THE UN-JUSTICE DEPARTMENT GIVES HILLARY A FREE PASS:

CONGRESS AND THE COURTS—THE LAST HOPE OF THE AMERICAN PEOPLE—CAN HOLD AND MUST HOLD HILLARY RODHAM CLINTON ACCOUNTABLE FOR HER  CRIMINAL ACTS

“When these unlawful acts were committed, they were crimes only of the officers individually. The Government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the Government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers’ crimes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Olmstead v. United States, 277 U.S. 438 (1928); Dissenting Opinion of U.S. Supreme Court Justice, Louis D. Brandeis To demand an accountable Executive Branch of Government Congress must appoint independent counsel. The U.S. Constitution gave Congress the means to deal with a renegade Executive Branch. Congress saw that counsel, outside of Government, unshackled from the Executive Branch unbeholden to the President, beyond Government influence, could bring an outlaw Executive Branch to answer for its misdeeds.Since the Department of Justice—a component of the Executive Branch—has failed the American people, Congress and the U.S. Supreme Court bear the onus to investigate Hillary Clinton anew and to bring criminal charges against her. Through the appointment of independent counsel—a special prosecutor—Hillary Clinton would yet answer for her misconduct.Congress has, in the past acted to ensure that misdeeds of high level officers of the Executive Branch would not go unpunished. Congress must act now, before it is too late.

THE ETHICS IN GOVERNMENT ACT AND THE ACT’S PRESENT STATUS

The Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978), codified as amended at 28 U.S.C. §§ 591-599 (1994), had its origins in the Watergate scandal and in President Nixon’s attempt to cover up the investigation by manipulating the Justice Department.“After Watergate, there was widespread recognition of the conflict of interest involved when the Attorney General controls prosecutors of high officials tied politically to the Attorney General.  This recognition led to a series of proposals for statutory authority for special prosecutors. The key provisions of these proposals would vest the appointment of special prosecutors in the courts rather than in the Executive branch, and limit the Attorney General's removal power.” “The Constitutionality of Independent Officers As Checks On Abuses of Executive Power,” 63 B.U.L. Rev. 59, by Charles Tiefer, Assistant United States Senate Legal Counsel.The Department of Justice, a component of the Executive Branch, is taxed with the administration of Justice. But, reliance on the Department of Justice to root out corruption and prosecute serious crimes against high ranking public officials—including and particularly, the President, the Vice-President, and Cabinet level Officials remains problematic.The Attorney General is the Nation’s top prosecutor. The Director of the F.B.I. is the Nation’s top police officer. Both the Attorney General and the Director of the F.B.I. are political appointees. The President of the United States appoints both. They serve at his pleasure.Yes, the two top law enforcement officers of the Nation swear to enforce our Nation’s laws, but to whom do these two top law enforcement officers truly owe their loyalty, their fidelity, ultimately? Do they owe their loyalty, their fidelity to the President and to his Administration or do they owe their loyalty and fidelity to the U.S. Constitution and to the People of the United States? Hillary Clinton, as Secretary of State in the Obama Administration, committed multiple illegal acts in clear defiance of and disdain for federal law. One can only wonder at the reluctance of the Department of Justice to render justice. The failure of top Justice Department Officials to bring to justice--on behalf of the American People, and in accordance with their duty under the U.S. Constitution--a corrupt Cabinet Level Officer, opens up these top Justice Department Officials to possible charges of criminal wrongdoing as well. These Justice Department Officials--the F.B.I. Director, James Comey, and the Attorney General, Loretta Lynch--have shown, through their failure to enforce Federal Statute, enacted by Congress, their own contempt for the law. They have condoned criminal conduct. They are, therefore, conceivably, guilty of criminal conduct themselves.Moreover, as the two Departments—the Departments of State and Justice—are components of the Executive Branch of Government, presided over by the U.S. President, the President isn’t free of culpability in the Clinton scandal, either.The President must surely have known of Hillary Clinton's behavior. After all Hillary Clinton's use of  personal email servers to handle classified documents wasn't an atypical, "one off" event. She used private email servers to conduct official Government business, extensively--indeed, she used private email servers to conduct official Government business, exclusively--and she used private email servers to conduct official Government business over a lengthy period of time, namely, during her entire tenure as Secretary of State. Clinton's use of private email servers was her typical way of conducting Government business. If the President did not know of Hillary Clinton's illegal acts--which is difficult to believe-- he is, nonetheless and at the very least, liable for negligent hiring. After all, he appointed Hillary Clinton to her post, as head of the Department of State. So, he bears some responsibility for her actions.It is mind-boggling to consider that the Attorney General, Loretta Lynch, won’t indict Hillary Clinton. Substantial damning evidence against Clinton—evidence clearly warranting Clinton's indictment on felony criminal charges cries out for Clinton's indictment. It is equally mind-boggling to consider that, in light of his unprecedented statement to the American people on July 5, 2016—notably, one day after our National Holiday, marking our Nation's independence from tyranny—the Director of the F.B.I., James B. Comey, would decide not to recommend indictment of  Clinton, when his lengthy description of her crimes would strongly suggest he would do just that. He didn’t. Was he coerced? Americans may never know. We do know that Hillary Clinton should not escape justice. She must not escape justice.Congress must now act precisely because the Executive Branch of Government won't. High ranking Officials in the Executive Branch are themselves, apparently, too embroiled in Hillary Clinton's corruption to put their house in order and mete out justice.Only someone outside of Government, untainted by Government, and beyond the reach of and, therefore, beyond the influence of both the U.S. President and shadowy, powerful interests that are pulling the President's strings can mete out justice now.But what are the mechanics for meting out justice? Let’s take a look.

HOW DOES THE ETHICS IN GOVERNMENT ACT WORK?

“Under the Act, when the Attorney General receives specific information that high officials covered by the statute—including White House staff, Cabinet members, certain Justice Department officers, and the President and Vice President—have engaged in violations of federal criminal law other than petty offenses, he is allowed ninety days to complete a preliminary investigation. If he either ‘finds that the matter warrants further investigation or prosecution,’ or does not find ‘that there are no reasonable grounds to believe that further investigation or prosecution is warranted,’ then he must apply to a special division of the courts, consisting of a three-judge panel assigned by the Chief Justice for a two-year period, to appoint an independent counsel. “The Constitutionality of Independent Officers As Checks On Abuses of Executive Power,” 63 B.U.L. Rev. 59, by Charles Tiefer, Assistant United States Senate Legal Counsel.“The independent counsel has a wide range of investigative powers, including conducting proceedings before grand juries, applying for judicial warrants, subpoenas, and immunity and other orders, and using the files, resources and personnel of the Justice Department. He must conform with an elaborate set of requirements for reporting to and advising Congress, including cooperating with congressional oversight committees, sending reports to Congress on his activities, and advising the House of Representatives of information that may constitute grounds for an impeachment. Independent counsels also frame and sign indictments, initiate and conduct prosecutions, and handle all aspects of federal cases. The Attorney General can remove independent counsels only for ‘good cause.’” Id.We make several observations here. First, under The Ethics in Government Act of 1978, the Department of Justice—which includes the F.B.I.—does the preliminary work in investigating crime in high Government Office. Second, the Justice Department’s role is limited to making one of two determinations: either further investigation of criminal conduct is warranted, or it isn’t. Third, the threshold for determining whether further investigation or prosecution is warranted is set very low. This means that, if reasonable ground exists for extending the investigation, the need to appoint a special prosecutor kicks in. Fourth, the Justice Department has no discretion in this. Political influence and cronyism is negated. Once the Justice Department determines reasonable ground exists for extending an investigation, the Justice Department must relinquish its control over the investigation and prosecution of the case. Fifth, the Justice Department relinquishes its control by applying to a special division of the Courts. A three member panel of the special division will appoint a special prosecutor.The special prosecutor then takes over investigation and prosecution from the Justice Department. Sixth, the Justice Department has 90 days to conduct a preliminary investigation. This precludes the Justice Department from sitting on a case. Seventh, in matters involving the investigation and prosecution of criminal misconduct of high level Executive Branch officials, the Ethics in Government Act hands over the administration of justice from the Executive Branch to the Legislative and Judicial Branches of Government.So, why hasn’t the Justice Department made application to the Courts allowing the Judicial Branch of Government to appoint a special prosecutor? Might it be simply that the Judicial Branch will not, for some obscure reason, appoint a special prosecutor to look into Hillary Clinton’s conduct as Secretary of State and to look into the secret business dealings of the Bill and Hillary Clinton Foundation since, apparently, the Justice Department is unable to act? Or is it the case that the Attorney General cannot appoint a special prosecutor, had she wanted to?The Department of Justice can't take action to have a special prosecutor appointed because the Ethics in Government Act is no longer in effect.Clearly, if the Ethics in Government Act were still in effect, Hillary Rodham Clinton’s bid for the White House would be at an end. The F.B.I. Director, James B. Comey, determined—as is clear from his July 5, 2016 statement to the American people—that reasonable grounds for further criminal investigation of Clinton exists. Comey’s lame excuses--embarrassingly and, perhaps, deliberately lame excuses-- for recommending to the Attorney General, Loretta Lynch, that no criminal charges be filed against Clinton, would be irrelevant. The Justice Department would have been compelled to apply to the Special Division of the Courts. The Special Division would appoint a special prosecutor to handle the case. The special prosecutor would take over the investigation entirely, and Clinton’s bid for the Democratic Party nomination for U.S. President would be effectively over.

WHITHER THE ETHICS IN GOVERNMENT ACT OF 1978?

“The Ethics in Government Act of 1978” had a sunset provision. The Act would expire after five years, unless Congress renewed it. Congress did renew the Act in 1982, once again in 1987, and then again in 1994. The Act was scheduled for renewal a fourth time, in June 30, 1999. But, this time Congress allowed the Act to die.What changed between 1994 and 1999? Just this: The investigation, impeachment, and trial of William Jefferson Clinton. Congressional Democrats fought it. Clinton opposed it, Clinton’s Attorney General, appointed by Clinton, argued against it. The liberal American Bar Association attacked it. Even Kenneth Starr, the independent counsel, appointed by the Court to investigate whether the President and Hillary Clinton had violated federal statutes in connection with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, and Capital Management, assailed it.Starr said, the Act, “tries to cram a fourth branch of government into our three-branch system.” That is a singularly odd remark for the independent counsel--the special prosecutor--to make--in essence sabotaging his own appointment as independent counsel to investigate the President. In any event, Kenneth Starr's assertion was wrong. The appointment of a special prosecutor to investigate and prosecute crimes by high level Executive Branch Officials creates no Fourth Branch of Government, either literally or metaphorically.The special prosecutor, appointed by the Judicial Branch, answers to the Legislative Branch of Government. This joint action by the Legislative and Judicial Branches of Government hold the Executive Branch to its duty to faithfully execute the laws of the Nation. The Ethics in Government Act compels integrity.Without fanfare, just a few short months ago, Republicans in Congress attempted to resuscitate the Ethics in Government Act. Two House Republicans, Representative, Rick Allen, Republican from Georgia, and Michael Turner, Republican from Ohio introduced the “Independent Counsel Reauthorization Act of 2016,” on May 17, 2016. The “Independent Counsel Reauthorization Act of 2016,” essentially reauthorizes the original Ethics in Government Act of 1978, codified in 28 USCS Section 599, that had expired in 1999.Where is that draft bill now? It languishes in Committee. It has virtually no chance of passage. No one in Congress talks about it. The mainstream media does not bring it up: “out of sight, out of mind.” But, why is that?Can it be that all too many individuals in Government prefer to live with corruption? Perhaps so. But, when corruption is the cost of doing business in Government and when corruption is raised to a virtue, the destruction of our Bill of Rights and loss of our Free Republic cannot be far behind. That cost is much too high.Curiously, the original Ethics in Government Act owed its demise to the Clintons. They would hardly wish to see it resurrected now, on the eve of 2016 Presidential election, when the two taste victory.We look further into the legal intricacies of Judicial and Congressional use of a special prosecutor and to the machinations of the Clintons in upcoming articles.Both Bill and Hillary Clinton are two of the most corrupt individuals ever to hold high Government Office. They repeatedly refer to their misconduct as simple, inadvertent “mistakes.” Hardly so. For the Clinton's had great responsibilities. They served at the highest or, otherwise, at a very high level of Government. One served as President of the United States. The other as a Cabinet Level Official. Their so-called mistakes have ripple effects, impacting the entire Country, having repercussions around the world. To call their duplicitous actions, "mistakes," apparently serves, in their minds at least, to create the illusion their criminal actions do not have and did not have major disastrous consequences for Americans in particular and for the stability of the world, generally. They obviously take their actions cavalierly. But, no greater "mistake" can the American people make than to give these two a pass for their past "mistakes." For, that mistake--the one the American People make--will land the two of them--Bill and Hillary Clinton--in the White House where they can engineer more "mistakes." But, this time, any mistakes the two of them--the two "Presidents" make--presiding over this Country as a dyarchy--will spell the end of our Constitution, the end of our free Republic, the end of a once proud and unique Sovereign Nation State.[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.

HILLARY RODHAM CLINTON: JUSTICE UNDONE

"Exaggeration of every kind is as essential to journalism as it is to dramatic art, for the object of journalism is to make events go as far as possible." Arthur Schopenhauer, German PhilosopherThe mainstream media continues to make flamboyant, exaggerated claims about Hillary Clinton, all the while smearing Donald Trump. The mainstream media insinuates opinion into news stories, and forsakes any pretense of balanced reporting. If Hillary Rodham Clinton--a person who lied to the F.B.I., and whose violation of federal law, involving the handling of classified data, is clear beyond rational disputation--should become the 45th President of the United States, the American People will have the major news organizations to thank for that. But, then, that's the aim of the major news organizations. As a juggernaut, most of the major news organizations are shamelessly casting one of the most corrupt politicians in American history--if not the most corrupt politician in American history--Hillary Rodham Clinton, as singularly worthy of occupying the highest Office in the Land.Despite rampant evidence of criminal misconduct, poor use of judgment, a well-spring of lies, a person who is the personification of ruthless ambition and lust for power, an individual who would likely shape U.S. foreign and domestic policy around the goals and desires of those wealthy, powerful individuals, multinational corporations, major banks, foreign business oligarchs, and foreign governments willing to pay cold, hard cash to the Bill and Hillary Clinton Foundation--this is the person the mainstream media claims is the person most fit to sit in the Oval Office. Such is the power of the Press to shape public opinion against the public's own best interests.Yet, for all the bombastic praise the mainstream media heaps on Hillary Clinton, the mainstream news media remains curiously silent on one critical fact. It is one you would think the mainstream media would find worth mentioning. It is critical fact that distinguishes Hillary Clinton from Donald Trump. It is a fact that needs mentioning. But, the mainstream media refuses to mention it. It is this: the Department of Justice spent millions of dollars and thousands of man hours investigating Hillary Clinton for violations of federal law—serious breaches of federal law—felonies. This would not have been necessary if Hillary Clinton, who served as Secretary of State, a Cabinet Level position in the Obama Administration—had complied with federal law as one would minimally expect of a high level Government official.The Department of Justice certainly didn’t investigate Donald Trump. It didn’t have to. It never had to. Donald Trump isn’t a criminal. The Department of Justice never suspected he was. The Department of Justice had never thought or insinuated that Trump had ever violated federal law. The Department of Justice never had reason to suspect Trump had violated federal law. Moreover, the mainstream media itself never suggested that Donald Trump had violated federal law. It would like to. It can’t. Any mainstream news source that said or intimated that Trump had violated federal law would face a lawsuit for libel. The mainstream media cannot make the same claim of Hillary Rodham Clinton. So it chooses to remain silent on the issue of Clinton's likely criminality, glossing over her likely criminality as if  it never happened.The mainstream media continues its scurrilous attacks against Trump. Not a day goes by that the mainstream media doesn't attack Trump, repeatedly, repeating ad nauseam the same tired, vacuous remarks and leveling ridiculous, dubious accusation upon accusation upon him.  All the while, the mainstream media ignores the serious criminal charges the Justice Department had leveled against Hillary Rodham Clinton—charges immeasurably more serious than anything the media can throw and does incessantly throw at Trump.News commentators complain Donald Trump showed “bad taste,” having brought up the Clinton email server scandal during his acceptance speech. Really? The mainstream media suggests that electing the U.S. President is akin to attending an elegant dinner party, where invitees are expected to adhere to proper rules of etiquette and decorum. Yet, most distasteful is the prospect of electing a criminal to serve as President of the United States.Donald Trump does not face, never faced, and never had to face charges of criminal misconduct—misconduct that jeopardizes the security of this Nation. Hillary Clinton has faced charges of serious misconduct while serving as a Cabinet Level Officer in the Obama Administration. Her misbehavior as Secretary of State is of an order of magnitude far outstripping anything that one might claim of Donald Trump. Indeed, The Bill and Hillary Clinton Foundation continues to operate defiantly, most likely, illegally. The mainstream media remains oblivious to the seriousness of Hillary Clinton's obvious criminal conduct--contemptible conduct she will undoubtedly carry with her to the White House. Would President Hillary Clinton promulgate U.S. foreign and domestic policy benefitting foreign governments to the detriment of the U.S. because of money pouring into the Foundation? Has the Bill and Hillary Clinton Foundation influenced Obama’s foreign policies? Would Hillary Clinton conduct U.S. Government business on private servers? Is Hillary Clinton above the law?Why isn’t the mainstream media asking these questions and delving into these serious matters? What has become of investigative reporting in this Country? What can Congress do to demand accountability by the Executive Branch of Government? The Director of the F.B.I., James B. Comey, should have recommended indictment of Hillary Clinton. A recommendation of indictment follows consistently and decisively from Comey’s recitation of Clinton’s crimes under the United States Code. But, Comey, mysteriously and oddly, did not indict her.The Attorney General, Loretta Lynch, should have indicted Hillary Clinton, even absent a recommendation of indictment. For, the Attorney General need not adhere to the Director’s recommendation. But, the Attorney General did not indict Clinton.Miscarriages of justice happen, true. When they do, that is regrettable, more so if avoidable. The Nation adjusts to miscarriages of justice, although reluctantly. But the American people cannot cavalierly dismiss or ignore some miscarriages of justice. We cannot do so because some criminal conduct of high ranking public officials, if not corrected, can fracture the fabric of a free Republic. These are serious miscarriages of justice. Serious miscarriages of justice cry out for redress. The Hillary Clinton email and Bill and Hillary Clinton foundation scandals are among those miscarriages of justice that this Nation ought not and cannot ignore. They are too large in scale, too many, too serious to shrug off.Were Clinton to slink off the campaign stage, before the Democratic Party convention, she must still answer for her misdeeds. For Clinton to accept her Party’s nomination is difficult to fathom, too absurd to imagine, singularly bizarre to ponder.You may like Hillary Clinton or loathe her. You may agree with her or not—inveterate liar as she is. In either case, a likely criminal cannot serve as United States President. The American People cannot allow this to happen. For, the sake of the Republic and the preservation of our Bill of Rights, this must not happen.The Nation’s Executive Branch will do nothing to stop Clinton’s nomination. This, we have learned. This we know. Indeed, the Executive Branch, under Barack Obama, has a vested interest in a Clinton Presidency. This, too, we know. The mainstream media has acknowledged this. Through a Hillary Clinton Presidency Obama's legacy will be ensured and enshrined and furthered.The Nation’s Legislative and Judicial Branches of Government can stop the ensuing travesty. The Nation’s Legislative and Judicial Branches can prevent a serious miscarriage of justice. But, if the Legislative and Judicial Branches act, they must act now, not after Hillary Clinton secures the White House.When the U.S. Department of Justice fails to perform its duties, where does that leave the Nation? Where does the Nation find redress? And, redress this Nation must find.What, exactly, can Congress and the U.S. Supreme Court do? If Congress and the U.S. Supreme Court do nothing and if Hillary Clinton wins the election, becoming United States President Hillary Clinton, Congress can immediately impeach Clinton for high crimes and misdemeanors. The U.S. Constitution prescribes a means for removal of a U.S. President and other high ranking Government Officials. Article II, Section 4 sets forth: “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.” Article I, Section 3 says,“The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.”  Yet, the prospect of impeaching Hillary Clinton the moment she takes the oath of Office will not sit well with many. That will not sit well with Senate and House Democrats. That will not sit well with the mainstream media. That will not sit well with shadowy, sinister power brokers who lurk in the shadows. That will not sit well with a slice of the populace, including among others, illegal immigrants, members of the Muslim community, and those who look forward to a constant influx of welfare checks. The media would stir to a frenzy those members of the populace who seek special favors.The founders of our Republic apparently felt impeachment a tenable tool for dealing with criminals in Government. If that didn’t work they felt the public could keep them out in the next election. The founders obviously didn’t consider the prospect of voting a criminal into Office. They obviously didn't believe the public could be that naïve. They didn't seriously consider how a free Press would devolve into a tool of secretive power brokers who have their own agenda--one contrary to the well-being of the United States as an independent, sovereign Nation--an agenda antagonistic to the well-being of hard-working honest citizens.What can be done, assuming Clinton becomes the 45th U.S. President? Apart from instituting—or attempting to institute—impeachment proceedings against Hillary Clinton, the day she’s sworn in--an unlikely scenario--and, given that the Department of Justice refuses to do its duty, can Congress institute an ordinary criminal action against a sitting President, apart from conducting impeachment proceedings or concomitantly with the instituting of impeachment proceedings? This is possible but highly unlikely.Congress has another recourse to bring Hillary Clinton to justice--an option more workable than attempting to unseat a sitting President: appointment of independent counsel who can reopen the investigation into Hillary Clinton's conduct as Secretary of State and who can bring criminal charges against Clinton before she becomes President of the United States. If Hillary Clinton becomes U.S. President that will be a disastrous outcome for this Country—but it is an outcome that is looking disturbingly and depressingly inevitable. Counsel, outside of Government, unshackled from Government, unbeholden to the President, incorruptible, must investigate Hillary Clinton anew, and outside counsel must do so at once!Unfortunately, the United States Constitution--although expressly providing for impeachment of high level Government officials, including and most notably the President of the United States--doesn’t expressly provide for appointment of attorneys outside Government to investigate and prosecute crime and corruption at the highest levels of Government.The Department of Justice, a component of the Executive Branch, is taxed with the administration of Justice. But, reliance on the Department of Justice to root out corruption and prosecute serious crimes against high ranking public officials—including and particularly, the President, the Vice-President, and Cabinet level Officials remains problematic.The Attorney General is the Nation’s top prosecutor. The Director of the F.B.I. is the Nation’s top police officer. Both the Attorney General and the Director of the F.B.I. are political appointees. The President of the United States appoints both. They serve at his pleasure. Yes, the two top law enforcement officers of the Nation swear to enforce our Nation’s laws, but to whom do these two top law enforcement officers truly owe their loyalty, their fidelity, ultimately? To the President and his Administration or to the U.S. Constitution and the People of the United States? One cannot but wonder.The Attorney General, Loretta Lynch, won’t indict Hillary Rodham Clinton, notwithstanding substantial damning evidence against her—evidence clearly warranting her indictment on serious criminal charges.  The Director of the F.B.I., James Comey, didn't recommend an indictment of Hillary Clinton, notwithstanding and, curiously, in contradistinction to the damning evidence he cited against her in his unprecedented July 5, 2016 statement to the American People--evidence strongly suggesting the F.B.I. Director's strong desire to recommend indictment of Hillary Clinton. He wouldn't do so. Was he coerced? Americans may never know. We do know that Hillary Clinton should not escape justice. She thinks she has. She thinks she is above the law. If Congress doesn't act, then Hillary Clinton may be right about that.It is clear that only someone outside of Government, untainted by Government, and beyond the reach of and, therefore, beyond the influence of both the U.S. President and shadowy, powerful interests can and must mete out justice now.At one time Congress had the answer. At one time in our Nation’s history, Congress had enacted a law and did use that law to demand accountability of the Chief Executive and his officials. But what are the mechanics for meting out justice? It’s complicated. In the next article the Arbalest Quarrel explains the mechanics of the Congressional Act that Congress once used to require integrity of Executive Branch Officials. It is a Congressional Act that can yet derail Hillary Clinton's aspirations to secure the Nation's highest Office--but only if Congress has the will and courage to reenact it.[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.

SMART GUNS ARE NOT A SMART IDEA!

Stephen L. D’Andrilli, on behalf of the Arbalest Quarrel, a weblog devoted to educating the public on the meaning of State and federal firearms’ legislation, will attend “The New York City Smart Gun Symposium.” The Symposium will be held at the Brooklyn Borough Hall on August 2^nd, from 11am to 2pm. The address is: Brooklyn Borough Hall 209 Joralemon St, Brooklyn, NY 11201.Stephen D’Andrilli looks forward to joining the discussion. Stephen knows gun issues. He is happy to explain the Arbalest Quarrel’s position on “smart guns” and is available to answer questions participants in the Symposium may have about Arbalest Quarrel’s position on smart guns.Expecting questions the Arbalest Quarrel presents the following paper, directed to the politics behind the antigun establishment’s push for smart guns.

THE ARBALEST QUARREL’S POSITION ON “SMART GUNS”

Among the latest restrictive gun proposals are those involving adoption of so-called “smart guns”—the subject of this symposium. But, when considering adoption of smart guns—or any restrictive gun proposal—we must not lose sight of one important fact. Antigun ideologues shape thoughts, impressions, and beliefs about guns through propagation of lies. They broadcast lies to the masses through meaningless sound bites, repeated constantly through the mainstream media. Take the expression, ‘smart gun.’ The expression, ‘smart gun,’ is a derivative of the coined word, ‘smart phone’ and, not improbably, ‘smart bomb.’ Antigun ideologues seek to create an impression about smart guns that is at odds with the truth about them.But, what is a smart gun? NRA explains. “Conceptually, a ‘smart’ gun is one that incorporates technology that would prevent the gun from being used by an unauthorized person. Currently, no viable guns equipped with such technology exist.”Apart from technical matters relating to the production of smart guns, we must not lose sight of the political motivations percolating around smart guns.The expression ‘smart gun,’ as created and employed by antigun ideologues, is a meme, a mental virus. But what does the expression, ‘smart gun,’ suggest?Adding the adjective ‘smart’ to the noun, ‘gun,’ suggests to the mind—as those who coined the word and thrust it on the public consciousness, hope and obviously intended—that application of so-called smart gun technology to gun manufacturing makes a firearm in some sense better.To the antigun ideologue any gun that is not a ‘smart gun’ is, ipso facto, a ‘dumb’ gun. They don’t say this. That is implied. Consider why would someone want a simple, dumb phone, when one could do more with a smart phone? Similarly, who would want a dumb gun when a person can own and possess a smart gun? What kind of a firearm would any sensible person want if a person wishes to own and possess a firearm at all? Would that person want a smart gun or a dumb gun? These are the tacit questions posited by antigun ideologues.But, we must first ask: does adoption of smart technology to the production of guns truly produce a better gun? If so, in what way? We might analogize smart guns to smart phones. But the analogy between a smart phone and a smart gun is a false one. A user of a smart phone prefers a smart phone to a phone that does not incorporate smart technology because smart phone technology incorporates more features that its users want. But, with gun technology, the user isn’t looking for a device with multiple features and capabilities. In fact, simplicity generally, if not invariably, is preferred to complexity in gun technology.Of course, all guns employ technology of some sort. Firearms are technological instruments: from the earliest wheel locks and flintlocks to modern revolvers and semiautomatic weapons. But, if firearms don’t employ the new “smart” technology, they are deemed unsophisticated.The idea conveyed is that unsophisticated guns employ dumb technology. But, dumb in what sense? Are such guns dumb, as the proponents of smart guns may argue, because such guns are deemed unsafe? But, unsafe in what way? In what manner? And, unsafe to whom and under what circumstances? Antigun ideologues consider safety from the standpoint of preventing unauthorized use of firearms. That is one context. There are others.Are smart guns safer in handling or in operation, say, than guns that do not incorporate smart technology? Might not a smart gun, in an emergency, be unsafe where a dumb gun is safe? Suppose a law-abiding citizen and gun owner finds his smart gun failing to work in an emergency. Or suppose that, for the smart gun to work, the gun owner must engage multiple operations. Can the antigun ideologue continue to maintain justifiably, rationally, that the smart gun is after all a safe gun—as if safety, in one context—preventing unauthorized use of the gun—has overriding significance even if the gun doesn’t work at a time when the authorized gun owner needs the gun to work or if the smart gun requires the authorized gun owner to know the intricacies of his or her smart gun—at a time when the gun owner is in a stressful situation and is counting on the gun to work?      In some contexts, at least, the smart gun is truly the dumb gun and the dumb gun is really the smart gun. The antigun ideologue ought not to be surprised that the law-abiding gun owner places more assurance in, say, his or her stock Smith and Wesson revolver handgun or in his or her stock Glock semiautomatic pistol.The point is that a gun has little if any use if it isn’t reliable and if it can’t be utilized immediately and easily in an emergency.Reliability and ease of use of a device—any device—is certainly at least as important as safety. For, if a device isn’t reliable, of what use does it have. And, if a device isn’t easy to use—that is to say, if the device requires multiple gyrations on the part of its user before the user gets it to work—won’t that user prefer a simpler device.It isn’t coincidental that smart gun technology is being pushed on the public by those who oppose guns in civilian hands. Let’s not be coy about this. Antigun ideologues don’t want civilians to own and possess any gun. This is no secret. They’ll tell you that.Antigun ideologues push smart gun technology on the ground, as they argue, that smart guns are better guns than ordinary guns—dumb guns—that don’t incorporate smart technology. But that doesn’t mean antigun ideologues think smart guns are as reliable as dumb guns or that smart gun technology allows for ease of use.The word, ‘better,’ doesn’t necessarily imply ‘reliability’ or ‘ease of use.’ Antigun ideologues don’t know if smart guns are as reliable as guns that don’t incorporate smart technology. Indeed, they don’t know if smart guns are reliable at all. Frankly, they don’t care; nor do they care that smart guns are more intricate than guns that don’t incorporate the smart technology; nor do they care whether smart guns happen to be more difficult to operate than guns that do not incorporate the smart technology.Antigun ideologues’ aim is to render a gun inoperable if the gun falls into the wrong hands. That is what they want from a gun. That is the only thing they want and expect from a gun. Unfortunately, the concern of antigun ideologues does not extend to issues of reliability and ease of use for the authorized user—which are concerns certainly of importance to the authorized user. But, then, antigun ideologues are not individuals who seek to own and possess firearms. So, they would prefer that guns were merely props—unworkable devices, incapable of use by anyone.You will note that antigun ideologues don’t suggest that police and the military adopt smart technology in the weapons they use. Why is that? And, you don’t hear police departments and the military clamoring for the adoption of smart guns for their personnel. There is obviously a good reason for that.Now, antigun ideologues will invariably argue that the needs of the police and military differ from the needs of civilians. Regardless, one would expect, at the very least, that one’s firearm is reliable for the need at hand and allows for ease of use—no less so for the civilian than for the police officer and for the soldier.But antigun ideologues oppose civilian gun ownership on multiple grounds, including aesthetics. They argue that guns in the hands of civilians are unnecessary, unwholesome, dangerous, and even evil if one can legitimately call an inanimate object, “evil.”They seek to impose draconian gun laws, including application of unproven smart gun technology, on millions of rational, law-abiding, responsible gun owners. They wish to restrain and constrain the sacred right of millions of sane, rational, responsible law-abiding gun owners due to the reprehensible actions of criminals, lunatics, and terrorists among us who are routinely treated by the Obama Administration with “kid gloves.”Why should government be in the business of imposing smart gun technology on the public at all? If smart gun technology is to become commonplace in society, then that should come about because the gun buying public prefers it, even demands it. But demand or preference for a product or service in a capitalist society operates through the free market economy. If the gun-buying public wishes to own and possess smart guns, gun manufacturers will produce them. But government should not force gun manufacturers to manufacture guns they do not wish to make. And government should not restrict the buying options of the public to those firearms the public doesn’t wish to buy.Application of smart gun technology to firearms is not something law-abiding citizens who own and possess firearms want. It is, rather, something the Obama Administration—and antigun ideologues, who have no desire to own and possess a firearm themselves—seek to thrust on everyone else.Adoption of smart gun technology is not market driven; it is politically driven, based on personal bias, motivated by one segment of society’s personal agenda.If Americans wish to own and possess guns as is their natural right, as codified in the U.S. Constitution, on what legal ground—irrespective of personal morality, political ideology, aesthetic sensibility, or social consideration—might Congress or the State legislatures rely if they seek to compel Americans either to accept ‘smart gun’ technology or surrender—eventually and inevitably—their Constitutional right to possess firearms at all?[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.

HILLARY CLINTON MUST BE INDICTED AND HERE’S THE JUSTIFICATION FOR IT.

HILLARY CLINTON EXEMPLIFIES CORRUPT LEADERSHIP AND THE AMERICAN CONSTITUTION SUFFERS BECAUSE OF IT

Joseph smiled his tight and bitter smile. ‘What does any man, in his heart, really want? Power. Hypocrites scream ideologies and slogans to gain it over the gullible and what I like to call the “pure in hearts.” But my—friends—have no ideologies though they will solemnly use those of others if it serves them. They are men of many interests, politicians, merchant chiefs, mine owners, industrialists, bankers, railroaders, oilmen, shipbuilders and owners, munitions makers, men of inherited wealth, shipbuilders and owners, munitions makers, men of inherited wealth, men of illustrious family both here and abroad, princes, if you will. Landowners. They have several things in common: None is devoted to his particular country. None cares about the people’s welfare in any nation. All are avaricious, beyond the avarice of the general public to comprehend. All are sublime egotists. All are enemies of what you would call freedom. They want to rule, each in his own sphere, cooperating with the others. They want to be the Elite, with absolute authority over the lives and deaths and destinies of the world. At heart, they are all Robespierres, Dantons, Mirabeaus, Jacobins.” Excerpt from Captains And The Kings, (published 1972), by Taylor Caldwell, Chapter 31One thing is clear and irrefutable. Hillary Clinton is unfit to be President of the United States. However you slice and dice it, a substantive F.B.I. investigation into Clinton’s conduct as Secretary of State is sufficient reason to strike her name from consideration as a viable candidate for U.S. President. Failure of the F.B.I. Director, James B. Comey, to recommend indictment of Hillary Clinton on federal criminal charges is second to the import of the investigation itself and what the investigation uncovered. The mainstream media doesn’t even mention the impact a criminal investigation into the conduct a Cabinet level Official ought to warrant. Instead, the mainstream media focuses solely on the Director’s decision. The mainstream media has sought, in recent years, to distract the public, not to inform it. Why is that?Moral failures galore exist here. Hillary Clinton should have had the good sense and decency to drop out of the race. She could and should have done so for the well-being of the Country and for the sake of the American People. She did not. That she failed to do so, the Democratic Party should have demanded she drop out of the race. The Party did not.The F.B.I. Director, James B. Comey, should have followed his reason and recommended indictment of Hillary Rodham Clinton on federal criminal charges. He did not. The Attorney General, Loretta Lynch should have indicted Hillary Clinton, regardless of the F.B.I.’s recommendation. She could have done so. She did not.The sitting President of the United States, Barack Obama, should not be campaigning on behalf of Hillary Clinton—regardless of Comey’s decision not to recommend indictment—given the sheer volume of the evidence against her and its dire nature. Instead he campaigns on her behalf, standing at her side.Bernie Sanders should have withheld his endorsement of Hillary Clinton. He endorsed her anyway, to the chagrin of millions of Americans who placed faith in him.

