contacting the State Police directly. However, important information exists on the website and a non-resident should peruse that information before contacting the Connecticut State Police for an application packet.On the website, Mr. Wright drills down to the application process for preliminary information for both residents and non-residents. He comes to this:FIREARMS AND PISTOL PERMITSHow do I get a permit to carry a gun in the State of Connecticut?Out of state residents may apply for a non-resident Connecticut State Pistol Permit. Non- residents apply directly to the Connecticut State Police. Call 860-685-8494 to have an application mailed out.”For Residents of Connecticut, the preliminary procedure is different. Residents of Connecticut must first apply for a Temporary State Permit.The Procedure is as follows:“How do I apply for a Temporary State Permit?You must go to your local Police Department or First Selectman’s office to obtain an application. The application has all the instructions necessary to obtain the permit. The cost of the permit is $70.00, and it generally takes eight weeks to obtain.”After the Connecticut Resident obtains a Temporary State Permit, he or she can then apply for a permanent, “Connecticut State Permit.The information on the website sets forth: Once I have received a Temporary State Permit, how do I apply for a Connecticut State Permit?You can apply at the following locations to fill out the state application and have your photo taken. You must bring a copy of your Temporary State Permit, a check, money order for $70.00, made payable to Treasurer State of Ct. or cash, proof you are legally and lawfully in the United States (i.e., Birth Certificate, U.S. Passport, Naturalization Certificate or Alien Registration Card issued by I.C.E.) and a current photo I.D., such as a driver’s license. Applications are available at:
- Troop G in Bridgeport - Tuesday through Saturday
- Troop E in Montville - Tuesday through Saturday
- Department of Emergency Services and Public Protection in Middletown
Office Hours and Locations:How do I change my address on my State Pistol Permit?You can either call (860) 685-8290, or mail a letter to the Emergency Services and Public Protection, Division of State Police, Special Licensing and Firearms Unit, 1111 Country Club Road, Middletown, CT, 06457. Change of address is required within 48 hours, and the letter should include pistol permit number, name, and date of birth, old address, and new address.”Further information given is applicable to residents and non-resident holders of Connecticut State Pistol Permits alike:“May I keep my State Pistol Permit if I move out of state?Yes, providing you notify the Special Licensing and Firearms Unit of the change of address, and continue to renew your permit.How long is a State Permit to Carry Pistols and Revolvers good for? The permit is valid for 5 years from date of issue unless revoked or suspended. Who may purchase a handgun? Only those people who are Permit holders, Eligibility Certificate holders, or sworn Police Officers may purchase a handgun.Mr. Wright knows he regularly visits Connecticut on business and wonders if he could just stop into a local police department when he is in the State. He phones his attorney. His attorney takes a look at the website and phones the DESSP. Mr. Wright’s attorney determines that Mr. Wright must obtain an application through the mail. There is no way around this, and he requests an application for Mr. Wright. The DESSP official says he will send an application out forthwith to Mr. Wright’s attorney on behalf of Mr. Wright.Upon receipt of the application papers, Mr. Wright and his attorney look through the documents. In the first few sentences of the first page of a green sheet, titled, “Connecticut State Pistol Permits,” and subtitled, “Out of State Residents,” one thing becomes immediately apparent. A non-resident cannot apply for a Connecticut State Pistol Permit prior to securing a valid concealed handgun carry license from another jurisdiction.The non-resident must already have a valid CCW license issued from another jurisdiction before he can apply for a Connecticut State Pistol Permit. Thus, having a CCW in hand from another State is a condition precedent to obtaining a Connecticut Pistol Permit. Mr. Wright’s attorney learns that Connecticut does not require that the non-resident secure a CCW license from a particular jurisdiction or jurisdictions. The non-resident must simply have in his or her possession a valid CCW license, issued from any State. Mr. Wright has a valid unrestricted CCW issued to him by the NYPD, and a second valid CCW issued to him by the State of Maine. Either one of those two valid CCW licenses satisfies the condition precedent for further processing of Mr. Wright’s application.
CONNECTICUT CONCEALED HANDGUN LICENSING PROCEDURES
Mr. Wright’s attorney took a look at the applicable Connecticut pistol licensing Statute. Below is the Statute stated in full:Sec. 29-28. Permit for sale at retail of pistol or revolver. Permit to carry pistol or revolver. Confidentiality of name and address of permit holder. Permits for out-of-state residents. (b) Upon the application of any person having a bona fide permanent residence within the jurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such permit. No state or temporary state permit to carry a pistol or revolver shall be issued under this subsection if the applicant (1) has failed to successfully complete a course approved by the Commissioner of Emergency Services and Public Protection in the safety and use of pistols and revolvers including, but not limited to, a safety or training course in the use of pistols and revolvers available to the public offered by a law enforcement agency, a private or public educational institution or a firearms training school, utilizing instructors certified by the National Rifle Association or the Department of Energy and Environmental Protection and a safety or training course in the use of pistols or revolvers conducted by an instructor certified by the state or the National Rifle Association, (2) has been convicted of (A) a felony, or (B) on or after October 1, 1994, a violation of subsection (c) of section 21a-279 or section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d, (3) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b-120, (4) has been discharged from custody within the preceding twenty years after having been found not guilty of a crime by reason of mental disease or defect pursuant to section 53a-13, (5) (A) has been confined in a hospital for persons with psychiatric disabilities, as defined in section 17a-495, within the preceding sixty months by order of a probate court, or (B) has been voluntarily admitted on or after October 1, 2013, to a hospital for persons with psychiatric disabilities, as defined in section 17a-495, within the preceding six months for care and treatment of a psychiatric disability and not solely for being an alcohol-dependent person or a drug-dependent person as those terms are defined in section 17a-680, (6) is subject to a restraining or protective order issued by a court in a case involving the use, attempted use or threatened use of physical force against another person, (7) is subject to a firearms seizure order issued pursuant to subsection (d) of section 29-38c after notice and hearing, (8) is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 USC 922(g)(4), (9) is an alien illegally or unlawfully in the United States, or (10) is less than twenty-one years of age. Nothing in this section shall require any person who holds a valid permit to carry a pistol or revolver on October 1, 1994, to participate in any additional training in the safety and use of pistols and revolvers. No person may apply for a temporary state permit to carry a pistol or revolver more than once within any twelve-month period, and no temporary state permit to carry a pistol or revolver shall be issued to any person who has applied for such permit more than once within the preceding twelve months. Any person who applies for a temporary state permit to carry a pistol or revolver shall indicate in writing on the application, under penalty of false statement in such manner as the issuing authority prescribes, that such person has not applied for a temporary state permit to carry a pistol or revolver within the past twelve months. Upon issuance of a temporary state permit to carry a pistol or revolver to the applicant, the local authority shall forward the original application to the commissioner. Not later than sixty days after receiving a temporary state permit, an applicant shall appear at a location designated by the commissioner to receive the state permit. The commissioner may then issue, to any holder of any temporary state permit, a state permit to carry a pistol or revolver within the state. Upon issuance of the state permit, the commissioner shall make available to the permit holder a copy of the law regarding the permit holder’s responsibility to report the loss or theft of a firearm and the penalties associated with the failure to comply with such law. Upon issuance of the state permit, the commissioner shall forward a record of such permit to the local authority issuing the temporary state permit. The commissioner shall retain records of all applications, whether approved or denied. The copy of the state permit delivered to the permittee shall be laminated and shall contain a full-face photograph of such permittee. A person holding a state permit issued pursuant to this subsection shall notify the issuing authority within two business days of any change of such person’s address. The notification shall include the old address and the new address of such person.”There are several important items for consideration in the above Connecticut Statute. The Statute sets forth, one, the requirement that a person “successfully complete a course approved by the Commissioner of Emergency Services and Public Protection in the safety and use of pistols and revolvers including, but not limited to, a safety or training course in the use of pistols and revolvers available to the public offered by a law enforcement agency, a private or public educational institution or a firearms training school, utilizing instructors certified by the National Rifle Association or the Department of Energy and Environmental Protection and a safety or training course in the use of pistols or revolvers conducted by an instructor certified by the state or the National Rifle Association”; and, two, the applicant must not fall within one or more of the categories that constitute automatic disqualification. You will waste your own time and money and that of the licensing official if you have either failed a firearm’s safety training course or if you fall into one or more categories of individuals who are prohibited from owning a gun.If, however, you have passed and have documentation to prove that you have successfully passed an appropriate firearm’s safety training course and you do not fall within one or more of the categories that disqualify one automatically from possessing any firearm, then you may proceed to the next step of the application process.In the next segment of this article, we will go into further detail of the application process as Mr. Wright seeks to secure a valid DESSP issued Pistol Permit that will enable him to carry a handgun, lawfully, in Connecticut.Before concluding this segment of the article on Connecticut CCW licensing, we address a few matters that individuals who are contemplating obtaining a Connecticut Permit to Carry Pistols and Revolvers might have in connection with the foregoing discussion:
FINAL NOTE PERTAINING TO CONNECTICUT PISTOL LICENSING STATUTE: TWO POINTS IMPORTANT TO NON-RESIDENTS THAT MAY BE RESPONSIVE TO QUESTIONS THE READER MIGHT HAVE, AS THEY ARE QUESTIONS THAT THE ARBALEST QUARREL HAD, AS WELL; AND ONE GENERAL POINT APPLICABLE TO RESIDENTS OF CONNECTICUT AND NON-RESIDENTS ALIKE.
Connecticut law, as we said, requires non-residents to have in hand a valid concealed handgun carry license as a condition precedent to obtaining a Connecticut CCW permit. Some readers of this article may wonder whether a Connecticut CCW is necessary at all to carry a handgun concealed in Connecticut if they hold a valid CCW from another jurisdiction. As of this writing, the answer is an unequivocal, “no.” Connecticut does not maintain reciprocity with any other jurisdiction. A CCW issued by another jurisdiction is required, as we have said, as a condition precedent, for obtaining a Connecticut CCW if and only if the person seeking a Connecticut CCW is a resident of another State. This means that a non-resident must invariably hold at least two CCW licenses in order to be able, lawfully, to carry a handgun concealed in Connecticut: a valid CCW issued by another State, as a condition precedent to obtaining a CCW issued by the appropriate firearms’ licensing authority in the State of Connecticut, the DESSP. Obviously, this condition does not apply to residents of Connecticut.Second, for both residents of Connecticut and non-residents alike, those who seek a valid Connecticut CCW permit, must successfully complete a course approved by the Commissioner of Emergency Services and Public Protection in the safety and use of pistols and revolvers. Now, some jurisdictions outside of Connecticut do issue CCW licenses without the requirement that a holder of a valid CCW license or permit first successfully complete. New York City, curiously enough, is one of these. It is exceedingly difficult for the average law-abiding person to obtain an unrestricted, “full carry,” concealed handgun license. But, the City doesn’t require and the NYPD itself does not provide a safety training course for holders of concealed handgun carry licenses. One may speculate as to the reason for this. One possible and plausible explanation for this is that the City officials do not wish for any civilian to possess firearms. It isn’t a secret that the previous Mayor or New York City, Michael Bloomberg, benefactor and sponsor of the antigun group, Everytown for Gun Safety, is virulently opposed to the average law-abiding citizen from owning and possessing firearms. The present Mayor of New York City, Bill de Blasio, is no less a zealous advocate for disarming Americans. The website, OntheIssues says this concerning de Blasio’s position of firearms’ possession and ownership. “Bill de Blasio has pushed for strong gun safety laws at the state level and for the promotion of industry-wide standards in gun safety, including micro-stamping. De Blasio also led the effort to divest public pension fund holdings in companies that manufacture the most dangerous weapons and launched the 'Wall Street for Change' campaign to support gun divestment of prominent hedge funds and money managers nationwide.” New York City officials apparently feel that by requiring holders of restricted and unrestricted concealed handgun licenses to successfully complete a firearms’ safety training course, whether provided by the NYPD or another organization, this would suggest that the City encourages the average citizen to own and possess firearms. This is convoluted thinking but it pervades the thinking of those New York City officials who are behind the draconian New York Safe Act. It is as if City officials are saying, “we don’t believe any American citizen should own and possess firearms. Those New York residents who seek to own and possess firearms must receive the appropriate licenses and permits to do so; and we will not make it either easy or cheap for those that wish to do so. Moreover, we will not provide access to firearms’ training courses or provide any information as to where a firearm’s licensee or permit holder may obtain that training, for to do so would mean that we believe in the right of the American people to keep and bear arms; and we do not wish to give anyone that impression; for we don’t.”Now the Arbalest Quarrel is not taking the position that a government body should require a person to take a firearms’ safety training course because we do not believe that the government should be in the business of bestowing on law-abiding American citizens what is their natural right anyway: the right to keep and bear arms. However, the Arbalest Quarrel does feel that, if a person does own and possess firearms, he ought to have the good sense of obtaining training in their proper use and function. A sane, rational person should have proper training in the use of any implement that, if used or handled improperly, can cause serious injury or death. But one’s responsibility for the handling of any instrument devolves on the individual. It should not be a mandate of the State. If a jurisdiction does require the law-abiding citizen to first obtain a handgun license before that person is lawfully permitted to carry a handgun concealed on his or her person within the jurisdiction, that governmental body should make available to the person the means whereby a person can obtain proper training or provide a person with a list of recommended organizations such as the NRA that have well over a century of experience on the proper handling of firearms. New York City doesn’t have anything to say about this. It is as if the City Government through the NYPD Licensing Division--the City Government's authorized body for issuing firearms' licenses and permits to individuals--simply wishes to wash its hands of the matter. That is bizarre to say the least.The City has draconian, arbitrary standards in place for issuing firearms' licenses and permits and puts the New York resident through an ordeal to obtain a firearm's license or permit, but then expresses a complete disinterest in providing firearms' training for the license or permit holder, or even suggesting venues through which the licensee or permit holder may obtain training once the license or permit is issued to him. Can you imagine the NYPD giving its officers a badge and a gun and leaving it up to the officer to find some means or other on their own to obtain training in the proper use of the firearm--caring not one whit whether the officer obtains proper training in the handling of the firearm or not, and offering no suggestion as to where an officer might obtain training? Yet, that is precisely the situation in which the City and the NYPD leave the civilian upon whom they deign, grudgingly, to issue a firearm's license or permit. It is almost as if the City is inviting a mishap with a gun; indeed almost as if it is expecting a mishap with a gun; perhaps even wanting one; and thereupon being in a position to say, "there, we told you so; you should never have had a gun in the first place. But you wanted a gun; and we gave you a license so you could buy one. And, now that you have 'messed up,' as we fully expected you would do, we are taking away your gun, we are taking away your gun license, and we charging you with a misdemeanor for misusing your gun. We hope you learned your lesson. We are never again going to issue you a firearm's license. So, don't bother applying for one. Guns belong in the hands of responsible individuals only, such as the police, and politicians, and judges, and movie stars, and other VIP; in other words, 'connected' individuals. The average, ordinary, law-abiding person such as yourself has no business with a gun. Guns are for 'elites,' in society--for important people, intelligent people; people with money; guns are not for the hoi polloi, such as you! If you need protection, you have your cell phone; call 911; or get yourself a whistle, and wait for help. It's on the way!"