THE DANGER POSED BY A CLINTON PRESIDENCY

Supporters of Hillary Clinton, including the present U.S. President, and, recently, U.S. Senator, Bernie Sanders—along with Hillary Clinton’s retinue of image makers—portray Clinton as something she is not, never was, and, never could be—someone who cares about the well-being of this Nation; someone who would defend the Bill of Rights.Supporters of Hillary Clinton portray her as one concerned over the plight of millions of illegal aliens. But these illegal aliens, having snuck across our borders, have no legitimate right to remain here. They portray Hillary Clinton as someone concerned over the plight of Americans—Americans who seek constant handouts from the Federal Government. Yet, her supporters ignore the tax burden those Americans place on millions of other Americans who take responsibility for their own actions, for their own lives. They portray Clinton as someone concerned over the plight of disaffected Islamists from the Middle East whom she would bring to this Country in droves. Yet they ignore the threat posed by radical Islam—a threat that isn’t lost on anyone here or abroad.Hillary Clinton’s image makers portray Hillary Clinton as a Savior. She is nothing of the kind. Hillary Clinton feigns service to this Nation. She serves only herself and those seditious, treacherous interests that lurk in the shadows. She pretends to vouchsafe our rights and liberties. But she would destroy them. Freedom of speech would be curtailed. The right to keep and bear arms would be obliterated. Americans right to privacy would continue to be invaded, even as Clinton’s own actions would be cloaked in perpetual secrecy.

WHY HAS A LIKELY CRIMINAL EVADED A PROPER ACCOUNTING FOR HER ACTIONS?

People may speculate on Comey’s reluctance to recommend indictment of Hillary Clinton on federal criminal charges. His failure to do so is sinful. His failure to do so has resulted in a cascade of sins committed by others.Comey’s damning litany of Hillary Clinton’s criminal conduct as Secretary of State screams out for her indictment. James Comey’s arguments against recommendation—when juxtaposed with the evidence for indictment outlined in his July 5, 2016 public statement to the American people—are lame and paltry, perhaps deliberately so. Was Comey telling the American People, though obliquely, that both he, and the Bureau and, by extension, the entire Justice Department, have been compromised? Possibly.

WHAT MIGHT CONGRESS DO?

What can Congress do to right a grievous wrong? Over three decades ago, Congress enacted laws to appoint independent counsel—often referred to as ‘special prosecutors’—to lead investigations into the wrongdoing of officials at the highest levels of government.The Arbalest Quarrel commenced a study of special prosecutorial appointment—the history behind it, the reasons for it, and the present status of it. The Arbalest Quarrel undertook this study to determine whether, through appointment of a special prosecutor, having independent authority, he or she might undertake a new investigation of Hillary Clinton’s bizarre conduct. This is necessary because of the Justice Department’s reluctance—for whatever reason—to “mete out justice.”A special prosecutor would undertake a review of the F.B.I.’s files. A special prosecutor and his team would have complete access to those files. A special prosecutor and his team would be unbound by the conclusions reached and decisions made by the F.B.I. Director and by the Attorney General. A special prosecutor and his team would operate independently of and beyond the reach of any Executive Department Official, including that of the U.S. President.A special prosecutor and his team would wield subpoena power and use of that subpoena power would be unconstrained. A special prosecutor would answer only to Congress.Specifically, a special prosecutor and his team would undertake an independent investigation of Hillary Clinton’s dubious activities as Secretary of State under Barack Obama. Both he and his team would investigate Clinton’s use of private email servers to conduct official Government business. Both he and his team would investigate foreign governments gaining access to that information. Both he and his team would review anew Hillary Clinton’s true motives behind her use of private email servers to conduct official Government business.A special prosecutor and his team would attempt to answer several important—even imperative—questions. Did Hillary Clinton’s use of private emails servers bespeak an intent to hide her activities from the American public? If so, that demonstrates intent to mishandle classified Government information, negating James Comey’s conclusion that Hillary Clinton did not intend to mishandle classified Government information. Why did Hillary Clinton destroy official Government records? James Comey made plain she attempted to destroy Government information. That she did so also demonstrates intent. Did she do this to avoid having Government information, pertaining to her actions as Secretary of State, deposited in the National Archives? If so, why? Did she do this to avoid having her activities recorded for posterity? If so, why? Was she aware, perhaps, that her policy decisions were contrary to the well-being of our Nation and to its People? If so, that would explain why she sought to use private email servers—even at the risk that such servers could not be properly secured—giving hackers relatively easy access.The special prosecutor and his team would review anew Hillary Clinton’s decision to lie to the F.B.I. and would string together the nature of those lies. The special prosecutor and his team would review anew the true purpose behind the Clinton Foundation. Is the Clinton Foundation a “front?” From whom did the Clinton Foundation receive and accept tens of millions and even hundreds of millions of dollars? Have some come from foreign governments and from wealthy, powerful individuals both at home and abroad? If so, have those governments and individuals paid the Clintons, through the Foundation, exorbitant monies to influence U.S. foreign and domestic policy? If so, has this influence peddling influenced foreign and domestic policy? Do the Clintons have sway over Obama? Have both Hillary and Bill Clinton attempted to cover up their Foundation’s activities from the American People?Have foreign governments hacked into Hillary Clinton’s private email servers? If so, have foreign governments obtained insight into State Department and Executive Office foreign policy analyses and decisions.Consider, did Russia’s President, Vladimir Putin, enter the Mideast conflict, defending Bashar al-Assad’s regime, on the basis of information gleaned from Hillary Clinton’s private email servers? Were Hillary Clinton to become the 45^th President of the United States, would she commence use of private email servers again? If so, who in Government could stop her? Who, in Government would even know she was using private email servers to conduct Government business, at the highest level of Government?Clearly, the activities of the Executive Branch of the U.S. Government are suspect. Recent pronouncements from the mouth of a U.S. Supreme Court Justice in the Judicial Branch, Ruth Bader Ginsburg, cast aspersions on that Branch too. Ginsburg’s assertions against a candidate for U.S. President are unprecedented and inappropriate. Both the tone of those assertions and the mere fact of them should give Americans pause.On the basis of independent review of F.B.I. files and on the basis of new discovery, Congress may be in the position to answer many critical questionsNever in our history have we faced the prospect of a person gaining access to the highest Office in the Land under a cloud of suspected criminal activity. Sure, past U.S. Presidents and our present U.S. President have acted in ways that draw serious attention to the legitimacy of their actions. But, never have the American people suffered the possibility of a dubious character occupying the highest seat in the Land, before the fact. This is an outrage to every American voter.  What can Congress do? In the past Congress relied on independent counsel, removed from the Executive Branch of Government and, therefore, beyond the influence of Government officials.

THE HISTORY OF SPECIAL PROSECUTORS*

Using special prosecutors had its birth in the 1970s, during the “Watergate” era. The Office of the U.S. President had become increasingly powerful. Congress sought to check abuses of the President. Congress feared encroachment of an “Imperial Presidency” with immunities and powers that had grown excessive and unchecked. To place a measure of control on the Presidency, Congress enacted several laws to give Congress oversight over the Chief Executive. One of those and of great importance here is The Ethics in Government Act of 1978. This Act authorizes independent special prosecutors to investigate and prosecute crimes by high officials.”The Department of Justice challenged this Act and other companion Acts when Congress first proposed the Ethics in Government Act of 1978. Through, the years, the Department of Justice has continued to challenge the Act.The Ethics in Government Act of 1978 Act has had a tumultuous history. Bill Clinton’s Administration had originally supported the Act. But, when special prosecutors investigated five members of Bill Clinton’s Cabinet, pursuant to their authority under the Act, Clinton abandoned his support for it. So, once the Act came up for renewal, in 1999, the Act lapsed.

NO LEGAL MECHANISM EXISTS TODAY TO BRING TO JUSTICE CABINET LEVEL OFFICERS OF THE EXECUTIVE BRANCH WHEN THOSE CABINET LEVEL OFFICERS VIOLATE FEDERAL LAW AND THE DEPARTMENT OF JUSTICE--A DEPARTMENT THAT FALLS WITHIN THE EXECUTIVE BRANCH OF GOVERNMENT--IS EITHER UNWILLING TO ACT TO BRING THOSE CABINET LEVEL OFFICERS TO JUSTICE BECAUSE THOSE HIGH LEVEL OFFICIALS WITHIN THE JUSTICE DEPARTMENT ITSELF HAVE BEEN CORRUPTED OR THE JUSTICE DEPARTMENT IS UNABLE TO ACT BECAUSE HIGH LEVEL JUSTICE DEPARTMENT OFFICIALS HAVE BEEN PERSONALLY COMPROMISED.

Absent Congressional action, no legal mechanism exists today by which independent counsel, as special prosecutors, unconnected with the Executive Branch of the Federal Government, may investigate and prosecute corruption and felony crimes of those serving in the highest Offices of the Executive Branch. The U.S. Constitution doesn’t provide a framework for appointment of special prosecutors, and some legal experts question the constitutionality of their use.But, then, if the Executive Branch, overseen by the United States President, has exclusive and unfettered control over the administration of law, and if Cabinet level Officials, appointed by the President, break the law, it behooves Congress to take action if the Executive Branch cannot or will not do so. More to the point, if Justice Department Officials alone may investigate and prosecute crimes of Officials in Government, what can Congress do if those same Justice Department Officials—the principal prosecutors of crime and corruption in Government—have themselves been compromised and cannot do their jobs effectively?

WHERE DOES THAT LEAVE THE AMERICAN PEOPLE AND WHAT CAN CONGRESS DO TO RIGHT A GRIEVOUS WRONG?

Since the Justice Department refuses to indict Hillary Clinton on federal criminal charges—notwithstanding that evidence elicited by James Comey warrants indictment—indictment won’t proceed without Congressional action. Does Congress have the backbone to reauthorize The Ethics in Government Act of 1978 or enact another law like it?The paramount question of Constitutional law is this: Can Congress enact a law, allowing the Legislative Branch, itself, to appoint a special prosecutor? Would that law pass Constitutional muster? In other words, can the Legislative Branch of our Government lawfully take upon itself the administering of law if the Executive Branch is unwilling to do so or incapable of doing so? Would not Congressional administrating of law conflict with the Separation of Powers doctrine? The Separation of Powers doctrine mandates that all executive functions of Government emanate and operate from and through the Executive Branch just as all legislative functions of Government emanate and operate through the Legislative Branch of Government. The administering of law is an Executive function, not a Legislative one.The American People face a serious conundrum. How does this Nation deal with an Executive Branch run amok? The founders didn’t deal squarely with this question when they drafted our Constitution. They created no mechanism in the Constitution that allows for independent administrative review of Executive Department officials’ actions by Congress when Cabinet level Officials in the Executive Branch commit grievous wrongs, in contradistinction to their oath of Office.The founders of our Nation evidently didn’t consider that corruption in the Executive Branch could be pervasive. The founders of our Nation evidently did not truly believe the American People could be duped into electing, to the highest Office in the Land, a person of questionable moral character, a person capable of treachery, a person who not only is willing and able to commit a felony but who, most likely, has done so.We continue to explore these matters in forthcoming articles.________________________*The information provided in this section summarizes or paraphrases material obtained from the following two academic sources: “The Unitary Executive in the Modern Era,” 1945-2004, 90 Iowa L. Rev. 601, January 2005, Christopher S. Yoo, Associate Professor of Law, Vanderbilt University, Steven G. Calabresi, Professor of Law, Northwestern University, and Anthony J. Colangelo, Associate, Cleary Gottlieb Steen & Hamilton, LLP; and “The Constitutionality Of Independent Officers As Checks On Abuses Of Executive Power,” 16 U. Mich. J. L. Reform 45, Fall 1982, Donald J. Simon, Associate, Sonosky, Chambers, Sachse & Guido, Washington, D.C.[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.

HILLARY’S ‘SMOKING GUN’ CANNOT BE UNDONE

“Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” ~ Thomas PaineLost in the moment of the Dallas shooting tragedy is the serious matter of Hillary Rodham Clinton’s mishandling of official Government information. Many are those who would excuse this conduct. Most citizens likely would not. No American should.As awful as the gunning down of police officers by a lunatic is to contemplate, our Country, a Sovereign Nation, grounded upon a system of laws and a Bill of Rights, can survive this tragedy and others like it. Police departments around the Country can cope with lunatics, criminals, and terrorists if politicians in Washington D.C. would not second-guess police officers’ actions and if they would restrain themselves from running roughshod over them, and let due process take its course.But, can this Nation cope with a renegade ex-Secretary of State occupying the White House? It is more than doubtful. If Hillary Rodham Clinton becomes the 45^th President of the United States, she will have the willingness and power to undermine the Constitution, more than any U.S. President in recent times, beginning with the Second Amendment. The scorn she holds for our Second Amendment is evident. The American People know exactly where she stands on gun possession and gun ownership in this Country.The damage she might do is not only limited by her determination and desires but by the powers she would wield as U.S. President. Those powers she would wield as President would be second to none. She would control the vast intelligence apparatuses, the military, and the federal police forces. She would mold public education and even exert control over mass media.Should Congress fail to yield to her devious determination, ex-Secretary of State Hillary Clinton, as United States President Hillary Clinton, would make law through executive fiat. Hillary Clinton has proved, time and again, she does not respect “the rule of law”—the bedrock of our Nation. Yet, we are a Nation grounded on the rule of law, as our founders intended. Our Nation is not grounded on rule by mere mortal men (or women).Mrs. Clinton’s behavior as Secretary of State makes up “Exhibit A” of her willingness to break the law. We see this through her obvious incompetency, through her disrespect for our Nation’s laws, and through the harm she would inflict on this Country—harm she would inflict on our Country with abandon and alacrity. Mrs. Clinton’s behavior as Secretary of State should serve as a warning to the American People. For, as she has operated as Secretary of State—as someone who perceives herself well above the law—so she will most certainly operate as President of the United States. Hillary Clinton’s actions as Secretary of State presage her actions as U.S. President.The mainstream media says F.B.I. Director, James B. Comey, determined—after investigating Hillary Clinton’s use of several private email servers to conduct official Government business—that Clinton committed no crime. The mainstream media says this because Comey told the American public, in his July 5, 2016 statement, that he will recommend, to the Attorney General, that no criminal charges be filed against Hillary Rodham Clinton.The mainstream media has it wrong. The mainstream media is misleading the public. The F.B.I. Director’s recommendation to the Attorney General not to indict Hillary Clinton on criminal charges does not, ipso facto, mean Hillary committed no crime. The F.B.I. Director, James B. Comey said no such thing, nor did he intimate any such thing. The F.B.I. Director said, in his July 5, 2016 statement to the American People, though tacitly, that Hillary Clinton did commit a crime; that she had, in fact, committed a crime continuously over several years. Further, the F.B.I. Director said, though tacitly, that Hillary Clinton’s conduct amounted to a felony—that she committed a felony repeatedly.The F.B.I. Director’s recitation of a long list of Hillary Clinton’s criminal misdeeds make these points abundantly clear. Cataloging Hillary Clinton’s misdeeds in a public statement for the American People is the primary purpose for the F.B.I. Director’s unprecedented public statement to the American People. Comey intended that such evidence of Clinton’s criminal misdeeds be made manifestly clear to the American People. The tacit question posed to the American People as implied through Comey’s recitation of Clinton’s criminal misdeeds is this: Is Hillary Rodham Clinton a person whom American citizens truly wish to represent both them and their Country?James Comey, F.B.I. Director, the top police official in the Land, intended for the American People to understand, full well, Clinton’s culpability for her actions. Contrary to some commentators’ remarks, Comey’s statement to the American People is not a political stunt. It isn’t grandstanding. The F.B.I. Director delivered his statement in deadly earnest.Comey sets out, clearly, cogently, comprehensively, categorically, and convincingly a litany of damning evidence against Hillary Rodham Clinton. Listening to Comey’s lengthy delineation of Hillary Clinton’s wrongful conduct as Secretary of State, one expects him to conclude with something like this:“I will make the following recommendation to the Attorney General: In the F.B.I.’s estimation, after conducting an extensive investigation of Hillary Rodham Clinton’s actions, in which she used several private email servers, exclusively and continuously over a period of years, to conduct official Government business, in her capacity as Secretary of State, a Cabinet level position, under the U.S. President, Barack Obama, the F.B.I. concludes that Hillary Rodham Clinton did in fact violate—either with actual knowledge of the wrongful, criminal nature of her actions and conduct in the handling of classified information, or through gross negligence in the handling of classified information—Section 793 of the United States Code, captioned, ‘Gathering, transmitting, or losing defense information,’ that falls under Chapter 37 of the United States Code, captioned, ‘Espionage and Censorship,’ of Title 18 of the United States Code, captioned, ‘Crimes and Criminal Procedure.’ As Director of the F.B.I., I, James B. Comey, do therefore recommend to the Attorney General that Hillary Rodham Clinton be indicted and prosecuted forthwith for the aforesaid federal crime, having forsaken her duty to the United States Constitution and to the American People.”But Comey made no such recommendation to the Attorney General. This much we know. This he made clear. To the contrary, after reciting a lengthy list of criminal misconduct by Hillary Clinton, Comey asserted, singularly incongruously, that he would recommend to the Attorney General that no criminal charges be brought against Hillary Rodham Clinton.The F.B.I. Director made this assessment of Hillary Clinton’s actions: She was “extremely careless” in her handling of classified Government documents. Still, notwithstanding his failure to recommend indictment of Hillary Clinton on criminal charges, the Director never said—nor did he imply—that Hillary Clinton had not committed a crime. The tacit conclusion to be drawn from the F.B.I. Director’s statement was that Hillary Clinton did commit a crime.Failure to recommend indictment is not equivalent to and is not indicative of an absence of criminal conduct; and, failure to recommend indictment does not entail lack of evidence of criminal conduct. In this instance, upon the cataloging of a laundry list of criminal misconduct on the part of Hillary Clinton, James Comey makes Hillary Clinton’s criminal conduct patently clear. So, then, why didn’t the F.B.I. Director recommend bringing criminal charges against Clinton? He said he wouldn’t recommend indictment because, as he asserted, he didn’t believe that, among other things, Clinton’s criminal actions were prosecutable. That is an odd declaration to make and one that Rudy Giuliani, former New York City Mayor and a former United States Attorney, took immediate exception with. Giuliani said he was “shocked” by James Comey’s conclusion that Clinton’s actions were not prosecutable.More shocking still was Comey’s testimony before Congress. For, two days later, on July 7, 2016, in sworn testimony before the United States House Committee on Oversight and Government Reform, James Comey seemingly retracted his tacit conclusion that, in his estimation, Hillary Clinton did break the law. For he asserted, clearly, categorically and unequivocally—in contradistinction to his earlier statement to the American public—that, in his estimation, Hillary Clinton didn’t break the law.There is an obvious disconnect between James Comey’s statement to the American public on July 5, 2016 and his testimony before Congress just two days later. Second, there exists an obvious disconnect between Comey’s litany of evidence supporting indictment of Hillary Clinton and the flimsy arguments he makes against it. Third, concerning whether Hillary Clinton lied to the F.B.I., there’s also a clear disconnect between Comey’s testimony in response to questions posed by U.S. Congressman, Jason Chaffetz, Republican-Utah, and Chairman of the Committee conducting the Hearing, and questions posed to James Comey by U.S. Congressman, Trey Gowdy, Republican-South Carolina, at the same Hearing.U.S. Congressman Trey Gowdy chairs the Select Committee on Benghazi. His worked helped bring Clinton’s criminal handling of classified Government information to light.But that isn’t all. Since Clinton had lied to the F.B.I., she has also violated another federal law: 18 U.S.C. § 1001, which sets forth in pertinent part,“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . imprisoned not more than 8 years . . . or both.” So, there exists a basis to indict Clinton under federal Statute, apart from the matter of her mishandling of classified Government information. She lied outright to the F.B.I.Clinton carries within her an air of supreme imperiousness and a feeling of imperviousness to personal harm. Indictment on criminal charges for lying to the F.B.I. would certainly preclude Clinton from continuing her campaign. So why isn’t Hillary Clinton charged with lying to the F.B.I.?Recall, Martha Stewart—wealthy businesswoman and television personality—was sent to prison was sent to prison in 2004 precisely because she lied to the F.B.I. on a matter involving insider trading—a matter significantly less critical to our Nation’s well-being than the matter at hand. The Attorney General’s Office could forgive Martha Stewart for the crime of insider trading. But the Attorney General’s Office clearly would not forgive Stewart for lying to the F.B.I. Why, then, is our Justice Department so willing—so readily willing—to forgive Hillary Clinton for lying to the F.B.I.?Less known, but just as serious, is the matter of the F.B.I.’s criminal investigation into the nefarious goings-on of the “Clinton Foundation.” Mr. Chaffetz specifically asked the F.B.I. Director whether the investigation into Clinton’s use of a private email server to conduct Government business was tied into the F.B.I.’s investigation into the “Clinton Foundation.” Most curiously, James Comey refused to discuss that issue at all, simply responding essentially with a terse, no comment.Given inconsistencies and, in some instances, curt utterances and evident reticence of the F.B.I. Director, James Come, during his testimony before Congress on July 7, 2016, and, too, given the odd dissembling in messaging and peculiar dislocation of meaning in the statement he delivered to the American People on July 5, 2016, we conclude that hidden, nefarious forces are at work protecting Hillary Clinton—are protecting the Executive Branch of Government that President Barack Obama, at the moment, presides over. This amounts to a tremendous miscarriage of justice.There is one supreme maxim that dictates the actions of the Executive Branch of Government: The President of the United States “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” This is mandated by Article 2, Section 3 of the U.S. Constitution. By extension, as is certainly clear, this means that the entirety of the work force under the U.S. President—from the highest Cabinet Official to the lowliest office worker—is expected to faithfully execute the Laws of our Nation. President Barack Obama has chosen in many critical instances, not to do so; neither did Hillary Clinton who was appointed by him and who worked under him as Secretary of State; neither would Hillary Clinton, in her capacity as U.S. President Hillary Clinton. What can be done to remedy this dire state of affairs?The Attorney General, Loretta Lynch could, of course, have indicted Hillary Clinton on criminal charges, regardless of James Comey’s recommendation to not bring criminal charges against the ex-Secretary of State. The Attorney General isn’t bound to accept the recommendation of the F.B.I. Director because a recommendation is just that—a suggested course of action. A recommendation is not a command. The Attorney General’s Office conducts its own review of the F.B.I.’s files.But, Loretta Lynch won’t indict Hillary Clinton. That won’t happen because the Attorney General and the U.S. President, Barack Obama don’t want that to happen. Obviously, the two of them—the Attorney General and the U.S. President—never wanted that to happen. Indeed, they never intended for that to happen. So the President, Barack Obama, carries on as if the entire matter of Hillary Clinton’s criminal conduct never happened. He takes to the road, campaigning on behalf of and together with Hillary Clinton (“Birds of a feather flock together”). The Attorney General, for her part, is happy to have this matter behind her as well. And both Hillary Clinton and her campaign officials breathe a collective sigh of relief.Indictment of Hillary Clinton on criminal charges would likely occur only if the Director of the F.B.I., James Comey had recommended indictment. Loretta Lynch has remarked she would adhere to the Director of the F.B.I.’s recommendation. But she said this only after her clandestine meeting with Hillary Clinton’s husband, Bill, on July 2, 2016, came to light.The Attorney General realized the singular impropriety of that meeting, even as she tried to argue the innocuousness of it. It was only after that meeting came to light that Loretta Lynch said she would accept whatever recommendation the Director of the F.B.I. makes. What is left unsaid, because of this imbroglio, is that the Attorney General knew, as did the President of the United States, Barack Obama, that the Director would make “the right decision”—the only acceptable decision for Obama’s plans to have Hillary Clinton succeed him—that the F.B.I. Director would recommend to the Attorney General that no criminal charges be filed against Hillary Rodham Clinton.The American People face a sad—horrific—and inescapable truth. Wealthy, powerful, secretive, seditious elements within the United States and wealthy, powerful, secretive, insidious interests outside the United States, have, together, orchestrated a charade of justice. The U.S. Department of Justice and its salient enforcement arm, the F.B.I. has been compromised.Can Congress set things right? Specifically, can Congress appoint independent counsel? Can Congress appoint a special prosecutor or team of special prosecutors, to review the accumulated evidence in the F.B.I.’s files and, after duly investigating those files, make its own recommendation to Congress? If that special prosecutor deems an indictment of Hillary Rodham Clinton appropriate, and recommends indictment, can Congress then compel the Attorney General to indict Clinton? Much is at stake for the future of this Country and for our sacred Constitution. The thought of a likely criminal occupying the highest Office in the Land should give every American pause. A likely criminal occupying that Office is not only farcical, it is appalling.In the next article we look at the intricacies of the special prosecutor appointment process to ascertain if this is feasible—if anything can be done to override a serious travesty of justice.[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.  

F.B.I. DIRECTOR JAMES B. COMEY RELUCTANTLY GIVES HILLARY CLINTON A “GET OUT OF JAIL FREE CARD”

“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” Jonathan Swift“It is an old saying that the quickest way to ruin a military career is to mishandle money or classified documents. Military defense counsel do well to remember that most old sayings are true.” USALSA REPORT: Trial Defense Service Notes: Practical Aspects of Trying Cases Involving Classified Information, Major Joseph A. Woodruff, Fort Rucker Field Office, U.S. Army Trial Defense Service, U.S. Army Legal Services Agency (June, 1986)On Tuesday, July 5, 2016 the top police official in the Nation, FBI Director James B. Comey, told the American public the FBI would not recommend criminal indictment of Hillary Rodham Clinton. The complete text of Comey’s statement is available on the FBI’s website.The Director’s statement is divided into four parts. First, the Director explains the purpose for his “unusual statement.” Second, the Director explains the nature of the investigation. Third, he explains what the FBI found. Last, the Director explains the FBI’s decision.While seemingly straightforward, James Comey’s lengthy statement shows inconsistencies—due perhaps to his unease with the decision. Was he pressured? One cannot but wonder.Comey explains the investigation into Clinton’s use of a personal e-mail server to conduct Government business, “during her time as Secretary of State.” The depth and breadth of that investigation shows the enormity of Clinton’s detestable behavior.This is after all a criminal investigation. Comey makes that fact plain. He points out the investigation proceeded as a referral from the Intelligence Community Inspector General.“Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.”Comey doesn’t cite the federal Statute Hillary Clinton violated. It is this one: 18 U.S.C. § 793. Title 18 of the U.S. Code is titled “Crimes and Criminal Procedure.” 18 U.S.C. § 793 falls within Chapter 37. Chapter 37 is titled, “Espionage and Censorship.” 18 U.S.C. § 793 is titled, “Gathering, transmitting, or losing defense information.” Specifically, 18 U.S.C. § 793(f) and (g) reads, “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of his trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.”Clinton claims her use of a personal server—actually several personal, private servers—to store or transmit government business simply shows, at worst, poor judgment—something her hangers-on and toadies willingly concede. If so, that alone should preclude her from serving as U.S. President. Clinton also claims her use of a personal server to store and transmit Government business didn’t offend State Department policy. She’s wrong. It does. She says, too, use of a private server to conduct Government business doesn’t rise to the level of a crime. Actually, it does.Clinton suggests her behavior isn’t illegal because no federal crime pertains to the kind of behavior the F.B.I. investigated. Were that true, the F.B.I. would have no legal basis to investigate Clinton. But Clinton is wrong. Her actions and behavior fall precisely within violation of a specific federal criminal law, namely, 18 U.S.C. § 793(f). That Statute is the peg the FBI hangs its hat on when it commenced its investigation of Clinton’s use of a private server to conduct federal Government business.Oddly, after reciting both the nature and extent of Clinton’s actions, one expects the Director to recommend indictment of Clinton to the Attorney General, Loretta Lynch. He fails to do so. Understand, this does not mean Clinton didn’t violate 18 U.S.C. § 793(f). The Director of the F.B.I., James Comey, doesn’t say that. He never says that; nor does he intimate that. He does say,“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”So, the Director makes manifestly clear that Hillary Clinton did, in fact, commit a crime--a felony. She clearly violated 18 U.S.C. § 793(f). Still, concern and confusion reign over Director Comey’s decision because Comey doesn't follow through and recommend indictment of Hillary Clinton on the ground of the sheer quantity of damning evidence against Clinton and the serious nature of it which he lays out in exquisite and excruciating detail. But, why did Comey issue a statement to the American People if, after recitation of such damning evidence against Clinton, he forbears, entirely, from recommending indictment?  Why, especially, did he issue a statement abruptly following the F.B.I.’s interview of Clinton?Reporting on that interview, The New York Times stated, “It could take weeks or longer to reach a decision. . . .” It didn't. See, “F.B.I. Interviews Clinton over Private Email Server.” Amy Chozick, July 2, 2016. So the Times must have been taken aback when Comey responded with a public statement a few days later.The Director of the F.B.I. says “I think the American people deserve those details in a case of intense public interest.” He also says, “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.” Is that second assertion true? Perhaps. But, consider: Obama had made plans to campaign with and for Hillary Clinton in North Carolina later that day. They were both on their merry way to North Carolina when Comey delivered his statement to the American public.Comey asserts no other part of Government knew what he would say. But that assertion doesn’t imply that another part of the federal Government didn’t know Comey would deliver a statement. Clearly, Obama knew that. He must have known that. Many other officials in Government must have known that the Director of the F.B.I. would be making a statement to the public.More to the point, although Comey asserts he didn't tell anyone in Government what he would be saying--he hadn't given anyone in Government the text of his statement--that doesn’t mean Comey didn’t inform Obama, and others, of the F.B.I.’s decision. After all, Obama and Clinton were off, that morning, to be seen together--to campaign together--in North Carolina. Would a sitting President be seen campaigning with a candidate for the highest Office in the Land if that President harbored doubts as to Comey’s decision? Not likely.Director Comey drafted his decision with care. Each word is measured. We must parse it to understand the motive behind it and the content of it.F.B.I. Director Comey says, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”This passage is troubling—no less so because, again, Comey drafted his statement with great care. Comey probably intended for the American public--and must certainly have intended for the legal community--to perceive a gaping hole between what the F.B.I. investigation uncovered on the one hand and, on the other hand, the peculiar reasoning and incongruent decision emanating from that investigation.For example, the F.B.I. director says no case law exists to support a recommendation to indict Hillary Clinton. But a paucity of case law shouldn't factor into the Director's decision. The absence of a fact pattern similar to or the same as those falling into actual cases is legally irrelevant. And, whether prosecutors would be likely to obtain a conviction, that, too, shouldn’t factor into the F.B.I.’s decision since the F.B.I. wouldn’t be prosecuting the case. The Attorney General’s Office would be prosecuting the case. Moreover, would the F.B.I. dare speculate as to the outcome of a case given the stakes? After all, we are talking about the behavior of a person who seeks the highest Office in the Land. Let the Attorney General make the call whether or not to prosecute Clinton. The question is, rather, simply and clearly, whether the facts of the matter under investigation meet the requirements of a federal criminal statute. They do. The facts of the matter under F.B.I. investigation meet the requirements of 18 U.S.C. § 793(f). That is sufficient. That is enough to warrant recommendation of indictment.Director Comey also stresses the absence of actual knowledge on Clinton’s part when he discusses Clinton’s actions and behavior in this matter. But Hillary Clinton need not have actual knowledge of her wrongdoing. Actual knowledge isn’t required. The mental state of the actor as set forth in 18 U.S.C. § 793(f) is met if the actor “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.” Congress clearly established a lesser standard, apart from the stringent standard of actual knowledge, to support a criminal charge under 18 U.S.C. § 793(f). Intent to commit a wrong under 18 U.S.C. § 793(f)--that is to say, actual knowledge of mishandling of classified Government information under 18 U.S.C. § 793(f), isn't necessary. A critical element of the Statute is satisfied once “gross negligence” is present. The presence of “gross negligence” on the part of Clinton and others in the State Department exists—in fact, “gross negligence” exists many times over. This is clearly manifest in Director Comey’s recitation of Clinton's many wrongs in handling classified Government information when delineating them to the American public.But, oddly, Comey refrains from ever mentioning that Clinton’s mental state does meet the standard of gross negligence even if she didn’t have actual knowledge of wrongdoing. Black’s Law Dictionary (Ninth Edition) defines ‘gross negligence’ as, one, ‘a lack of slight diligence or care,’ or, two, ‘a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party. . . .” That standard has been met. Why, then, does Comey rely exclusively on a higher standard of 'actual knowledge' to commit a crime under 18 U.S.C. § 793(f) when the mental state of the actor is satisfied through a lesser standard of 'gross negligence.'The Director of the F.B.I., James Comey, says this: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” By avoiding use of the expression, ‘gross negligence,’ Comey draws the listener to his outrage over Clinton’s behavior but veers from categorizing that behavior as criminal within the meaning of 18 U.S.C. § 793(f), which would have mandated a recommendation of indictment.Black’s Law Dictionary (Ninth Edition) also defines the word, ‘careless,’ a word the Director of the F.B.I. does use when categorizing Clinton’s actions and conduct.  The legal meaning of the noun form of the adjective, ‘careless,’ namely, ‘carelessness,’ is ‘the fact, condition, or instance of a person’s either not having done what he or she ought to have done, or having done what he or she ought not to have done; heedless inattention.’  Black’s Law Dictionary (Ninth Edition) says the word, ‘carelessness’ can be a synonym for ‘negligence.’Granted, the mental state necessary to invoke 18 U.S.C. § 793(f) isn’t met through the presence of simple negligence. But, Comey says Clinton or her colleagues “were extremely careless in their handling of very sensitive, highly classified information.” By adding the adverb, ‘extremely,’ to the adjective, ‘careless,’ Director Comey implies that Clinton’s actions and behavior do meet the standard of ‘gross negligence,’ set forth in 18 U.S.C. § 793(f). Comey's decision not to recommend indictment of Hillary Clinton, under 18 U.S.C. § 793(f), is, ultimately, and essentially, inconsistent with the import and purport of 18 U.S.C. § 793(f), and with Comey's own clear understanding of the Statute's meaning and of the Statute's clear application to Clinton's conduct.The expressions, ‘extreme carelessness’ and ‘gross negligence’ are functional equivalents. But, Comey has decided he won’t recommend indictment, and, since the precise expression, ‘extremely careless’ or ‘extreme carelessness,’ does not appear in 18 U.S.C. § 793(f), Comey achieves a modicum of cover--a bare minimum of cover--having used the expression, ‘extreme carelessness,’ in lieu of the expression, ‘gross negligence,’ to explain Clinton’s actions and behavior relating to the use of personal, private, unsecured servers to conduct Government business. Nonetheless, the Director of the FBI makes abundantly clear that he finds Clinton’s actions and behavior detestable--unworthy of one who would be Secretary of State, let alone of one who would be the President of the United States. He boldly castigates Clinton and her colleagues constantly, relentlessly. His caustic words rise well above mere admonishment.So, again, we must ask: was the Director of the F.B.I. pressured into letting Clinton go? We think so. Director Comey has the weight of the future of this Country on his shoulders. Had he recommended indictment, the Attorney General, Loretta Lynch, would have had to accept the recommendation or recuse herself from acting upon it. Obama would not be able to intervene in Clinton’s behalf without looking more the fool and proclaiming, beyond any doubt, his own disrespect for our Country's laws and legal process. Hillary  Clinton, for her part, would have to cease campaigning, at once.Comey’s statement bespeaks both the frustration of an honorable man caught in the middle of a blistering episode in our Nation’s history, compelled to render a decision he would rather not, but clearly disgusted over Clinton’s actions and behavior as Secretary of State. He is intent on illustrating that disgust to the American People. F.B.I. Director James Comey sets forth the grounds for recommending indicting Hillary Clinton with scintillating clarity. The arguments he propounds against doing so are, contrariwise, extraordinarily lame. Did Comey specifically intend to demonstrate, to the American People, a disconnect between the strength of the grounds for recommendation of indictment and the weakness for failing to do so? Did he intend for the American People to understand that "his hands were tied?"Certainly, James Comey’s tacit message to the American People is clear. Hillary Clinton’s actions and behavior as Secretary of State--whether one understands the criminality of them or not--were, at the very least, altogether unworthy of a person holding a Cabinet Level position. Comey is tactfully saying that, for the well-being of the Country, and to show respect for the American People, Clinton should have the decency to withdraw her candidacy. But, “decency” isn’t a component of Hillary Clinton’s character. Hillary’s character is one devoid of decency. It is one devoid of trustworthiness, of sincerity, of integrity. Indeed, had the Director of the F.B.I. recommended indictment and if the Attorney General accepted that recommendation, Clinton likely would, given the choice, continue campaigning. But, she wouldn’t be given that choice. She would have to be carried out, kicking and screaming “from the room.”So, where does that leave Americans? We have a choice this November. No less than the fate of this Country rests in the balance. The American People must consider the ramifications of electing Hillary Clinton to the highest Office of the Land. Clinton’s character, as U.S. President won’t change. That is clear. That, we know. Clinton’s behavior and actions as Secretary of State present more than an inkling of the erratic behavior and dangerous action should she become President of the United States. Criminal indictment or not, Hillary Rodham Clinton is a public disgrace. She should not be considered worthy of holding any public Office, let alone the highest Office in the Land.Of course, many individuals who support Hillary Clinton’s candidacy do not give thought to the weight of James Comey’s words. They only look to and address his decision. But, then, these same people couldn’t care less if Clinton were indicted. They would argue that indictment isn’t equivalent to conviction. But, suppose Clinton, once indicted, was convicted of violation of 18 U.S.C. § 793(f). Would that make a difference to them? Probably not.Those Americans who support Hillary Clinton’s candidacy are blind to Clinton’s multiple character flaws. They are blind to her errant and erratic behavior. They are blind to her lack of emotional stability. They are blind to her lack of competency. Those Americans who support Clinton’s candidacy are altogether blind to her loathsome lust for power and to her singular obsession with self-aggrandizement.Those Americans who support Clinton’s candidacy cannot envision or, perhaps, they simply refrain from considering the threat Clinton poses to the preservation of our Bill of Rights, the threat posed to the preservation of our Heritage, to our culture, to our History, to the very existence of an independent Sovereign Nation and free Republic.Obama says that the American People may hold to an “imaginary past” or they may “reach for the future.” For Barack Obama and Hillary Clinton America’s “past” is and was just a dream, a chimera, an illusion. They seek to reconfigure America—to twist it, to reshape it beyond anything our Founders envisioned for it. Obama’s message to the American People comes across as a damning threat, less so a welcome promise of things to come if Clinton does in fact secure the White House.[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.

A LOOK AT ONE OF TRUMP’S CHOICES FOR U.S. SUPREME COURT JUSTICE: ALLISON EID

A LOOK AT ONE OF TRUMP’S CHOICES FOR U.S. SUPREME COURT JUSTICE: ALLISON EID

INTRODUCTION TO A CONSIDERATION OF POSSIBLE PEOPLE WHO MAY GAIN A SEAT ON THE U.S. SUPREME COURT

The mainstream media’s endless, nauseating, servile behavior toward Hillary Clinton won’t go away. That same media demonizes Donald Trump. Yet, the possibility of a criminal indictment against Clinton gets scant attention. The powers that crush the public into submission actively embrace a Clinton Presidency.If Hillary Clinton becomes our next President, the Second Amendment will face renewed assault and eventual, inevitable de facto repeal. That isn’t guess. That is fact.Clinton will be in position to  anoint the ninth U.S. Supreme Court Justice. Clinton's nominee will receive a hearing and vote. That, too, is not conjecture. That is fact. Senator Grassley's Judiciary Committee cannot feasibly forestall a confirmation vote indefinitely if Clinton secures the Oval Office.If Clinton's first nominee to sit on the high Court isn't confirmed, her second, or third choice likely will be. Once confirmed to a seat on the high Court, the liberal-wing of the Court will have secured its majority: five to four. Any case remotely affecting the Second Amendment that comes before the Court on appeal will almost certainly  be taken up. The exercise of the right of the people to keep and bear arms will come under renewed assault.The liberal-wing majority's decision will whittle away at the Heller and McDonald case holdings. The liberal-wing majority may overturn the holdings of those two seminal cases outright.Clinton hasn’t released a list of prospective U.S. Supreme Court candidates, but Trump has. We guess Clinton is content with Merrick Garland—a Court of Appeals Judge for the District of Columbia Circuit who has openly attacked the Second Amendment in two decisions. Clinton will do nothing to risk Garland’s candidacy. Judge Garland is Obama's darling. Clinton would hardly wish to anger Obama as the mainstream news sources have reported, on the day of the posting of this article, June 10, 2016, Obama's endorsement of Hillary Clinton's candidacy.  Clinton knows that Garland exhibits the same enmity toward the Second Amendment as she does, and as Obama does. That is a necessary condition for nomination, notwithstanding that neither Obama nor Clinton would say so publically.We know Trump will support the Second Amendment. That isn't bombast. Trump has released a list of candidates. Let’s consider those candidates’ records. We begin with Allison Eid, a Colorado State Supreme Court Justice, who issued the opinion in Regents of the Univ. of Colo. vs. Students for Concealed Carry on Campus, LLC., 2012 CO 17; 271 P.3d 496; 2012 Colo. LEXIS 114; 2012 WL 691538.

FACTS OF THE CASE

The Plaintiff, a student group seeking to carry concealed firearms on campus, sued the University of Colorado’s Board of Regents. The Plaintiff alleged the Board’s weapons policy violates the Colorado Concealed Carry Act (“CCA)  and Article 2, Section 13 of the State Constitution’s right to bear arms. The Board of Regent’s Weapons Control Policy prohibits carrying of firearms on campus except for certified law enforcement personnel. Failure to abide by the policy leads to expulsion.The Complaint alleges that three students sought to carry firearms “when traveling to, from, through, or on the campuses of the University of Colorado for self-defense.” One of the students contacted the Chief of Police at the University, in Denver. He sought permission to carry a concealed weapon on campus. Two other students contacted the Chancellor of the University in Colorado Springs. Each of the students asserted they held a valid concealed-carry permit under State Statute, the CCA. The officials denied the requests, citing the University policy.The, Defendant, Board of Regents moved to dismiss, arguing the students had failed to state a claim for relief. The lower District Court agreed. The Court argued that the CCA prohibits only “local governments” in Colorado “from adopting or enforcing laws contrary to the CCA.” The Court said “the Board is not a ‘local government’” and, so, had authority to ban firearms on campus. The lower Court also said, oddly, that “the right to bear arms is not a ‘fundamental right.’” The lower Court also said the right can instead be “highly restricted” by the state’s valid exercise of its police power.” The lower Court then dismissed the complaint, and the students appealed the adverse decision to the next level: the Colorado Court of Appeals.The Court of Appeals focused on “the plain language” of the Statute, and on the State Legislature’s “desire for statewide uniform standards” to include—as the Statute says—“all areas of the State." The Court of Appeals concluded that “all areas of the State” means college campuses too. On the Constitutional issue, the Court of Appeals said the lower District Court applied the wrong standard of review. The Students’ allegations did state a claim for relief. The Court of Appeals thereupon reversed the decision of the lower Court.The Board of Regents appealed the adverse decision to the Colorado Supreme Court. The high State Court affirmed the decision of the Court of Appeals, finding for the Plaintiff Students.

THE STATE SUPREME COURT’S HOLDING AND REASONING

Delivering the opinion of the high State Court, Justice Eid said: “We hold that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.” The Colorado State Supreme Court added, “Because we affirm on statutory grounds, we do not consider the Students’ constitutional claim.” Consideration of the constitutional claim is unnecessary here.The high State Court peered closely at the CCA. The Court reasoned that the Colorado General Assembly enacted the CCA because “the General Assembly found that jurisdictions were inconsistent in issuing concealed-carry permits and in identifying ‘areas of the state where it is lawful to carry concealed handguns.’” "The General Assembly found the criteria and procedures for lawfully carrying a concealed handgun ‘should be consistent throughout the state to ensure the consistent implementation of state law.'"The General Assembly pointed out, clearly, concisely, categorically that it was “‘necessary that the state occupy the field of regulation of the bearing of concealed handguns since the issuance of a concealed handgun permit is based on a person’s constitutional right of self-protection and there is a prevailing state interest in ensuring that no citizen is arbitrarily denied a concealed handgun permit and in ensuring that the laws controlling the use of the permit are consistent throughout the state.”The Board of Regents claimed, erroneously, “‘that the CCA does not divest it of its authority to adopt and enforce the Policy [because the Board] holds special, constitutional authority to enact policies governing the University of Colorado.”’The State Supreme Court clarified that local governments—and that includes the Board of Regents—“are expressly prohibited from ‘adopt[ing] or enforce[ing] an ordinance or resolution that would conflict with any provision [of the CCA].’”In conclusion, the Colorado Supreme Court held “that the CCA divested the Board of Regents of its authority to regulate concealed handgun possession on campus.”

CLOSING THOUGHTS ON THE POSITIVE IMPLICATIONS OF JUSTICE EID’S OPINION

Colorado State Justice Allison Eid respects the rule of law. She doesn't impose her will on the people of the State. She sees her job as interpreting the law of Colorado as it exists, not as she may happen to prefer--whatever her personal predilections may be. She recognizes that the State Legislature, the General Assembly, has preempted the field of firearms regulation. Colorado's General Assembly has done this, obviously, to ensure that the right to bear arms as embodied in the State Constitution, and, by logical entailment, the fundamental right of the people to keep and bear arms as codified in the Second Amendment of the U.S. Constitution, as is a right exercised by Americans throughout the State--a right uniformly exercised, throughout the State--is not subject to curtailment by local authorities who happen to disagree with Americans' ownership and possession of firearms.

WHAT HAPPENS TO THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS WHERE STATES PERMIT LOCAL JURISDICTIONS TO IMPOSE THEIR OWN WILL ON THE PEOPLE?

Several State Legislatures do allow jurisdictions within the State to adopt their own rules, codes, and ordinances regulating the carrying of handguns concealed. This is called "Home Rule." Relaxation of State preemption invariably weakens the Second Amendment because local jurisdictions, given the opportunity to flex their muscle through the device of "Home Rule," deny American citizens' right to keep and bear arms. Local jurisdictions do this under the guise of promoting law and order and preventing gun violence even though such rules, codes, and ordinances do nothing to curtail gun violence and do nothing to promote law and order. Actually, such rules, codes, and regulations ensure that criminal gun violence will increase, not decrease.Local rules, codes, and ordinances that curtail a law-abiding citizen's ability to defend his or her life and well-being serve to undercut the fundamental right of the people to keep and bear arms, as codified in the Second Amendment. This creates confusion because the public is bombarded with a myriad of conflicting requirements. This also results in the useless expenditure of police administrative resources better utilized in fighting crime. And this results in the needless expenditure of personal resources. A person, who seeks to exercise his or her natural right of self-defense, under the Second Amendment must spend inordinate amounts of time and money for the privilege of doing so as the sacred right is supplanted by government licensing schemes. Thus favoritism, corruption, bribery, and black market activity begin to germinate and flourish.

COMPARISON OF LEGAL METHODOLOGIES

Consider State Justice Eid’s methodology in deciding cases. Her methodology follows the methodology employed by Justice Thomas and by the late Justice Scalia. Justice Eid looks at “the plain text” of a Statute. She doesn’t read into a Statute what she likes and discard what she may happen not to like. She doesn’t second-guess the State Legislature.Compare State Justice Allison Eid’s methodology and jurisprudence to Judge Merrick Garland, Obama's nominee to sit on the U.S. Supreme Court. Judge Garland decides Second Amendment cases and those cases implicating the Second Amendment by insinuating his personal predilection against the Second Amendment into his decisions. Judge Garland isn’t content in looking at “the plain text” of a Statute if he doesn’t like its meaning. State Justice Eid, unlike Judge Garland, accepts a Statute as it exists. She sees her job as interpreting the law, not rewriting it.Which Jurist is likely to preserve the Bill of Rights for the benefit of all Americans as the founders of our Republic intended? Which Jurist is likely to shred the Bill of Rights because it is an “old document” and must be rewritten, consistent with the Constitutions of other nations, as Justice Ruth Bader Ginsburg and Justice Stephen Breyer apparently would like very much to see? Whom would you like to see sitting on the U.S. Supreme Court: State Justice Allison Eid or U.S. Court of Appeals Judge Merrick Garland?If Donald Trump secures the Office of U.S. President, the Second Amendment will be preserved, even strengthened. We may rest assured of that. If Hillary Clinton secures the Office of U.S. President, she will do everything in her power--and outside her power--to weaken and eventually destroy the Second Amendment. That is her goal. That is the goal of those both inside and outside this Country who seek to eliminate America's Bill of Rights. She will argue it is the mandate of the American people to rewrite and redefine America's Bill of Rights. The American people must crush Hillary Clinton's naked ambition for absolute power.[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.

JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC

JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC

AN ANALYSIS OF THE CASE NRA VERSUS. JANET RENO

PART 6

MISUSE OF LEGISLATIVE HISTORY WHEN ATTEMPTING TO DECIPHER THE PLAIN MEANING OF A STATUTE

We have discussed a major flaw in the reasoning of Judges Tatel and Garland in Part 5 of this multi-series article. There is a second, equally serious flaw in the reasoning of Judge Tatel and Judge Garland, when they ruled in favor of Janet Reno, against NRA and, therefore, against the right of the people to keep and bear arms, in the Reno case. The Judges relied on Legislative history to buttress the conclusion they sought, namely, that the Justice Department was not required to destroy NICS records immediately. In the misuse of Legislative history, the Judges committed a cardinal fallacy of logic. They assumed what they needed to prove, namely that failure of Congress to add the word, ‘immediately,’ before the word ‘destroy,’ in 18 U.S.C. § 922(t)(2)(c)(C), means that Janet Reno could unilaterally decide to keep NICS records for 6 months, or 6 years, or for any length of time – even indefinitely, for that matter – because no specific time limit, relating to the destruction of the NICS records, is set forth in the Statute. The idea manifests as a ludicrous idea assumed to be true rather than a conclusion to be derived. And the assumption is predicated on a specific piece of legislative history. They said, “Our conclusion that section 922(t)(2)(C) does not unambiguously require immediate destruction of NICS records finds support in the Act's legislative history. As reported to the House by the Judiciary Committee, the Brady bill contained no destruction requirement at all. See H.R. Rep. No. 103-344 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The obligation to destroy NICS records was added during floor debate. As passed by the House, the bill stated that the system shall ‘immediately destroy all records’ of allowed transactions. See 139 Cong. Rec. H9098, 9123, 9144 (daily ed. Nov. 10, 1993). The Conference Committee, however, adopted the Senate's version of the destruction requirement, which did not contain ‘immediately.’ Compare 139 Cong. Rec. H9123 (daily ed. Nov. 10, 1993) (House version), with 139 Cong. Rec. S16506 (daily ed. Nov. 19, 1993) (Senate version). It was this version that both houses approved and the President signed.” Judges Tatel and Garland presume that, because inclusion of the word, ‘immediately,’ appeared in the House version of the Bill but not in the final Senate version, the Justice Department could maintain records for some unspecified period of time. This is faulty logical reasoning because the Senate may just as reasonably have assumed that the addition of the adverb, ‘immediately,’ would be redundant, rather than necessary. In fact, inclusion of the word, ‘immediately,’ in the phrase, ‘destroy all records,’ is redundant. Moreover, effective legislative draftsmanship eschews use of adverbs and adjectives. If language in a Statute would seem to require inclusion of such qualifiers in order to avoid ambiguity or vagueness, this would suggest, in many instances, that the drafters did a poor job in drafting a statute in the first place. The use of adverbs and adjectives may be useful in works of fiction, but they are generally to be avoided in legal documents and in legislation.Consider our own Bill of Rights. For example, would the drafters of the Second Amendment have gained anything through the use of adjectives or adverbs, apart from the adjectives, ‘free’ and ‘necessary,’ through the assertion that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In the context of the Second Amendment, the adjectives ‘free’ and ‘necessary’ provide context and emphasis for elucidating the idea that only through an armed citizenry shall the American people ever hope to prevent tyranny. This is the reason we have the dependent clause in the Second Amendment at all – a point that even Republican members of Congress and supporters of the Second Amendment will not, to our knowledge, openly admit, preferring to refer only to the right of each individual to provide for his or her self-defense. This is an implication behind the Second Amendment to be sure. But, the true purpose of the Second Amendment is to check the power of the federal Government and its standing army: keeping the federal Government and its standing army “in its place,” that is to say, reminding the federal Government that it serves at the behest and pleasure of the American people and not the other way around. Moreover, in looking to Legislative history of a Statute at all, we find in this legal and logical reasoning of Judges Tatel and Garland something markedly different in their approach to judicial reasoning when compared with the approach employed by Justice Scalia. What we need ask is whether a judge ought to be considering legislative history at all when determining the meaning of a statute. Judges Garland and Tatel obviously say, “yes.” Justice Scalia virtually invariably said, “no.”Although, there is some Supreme Court precedent for looking to the Legislative history of a statute in order to explicate a statute’s meaning, one must use Legislative history gingerly, if at all. Judge Scalia took a very dim view of looking to Legislative history to discern the meaning of a Statute because he felt it is unnecessary to do so, can become a crutch for those who generally look to Legislative history, where, as here, a Judge is attempting to force through a particular outcome and looks to Legislative history simply to buttress that outcome, and, lastly, when relying on Legislative history, a judge is prone to errors in legal reasoning and, this, in turn, more often than not, leads to erroneous legal decisions. Judges Tatel and Garland use Legislative history, erroneously and in fact egregiously. They assumed the Statute in question, 18 U.S.C. § 922(t)(2)(c)(C), was ambiguous precisely because Legislative history refers to an alternate rendering of the Statute that happened to include the word, ‘immediately,’ in the House version that was never adopted by the Senate and never made it to the final enacted version of the Statute. The Judges don’t say this, but that is clear enough from an elucidation of their analysis.The Judges argue that the Statute, 18 U.S.C. § 922(t)(2)(c)(C), is ambiguous, not because a plain reading of the Statute alludes to any instance of ambiguity or vagueness in meaning – it doesn’t – but because Judges Tatel and Garland sought to render a decision in favor of Janet Reno and the Justice Department in order to undermine the Second Amendment; and the use of and reliance on Legislative history gave the Judges the ammunition they needed to make a plausible argument in support of a decision (the conclusion) they wanted – not a decision that happened to follow from legal precedent and sound logic – in other words – a decision that they sought to avoid.The Reno case is one prime example of misuse of Legislative history. The case stands as an object lesson of bad legal reasoning and serves well to explain why Justice Scalia was himself loathe to rely on Legislative history except where ambiguity or vagueness is clear, and demonstrable, and unequivocal on the face of the language of a Statute under review. But that is not at all true in the Reno case. The Statute, 18 U.S.C. § 922(t)(2)(c)(C) is clear and unambiguous on its face – both in the language of the specific clause and in the context of the rest of the Statute, 18 U.S.C. § 922(t)(2)(c). The decision of the Court’s majority in the Reno case, rests on faulty logic and is predicated on the two Judges’ antipathy toward the Second Amendment.In Part 7, the final segment of this multi-part series, we look at a legal methodology known as “textualism.” Justice Scalia was a strong proponent of this methodology for a very important reason. Adherence to the methodology promotes judicial honesty and integrity. Something altogether lacking in the majority’s opinion in the Reno case.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE FLAWS IN JUDGE GARLAND’S REASONING

THE FLAWS IN JUDGE GARLAND’S REASONING

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 4

RECAP

In the last few segments of this multi-series article we have provided you with a deep analysis of the case National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000). A thorough analysis of the case provides the U.S. Senate and the American people with a detailed look into the mind of Judge Merrick Garland, providing the U.S. Senate and the American public with a clear account of Judge Garland’s view of the Second Amendment.A deep analysis of the Reno case demonstrates Judge Garland’s lack of sympathy for and lack of deference to the Second Amendment. This conclusion is clear, categorical, and irrefutable. Importantly, an analysis of the Reno case also highlight’s flaws in the Judge’s reasoning as he obtains the result he wants through obvious intentional misapplication of the law. The case is, then, a harbinger of things to come. A comprehensive analysis of the Reno case illustrates, for both the U.S. Senate and the American public, what they may expect of U.S. Court of Appeals Judge for the District of Columbia Circuit, Merrick Garland, were he to step into Justice Antonin Scalia’s shoes, becoming the newest member of the smallest and certainly one of the most elite government institutions in America, as Associate Justice of the U.S. Supreme Court.The American people can expect that, at some point, were Justice Garland to serve on the U.S. Supreme Court, the decisions in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010) would be systematically eroded and ultimately overturned, as Justice Garland would join the liberal wing of the Court – a group of Justices that dissented from the decisions in both cases. As the ninth Justice on the high Court, Justice Garland would constitute the fifth critical vote of the liberal wing, giving the liberal wing a decisive majority. Had Justice Garland served on the high Court in lieu of Justice Scalia at the time the Heller and McDonald cases were decided, the outcome of those two seminal Second Amendment cases would have been decidedly and decisively different.President Obama intends for Justice Garland to serve on the high Court and if Obama’s nominee succeeds to the high Court, Obama’s socialist agenda will be secured and assured for generations of Americans to come. The argument given that Judge Garland is a “centrist” means nothing in a vacuum, and that is how it is used. In fact, if anything, the expression as employed, as a one-word descriptor for Judge Garland, is patently misleading and is meant to misguide the U.S. Senate and the American people. Indeed, if, in the worst of all possible worlds, Hillary Clinton were to become President of the United States, she could renominate and probably would renominate Judge Garland to the high Court if President Obama is unable to persuade the U.S. Senate to hold a hearing on Garland’s nomination. Hillary Clinton would be very pleased with Judge Garland, sitting as Justice Garland on the high Court.It is childish and disingenuous of the mainstream media, on behalf of Obama, to threaten the U.S. Senate by suggesting that, if the Senate fails to hold a hearing and fails to confirm Judge Garland as U.S. Supreme Court Justice Merrick Garland, a President, such as Hillary Clinton, will nominate a person who is “more” liberal than Judge Garland.Keep uppermost in mind: Judge Garland was always on Obama’s short list of nominees. Judge Garland is, then, a Judge in the same vein as Justices Sotomayor and Kagan. Judge Garland is of the same bent and temperament and shares the same legal and social philosophies of Justices Sotomayor and Kagan. Were that not so, President Obama would not have nominated Judge Garland to sit on the high Court in the first place. Never forget that!

JUDGE GARLAND’S ANTIPATHY TOWARD THE SECOND AMENDMENT IS ON FULL AND EXTRAVAGANT DISPLAY IN THE RENO CASE.

The Reno case deals with an arcane and narrow issue of law: the meaning of the words ‘destroy all records’ as set forth in the Brady Handgun Violence Prevention Act of 1993, as codified in the U.S. Code, 18 U.S.C. § 922(t)(2)(c). The Brady Act is part of, and subsumed in the broader and vaster Gun Control Act of 1968. As the Gun Control Act of 1968 becomes ever broader and vaster, it whittles away at the import, purport and, indeed, power and authority of the Second Amendment. Eventually, antigun Congressional Legislators intend, through enactment of a continuous stream of antigun Statutes, to undermine the Second Amendment to the point of de facto repeal of it. So, don’t be misled: the Reno case has a major impact on the Second Amendment despite or, perhaps, in spite of the seeming arcane, narrow legal issue that the Court dealt with in the case.

CONGRESS PROHIBITS THE CREATION OF EITHER A FEDERAL OR STATE GUN REGISTRY BUT JUDGE GARLAND SAYS THAT CREATION OF A GUN REGISTRY IS ACCEPTABLE

The Brady Act requires each and every federally licensed firearms dealer to undertake an instant criminal background check of all prospective purchasers of guns and ammunition. The Justice Department, the antigun enforcement arm of the federal Government is charged with creating the rules that implement the Brady Act. So, whenever an individual seeks to purchase a firearm or ammunition for a firearm, the federally licensed firearms’ dealer must perform a criminal background check of that individual and the firearms' dealer does this by tapping into the Justice Department’s NICS database. Once the licensed gun dealer completes “the call” and finds the prospective buyer to be under no disability, the firearms transaction and/or ammunition transaction can be completed. But, what becomes of the records of the transaction? That is the nub of the Reno case; for, Congress says that the records of the transaction are to be destroyed.  The United States Code, 18 U.S.C. § 922(t)(2)(c)(C), says, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Why? Congress says the NICS records must be destroyed so as to prevent the federal government or any State government from creating a gun registry. Congress said in no uncertain terms, “no department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system [NICS] established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542. Did Janet Reno’s Justice Department comply with these clear Statutory prohibitions? In a word, “no!” Under the rules the Justice Department promulgated, as codified in the Code of Federal Regulations, 28 C.F.R. § 25.9(b), the Department establishes and maintains an “audit log” of all firearms’ and ammunition transactions. It is in the very creation of an “audit log” that the Justice Department  sets in motion the steps allowing for implementation of an illegal backdoor gun registry. Two Judges of the United States Court of Appeals for the District of Columbia Circuit, who decided the Reno case,  saw no problem with this. United States Circuit Court of Appeals Judge Tatel wrote the opinion for the majority. Judge Garland agreed with both the decision and the reasoning of the Court and, so, adopted the opinion as his own. It is as if he had written the opinion himself. In the majority opinion the Judges go so far as to admit that the Justice Department’s “audit log” could indeed function as a gun registration system, but, then, upon that admission, the Judges attempt, bizarrely, and unsuccessfully, to dismiss the import of it. Judge Tatel says: “It does not follow, of course, that the Audit Log could never function as a firearm registry. But the Log’s deficiencies as a system for registering firearms make, it unlikely that it would be used for that purpose.” Judge Garland agreed with Judge Tatel's assertion since he did not write a concurring opinion where he might have, at the very least, reasonably concluded that if the Justice Department's Audit Log could function as a firearms' registry -- whether it has deficiencies in that regard or not -- the very creation of an "Audit Log" is inconsistent with Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542, as correctly pointed out by Judge Sentelle, in the Judge's dissenting opinion.But, Judge Garland did not disagree with Judge Tatel's very odd remark, grounded, as it is, on very shaky reasoning. Moreover, the assertion also logically implies that the Justice Department has created a rule that amounts to a clear intrusion upon on the First Branch of Government, Congress. Thus, the Justice Department's rule amounts to an  transgression of the Separation of Powers Doctrine. And it is of no avail for Judges Tatel and Garland to attempt to backpedal from the dire implication of the remark by saying that the “Audit Log” is a poor example of a gun registration scheme. Whether a fine example of a registration scheme or not, the “Audit Log” does function as a gun registration scheme or can be used as such. And that is enough to find 28 C.F.R. § 25.9(b) illegal on its face. For, in enacting the Brady Act, Congress made clear that neither State governments, nor the Second Branch of the Federal Government – the Executive Branch – is permitted to create a gun registry or to create something that, if not intended to be a gun registry scheme, can certainly function as one. The Justice Department has done just that. And, Judges Tatel and Garland have stamped their judicial imprimatur upon it.It does little for Judges Tatel and Garland to wiggle out from under the implication of their remark to say that, because the Audit Log has deficiencies as a firearm registry, we don’t have to worry that it may one day become one or that if it is at the present time in fact one, it is a bad one, so there is no need for the public to be concerned about it. Even so, if we go that far, are not Judges Garland and Tatel saying that the Justice Department could certainly remove the deficiencies and create a first-class gun registry?In the next article, Part 5 of this multi-part series, we take a close look at the meaning of the phrase, “destroy all records of the system,” in the context of the Statute.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