CONSIDER THE ABOVE "CHASTISEMENT" BY THE NYPD FIREARMS' LICENSING OFFICER APROPROS OF THE FOLLOWING:
An old story goes that a semi-blind businessman, an industrious hard working man, who spent many years working to create a small but successful cash business but a man who has had no formal or informal training in the handling of firearms goes to the Licensing Division of the NYPD, applying for a CCW license. The NYPD Licensing Officer asks the businessman why he thinks he needs a handgun for self-defense. The businessman explains that his business is a cash business and that he handles substantial sums of cash as he conducts his business and he has been mugged on more than a few occasions and his money stolen on numerous occasions. The businessman explains, further, that he is tired of being mugged and threatened and losing money that he has worked hard earning and he needs a gun for self-defense when he walks several blocks to the bank, or takes the subway, or a bus, or a cab to deposit the cash at his bank. He is surrounded by many people—some of whom would love to get their hands on the substantial sums of money he has on his person and several thugs have done so in the past.Now, the NYPD has set an arbitrary standard for proof of the necessity for issuing a CCW license to a person. The NYPD Licensing Officer determines whether a person, in the normal conduct of his business, happens to transport substantial sums of cash to or from a bank. The NYPD considers, without explicitly saying, whether a business operates, in part at least, like a mini Brinks security service. If an applicant for a CCW license can make a good case for issuance of a CCW to the satisfaction of the NYPD Licensing Officer, this amounts to an applicant arguing that his business duties involve in part, at least, working like a Brinks security guard, transporting canvas bags full of money. Of course, what constitutes the carrying of substantial cash is determined by the NYPD and on a case-by-case basis. In this story, the NYPD determines the semi-blind businessman does carry substantial cash to or from a bank a few times a week. That the man has been mugged on numerous occasions, and seriously hurt, in part, at least, because the man's business happens to be located in a particularly dangerous part of the City, is not reason enough to issue the man a CCW license, according to the NYPD License Division standards. Indeed, that sad circumstance is beside the point. After all, a lot of law-abiding New York residents are mugged on a daily basis and these individuals do not have firearms to protect themselves. So being mugged is not a sufficient basis upon which the businessman may effectively distinguish himself from countless others who live in the City. But, the fact that the businessman has been mugged carrying sufficient amounts of cash on his person to and from a bank a few times a week--and what constitutes a sufficient amount of cash is up to the NYPD Licensing Officer to decide--is deemed by the Officer to be an important factor, a critical, even decisive, factor for determining whether to issue the man a CCW license that he seeks.The NYPD Licensing Officer then asks the businessman whether the man has any disability that might hinder his ability to use a handgun. The man, semi-blind, though he is, says, he has some vision problems but that he is able to see well enough to transact his business, handle large sums of cash, and to handle a handgun. The NYPD licensing official thereupon agrees to issue the businessman his CCW license.Now, whether the businessman has had any training in the use of a handgun and, if not, whether the businessman intends to get that training so that he would be able to use a handgun effectively if the need should arise, that is another question entirely, and it is not one that is a requirement for being issued a handgun license and securing a handgun. Curiously, this latter point is true. The ability to handle a firearm is not a factor in and is altogether irrelevant to the issuance of concealed handgun carry licenses by the Licensing Division of the NYPD. But, we are not yet done with this story.Another man, a New York resident, hale and hearty, has just moved to New York City, having served his Country as a U.S. Navy SEAL. Our U.S. Navy SEAL, recognizes how dangerous it is to live in the City and, like our semi-blind businessman, he also applies for a CCW license. The NYPD Licensing Officer asks the man why the man thinks he needs to carry a handgun. The U.S. Navy SEAL, now retired from the Navy and living in New York City, says he wishes to have a handgun for self-defense. The Licensing Officer asks the man whether he has a business and, if so, if the man transports substantial sums of cash to or from a bank, one or more times during the week. Our U.S. Navy SEAL says that he doesn’t have a business and does not transport substantial sums of cash to a bank. The Licensing Officer then asks the applicant, our U.S. Navy SEAL, retired from active duty, whether the applicant is presently the target of specific threats to the Navy SEAL’s life. The applicant, our retired U.S. Navy SEAL, replies, “none that he can think of.” The NYPD Licensing Officer then tells the applicant that he must deny the applicant a CCW because the applicant hasn’t demonstrated need, sufficient, to the satisfaction of the NYPD Licensing Officer, under the standards established by the NYPD, for issuance of a CCW to the applicant.The retired U.S. Navy SEAL doesn’t understand this. He points out that he knows full well how to use firearms—virtually any firearm and that he is an expert marksman, and that he operates coolly under threat to life, as his combat experience and training demanded. “Sorry,” replies the NYPD Licensing Officer. “You have failed to demonstrate to my satisfaction that you face, on a daily basis, more danger to your life and well-being than does any other average New York resident face, in the City. The fact that you know how to use a firearm effectively and would certainly be able to do so in a life threatening situation--and I have no reason to doubt that--is irrelevant. New York City doesn't recognize self-defense, in the absence of more to be sufficient reason to issue a restricted or unrestricted concealed handgun carry license. Again, I am sorry. But, City Government officials believe that too many guns in the hands of too many people--even the law-abiding--is considered dangerous to the well-being of the community even if law-abiding individuals are placed at risk for being denied access to a firearm when they truly need one and know how to use it."There is no moral to the story. But one may take note how logic may be turned on its head so that irrationality is perceived as presumptively rational. And, although, it appears to be far-fetched, the story, sadly, really isn’t. Of course, an NYPD Licensing Officer is hardly likely to issue a concealed handgun carry license—or any other kind of firearm’s license or permit—to an applicant who appears to have a difficulty seeing, but one’s ability to use a gun in a life-threatening situation is not a factor for consideration in the issuance of any firearm’s license or permit. Concerning issuance of CCW licenses, New York City, and any other City or County in the State, in accordance with State law, is a “may issue” State, like several other jurisdictions around the Country. A “may issue” State means a person requesting a CCW license, must convince to the appropriate licensing authority in the jurisdiction that he “needs” a gun and that “need” generally translates to meeting an arbitrary standard for the issuance of a CCW license to the person. If a person cannot meet the arbitrary standard the “may issue” jurisdiction has established, then the applicant is denied the CCW, unless the person is a VIP, such as a politician or a judge, or someone famous—a movie star for example. That means the life of one person is worth more than the life of another. If you are a VIP, you obtain what you want. If you are one of the hoi polloi who cannot otherwise satisfy the arbitrary standard, well, then, good luck.Whether a person is capable of using a firearm for self-defense is often, as we see in some jurisdictions, like New York, all but irrelevant. The need of a firearm for self-defense becomes nuanced, subject to the whim of the licensing official. This means that the right to keep and bear arms for self-defense is reduced inevitably to a privilege, a grant of Government and the import and imperative of the Second Amendment is simply ignored.Getting back to the requirements for obtaining a CCW license in Connecticut, that State, unlike New York, does require of its own residents and of non-residents, that they show proof of successfully completing a firearm’s training and safety course prior to issuance of a gun permit. So, if a holder, say, of a New York City concealed handgun license, wishes to secure, as well a Connecticut CCW, in order to carry a handgun lawfully in Connecticut, that person must show proof of having successfully completed a gun safety and training course. This means the holder of a New York City CCW license and those who hold a CCW from any other jurisdiction that does not require proof of completion of a firearms’ safety training course in the handling of firearms as a condition precedent to obtaining a CCW license, must obtain the necessary training. Having, then, successfully completed the firearms’ safety training course and receiving a certificate to that effect, the applicant, whether a resident of the State of Connecticut or not, who seeks a Connecticut CCW license, has, then, the necessary documentation to present to the DESSP Officer. Further processing of the application for the Connecticut CCW permit can then continue.Lastly, we have learned that a holder of a CCW from another jurisdiction who seeks to obtain a Connecticut CCW does not have to obtain a CCW in the jurisdiction he or she resides in.A resident of Hawaii, for example, who wishes to obtain a Connecticut CCW permit—a State permit to carry handguns or revolvers—need not demonstrate he or she has a CCW license from Hawaii. That’s a good thing. For although it is theoretically possible for the average law-abiding American citizen, who is a resident of Hawaii, to obtain a CCW license, for all practical purposes, that is impossible. Take a look at the Hawaii Police Department’s website.The website sets forth: “In exceptional cases when an adult applicant shows reason to fear injury or is engaged in the protection of life and property, the Hawaiʻi County police chief may grant a license to carry. For detailed information on who may be granted a license, see Section 134-9 of the Hawaiʻi Revised Statutes.” Living in Hawaii may be paradise. But, in that paradise, “here there be tygers.” One must forsake one’s self of any pretense of access to firearms for self-defense. The Second Amendment to the U.S. Constitution, and Article 1, Section 17 of Hawaii’s State Constitution, which mirrors the language of the Second Amendment of the U.S. Constitution word for word, contain empty verbiage, devoid of effect.Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
Obtaining A CCW From Multiple Jurisdictions Is Time-Consuming, Expensive, and Slow
A ROAD TRIP WITH A HANDGUN: The Case For Universal State Concealed Handgun Carry Reciprocity
PART FOUR: THE CONNECTICUT FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE
THE CIRCUITOUS, TORTUOUS ROUTE TO OBTAINING MULTIPLE UNRESTRICTED CONCEALED HANDGUN LICENSES AS EXPERIENCED BY OUR INTREPID CITIZEN, MR. WRIGHT.
SUBPART TWO
OVERVIEW OF NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY IN THE CONTEXT OF COUNFOUNDINGLY DIFFICULT AND WASTEFUL TIME AND MONEY ONE MUST SPEND ACQUIRING MULTIPLE CONCEALED CARRY HANDGUN LICENSES FROM MULTIPLE STATE AND LOCAL JURISDICTIONS AS ONE SEEKS NOTHING MORE THAN TO EXERCISE ONE'S NATURAL AND GUARANTEED RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE, AS THE FOUNDERS OF OUR REPUBLIC INTENDED BOTH FOR THEM AND FOR US.
INTRODUCTION
In this section of our “ROAD TRIP” series of articles we lay out the necessity of National concealed handgun carry reciprocity legislation. National concealed handgun carry reciprocity legislation would dramatically reduce the time, energy, and cost factors involved in obtaining handgun licenses from multiple jurisdictions. We follow the experience of one American citizen as he deals with the complexity of applying for and acquiring multiple handgun licenses.For over two decades Mr. Wright has spent substantial time and exorbitant suns of money securing concealed handgun carry licenses from multiple jurisdictions. Most of the requirements are duplicative. He continues to spend time and money, renewing those licenses as required in each jurisdiction. The Arbalest Quarrel has laid out in detail the intricacies and difficulties in obtaining CCW handgun licenses. We have discussed Mr. Wright’s acquisition of handgun licenses in New York and in Maine.