SENATOR KIRK CAN’T WHITEWASH MERRICK GARLAND; THE RECORD SPEAKS FOR ITSELF

Editor's note: this is a revision of an earlier version of this article. The revision includes new material.Senator Mark Steven Kirk, Illinois Republican, urges Republican colleagues to “man-up” and just cast a vote on Obama’s nominee for the U.S. Supreme Court, Judge Merrick Garland, whose views on America’s Constitution, according to Senator Kirk, are “a lot like Justice Scalia.” Really? But that's what he said as noted, with approval on the liberal web blog, "Think Progress," in a March 18, 2016 article titled, "Republican Senator says Colleagues Should 'Man Up' And Vote On Merrick."Yet, not even Obama has the audacity to suggest that Judge Garland’s ideology and jurisprudence are even remotely like that of Justice Scalia; and Senator Kirk's attempt to shame the United States Senate Committee on the Judiciary through Kirk's use of the term, 'man-up,' is nothing more than a child's dare or is otherwise incoherent. Indeed, the mainstream New York Times admits that, ideologically, Judge Garland is well to the left of Justice Anthony M. Kennedy.” See, the NY Times article published, March 17, 2016, titled, “Where Merrick Garland Stands: A Close Look at His Judicial Record.” And, we know that Justice Kennedy, the “swing-vote,” stands ideologically well to the left of Justice Scalia. So, who is Senator Kirk kidding? Indeed, how is it that a United States Senator, a Republican at that, would support Obama’s call for Senate action on Obama’s nominee for the U.S. Supreme Court in the first place? Might there be something about Senator Kirk that doesn’t quite ring true?We were curious about Senator Kirk’s own position on the Second Amendment. So, we checked. What we have found is disconcerting to say the least but does much to explain Senator Kirk’s support of Obama’s nominee for U.S. Supreme Court Justice.It turns out that NRA gives Senator Kirk, the Republican, a rating of “D.” See, "Mark Kirk on Gun Control." Senator Kirk does beat Senator Bernie Sanders. Sanders candidly, exuberantly remarks that NRA currently rates him, “F.” But, a “D” rating by NRA, no less than an "F" rating, is hardly cause for celebration. Such a dismal rating by NRA is definitely not something a Republican U.S. Senator to be proud of. Senator Kirk does, understandably, prefer to keep that fact quiet -- spoken in whispers, if at all. In fact, in 2010, NRA rated Kirk “F,” according to the weblog, "sunlightfoundation." Not surprisingly, Senator Kirk supports the Brady Bill, and was, apparently, the only Republican who voted for the 2013 ban on rifles that are considered "assault weapons” by antigun groups. Perhaps, Senator Kirk ought, himself, to “man-up,” and admit to the American public he is a hypocrite who is deliberately leading both the American public and Congress astray by urging his Republican colleagues to cast a vote on Obama’s nominee for the U.S. Supreme Court.The Christian Monitor, in a 2013 article, titled, "Obama's quiet ally: Who's behind gun control bill no one is talking about," is on point in calling  Senator Kirk, Obama’s “quiet ally.”  But, even The Christian Monitor could not have envisioned, at that time how portentous its 2013 'quiet ally' reference to Senator Kirk would be. For, three years later Senator Kirk is now, in fact, lending his support to Obama’s nominee, Judge Merrick Garland; and, in so doing, actively defying Republican Senators Mitch McConnell and Chuck Grassley, and, in fact, going to war against the Republican Party, by operating in the background as Obama’s “quiet ally.”Senator Kirk’s assertion that Judge Garland is of the same ideological bent as the late Justice Scalia is an abominable lie. Senator Kirk certainly knows the assertion to be untrue and he is unashamedly fomenting an outrageous lie. Apparently, it is okay, though, to assert a bald-faced lie to the American people to accomplish a desired goal.Republicans like Senator Kirk, who infect the Republican party with schemes poisonous to the well-being of the Republic and destructive to our sacred Bill of Rights, give cover to Obama, who can then plausibly and piously argue: see, even Republicans understand I intend to safeguard Americans’ Bill of Rights, and that I will, especially, safeguard and defend Americans’ Second Amendment right through commonsense actions and commonsense nominations and appointments to the federal courts. One thing is clear: if Judge Garland secures a seat on the U.S. Supreme Court, the tenuous balance that existed for some time between the Court’s right-wing Justices and the Court’s left-wing Justices will be lost. The Court will swing violently to the left and that will be reflected in the Court’s decisions.Consider what one reviewer in a recent NY Times article, published March 18, 2016, -- titled, “What Do You  Need to Be a Justice?” – had to say. Ian Millhiser, senior fellow at the Center for American Progress, and the author of the article, said, in his NY Times Op-Ed, “Some of the court’s worst decisions were the product of rigid ideology. But many are rooted in the fact that the justices in the majority lacked what President Obama said he was looking for in a nominee: ‘an understanding of the way the world really works.’”An “understanding of the way the world really works?” Millhiser took that quote from the SCOTUSblog, which posted certain remarks of Obama, supporting his nomination of Judge Merrick Garland to the U.S. Supreme Court. Explicating one of three points he was looking for in his nominee, Obama said: “. . . a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.” Obama also says that anyone he nominates to the U.S. Supreme Court "will have an independent mind, rigorous intellect impeccable credentials, and a record of excellence and integrity," and that the person he appoints will be someone who "recognizes the limits of the judiciary's role." On a cursory inspection this may all sound reasonable and noble. But how much of it rings true? And, further, is there anything in Obama's remarks that, on deep reflection, do not suggest something ominous. Let’s analyze and extrapolate what Obama is really saying here.A perusal of Obama's remarks illustrates an inconsistency. He plainly states, in his remarks, that he wants a person who "recognizes the limits of the judiciary's role, someone who will not legislate from the Bench. But, that singularly critical and, in fact, correct point, is at odds with the third point he makes, although obliquely, namely that he seeks a person who holds a certain philosophy, akin to Obama's own, suggestive of utilitarian ethical concerns which, then, if acted upon  may very well amount to adjudicating a case on the basis of social theory irrespective of legal constraints. So, Obama is saying that U.S. Supreme Court decisions should not be decided merely through an application of America’s own case law; its own history; its own case law precedent. Rather, those who sit on the high Court should decide a case in terms of how a decision impacts the lives of people who reside in this Country, whether they are here legally or not. By extension, he is asserting that U.S. Supreme Court decisions should also take into account how a decision impacts people globally. He is saying that the U.S. Supreme Court should take into account the manner in which  U.S. Supreme Court decisions reflect multicultural values. This last point entails a consideration of and belief in utilitarian ethical systems along with notions of moral relativity.So, Obama is asserting and maintaining that a U.S. Supreme Court decision should encompass a worldwide perspective, and not simply one that reflects our Nation's values, manifested in our unique Bill of Rights, our unique history, our own culture, our own legal precedent. Obama is arguing for a cosmopolitan approach to U.S. Supreme Court decision-making. Obama is, then, definitely, espousing enacting law -- legislating law -- from the Bench, not merely interpreting law -- the latter of which is the high Court's principal duty and responsibility.The Judicial authority of the U.S. Supreme Court does not encompass the Legislative Authority of Congress as set forth with particularity in Article I of the U.S. Constitution; and, neither the Legislative authority of Congress nor the Judicial Authority of the U.S. Supreme Court encompasses the Executive authority of the President of the United States as set forth with particularity in Article II of the U.S. Constitution. The demarcation of duties and responsibilities of each Branch of the Federal Government is established by and codified in the Constitution, and the duties and responsibilities of one is never to cross over into the domain of the other. But, Obama has deliberately and unconscionably argued for expanding the legislative functions of Congress into the domain of the Executive Branch and now suggests that the Judicial Branch of Government ought to do the same. In fact, Obama has himself used the power of the Executive Branch to unlawfully encroach into the Legislative arena, either by failing to execute the laws of Congress -- which we see in his adamant refusal to enforce existing immigration laws and which we see through his unlawful use of executive directives to curtail the free exercise of the right to keep and bear arms under the Second Amendment, and which we see in both his callous indifference to a citizen's right to be free from unreasonable searches and seizures and in the expansion of police and intelligence activities into areas that clearly transgress Congressional enactments.Obama has, apparently, no reservation about using the Office of the Chief Executive to make law, thereby transcending Constitutional authority to faithfully execute the laws, whenever he feels compelled by his personal morality and multicultural propensities and political philosophy to override the Separation of Powers Doctrine. And, he demonstrates the same contempt for the Separation of Powers Doctrine when he pompously suggests the U.S. Supreme Court should inject utilitarian ethics and multiculturalism into its decision-making, thereby uprooting 200+ years of carefully developed and cautiously applied American jurisprudence.What Obama is looking for in a U.S. Supreme Court Justice and what he sees in Judge Merrick Garland is someone who shares his personal Weltanshauung -- his personal world view: someone who is prepared to, and who would, upend our entire legal philosophical system by  secreting moral relativity and geopolitical considerations and trans-national, multinational goals and objectives into U.S. Supreme Court decision-making. Obama’s ideal candidate for the U.S. Supreme Court manifests a view for deciding cases also held by the left-wing U.S. Supreme Court Justice, Stephen Breyer, as laid out methodically and comprehensively in his book, “The Court and the World: American Law and the New Global Realities.” Justice Breyer’s jurisprudence is a mélange of laws, values, social mores, and ethical systems that extend well beyond a consideration of our own Constitution, our own laws, our own precedent. Justice Breyer’s  jurisprudence – one reflected in the liberal wing of the U.S. Supreme Court – is an anathema. It undermines our Constitution, our laws. It undercuts the very sovereignty of our Nation and the sanctity of our Bill of Rights.What is noticeably lacking in Obama’s praises of Judge Garland Merrick and in Obama’s recitation of the factors he deems important in an individual who sits on the high Court is any mention of the need to consider how the core of our rights and liberties, codified in the Bill of Rights of the U.S. Constitution, is to be protected – indeed, that the core of our fundamental rights and liberties ought be protected at all. Apparently, Obama doesn’t consider our Bill of Rights, around which American U.S. Supreme Court jurisprudence is built, to be particularly important in this new age, in this new world, that Obama envisions, in which the very concept of the ‘Nation State’ is perceived as a relic, eventually to be discarded in favor of a neo-corporate, financial world union.By the way, in the event anyone believes that Obama does not consider, would not consider, or has not considered the role a Judge's personal philosophy plays in Obama's consideration of a nomination of a person to the high Court, think again. In a February 16, 2016 article, titled, "Obama Filibustered Justice Alito, Voted Against Roberts," appearing in the conservative weblog, "front page mag," the author, Daniel Greenfield demonstrates Obama's clear attention to a Judge's philosophical bent. No one can reasonably attack the ability, intellect, credentials, and integrity of Chief Justice John Roberts and Associate Justice Samuel Alito; yet, President Obama, as U.S. Senator Barack Obama, has voiced serious reservations for these nominations of President George W. Bush to serve on the high Court, and chose not to support the nomination of either one of them. So, when Obama asserts that, what he is looking for in a person who serves as a U.S Supreme Court Justice is a person whose analysis of cases will, when the need arises, "be shaped by his or her own perspective ethics, and judgment," he is being duplicitous. For, he will not consider a person, as a nominee, whose perspective, ethics, and judgment do not coincide with his own. Otherwise, he would have voted for and supported Chief Justice Robert's nomination and Associate Justice Alito's nomination to the high Court. We know, of course, that the values expressed in America’s Bill of Rights are not universally emulated by many Western Countries. In particular it is abundantly clear that America’s Second Amendment, far from being praised by other Countries, especially those comprising the EU, is often disparaged. But, it is disparaged in part, no doubt, because in no other Country in the World does a nation’s government accept and respect the idea that a nation’s government exists only by grace of the people, of the nation’s citizenry.America’s Second Amendment, however, makes absolutely clear that the federal Government exists only by the grace of the American people. The federal Government does not “own” the American people. We are free citizens in a free Republic, not enslaved subjects residing in an autocratic realm. The federal Government cannot dispense with our Bill of Rights; nor is it permitted to erode the fabric of our Nation’s sovereignty through international treaties and conventions that the American people are little if ever adequately aware of, nor their representatives in Congress ever completely privy to.America’s Bill of Rights – certainly the Second Amendment – is perceived by the left-wing of the U.S. Supreme Court as representing ideas and values no longer reflective of the modern age. But, the founders of our Republic were no fools. They knew that the rights and liberties set down in stone in the Bill of Rights were “constants” that never change, never become obsolete, and must never change or be perceived as obsolete if our Republic is to continue to exist in the form envisioned by our founders. Justice Scalia knew this, respected this, and his decisions reflected that principle – a principle omnipresent in his decisions.Justice Scalia believed that U.S. law must dictate and inform all U.S. Supreme Court decisions and that the Bill of Rights – all ten of them – must never be compromised or be considered relevant only to a bygone era. The left-wing of the high Court does not agree with this. They hold to the idea that Americans’ rights and liberties only have meaning relative to a particular era – that Americans’ rights and liberties are not “constants” applicable to all eras. That idea percolates through their legal opinions, and is often reflected in their own ad hoc and peculiar jurisprudence.The notion that our Bill of Rights transcends all time is considered an aberration and antithetical to the reasoning of the left-wing of the high Court because that notion is not compatible with “the way the world really works” today, as Obama says. All the more reason, then, for the U.S. Supreme Court to hold fast to the principle that Americans’ rights and liberties are “constants,” never-changing absolutes, as our founders perceived them and meant for them to be as applied to the continued existence of our Nation State as a Sovereign Nation State and as a free Republic – never subordinated to another nation or subsumed into a larger political or economic union, like the EU.Americans’ sacred rights and liberties are never to be seen as outmoded. They are never to be cast aside when deemed, by some on the high Court, to be incompatible with the “way the world really works” – with global realities, according to Justice Stephen Breyer, as laid out in his book, and as echoed by President Obama in his praises of Judge Merrick Garland.Judge Garland is certainly not cut from the same cloth as Justice Scalia. If Judge Garland does acquire a seat on the high Court as an Associate Justice, he would definitely fit in with such fellow travelers as Justices Breyer, Ginsberg, Kagan, and Sotomayor. Certainly, that is what President Obama, and, apparently, one “Republican” Senator, Mark Steven Kirk, would like very much to see.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

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

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

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

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

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

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

DO OTHER JURISDICTIONS CRIMINALIZE POSSESSION OF STUN GUNS?

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

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

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

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

CONSIDERATION OF THE LEGALITY OF EXECUTIVE ACTIONS MUST PRECEDE DISCUSSION OF THE REASONS BEHIND THEM

With the usual fanfare and the usual props standing in front of him and behind him, President Barack Obama told the public, on January 5, 2015, at 1230 hours, EST, on a NBC special news report, that he, in his infinite wisdom, will take unilateral action to expand gun background checks – in effect, turning private individuals, who may wish to sell a firearm, into gun dealers, who must comply with federal laws, governing gun background checks. But how Obama intends to effectuate this in the absence of funding by Congress, having now offended Congress, and without violating the Second, Fourth, and Fifth Amendments to the United States Constitution, and without violating the Ninth and Tenth Amendments to the United States Constitution, presents a most pressing question – and a deep conundrum for anyone who cares deeply about preserving the sanctity of the U.S. Constitution and yet would wish, at one and the same time, to give this devil his due.But, there is a preliminary question. It is one that goes to the presumed authority upon which Obama works his legerdemain on the American people. Now, it is all well and good for Obama to be concerned about curbing gun violence on the part of criminals, lunatics, and, of late, Islamic terrorists; and we have a plethora of laws to contend with this problem if only the laws we presently have were duly enforced by the Obama Administration. That would go a long way in effectively curbing the very violence Obama says he is so keen on curbing. Moreover, with millions of law-abiding Americans properly armed, that, too, would go a long way in effectively dealing with the problem of those, who, under present law, should not have access to firearms anyway. But, like all good stage magicians, Obama is not interested in any of that. His interest is the same as those of all antigun zealots: de facto repeal of the Second Amendment. And, in that singular pursuit he attempts to distract his audience with intricate sleight-of-hand.The sleight-of-hand here has to do with the failure of Obama to point to anything in the Constitution or in Statute that might seemingly give him the authority to act behind the back of Congress, essentially operating as both Chief Executive and, Consummate Legislator. But as we have seen, Obama would rather talk about his reasons for acting unilaterally, then he would to address the legal footing upon which those reasons might rest. For, given even the best of reasons that ground a President’s actions, if those actions are illegal, the reasons he relates for those actions are of no count. Clearly, Obama is on thin ice here and he knows it. Thus, he avoids broaching the salient, critical legal issue in favor of pontificating upon the superficial, rhetorical one.So it is that Obama, in typical rhetorical mode, doesn’t talk about the authority that presumably permits him, legally, to circumvent Congress, but, rather, argues that, because Congress has not acted as Obama wishes Congress to act, he, Obama, President and “Boss,” can and will do so, himself. Doing so, the Boss makes it so, and making it so, makes it right – this, coming from a Harvard Law School graduate, and one-time Constitutional Law professor.What Obama doesn’t talk about is a matter that the public must become cognizant of and knowledgeable about: the issue of executive directives. The Arbalest Quarrel touched upon this in its previous article. The issue of lawful use of executive directives is of the utmost importance to the sanctity of the U.S. Constitution and to the preservation of a Free Republic, for a Free Republic is a State that is ruled and governed by law, not by men. Now the authority to make laws rests solely with Congress. Article I, Section 1 of the United States Constitution sets forth, clearly and categorically: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The very notion of executive directives directly confronts and challenges the singular authority of Congress to make laws.The Arbalest Quarrel is not naïve to think that executive directives have not been used – often routinely so – by past Presidents, and a few have definitely abused their use. Past U.S. President Bill Clinton is one Chief Executive who has abused the use of executive directives. But President Obama’s use of executive directives is surely the most audacious. Let us explain.We may start with a study by one legal scholar, Todd F. Gaziano, Senior Fellow in Legal Studies and Director of the Center for Legal Judicial Studies at The Heritage Foundation. Gaziano has done substantial research on executive orders, and, in an aptly titled law review article, “The Use and Abuse of Executive Orders and Other Executive Directives,” 5 Tex. Rev. Law & Pol. 267 (Spring 2001), he has written a cogent and comprehensive essay on the nature of executive directives.The author discusses the authority upon which executive directives rest, and the circumstances under which they may be deemed lawful or not. Gaziano makes poignantly clear that, “Ultimately the authority for all presidential orders or directives must come from either the Constitution or from statutory delegations” (at page 276). But, there is nothing in the U.S. Constitution that expressly provides for the use of executive directives by the President. So, can lawful use of executive directives be implied from an “express grant of power?” Gaziano says that the authority to issue executive directives can be implied or even be inherent in the substantive power of the President “. . . in the exercise of his constitutional and statutorily delegated powers: [as] Commander in Chief, Head of State, Chief Law Enforcement Officer, and Head of the Executive Branch” (at page 277). Gaziano adds, “When the President is exercising powers inherent in Article II of the Constitution, Congress has much less ability to regulate or circumscribe the President's use of written directives” (at page 281).The paramount question is, then, how do we know when a U.S. President is abusing executive directives? Gaziano says, “A legal framework of analysis is required in order to separate legitimate presidential directives from those that are abusive or improper. Unfortunately, a dearth of governing law and prudential guidelines in the area of executive orders makes the articulation of that framework difficult. Reference to history, therefore, is essential when seeking to uncover the necessary analytical structure" at page 281). Gaziano adds, importantly, “The President's authority, to act or issue an executive order, is at its apex when his action is based on an express grant of power in the Constitution, in a statute, or both. His action is the most questionable when there is no grant of constitutional authority, either express or inherent, and his action is contrary to a lawful statute or provision of the Constitution” (at page 284).Gaziano mentions wartime crises as one example of use of executive directives that can, plausibly, albeit, controversially, be employed by the Chief Executive. But, in the case at hand, Obama has neither expressly stated nor intimated that his use of executive authority to infringe the Second Amendment and supersede Congressional authority proceeds from a wartime crisis. Is there, then, a statutory basis upon which Obama might rely that can feasibly support his use of executive directives to expand gun background checks? If so, Obama has not pointed to any, nor can he. His unilateral action to expand gun background checks is, on its face, statutorily illegal because Congress has clearly established the parameters of permissible gun background checks in the Brady Handgun Violence Prevention Act of 1994. If Congress sought to expand upon gun background checks as promulgated in the Brady Act, it would have done so. It has not. So, Obama has no statutory basis upon which to argue independent authority to act to expand background checks statutorily.Moreover, at the moment, at least, Obama has not indicated that he has obtained legal support for use of executive directives to expand gun background checks, in the form of an opinion from the Office of Legal Counsel (“OLC”). The New York Times has previously reported that Obama has contacted the Attorney General, ostensibly to ask the Office of Legal Counsel for an opinion that might, perhaps, provide a legal foundation, however implausible that might be, upon which Obama’s executive directives, expanding gun background checks, may meet with Justice Department approval. As Gaziano says, “For over one hundred years, the President has asked the Attorney General or another senior official in the Department of Justice to review draft executive orders and proclamations with regard to their form and legality” (at page 292). If Obama obtains such an legal opinion here, the public should be permitted to see it. If he fails to secure a legal opinion from OLC, this would strongly suggest that the OLC does not believe Obama’s unilateral executive directives are legally defensible.The last paragraph of Article II, Section 1 of the U.S. Constitution sets forth, “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”Regardless of what one thinks about the morality and aesthetics of guns generally and gun ownership and gun possession particularly, each American should ask of him or herself and then be prepared, honestly, to answer the following question: “Shall I deign to honor this man, the President of the United States, who, having subscribed to the oath he has taken, would dare become a law unto himself?”[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

PRESIDENT OBAMA SEEKS TO UNDERCUT SECOND AMENDMENT THROUGH EXECUTIVE ACTION

President Barack Obama, as we have seen, demonstrates little restraint using the power of his Office to obtain what he wants. The most powerful tool in a Chief Executive’s arsenal falls under the umbrella “executive directives.” These take the form of orders and proclamations, memoranda and signing statements. But, in the absence of a legal source explaining distinctions among them, one may presume they are, in essence, the  same.When a U.S. President issues an executive directive, he is asserting, “this is what I want to do; this is what I intend to do; this is what I have done, why I have done it, and how and when it shall be carried out, and what Congress and the American People must do to recognize or to comply with it; so accept it!Presidential directives are then essentially declarations – much like edicts of a despot, such as a dictator, or a king, or other such autocratic ruling authority. Presidential directives are not subject to debate by the public or even by Congress, and they are not subject to Legislative veto. Moreover, there is nothing in law that tells us how they may be used, when the President may use them, or how narrow or broad in scope they may be. There are no procedural safeguards that might otherwise impact the legality of them. Neither the U.S. Constitution, nor case law, defines what they are or how they may be properly used. But the danger that executive directives present to a free republic and to the foundation of that free republic, namely, the U.S. Constitution, is very real and ever present. In fact the only safeguard against executive directives – if you can call it a safeguard – is an opinion rendered by the Office of Legal Counsel. But, as we have seen, when a Chief Executive wishes to issue a directive, that Chief Executive calls upon the Office of Legal Counsel for the purpose not to tell the Chief Executive what he cannot do under the law but, rather, to give its imprimatur on what the Chief Executive has already decided to do; and the Office of Legal Counsel will almost invariably do whatever the Chief Executive wants. The Office of Legal Counsel of the Justice Department “licenses” the Chief Executive’s unilateral executive actions in the form of a legal opinion. We have seen this before. Recall how Obama asked for and obtained, from the Office of Legal Counsel, “legal license” to usurp Congressional authority to regulate naturalization, allowing Mexicans, who came to this Country illegally, to remain in the Country indefinitely. Thus, the Office of legal Counsel, in the Department of Justice, wrote a lengthy opinion that demonstrably licenses Obama to circumvent Article 1, Section 1 of the U.S. Constitution that sets forth clearly, concisely and categorically: “all legislative Powers . . . shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” and Article 1, Section 8 of the Constitution says that  “the Congress shall have Power to establish . . . a uniform rule of Naturalization.”Now, there is nothing in the Constitution that tells us under what circumstances use of an executive directive happens to cohere with the U.S. Constitution. But, this does not mean that a President may use executive directives haphazardly. There are guidelines, even if they are informal. The salient guideline is that embraced in the Separation of Powers Doctrine. Under Article 1, Section 1 of the Constitution, the duty to legislate the Laws of the Land rests solely with Congress. And, Article 2, Section 3 of the Constitution mandates that the President “shall take Care that the Laws be faithfully executed. . . .” The President doesn’t take care to faithfully execute the laws of the Land when he makes law by executive fiat. For his actions then amount to  subsuming the Legislative Branch into the Executive Branch. Moreover, reliance on a legal opinion of the Justice Department’s Office of Legal Counsel that simply rubber stamps what a President seeks to do does not constitute binding legal authority. But, then, the Justice Department, as a “rubber stamp” for the President operates, unfortunately, as one would expect. The Justice Department, after all, is not an independent organ of Government. It operates within the Executive Branch and will almost invariably do whatever “the Boss” wants it to do, even, and especially, as here, when the President uses the power of his Office with impunity, without regard to the legality of his actions.Similarly, when a President says that he will take action when Congress doesn’t act, he is taunting Congress and threatening Congress. The Boss is telling Congress what Congress must do. Congress, though, doesn’t work for the President. Congress works on behalf of the American people and is answerable to the American people, not to the President. We see that Obama told Congress to reform immigration law and, when Congress failed to do so, Obama placed himself in the shoes of Congress and created immigration law himself. Hillary Clinton, too, has already strongly suggested that she will – if she, in a worst case scenario, became President of the United States – use executive directives with impunity to accomplish her goals, if Congress doesn’t act at her behest.But, nothing in the annals of executive directive history, can possibly serve as preparation for Obama’s desired new escapade. On January 2, 2016, in an article titled, “Obama and Attorney General to Discuss How to Curb Gun Violence” – tellingly, retitled in the digital version of the story as “Obama to Consider Executive Actions on Gun Violence” –  the New York Times reported that Obama plans to meet with the Attorney General to discuss use of the Office of the Chief Executive to legislate new restrictive gun laws. The NY Times article sets forth that, “facing the reality that lawmakers are unlikely to strengthen the country’s gun laws anytime soon, the administration has been looking at ways Mr. Obama can tighten gun sales unilaterally. . . .” Once again, Obama is calling on the Office of Legal Counsel to render a legal opinion that will serve as a plausible, if not legally sound, basis for upholding an executive directive on his behalf. But, understand that a legal directive that impinges on and infringes the Second Amendment to the U.S. Constitution is not something to be dismissed as inconsequential to the continued existence of a free republic. It is one thing for Congress to enact restrictive gun laws – and Congressional Democrats have successfully done so in the past and are attempting to do so now – but it is quite another thing for the President to create antigun laws by executive fiat. Those laws enacted by Congress are always subject to challenge in the U.S. Supreme Court. Executive directives, though, are not, which makes an executive antigun directive a preferred fallback position by which a Chief Executive might seek to “make law” he wants since that directive cannot be readily challenged in Court, even under the due process clause of the Fifth Amendment to the U.S. Constitution. But, then, if Obama dares to attack the Second Amendment, through the vehicle of a Presidential directive, such illegal action is of an order of magnitude beyond anything a sitting President has done before. In fact, an executive directive that directly impacts a fundamental right amounts to nothing less than a takeover of Government. We must repeat that. If Obama uses the Office of the Presidency to undermine the Second Amendment to the U.S. Constitution, any such executive action amounts to a coup d’état of Government. Whatever impact globalization has on economic and military policy of this Nation, such globalization issues have absolutely no bearing on the efficacy and supremacy of U.S. jurisprudence and on the efficacy and supremacy of the U.S. Constitution. For, anything that negatively impacts the very structure of our Republic is immediately suspect.The very thought that a U.S. President might dare to undercut the Bill of Rights compels one to consider whether the Executive Branch of this Government has been compromised and is working on behalf of forces both inside this Country and outside it that are actively, ruthlessly, and, heretofore, silently working for the dissolution of our Constitution and for the dismantling of our Nation State. If so, such forces must be doing so in preparation for this Country’s entry into a new international, globalist, socialist world order. What the American people have learned from and continue to learn from Barack Obama’s “reign” should, hopefully, do much to forestall the coronation of Hillary Clinton.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

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

THE NEW YORK TIMES RESURRECTS FEINSTEIN'S MONSTER

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

CLINTON CLAMORS, ALL GUNS MUST GO!

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

OBTAINING A CONCEALED HANDGUN CARRY LICENSE IN THE STATE OF MAINE

OUR PURPOSE FOR THE "ROAD TRIP" MULTI-SERIES ARTICLE

This is the third segment of or installment in our continuing “Road Trip” multi-series article dealing with handgun license reciprocity. The salient purpose of this series is to educate the American public on the difficulties a person encounters attempting to secure concealed handgun licenses or permits in multiple jurisdictions. By providing gun owners with a detailed look at the various handgun licensing schemes of the various States, we make poignantly clear how difficult, time-consuming, and costly the handgun licensing application process is. Yes, some States create many more hoops for the applicant to jump through than others, but in no State, where a handgun licensing application process has been established at all, can the application process truly be said to be relatively simple and straightforward. It isn’t. And, duplication of effort is the norm where an individual seeks to obtain a handgun carry license or permit in multiple jurisdictions. For purposes of this study, we follow the ordeal of an actual individual, an American businessman, who has, through the years, applied for and obtained several concealed handgun licenses from multiple jurisdictions. You see, firsthand, just how complicated and convoluted concealed State handgun licensing application processes are.To protect the identity of this individual, whose experiences we illuminate for our readers, in detail, we have provided him with a pseudonym. We refer to him, throughout this multi-series article, as Mr. Wright. Through the experiences of Mr. Wright, we lay out for you the actual steps that Mr. Wright went through to obtain his handgun licenses – the frustrations and travails – simply to exercise the inalienable right to keep and bear arms.In the first two segments or installments of this multi-series article we discussed the handgun licensing application process established by the Nassau County Police Department, Long Island, New York, and by the New York City Police Department. The fact that New York City does not recognize a validly issued concealed handgun license issued to a civilian from another New York jurisdiction should not be lost on anyone.In this segment we discuss the concealed handgun application process established by the State Legislature for the State of Maine. Be advised that what we provide for you here is only a very brief summary. The task of reviewing police department application procedures in conjunction with an analysis of the pertinent Statutes, for just one jurisdiction, is a monumental task. There are often, we have found, inherent ambiguities and vagueness in the law and, to deal with those, requires a comprehensive analysis of the law. We are completing at the moment a highly detailed analysis of the handgun licensing laws of Maine and will publish our legal exegesis in the Arbalest Quarrel “White Papers.” We will provide a detailed analysis of the concealed handgun carry application procedures of other jurisdictions in the Arbalest Quarrel “White Papers” from time to time.

THE CONCEALED HANDGUN CARRY PERMIT APPLICATION PROCESS IN MAINE

At the time that Mr. Wright first manifested a desire to carry a concealed handgun in the State of Maine, in the last decade of the Twentieth Century, Mr. Wright had to apply for a “PERMIT TO CARRY A CONCEALED FIREARM,” as issued by the Maine State Police. But, on July 8, 2015, the Governor of Maine, Paul LePage, signed, into law, ME S.B. 245, titled, “An Act To Authorize the Carrying of Concealed Handguns without a Permit.” The Bill, ME S.B. 245, did not go into effect as a new law, immediately, in Maine. In accordance with State practice, the Act would go into effect 90 days after the State’s Legislature adjourns for the session. See Maine Government Glossary, "Effective Date." In fact, 2105 Bill Text ME S.B. 245 did go into effect very recently, on October 15, 2015, virtually one month ago from the day of posting of this segment. The Act amends specific portions of Maine’s Revised Statutes. And, those amendments include detailed additions to and some deletions of select passages of Maine's Revised Statutes.One portion of the Act is codified in 12 M.R.S.A. § 11212. Several other portions of the Act are codified in various sections of 25 M.R.S. §§ 2001-A, 2003-A, 2004-A, and 2112. Oh, and by the way, the concealed handgun permit system is still operational in Maine. It exists alongside the present permit-less system. The Maine Legislature may have kept the concealed carry permit system in effect, in part, at least, to be able to account for and to effectuate reciprocity with other States that would not otherwise recognize the right of a citizen of the U.S. and a resident of Maine, to carry a handgun concealed in a sister State if that U.S. citizen and resident of Maine did not have physical proof of his or her right to carry a handgun concealed. Still, the existence of both a concealed handgun carry permit system coupled contemporaneously with a concealed handgun carry permit-less system does create some ambiguity and vagueness in the law, and some unfortunate confusion, for residents of Maine and for non-residents, alike. But, we cannot get into a discussion of this in a Blog  summary. We will, however, deal with these problematic issues in a "White Paper" to be published in the near future.Now, the Maine Legislature may or may not have been aware of problems attending the fact of two types of concealed carry systems operating co-extensively. Be that as it may, during the early 1990s, when Mr. Wright expressed a desire to carry a handgun, concealed, in Maine, for the purpose of self-defense, Mr. Wright didn’t have a choice. He had to secure a concealed handgun carry permit as issued by the Chief of Police for the State of Maine if he wished to carry, lawfully, a concealed handgun on his person within the State of Maine.Mr. Wright continued to utilize his team of experts to do the necessary preliminary work of obtaining the requisite explanatory materials and application forms for Mr. Wright. The Maine State Police have set up a somewhat different set of preliminary procedures for non-residents – to establish whether the non-resident qualifies for a Maine concealed carry permit. As the Maine State Police, Department of Public Safety website sets forth on the home page: “Please check this list to see if the State Police issues concealed handgun permits in the city\town you live in. If you do not see the name of the city\town you live in on this list please contact your respective city\town office for more information on how to apply for a concealed handgun permit. If you live in a city\town that has their own police department you must go through them to obtain a concealed handgun permit.”The Maine State Police requires that a non-resident first obtain a concealed handgun carry license or permit in the applicant’s own State of residence before the Maine State Police will consider issuance of A “NON-RESIDENT PERMIT TO CARRY CONCEALED FIREARM.” Note: this can create a serious problem for residents of States, such as New York, that have instituted very difficult standards for the issuance of any kind of concealed handgun carry license. In fact, had the NYPD License Division not issued Mr. Wright a “CARRY BUSINESS LICENSE,” the Maine State Police would not have even entertained Mr. Wright’s application for a “NON-RESIDENT PERMIT TO CARRY CONCEALED FIREARM.”Moreover, Mr. Wright’s restricted “TARGET/HUNTING LICENSE,” issued to him by the Nassau County Police Department, would not have sufficed as an effective firearm’s license in lieu of a “CIVILIAN CARRY LICENSE,” which the NCPD simply does not issue to most civilians – other than to politicians and judges – as a matter of policy. And, by the same token, a restricted New York City “PREMISES LICENSE,” is not at all similar to an unrestricted “CARRY BUSINESS LICENSE.” As the Maine State Police see it, the denial to a person of a concealed carry license or permit in a person’s State of residence is ipso facto sufficient evidence that a person does not qualify for Maine’s “NON-RESIDENT PERMIT TO CARRY CONCEALED FIREARM” either – notwithstanding that the Maine State Police are almost certainly aware that many jurisdictions – such as New York and Connecticut – establish, for their residents, standards for issuance of concealed carry licenses or permits that are almost impossible to meet. Fortunately, for Mr. Wright, he did obtain, with the critical assistance of his team of experts, an unrestricted, “BUSINESS CARRY LICENSE,” and that provided, as a condition precedent, the necessary basis upon which the Maine State Police would begin to entertain Mr. Wright’s application for a “NON-RESIDENT PERMIT TO CARRY CONCEALED FIREARM.”

CONCLUDING NOTE

If you obtain nothing else from this multi-series article, hopefully you can begin to appreciate the complexity and difficulty inherent in the attempt to exercise one’s Second Amendment right to keep and bear arms. Difficult enough as it is, often enough, to exercise one’s fundamental right to keep and bear arms in just one jurisdiction – now multiply that complexity and difficulty as one seeks to exercise his or her Constitutional Right to keep and bear arms in multiple State jurisdictions – thus, the need for universal concealed handgun reciprocity.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

NEW YORK CITY, NY FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE

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

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

PART TWO: NEW YORK CITY, NY FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE

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

SYNOPSIS OF PREVIOUS ARTICLE

In our previous article, we explained the process of securing a handgun license in Nassau County. We explained that Mr. Wright, a successful businessman, who lives in Nassau County, New York, had applied for a “CIVILIAN FULL CARRY LICENSE.” That was the nomenclature that the Nassau County Police Department used for an unrestricted concealed handgun carry license. But as an attorney relayed to Mr. Wright, specific information that the Nassau County Licensing Officer explained to the attorney, the Nassau County Police Department did not, in actual practice, issue NCPD "FULL CARRY LICENSES" to civilians unless those civilians happen to be judges or politicians. So, very few “CIVILIAN FULL CARRY LICENSES” are ever issued in Nassau County. That is quite an admission on the part of the Nassau County Police Department Officer. Apparently, the lives of judges and politicians are deemed more important than those of any other law-abiding resident of Nassau County. After much labor, the best that Mr. Wright could obtain for himself was a Nassau County “TARGET/HUNTING LICENSE.”Even though Mr. Wright is a resident of Nassau County as previously mentioned, his corporate offices are not in Nassau County, Long Island, New York. His corporate offices are in New York City. Mr. Wright first sought, albeit, ultimately, unsuccessfully to obtain a concealed handgun carry license for his hometown, in Nassau County, Long Island, New York. And, he believed, logically, that once he secured the “CIVILIAN FULL CARRY LICENSE,” that license would be valid throughout the State of New York even if not valid in any other State. Simple enough, you might think. Simple enough, Mr. Wright thought. Mr. Wright was wrong in his initial assessment. As he found out, had Mr. Wright been successful in obtaining a “CIVILIAN FULL CARRY LICENSE,” that license would not be valid in New York City. Be that as it may, since Mr. Wright has his business offices in New York City and, as the manner in which he conducts business requires him often to carry substantial cash and other negotiable instruments, his life and well-being are in constant danger. Mr. Wright was determined to obtain an unrestricted concealed handgun carry license from the New York City Police Department. This time, Mr. Wright hired a professional team, consisting of, one, a professional firm that is knowledgeable about and assists individuals, such as Mr. Wright, in obtaining firearms’ firearms’ licenses and permits throughout the State and in other jurisdictions across the Country, and, two, a licensed New York attorney. With the assistance of these professionals, Mr. Wright would enhance his chances on securing an unrestricted concealed handgun carry license for himself.

THE NEW YORK CITY FIREARMS’ LICENSING PROCEDURES

Although Mr. Wright retained the services of professionals to assist him in securing an unrestricted concealed handgun carry permit, Mr. Wright, who always prides himself on being “on top of his game,” decided to learn as much as he could about the New York City firearms’ licensing procedures. So, he took a look at the New York City Police Department website.On the far left-side of the website’s main page, there is a laundry list of menu options. The one Mr. Wright was looking for was set forth clearly enough. It was titled, “FIREARMS LICENSING.” Mr. Wright clicked on the link. Unlike Nassau County, the website did not provide a manual that Mr. Wright might download, but there were a list of menu options that explained the firearms’ licensing procedures that the New York City Police Department (“NYPD”) had established. There were five links: ONE, “THE LICENSE DIVISION;” TWO, “TYPES OF LICENSES;” THREE, “HANDGUN LICENSE CONSULTING FIRMS;” FOUR, “INSTRUCTIONS TO ALL HANDGUN LICENSE APPLICANTS;” AND, FIVE, “FEES.” Mr. Wright reviewed all the material. He would have many questions for his team of experts.

THE LICENSE DIVISION

“The License Division receives many inquiries from the public regarding the procedures involved in obtaining a permit for a handgun. Because of the serious safety concerns inherent in the possession of handguns, it is recommended that the decision to obtain a handgun license be carefully considered and that a licensee receive training in the safety and use of a handgun. Licensees must become familiar with all laws and regulations relating to handgun ownership. The following sections provide information in order to assist persons who wish to apply for a handgun license. They do not in any way imply that a license application will be approved.The following pages have been prepared as a guide to assist you in deciding which type of handgun license may be appropriate for you. If you decide to apply for a license you must APPEAR IN PERSON at the License Division with the completed application, the documents specified in the application instructions, the application fee, and the fingerprint fee. These are the only fees you are required to pay to have your application processed. The fees may be paid by credit card or in the form of two U.S. POSTAL OR BANK-DRAWN MONEY ORDERS made payable to the New York City Police Department, CASH IS NOT ACCEPTED. Make sure that you save the receipt for your application fee given to you by the cashier. This receipt is proof of payment and contains your application number, which is required for any subsequent inquiries regarding the status of your application.If you intend to apply for a license related to your employment, profession, or business, you may ask to speak to an application reviewer who will screen your application and documents, and will assist you in determining the type of license you appear to be eligible for. Whether or not you choose to have your application screened by a reviewer, you will have to provide the documentation specified in the application instructions at the time of application submission.After you file your application you will be contacted for an interview and may be required to submit additional documentation. All documents will be examined and evaluated, and all factors will be considered in making the determination as to your qualification for an employment, profession, or business related license.Regardless of the reviewer's recommendation, you may apply for whichever type of license you choose. The screening process is merely an attempt to assist you, and does not affect the final decision regarding your application. You must be twenty-one (21) years of age to apply for a handgun license or rifle/shotgun permit.” As Mr. Wright reviewed the extensive on-line information, he learned that the NYPD classifies handgun licenses into four categories. In the back of his mind Mr. Wright wondered why Nassau County established six categories of handgun licenses and was a little perturbed at the mind-numbing complexity and inconsistency of handgun licensing standards that existed throughout the State.

TYPES OF HANDGUN LICENSES ISSUED BY THE NYPD

PREMISES LICENSE: IS A RESTRICTED TYPE OF LICENSE. It is issued for your RESIDENCE or BUSINESS. The Licensee may possess a handgun ONLY on the premises of the address indicated on the front of the license. Licensees may also transport their handguns and ammunition in SEPARATE LOCKED CONTAINERS, DIRECTLY to and from an authorized range, or hunting location. HANDGUNS MUST BE UNLOADED while being transported.CARRY BUSINESS LICENSE: This is an unrestricted class of license which permits the carrying of a handgun concealed on the person. It is valid for the business name, address, and handguns listed on the front of the license. It is not transferable to any other person, business, occupation, or address, without the written approval of the commanding officer, license division.LIMITED CARRY BUSINESS LICENSE: IS A RESTRICTED TYPE OF LICENSE. The licensee may only carry handguns indicated on the license in accordance with the specific limitations listed thereon. At all other times the weapon must be safeguarded within the confines of the business address listed on the front of the license either concealed on the licensee's person in a proper holster or stored unloaded in a locked safe. SPECIAL CARRY LICENSE: Is valid for the business name, address and handguns listed on the front of this license, only while the licensee has in his possession a valid basic county license issued according to the provisions of article 400 of the N.Y.S. Penal law. Upon the revocation, suspension, or cancellation of the basic license, the special license is rendered void and must be immediately returned to the license division.CARRY GUARD LICENSE: (SECURITY GUARDS, ETC.) Applications for this type of license must be made with the documentation provided by a company's Gun Custodian. It is issued only for the handgun listed on the license. The handgun may be carried only while the licensee is actively engaged in employment for the company whose name appears on the license, and/or while licensee is in transit directly to or from residence and place of employment. At all other times the handgun must be stored unloaded in a locked container, at either the address on the license, or at the employee's legal residence (within the State of New York).Mr. Wright determined that he must obtain an “unrestricted” handgun license if he were to be able to adequately defend his life. The NYPD referred to this type of license as a “CARRY BUSINESS LICENSE.”Mr. Wright relied on his team of experts to assist him. He made it very clear to his this team of experts that he must obtain an unrestricted, concealed handgun carry permit and they were to assist him to that end.Mr. Wright first had to gather information that was required of all applicants, as set forth in the “HANDGUN LICENSING INFORMATION” material. This was set forth cogently and comprehensively on the NYPD website under the heading:

INSTRUCTIONS TO ALL HANDGUN LICENSE APPLICANTS

The application form MUST be typewritten and signed by you. Only the original application form will be accepted. DO NOT SEND A PHOTOCOPY. The application form must be completely filled out and presented by you personally at the License Division. At the time you submit your application, you must furnish the items listed below that are applicable to you. All documents, certificates, licenses, etc., must be submitted in the original. (A copy certified by the issuing agency as true and complete is also acceptable). In addition, a legible photocopy of each item submitted must accompany the original or certified copy. Originals and certified copies will be returned. Your application will not be accepted without the required documents.1. Photographs: Two (2) passport size color photographs of you taken within the past thirty (30) days are required. They should show you from the chest up. The wearing of any article of clothing or adornment that obscures identification is not permitted.2. Birth Certificate: In lieu of your birth certificate, some other proof of your birth date, e.g., a military record, U.S. passport or baptismal certificate must be submitted. You must be twenty-one (21) years of age to apply for a handgun license or rifle/shotgun permit.3. Proof of Citizenship/Alien Registration: If you were born outside the United States, you must submit your naturalization papers or evidence of citizenship if derived from your parents. All other applicants born outside the United States must submit their Alien Registration Card. If you have lived in this country less than 7 years you must submit a good conduct certificate, or equivalent, from your country of origin and two (2) letters of reference that certify to your good character. 4. Military Discharge: If you served in the armed forces of the United States, you must submit your separation papers (DD 214) and your discharge.5. Proof of Residence: You must submit proof of your present address. Proof may consist of, but is not limited to, a real estate tax bill, ownership shares in a cooperative or condominium, or a lease. You may also be requested to supply further documentation i.e., a New York State Driver's License, a New York State Income Tax Return, or a current utility bill.6. Arrest Information: If you were ever arrested, indicted or summonsed for any reason, other than a parking violation, you must answer "Yes" to question #23 on the handgun license application and submit a certificate of disposition showing the offense and disposition. Also, you must submit a detailed, notarized statement describing the circumstances surrounding each arrest or summons. YOU MUST DO THIS EVEN IF: the case was dismissed, the record was sealed or the case was nullified by operation of law. The New York State Division of Criminal Justice Services will report to us every instance involving the criminal prosecution of an applicant. DO NOT rely on anyone's representation that you need not list a previous arrest or summons.If you were ever convicted or pled guilty to a felony offense or a serious offense, as defined in Penal Law Section 265.00(17), an original Certificate of Relief of Disabilities, must be submitted.6a. Order of Protection: If you have ever had an Order of Protection issued against you, or issued on your behalf against anyone, you must list the following information: Court of Issuance, Date of Issuance, Complainant's name, address and phone number, Complainant's relationship to you, and reason for issuance of Order of Protection.7. Proof of Business Ownership: If you are making application for a carry or premises license for use in connection with a business, you must submit proof of ownership for that business. Such proof must clearly state the names of the owner(s), or, if a corporation, the names of the corporate officers. A Corporation must submit its corporate book to include filing receipt, certificate of incorporation and minutes of the corporate meeting reflecting current corporate officers; others must provide their business certificate or partnership agreement, whichever is applicable. If the business requires a license or permit from any government agency, e.g., alcohol or firearms sales, gunsmith, private investigation and guard agencies, you must submit the license or permit or a certified copy thereof. You must also submit proof of address for the business. Proof may consist of a utility bill, not more than 60 days old, in the name of the business or a lease in the name of the business.8. Letter of Necessity: All applicants for a carry license and those seeking a premises license for use in connection with their employment MUST complete the Letter of Necessity found on page 3 of the application. NO SUBSTITUTES WILL BE ACCEPTED. 9. Social Security Card: All persons filing applications must bring their original Social Security cards with them to the License Division when applying for a license.”Mr. Wright then reviewed the last section, titled, aptly and succinctly enough: FEES “The application fee is $340.00.Please note that effective March 19, 2012, the fingerprint fee is $91.50 for all applicants. Due to a decrease in the charge for FBI electronic civil fingerprint submissions, the fee for fingerprints will be $89.75 effective February 1, 2015.These fees may be paid by credit card or by two separate money orders made payable to the New York City Police Department. ALL FEES ARE NON-REFUNDABLEIf you have any questions concerning your application, please call (646) 610-5560. Applications must submitted in person at the License Division, 1 Police Plaza, Room 110, or the Rifle and Shotgun Section, 120-55 Queens Boulevard, Room B-11, Kew Gardens, NY. You may submit your application between the hours of 8:30 a.m. until 4:00 p.m., Monday through Friday. It takes approximately 45 minutes to process an application. Please arrive early enough to complete the application process by closing time.Mr. Wright was not deterred by the fees although, as a strong supporter of the Bill of Rights in general and of the Second Amendment in particular, he was more than a little annoyed at the fact that he had to pay fees to the New York City Police Department in order to be able to exercise a basic right, guaranteed to him under the U.S. Constitution. And, Mr. Wright was aware that many New York residents are not wealthy by any means, and the expenditure of over $400.00 to acquire a license – expenses apart from the cost of a firearm itself and other assorted items – could very well preclude many law-abiding New York residents from exercising what the Founders of the Republic insisted to be a fundamental right. Indeed, when one factors in the cost of a semi-automatic handgun, as produced by a respectable manufacturer, and the costs of a quality holster, ammunition, trigger-lock, gun box or gun safety cabinet, cleaning kit, membership at a gun range, and NRA gun safety training course, the cost of NYPD filing fees is, in fact, a very small, although not insignificant, portion of the entire monetary outlay.And, in Mr. Wright’s case, since he was intent on securing an unrestricted business carry license – that is extremely difficult to obtain, necessitating the services of attorneys and other specialists – Mr. Wright was well aware that he would have to spend thousands of dollars on professional fees if he were to have a reasonable chance of obtaining his much sought-after unrestricted New York City “CARRY BUSINESS LICENSE.”Many New York residents learn to their dismay, after much time, money, and effort expended to obtain a license – even a basic “PREMISES LICENSE” – that no handgun license will be issued if, as determined by the License Division of the NYPD, there is any blemish on a person’s record. And, filing fees are not refundable. And, if that is the case, and if a person is intent on obtaining a handgun license, then even the less well-heeled New York resident realizes that he or she will need to secure the services of professionals to handle the administrative and judicial appeals – time-consuming and costly processes and ordeals in their own right.Mr. Wright was less vexed by the monetary outlay – substantial though it was – than he was exasperated by the sheer volume of documentation that he had to gather together and provide the NYPD since acquisition of a “CARRY BUSINESS LICENSE” requires the amassing of substantial documentation about Mr. Wright’s business – an inordinate amount of documentation, far beyond the documentation required of an applicant who seeks to secure or who might only be able to secure a restricted, “PREMISES LICENSE.” And, Mr. Wright was not pleased that massive amounts of proprietary business information would now fall outside his control and purview. He had to trust the NYPD to keep his information secure.

THE MATERIAL THAT MR. WRIGHT NEEDED TO AMASS AND TO DELIVER TO THE NYPD

Mr. Wright downloaded the application form that was provided on the NYPD website. There were the usual questions he had seen before when he completed the Nassau County Police Department handgun license application. There were questions pertaining to military service, questions pertaining to use of narcotics, questions pertaining to arrest record, mental health, and whether the applicant had ever suffered from a disability that might affect one’s ability to handle a handgun. In particular the NYPD handgun application required the applicant to state affirmatively whether the applicant suffers from epilepsy, diabetes, fainting spells, blackouts, loss of memory, or any nervous disorder. And, recently, the NYPD application has added a new category – apparently operating as a disqualification for issuance of a handgun license – involving orders of protection and there were several questions related to the issue of domestic disturbance and domestic violence. Mr. Wright, fortunately, was able, honestly, to respond in the negative to any question that might operate as a basis for disqualification for any kind of handgun license. But, there was more, much more, to the application process.Mr. Wright came to a section of the Application, titled, “ADDITIONAL INSTRUCTIONS FOR CARRY LICENSE APPLICANTS,” sub-titled, “LETTER OF NECESSITY.” This section was targeted to those applicants, who, like Mr. Wright, were applying specifically for a concealed handgun carry license. The first question set forth, “All applicants for a carry license for use in connection with a business or profession must answer the following questions in the space provided. If additional space is necessary continue your letter on reverse side. In ALL CASES the form provided must be used.” The applicant for a concealed handgun carry license, whether for a restricted or unrestricted carry license has to set forth, “a detailed description of the applicant’s employment and an explanation of why the employment requires the carrying of a concealed handgun.” Now this question is tricky. What the NYPD is looking for – although the rationale for a carry license is unstated – is whether the applicant for a concealed handgun license can distinguish himself or herself from others. But, only experienced experts would know this. In other words, apart from the fact that any individual can be assaulted at any time and in any place, Mr. Wright had to explain, to the satisfaction of the Licensing Officer, why Mr. Wright felt that his life and well-being were more likely to be jeopardized on any given day that was the life of any other New York resident – and, more to the point, Mr. Wright had to explain why he felt that he was more exposed to danger from assault or robbery than any other New York businessman.Mr. Wright’s team of experts knew that, as a necessary condition for the issuance of a concealed handgun carry license, Mr. Wright would have to demonstrate to the satisfaction of the NYPD License Division Officer, that he can adequately distinguish himself from the countless others who do business in New York. This translates into the manner in which Mr. Wright conducts his business. Now, the nature of Mr. Wright’s business requires him to collect, carry, and transport substantial sums of money and other negotiable instruments throughout the City of New York and to and from banks. Doing so places his life in jeopardy in an uncommon way, as he is a tempting target for robbery – no less so than is the case for those private security individuals who work for companies that collect, transport, guard, and deliver cash to and from businesses. This fact, Mr. Wright had to make poignantly clear to the NYPD License Division Officer who would be reviewing his application for a “CARRY BUSINESS LICENSE.” Mr. Wright’s team of experts would assist him in drafting the “LETTER OF NECESSITY.”Lastly, the application for a concealed handgun carry license required Mr. Wright to provide recent sales tax reports and Federal and New York State Tax returns for the previous year, and daily bank deposit slips and corresponding bank statements for the preceding six months from the date set for an interview with an NYPD License Division Officer. In addition, Mr. Wright also had to provide payroll information and employee withholding taxes; Mr. Wright’s Company workers’ compensation policy; and, as well, Mr. Wright had to provide valid local, State and federal licenses, permits, and certificates that were required in order to conduct business.Given the sheer volume of information that Mr. Wright had to compile, collate, and copy for the NYPD License Division Officer who would be conducting the interview and assessing the merits of his application for a “CARRY BUSINESS LICENSE,” Mr. Wright realized that the task of obtaining that license was a major business project in its own right, requiring Mr. Wright to expend an inordinate amount of time, money, and energy that might have been better spent on the running of a huge business enterprise. Mr. Wright could and did delegate some of the work in gathering together the necessary documentation to trusted people inside his Company. But, Mr. Wright had to coordinate what became a massive undertaking effort and he had to ascertain that all necessary documentation was gathered, copied, and collated so that no documentation was missing once he met with the NYPD License Division Officer. And, throughout this massive undertaking, Mr. Wright was guided constantly by his team of experts.Once all the documentation that the NYPD License Division Officer required had been compiled, and a date had been set for the interview, Mr. Wright had to cart that documentation over to the NYPD. And, that, itself, was no easy task, as the documentation would easily fill a few large filing cabinets. Mr. Wright’s team of experts warned Mr. Wright that the NYPD License Division Officer, in his sole discretion, might require yet other documentation in support of his application for a concealed handgun carry license. So, Mr. Wright could never be certain that the information required of him, as set forth in the application forms, would be sufficient. As it turned out, the NYPD License Division Officer, who was conducting the interview, pointed out to Mr. Wright that he would need to see Mr. Wright’s corporate books. So, Mr. Wright had to make arrangements to meet with the Officer once again to provide the necessary corporate books for the Officer to review.At the end of the day the sum total of proprietary information that Mr. Wright was required to produce at the request of the NYPD License Division Officer was not unlike the vast reams of information attorneys might request of each other when undertaking discovery on behalf of their respective clients in a complex legal case.Approximately, six months from the date that Mr. Wright first sought to obtain an unrestricted, “CARRY BUSINESS LICENSE,” Mr. Wright was issued his much sought after “CARRY BUSINESS LICENSE.” Mr. Wright was contacted by the License Division. And, he would have to come down to the License Division to obtain his license. New York Police Department policy required Mr. Wright to personally arrive at the License Division within 30 days of notification that his "CARRY BUSINESS LICENSE" was available. Failure to pick up his license within the 30 day window would result in automatic cancellation of his license. To the best of our knowledge and belief that 30 day window to pick up one's license is still in effect. After Mr. Wright picked up his license, he was told that he has thirty days, counting from the date that he received his license in hand, to purchase a handgun. And, the purchase of a handgun must be made through a licensed New York dealer of firearms or, otherwise, by some other party through special instructions from the License Division. The "CARRY BUSINESS LICENSE," constituted a "NOTICE OF APPROVAL" to purchase one handgun Once Mr. Wright purchased his handgun, he had 72 hours from the point in time that he made his purchase to, once again, travel to the main headquarters of the NYPD, at One Police Plaza, where he had first met with an  License Division Officer, to have the gun inspected. Mr. Wright could not carry that handgun on his person. Because, at this point in time, he still did not have authorization to carry a handgun on his person, concealed or open. But, he had to bring the handgun down to One Police Plaza, unloaded, in a locked box, without ammunition on his person, and the handgun had to be equipped with trigger-locking device. The NYPD licensing officer would then inspect the handgun and the make, model, type, caliber, and serial number would all be recorded on the license. Mr. Wright was aware that the "CARRY BUSINESS LICENSE" is not Mr. Wright's by right, but only by privilege, granted to him by the NYPD, and therefore revocable by the NYPD at any time. In fact, language on the "CARRY BUSINESS LICENSE" itself makes this point poignantly clear: "This license is revocable at any time. Upon demand of a police officer, a licensee must immediately surrender his/her license and handguns. Lost, stolen, confiscated, or surrendered handguns must be reported to the License Division immediately at 646-610-5560 or 646-610-5154." As a holder of an unrestricted, "CARRY BUSINESS LICENSE," Mr. Wright might possibly possess, but at the sole discretion of the NYPD, a second handgun. If the NYPD permitted Mr. Wright to possess a second handgun, he would, once again, have to travel to One Police Plaza to obtain, from the License Division, a "PURCHASE AUTHORIZATION FORM," setting forth the make, model, type, and caliber of the handgun that he wished to purchase and possess. And, once again, after Mr. Wright obtained that second firearm, he would have to return to One Police Plaza to have the handgun inspected. He would have to be very careful that, once again, as well, the handgun was secured in a locked-box, sans ammunition and he must not have ammunition anywhere on his person, and the handgun must also be secured with a trigger lock. Details concerning the make, model, type, caliber, and serial number would all be duly recorded on the carry license.For those New York residents who hold a valid, "LIMITED CARRY BUSINESS LICENSE," only one handgun is permitted on the license. That is not to mean that a holder of either an unrestricted, "CARRY BUSINESS LICENSE," or holder of a restricted, "LIMITED CARRY BUSINESS LICENSE," cannot lawfully possess other handguns. But, such other handguns that a licensee might happen to possess would have to be listed on another handgun license. For example, if Mr. Wright sought to obtain one or two additional handguns, other than those two listed on his license, he would have to secure another type of New York handgun license, namely and specifically, a "PREMISES LICENSE." And any additional handguns that Mr. Wright happened to own and possess could not lawfully be used for concealed carry. those handguns and only those handguns that appear on Mr. Wright's "CARRY BUSINESS LICENSE" may be lawfully carried concealed in public, for the purpose for which the license was issued. If Mr. Wright happened to carry a handgun that was not specifically listed on his license, Mr. Wright's license would be summarily revoked and he would likely face criminal charges, as well, for unlawful possession of a firearm. Also, even if Mr. Wright has two handguns listed on his "CARRY BUSINESS LICENSE," he is only permitted to carry one of them at a time. He cannot legally carry both handguns. This limitation does not, of course, apply to current, active-duty NYPD Officers, who are governed by NYPD policy affecting active-duty NYPD Officers and not by License Division policy that affects civilian handgun licensees.With his license in hand, Mr. Wright then went to a New York licensed gun dealer and purchased his handgun, trigger lock, ammunition, and other handgun accessories. Mr. Wright was also aware that his handgun license would have to be renewed every three years; that he was responsible for the renewal of his license every three years; and that the process was not automatic. He would have to prove, to the satisfaction of the NYPD License Division Officer, that he has a continued need for a "CARRY BUSINESS LICENSE," and this would necessitate the submission of documentation similar to what he had to submit during the initial application. Nothing can change in regard to Mr. Wright's business. In fact, if the NYPD License Division Officer determined that the nature of Mr. Wright’s business had changed, to the extent that Mr. Wright's “LETTER OF NECESSITY” no longer supported his singular need for a “CARRY BUSINESS LICENSE,” then that license would be cancelled. Moreover, the onus on maintaining his license was on Mr. Wright, himself. If Mr. Wright did not timely renew his “CARRY BUSINESS LICENSE,” the license would be automatically cancelled, and then revoked. And the renewal fee was not insignificant. It is $340.00, valid for three years. Mr. Wright kept his team of experts employed for the specific purpose of making sure that his “CARRY BUSINESS LICENSE” would not be cancelled for failure to timely renew.

PARENTHETICAL NOTE CONCERNING APPLICATIONS FOR HANDGUN LICENSES IN NEW YORK CITY

Today, unlike the period of time when Mr. Wright applied for and obtained his NYPD issued “CARRY BUSINESS LICENSE," the NYPD License Division doesn’t issue an unrestricted concealed carry license immediately. Instead, the License Division issues only a “LIMITED CARRY BUSINESS LICENSE.” This is a restricted license that allows the licensee to carry a handgun concealed only at particular times and on specific days. The issuance of a restricted “LIMITED CARRY BUSINESS LICENSE” in lieu of issuance of an unrestricted FULL “CARRY BUSINESS LICENSE" is, of late, a matter of policy. It appears that the creation of the "LIMITED CARRY BUSINESS LICENSE" by the NYPD is a manifestation of the desire by politicians to curtail civilian ownership and possession of concealed handgun carry licenses to the extent possible. Clearly, in the running of a business that requires a proprietor to carry substantial sums of money or other negotiable instruments, circumstances may require that proprietor to transport negotiable instruments on days and at times other than those listed on the "LIMITED CARRY BUSINESS LICENSE." Be that as it may, that proprietor is not permitted to carry his handgun on his person.Currently, the NYPD policy will issue, during the initial application for a concealed handgun carry license, only limited “LIMITED CARRY BUSINESS LICENSES,” assuming a businessman is qualified to possess a firearm at all and assuming, too, that the businessman can distinguish himself or herself, in the "LETTER OF NECESSITY," from other businessmen who do not have handguns accessible to them for self-defense. Through time the NYPD License Division will consider the issuance of a FULL “CARRY BUSINESS LICENSE," assuming the licensee’s stated “LETTER OF NECESSITY” has not changed and to the extent that the licensee has demonstrated responsible handling and safeguarding of the licensee’s handgun and to the extent that the licensee has shown that he or she has successfully completed a certified handgun safety training course. In other words, the licensee must demonstrably establish a track record of proven ability and responsibility in the safe handling and safeguarding of a handgun, consistent with continuous proof of need for a handgun.Curiously, in many other States that issue concealed handgun carry licenses -- and they don't create odd distinctions between restricted and unrestricted "full carry" handgun licenses -- the applicant must take and pass a certified handgun safety training course before the issuance of a concealed handgun carry license. That isn’t the case in New York. First, one has to have an unblemished record – free of any arrest record or mental health issue and that person must show that he or she is not subject to a protective order – and, second, the applicant must show especial need for the issuance of a concealed handgun carry license that sets that businessman apart from other New York business people, as explained supra, and third, the applicant must provide voluminous documentation to support the claim of especial need, which means exposing massive amounts of proprietary information to the police.

FURTHER TO MR. WRIGHT’S EXPERIENCES IN APPLYING FOR AND OBTAINING CONCEALED HANDGUN CARRY LICENSES

This is not the end of the story. It is just the beginning. Since Mr. Wright does business throughout the Country, he realized that the time, money, energy spent on securing a New York City "CARRY BUSINESS LICENSE" would be of little value in most other States. Thus, the effort expended to obtain the two licenses that he now had – a “TARGET/HUNTING LICENSE” issued by the Nassau County Police Department, and the "CARRY BUSINESS LICENSE" issued by the New York City Police Department, would be of no value to him in virtually any other State he happened to travel to and through as he conducted business. Mr. Wright would need to obtain concealed a handgun carry licenses in virtually every other State he did business in if he were to best protect his life and well-being.Mr. Wright's journey through the Labyrinthine quagmire of State concealed handgun carry licensing would never be an easy one.In the next installment we discuss the application procedure for obtaining an unrestricted concealed handgun carry license as issued by the police authority for the State of Maine.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

Transfers of Assault Weapons by Sale, Gift, Trade or Bequest to New York Police Officers, New York Peace Officers, and to Federal Law Enforcement Officers

THE MATTER OF LAWFUL ACQUISITION OF, LAWFUL OWNERSHIP OF, AND LAWFUL POSSESSION OF FIREARMS, DEFINED AS 'ASSAULT WEAPONS' UNDER THE NY SAFE ACT, AS ACQUIRED BY NEW YORK POLICE OFFICERS, NEW YORK PEACE OFFICERS, AND TO FEDERAL LAW ENFORCEMENT OFFICERS

PART 5: TRANSFERRING AMMUNITION FEEDING DEVICES; TRANSFERRING AMMUNITION; BEQUESTS OF ASSAULT WEAPONS TO NEW YORK POLICE OFFICERS, NEW YORK PEACE OFFICERS, AND TO FEDERAL LAW ENFORCEMENT OFFICERS

SUBPART 3: Transfers of Assault Weapons by Sale, Gift, Trade or Bequest to New York Police Officers, New York Peace Officers, and to Federal Law Enforcement Officers

SUB-SUBPART 1 Transfers of Assault Weapons by Sale, Gift, Trade or Bequest to New York Police Officers and New York Peace Officers

RECAP

We have discussed in some detail the transfer of guns and ammunition. In the matter of ammunition transfers, we have mentioned that New York law concentrates on those transfers that are in the nature of commercial transactions – better understood as commercial sales. And, we have shown that transfers of ammunition that do not properly involve commercial sales are not dealt with clearly in New York law. Since we cannot resolve, categorically and, therefore, absolutely, for you all of the issues pertaining to the transfers of ammunition, we have, at least, laid out, for you, where it is that the problems in ammunition transfers rest and where amendments to the New York Penal Code ought, in the future, to be made.What we can say, categorically, about at least one of the issues involving transfers of handgun ammunition is that, if two law-abiding gun owners and holders of New York handgun licenses wish to transfer handgun ammunition from one to the other person and, if such transaction is in the nature of a sale, rather than, say, simply, in the nature of a gift or bequest, then that transaction is deemed to be a commercial sale or transaction under the law, and the transfer of ammunition from one person to another is unlawful in the event that neither one of the two individuals who wish to consummate the transfer is a licensed dealer in firearms or a registered seller of ammunition. This means that, if two holders of valid New York handgun licenses – or where required, holders of valid New York shotgun or rifle permits, as well – wish to undertake the purchase and sale of ammunition from one person to the other – that is to say, if the parties wish to engage in a commercial transaction – then the parties must employ the services of either a licensed dealer in firearms or a registered seller of ammunition, who acts as an intermediary for the transaction. Either one of those persons, as intermediary, may allow the transfer of ammunition to be undertaken, lawfully. This mechanism of lawful transfer is set forth in Section 50 of the New York Safe Act. But – and this is an important, but – in New York City, transfers of ammunition must be undertaken through a licensed dealer in firearms and not through a person who is simply a registered seller of ammunition if the transaction is to be deemed lawful. Under the Home Rule Provision of New York’s Constitution, NY CLS Const Art IX, § 2, which provides “for the creation and organization of local governments,” and under the Home Rule Statute, CLS Mun HR § 10, “General powers of local governments to adopt and amend local laws,” the New York State Legislature has given Cities wide latitude to enact ordinances that, in their implementation, seemingly contradict State Statute on the subject. So, while State Statute clearly sets forth that registered dealers in firearms and registered sellers of ammunition can both operate as intermediaries for transfers of ammunition, New York City itself does not allow for a lawful transfer of ammunition to be completed through a registered seller of ammunition. In order for the transfer of ammunition between two parties to be lawful in New York City, the transfer must be made only through a licensed dealer in firearms. We discuss this issue at some length and point to the relevant laws in our Article on transfers of ammunition. The Article is titled: Transferring Ammunition Magazines in New York: What You Need To Know.Now, weapons that are defined as ‘assault weapons’ are banned weapons under the New York Safe Act as codified in the Penal Code of New York. We have argued at length in a previous Article of the Arbalest Quarrel that the notion of an 'assault weapon' is a legal fiction. The Article is: NY Safe: Looking at the Assault Weapon.  The expression, 'assault weapon,' is not a trade term and the expression is not utilized by the firearms’ industry; nor is the expression a specifically defined military term of art. The military does, however, use the expression, ‘assault rifle,’ and that expression is defined with particularity in literature of the Defense Department. But the expression ‘assault weapon’ is not and should not be considered an “assault rifle;” nor should it be considered a derivative of the “assault rifle.” It is not and never had been. Nonetheless the expression, ‘assault weapon,’ is defined in New York law, and, since a legal definition exists for it – actually several definitions for the expression exist – in the New York Safe Act, the notion of ‘assault weapon,’ as a creature of New York State Statute, is given an artificial life. The notion of an “assault weapon” is a Frankenstein’s monster that proponents of the New York Safe Act created in order to place restrictions on the weapons the average, law-abiding New York resident may lawfully possess. So, the expression, as it refers to some firearms, does have life – clearly an artificial life, to be sure, but a life, of sorts, nonetheless. One might reasonably expect that, as time goes on, antigun New York Legislators will add to the list of "assault weapons" many more firearms that, at present, are not banned firearms.

HOW DOES NEW YORK DEFINE THE EXPRESSION ‘ASSAULT WEAPON’?

The New York Safe Act of 2013 redefines earlier Penal Code versions of the expression ‘assault weapon.’ And, there is no one unique definition for the expression. There are several. Those definitions all appear in Section 37 of the New York Safe Act. Section 37 of the New York Safe Act is codified in subdivision 22 of the New York State Penal Code Section 265.00, specifically NY CLS Penal § 265.00(22). In a previous Article we provided you with the complete 'assault weapon' definitional scheme. You may take a look at that definitional scheme in our Article titled: NY Safe: 'Assault Weapon Definitions.

WHAT ARE THE LIMITATIONS ON TRANSFERS OF ASSAULT WEAPONS, IN NEW YORK, TO LAW ENFORCEMENT OFFICERS, IN THEIR PERSONAL CAPACITY, THAT IS TO SAY, OUTSIDE OF THEIR OFFICIAL DUTIES?