LICENSING OF FIREARMS AND STATE PREEMPTION
Unlike many, if not most States, the New York State Legislature hasn’t preempted the field of firearms laws. That means cities and counties within New York may enact their own firearms’ codes and ordinances, consistent with State Statute—so long as the city and county codes and ordinances are not less stringent than State law. They aren’t. New York City’s codes, regulating the ownership, possession, and licensing of firearms, including handguns, shotguns, rifles and even black powder muskets and non-functioning replicas, are numerous, complex, and onerous.Mr. Wright is a resident of Nassau County, Long Island, New York. We wrote about Mr. Wright’s acquisition of a Nassau County handgun license. That license isn’t valid in New York City. Mr. Wright’s main business offices are in New York City. Under the firearms’ codes of New York City, Mr. Wright had to acquire a separate New York City handgun license to carry a handgun concealed, lawfully, in any of the Boroughs within the City because, unlike most jurisdictions, the New York State Legislature has not preempted the field of firearms’ licensing. This means that lower level government jurisdictions, Counties and Cities, within the State of New York, can institute their own codes and regulations, so long as those codes and regulations are no less stringent than and are consistent with State Statute. That results in codes and regulations much more complex and clearly more stringent than anything coming out of Albany.In a previous article we discussed the procedure for obtaining an unrestricted, “full carry” concealed handgun license in New York City. The procedure is costly, in both time and money. Mr. Wright had no alternative but to obtain an unrestricted New York City handgun license if he were to protect his life and safety conducting business in the City. He could not rely on the Nassau County gun permit. New York City does not have firearms' "reciprocity" with other Cities and Counties in the same State--a strange situation, but not unique. Other States, such as Hawaii, operate similarly. The result is a hodgepodge of firearms' codes and regulations across the State of New York.Mr. Wright also conducts business in Maine, and we discussed the procedure for obtaining a concealed handgun carry license, that would allow Mr. Wright, a law-abiding American citizen and inordinately busy entrepreneur, to carry, concealed, on his person, a handgun, in the State of Maine.
THE IMPACT OF THE HELLER CASE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS
For over two decades Mr. Wright has spent substantial time and money securing handgun licenses. He should not have had to do so. The natural right of self-defense follows logically from the natural right of the people to keep and bear arms as codified in the Second Amendment to the United States Constitution. This isn’t supposition. It is fact. If there remain any doubt, about that, the U.S. Supreme Court, in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), laid such doubt to rest. Indeed, self-defense was a salient issue of Heller. The overview of the case sums up the holdings as follows: “The Court held that the District’s ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment. The Court held that the Second Amendment protected an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court determined that the Second Amendment’s prefatory clause announced a purpose but did not limit or expand the scope of the operative clause. The operative clause’s text and history demonstrated that it connoted an individual right to keep and bear arms, and the Court's reading of the operative clause was consistent with the announced purpose of the prefatory clause. None of the Court's precedents foreclosed its conclusions.”The majority in Heller stopped short of extending its holding to the carrying of a handgun for self-defense outside the home. But, the high Court generally tailors its decisions narrowly to the specific legal issues of the case. The central issue in Heller was whether the District of Columbia can lawfully ban outright a person’s use of a handgun for self-defense within one’s home. The District of Columbia attempted to do so, thereby reducing the effectiveness of a handgun for self-defense to that of a heavy paperweight, or hammer.The high Court made clear that the District of Columbia’s constraint on one’s ability to use a handgun for self-defense within one’s home is unconstitutional as it conflicts with the import of the Second Amendment. Since Heller, every State, including the District of Columbia must acknowledge, at least tacitly, and often enough, grudgingly, the right of a person to rely on a handgun for self-defense in one’s home. That right flows, logically, from the high Court’s determination in Heller, as the Court made clear and unequivocal, that the right of the people to keep and bear arms is an individual right, unconnected to an individual’s membership, if any, in a State militia.The laws of each State and the District of Columbia ostensibly make provision for the carrying of a handgun concealed for self-defense. Yet, in practice several States, including the District of Columbia, issue such licenses, rarely, if at all, and, if they do so, such licenses are issued only to a privileged, well-connected, few which raises, then, Fourteenth Amendment due process and equal protection concerns as America is a class-less society. No American citizen’s rights are function of one’s personal wealth, or power, or connection to those who have extraordinary wealth or who wield extraordinary power. One’s rights and liberties as an American citizen are not expanded or reduced predicated on his net worth, or market value, or position, or status. At least that is not supposed to be the case, but that happens to be true where a law-abiding citizen seeks to exercise one particular natural and fundamental right: namely the right to keep and bear arms.Moreover, not all jurisdictions that do issue concealed handgun carry licenses maintain a reciprocal relationship with another State. Reciprocity agreements among States is often muddled and fluid—subject to change, often without adequate notice.
WOULD NATIONAL CONCEALED HANDGUN CARRY LEGISLATION ENACTED BY CONGRESS REALLY BE EFFECTIVE IN ENABLING LAW-ABIDING AMERICAN CITZENS TO CARRY A HANDGUN CONCEALED ON THEIR PERSON, FOR SELF-DEFENSE?
To be sure, Congressional enactment of well-crafted national concealed handgun reciprocity legislation would do much to obviate confusion in the lawful carrying of concealed handguns in the several States as each State that provides for concealed handgun carry licensing would be required to recognize the validity of a concealed handgun carry license issued by another State. But that means States—those referred to as “may issue”—that, at present, turn a guaranteed right into a jurisdictional grant or privilege, issuing concealed handgun carry licenses rarely if at all—may not be required to recognize the validity of licenses issued by States that routinely issue such licenses to average, law-abiding citizens—those referred to as the “shall issue” States.There are several permutations of possible national concealed handgun carry reciprocity legislation formulae that Congress can consider when drafting national concealed carry bills. The Arbalest Quarrel will provide a detailed analysis of the pending bills in a forthcoming article. But, we will say this now: the most effective national concealed handgun carry reciprocity legislation would require all States, including the District of Columbia and all U.S. territories, to recognize and accept, within their respective jurisdictions, and recognize and accept, unconditionally, the validity of every valid State issued concealed carry license whether one is a resident of the State that issued the license or not. That means that no American citizen , carrying a handgun concealed on his person, while also holding a valid concealed handgun carry license, validly issued by the appropriate licensing authority, shall not be subject to arrest.Suppose, then, a resident of Hawaii—where issuance of concealed handgun carry licenses is extremely rare and virtually impossible to secure unless one is well-connected—obtains a concealed handgun carry license from, say, Texas. Can the resident of Hawaii, then, rely on the validity of the Texas CCW license to lawfully carry a handgun concealed in Hawaii? Well, that depends on how the Congressional national concealed carry legislation is worded. If the legislation sets forth that every State must recognize and honor a valid State issued CCW license in every other State, regardless of a given State’s own firearms’ licensing laws, then the Hawaii resident, holding a valid CCW license issued, say, from Texas, is in safe waters and may utilize the Texas CCW license to carry a handgun concealed in every State, including, then, his home State of Hawaii. The Hawaii resident would be able, then, effectively, to override his home State’s draconian gun laws. But that would make, nugatory, Hawaii’s highly restrictive, draconian gun laws. What would Hawaii do? Hawaii wouldn’t sit idle seeing its “may issue” gun laws neutralized as its own residents, as well as non-residents, can then carry a handgun concealed on their person throughout the islands of Hawaii and the Hawaiian Government could not do a thing about it.Hawaii would undoubtedly file lawsuits, objecting to the constitutionality of such Congressional legislation. Antigun organizations and the Attorneys General of States such as New York, New Jersey, and Illinois would probably file their own amicus briefs in support of Hawaii’s lawsuits. Hawaii would argue, inter alia, that such Congressional legislation is a bald attempt to override Hawaii’s right under the Tenth Amendment to enact its own firearms’ laws, and that such national concealed handgun carry legislation enacted by Congress operates as an unconstitutional, impermissible infringement on Hawaii’s State as Congressional legislation enjoins States from exercising their own police powers. The Tenth Amendment to the U.S. Constitution says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Hawaii would also likely argue that such national concealed handgun carry legislation operates as an unconstitutional, unconscionable encroachment on State sovereignty as Congress preempts a traditional power of the States—regulation of firearms within a State’s own borders. So-called “may issue” States would argue that such impermissible encroachment means that, as residents of “shall issue” States enter their States carrying valid CCW licenses, with handguns in tow, Hawaii’s police could not arrest them. They would be immune from arrest and from prosecution. Residents of “may issue” States, on their part, who seek to carry a handgun concealed would be unhappy as well if Hawaii’s draconian gun laws prevent them from exercising the very right that non-residents may exercise in their own State—especially if residents of Hawaii would not recognize their own resident’s obtaining valid handgun licenses from another State. This would present a conundrum for Congress and for the Courts.Antigun proponent residents of those States that do not wish to see—what they perceive, albeit wrongly, to be—an extension of the Second Amendment right of the people to keep and bear arms would raise a hailstorm of objections to guns coming into their State from other States, while those residents who seek to secure CCW licenses for themselves would argue that it makes no sense to deny to them the right to keep and bear arms that is extended to non-residents simply by virtue of less restrictive gun laws existent in non-resident States, especially if any handgun license they obtain from another State is considered invalid in Hawaii if one happens to be a resident of Hawaii.While antigun groups file lawsuits to curtail the effectiveness of Congressional national concealed handgun carry legislation, there would be, on the other side, plans afoot by residents of “may-issue” States to compel State Legislatures to repeal draconian firearms’ laws and to enact new less restrictive laws that cohere with the firearms’ laws of “shall issue” States and with the Congressional legislation.Anticipating problems, Republicans in Congress may seek to enact a weaker yet still improbable version of national concealed handgun carry reciprocity legislation. A weaker version of the national concealed handgun carry reciprocity legislation would require every State, including the District of Columbia, and the U.S. territories, to recognize the validity of and therefore honor a validly issued CCW license of the issuing jurisdiction from a citizen’s own State of residence if and only if one’s resident State issues CCW licenses to its residents. But, for “may issue” States, the fact that they issue CCW licenses, theoretically, at least, means that they may be required to recognize and honor the CCW license of any non-resident who comes into their State, “packing” a gun anyway. In that event, we would undoubtedly see present “may issue” States modifying their gun laws, yet further, making their gun laws even more stringent—altogether proscribing the issuance of CCW licenses in their States. Those “may-issue” concealed handgun carry States, such as Hawaii and New York, and Illinois, would not, then, be required to recognize and honor a CCW license issued by another State since they do not, any longer issue CCW licenses. Thus, anyone entering the State with a firearm and a valid CCW license issued by another State would not be in safe harbor. That person would be subject to immediate arrest and prosecution for carrying a gun into the State at all. So, a weakened national concealed handgun carry reciprocity law would really not be a national concealed handgun carry reciprocity law at all, but merely a qualified national concealed handgun carry reciprocity law.Nonetheless, even weakened versions of Congressional national concealed handgun carry legislation would likely see major battles in Congress. Those battles would then pour over into the Courts.Looking forward—let’s say the next ten years—assuming national concealed handgun carry reciprocity legislation of some sort or another is passed in the next few months, we would see—indeed would probably have to see—the Heller holding extended to the public domain—namely the domain outside one’s home. That may be the only way to finally snuff out the antigun movement’s efforts to curtail firearm’s ownership and possession once and for all.
HOW MIGHT PROPONENTS OF THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS COMBAT THE EFFORTS OF ANTIGUN GROUPS AND “MAY ISSUE” STATES THAT SEEK TO CURTAIL EXPANSION OF THE HELLER DECISION?