The New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), and, specifically as codified in NY CLS Penal § 265.00(22)(h) says, in pertinent part, that any firearm defined as an ‘assault weapon’ that was lawfully possessed prior to the enactment of the New York Safe Act, namely prior to January 15, 2013, “may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer.” This means that, if a person happened to be lawfully in possession of an “assault weapon,” prior to the date of enactment of the New York Safe Act, January 15, 2013, and that person (the transferor) wishes to transfer the weapon to another person (the transferee) residing in New York, that original, lawful owner (“first generation” owner) of the “assault weapon” cannot, under the New York Safe Act, lawfully transfer his or her weapon to that other person (the transferee) unless the transferee is authorized to possess an “assault weapon” – a banned firearm – after the date of enactment of the Safe Act. And, there are very few persons in New York who can lawfully possess a weapon defined as an 'assault weapon' after the date of enactment of the NY Safe Act, January 15, 2013.Now we know – and can say with absolute certainty – that a licensed dealer in firearms is authorized to possess such banned weapons. We know this because licensed firearms’ dealers are exempted from the general prohibition of possession of firearms. And, we also know – and can also say with absolute certainty – that your average, law-abiding New York resident and holder of a valid New York handgun license – or, where required – the holder of a valid New York rifle or shotgun permit – is not authorized to take lawful possession of any firearm classified, categorized, defined as an “assault weapon.” How do we know this, and why do we feel confident about our assertion? We know this and feel confident in so asserting this as fact because the NY Safe Act was especially created for those average, law-abiding New York residents who just happen to believe in the Second Amendment guarantee – establishing the right of the people to keep and bear arms – and who choose to exercise their right under the Second Amendment, much to the chagrin of the drafters of and proponents of the NY Safe Act. And, those Americans who wish to -- indeed demand to be able to -- exercise their Second Amendment right to keep and bear arms may, very well, wish to possess such “banned weapons” for personal self-defense and for other lawful purposes; and, so, the NY Safe Act was created with a particular aim in mind: to prohibit that person from possessing those firearms and to further restrict that person from exercising his inalienable right to keep and bear arms under the Second Amendment to the U.S. Constitution. Thus, it is that, for the average, law-abiding New York resident, there is, at present, under New York law, only one exception to lawful possession of banned weapons – namely and specifically -- one exception to possession of those weapons designated as “assault weapons.” And, it is this: unless the average law-abiding New York resident is, one, the original, first generation owner of a firearm defined as an ‘assault weapon’ under the NY Safe Act, and, two, has come into lawful possession of that weapon prior to enactment of the Safe Act, namely, prior to January 15, 2013, the date that New York Governor, Andrew M. Cuomo signed the NY Safe Act into law, and, three, has timely registered the “assault weapon” or “assault weapons” in accordance with the NY Safe Act -- unless all three requirements are met -- such person cannot, lawfully, continue to possess an "assault weapon" in New York. For the average, law-abiding New York resident o be able to lawfully continue to possess an "assault weapon" in New York after the date of enactment of the NY Safe Act, the New York resident must fall within narrow exceptions – very narrow exceptions – to the “assault weapon” ban – which include, for example, licensed dealers in firearms. So, very few individuals can lawfully possess firearms, defined as ‘assault weapons,’ at this point in time, anywhere in the State of New York.The central issue here, and the purport of this article, is to determine who, apart from licensed dealers in firearms, namely, who, among the broad category of law enforcement officers, fall within the exception – referred to in New York law as an “exemption” – to what otherwise amounts to the unlawful possession of banned weapons, namely and particularly, unlawful possession of “assault weapons” and, more particularly, whether a New York police officer or New York peace officer – like a licensed dealer in firearms – may lawfully acquire and continue to lawfully possess assault weapons, after the date of enactment of the New York Safe Act -- January 15, 2013 – the date that New York Governor Andrew M. Cuomo signed the New York Safe Act into law.Always, keep in mind that, under the NY Safe Act, the average law-abiding New York resident does not fall within an exception to possession of a banned firearm, such as, and particularly, those firearms defined as ‘assault weapons,’ under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22)(h). The question for us here is whether individuals, defined as 'police officers,' or 'peace officers,' or 'federal law enforcement officers,' do, and, if so, to what extent. In other words, we are asking how does the general ban on the acquisition of, ownership of, and possession of firearms defined as 'assault weapons' for special groups of people specifically defined as law enforcement, in New York, work, after the date of enactment of the NY Safe Act, on January 15, 2013. And, in looking at and in resolving this central, salient question, we point out three important aspects of it: one, how are the expressions, 'police officer,' and 'peace officer,' and 'federal law enforcement officer' defined in New York law: in other words, who, under New York law, is considered to be a 'New York police officer, a New York peace officer (assuming New York law draws a tenable difference between the two), and who is considered to be a federal law enforcement officer; and, two -- and, as we shall see -- most, critically, in respect to the lawful acquisition of, ownership of, and possession of firearms defined as 'assault weapons' under New York law, how does New York law distinguish between current, active-duty, sworn New York police officers and current, active-duty, sworn New York peace officers, and current,  active-duty, sworn, federal law enforcement officers, on the one hand, and retired, qualified New York police officers, and retired, qualified New York peace officers, and retired, qualified federal law enforcement officers on the other hand; and, three, what are the obligations of current, active-duty, sworn New York police officers, and current, active-duty, sworn, New York peace officers, and current, active-duty federal law enforcement officers on the one hand, and retired, qualified New York police officers, and retired, qualified New York peace officers, and retired, qualified federal law enforcement officers, on the other hand, when it comes to the registration of firearms defined as 'assault weapons' under the New York Safe act, and, too, in that regard, whether a tenable distinction can be drawn apropos of the registration of those "assault weapons" where those weapons were lawfully acquired, in New York, by the New York police officer or by a New York peace officer or by the federal law enforcement officer, prior to enactment of the New York Safe Act -- and, perhaps, where those weapons were acquired before the individual became a New York police officer or New York peace officer, or federal law enforcement officer -- and those "assault weapons" that were acquired after enactment of the Safe Act, on January 15, 2013, when the individual who acquired those weapons was, at the time of acquisition of those weapons, a current, active-duty sworn police officer, or a current, active-duty sworn peace officer, or a current, active-duty sworn federal law-enforcement officer. So, these, then, are the issues and matters that we will be addressing for you here.As to the third matter, we will taking a look at whether the "New York sworn police officer" or "New York sworn peace officer," or "sworn federal law enforcement officer," who had not otherwise been in possession of a firearm defined as an ‘assault weapon,’ prior to the enactment of the NY Safe Act – that is to say, had not been a first generation original owner of that weapon – is permitted, after enactment of the NY Safe Act -- and the word, 'permitted' means, 'is lawfully permitted to acquire, lawfully permitted to own, and lawfully permitted to possess' (namely, lawfully permitted to hold) -- a firearm specifically defined as an 'assault weapon' under the NY Safe Act -- after the date of enactment of the Act. Note: we are not looking at the manner in which the Officer might happen to, or have happened to, take possession of that “assault weapon” because, if the Officer can take lawful possession of an “assault weapon,” it matters not one whit whether that Officer took possession of the weapon through gift, sale, trade, or testamentary bequest. So, these, then, are the issues and matters that we will be addressing for you here.Now, before we begin to delve further into this matter, we wish to point out what, specifically, we are not dealing with here. From the outset we wish to make clear that this study has nothing to do with – is not in any way concerned with – weapons a police officer may happen to possess and utilize in the normal course of his official duties as a law enforcement officer. Each New York police department or agency has its own rules, regulations, and/or policies in that regard. We will say, though, in passing, that, as most everyone knows, police SWAT teams routinely are armed with weapons that the New York Safe Act places into the category of banned weapons – namely ‘assault weapons,’ – and these SWAT team members also utilize, often enough, selective fire ‘assault rifles,’ and fully automatic weapons, such as submachine guns and, possibly, too, revolving shotguns. And, by the way, revolving shotguns, are not semi-automatic weapons but operate, essentially, like common revolver handgun, through a rotating cylinder. Revolver handguns are not -- presently, at least -- defined as 'assault weapons' under the NY Safe Act. Even so, revolving cylinder shotguns, that operate through a rotating cylinder, are, in fact, curiously, defined in the NY Safe Act as 'assault weapons' even as every other firearm that operates, mechanically, through operation of a rotating cylinder is not defined, in the NY Safe Act, and in the Penal Code of New York, as an 'assault weapon.' Further -- and we need to point this out -- New York Governor Andrew M. Cuomo, sets forth, on his NY Safe website, at least he did so at the time we last checked the site several months ago, that revolving cylinder shotguns are, in fact, assault weapons precisely because of certain aesthetic features they generally happen to have. But, if that were the case, then, under the usual definition, for shotguns that are also assault weapons, as a necessary condition, those shotguns would have to be semiautomatic in operation. But, revolving cylinder shotguns do not fall under the definition of semiautomatic shotguns that are 'assault weapons' precisely because they are not semiautomatic in operation. So, the Governor's website misleadingly ascribes to these weapons that they are 'assault weapons' under a wrong definition. That is not to say that, under the NY Safe Act, revolving cylinder shotguns are not 'assault weapons.' By definition, such weapons are "assault weapons," but they are 'assault weapons,' as defined in the NY Safe Act, precisely because such shotguns operate through the mechanism of a revolving cylinder. The aesthetic appearance of revolving cylinder shotguns is absolutely irrelevant to their treatment in the NY Safe Act and to their categorization as 'assault weapons' under the NY Safe Act. In other words, under the NY Safe Act, there is a specific definition for revolving cylinder shotguns that thrusts them into the category of 'assault weapons.' The point of this exposition is that, if the Governor is going to talk about the NY Safe Act, he ought to cite to the language of the NY Safe Act as it is actually, precisely written and not, as he thinks, wrongly, as it turns out, what he would like for the NY Safe Act to say or what he believes the NY Safe Act says. We discuss this issue in depth, in a previous Article of the Arbalest Quarrel: NYSAFE: Cuomo's Website Misleads the Public.Now, police department SWAT team members may also be authorized by their department or agency to carry, as their typical duty arm, a .45 caliber semiautomatic handgun, even when most other officers in the same department or agency, in accordance with departmental or agency policy, might only be permitted to carry, as their normal duty arm, a 9mm semiautomatic handgun or .38 caliber revolver.Lastly, and, as suggested by the remarks concerning firearms used by law enforcement personnel in their official capacity, it is important to keep in mind that when we look at the matter of lawful acquisition of, ownership of, and possession of weapons, defined, under the NY Safe Act as 'assault weapons, we are looking at application of New York law to the issue of whether current sworn, active-duty New York police Officers, and New York peace officers, in their personal capacity, namely, off-duty, may lawfully, acquire, own and possess firearms defined as ‘assault weapons.’ As to the matter of off-duty versus on-duty, we will be considering this issue only in relation to current, sworn active-duty New York police officers, and to current, sworn, active-duty peace officers, and to current, sworn, active-duty federal law enforcement officers, as it will be presumed, here, that no tenable distinction exists between being on-duty as opposed to off-duty or that one happens to wish to acquire, own, and possess firearms in one's personal capacity as opposed to one's official capacity because, for retired, qualified New York police officers, and for retired, qualified New York peace officers, and for retired, qualified federal law enforcement officers the distinction between "on-duty versus off-duty" or "personal capacity  versus official capacity" is obviously moot.In providing you with answers to these questions, our primary focus will be on those individuals who, under New York law fall into the category of 'New York police officer' or 'New York peace officer' and 'federal law enforcement officer' and we will attempt to discern whether a tenable distinction really exists between current, sworn active-duty New York police officers, and current, sworn active-duty New York peace officers, and current, sworn active-duty federal law enforcement officers on the one hand, and retired, qualified, New York police officers, and retired qualified New York peace officers, and required federal law enforcement officers, on the other hand. We also note, at the outset that, as we have drawn a distinction between the expressions ‘police officer’ and ‘peace officer,’ we will ascertain for you whether the expressions are simply synonymous under New York law or whether a tenable distinction exists between the two expressions under New York law and, if a tenable distinction does exist, we will ascertain whether one designation or the other has a decided and decisive impact on the issue of the  lawful acquisition, ownership and possession of weapons defined as ‘assault weapons.’ And, too, we will consider whether other governmental officials that engage in police-like duties, such as constables, are legally definable under New York law and, if so, whether "constables" fall within an exception to the near, all-encompassing New York ban on acquisition of, ownership of, and  possession of firearms defined as “assault weapons,” after the date of enactment of the New York Safe Act, on January 15, 2013.

BRIEF NOTE CONCERNING "SWORN ACTIVE-DUTY FEDERAL LAW ENFORCEMENT OFFICERS" AND "QUALIFED RETIRED FEDERAL LAW ENFORCEMENT OFFICERS"

Since federal law is certainly relevant to and definitely impacts application of the New York Safe Act apropos of federal law enforcement officers, we have decided to leave discussion of that impact to the next Article, in a "sub-sub section" of this present Article. We will, in that Article, point, especially, to some vagueness between federal law and New York law, specifically as it concerns qualified retired federal law enforcement officers who reside in New York, on their retirement from federal law enforcement.

SO, CAN A NEW YORK RESIDENT WHO HAPPENS ALSO TO BE A NEW YORK POLICE OFFICER, OR WHO HAPPENS TO BE A NEW YORK PEACE OFFICER, LAWFULLY TAKE POSSESSION OF A FIREARM DEFINED AS AN ASSAULT WEAPON, IN HIS PERSONAL CAPACITY, THAT IS TO SAY, FOR NON-OFFICIAL PURPOSES, WHETHER BY GIFT, SALE, TRADE OR BEQUEST, ALTOGETHER APART FROM AND IRRESPECTIVE OF THAT PERSON’S STATUS AS EITHER A CURRENT, ACTIVE-DUTY, SWORN NEW YORK POLICE OFFICER OR CURRENT, ACTIVE-DUTY, SWORN NEW YORK PEACE OFFICER, AFTER THE DATE OF ENACTMENT OF THE NEW YORK SAFE ACT?

The New York Safe Act does not provide us with guidance in this, so we have to dig deeper into the New York Penal Code to find an answer. We look first to NY CLS Penal § 265.20, titled, aptly enough, “Exemptions.” NY CLS Penal § 265.20, sets forth, in pertinent part: “Paragraph (h) of subdivision twenty-two of section 265.00 and sections 265.01, 265.01-a, subdivision one of section 265.01-b, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15, 265.36, 265.37 and 270.05 shall not apply to (among others), Police officers as defined in subdivision thirty-four of section 1.20 of the criminal procedure law and Peace Officers as defined by section 2.10 of the criminal procedure law."From the get-go, we see that a person who is a New York police officer or New York peace officer falls into one of two exemptions, as set forth in NY CLS Penal § 265.20. But, while it may seem abundantly clear, from a commonsense standpoint who falls into the category of ‘police officer’ and, perhaps, who falls into the category of ‘peace officer,’ as well, we know, from experience, that it is best not to assume what Government officials tell us what the firearms' laws of New York mean as they may, deliberately or inadvertently, leave out critical details in their telling. Therefore, we must, as a better practice, go to the source and look very carefully at what New York State Statutes actually say. We have also found to be true in several cases, and this is particularly true of the various Statutes that we are analyzing here, that it is necessary, often enough,to look at more than one Statute for a definitive answer to a question. There may very well be several Statutes that touch on a particular subject, and, given inherent ambiguity and vagueness, careful scrutiny of the language of New York State Statutes -- especially those involving firearms -- is absolutely essential if one is to obtain a clear -- or at least, clearer -- understanding of the meaning of particular laws. So it is here. In this case we must take a very close look at the expressions, ‘police officer,’ ‘peace officer,’ and ‘constable,’ when attempting, first of all, to decipher whom it is who really is a “New York police officer” or “New York peace officer” or “constable.” And, we will take a look at each of these each in turn.

WHO IS A ‘POLICE OFFICER?’ HOW IS THE EXPRESSION 'POLICE OFFICER' DEFINED IN NEW YORK LAW?

As set forth above, the Statute, NY CLS Penal § 265.20(a)(1)(b), that is titled “Exemptions,” refers us to NY CLS CPL § 1.20. And, that Statutory Section is titled, “Definitions of terms of general use in this chapter.” We find that NY CLS CPL § 1.20(34) provides us with a detailed list of and exposition of the meaning of ‘police officer’ under New York law. In fact, there are close to two dozen definitions for the expression, ‘police officer.’ So, if you are wondering whether or not you, as a reader of this article, fall within the statutory definition of ‘police officer’ under New York law, you must look to the statutory schema. We provide you with pertinent language from the actual Statute at a later point in this Article. We will say this, now: if you fall within one of the nearly two dozen definitions of the expression, 'police officer,' you are a “police officer” under New York law. If you do not fall, clearly and categorically, within one of those nearly two dozen definitions, you are not a “police officer” under New York law. There is no instance for legitimately concluding that you might be a "police officer" under New York law. You either are a "police officer" or you are not. It is that simple and, when it comes to the matter of whether you can, lawfully, in your personal capacity -- apart from your official duties as a police officer -- possess banned weapons, such as, and particularly, those defined as 'assault weapons' -- it makes all the difference in the world. Presumptively, if you work for a well-known and well-regarded department or agency of New York, such as the NYPD, you may rest-assured that you are, indeed, a “police officer.” "For those members of the NYPD, The State Statute, NY CLS CPL § 1.20(34)(d) says this, as it specifically defines a 'police officer' as: "A sworn officer of an authorized police department or force of a city, town, village or police district." And, it is safe to assume, in this instance, that the NYPD is, in fact, an authorized police Department for the City of New York. To do further research on what the word, 'authorized,' while possible, is superfluous in this instance. If you are not a police officer of "an authorized police Department for a city, town, village or police district," and you are unsure of your status as a 'police officer,' it is always best to consult New York law, and the answer to that question certainly begins with the definitions set forth in NY CLS CPL § 1.20(34), titled, "Definitions of use of general terms in this chapter.

SO, THEN, IS A ‘PEACE OFFICER’ REALLY, OR, AT LEAST, ESSENTIALLY A ‘POLICE OFFICER’ UNDER NEW YORK LAW? IN OTHER WORDS, IS THE EXPRESSION, 'PEACE OFFICER' TRULY OR FOR, ALL INTENTS AND PURPOSES, SYNONYMOUS WITH THE EXPRESSION, 'POLICE OFFICER' OR IS THAT NOT THE CASE? AND, IF THAT IS NOT THE CASE, THEN, IF BOTH POLICE OFFICERS AND PEACE OFFICERS ARE ULTIMATELY ESSENTIALLY BOTH "LAW ENFORCEMENT OFFICERS," WHAT CRITICAL DIFFERENCES EXIST BETWEEN "POLICE OFFICERS" AND "PEACE OFFICERS" THAT MIGHT AMOUNT TO ANYTHING SIGNIFICANT IN TERMS OF THE ACQUISITION, AND OWNERSHIP, AND POSSESSION OF FIREARMS DEFINED AS 'ASSAULT WEAPONS' BY ONE LAW ENFORCEMENT OFFICER WHO HAPPENS TO BE A NEW YORK POLICE OFFICER THE OTHER LAW ENFORCEMENT OFFICER WHO HAPPENS TO BE A NEW YORK PEACE OFFICER, WHEN ONE IS CONSIDERING THE INFLUENCE OF THE NEW YORK SAFE ACT?

Well, under New York law, a ‘peace officer’ is not a ‘police officer.’ How do we know this? We know this because New York law has a specific definition for ‘peace officer’ as we indicated above. But, true, a person who is a “peace officer” does fall within the statutory exemption to banned weapons, such as, and particularly, firearms defined as 'assault weapons.' We refer you to NY CLS Penal § 265.20(a)(1)(c). So, even though the definitional scheme for the current, active duty “peace officer” is distinct from and is not to be confused with the definitional scheme for “police officer,” under the New York penal code and under New York criminal procedure law, and, since both kinds of law enforcement officers fall under the Exemption Statute, we would say that the power of the exemption for a “peace officer” is considerably less than that for a law enforcement officer who is defined, in New York law, as a 'police officer. So, for peace officers, it is, in effect, more accurate to say that they fall, seemingly, within the statutory exemption of NY CLS Penal § 265.20, specifically, NY CLS Penal § 265.20(a)(1)(c). And, we use the word, 'seemingly,' here for good reason, which we will get into, a little later because, the issue whether "peace officers" as opposed to "police officers," are permitted, lawfully, to acquire and possess firearms defined as 'assault weapons,' after enactment of the NY Safe Act is not at all clear-cut, and this fact is representative of what we said earlier, namely, that, where firearms are concerned, it is often necessary to look beyond just one New York Statute to find a definitive answer to a specific, perplexing question; and, even then, one might be compelled, at best, to take an educated guess unless one wishes to obtain a definitive ruling on a vague matter, in a court of competent jurisdiction.The definition of ‘peace officer’ is found in its own statutory section of New York law, as is the case, as well, for the expression, 'federal law enforcement officer,' the latter of which we will deal with more in depth in an upcoming Article. But, for now, in the matter of New York peace officers, the expression ‘peace officer’ is found in NY CLS CPL § 2.10. There are an extraordinary number of definitions for the expression – 82, presently, to be precise – even more, if one counts sub-categories of 'peace officer.' And that Statutory Section of the Penal Code is much too lengthy to set forth here. We may post it later, in full, on our "White Paper" webpage. Moreover, the definitions for ‘peace officer,’ are, as the New York Statute states, only effective until November 1, 2015. So, the definitional scheme for 'peace officer,' unlike the definitional scheme for 'police officer' is routinely subject to change. Therefore, be advised that, a person presently defined as a 'peace officer' today, may not be considered a 'peace officer' after November 1, 2015.

WHAT ABOUT A CONSTABLE? IS A CONSTABLE A POLICE OFFICER OR PEACE OFFICER OR DOES THE TERM, ‘CONSTABLE’ FALL OUTSIDE THE SCOPE OF EITHER A ‘POLICE OFFICER’ OR ‘PEACE OFFICER?’

Constables are not police officers as the expression, 'police officer' is defined in and pursuant to NY CLS CPL 1.20(34), as referred to in Civil Rights Law § 50-a. Rather, constables are considered to be peace officers as specifically defined in NY CLS CPL 2.10(1). New York case law also says that constables are peace officers, citing to Statute. But, there is a notable qualification in NY CLS CPL 2.10(1). The definition of ‘constable’ as a 'peace officer' is this: “Constables or police constables of a town or village, provided such designation is not inconsistent with local law.” The phrase, “. . . provided such designation is not inconsistent with local law,” informs us that local governmental bodies may restrict the State exemption status of “constables.” So, even though State Statute provides an exemption to possession of banned weapons, such as “assault weapons” for constables, State Statute does not preempt the field, and local governments can, in their discretion, deny to those individuals, defined as ‘constables,’ the exemption to possession of banned weapons that NY CLS Penal § 265.20 otherwise provides to them.

SO, THEN, WHAT IS THE BOTTOM LINE HERE? CAN A PEACE OFFICER TAKE LAWFUL POSSESSION OF FIREARMS DEFINED AS ‘ASSAULT WEAPONS’ UNDER THE NEW YORK SAFE ACT, OR NOT? AND, CAN A PEACE OFFICER, WHO IS A CONSTABLE, TAKE LAWFUL POSSESSION OF FIREARMS DEFINED AS 'ASSAULT WEAPONS' UNDER THE NEW YORK SAFE ACT, OR NOT?

Even though we pointed out that “peace officers,” as with “police officers,” as defined under New York law, are exempted from the “assault weapon” ban, pursuant to NY CLS Penal § 265.20, there is a discrepancy between NY CLS Penal § 265.20 (the general exemption section of the Penal Code) and NY CLS CPL § 2.10. So, although both peace officers and police officers fall under a specific exemption to the “assault weapon” ban of the New York Safe Act, still, under NY CLS CPL § 2.10 (which sets forth the lengthy definitional scheme for ‘peace officer’ – 80+ definitions for the expression) there is a qualifier in all or virtually all definitions of ‘peace officer.’ And, it is a qualifier that we do not see under the definitional schema for ‘police officer’ as set forth in NY CLS CPL § 1.20 or, for that matter, as set forth in the definition of ‘constable’ as set forth in NY CLS CPL § 2.10 (1). This suggests that ‘constables’ may very well possess weapons defined as “assault weapons” when other “peace officers” cannot do so. We explain the reason for this below:The qualifying language of NY CLS CPL § 2.10 is this: “Provided, however, that nothing in this subdivision shall be deemed to authorize any such employee designated as a peace officer after November first, nineteen hundred eighty-five to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law." The addition of this paragraph to each definition of ‘peace officer’ means that, regardless of the exemption provision of the New York Criminal Procedure Law, NY CLS Penal § 265.20 -- which says that persons designated as “peace officers” specifically do not fall under the purview of the “assault weapon” ban that impacts virtually every other New York resident who isn’t also a police officer -- those individuals, defined as ‘peace officers’ under NY CLS CPL § 2.10, are nonetheless subject to the limitations of firearms ownership and possession imposed by NY CLS Penal §400.00 (“Licenses to carry, possess, repair and dispose of firearms”). This obvious ambiguity in New York law poses a singular problem for New York officers designated as “peace officers,” rather than “police officers,” (other than peace officers who are "constables") because NY CLS Penal §400.00 is designed, in effect, as a limitation on firearms’ ownership and possession precisely because the Statute exemplifies a firearms’ licensing scheme at all. That is to say, no one who falls under the purview of NY CLS Penal § 400.00 can obtain a firearm – specifically a handgun that is also defined as an “assault weapon” under Section 37 of the New York Safe Act as codified in subdivision 22 of the New York State Penal Code Section 265.00 – because NY CLS Penal § 400.00 prescribes the requirements for securing a handgun lawfully in New York – and sets forth those requirements in detail and that licensing scheme proscribes the licensing of any handgun that is also, by definition, an ‘assault weapon.’ And, unfortunately, for New York residents, that very licensing, scheme – which is, in our estimate, inconsistent with the Second Amendment to the U.S. Constitution – is, in its very inception, an assertion that firearms’ possession is a privilege, granted by government, not a right preexistent in the individual. The qualifying language in the definitional schema of 'peace officer' that makes virtually all "peace officers" subject to the limitation on ownership of assault weapons manifested in NY CLS Penal § 400.00, is language that is not included in the definition of ‘constable’ as ‘peace officer.’ So, paradoxically, unless a local governmental body enacts an ordinance that specifically denies to constables their right under NY CLS Penal § 265.20  to possess “assault weapons,” constables, nevertheless, stand on a much stronger footing than do all or virtually all other individuals who hold the ‘peace officer’ designation, which is probably not what the drafters of the Penal Code had in mind.

WHAT IS THE REAL NATURE OF THE INCONSISTENCY IN THE NEW YORK PENAL CODE?

To illustrate the inconsistency between NY CLS Penal § 265.20  and NY CLS Penal § 400.00 let’s consider the language of a pertinent section of NY CLS Penal § 400.00, namely, NY CLS Penal §400.00(2), titled (“Types of Licenses”). NY CLS Penal §400.00(2) says this: “A license for gunsmith or dealer in firearms shall be issued to engage in such business. A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judicial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof. . . .”Now, apart from the special licensing of gunsmiths or dealers in firearms, we note, first of all, that any license issued pursuant to NY CLS Penal § 400.00 is limited to licensing of handguns only – as rifles and shotguns do not require licensing except in certain jurisdictions within New York, such as New York City. We see, second, and more importantly, for purposes of this Article, that NY CLS Penal § 400.00 specifically proscribes licensing of any handgun that is also defined as an ‘assault weapon.’ So, anyone who, other than a gunsmith or firearms dealer, who is licensed pursuant to NY CLS Penal § 400.00(2), cannot lawfully possess an “assault weapon” unless an exemption exists in NY CLS Penal § 400.00 for, once again, the “Exemption” Statute of NY CLS Penal § 265.20  is not, ipso facto, sufficient to preclude application of NY CLS Penal §400.00 unless NY CLS Penal §400.00 further establishes exemption status. In fact a specific section of NY CLS Penal § 400.00, does provide and clarify the meaning and application of exemption status for those individuals that fall within the purview of NY CLS Penal § 400.00, pertaining to assault weapons, but the applicant must jump through several hoops to secure such exemption status for himself or herself. NY CLS Penal §400.00(3)(b) says this:“Each applicant desiring to obtain the exemption set forth in paragraph seven-b of subdivision a of section 265.20 of this chapter shall make such request in writing of the licensing officer with whom his application for a license is filed, at the time of filing such application. Such request shall include a signed and verified statement by the person authorized to instruct and supervise the applicant, that has met with the applicant and that he has determined that, in his judgment, said applicant does not appear to be or poses a threat to be, a danger to himself or to others. He shall include a copy of his certificate as an instructor in small arms, if he is required to be certified, and state his address and telephone number. He shall specify the exact location by name, address and telephone number where such instruction will take place. Such licensing officer shall, no later than ten business days after such filing, request the duly constituted police authorities of the locality where such application is made to investigate and ascertain any previous criminal record of the applicant pursuant to subdivision four of this section. Upon completion of this investigation, the police authority shall report the results to the licensing officer without unnecessary delay. The licensing officer shall no later than ten business days after the receipt of such investigation, determine if the applicant has been previously denied a license, been convicted of a felony, or been convicted of a serious offense, and either approve or disapprove the applicant for exemption purposes based upon such determinations. If the applicant is approved for the exemption, the licensing officer shall notify the appropriate duly constituted police authorities and the applicant. Such exemption shall terminate if the application for the license is denied, or at any earlier time based upon any information obtained by the licensing officer or the appropriate police authorities which would cause the license to be denied. The applicant and appropriate police authorities shall be notified of any such terminations.”So, if a peace officer desires to lawfully possess a firearm defined as an “assault weapon,” the exemption provided him under NY CLS Penal § 265.20 is in and of itself not enough to enable that peace officer to obtain an assault weapon. The reason for this is that the peace officer must obtain a handgun license under NY CLS Penal § 400.00 – something a current, active-duty New York police officer doesn’t need to do as a police officer has a "badge" – and since NY CLS Penal § 400.00 says clearly and categorically that anyone desiring to exercise the exemption status provided for in NY CLS Penal § 265.20 that NY CLS Penal § 265.20, that person must apply for an exemption under NY CLS Penal §400.00(3)(b). The exemption provided for an individual under NY CLS Penal §400.00(3)(b) only operates for an individual who seeks to use the assault weapon at a target range. Why is that the case? That is so because NY CLS Penal § 265.20 (7-b), that NY CLS Penal §400.00(3)(b) refers to, says this:“Possession and use, at an indoor or outdoor pistol range located in or on premises owned or occupied by a duly incorporated organization organized for conservation purposes or to foster proficiency in small arms or at a target pistol shooting competition under the auspices of or approved by the national rifle association for the purpose of loading and firing the same, by a person who has applied for a license to possess a pistol or revolver and pre-license possession of same pursuant to section 400.00 or 400.01 of this chapter, who has not been previously denied a license, been previously convicted of a felony or serious offense, and who does not appear to be, or pose a threat to be, a danger to himself or to others, and who has been approved for possession and use herein in accordance with section 400.00 or 400.01 of this chapter; provided however, that such possession shall be of a pistol or revolver duly licensed to and shall be used under the supervision, guidance and instruction of, a person specified in paragraph seven of this subdivision and provided further that such possession and use be within the jurisdiction of the licensing officer with whom the person has made application therefor or within the jurisdiction of the superintendent of state police in the case of a retired sworn member of the division of state police who has made an application pursuant to section 400.01 of this chapter.”The bottom line, then, is this: New York residents who fall within the definition of ‘peace officer’ (rather than ‘police officer’) are not automatically entitled to possess banned weapons, defined as ‘assault weapons’ apart from – oddly enough – “constables.” And, this brings us now to the issue of whether retired qualified sworn police officers come under the general exemption of NY CLS Penal § 265.20 as do current, active-duty, sworn,

ARE RETIRED, QUALIFIED, SWORN POLICE OFFICERS SUBJECT TO THE SAME LIMITATIONS ON ACQUISITION OF, OWNERSHIP OF, AND POSSESSION OF ASSAULT WEAPONS AFTER THE DATE OF ENACTMENT OF THE NY SAFE ACT AS IS THE CASE WITH CURRENT ACTIVE-DUTY  OR RETIRED, QUALIFIED “PEACE OFFICERS,” OR ARE RETIRED, QUALIFIED SWORN POLICE OFFICERS TREATED, UNDER NEW YORK LAW THE SAME AS CURRENT, ACTIVE-DUTY, SWORN POLICE OFFICERS,” WHO ARE NOT SUBJECT TO THE LIMITATIONS ON ACQUISITION OF, OWNERSHIP OF, AND POSSESSION OF BANNED WEAPONS, NAMELY AND PARTICULARLY, THOSE WEAPONS DEFINED AS 'ASSAULT WEAPONS,' AFTER THE DATE OF ENACTMENT OF THE NEW YORK SAFE ACT?”