One tenable response to Hawaii’s objection is that the Second Amendment right of the people to keep and bear arms, made applicable to the States under the due process clause of the Fourteenth Amendment to the U.S. Constitution, overrides a possible Tenth Amendment or police powers objection a State, might make, if, as a proponent of national concealed handgun carry reciprocity legislation, argues, as well, that the right of self-defense, a hallmark of the individual right to keep and bear arms, cannot be legitimately circumscribed by States. A framing of constitutional issues may look in part like this:The natural right of self-defense falls, one, within the right guaranteed under the Second Amendment to the U.S. Constitution; and that right, is protected, two, under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution; and the right of self-defense is protected, three, under the full faith and credit clause of Article IV, Section 1 of the U.S. Constitution; and perhaps a novel argument may set forth that the right of self-defense, embodied in and entailed by the Second Amendment to the U.S. Constitution is complemented, four, in the Ninth Amendment of the U.S. Constitution as one of the unenumerated rights and liberties underlying the Ninth Amendment. An argument of a Ninth Amendment right of self-defense would likely butt up against the argument that such right is inconsistent with the sovereignty of States under the Tenth Amendment and under the police powers of States to regulate firearms’ laws within their own borders, assuming one can draft a tenable Ninth Amendment argument of self-defense at all—apart from the application of the Second Amendment right to the matter of self-defense as now recognized as a result of the Heller decision, made applicable to the States through the Fourteenth Amendment as set forth in the U.S. Supreme Court's McDonald decision, that came on the heels of Heller. See, McDonald vs. City of Chicago, 557 U.S. 965, 130 S. Ct. 48 (2009). The Ninth Amendment to the U.S. Constitution says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Had Hillary Clinton succeeded to the U.S. Presidency, any thought of national concealed handgun carry reciprocity legislation would be no more than a pipedream. With the Trump Administration, soon to be ensconced in the White House, passage of national concealed handgun carry reciprocity legislation, in some form, will pass, notwithstanding efforts of virulent Antigun Legislators, like Senator Charles Schumer, who made very clear that he would oppose it. But, Americans will see enactment of such legislation even if it takes several months to do so, followed by years of Court battles.Thus, for now, those States that do not at the moment have concealed handgun carry reciprocity agreements with other jurisdictions, and that have no desire to enter into such concealed handgun carry reciprocity agreements with other States, place out-of-State residents in a bind. One must either forego the carrying of a handgun concealed in those jurisdictions that do not have a concealed handgun carry reciprocity agreement with another jurisdiction or one must—like Mr. Wright, who seeks to carry a weapon for self-defense in multiple jurisdictions that he travels to and through for business related purposes—apply for and obtain separate concealed handgun carry licenses, issued by multiple issuing authorities. That at present is the nature of the Country we live in. That is the case for Mr. Wright whose trials and tribulations we follow as he works his way through the obstacles of obtaining a concealed handgun carry license in various New England and mid-Atlantic States where he conducts business.Thus, the problems Mr. Wright faces simply to exercise his right of self-defense is hampered and constrained—making, for him, and for those of us who seek merely to exercise the natural right guaranteed to us, as codified in the Second Amendment—an elusive goal. Thus the antigun groups and antigun Congress and antigun State Legislatures and mainstream media, and the secretive, wealthy, powerful, ruthless, individuals and groups behind them all continue to make a mockery of the American citizen and continue to make a mockery of the American citizen’s Bill of Rights.Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
WHY MUST AMERICANS HAVE TO JUSTIFY THEIR RIGHT TO OWN AND POSSESS FIREARMS?
A ROAD TRIP WITH A HANDGUN: THE CASE FOR UNIVERSAL STATE CONCEALED HANDGUN CARRY RECIPROCITY
PART FOUR: THE CONNECTICUT FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE
THE CIRCUITOUS, TORTUOUS ROUTE TO OBTAINING MULTIPLE UNRESTRICTED CONCEALED HANDGUN LICENSES AS EXPERIENCED BY OUR INTREPID CITIZEN, MR. WRIGHT.
SUBPART ONE: RECAP
One year ago, the Arbalest Quarrel commenced a detailed examination of the perils, snares and frustrations the law-abiding American citizen encounters and faces for seeking no more than to exercise his or her natural right of self-defense. We followed an individual as he undertakes the time intensive, expensive, and exasperating task of acquiring concealed carry handgun licenses from multiple jurisdictions.The individual whom we followed in the exercise isn’t fictional. He is an actual person. We use a pseudonym for this person to protect his identity. We refer to this individual as Mr. Wright. Mr. Wright is an American citizen and successful businessman. He currently holds several handgun licenses. All but one are concealed handgun carry (CONCEALED CARRY WEAPON) (“CCW”) licenses.Mr. Wright conducts business in several States. The nature of Mr. Wright’s business involves the transporting of assets of considerable monetary value. Doing so, makes him a tempting target for armed robbers, jeopardizing his personal safety and well-being. A handgun provides Mr. Wright with the most effective means available for personal protection.
MANY JURISDICTIONS REQUIRE THE LAW-ABIDING AMERICAN CITIZEN TO JUSTIFY HIS NEED FOR A CCW.
Why should the law-abiding citizen have to justify the need for a CCW. After all, is not the right of self-defense basic, immutable, indisputable, and intrinsic? Did not the founders of the Republic recognize the primacy of the right of self-defense and, so, codify that quintessential right in the Bill of Rights of the United States Constitution? If so, why must the law-abiding American citizen have to justify the carrying of handgun for self-defense? Yet, a few jurisdictions, notably New York City—the City where Mr. Wright has his main business offices—require the prospective holder of an unrestricted concealed handgun carry license to do just that. An individual must convince, to the satisfaction of the NYPD licensing officer, why he or she feels the need to carry a handgun for personal protection.Establishing a rationale upon which to test the suitability for issuance of a concealed handgun license may, to some, may seem perfectly reasonable. It isn’t. The standards established may seem pragmatic and coherent. They aren’t. On close inspection, they are completely arbitrary and superficial. In existence in New York and in several other jurisdictions around the Country for many years—even decades in some instances—we may think the laws practical, necessary, “common-sense” application of the police powers of the State? But, are they? To grow accustomed to this or that law and practice and belief does not make such law reasonable, rational, or—if that law conflicts with our jurisprudence and with our Constitution —lawful. Thus we have "unlawful laws." That isn’t an oxymoron. An abundance of unlawful laws exists—and many of them are directed to firearms’ regulation, unlawfully restricting one's right to own, possess, and use firearms.
WHY MUST A LAW-ABIDING AMERICAN CITIZEN HAVE TO CONVINCE A GOVERNMENT LICENSING OFFICIAL THAT HE OR SHE REQUIRES A FIREARM FOR SELF-DEFENSE? WHY MUST A LAW-ABIDING AMERICAN CITIZEN HAVE TO JUSTIFY HIS OR HER RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE IF SELF-DEFENSE IS A QUINTESSENTIAL, NATURAL, PRIMARY AND PRIMORDIAL RIGHT AND IF A HANDGUN IN THE HANDS OF THE LAW-ABIDING AMERICAN CITIZEN, TRAINED IN THE USE OF THAT HANDGUN, HAS, THROUGH THE POSSESSION OF THAT HANDGUN, THE BEST MEANS AVAILABLE TO SECURE HIS OR HER LIFE AND WELL-BEING AGAINST THOSE WHO WOULD THREATEN THAT LIFE AND WELL-BEING?
A business person who does most of his business in cash and who carries thousands of dollars on his person on his way to a bank, a few times a week, is a tempting target indeed to a robber looking to make a killing through little effort. But a drug addled lunatic may be perfectly willing to kill another person for a few bucks and think nothing of it. If, then, a rational law-abiding person must justify to the satisfaction of a licensing official why issuance of a concealed handgun carry license is warranted for him but not for myriad others—which a prospective holder of a CCW must do in New York City if he is to have any real chance of securing a license to lawfully carry a handgun concealed on his person on the streets of New York City—the ludicrousness of the exercise becomes, on even a cursory inspection, painfully apparent.It really comes down to the fact that one person asks, begs really, for the privilege of defending his or her life and makes the case, why he or she faces more danger to life than someone else and therefore ought to be allowed to carry a handgun for self-defense? What must a person do to prove he or she needs a firearm for self-defense in the City of New York, but that others do not? How might one prove that certain factors in his or her life satisfactorily distinguish his or her life from that of others, justifying the issuance of a CCW? In so doing, the right of self-defense—quintessential and primary, and primordial—reduces to mere privilege, an exercise one must excel in to justify one's right to exist. The right to be free from threats to life becomes a luxury, bestowed on a few through Government largess. The Government becomes a gatekeeper, deciding the value of human life--by extending to one individual the coveted unrestricted, concealed carry license, and withholding it from others.Of course, some might disagree with this assessment, arguing, on behalf of the antigun crowd, that the right of self-defense is not at issue. They would argue either that a handgun does not make a person safer or that, if it does, the danger to society outweighs the value a gun provides to individuals within society. Let’s parse that.Certainly, a person trained in the proper operation of a handgun has the most effective means currently available to protect his or her life and well-being against imminent threats to that life. We need not debate that. The statement is self-evident, axiomatic, true. But, do guns in society make for an unsafe society? The antigun crowd answers that question with an unequivocal, "yes." Yet, the antigun crowd begins with their conclusion, "guns in society make a society less safe," and then attempt to gather statistics to support the conclusion they assume to be true before the fact. Their conclusion is really not a conclusion derived from true premises, then, but an assumption. They take that assumption, and attempt to find data to support it, excluding data that refutes it. By emphasizing the gun, as an implement of harm, they minimize the import of the agent, the causal factor, truly responsible for harm. They also ignore that the agent may use other objects to harm innocent life: knives, axes, bombs and, as we have seen of late, both in Europe and in this Country, trucks. So, the availability or unavailability of guns is beside the point.The problem of violence in society is a function of the agent of violence in society, not the implement. Implements are not agents. Implements are not sentient beings. But antigun proponents place little, if any, emphasis on the agent. The value of life to the antigun proponent is a function of utility. Antigun proponents consider life and well-being from the standpoint of maximizing utility. For them, the truth of that statement is a given. They reason that getting guns out of the hands of more people—namely law-abiding citizens—will, ipso facto, reduce the number of deaths in society. That assertion is conjecture, not fact and it is false.Antigun proponents know criminals and lunatics and terrorists will harm individuals with guns, knives—and, as we have seen played out recently—trucks—truly anything at hand; and they will use whatever it is that is available to maximum effect, devising ever more devious ways to maximize the harm they are capable of doing to innocent life. So, as antigun proponents attempt to maximize utility for society by zeroing in on guns, alone, the violent among us are devising ways to maximize harm to individuals within society--through anything that is available. Ultimately, it is individuals within society that are harmed. They are harmed by two agents: the violent among us--predominately, criminals, and lunatics, and Islamic terrorists--and by antigun groups that would deny to law-abiding individuals the best means available to the law-abiding citizen in which to protect innocent human life, the firearm.Ultimately, antigun proponents do not really care if an innocent life is lost so long as society in general—the collective, the hive—is secure. That idea is blunt, but true, for it follows logically from and is implicit in the philosophy of antigun proponents even if they expressly deny it. That idea plays out in myriad restrictive, ludicrous gun laws existent in federal and State Statutes and existent in County and City ordinances and codes and regulations. But, that idea of antigun proponents--that ethical position, utilitarianism, specifically, consequentialism--a moral theory that looks to the consequences of an agent's actions and not on the intentions of the agent, a theory that seeks to maximize utility for society as a whole, placing greater value on the well-being of society, the collective, the hive, than on the well-being of the individual in society--is inconsistent with the ethical position of the founders of our Republic who saw the sanctity of the individual as preeminent.The founders remarked in their writings, and, as we see, they embodied in the Bill of Rights and in the Articles of our Constitution the idea of the transcendent supremacy of each American, as an individual.The founders realized that Government must have limited powers and that, ultimately, it is for the individual to take responsibility for his or her own life, and responsibility for his or her own well-being, and responsibility for his or her own happiness.Restricting the individual's access to firearms--thereby prohibiting the individual from possessing the best means available to reducing threat to life and well-being--operates no less than a refutation of the sanctity of the individual. The founders of the Republic would not be pleased.In our next article, we take a close look at the procedures for obtaining a CCW in Connecticut. We follow Mr. Wright as he familiarizes himself with the procedures for obtaining a Connecticut CCW and completes his application for a Connecticut concealed handgun carry license.Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
MAINSTREAM MEDIA’S “FAKE NEWS” DECEPTION
BAKERY FAKERY IN HALF-BAKED “FAKE NEWS”
PART ONE
"When any government, or any church for that matter, undertakes to say to its subjects, 'This you may not read, this you must not see, this you are forbidden to know,' the end result is tyranny and oppression, no matter how holy the motives. Mighty little force is needed to control a man whose mind has been hoodwinked; contrariwise, no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything—you can't conquer a free man; the most you can do is kill him." ~Robert A. Heinlein, If This Goes On, 1940
WHY THE SUDDEN APPEARANCE OF THE WORDS, ‘FAKE NEWS,’ AS BROADCAST BY MAINSTREAM MEDIA? WHAT BROUGHT THIS ON AND WHY IS ‘FAKE NEWS’ SUCH A HOT TOPIC TODAY?
In recent weeks, following the welcomed demise of Hillary Rodham’s Clinton’s bid for the White House, the American public encountered an expression that has become widespread in the mainstream media: ‘fake news.’The expression’s sudden appearance in the mainstream media and the public’s constant exposure to it is unsurprising. One might have expected this. Why? The owners of mass media pushed for Hillary Clinton for President. They were blindsided by alternative media sources that supported Donald Trump. The Arbalest Quarrel weblog was an early and fervent supporter of Donald Trump and an open skeptic of Hillary Clinton. Weblogs like the Arbalest Quarrel openly challenged the rationale and logic behind mainstream media’s news accounts, commentary and analysis of the campaigns and of the candidates.Mainstream media no longer has a monopoly on news coverage, news analysis, and commentary. The owners of mainstream media and the editors, writers, and pundits who work for them, don’t like this. They coined the phrase, ‘fake news.’ They did this to disparage anyone who offered a meaningful alternative to the contrived and scripted news, commentary, and analysis its organizations fed and continue to the public.The expression, ‘fake news,’ has become essentially synonymous with the phrase, ‘conspiracy theory,’ an earlier phrase mainstream media coined to discredit and disparage news coverage, commentary, and analysis provided by alternative news sources. Mainstream media uses both phrases to dismiss outright the notion that news coverage, commentary on the news, or news analysis presented by alternative media is worthy of public consumption.By dismissing, discrediting and discounting the legitimacy of alternative media outright, the owners of mainstream media hoped—indeed expected—the American public would, during this recent U.S. Presidential election cycle, look only to mainstream media for its news, for news commentary, and for news analysis as the public had done so in past election cycles. Mainstream media would remain preeminent. It would continue to dominate the central themes presented to the public and would continue to dominate the way those themes are presented to the public. Thus, mainstream media would continue to control and manipulate public opinion.The owners of mainstream media surmised, once again wrongly, that most Americans derive their news, today, primarily through major networks like MSNBC, CNBC, CBS, ABC, CNN, and FOX, and through major newspapers like the New York Times, the Los Angeles Times, Financial Times, the Wall Street Journal and the Chicago Tribune. The owners of these and other major news vehicles, organizations, and outlets figured they had a lock on information about the world and the Nation—a lock on the news meted out to the public. That may once have been the case, but is so no longer. The election results proved them wrong.The owners of mainstream media did not figure on the power of alternative news media—independent weblogs and podcasts that obtained more traffic through the years, siphoning off audience that had relied heavily on the major television networks and the major newspapers for information—the core of the mainstream media.When Hillary Clinton lost the U.S. Presidential election, the owners of the major news networks and newspapers looked for a scapegoat. They did not blame themselves. But, they needed an explanation for the failure of mainstream media to woo the populace to accept Hillary Clinton as the preferred candidate for U.S. President. They contrived a scapegoat. They found it in two sources: alternative media, and in construction of a bogeyman: the Russians.
THE MAINSTREAM MEDIA CONCOCTS A FANTASY
In their broadcasts and in their newspapers, the owners of major news organizations express their anger and scorn for alternative media. They lament how the weblogs had duped the public by giving the public analyses of candidates and of campaign events that amount to “fake news.” Mainstream media’s use of the phrase, ‘fake news,’ extends beyond the mere casting about for an errant news story appearing in one or the other alternative media source. It goes to the central theme of news reporting and news analysis and news commentary.But did alternative media dupe the public, really? Was not the public simply waking up to the reality behind the orchestrated campaign of misdirection projected on it through the mainstream media? Didn’t mainstream media seek to maintain the deception it had perennially achieved through its monopoly of news coverage, commentary, and analysis? And, isn’t this meticulous and insidious campaign of deception by the mainstream media—having failed to produce an electoral win for either one of the favored packaged candidates, Hillary Clinton for the Democrats or Jeb Bush for Republicans—ongoing? Isn’t the mainstream media attempting even now—well past the Eleventh Hour as Trump very soon takes the oath of Office—to discredit, and delegitimize him by casting blame for the election’s outcome on a couple of bogeymen: Vladimir Putin of Russia and, to a lesser extent, although quietly, curiously enough, no longer--James Comey, Director of the F.B.I.? Is not the mainstream media guilty of thrusting ‘fake news’ upon the public—the same thing it accuses alternative media of doing and, now, Russia.Let’s assume for purpose of argument that Russia did have a hand in giving a boost to Trump, as the CIA claims. For all the hoopla and clamoring of the mainstream media in its pious denunciation of Russia for having, as is claimed by the CIA, in a substantially redacted report, the audacity of attacking our democratic process, one should note that none of Trump’s detractors has claimed or so much as hinted that all or any part of the information the public obtained through the apparent hacking of DNC computers and through the hacking of the computers of John Podesta and Hillary Clinton, was false. None of it was.If, then, the information presented through the hacking of computers were true, why then should not the public be privy to that truth? Why didn’t the mainstream media provide the American public with the very information it claimed Russia handed to the public? Should not the public take umbrage with and express its moral outrage not at the Russians, nor with the Russian President, Vladimir Putin, but at the DNC, and at Hillary Clinton, and at the Democratic Party, and at the mainstream media that, together, have made a mockery of our own Democratic processes? Who, truly, is the greater threat to our Nation, to Americans' sacred rights and liberties, to our Nation's institutions, to our Democratic processes? Is it Putin and the Russians, really, and others from outside our Nation, or is it those terrible individuals within our Nation that trounce on the very ideals of our Republic they sanctimoniously claim to adore and uphold?Consider, too, is our Nation so weak as to be unable to withstand the release of information Americans should have received anyway, through the mainstream media, had the mainstream media done its job to inform the public? Would the American public not then be able to make an informed choice as to whom it truly sought to be the next President of the United States? But, does the mainstream media ever truly seek to inform the public with the news, neutrally presented—all the news that's fit to print that the NY Times sanctifies as its motto and then patently ignores—so that the public can critically appraise the events of the day and the operations of our Government in dealing with serious dangers to our Nation? Wasn’t the information obtained through the hacking of DNC computers and through the hacking of computers of Democratic Party officials merely a comprehensive reflection of the depths of corruption existent in the DNC and in the Party and in its candidate of choice, Hillary Rodham Clinton? If the Russians, upon orders of Putin, did hack unceremoniously—and apparently effortlessly into the computers of the DNC, and into those of officials and functionaries or the Party, as those computers were never properly secured anyway and therefore invited hacking--did the information obtained for public consumption act no more nor less than a mirror held up to the face of the American public? Did not that mirror say to Americans: “take a good look at the DNC and at the Democratic Party and, especially, at this person, Hillary Rodham Clinton, a criminal, who seeks the Office of President of the United States--take a good look at the extent of corruption in the DNC, in the Democratic Party, and in that Party's leaders?”But, the puppet masters that control the mainstream media didn’t wish to project the truth. The puppet masters did not wish the public to perceive the actual duplicity present in this Country. They did not wish to do so, for, after all, aren’t they the cause of that duplicity? They didn’t wish for the American public to know the truth about Hillary Clinton, to know the truth about the DNC, to know the truth about the Democratic Party apparatus. They still don’t. So, leaving nothing to conjecture, they proclaim Donald Trump, to be an illegitimate, usurper of the Office of U.S. President. The alternative? They would rather sit a criminal, Hillary Clinton, in the seat of highest power.The mainstream media works in lockstep with the DNC and the Democratic Party to deceive the public. They are all very good at this; and they are relentless. Still, they failed to convince the public to accept their candidate of choice. They are puzzled and distraught and enraged that the public refused to be duped this election cycle. They haven’t given up, though.The Democratic Party and much of the present machinery of Government, infected with the disease of statism, will likely attack Donald Trump throughout his Presidency. The corrupting influences and forces at work for decades that seek continued concentration of power in Government at the expense of the rights and liberties of the American People, as the founders of our Republic understood those natural rights and liberties, do not wish for Trump’s success. The mainstream media is the vehicle through which the forces that had fought Trump throughout the election cycle will continue to attack him, will continue to frustrate his attempts to strengthen the Nation’s independence and sovereignty. These insidious, secretive, powerful forces will frustrate his attempts to serve the American people. These dark forces will frustrate his attempts to extricate this Nation and its people from foreign entanglements. These corrupting forces will attempt, worst of all, to alienate and isolate Trump, to fracture the public's trust in Trump, and to harm the public's relationship with Trump and with the Trump Administration--to make it difficult for Trump to do his work as U.S. President on behalf of this Nation, and on behalf of the Nation's people, and on behalf of the Nation's Constitution.These evil forces will attempt to place the Trump Administration in a container, a deep freeze, cut-off from the public. These evil, corrupting forces will do this to prevent Trump from creating and implementing policy designed to set this Nation on the right path—a path consistent with the intentions of the founders of our Republic, a path that invokes what the Nation meant to the founders of it.The public must remain vigilant—hyper vigilant—to the mainstream media’s onslaught on President-elect, Donald Trump. The public is getting a taste of the new avenue of attack—an attack on the very legitimacy of Trump’s Presidency.
WHAT IS ‘FAKE NEWS,’ REALLY, AND WHY DO WE SEE THIS MEME—THIS MENTAL VIRUS—IMPRINTED IN THE PSYCHE OF AMERICANS BY THE MAINSTREAM MEDIA?
Let’s parse the phrase, ‘fake news.’ Look up the word, ‘fake,’ in a dictionary. The word, ‘fake,’ means ‘not genuine,’ ‘not authentic,’ ‘sham,’ or ‘false.’ Although not explicit, the word is a pejorative. It connotes, fabrication, fraud, pretense, artifice. The word suggests, then, something more, much more, than the innocent presentation of falsehood in reporting. It suggests deliberate intention or desire to deceive the target audience.Now check out the word, ‘news.’ The word, ‘news,’ means, ‘information about recent or current events.’ This word, too, has a subjective meaning. The word, ‘news,’ connotes the media tools through which news events are conveyed to the public. How is news conveyed? News is conveyed to the public through many vehicles. It is conveyed through newspapers, magazines, fliers, journals, trade publications, radio, television, and, commonly today, through weblogs and websites—those of major television, radio, and newspapers and through the independents—for profit and non-profit organizations, not affiliated with the major newspapers, television and radio networks, that provide an alternative news, news analysis, and news commentary source for the public.Today, the public has a plethora of tools from which to gather news. The owners of the mainstream media don’t like this because of what this means to them. It means the public doesn’t rely on or need to rely on the mainstream media alone for its news and for its news analysis and for its news commentary. The mainstream media doesn’t like this because it seeks to control the news the public receives. That means control over dissemination of and analysis of news. That means, too, control over the stories that are told and the manner of the telling. That means controlling the thought processes of the public. That means insidiously projecting onto the public consciousness and conscience, and into the public’s thought processes those ideas the mainstream media seeks the public to accept, in line with prevailing Governmental objectives.The mainstream media once did this easily, for the mainstream media once maintained exclusive control over the delivery vehicles for the news. That was once the case, but no longer.Realizing it had lost exclusive control over news coverage, and news analysis and news commentary, the owners of mainstream media established their own websites and weblogs. But, would the public be drawn to the mainstream media’s weblogs and websites? Some members of the public would do so, yes, but not all, perhaps not even most. And, those that do could still contrast the news received through the mainstream media with the news delivered through the owners of independent websites, weblogs, and podcasts. Mainstream media has lost ground, but more, it has lost face as the public becomes aware of the deception—a monstrous deception played upon it. For mainstream media seeks less to inform the public and more to control it, to sway public opinion in one direction, to create an image of the world and of the Nation the owners of mainstream media wish for the public to see—a false image, to be sure, and one that promotes goals and policy objectives antithetical to the interests of the Nation, and of the Constitution, and of the Nation’s citizenry.Clearly, there’s more to fakery in the news, then, than meets the eye. It is fakery that goes beyond any snippet of news. It goes to a massive, orchestrated scheme of deception of which mainstream media plays a critical part. If there exists “fake news,” then it is fake news on an immense scale—the false projection of a world view that does not benefit this Nation, this Nation’s Constitution or this Nation’s citizenry.More about the expression, ‘fake news,’ in upcoming articles.Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
ARGUMENT IN SUPPORT OF NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY
NATIONAL CONCEALED HANDGUN CARRY—LIKE SELF-DEFENSE—IT’S A RIGHT, NOT A PRIVILEGE.
PART FIVE
The rationale for national concealed handgun carry reciprocity is, from a logical viewpoint, a conclusion we derive from a set of postulates—predicate propositions—the truth of which, as we argue, support national concealed handgun carry reciprocity in our Country and in our Country’s territories.What we provide for you below is the Arbalest Quarrel’s formal argument in support of national concealed handgun carry reciprocity set forth in linear, syllogistic fashion. We invite reader comment.A FORMAL ARGUMENT IN SUPPORT OF NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY BETWEEN AND AMONG THE SEVERAL STATES AND U.S. TERRITORIES.