What does New York law say about the status of retired, qualified, sworn New York police officers? Can they take possession of firearms defined as ‘assault weapons,’ – whether by sale, trade, gift, or bequest – upon retirement, just as they could have done when they had been current, active-duty, sworn New York police officers? The answer to that question is somewhat nebulous as one reads through the many  definitions of ‘police officer’ as set forth in NY CLS CPL § 1.20. Yet, on analysis, the language of that Section strictly implies that the Officer is current or active-duty. Curiously, early Legislation, going back to the 1990s did include language that specifically permitted retired, qualified, sworn police officers to own and possess weapons defined as ‘assault weapons.’ The fact that such language was never finalized into law should tell New York police officers – whether current or retired – that the drafters of NY Safe had no desire to extend the prerogative of assault weapon possession to retired officers, unless of course such language isn’t needed. And this raises the question whether there is any specific language in the consolidated laws of New York that place retired, qualified police officers on the same legal footing as current active-duty police officers in terms of a right to acquire, own, and possess firearms defined as 'assault weapons' after the date of enactment of the NY Safe Act, on January 15, 2013. So, Let’s take a closer look at present New York law, beyond the language of the New York Safe Act. And, to get a better handle on this, let us, for the moment, go back to a consideration as to whether “peace officers” -- whether current or retired -- can now, after enactment of the NY Safe Act, lawfully acquire weapons defined as ‘assault weapons.’ It might seem from the language of NY CLS Penal § 265.20 titled, “Exemptions,” that “peace officers,” like “police officers” can possess firearms defined as ‘assault weapons,’ whether procured through gift, sale, trade, or bequest, subsequent to enactment of the NY Safe Act; and, in fact, peace officers, like police officers are exempted from the ban on certain categories of weapons -- including, importantly, those weapons defined as 'assault weapons' in The New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22) -- by operation of NY CLS Penal § 265.20. But, that doesn’t end the matter for us because, notwithstanding the language of the Exemption Statute, NY CLS Penal § 265.20, we have to go to another Statute, NY CLS CPL § 2.10, to see whether there is any qualification there to the otherwise straightforward exemption assertions set forth in NY CLS Penal § 265.20; and, indeed, there is a qualification to what otherwise seems to be a clear-cut exemption for peace officers in respect to the general "assault weapon" ban. The problem for individuals who fall within one of over six dozen definitions for 'peace officer’ is that each of these definitions include the qualification. So, once again, we see the qualification to the broad exemption Statute: NY CLS Penal § 265.20. The Statute, NY CLS CPL § 2.10, says over and over again for virtually every definition of 'peace officer:' “Provided, however, that nothing in this subdivision shall be deemed to authorize any such employee designated as a peace officer after November first, nineteen hundred eighty-five to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400 of the penal law." So, now we are directed to NY CLS Penal § 400.00.Now let us take a close look at the language of NY CLS Penal § 400.00. This is the New York Penal Code's salient Section on the licensing of firearms. So, then, what does this Penal Code Section say particularly about "assault weapons?" Well, paragraph 2 of NY CLS Penal § 400.00 makes clear that, apart from the licensing of a gunsmith or dealer in firearms, “A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judicial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” Note the words, “other than an assault weapon.”The inference to be drawn from NY CLS Penal § 400.00 for "peace officers" is plain. Peace officers cannot lawfully possess any handgun that is defined as an ‘assault weapon’ because any license to carry a handgun does not, under State law, permit for the licensing of those handguns that are defined as 'assault weapons' under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22)(h). Their carry license does not allow for that. And, it follows by logical implication, then, that a person who is defined as a ‘peace officer’ under NY CLS CPL § 2.10 cannot acquire, own, and possess, an "assault weapon" -- whether by gift, sale, trade, or bequest -- after the enactment of the NY Safe Act, namely on January 15, 2013.Such assault weapons that "peace officers" do lawfully possess, after enactment of the NY Safe Act, must have been duly, and lawfully, acquired, prior to the effective date of the NY Safe Act. Note also that NY CLS Penal § 400.00 regulates licensing of handguns, not long arms, namely, rifles and shotguns. The acquisition of assault weapons by those individuals defined as 'peace officers,' under NY CLS CPL § 2.10, are no more permitted, lawfully, to acquire rifles and shotguns defined as 'assault weapons' than can average, law-abiding residents of New York, who are not engaged in law-enforcement, because of the proscription of New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), and, specifically as codified in NY CLS Penal § 265.00(22)(h). So, apart from the proscription against the licensing of handguns that are defined as 'assault weapons' under NY CLS Penal § 400.00, it also follows that rifles and shotguns that are defined as ‘assault weapons,’ under the New York Safe Act Section 37, as codified in NY CLS Penal § 265.00(22), as codified in NY CLS Penal § 265.00(22) are, as well, banned. And, that ban against possession of "assault weapons" applies with equal force to peace officers as well as to any other law-abiding New York resident who is not a peace officer or who is not in any manner involved with or connected to law enforcement.But, we know that persons who clearly fall within the definition of ‘police officer,’ namely current, active-duty, sworn police officers --  who, then, are not relegated merely to the status of  ‘peace officer’ – can, in fact lawfully acquire, own, and possess a banned weapon, such as, and particularly, a firearm defined as an ‘assault weapon,' after the effective date of the NY Safe Act, the question arises whether the expression ‘police officer’ extends to and means ‘current, sworn, Police Officer,’ only or whether the definition of ‘police officer’ extends to a ‘retired, qualified police officer. To resolve this issue, we must return to the definitions of ‘police officer’ as catalogued and enumerated in  NY CLS CPL § 1.20(34), and you will see that not one of the definitions makes specific mention of the notion of 'police officer' who is a 'retired, qualified police officer.' The expression, 'police officer' means:“Police officer. The following persons are police officers:(a) A sworn member of the division of state police;(b) Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City;(c) A sworn officer of an authorized county or county parkway police department;(d) A sworn officer of an authorized police department or force of a city, town, village or police district;(e) A sworn officer of an authorized police department of an authority or a sworn officer of the state regional park police in the office of parks and recreation;(f) A sworn officer of the capital police force of the office of general services;(g) An investigator employed in the office of a district attorney;(h) An investigator employed by a commission created by an interstate compact who is, to a substantial extent, engaged in the enforcement of the criminal laws of this state;(i) The chief and deputy fire marshals, the supervising fire marshals and the fire marshals of the bureau of fire investigation of the New York City fire department;(j) A sworn officer of the division of law enforcement in the department of environmental conservation;(k) A sworn officer of a police force of a public authority created by an interstate compact;(l) Long Island railroad police.(m) A special investigator employed in the statewide organized crime task force, while performing his assigned duties pursuant to section seventy-a of the executive law.(n) A sworn officer of the Westchester county department of public safety services who, on or prior to June thirtieth, nineteen hundred seventy-nine was appointed as a sworn officer of the division of Westchester county parkway police or who was appointed on or after July first, nineteen hundred seventy-nine to the title of police officer, sergeant, lieutenant, captain or inspector or who, on or prior to January thirty-first, nineteen hundred eighty-three, was appointed as a Westchester county deputy sheriff.(o) A sworn officer of the water-supply police employed by the city of New York appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources, works, and transmission.(p) Persons appointed as railroad policemen pursuant to section eighty-eight of the railroad law.(q) An employee of the department of taxation and finance. . . .(r) Any employee of the Suffolk county department of parks who is appointed as a Suffolk county park police officer.(s) A university police officer appointed by the state university pursuant to paragraph 1 of subdivision two of section three hundred fifty-five of the education law.(t) A sworn officer of the department of public safety of the Buffalo municipal housing authority who has achieved or been granted the status of sworn police officer and has been certified by the division of criminal justice services as successfully completing an approved basic course for police officers.(u) Persons appointed as Indian police officers pursuant to section one hundred fourteen of the Indian law.(v) Supervisor of forest ranger services; assistant supervisor of forest ranger services; forest ranger 3; forest ranger 2; forest ranger employed by the state department of environmental conservation or sworn officer of the division of forest protection and fire management in the department of environmental conservation responsible for wild land search and rescue, wild land fire management in the state as prescribed in subdivision eighteen of section 9-0105 and title eleven of article nine of the environmental conservation law, exercising care, custody and control of state lands administered by the department of environmental conservation.”So, must we assume from this extensive list of definitions – and, from the definitions of ‘peace officer’ which is a magnitude larger than those definitions of ‘police officer’ – that the drafters of this list of definitions of the expression 'police officer' as set forth with specificity in NY CLS CPL § 1.20(34) intend to reference only “current, active-duty sworn police officers," and not “retired, qualified, police officers?"  Or did the drafters of NY CLS CPL § 1.20(34) intend, if tacitly, to include “retired, qualified, sworn police officers?" If one takes the position that NY CLS CPL § 1.20(34) does include “retired, qualified, police officers," then retired, qualified, police officers," are permitted to acquire, own, and possess firearms defined as "assault weapons" since NY CLS CPL § 1.20(34) does, then, fully embraces the exemption to the "assault weapon" ban of NY CLS Penal § 265.20. If not, however, and, in the absence of clear explication of the definitions of 'police officer' insofar as the question whether those definitions logically entail all "retired, qualified, police officers," doubt certainly exists as to the drafters of NY CLS CPL § 1.20(34), we must delve further into the Consolidated laws of New York to obtain an answer. For, if the notion of 'retired, qualified, sworn police officer,' is not subsumed in the category of 'current, active-duty police officer,' then the "retired, qualified, police officer" is on weak ground should that officer attempt to acquire, own, and possess "assault weapons" after the date of enactment of the NY Safe Act, because such acquisition, ownership and possession of "assault weapons" would be unlawful. There is a Statute we need to look at that may resolve this issue and it is this: NY CLS Penal § 265.00, titled, simply, “Definitions,” sets forth in a subsection, NY CLS Penal § 265.00(25), the following:“ ‘Qualified retired New York' or ‘federal law enforcement officer’ means an individual who is a retired police officer as police officer is defined in subdivision thirty-four of section 1.20 of the criminal procedure law, a retired peace officer as peace officer is defined in section 2.10 of the criminal procedure law or a retired federal law enforcement officer as federal law enforcement officer is defined in section 2.15 of the criminal procedure law, who: (a) separated from service in good standing from a public agency located in New York state in which such person served as either a police officer, peace officer or federal law enforcement officer; and (b) before such separation, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest, pursuant to their official duties, under the criminal procedure law; and (c) (i) before such separation, served as either a police officer, peace officer or federal law enforcement officer for five years or more and at the time of separation, is such an officer; or (ii) separated from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency at or before the time of separation; and (d) (i) has not been found by a qualified medical professional employed by such agency to be unqualified for reasons relating to mental health; or (ii) has not entered into an agreement with such agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified for reasons relating to mental health; and (e) is not otherwise prohibited by New York or federal law from possessing any firearm.”So, in understanding the meaning of ‘retired, qualified police officer’ or 'retired, qualified federal law enforcement officer,’ the best approach is to read NY CLS CPL § 1.20(34) concurrently with NY CLS Penal § 265.00(25). We now know that the expressions, 'retired, qualified police officer’ and 'retired, qualified federal law enforcement officer,’  have their own express meanings in New York Statute, as set forth with particularity in New York's Criminal Procedure Law. And, since the expressions, ‘retired, qualified police officer’ and ‘retired, qualified federal law enforcement officer’ are defined with particularity in the law, and, as those definitions are specifically absent from the list of definitions of 'police officer' set forth in NY CLS CPL § 1.20(34), the Exemption Statute, NY CLS Penal § 265.2o – that would otherwise exempt "retired, qualified police officers" or "retired qualified federal law enforcement officers" -- is not available to them does and, so, those provisions of the law banning the possession of certain weapons, including and especially those weapons defined as ‘assault weapons’ – on the basis of the Statutes discussed herein -- places retired, qualified police officers" and "retired qualified federal law enforcement officers" on the same legal footing as any ordinary, law-abiding New York resident.

SO, IF A POLICE OFFICER OR FEDERAL LAW ENFORCEMENT OFFICER CANNOT LAWFULLY ACQUIRE FIREARMS DEFINED AS 'ASSAULT WEAPONS' UPON THEIR RETIREMENT BASED ON THE EXEMPTION SECTION OF THE PENAL CODE AND UPON THE DEFININITIONS SECTION OF THE CRIMINAL PROCEDURE LAW, WHAT OTHER STATUTE MIGHT THE RETIRED QUALIFIED POLICE OFFICER AND RETIRED QUALIFIED FEDERAL LAW ENFORCEMENT OFFICER FEASIBLY RELY UPON, IF ANY SUCH LAW EXISTS, THAT MIGHT YET ALLOW RETIRED, QUALIFIED   OFFICERS TO CONTINUE TO ACQUIRE, OWN AND POSSESS FIREARMS DEFINED AS ‘ASSAULT WEAPONS,’ UPON THEIR RETIREMENT FROM A BONA FIDE POLICE DEPARTMENT OR AGENCY?

We have combed New York law, and have found no Statute that permits retired, qualified, police officers or retired, qualified law enforcement officers from acquiring, owning and possessing, lawfully, weapons designated as ‘assault weapons,’ after they retire from law enforcement, given the impact of the NY SAFE Act. And, so, in the absence of any other New York State Statute that might otherwise allow into New York qualified retired police officers or retired federal law enforcement officers to lawfully acquire, own, and possess firearms defined as ‘assault weapons’ under the New York Safe Act, upon or after the date of formal retirement, we are left with the “Licensing Statute” of NY CLS Penal § 400.00. NY CLS Penal § 400.00, titled, “Licenses to carry, possess, repair and dispose of firearms” alone informs us. That Statute alone provides the manner in which New York qualified retired police officers or retired federal law enforcement officers may lawfully acquire, own, and possess firearms that fall into the category of handguns and the parameters for the possibility of acquiring, owning, and possessing those handguns defined as 'assault weapons' under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22).First, CLS Penal § 400.00(6) sets forth this, in pertinent part:“License: validity. Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city. Such license to carry or possess shall be valid within the city of New York in the absence of a permit issued by the police commissioner of that city, provided that (d) the licensee is a retired police officer as police officer is defined pursuant to subdivision thirty-four of section 1.20 of the criminal procedure law or a retired federal law enforcement officer, as defined in section 2.15 of the criminal procedure law, who has been issued a license by an authorized licensing officer as defined in subdivision ten of section 265.00 of this chapter; provided, further, however, that if such license was not issued in the city of New York it must be marked “Retired Police Officer” or “Retired Federal Law Enforcement Officer”, as the case may be, and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons.”What does this Section actually say? And, what does this Section mean? This Section says that the handguns that "retired, qualified police officers" and "retired, qualified federal law enforcement officers" can acquire are those for -- and that means, only those for --  the license to carry is issued. And those weapons “shall be deemed to permit only police or federal law enforcement regulations weapons.” Now, NY CLS Penal § 400.00(2) refers, very importantly, to the licensing of weapons “other than an assault weapon or disguised gun,” but note: NY CLS Penal § 400.00(2) does not refer to the issuance of licenses to retired, qualified police officers or retired, qualified federal law enforcement officers. So, does that mean that "retired, qualified police officers" and "retired, qualified federal law enforcement officers" can acquire, own, and possess handguns defined as 'assault weapons,' after the date of enactment of the NY Safe Act, when no other class of holder of an unrestricted concealed handgun carry permit -- other than a licensed gun dealer or licensed gunsmith -- can now, under the New York Safe Act, lawfully, acquire, own, and possess firearms defined as 'assault weapons?'So, if NY CLS Penal § 400.00(2) doesn't apply to the licensing of retired, qualified police officers and retired, qualified federal law enforcement officers, what provision of NY CLS Penal § 400.00 does apply to the licensing of retired, qualified police officers and retired federal law enforcement officers. We see that the only Section of NY CLS Penal § 400.00 that refers to the licensing of handguns to retired, qualified police officers and retired qualified federal law enforcement officers is NY CLS Penal § 400.00(6). And, always keep in mind that that NY CLS Penal § 400.00 deals with the licensing of handguns. Rifles and shotguns are not within the purview of State licensing Statutes. And, in fact, most jurisdictions in New York do not require the licensing of long arms, namely, rifles and shotguns. But, a few jurisdictions, such as New York City, do, and these jurisdictions have enacted their own rules and regulations concerning the licensing of rifles and shotguns. But, regardless, since retired, qualified police officers and retired, qualified, federal law enforcement officers do not fall within the purview of NY CLS Penal § 265.20, the Exemption Statute, retired, qualified police officers and retired, qualified federal law enforcement officers are not permitted to acquire, own, or possess, under the NY Safe Act, any rifles or shotguns defined as “assault weapons,” and this fact holds true whether a jurisdiction within in New York requires a license or permit to possess a rifle or shotgun, or not. Now, then, what does, NY CLS Penal § 400.00(6) (titled, "License. validity) say, concerning the licensing of particular handguns to retired, qualified police officers and retired, qualified federal law enforcement officers? In full, NY CLS Penal § 400.00(6) says this:"License: validity. Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises. A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city. Such license to carry or possess shall be valid within the city of New York in the absence of a permit issued by the police commissioner of that city, provided that (a) the firearms covered by such license have been purchased from a licensed dealer within the city of New York and are being transported out of said city forthwith and immediately from said dealer by the licensee in a locked container during a continuous and uninterrupted trip; or provided that (b) the firearms covered by such license are being transported by the licensee in a locked container and the trip through the city of New York is continuous and uninterrupted; or provided that (c) the firearms covered by such license are carried by armored car security guards transporting money or other valuables, in, to, or from motor vehicles commonly known as armored cars, during the course of their employment; or provided that (d) the licensee is a retired police officer as police officer is defined pursuant to subdivision thirty-four of section 1.20 of the criminal procedure law or a retired federal law enforcement officer, as defined in section 2.15 of the criminal procedure law, who has been issued a license by an authorized licensing officer as defined in subdivision ten of section 265.00 of this chapter; provided, further, however, that if such license was not issued in the city of New York it must be marked “Retired Police Officer” or “Retired Federal Law Enforcement Officer”, as the case may be, and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons; or provided that (e) the licensee is a peace officer described in subdivision four of and the license, if issued by other than the city of New York, is marked “New York State Tax Department Peace Officer” and in such case the exemption shall apply only to the firearm issued to such licensee by the department of taxation and finance. A license as gunsmith or dealer in firearms shall not be valid outside the city or county, as the case may be, where issued. A license as gunsmith or dealer in firearms shall not be valid outside the city or county, as the case may be, where issued."A critical clause in NY CLS Penal § 400.00(6) is the underlined portion of the above quoted section of the Penal Code that reads: ". . . and, in the case of a retired officer the license shall be deemed to permit only police or federal law enforcement regulations weapons." Now, if the law enforcement regulation handgun happens to be one that is defined as an 'assault weapon' under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22) or otherwise conflicts with the limitation on ammunition capacity of the magazine under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22) and Section 38 of the NY Safe Act, as codified in NY CLS Penal § 265.00(23) -- if the regulation firearm happens to be a semiautomatic -- that constitutes a lawful, if tacit, exception to what otherwise would amount to unlawful possession of a firearm defined as an 'assault weapon' or unlawful possession of a "large capacity ammunition feeding device." And, that regulation firearm that otherwise butts up against the NY Safe Act, accounts for and allows for the only firearm that a retired, qualified police officer or retired, qualified federal law enforcement officer may continue to possess, lawfully, upon retirement, after enactment of the NY Safe Act.

DO RETIRED POLICE OFFICERS AND RETIRED FEDERAL LAW ENFORCEMENT OFFICERS HAVE TO REGISTER THOSE ASSAULT WEAPONS THEY ACQUIRED PRIOR TO RETIREMENT, IN THE SAME MANNER AS DO THOSE NEW YORK RESIDENTS, CIVILIANS, WHO LAWFULLY ACQUIRED THEIR OWN “ASSAULT WEAPONS” PRIOR TO ENACTMENT OF THE NY SAFE ACT?

One further question remains to be resolved here. And, that question has to do with whether an current, active duty police officer or current, active duty federal law enforcement officer, who happens to acquire, own, and possess, lawfully, one or more firearms that are defined as 'assault weapons' under Section 37 of the NY Safe Act, as codified in NY CLS Penal § 265.00(22), must register those "assault weapons" in the same manner and pursuant to the same requirements as any ordinary, law-abiding New York resident, once that current, active duty police officer or current, active duty federal law enforcement officer retires from law enforcement.NY CLS Penal § 400.00(16-a) is the “Registration” section of the Statute. NY CLS Penal § 400.00(16-a)(a) sets forth the requirements for registration of assault weapons that New York residents lawfully possessed, prior to the date of enactment of the NY Safe Act, on January 15, 2013. That statutory section says, in pertinent part:“An owner of a weapon defined in paragraph (e) or (f) of subdivision twenty-two of section 265.00 of this chapter, possessed before the date of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph, must make an application to register such weapon with the superintendent of state police, in the manner provided by the superintendent, or by amending a license issued pursuant to this section within one year of the effective date of this subdivision except any weapon defined under subparagraph (vi) of paragraph (g) of subdivision twenty-two of section 265.00 of this chapter transferred into the state may be registered at any time, provided such weapons are registered within thirty days of their transfer into the state.”NY CLS Penal § 400.00(16-a)(a) sets forth the general registration requirements of "assault weapons" for those original, first-generation owners of firearms defined as "assault weapons" who acquired them, lawfully, prior to the effective date of the NY Safe Act that banned further lawful acquisition of "assault weapons" except for those individuals, such as current, active duty police officers and current, active duty federal law enforcement officers who may continue to acquire, own, and possess such "banned" weapons after the effective date of operation of the NY Safe Act, on January 15, 2013, because current, active duty police officers and current, active duty federal law enforcement officers fall under the exemption Statute exclusion of NY CLS Penal § 265.20.So, do retired qualified New York police officers and retired qualified federal law enforcement officers, like current, active duty police officers and current, active duty federal law enforcement officers come under the purview of NY CLS Penal § 400.00(16-a)? Actually, “no.” But this is a qualified, “no.” Although retired, qualified  police officers and retired, qualified federal law enforcement officers are required to register their assault weapons, those retired, qualified police officers and retired, qualified federal law enforcement officers -- unlike the average, law-abiding New York resident, who is required to register and re-register the assault weapons periodically through the years, retired, qualified police officers and retired, qualified federal law enforcement officers are, as well, required to register certain assault weapons they possess, but they must do so only once and after which they are allowed to continue to possess those assault weapons they happened to acquire prior to the date of their formal retirement from law enforcement, indefinitely, without need for re-registration. But, this requirement for one-time registration of "assault weapons" only applies to certain “assault weapons,” namely that weapon or those weapons that the officer happened to acquire when that officer was a current, active duty police officer or current, active duty federal law enforcement officer, and those weapons that the Statute refers to are weapons that the officer was issued or weapons that the officer had purchased for use in the performance of his official duties. And, the operative statutory section that supports this assertion is NY CLS Penal § 400.00(16-a)(a-1), and that statutory section says this:“Notwithstanding any inconsistent provisions of paragraph (a) of this subdivision, an owner of an assault weapon as defined in subdivision twenty-two of section 265.00 of this chapter, who is a qualified retired New York or federal law enforcement officer as defined in subdivision twenty-five of section 265.00 of this chapter, where such weapon was issued to or purchased by such officer prior to retirement and in the course of his or her official duties, and for which such officer was qualified by the agency that employed such officer within twelve months prior to his or her retirement, must register such weapon within sixty days of retirement.”So, qualified, retired New York police officers and qualified, retired federal law enforcement officers who reside in the State of New York may continue to possess the assault weapon – or assault weapons – that the Officer had purchased prior to retirement that was used during the Officer’s official duties and for which that Officer had obtained qualification for, but so long as the Officer registers that weapon within sixty days of retirement. We must point out, though, that the operative words of NY CLS Penal § 400.00(16-a)(a-1) here refers to the purchase of or issuance of a 'weapon,' singular, and not 'weapons,' plural. On a strict reading of the Statute, the language of the Statute means that the Officer may continue to keep one "weapon," and not "weapons" if that Officer was issued or purchased more than one weapon for use in the performance of that Officer's official duties during that Officer's tenure in law enforcement. Of course, we are talking, here, about a weapon that is, or weapons that are, otherwise "banned" under the NY Safe Act, namely, "assault weapons." And the Statute is, tacitly, at least, taking into account, weapons that, although not defined as 'assault weapons,' under the Safe Act, nonetheless happen to utilize, a banned component such as, and particularly, a "large capacity ammunition feeding device." Such a device is banned under the NY Safe Act. Otherwise, if a weapon does not fall within the category of 'assault weapon' or does not utilize a "large capacity ammunition feeding device" or have some other banned feature, the qualified retired police officer or qualified retired federal law enforcement officer is allowed, in New York, to lawfully possess more than one weapon.

NOW, AS ALLUDED TO ABOVE, SUPPOSE A RETIRED, QUALIFIED POLICE OFFICER OR RETIRED, QUALIFIED FEDERAL LAW ENFORCEMENT OFFICER HAPPENS TO OWN SEVERAL WEAPONS DEFINED AS ASSAULT WEAPONS UNDER NEW YORK LAW, WHICH THAT OFFICER LAWFULLY ACQUIRED DURING HIS TENURE AS A CURRENT, ACTIVE-DUTY, SWORN POLICE OFFICER OR CURRENT, ACTIVE-DUTY, SWORN FEDERAL LAW ENFORCEMENT OFFICER AND WHICH WERE NOT THAT OFFICER’S OFFICIAL DUTY FIREARM OR OTHERWISE WERE NOT PURCHASED AND UTILIZIED IN THE NORMAL COURSE OF THAT OFFICER’S OFFICIAL DUTIES WHILE HE WAS EMPLOYED BY AN AUTHORIZED LAW ENFORCEMENT AGENCY OR AUTHORIZED LAW ENFORCEMENT DEPARTMENT. NEED THOSE WEAPONS BE REGISTERED ONLY ONCE, NAMELY WITHIN SIXTY DAYS OF THAT OFFICER’S RETIREMENT FROM ACTIVE-DUTY, OR MUST THEY BE RE-REGISTERED PERIODICALLY?

Basically, the retired, qualified New York police officer and retired, qualified federal law enforcement officer is placed on the same footing as an ordinary law-abiding New York resident who happened to acquire, lawfully, his or her own firearms – now defined as ‘assault weapons’ – prior to enactment of the New York Safe Act. Those non-departmental or non-agency weapons come under the purview of NY CLS Penal § 400.00(16-a), and not under the purview of NY CLS Penal § 400.00(16-a)(a-1). Furthermore, retired, qualified New York Police Officers and retired, qualified federal law enforcement Officers who reside in New York are not entitled – any more  so than is the case for the average, law-abiding New York resident, who is not a retired, qualified New York Police Officer or retired, qualified  federal law enforcement Officer – to continue to acquire “assault weapons,” upon the effective date of retirement. So, our advice to those current, active duty New York police officers and current, active duty federal law enforcement officers who wish to acquire one or more weapons defined as ‘assault weapons’ under Section 37 of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, is that you acquire those weapons while you are still current, active-duty police officers or current, active duty federal law enforcement officers. For, once you enter retirement you will not be able to continue to acquire, own, and possess those new “assault weapon” acquisitions, lawfully.

CONCLUSION

The New York Legislature gives individuals who are defined as 'police officers' or as 'federal law enforcement officers' substantially more leeway to acquire, own, and possess firearms defined as 'assault weapons,' at least while their status is current, active-duty police officer or current, active-duty federal law-enforcement officer. However, for those individuals who fall into the category of 'peace officer,' whether current, active-duty or retired, the lawful acquisition, ownership, and possession of firearms defined as “assault weapons,” under Section 37 of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, is restricted. Furthermore, once an officer – whether that officer is a New York peace officer, or New York police officer, or federal law enforcement officer – enters retirement, the lawful acquisition of banned weapons, namely and particularly, “assault weapons,” is essentially foreclosed to every officer, no less so than is the case for the average, law-abiding New York resident who had never been in law enforcement -- unless and to the extent that one particular weapon or, perhaps, more than one weapon, as the case may be, that the officer happened to use in the normal course of his  or her duties when he or she was employed as a police officer or federal law enforcement officer for which that officer obtained qualification in, happens to be a handgun or handguns that falls into the category of 'assault weapon.' That weapon, or those weapons, the officer may continue to possess, lawfully, and that weapon or those weapons will be listed on the officer’s handgun license, in accordance with NY CLS Penal § 400.00(6).So, if you are a current active-duty New York police officer or current active-duty federal law-enforcement officer and you are contemplating retirement in the near future, and you wish to acquire firearms that the New York Safe Act defines as “assault weapons,” whether these weapons are to be acquired by gift, sale, trade, or bequest, we strongly urge you to obtain those weapons now – well before you sign your retirement papers and retire your badge. For, once, you enter upon retirement, you will no longer be able, lawfully, to acquire those weapons, that, at the moment, you may acquire relatively easily without butting up against restrictive New York firearms’ laws.If you have a question concerning any aspect of this article, please feel free to contact us at: rjk@arbalestquarrel.com, or sld@arbalestquarrel.com.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CLEVELAND’S MAYOR BELIEVES OHIO’S GUN LAWS ARE TOO LAX. HE WANTS TO MAKE HIS OWN.

PART 1

The antigun groups and their political allies in Congress and in State Legislatures across the Country are continually coming up with new strategies to undermine the Second Amendment. Among them is this one: ignore laws you don’t like. Of all the strategies they employ to undermine the Second Amendment, this one, perhaps, is the most disturbing. Why? For this reason: the United States is a Country that is ruled by laws, not men. At least it is supposed to be. Once the “Rule of Law” is cast aside, despotism takes over. Case in point: The City of Cleveland is at war with the Ohio Legislature and the U.S. Supreme Court. The City of Cleveland does not like Ohio’s concealed carry law. The City of Cleveland does not like the Supreme Court’s ruling that the right to keep and bear arms is an individual right. So, what does the City of Cleveland do? The City pretends that the Supreme Court’s ruling in Heller doesn’t apply to the City. The City of Cleveland pretends that, notwithstanding Ohio’s concealed carry law, the City may enact restrictive gun ordinances that undercut the State Legislature’s enactments.In the Editorial Section of the July 20th edition of The Plain Dealer – Cleveland’s mouthpiece for the antigun movement and for the City’s Mayor, Frank Jackson – there is a piece titled, “Provocative Cleveland legislation addresses local firearms violence.” This particular article – so the editorial board tells us – is part of the board’s “Smoking Gun series.” The purpose of the series is to keep a running tally of gun deaths, to quantify the impact of gun violence throughout the county, so the editorial board says. Well, isn’t that nice? It’s critical for the newspaper’s readers to know that a psychopath or lunatic murdered a person with a gun. But, how many homicides were attributed to some other means? The editorial board doesn’t say. Nor does the editorial board of The Plain Dealer tally the number of lives saved through the presence of a gun. The editorial board stresses one set of statistics to the exclusion of others. So, the newspaper has an agenda, and that agenda isn’t one focused on preserving America’s Second Amendment. The newspaper, though, would deny that.In response to one reader’s sarcastic comment as to how the cesspool of Cleveland might be cleaned up, the newspaper points to the current Mayor’s list of “provocative” but supposed “necessary package of legislation.”“The proposed ordinances would:• Require felons who committed crimes with firearms to register with the city Department of Public Safety. • Require the safe and secure storage of firearms away from minors and prohibit the acquisition of more than one firearm within a 90-day period. • Prohibit the possession or use of a firearm while intoxicated. • Prohibit carrying a concealed weapon without a permit. • Prohibit possession of a BB gun, pellet gun, knife, brass knuckles or sword in a public place. • Prohibit the sale or transfer of a firearm without reporting it to the police. • Prohibit destroying the serial number and other identifiers on a weapon. • Prohibit the sale of facsimile firearms. • Prohibit the sale or possession of slingshots and pea shooters. • Prohibit the possession or use of stench bombs.”After reciting this inane list of hoped for City ordinances, The Plain Dealer adds, “these common-sense recommendations do not violate the Second Amendment yet they have already triggered a backlash from activists.” Oh really!You might wonder at the audacity of the destroyers of our inalienable right to keep and bear arms to sanctify their strategy of destruction, with the ludicrous meme – “common-sense recommendations” – and the ever obligatory tagline, “but of course we do not intend to violate the Second Amendment to the U.S. Constitution” – as if in the mere saying – it is so. Better it would be were the editorial board simply to keep its mouth shut. For, it is bad enough to work to destroy our Bill of Rights. But, it’s insulting to do so with a smile, rehashing the same tiresome lines, dictated by the puppet masters who treat the American Public as if it were a collection of dunderheads.Let’s take a look at these so-called common-sense recommendations. There are issues, some obvious, some, perhaps, less so, but they are all troublesome.Require felons who committed crimes with firearms to register with the city Department of Public Safety.1) So such felons are to be treated like sex offenders. 2) Suppose present gun violation infractions are rewritten and then upgraded to felonies. Do you see a problem? We do. Suddenly, any otherwise law-abiding citizen who commits an infraction with a gun has now committed a felony and is required to register with the Department of Public Safety for life. That person’s life shall become a living hell, hounded by the Department, and demoted to the status of a second-class citizen for life. 3) The costs of keeping tabs on these “felons” would be enormous and record-keeping would be an administrative nightmare.Require the safe and secure storage of firearms away from minors and prohibit the acquisition of more than one firearm within a 90-day period.1) Doesn’t this sound like the NY SAFE Act? 2) Safe and secure storage of firearms is a matter of common sense and doesn’t require a “Big Brother” to monitor one’s actions. 3) How would the City know the manner in which a person secures firearms other than by violating the Fourth Amendment Prohibition against unreasonable searches and seizures, and inspecting his or her house or place of business? Would this City Ordinance entail mandatory police inspections, in clear violation of the Fourth Amendment? Probably. Might this not lead to the requirement to purchase gun locks and/or safes? Undoubtedly. And, if so, where would this all end? Perhaps, gun owners would be required to take out special insurance. But, then, just owning and possessing a firearm could become a very expensive proposition, making the ownership and possession of guns cost-prohibitive for many. And, the City would certainly like for that to happen. 4) Why must firearms acquisitions be limited to one every 90 days? This is completely arbitrary. Unless the City had reason to suspect a particular person was a gun runner, there is no reason to arbitrarily limit acquisition of firearms to any particular number. 5) Limiting firearms acquisitions interferes with business. But, perhaps that, too, is the City’s objective.Prohibit the possession or use of a firearm while intoxicated.1) Straightforwardly, no one should be using a firearm if he isn’t in control of his faculties. Still, this is already covered by State Law: Ohio Revised Code Section 2923.15. So, why would the Mayor wish to add a City Ordinance when a State Statute already exists, prohibiting the possession or use of a firearm while intoxicated? Prohibit carrying a concealed weapon without a permit. 1) This is already covered by State Law: Ohio Revised Code Section 2923.125. So, why would the Mayor wish to add a City Ordinance when a State Statute already exists, specifically setting forth the requirements for carrying a handgun concealed? 2) Of course, the proposed ordinance uses the term ‘weapon,’ rather than ‘handgun’ or ‘firearm.’ Is the Mayor of Cleveland proposing that carrying a pocket knife should require a permit?Prohibit possession of a BB gun, pellet gun, knife, brass knuckles or sword in a public place.1) Seriously? The issue really goes to criminal intent. For example, if I carry a baseball bat with the intent to commit a crime, I have already violated a State Statute. So, in that regard, this is already covered by State Law: Ohio Revised Code Section 2923.24(A), says, “No person shall possess or have under the person’s control any substance, device, instrument, or article, with the purpose to use it criminally.” 2) So, why would the Mayor wish to add a City Ordinance when a State Statute already exists, and, in fact, is much more meaningful than a proposed City Ordinance that arbitrarily singles out particular items, the carrying of which is ipso facto criminal conduct?Prohibit the sale or transfer of a firearm without reporting it to the police.1) SHADES OF NY SAFE! 2) A gun that I rightfully possess and own is my private property. Within certain restraints, I should be able to do with a gun what I please. Now, in accordance with State Law, I cannot knowingly sell or give a gun to a felon, since felons cannot own or possess firearms. And, I would be breaking State Law were I to do so. And, I certainly would be remiss were I to knowingly give a gun to a lunatic or a moron. But, why should I have to notify the police of a transfer of a gun to another rational person who isn’t a felon? Under what legal or logical rationale can the City justifiably designate the Police as a "BIG BROTHER" over a law-abiding citizen?3) The administrative costs would likely be considerable. 4) Ohio, unlike New York, and a few other jurisdictions, does not license ownership and possession of firearms. Possession of firearms in Ohio is a Right, not a Privilege. If this proposition becomes a City ordinance, Cleveland would be treading a slippery slope toward firearms licensing and registration. This, of course, is what the Mayor of Cleveland and other antigun zealots undoubtedly want.5)Perhaps, most importantly, and, as noted in point “2” above, Ohio State Law already presently prohibits the transfer of a firearm to specific individuals, most notably, felons. Ohio State Law Section 2923.20(A)(1) sets forth, “No person shall: Recklessly sell, lend, give, or furnish any firearm to any person prohibited by section 2923.13 {person under disability} or 2923.15 {intoxicated person} of the Revised Code from acquiring or using any firearm, or recklessly sell, lend, give, or furnish any dangerous ordnance to any person prohibited by section 2923.13, 2923.15, or 2923.17 of the Revised Code from acquiring or using any dangerous ordnance.” Mayor Jackson’s proposed ordinance adds a requirement that transcends State Law, and THAT, the City isn’t permitted to do, as we shall explain in the second part of this Article.Prohibit destroying the serial number and other identifiers on a weapon.1) This is already covered by State Law: Ohio Revised Code Section 2923.201. So, why would the Mayor wish to add a City Ordinance when a State Statute already exists, prohibiting the destruction of a firearm’s serial number or other identification.Prohibit the sale of facsimile firearms.1) Really? 2) What is considered a facsimile firearm? A toy cap pistol that may superficially look like a single action revolver? Would this mean that squirt guns become illegal in Cleveland? If so, is the Mayor countenancing that youngsters should not play with toy guns? So, what constitutes a facsimile? Is the Mayor referring to a true replica of a firearm? If so, even New York, with its draconian firearms laws, does allow possession of replica firearms and defines them with particularity. Is there something else going on here?Prohibit the sale or possession of slingshots and pea shooters.1) Honestly? 2) How about prohibiting the sale of baseball bats, or requiring the licensing for their purchase? How about prohibiting the sale of boomerangs and Frisbee flying disks? How about prohibiting the sale of “peas” or any pea shaped/sized object. After all these things might be ammo for pea shooters!Prohibit the possession or use of stench bombs.1) Stench bombs? Really?2) The State of Ohio already prohibits the possession of dangerous ordnance, such as dynamite, unless a party falls under a specific exemption. The prohibition is codified in Ohio Revised Code Section 2923.17. Stench bombs are not classified as dangerous ordnance by the State. If the City of Cleveland intends to so classify stench bombs as deadly ordinance, then it is redefining State Law to include an item in that category that the Ohio State Legislature has specifically not included. And, if the City of Cleveland does not intend to classify stench bombs as dangerous ordnance, then what is the rationale for prohibiting such things at all? Moreover, if the City of Cleveland can legally prohibit a citizen from possessing any item the City wishes, then any and every conceivable object is fair game for prohibition. The Ohio State Legislature itself would not go so far as to give itself the power to ban anything and everything at the slightest whim. Yet, the City of Cleveland would have the audacity to do just that.Beyond the obvious arguments to be drawn against each one of these proposed City of Cleveland ordinances, there is another and more pressing argument to be made and it is one that cuts across the very idea of implementing a City ordinance impacting weapons generally and firearms specifically, anywhere in Ohio. It has to do with the manner in which laws operate in Ohio. The Mayor, apparently, either doesn’t care or hasn’t a clue how the gun laws governing the State of Ohio operate.In the next Article, to be posted shortly, we lay out why the Mayor’s proposed weapons’ ordinances are dead in the water even prior to an attempt to implement them.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2014 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

MICROSTAMPING: WHAT IS IT? DOES IT WORK? WHY HAVE IT?