- The predicate instinct for survival, self-defense, is natural, primordial, and fundamental to any living creature or being, however lowly or lofty that creature or being is on the taxonomic scale of life. {Postulate}
- As the instinct for survival is natural, primordial, and fundamental to all living creatures and beings, the moral imperative to defend one’s life and well-being stems from and is a corollary of the instinct for survival. {Corollary, derived from (1)}
- A person has the moral right to defend his or her life against a threat to that life. {Inference, derived from (1) and (2)}
- The right of self-defense is a preeminent right, pre-existent in and intrinsic to the sanctity and inviolability of a person as an autonomous individual. {Postulate}
- Since the right of self-defense is intrinsic to one’s self, the right is not man-made or institutionally or governmentally derived. {Postulate}
- A right inherent in the individual is not and cannot be rationally construed as a privilege granted by or ceded to or licensed by a governmental authority to a person. {Inference, derived from (5)}
- Since the right of self-defense is an attribute of and inherent in individuals, no government can rightfully deny a person his or her natural, primordial, fundamental right to defend his or her life against those who would take that life without, just cause. {Inference, derived from Premises (4) through (6)}
- Because the right of self-defense exists within the individual and does not emanate from a governmental body, no government can justifiably take that right from the individual. {Corollary of (5) and (6)}
- If one is denied the natural right of self-defense—the right to preserve integrity of mind and body—the import of any other right becomes meaningless. {Postulate}
- The right to protect oneself against serious bodily injury, harm, disability and/or death, which includes the right to preserve integrity of mind as well as body, is the quintessential preeminent right. {Postulate}
- The right of self-defense precedes all other rights, pre-existent in a person. {Inference, derived from (10)}
- From the right to safeguard one’s personal physical and psychological integrity flows the duty to do so—the duty to safeguard autonomy of self against any threat against that personal autonomy. {Corollary of Premises (20) and (11)}
- The Second Amendment to the United States Constitution codifies the inherent right of self-defense pre-existent in and preeminent in the individual. {Postulate}
- Given the truth of premises (9) through (13), the Second Amendment is a codification of the fundamental and preeminent right of self-defense preexistent in the American citizen. {Inference, derived from Premises (7) through (13)}
- The preservation of all other rights is dependent, first and foremost, on the preservation of the Second Amendment to the Bill of Rights of the U.S. Constitution {Corollary of Premise (14)}
- The Second Amendment to the United States Constitution preserves the integrity of the Nation as a free Republic through recognition of the sanctity and inviolability of each American citizen. {Inference, derived from Premises (10) through (15)}
- One’s personal physical and psychological integrity would be compromised and therefore diminished or lost were our democratic Republic to devolve into an autocracy regardless of the form of autocracy: monarchy, plutocracy, oligarchy, technocracy, or theocracy—all of which proceed from the concept of an elite aristocratic ruling class that, alone, holds ultimate authority for determining what rights a person may enjoy and the nature of that person’s position and very existence in the body politic. {Postulate}
- The drafters of the Nation’s Second Amendment to the U.S. Constitution knew that nothing secures individual integrity and autonomy more ably and nobly and nothing preserves a free Republic more assuredly and resolutely as a guard against autocracy than personal ownership of and possession of a firearm in the hands of the American citizen. {Postulate}
- The codification of the right of self-defense in the Second Amendment conveys the singular importance of the firearm in securing both the right of self-defense and securing and preserving the continued existence of our Nation as a free Republic. {Corollary of (18)}
- The right of the people to keep and bear arms has neither import nor purport where a nation state constrains that right—where a nation state places restrictions on a free people’s natural, fundamental right to own and possess firearms—to own and possess firearms in each citizen’s individual capacity and to own and possess firearms as individual property. {Inference, derived from Premises (17) through (19)}
- For the Second Amendment to have true efficacy, the right of each law-abiding American citizen to keep and bear arms must be understood as exemplifying that right in the broadest of terms. {Corollary of (20)}
- For decades, this Nation has undergone a systematic transformation, devolving into autocracy while maintaining the trappings of a Free Republic. {Evidentiary proposition}
- The transformation of our Nation from a Republic to an autocracy proceeds directly from the undermining of the codification of the individual citizen’s natural right to keep and bear arms. {Evidentiary proposition}
- Any act by government—federal, state, or local—to constrain ownership and possession of firearms in the hands of the law-abiding citizen—erodes the foundation of a free Republic, operates as an attack on the sanctity and inviolability of the individual, and constitutes an attack on personal autonomy and personal integrity, thereby undermining and ultimately destroying the underpinnings of the Nation’s Bill of Rights. {Inference derived from Premises (23) and (24)}.
- Any act by government—federal, state, or local—to constrain ownership and possession of firearms in the hands of the law-abiding citizen—erodes the foundation of a free Republic, operates as an attack on the sanctity and inviolability of the individual, constitutes an attack on personal autonomy and personal integrity, and operates as a clear revocation of and repudiation of the rationale of and for the Nation’s Bill of Rights. {Corollary of (24)}.
- Governments—local, State, and Federal—posit that regulation of firearms is necessary to preserve public order and safety of the community and that restrictions on the ownership and possession of firearms by law-abiding citizens is therefore necessary to preserve the integrity of the Community. {Precept of Government which manifests as unlawful interference in the lives of citizens, resulting in denigration of personal autonomy and dissolution of individuality and personal integrity}.
- Tension exists between a government’s attempt to wrest control from and to exert power over the individual and the individual’s attempt to maintain integrity of self against incursion of government over individual integrity and autonomy. {Postulate}
- The Bill of Rights, as a critical component of the U.S. Constitution, operating as the singular mechanism that curbs government encroachment on, incursion in, and ultimate destruction of individual autonomy and inviolability. {Evidentiary Proposition}
- Regulation of firearms in the hands of the citizenry—by government, regardless of stated purpose of government —invariably conveyed to the individual as an assertion of the need or desire to preserve and protect the viability of a community—amounts inevitably, and invariably, and tacitly as a drive to accumulate power over and at the expense of the individual, thereby undermining the individual’s ability to preserve and protect self and to preserve and protect the autonomy and integrity of self. {Inference, derived from Premises (23) through (28)}
- The erosion, in recent decades, of the Nation’s sacred rights and liberties, codified in the Bill of Rights stems first and foremost from a direct, unequivocal, systematic attack on the fundamental, primordial, natural right of the people to keep and bear arms. {Evidentiary Proposition}
- Systematic erosion of the First, Fourth, and Fifth Amendments stems from erosion of the Second Amendment. {Inference derived from Premise (30)}
- The Destruction of a Free Republic and the erosion of individual autonomy follows from the undermining of the Second Amendment. {Inference derived from Premise (30) and Corollary of Premise (31)}
- To counter the incremental, systematic destruction of a free Republic and to withstand the unceasing attack on individual autonomy, it is necessary to strengthen the Second Amendment to the U.S. Constitution; for, only if the Second Amendment is strengthened will further erosion of our free Republic, further erosion of the American citizenry’s other fundamental rights and liberties, and further erosion of the autonomy of self be forestalled. {Inference derived from Premises (30) through (32)}
- National concealed handgun reciprocity operates at once as a renouncement of Government interference with, and as a renouncement of Government’s restraint on the citizen’s fundamental, natural right of self-defense under the Second Amendment; and proceeds as a rational, logical backlash against Government’s increasing encroachment on individual autonomy and unlawful usurpation of power over the American citizen, in direct contradistinction to and in violation of and in abject defiance of the limitations on the exercise of governmental power as expressly set forth in the U.S. Constitution; and in abject defiance to the citizen’s exercise of rights and liberties codified in the Bill of Rights. {Inference derived from Premise (33)}.
- National concealed handgun carry reciprocity is a natural response to unlawful Government incursion into individual autonomy. (Corollary of Premise (34)}
- National concealed handgun carry reciprocity promotes personal autonomy, personal safety and security, secures further rights and liberties codified in the Bill of Rights of the U.S. Constitution, and prevents an otherwise inevitable slide of a free Republic into autocracy and tyranny. {Inference, derived from Premises (34) and (35)}.
- The strengthening of the Second Amendment to the United States Constitution is the only way to prevent, one, the Nation’s otherwise inexorable slide into autocracy; two, the dissolution of a free Republic; three, the inevitable destruction of the Bill of Rights; and four, the humbling of the individual to the dictates of Government. {Inference, derived from Premises (28) through (37)}
- The slow demolishment of the United States as a free Republic, and the eradication of the notion of the autonomy of the individual proceeds silently but the effects are visible. {Evidentiary Proposition}
- The American citizen has a duty to protect and preserve the Nation as a free Republic that the Founders of the Republic cemented and bequeathed to each American citizen. {Postulate}
- It is therefore incumbent on each American citizen to preserve the Nation as a free Republic. {Inference, derived from Premise (39)}
- To preserve the true import and purport of the entirety of this Nation’s Bill of Rights and to secure this Nation's continued existence as a free Republic, it is necessary to strengthen the Second Amendment to the U.S. Constitution. {Inference, derived from Premise (33)}
- The realization of national concealed handgun carry reciprocity is a mandate for the American citizen if this Nation is to constrain and contain and, ultimately, reverse the inexorable slide toward oblivion of this Nation as a free Republic and to reverse the dangerous incursion of ideas antithetical to the notion of the supremacy of the individual embodied in the Bill of Rights. {Inference, derived from Premises (36) through (41)}
- Thus, those Americans who value the continued survival of our Nation as a free Republic, and, who value the sanctity and inviolability and autonomy of the American citizen, and, who value the core precepts of our Bill of Rights, and who seek to reverse the trend of Government to usurp power beyond the dictates of the U.S. Constitution, and who seek to reverse the trend of Government to exert unlawful power over the lives of the citizenry, must work, together, to foster in all Americans a renewed respect for the Nation’s Bill of Rights. {Inference, derived from Premise (42)}
- Working, together, toward the realization of national concealed handgun carry reciprocity will accomplish more than mere strengthening of the Bill of Rights; it will offset the machinations of those forces in this Country and outside it that seek to undermine the foundation of this Country as an Independent, Sovereign Nation and as a Free Republic, wherein the citizen stands supreme, and wherein government has no purpose but to serve at the behest of and at the pleasure of the People. {Inference, derived from Premise (43)}
- The realization of national concealed handgun carry reciprocity is an assertion of defiance against those among us who piously declare the sacred Second Amendment to be obsolete and who maintain the other nine Amendments to be malleable, subject to change or deletion in accordance with notions and values alien to this Nation, as our founders conceived and envisioned and implemented this Nation. {Postulate}
- National concealed handgun carry reciprocity is a rejection of the current trend toward unlawful Government restrictions on, encroachment in, and unlawful interference with Americans' rights and liberties. {Inference, derived from Premise (45)}
ANTIGUN PROPONENTS’ PURSUIT OF RESTRAINTS ON THE EXERCISE OF THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS WILL REFLECT IDEAS CONTRARY TO THE ARGUMENT HEREINABOVE MADE IN SUPPORT OF NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY.
Antigun groups, the mainstream media, left leaning legislators, and the shadowy group of powerful, ruthless internationalists that fund them will undoubtedly take exception with several of the propositions comprising our argument in support of national concealed handgun carry reciprocity. It is beyond the scope of this article to delve at length into possible objections supporters of antigun measures might draw. But, we wish to mention one theme that pervades antigun thought.Antigun groups and those who support a weakened Second Amendment argue that the safety and well-being of the community take precedence over the safety and well-being of the individual. Antigun groups may not say this expressly, but their position on gun ownership and possession entails that conclusion. Antigun groups and their supporters and benefactors extol the virtue of the collective over the needs and aspirations and concerns of the individual. So, they look to ways in which society in general must curtail the rights and liberties of the individual in order—as they see it—to maintain the well-being of the greater society—of the hive.Restrictive gun laws gain their impetus through a theory of ethics called utilitarian consequentialism. That ethical theory is antithetical to the basic precepts of our Bill of Rights because it undercuts the notion that morality, a rational deontological ethical theory of good and evil, is based on the notion that a morally good act or a morally evil act is a product of an individual’s intentions and motives in acting, and not, as antigun groups hold, based merely on the consequences of one’s actions—the impact a given action has on a community, irrespective of intention or motive behind a given act.So, for example, if a criminal happens to use a gun when committing a crime, the response of the antigun groups is to ignore the motive or intention of the sentient being in acting in the manner that he acted, but to emphasize merely the consequences of the act--the utility--good or bad that it has on the community as a whole. We see then, the antigun groups dealing with and emphasizing the implement used in the crime, rather than the nature of the individual who committed the crime. The common refrain we hear is: “we need to get rid of the gun” and, not, “let’s place these criminals in confinement where they will never again harm another individual.” By placing emphasis on the consequences of an act to the exclusion of the motive or intention of the actor, antigun groups draw attention away from the individual and onto the non-sentient object, the gun.Antigun groups and the billionaire internationalists that fund these groups, and that fund like-minded legislators look upon the individual in society as a component of an unruly mob, whose basic impulse is, as they see it, innately destructive, antithetical to the maintenance of an ordered society. Antigun groups and their supporters and benefactors perceive American society as a bee hive. The individual has value to self and to the greater hive only to the extent the individual’s actions are constrained and his actions benefit the hive, rather than himself. They believe that the individual qua individual citizen cannot be trusted and, so, must be carefully watched and controlled, always. By constraining a person's actions, antigun groups believe they are able to create a better society. Protecting the Second Amendment right of millions of law-abiding citizens to keep and bear arms is not part of the agenda of those whose goal, ultimately, is de facto repeal of the Second Amendment. The Second Amendment simply has no import or purport in the kind of society envisioned by antigun groups.Antigun groups, the mainstream media, left-wing legislators and wealthy, powerful, ruthless internationalists enlist stories of misuse of firearms by psychopaths, psychotics, and terrorists, as the ground to restrict gun ownership and possession, affecting, then, millions of citizens—sane, rational, law-abiding Americans—predicated on misuse of guns by the few.Seen in this light, it becomes clear why antigun groups and their supporters and benefactors find the Second Amendment archaic and dangerous. Antigun groups, their supporters and benefactors invariably provide anecdotal accounts of misuses of firearms by the worst sort of individuals—criminals, lunatics, Islamic terrorists—to justify their assault on gun ownership and possession, thereby ignoring outright—deliberately ignoring—the millions of law-abiding gun owners who have never misused a firearm, and never will.Allowing the individual to own and possess firearms is, from the perspective of the antigun groups, contrary to the maintenance of an ordered society—contrary to an ordered and orderly hive.The argument for restrictive gun laws makes no sense except through the ethical theory of utilitarian consequentialism—an ethical theory that the founders of our Republic would discount and repudiate.Antigun groups and their supporters and benefactors have no regard for personal autonomy—the central unifying principal underlying and underscoring our Second Amendment, and, in fact, underscoring the entirety of our Bill of Rights. Thus, we would expect that antigun groups, the mainstream media, and the internationalist benefactors that fund them will attack vigorously, viciously, any attempt to realize national concealed handgun carry reciprocity.As foes of the Second Amendment, the antigun groups work tirelessly, unceasingly, rabidly toward constricting the Second Amendment. They obviously will not take kindly toward efforts to strengthen the Second Amendment. The Arbalest Quarrel will continue to explore the ideas raised in this article as we press the case for national concealed handgun carry reciprocity. This will include an analysis of pending Congressional bills, directed toward national concealed handgun carry reciprocity.Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY REQUIRES CAREFUL THOUGHT: AMERICANS HAVE MUCH WORK AHEAD OF THEM TO MAKE THIS A REALITY.
NATIONAL CONCEALED HANDGUN CARRY—LIKE SELF-DEFENSE—IT’S A RIGHT, NOT A PRIVILEGE.
PART FOUR
AMERICANS WHO CHERISH THEIR SECOND AMENDMENT AND WHO SEEK TO STRENGTHEN THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS MUST BE MINDFUL OF DEEP-SEATED ANGER AND RESENTMENT OF THOSE WHO SEEK TO DESTROY THIS MOST CHERISHED RIGHT.
With the Nation’s Electoral College’s 538 Electors having cast their ballots—with the vast majority voting for President-elect Donald Trump, notwithstanding a last ditch effort by Clinton’s malcontent, insufferable supporters to prevent this—and with President-elect Donald Trump soon to take the oath of Office as the 45th President of the United States, and with Donald Trump clearly supportive of our Second Amendment right of the people to keep and bear arms, Americans can now say with assurance a mandate exists for national concealed handgun carry reciprocity. No one can reasonably, rationally deny this. But, the foes of the Second Amendment will seek to prevent this, nonetheless.We know the foes of the Second Amendment well. They include, inter alia, antigun groups, the mainstream media, left-leaning legislators in Congress and in the States, ignorant and frightened supporters of antigun group propaganda, Hollywood Moguls and actors, and liberal academicians.But another foe exists: one both secretive and powerful; ruthless and dangerous. That foe comprises the internationalist power brokers. These internationalist power brokers—residing both here and abroad—seek the demise of the U.S. Constitution and destruction of our Nation State. This extraordinarily wealthy and dangerous foe machinates tirelessly and unceasingly toward the singular goal of a one World Government. America’s Bill of Rights is not compatible with their political, socio-economic blueprint. The Second Amendment to the U.S. Constitution is forever on the radar screen of these secretive, powerful, ruthless internationalists. They will fight vigorously to disrupt attempts to strengthen the Second Amendment.The antigun groups, the mainstream media, the internationalists, leftist legislators in the U.S. Congress and in the State Capitals, liberal academicians, among others, are stymied, flummoxed, baffled, and bewildered by the defeat of their darling child, Hillary Rodham Clinton. Had Clinton won the Presidency—as the prognosticators projected and hyped—the foes of the Second Amendment would have rubbed their palms and chuckled in glee. For they would then have found fair winds. They would whittle away at the Second Amendment with unrestrained ferocity. Now they cannot do so. The wind is in their faces and the seas are roiling. We, fervent supporters of the Bill of Rights and, particularly, of the Second Amendment, are now the gods of the sea. We control the oceans, and we intend to sink the ships of those who betray our birthright.Yes, those of us who voted for Donald Trump can be jubilant, but, even so, we must remain ever vigilant. We have stopped the foes of the Second Amendment in their tracks. But we cannot sit on our laurels, for the foes of the Second Amendment—are not sitting idly by. They are bracing for the true impact of a Trump Presidency and the strengthening of the Second Amendment’s right of the people to keep and bear arms. No longer are we merely fighting a rearguard action. And on the matter of the Second Amendment, Trump must be true to his word. We will not stand for equivocation or compromise here.With Donald Trump as U.S. President we are victorious. We have stopped the foes of the Bill of Rights—the would-be killers of the Second Amendment—in their tracks.But, we cannot rest on our laurels, for the foes of the Second Amendment, are not sitting idly by. They are bracing for the true impact of a Trump Presidency and strengthening of the Second Amendment’s right of the people to keep and bear arms. No longer are we, supporters of the Second Amendment, merely fighting a rearguard action. We have gained the high ground and we are on the offensive. Those groups that abhor the Second Amendment are not pleased with this new state of affairs and are, undoubtedly, more than just a trifle concerned.The prospect of strengthening the Second Amendment amounts to another order of reality—something the foes of the Second Amendment cannot and will not abide. Realization of national concealed handgun carry reciprocity will do much to strengthen the Second Amendment. Antigun Legislators in Congress are already marshaling their forces against this. Senator Charles Schumer said he will oppose national concealed handgun carry reciprocity legislation. He has made plain his intention to fight “tooth and nail” against enactment of such legislation.These foes of the Second Amendment may try to ingratiate themselves with Trump. If that does not work—and it must not—they will attempt to place obstacles in his path and those obstacles we will destroy as fast as the foes of the Second Amendment raise them.
THE SECOND AMENDMENT’S RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS IS UNIQUE. NO NATION OTHER THAN THE UNITED STATES, HAS, EITHER IN THEIR CONSTITUTIONS OR IN LEGAL DOCUMENTS A RIGHT TO KEEP AND BEAR ARMS THAT IS REMOTELY COMPARABLE TO OUR SECOND AMENDMENT.
No other Country has anything like our Second Amendment. The very existence of our Second Amendment is heresy for the power brokers—these internationalists—that seek to destroy it. For, the Second Amendment is a tacit assertion that Government is the servant of the People, not the other way around. The very existence of the Second Amendment serves as a reminder to the elected officials and bureaucrats of the federal Government that the American people are fully capable of—and have, in fact, a duty—as the founders of our Republic intended—to take back their Government from those who lose sight of the true rulers of this Country—the American People. The idea that authority—true and ultimate authority—resides in the American citizenry is anathema to the internationalists and to the puppets they control.These internationalists seek to controvert the notion that rights and liberties, as set forth in our Nation’s Bill of Rights, exist intrinsically in the person.These internationalists posit that such rights a citizen exercises and such liberties a citizen enjoys exist, not as inalienable, natural rights and liberties, preexistent in the individual, but as a grants or privileges bestowed by government on a citizen, or “subject.” For these internationalists, rights and liberties do not exist independently of government.The very existence of our Second Amendment is, to the power brokers, heresy. These power brokers—these internationalists--disavow that rights and liberties exist in the person and not in Government. They intend to dissuade those who believe otherwise.The Second Amendment—preeminent among rights and liberties is a tacit assertion that Government is the servant of the People, not the other way around. Hence, America’s Second Amendment is fertile ground for attack and its removal the first order of business for these internationalists and for the puppets who operate at the behest of these internationalists.
THE NOTION THAT CERTAIN RIGHTS AND LIBERTIES EXIST INTRINSICALLY IN THE PERSON IS NOT WIDELY ACCEPTED IN THE WORLD—NO LESS SO IN WESTERN NATIONS THAN IN DICTATORSHIPS AND IN MUSLIM THEOCRACIES.
Consider: President Obama and the defeated Democratic Party candidate for U.S. President, Hillary Clinton, have both overtly expressed their admiration of Australia’s restrictive gun laws. Most Americans, who keep abreast of politics, know this. They have made known their admiration for Australia’s outrageously restrictive, draconian gun laws on numerous occasions. That should sound the alarm for Americans. But there is something more ominous in this naked admiration. For, the Constitution of Australia is bereft of a bill of rights. Australia’s Government instituted restrictive, draconian gun laws easily because Australians—and they are less citizens and more mere subjects of the “Crown of England”—do not have rights or liberties but those that the Government deigns to bestow on Australia’s subjects.Curiously, the framers of the Australian Constitution considered inserting a Bill of Rights in their Constitution, and looked to the United States Constitution and our Country's Bill of Rights for guidance, but decided against this. One might speculate why the framers of Australia’s Constitution would forego a Bill of Rights for Australians. But this means that such rights and liberties that Australians happen to enjoy in Australia are man-made—concessions of Government to the people—the subjects of Australia--rights and liberties that are granted and withdrawn at will by Australia's Parliament. That is fact not speculation. Australia’s Constitution does not recognize rights and liberties preexistent in and preeminent in the individual. So, members of Australia’s Parliament have no difficulty dismissing out-of-hand any notion of a right to keep and bear arms. No wonder that President Barack Obama and Hillary Clinton emulate the actions of Australia’s Parliament.Australians owe their allegiance to the Queen of England. The Queen of England, and other “royalty” and “nobility,” have historically, distrusted the common man, and, so, have treated the common man with disdain.Far from recognizing the lack of a bill of rights in Australia’s Constitution as a flaw, some acknowledge this as a good thing.A few years ago, an Australian blogger, Mark Fletcher, published an article in a mainstream British newspaper, “The Guardian,” titled, “It’s a good thing that Australia isn’t burdened with human rights legislation.”Fletcher ends his polemic with this: “So let other countries puff their chests with empty slogans about rights. Let them use International Human Rights Day to reaffirm their ideological commitment to the inalienability and irrefutability of whichever rights happen to suit them most. Let their restrictions on legislative capability be a testament to their fear that parliament is forever tempted to commit atrocities. Instead of trying to emulate these mediocre, antiquated, constipated ways of other jurisdictions, Australians should take pride in our achievements, learn from our errors, and strive to show the rest of the world that bills and charters of rights are superfluous.”Reading this, one may understandably do a double-take. Is the author serious, or is this satire? Apparently, the author is serious. But, it is this very attitude that proponents of restrictive antigun measures have in our Country toward our own Bill of Rights that should raise the alarm. It is obviously a tacit idea held by the outgoing U.S. President, Barack Obama, and one also held by the defeated Democratic Party candidate for U.S. President, Hillary Rodham Clinton.Obama and Clinton do not respect our Bill of Rights and obviously consider such rights and liberties that are codified in our Bill of Rights to be ephemeral rather than real. Barack Obama and Hillary Clinton, as with Australian Government officials, believe rights and liberties exist extrinsically, with Government, not intrinsically within the People.Consistent with this line of odd reasoning, Government can, at will, repudiate rights and liberties. Rights and liberties may be reduced, warped, changed, ignored, or discarded outright. Americans have seen Obama attempt to reduce the import of the Second Amendment by Government fiat. We have seen Obama ignore the unreasonable searches and seizures clause of the Fourth Amendment, ostensibly to enhance national security. And we have seen Obama curtail the First Amendment free speech clause under the guise of and for the benefit of promoting “political correctness” in public discourse.Had Clinton won the Presidency—as the prognosticators projected and hoped for and hyped—the foes of America’s Bill of Rights would have rubbed their palms and chuckled in glee. For they would then be able to whittle away further at our rights and liberties even as they give lip-service to being of service to and protecting them.The foes of the Second Amendment would give the Second Amendment especial attention. These foes of America’s rights and liberties would whittle away at the Second Amendment with increasing and particular ferocity. With loss of the Second Amendment we would inevitably lose, essentially, the entirety of our Bill of Rights. Whatever remained would be a hollowed out shell, with no true import or significance.So, before engaging antigun groups—their supporters and their wealthy benefactors both here and abroad—and before considering the mechanics of making national concealed handgun carry reciprocity among the States and U.S. Territories a reality--we would do well to give serious consideration to the reason for making national concealed handgun carry reciprocity a reality.As we work toward making national concealed handgun carry reciprocity a reality, it behooves us to have an argument at the ready to be used against those who will surely oppose it and who will oppose it vehemently. Thus, there is a good reason for promulgating a formal argument in support of national handgun carry reciprocity.The Arbalest Quarrel has broached in an earlier article a thesis in support of national concealed handgun carry reciprocity. But, we wish to set forth at length a cogent, comprehensive, analytic basis for making national concealed handgun carry reciprocity a reality, in anticipated response by foes of our sacred Second Amendment. What we provide for you in our next article, to be posted immediately as Part 5 of our ongoing series on national concealed handgun carry reciprocity, shall serve as the Arbalest Quarrel’s formal argument in support of national concealed handgun carry reciprocity.Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
CONCEALED HANDGUN CARRY RECIPROCITY AMONG THE FIFTY STATES AND IN ALL U.S. TERRITORIES MUST BECOME A REALITY.
NATIONAL CONCEALED HANDGUN CARRY—LIKE SELF-DEFENSE—IT’S A RIGHT, NOT A PRIVILEGE.
CONCEALED HANDGUN CARRY RECIPROCITY AMONG THE FIFTY STATES AND IN ALL U.S. TERRITORIES MUST BECOME A REALITY.
PART TWO
THE RIGHT OF SELF-DEFENSE IS EMBODIED IN OUR SECOND AMENDMENT.
The instinct for self-preservation is primary, primal, primordial. We take that statement as axiomatic, self-evident, true. It is fact, a given. The assertion requires no proof. A person need look but to his or her own response to a threat of attack to recognize the inherent truth of the assertion.A rational person will defend his or her life against any threat to that life. The urge to defend one’s life against a threat to it stems from the instinct for self-preservation. Those assertions, too, are axiomatic, self-evident, true. The assertions require no proof and they require no justification.Since we take, without need for proof or justification, the urge to defend one’s life from external harm as natural and universal, we draw from that notion a normative, ethical prescription. It is this: a person has the right to defend his or her life from threat of harm, and will do so. Most people, we think, would agree with this assertion as well.But, consider the assertion, “the right of the people to keep and bear arms shall not be infringed.” The assertion embodies two correlates. The first correlate is that a person has the inherent right of self-defense. The second correlate is that a person has the right to defend one’s life with a firearm. The first correlate is simply a reiteration of the aforesaid assertion that, “a person has the right to defend his or her life from threat of harm, and will do so,” which most people, we postulate would, accept as true without need for proof.Some people, though, namely, those who accept the rhetoric of antigun zealots would object to the second correlate. We, though, do not; nor would the founders of our Republic. For us, as with them, the natural right to defend one’s life with a firearm is axiomatic, self-evident, true. The truth of the assertion derives, straightforwardly, from the instinct for self-preservation. We need not proffer proof or justification for the truth of the second correlate.The firearm is the most effective means to defend one’s life, and the founders of our Republic knew this. The founders of our Republic codified this natural right of self-defense in the Second Amendment to the U.S. Constitution. The right of the people to defend one’s life with the most effective means of doing so is prominently etched in the Second Amendment of the Bill of Rights of the U.S. Constitution.The Second Amendment is one of ten basic, principal rights and liberties set forth in the Nation’s Bill of Rights. The Nation’s Bill of Rights is a critical part of the Nation’s Constitution; and, our Nation’s Constitution would not be complete without it. For, our Bill of Rights operates as a check on federal Government power. Our Constitution establishes a Government, beholden to and answerable to the American people. The Bill of Rights makes that point poignantly clear. The Nation’s Constitution establishes a federal government, and establishes, as well, the parameters of the powers and authority of the three Branches of Government. But, the Constitution that creates the federal Government and that establishes the powers and authority of each Branch, does not also create the predicate rights and liberties of the People.The rights and liberties of the People predate the Constitution. Our sacred rights and liberties exist intrinsically in the very being of each American citizen. The Constitution didn’t create or ordain our fundamental rights and liberties. And, Government did not bestow those rights and liberties on us. So, neither the Government, nor the Constitution, can take our sacred rights and liberties from us.The Bill of Rights operates essentially as both an acknowledgement of the existence of our sacred rights and liberties—lest any Government functionary attempt to proscribe our rights and liberties—and as a constant reminder to those in the Government, that Government operates at the pleasure of the People. That means the People can dismantle Government when Government oversteps its authority and operates in accordance with its own mandate, contrary to the Will of the People.Government functionaries must understand they are not to toy with our sacred rights and liberties; nor are they to undercut any of our sacred rights and liberties. Yet some Government officials do just that. They believe that our Bill of Rights can be shaped, molded, changed, even done away with.They are wrong. Americans have demonstrated how out-of-touch such people are. With the election of Donald Trump to the U.S. President, a vast swathe of the American populace has made abundantly clear: we want our Country back, and we will take our Country back from those, like Hillary Rodham Clinton, who believe, essentially, that they operate by divine right. They most certainly do not.Our Bill of Rights and, especially our Second Amendment, exist as essential codifications of natural rights that remain as vibrant and as true today as they did during the birth of our Nation. Our public Officials cannot undermine, them, disregard them, or repeal them—ever! Hillary Clinton didn’t heed the warning. She sought, through the power of the mainstream media to persuade the American public to disavow its birthright, to passively permit its fundamental right of the people to keep and bear arms to be forfeited, done away with. Neither she, nor her powerful, wealthy sponsors appreciated the intelligence and determination and resolve of millions of Americans.
WE, AMERICANS, ARE AT A CROSSROADS.
The American people have seen their Second Amendment right to keep and bear arms eroded under the Obama Administration. With the election of Donald Trump as our 45th President, we have thrown a wrench in the antigun agenda. For the moment, we have stopped the ruthless internationalist benefactors who fund the antigun agenda.With defeat of Hillary Rodham Clinton, the antigun forces have lost their principal ally, their principal weapon for defeating the Second Amendment. The antigun forces are weakened but not undone.The paramount aim of national and international antigun efforts is de facto repeal of the Second Amendment. Make no mistake about that. They aim to destroy gun ownership and possession in our Country. That means they seek to undercut the individual’s right of self-defense. What is their motivation? The answer is simple. They seek to break the back of our National resolve, of our heritage, of our culture, of our National identity. If they can destroy our most sacred, natural right, they have eliminated a core, defining attribute of our Nation—the right of the people to keep and bear arms shall not be infringed. Our Nation, as an independent, sovereign Republic would, if they were successful, totter on its very foundation.So, we know the impetus for the antigun forces. But, why do many average, law-abiding citizens fall prey to the messaging of the antigun forces?We discuss this in Part Three of the Arbalest Quarrel’s comprehensive multipart series on National concealed handgun carry. We also explain in Part Three how the Arbalest Quarrel has fought the myriad lies about firearms and about our Second Amendment as fomented and perpetrated on the American people by powerful, ruthless, internationalists and by antigun zealots and by those who, through their ignorance, support the actions, policies and goals of antigun groups, operating, as they do, through the mainstream media and through their puppets in Government.By exposing, to the light of day, the lies perpetuated by those bent on destroying our sacred right of the people to keep and bear arms, we succeed in strengthening our Second Amendment. It therefore will come to pass that we will see universal concealed handgun carry in the Nation’s fifty States and in the Nation’s sixteen territories. Understand, this will become a reality but only if the resolve of the American people never wavers. We must all do our part if we are to be successful in our endeavor.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
THE AMERICAN PEOPLE TRUST PRESIDENT-ELECT DONALD TRUMP—HOLDER OF AN UNRESTRICTED NEW YORK HANDGUN CARRY LICENSE—TO STAY TRUE TO HIS WORD TO PROTECT AND PRESERVE GUN RIGHTS FOR EVERY LAW-ABIDING AMERICAN CITIZEN.
NATIONAL CONCEALED HANDGUN CARRY—LIKE SELF-DEFENSE—IT’S A RIGHT, NOT A PRIVILEGE
PART ONE
NATIONAL RIGHT TO CARRY HANDGUNS—LET’S GET CRACKING ON THIS!
In the past eighty years the American people have seen their Second Amendment right to keep and bear arms slowly whittled away through enactment of a multitude of restrictive federal and State gun legislation. Such gun rights that remain are treated more as a privilege, granted by Government, than as a right, embodied in the People, as codified in our Nation’s Bill of Rights.With the slow, inexorable, insidious movement toward de facto repeal of the Second Amendment, many Americans grow increasingly unaware of the loss of their most cherished right.Those who seek to exercise their fundamental right to keep and bear arms find themselves frustrated. They see themselves treated like second class citizens.Now, no rational, sensible person inside of government or outside it would deny a person his or her natural right of self-defense. Yet, by prohibiting the average law-abiding American citizen from carrying a handgun in his or her own defense, Government is, nonetheless, effectively denying the American citizen his or her natural right of self-defense. For, a handgun is, in many life-threatening situations, the most effective means available for ensuring one’s life.The right of self-defense is a corollary to the Second Amendment, as the late U.S. Supreme Court Justice, Antonin Scalia, pointed out in the seminal Heller case. Yet, many States, including the District of Columbia, routinely ignore the import of Heller and, in so doing, denigrate the import and purport of the Second Amendment.The State Governments of New York, New Jersey, Connecticut, Massachusetts, California, Hawaii, and others, dole out handgun carry licenses sparingly, if at all, to a privileged few.And, who are those Privileged Few?
THIS IS WHAT WE SEE:
- Politicians can carry a handgun concealed because they make the laws.
- Police can carry a handgun concealed because they enforce the laws.
- Retired Police Officers can carry a handgun concealed because that is their entitlement.
- State and Municipal Judges and U.S. Supreme Court Justices can carry a handgun concealed because they interpret the laws.
- The Rich and Famous can carry a handgun concealed because restrictive gun laws are generally waived for them.
- Private Bodyguards can carry a handgun concealed because they protect the Rich and Famous.
AND—Criminals can carry a handgun concealed because they simply disregard the laws.BUT YOU—THE AVERAGE LAW-ABIDING CITIZEN—Cannot carry a handgun because you obey the laws, and are routinely denied the right guaranteed to you in the Second Amendment to the U.S. Constitution!WHAT DO YOU THINK?We would like to get your opinion.THIS IS WHAT WE KNOW:The President-elect, Donald Trump, championed the right of the people to keep and bear arms. We trust that Donald Trump will not soften his stance once he takes the Oath of Office and that he will honor his promise and commitment to the American People.Even so, Americans must not rely on our President-elect alone to secure our Second Amendment right of the people to keep and bear arms. Americans must make national handgun carry a reality. To accomplish that means we must make national handgun carry a priority.To effectively preserve and protect the Second Amendment we must strengthen it. The true strength of the Second Amendment, as a fundamental right, rests in the full, unrestricted exercise of it. Congressional draft legislation to effectuate national handgun carry would do just that. National handgun carry impetus is, to date, the best exemplification of the right of the people to keep and bear arms as our founders understood that right and had intended it to be exercised.Congressional draft legislation to effectuate national handgun carry does exist. Pending are three House bills, H.R. 923, H.R. 986, H.R. 402, and one Senate bill, S. 498. What is the status of these bills? They sit stalled in Congress. They have been suspended in Committee for over a year. But, as President-elect Donald Trump will soon assume the mantle of the U.S. Presidency, we must get Congress cracking on them. There is no longer any reason to sit idle.Those Congressmen fearful of incurring the wrath of Hillary Clinton, had they acted sooner on the national handgun carry legislation, can certainly rest easy now. Hillary Clinton’s political ambitions along with her antigun agenda are dead.Clinton’s political dreams and her antigun agenda both died when she lost the U.S. Presidential election. There is now no excuse, especially by Congressional Republicans—if any excuse previously existed—for foot dragging; nor is this a time for the American people to rest on their laurels now that Donald Trump has secured the U.S. Presidency. There is much work to be done and much in Obama’s un-American legacy to be undone.And, don’t for a minute think the antigun forces are going to forbear their destructive activity to defeat the Second Amendment just because they lost their most strident and powerful benefactor, Hillary Clinton. We must hit them hard. Getting national handgun carry legislation passed will be the most effective means at our disposal to defeat them and to defeat their destructive agenda.The Arbalest Quarrel is doing its part to get the ball rolling on national handgun carry legislation. The Arbalest Quarrel has, since its inception, been a strong, unwavering advocate of the Second Amendment. We have pointed out vociferously and unceasingly that the Second Amendment is not to be ignored or trifled with.The Arbalest Quarrel is currently working with several organizations and with public radio to get the message out that the American people want national handgun carry legislation.We want national handgun carry legislation passed quickly, and we want national handgun carry legislation passed with no strings attached.President-elect Donald Trump, the U.S. Congress, and the average law-abiding American citizen—all of us—need to work on this together and straightaway to see federal legislation enacted to level the playing field among the several States.All law-abiding American citizens of legal age should be allowed to carry a handgun concealed in every State of the Union. That is consistent with the true import and purport of the Second Amendment.Will you help us help all Americans preserve, protect, and strengthen our sacred Second Amendment right? Please provide us with your thoughts.
[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.