UPDATE:

In lieu of posting a separate Article to update information pertaining to microstamping technology as applied to firearms and, more particularly, as applied to a crucial component of guns, namely, firing pins, we have added pertinent information to the present Article. The additional information, included in this update, is highlighted in red, as seen here as well in this "update" paragraph and in the "erratum" paragraph immediately below, to distinguish it from original content. We did this to make the additional content readily discernible from the previously posted content. Visitors to our site who have previously read our Article on microstamping technology may wish to skip immediately to the additional content, set forth below, toward the end of the Article.

ERRATUM:

We inadvertently referred to “12” flaws or problems or issues with existent microstamping technology as applied to firearms, but we actually mentioned "11." The additional content in this Article includes a twelfth issue.

OVERVIEW

Let’s take a look at two voices on the subject of microstamping as applied to firearms – always keeping in mind the possible impact of this technology on Americans' Second Amendment Right to Keep and Bear arms. Here’s one from the antigun crowd: “A technology called ‘microstamping’ has made comprehensive ballistic identification a reality. Microstamping . . . enables police to trace a gun without ever physically recovering it. A traced firearm is a valuable lead in a criminal investigation, because investigators can then connect that weapon to its first purchaser, who may become either a suspect or a source of information helpful to the investigation.” Source:  http://csgv.org/issues/microstamping/And here, in part, is what the National Shooting Sports Foundation (NSSF) says about microstamping: “An independent, peer reviewed, study published in the professional scholarly journal for forensic firearms examiners proved that the concept of microstamping is unreliable and does not function as the patent holder claims. It can be easily defeated in mere seconds using common household tools or criminals could simply switch the engraved firing pin to a readily available unmarked spare part, thereby circumventing the process.” Source: http://www.nssf.org/factsheets/microstamping.cfmWe have two conflicting statements concerning microstamping:  one extolling the virtue of it and the other pointing emphatically to the failure of it. So, who’s right? Hint: it isn’t the statement from the antigun crowd. So, how does the antigun crowd get it wrong? To get a handle on this, we’ll take a close look at what legal scholars say. Expert views on matters of law aren’t colored by slogans, by emotional rhetoric or by simplistic, shameful, and ludicrous sound bites – all of which are the mainstays of news commentators and news analysts, politicians and their toadies, of antigun zealots of all stripes, including, inter alia, internationalists and billionaire elites, New World Order cabals bent on dismembering the Second Amendment, and, of course, frightened, ill-informed,  "low information" Americans who look to Government for their solace and for their protection and for solutions to all their needs and problems, whether perceived or real.

TO GET A GOOD GRASP OF MICROSTAMPING BEYOND THE  HOOPLA WE WILL DEAL WITH THE FOLLOWING ISSUES:

One, the nature of microstamping; two, whether microstamping is in fact a reliable forensic science tool in firearms identification; and three, how mainstream media extols the virtues of microstamping technology – using propaganda in lieu of sound reasoning – in a naked, shameful bid to sell that technology to the American public. In dealing with the above issues let’s ignore, for now, the fanfare and hysteria generated over microstamping. The salient question is: what does the legal community have to say about microstamping?  So, let’s look at the academic literature on the subject.

ISSUE ONE: WHAT IS MICROSTAMPING REALLY AND WHAT IS IT SUPPOSED TO ACCOMPLISH?

Before considering whether microstamping works, we need to get a precise handle on what microstamping, in fact, is. Vocalizations from the antigun crowd, cries and exhortations from allied members in Congress and in State Legislatures across the Country, and simplistic chants from the mainstream news media are -- all of them -- hardly credible sources of information an American citizen can safely rely on. We must dig a little deeper to get the true story. Let’s begin. From what can be gathered, there isn’t, to date, a lot of legal literature on the subject of microstamping technology as applied to firearms. And that, in itself, is telling. Still, legal literature that happens to be available is forthright and complete in explanation. One legal scholar Dorothy Kenney, provides a comprehensive, accurate explication of the technology, devoid of emotional rhetoric. She says, “Firearm Microstamping is a new technology invented by Todd Lizotte that can imprint serial numbers on spent ammunition casings by utilizing a solid-state ultraviolet laser to machine an array of microscopic characters onto the tip of a firearm’s firing pin. Similar to ballistic fingerprinting, it allegedly helps police identify what firearm might have been used in a crime. Microstamping uses precision equipment to remove microscopic amounts of metal from the tip of the firing pin. When a firearm trigger is pulled, there is no guarantee of one single identifiable mark on the bullet.  What the microstamp technology does is place intentional codes linked to the serial number of a firearm by using an optimized laser micromachining process. The basic theory behind the technology is that a firearm’s firing pin or other internal parts could bear microscopic codes unique to the firearm that could imprint the codes on fired cartridge cases. The codes then contain information like the gun’s make, model and serial number. This acts much like a fingerprint on the bullet. If the gun is then used in any crime, this allows law enforcement officials to enter the found shell casing codes into a database to determine not only the manufacturer of the gun, but even the licensed dealer who sold it, and ultimately the owner. The goal is to provide an improved piece of trace evidence for forensic investigators, so that they can track a firearm without having to recover it.” Dorothy Kenney, Firearm Microstamp Technology: Failing Daubert and Federal Rules of Evidence 702, 38, Rutgers Computer & Tech. L.J. (2012).Now, concentrate on the author’s use of the term, ‘allegedly’ as it appears in the citation. The term, ‘alleged,’ means ‘questionably true’ or ‘supposedly true.’ Those expressions do not mean ‘true beyond doubt,’ which is what the antigun crowd and their allies in Congress and in the mainstream media would have you believe, falsely, about microstamp technology. Once again, the author, Kenney, says: “it {that is to say, microstamping technology} allegedly helps police identify what firearm might have been used in a crime. So, what can we infer from Dorothy Kenney’s article about what the technology actually is? We can infer from Dorothy Kenney’s Article that microstamping is a firearms identification technology using toolmarks to link a cartridge with the firearm that it was fired from.But what is a toolmark? We need to get a handle on the notion of toolmark to appreciate whether microstamping technology is worth the apparent benefit as exalted by the antigun crowd through its sounding board, the mainstream news media. So, to get a handle on toolmarks, let’s take a look at what two other legal scholars have to say. “Toolmarks are created when a hard object (generally, a tool) impacts a relatively softer object. In the case of modern firearms and ammunition, those marks are generated in the incredibly quick and inherently violent steps of the firing process. The firing pin jabs into the metal at the base of the ammunition cartridge - the soft brass of the circular primer cup in common centerfire ammunition or the cartridge brass of the outer rim of the cartridge in rimfire ammunition - causing a chemical primer mixture to ignite. In turn, this ignition causes the propellant or powder to burn, resulting in a rapid and intense buildup of gas pressure that slams the cartridge walls against the internal surfaces of the firearm (particularly the breech face against which the base of the cartridge is impressed and from which the firing pin protrudes). The gas pressure also unseats the bullet from the cartridge and propels it outward through the barrel of the gun, the bullet scraping against and gripping the rifling grooves that are typically carved in gun barrels to impart a spin (and added stability in flight) to the bullet. Additional marks are created at the extractor or ejector mechanism, cycling a spent cartridge from the chamber and allowing a new cartridge to enter. There are several levels of hierarchy associated with the attributes of ballistics evidence exhibits. High-level class characteristics include gun caliber, shape of firing pin, number of lands and grooves, etc. These can be used to quickly screen out exhibits that could not have been fired from the same gun. At the other end, there are individual characteristics associated with a gun, such as the fine striations on a bullet’s surface or peculiar microscopic textures in the firing pin impression. There are also intermediate characteristics such as marks that arise from specific manufacturing techniques or flaws. These induce similar patterns on ballistics evidence even though they originated from different sources.” Daniel L. Cork, Vijayan N. Nair, and John E. Rolph, Some Forensic Aspects Of Ballistic Imaging, 38 Fordham Urb. L.J. 473 (2010). The authors of the Fordham Urban Law Journal Article point out that, absent microstamping, attempts to match a particular firearm either to the toolmarks on a cartridge casing or on a bullet are difficult.The authors tell us that “the development of an objective, statistical basis for firearms identification is challenging due to the multiple sources of randomness present when a gun is fired. Shots from even the same gun are not fired under the same exact conditions. Ammunition, wear and cleanliness of firearms parts, burning of propellant particles and the resulting gas pressure, etc., can vary across firings. Therefore, an examiner’s assessment of the toolmarks and the decision on a match comes down to a subjective determination based on intuition and experience.” Thus, the goal of forensic examination – "the creation of a match between a casing or bullet to generate an investigative link from ballistics evidence to point of sale of the weapon or ammunition used in a crime” – is difficult because it is "a subjective determination." Daniel L. Cork, Vijayan N. Nair, and John E. Rolph, Some Forensic Aspects Of Ballistic Imaging, 38 Fordham Urb. L.J. 473 (2010).Did you grasp that? What it is that forensic specialists attempt to do in their investigation of a crime involving use of a firearm is to match a casing or bullet to a weapon that is used in a crime. We can conclude from this that standard forensics testing is difficult, and ultimately fallible, because it is ultimately a subjective process. But, then, is microstamping an improvement over standard methods of ballistics identification? Is microstamping the answer to the problem of ballistics identification? Those questions get us to the nub of the issue concerning ballistics identification as to whether microstamping is worthy of adoption by the firearms industry -- specifically as to whether microstamping would really be of help to forensics specialists who are engaged in ballistics identification. If so, that question is still one that is separate and apart from the important question concerning the associated costs that must be borne by the firearms manufacturers who are forced to adopt microstamping in the manufacturing process; for that would require the retooling of an entire industry.But, getting back to the methodology of microstamping, this is what the two authors of the Fordham Urban law Journal have to say about it, in relation to standard methods of ballistic testing: “But, suppose an unalterable and unique marking might be placed on a part of a firearm so that any cartridge fired from it could be rapidly traced back to the point of sale by reading the etched marking. A distinct advantage of microstamping is that the marks could be examined at a crime scene using equipment no more sophisticated than a magnifying glass, vastly simplifying and expediting the process of developing investigative leads. Microstamping, if feasible and practical, would have the advantage of imposing uniqueness as a characteristic of ballistics evidence, substituting known and fixed markings for microscopically fine individualizing characteristics that result from random processes in manufacture and weapon firing.” But, would it? The authors of the Fordham Urban Law Journal have their reservations.Concentrate on the authors' qualification of microstamping technology through their use of the phrase, "if feasible and practical," as that phrase appears in the law journal article. The authors said, "microstamping, if feasible and practical, would have the advantage of imposing uniqueness as a characteristic of ballistics evidence. . . ." Now, let us, for a moment, go back to what the first legal scholar, Dorothy Kenney, says about microstamping, for she, too, expresses immediate reservations as to the usefulness of microstamping to forensics examiners as a ballistics identification methodology. But, she has a different take on the nature of microstamping. She says, “The primary difference between the traditional toolmark identification methods and the intentional microstamping is that the latter is geared more towards extracting information rather than a matching methodology.” Here we have some disagreement among legal scholars from the get-go as to what microstamping even is. They all provide an accurate and comprehensive account of microstamping technology, but one scholar says that microstamping is really an extraction of information technology, rather than a technology that involves the use of "matching" a cartridge to a gun. The other two scholars seem to be saying that microstamping is in fact just that -- a "matching" ballistics technology" precisely because it involves the use of toolmarks: "the firing pin jabs into the metal at the base of the ammunition cartridge."   Granted, the disagreement between these legal scholars may be due to semantics. Still, that semantic disparity bespeaks the ultimate complexity underlying forensics testing, which is as much an art as a science, regardless of the technology employed. What we really need to concentrate on now is the ultimate pressing issue, and that is: whether or to what extent microstamping ought to be employed at all by weapons manufacturers. For, if microstamping technology does offer decided advantages over existing ballistics identification methodologies, then why shouldn’t microstamping technology be employed?Microstamping may sound plausible, useful, and preferable to existing ballistics testing. At least that is what the antigun crowd and its allies in Congress and in the State Legislatures would likely have you believe if you were to pointedly ask them -- assuming they understand what ballistics methodology even means. Be that as it may, legal experts do have serious reservations about and concerns over microstamping technology. And those reservations and concerns are wholly apart from one critical matter: enactment of such restrictive firearms legislation, requiring firearms manufacturers to adopt microstamping technology in the firearms production process, would likely create a technological nightmare for the firearms industry. But so what? Certainly, the antigun crowd doesn’t care about that. And the antigun crowd’s allies in the U.S. Congress and in the State Legislatures obviously don’t care. For, if legislators did care, they would carefully consider the ramifications -- all the ramifications -- pertaining to adoption of such technology. But, the question for us, who do care about those ramifications, is: do these legal scholars conclude  from their critical assessment of microstamping technology, that such technology – which might in theory look good, regardless of what it really is – would in fact work in practice? And, a corollary to that question is: even if microstamping technology does work in practice -- even if only marginally better than traditional ballistics identification methods -- does that consideration override other problems that invariably arise through adoption of the technology?  For, if in fact the technology doesn’t work in practice and/or causes a myriad of other serious, associated problems if adopted, then there is no logical reason to use it – to mandate implementation of microstamping by firearms manufacturers in the manufacturing process.So, what do these legal scholars conclude? Well, the bottom line is that the authors of these respective academic journal articles uniformly reject the idea that microstamping, as a forensic tool, is an improvement over present ballistics examination. The rub – as the two authors of the Fordham Law Journal article point out, as does the author of the Rutgers Computer and Technology Law Journal – is that, while microstamping sounds like a great approach to forensics firearms testing in theory -- that is to say -- from a purely theoretical technological standpoint, it isn’t feasible or practical -- and that means it does not offer any advantage over standard ballistics identification methodology in actual practice.  In fact, in many ways, microstamping technology is decidedly worse than standard ballistics identification methodology. And this takes us now to the second issue.

ISSUE TWO: SO, IS MICROSTAMPING OF FIREARMS A RELIABLE FORENSIC TOOL?

No it isn’t. And, we aren’t looking at just one minor problem with the technology. There are a slew of major problems connected with the technology. Let's take a look at them. This is what Dorothy Kenney says in her Article Firearm Microstamp Technology: Failing Daubert and Federal Rules of Evidence 702, 38, Rutgers Computer & Tech. L.J. (2012):(1) “Microstamping has repeatedly failed tests. Results of {a UC Davis} study were consistent with earlier tests published by the Association of Firearms and Tool Marks Examiners. Firearm examiner George Krivosta, of the Suffolk County, N.Y. crime lab, found that the vast majority of Microstamped characters in the alphanumeric serial number could not be read on any of the expended cartridge cases generated and examined." However, one of the greatest flaws that the two studies revealed was that the Microstamp codes were easily removed. Firing pins were removed in minutes, and serial numbers were obliterated in less than a minute with household tools.” So, if the serial numbers cannot often easily be read or, if criminals can, in any event, easily get around microstamping technology, then there is no point to the technology’s adoption.(2) “Additionally, most gun crimes cannot be solved by micro-stamping, or simply do not require micro-stamping to be solved. Most gun crimes do not involve shots being fired, thus there are no cartridge cases for police to recover. Notwithstanding TV shows that portray crime-solving as impossible without high-technology, most crimes can be solved by traditional means. For example, of murders in which the victim-offender relationship is known, most involve family members, friends, and other acquaintances.” This makes a critical point. Technology is often not needed. In such cases, technology may often overshoot the mark. To adopt new, and expensive, technology for its own sake when it doesn’t offer an improvement over existing technology or over simpler non-technological ways of accomplishing a particular task is foolhardy. Its adoption creates unnecessary complexity. After all, technology is supposed to provide a service. If that service isn’t needed because an existing methodology works just fine, then there is no rational purpose for adopting such new technology.(3) “Most criminals also obtain guns through unregulated channels. According to the BATFE, 88% of crime guns are acquired through unregulated channels, and the average time between a crime gun’s acquisition and its recovery by police is 10.8 years. There is also a very real risk that Microstamp technology would lead to gun thefts if legally purchased guns could link a criminal to a computerized system. It is argued that this technology would lead to an increase in black market sales of firearms.” And, if so, this would create both a headache for innocent owners of semiautomatic handguns that are stolen, and for the police, as the police are led on a wild goose chase, chasing after innocent firearms owners whose stolen guns end up being used in crimes. And innocent gun owners, for their part, would be caught up in a dragnet, forced to defend themselves against a crime they did not commit or would be otherwise forced to defend themselves against a trumped up charge of gross negligence for having lost a firearm in the first place. Again, if a new technology, such as microstamping, doesn’t offer any benefit to forensic police work, no reason exists for its implementation.(4) “One of the biggest dangers is the possibility that anyone could collect Microstamped shell casings from firing ranges and plant them at the scene of a crime. This ultimately could lead to a false arrest or implicate an innocent person in criminal activity.” “Innocent people can be framed or implicated.” This is a corollary of “(3)” above, where innocent citizens are hounded by the police for crimes they did not commit. Thus, criminals would make fools of both the police and of innocent law-abiding Americans. This suggests that microstamping is not just irrelevant to ballistics science, but is actually an impediment to police investigation of crimes committed with guns.(5) It’s unlikely that microstamping technology would be admissible in court because of the difficulty of maintaining written documentation. Dorothy Kenney says, “maintaining a proper chain of custody’ involves producing and maintaining written documentation, which accompanies the evidence and provides an uninterrupted timeline showing the secure location of the evidence from the time it was discovered until the present time. . . . Maintaining this chain of custody helps to ensure that the evidence will not be contaminated or compromised in any way. If the proper chain of custody is not maintained and the chain is broken, it may provide a potential reason for such evidence to be inadmissible in court. Thus, even if Microstamping was mandated, it would have limited value, because there would be no way to ensure that the evidence was not compromised, rendering it ultimately inadmissible in court.” The U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ruled that scientific evidence produced at trial must be not only relevant but reliable.” “Since microstamping relies on toolmarks, the problem of presenting forensic evidence based on microstamping faces three challenges that at present cannot be overcome.” Kenney says,“. . . the challenges to forensic firearms and toolmark identifications have been that (1) the individual characteristics of toolmarks are comprised of non-unique marks, (2) subclass characteristics shared by more than one tool may be confused with individual characteristics unique to one and only one tool, and (3) the individual characteristics of the marks made by a particular tool change over time.” So, if issues of admissibility of microstamping evidence commonly arise, then the usefulness of the technology is dubious even if it is theoretically sound. So why have it? This is another critical consideration. If the conclusion of forensic examiners, based on use of microstamping technology, is doubtful, and if, then, such forensic expert testimony is inadmissible in a court of law, use of microstamp technology collapses in upon itself like a house of cards. The use of the technology is both pointless and worthless.(6) As with any scientific theory, to be valid and therefore useful, the theory has to be subject to independent verification. The theory behind microstamping technology is no different. “This means that other examiners must be able to repeat the work and come to the same conclusions. Therefore, the data that we gather should provide a well-defined ‘roadmap’ as to what experiments we performed to answer the question(s) posed, what data was gathered, and a clear demonstration of the evidence from which we supported our conclusion(s). This mechanism of communication among scientists is a substantial part of the process of verification.  Thus far, the results that Microstamp technology manufacturers claim to have attained have neither been duplicated nor verified.” Additionally, “Scientific knowledge must be more than a mere belief; it must be fact or theory grounded in methods or procedures of science. Because this new technology has not been thoroughly peer reviewed, the rate of error is so high, and there is no general acceptance among the scientific community, a judicial inquiry should bar admission of it as evidence. This runs in direct conflict with California’s new law requiring that all new models of semiautomatic pistols sold in the state be engraved with the Intentional Microstamp laser codes.” So, if independent verification of field tests is what microstamp technology lacks, there is no logical basis for forensic specialists to adopt it. And, if that is so, then there is no rational basis for State Legislatures to enact laws, requiring gun manufacturers to spend exorbitant sums of money to retool machines to fabricate guns, and there is no rational reason for the consumer to have to expend extra dollars to purchase semiautomatic weapons, incorporating the technology. In fact, to date, there are no credible estimates of the real cost of implementing microstamp technology either to firearms or, if extended, to that of ammunition. Further, were State Legislatures to mandate use of microstamp technology for the millions of firearms already manufactured, the additional expenses incurred by firearms manufacturers and by the consumer would be astronomical. Moreover, the logistics of handling such a massive undertaking would be unimaginably complex.(7) At the time of the publication of Kenney’s law journal article, California’s microstamp technology law was in effect and had been in effect, thanks – or no thanks – to then Governor Schwarzenegger’s having signed it into law in 2007. And, Kenney said, that, “while the Microstamp technology law is currently in effect in California, it is owned solely by a company called Identification Dynamics, LLC, which recently acquired the U.S. patent. However, the California legislature required the Attorney General to certify that the technology was available to more than one [gun] manufacturer unencumbered by any patent restrictions before it could take effect. In essence, the requirement does not activate until Microstamping is outside of patent protection but the manufacturing company has a patent on it that runs until approximately 2023. Thus far, this certification requirement has not been satisfied so the legislation is practically nonfunctioning.” Be that as it may, on May 17, 2013, Rochelle C. East, the Chief Deputy Attorney General did certify, under California Penal Code Section 31910, Subdivision (b)(7)(A), that very technology. The Chief Deputy Attorney General, Rochelle, said in important part: “The California Department of Justice has conducted a review of the known available patent restrictions applicable to the microscopic-imprinting technology described in §31910, Subdivision (b)(7)(A). Based on this review, the department certifies that, as of May 17, 2013, this technology is available to more than one manufacturer unencumbered by patent restrictions.” The certification has not, to the best of the Arbalest Quarrel’s knowledge and belief, been challenged; and we believe it should be. The public should have access to the facts and to the legal reasoning the Chief Deputy Attorney General relied on to support her certification of microstamp technology. A blanket statement in lieu of supporting arguments is suspect. Apparently, New York is relying on the certification report that the Chief Deputy Attorney General of California published, as New York drafts its own legislation, mandating adoption of microstamping technology in its own State.(8) One law scholar, David Muradyan, in “Review Of Selected 2007 California Legislation: Penal: Firearm Microstamping: A Bullet with a Name On It, 39 McGeorge L. Rev. 616 (2008), is clearly enamored with microstamping technology, but, even he admits it falls short in a few critical respects. He notes, for example, without taking exception to the conclusion that: “According to experts, this technology would cost manufacturers somewhere between fifty cents and eight dollars per gun to implement.” Actually, the associated costs are completely unknown. State Legislatures as with the U.S. Congress often jump the gun. They act upon an event or a perceived event without properly considering the consequences of their action which, in many instances, as we have seen – and not just in respect to the matter of enactment of restrictive gun legislation – creates unanticipated and very real negative consequences. The antigun crowd is flippant in its suggestion that adoption of microstamping technology would have a minimal negative economic impact on the manufacturing of firearms. How would they know? From what hat does the antigun crowd pull a rabbit?(9) David Muradyan states: “Some opponents of the law even suggested that manufacturers would stop selling new semiautomatic handguns in California. In fact. . . at least one manufacturer has stopped firearm sales in California.”  Smith & Wesson has stopped or will stop selling its semiautomatic handguns in California, and Sturm Ruger has or will follow suit. And it is likely that other firearms maufacturers, too, will refrain from selling semiautomatic handguns in California.Muradyan, apparently, does not, appropriately, see this as a positive development although antigun zealots would, most likely, and, clearly, inappropriately, disagree with that conclusion. Actually, California’s microstamping law has a tremendous negative impact on free market capitalism, on the right of law-abiding Californians to freely exercise their Second Amendment Right to Keep and Bear Arms, and, indeed, on the very notions of American culture, heritage and National integrity. We see our Nation’s unity slowly, inexorably, methodically, and irrevocably warped by restrictive gun measures that have little, if anything, to do with reducing gun violence – regardless of the propaganda that is pumped out by the mainstream news media urging the public to think otherwise. This new law has everything to do with destroying the fabric of American conscience – of the American psyche – of laying waste to the idea of the sanctity of the Second Amendment to the U.S. Constitution.(10) Muradyan also asserts, “in addition, opponents argued that criminals could alter a firearm with a microstamping feature by removing, defacing, or replacing the firing pin.  {The California microstamping law} however, requires etching to occur in at least two different places inside the pistol, which presumably would make it more difficult for a criminal to alter. Further, according to supporters, ‘firing pins equipped with microstamping technology would be difficult to alter as they are nearly as hard as diamonds.’ Therefore, even if criminals were to successfully file the pin down, it would effectively prevent the gun from firing. However, at least one independent peer-reviewed study from a professional society of firearm examiners found that microstamp markings could be removed without rendering the firearm inoperable. This is a major flaw with microstamping technology that the legal expert, Dorothy Kenney, makes as well, as noted, supra. Once again, she says, and emphatically, ". . . one of the greatest flaws that the two studies {that she looked at} revealed was that the Microstamp codes were easily removed. Firing pins were removed in minutes, and serial numbers were obliterated in less than a minute with household tools.”What we can reasonably conclude from the comments of these two legal experts is this: if the technology is flawed from the get-go or, if criminals can easily get around microstamping technology even if it were otherwise to have some advantages over traditional ballistics forensic methodologies, then why have it? There is no point to the technology’s adoption. Granted, legal experts are not in complete agreement whether microstamp technology can be defeated. The issue whether a firing pin can be “filed down” making the weapon inoperable is not conclusive. But the fact that controversy does exist ought to give one pause. For, if microstamping technology can be defeated -- and experts do agree that this is not unlikely -- then the justification for mandating its use on the ground that it is an innovative tool for the investigation of gun-related crimes loses all semblance of meaning. One gathers from Muradyan’s point that, at the very least, much more testing of the efficacy of the microstamping process should be undertaken, to ascertain whether the technology can be defeated, before laws mandating its adoption by gun manufacturers are enacted. But the legal scholar, Kenney, has no doubt at all about that. She makes abundantly clear, on the basis of her investigations, that microstamping can be defeated, as she so states. And one thing we can all rest assured about, and it is this: criminals will definitely attempt to defeat microstamping technology. Many criminals are very industrious and highly intelligent. No one should lose sight of that. To believe otherwise is to embark on the road of dangerous complacency. For, if (1) microstamping technology can be defeated, then, (2) there are criminals who are capable of defeating that technology, and, (3) criminals will defeat microstamping  technology. Of that, there can be no doubt at all. And, in the absence of any absolute guarantee by those who seek to require implementation of that technology that such microstamping technology cannot be defeated, this, then, is certainly reason enough to preclude adoption of it.11) Lastly, Muradyan points out that, “according to the co-inventor of the technology, the reason that {the microstamping study} produced poor results and that markings {were} not fully legible was because the {microstamping study} did not use a more sophisticated method to read the markings known as, ‘Scanning Electron Microscopy.’” But, consider: if sophisticated scanning techniques are required, then the impetus to use microstamping, with the attendant compliance hell that it creates for firearms manufacturers, is lost and, in fact, it becomes self-defeating. For, as noted by the legal scholars, Nair and Rolf, if it works at all, then theoretically at least “a distinct advantage of microstamping{would be} that the marks could be examined at a crime scene using equipment no more sophisticated than a magnifying glass, vastly simplifying and expediting the process of developing investigative leads.” See, Daniel L. Cork, Vijayan N. Nair, and John E. Rolph, Some Forensic Aspects Of Ballistic Imaging, 38 Fordham Urb. L.J. 473 (2010).If the “marks” cannot be readily examined at a crime scene, as readily admitted by a co-inventor of the microstamping technology, then a presumptive key advantage of the technology for use in forensic science is lost. And, of course, the singular danger is that the police may ultimately be drawn to an innocent gun owner, if shell casings are “planted” at the scene of a crime, anyway. So, then, why use such technology? Answer: there’s no rational reason at all to do so. "So, one of the unintended consequences of ballistic fingerprinting should be an increase in the value of revolvers with disparate implications for the black, gray, and legitimate markets. Revolver technology is older than pistol technology. The older portion of the handgun inventory is dominated by revolvers. Revolvers dominate the subcategory of early-inventory, no-paper handguns because there are more older revolvers than older pistols and more of them were sold before the 1968 Gun Control Act established nominal recording of sales by serial number. Ballistic fingerprinting will increase the gray-and black-market values of these revolvers." "However, these early-inventory revolvers have another characteristic that might produce positive consequences. Many of them are chambered in smaller calibers, and thus potentially less lethal than many modern guns. For example, the antiquated .32 caliber cartridge makes up a substantial share of early-inventory revolvers. Many police agencies used the .32 before upgrading to the .38 Special revolver, which itself was replaced by more modern, ballistically superior sidearms. So while ballistic fingerprinting may have limited value as a crime solving tool, it might produce marginal extra-design benefits by creating black market preferences for early-inventory, lower-powered handguns.” But, contrary, to this last remark, a substantial number of relatively small but high powered caliber revolvers (.357 caliber) or large bore (.45 or .50 caliber) revolvers presently exist or are otherwise manufactured on a regular basis. So, Muradyan's last comment is of dubious value in support of adoption of microstamping technology.(12) Furthermore, apropos of the dubious value of microstamping technology in light of the existence of revolver handguns, even assuming arguendo (1) that microstamping technology were demonstrably superior to existent technology, and (2) that defeating the technology where implemented on newly manufactured firearms were difficult, the fact remains that criminals need not use such firearms that incorporate such technology. This point is made poignantly clear by Nicholas J. Johnson, Professor of Law at Fordham University Law School, in his “Article & Essay: Imagining Gun Control In America: Understanding The Remainder Problem,” 43 Wake Forest L. Rev. 837 (Winter 2008). Professor Johnson emphasizes that, “The technology only works for pistols - i.e., semi-automatic handguns that eject a spent shell casing when fired. It is irrelevant for revolvers where the spent cartridges remain in the cylinder until manually ejected. More than this, it only applies to the new pistols that enter the market each year in the handful of jurisdictions that have these laws. But even if it were a national program and captured all the new pistols (though none of the revolvers), it would only involve a small fraction of the full inventory. If layered with new requirements that all existing pistols had to be brought in for an official firing and collection of the spent case for the database, the scheme should encounter the same defiance impulses that fuel resistance to registration and confiscation. As explained in the discussion of registration, one impact of Heller should be to reduce the impulse to defy this type of measure, at least among the general population. Unfortunately, the target population, the class of criminal actors, will have very high incentives to obtain remainder guns withheld from the database, or replace the pistol’s barrel, or obliterate the microstamp, or change the firing pin contour or simply replace it.” Johnson's arguments, alone, ought be sufficient to silence anyone who thinks microstamping technology should be added to the ballistics testing repertoire. For, even assuming that microstamping technology were the sine qua non of modern ballistics technology – a technology that cannot be defeated in the firearms in which it were employed – which, as we have shown, isn’t the case at all – the technology can easily be defeated through the simple expedient of utilizing handguns that simply make no use of it. The millions of handguns presently on the market make no use of it, whether they are semiautomatic handguns or revolver handguns, and no sensible gun owner would freely hand over his handguns for modification of the firing pins to make use of it, in the absence of laws that require such modification of existing handguns. Secondly, even if the microstamping of firing pins of all prospectively manufactured handguns were required – revolvers as well as pistols – the technology is, once again, useless  and therefore pointless for revolvers, as made abundantly clear by Professor Johnson, because -- as anyone who has any familiarity with firearms knows -- revolvers do not eject cartridge casings. Thus, microstamping technology will never replace standard ballistic testing methodologies presently used by forensics experts. This simple matter-of-fact irremediable flaw inherent in microstamping technology is, apparently, lost on the mainstream news media that constantly sings, grandiosely, about the wonders of the "new" technology, conveniently overlooking its most obvious failing.Perhaps most odd, though, is the fact that, as the antigun groups work to classify more and more semiautomatic handguns under the category of “assault weapons” –  making ownership and possession of more and more semiautomatic pistols unlawful, in a naked, unapologetic attempt to reduce the types of handguns available to the public – more members of the public who wish to buy a handgun will only be able to buy a revolver. Further, killers may be more inclined to use a high-powered .357 caliber revolver or a big bore .45 or even .50 caliber caliber revolver, rather than a semiautomatic, to commit murder, in any event. So, far from being a panacea for present-day fallibilities in ballistics testing, the utility of microstamping is reduced essentially to a nullity. So, why have it? When faced with these irrefutable facts, detailing the flaws of microstamping technology, antigun groups will undoubtedly still argue forcefully for adoption of the technology.  They will likely either offhandedly gloss over or altogether ignore the logical arguments that come to bear against adoption of the technology and that point irrevocably to the uselessness of the technology, or they will simply regurgitate general and meaningless slogans about how any antigun measure is a good measure for society.  Clearly, microstamping technology has so many problems and issues, that, to say it isn’t as yet ready for adoption -- if, indeed, it ever would be -- is an understatement. As a tool of forensic science, it is of dubious worth. The attendant costs to firearms manufacturers who must retool machinery to accommodate microstamping is likely to be exorbitant. The logistics of implementation is a nightmare. The negative impact on the law-abiding, innocent gun owner caught in a web of misidentification is all too likely. The admissibility of expert testimony predicated upon microstamping, in a court of law, is doubtful. And, the mere use of a revolver handgun that doesn't eject spent shell casings, in lieu of a semiautomatic handgun that does, defeats microstamping technology outright, and therefore renders the technology absolutely useless for forensic ballistics work. So, balancing costs and benefits of the technology, the benefits to be derived from adoption of microstamping technology in the manufacture of firearms come up abysmally short, if there are benefits to be derived from its adoption at all.

ISSUE THREE: MAINSTREAM MEDIA’S SUPPORT OF MICROSTAMPING TECHNOLOGY IS IRRATIONAL

When all is said and done, it becomes clear that the antigun crowd isn’t interested in whether microstamping technology actually helps to solve gun crimes or, for that matter, whether the technology even works in theory. The antigun crowd is simply interested in creating headaches for both firearms manufacturers and for the American public. And the antigun crowd will succeed on that score in any jurisdiction where microstamping legislation is enacted. Now, even assuming arguendo that microstamping of firearms and ammunition does provide some forensic benefits over standard ballistics identification methodology -- which in fact it doesn't -- the mere adoption of microstamping technology is not and was never designed to be a mechanism to prevent gun violence. That fact seems to have been lost on those Legislators and on mainstream media journalists who advocate for it.The problem of gun violence falls squarely on the psychopaths and lunatics who themselves are the cause of it. Solving crimes after the fact -- which is all that microstamping technology does, if implemented, and, in fact, is all that microstamping technology, as with all ballistics identification, methodology, was ever designed to do -- does not serve to detract from commission of crimes before the fact. And, compelling manufacturers to expend monies retooling machines for an unproven technology and requiring purchasers to spend additional sums of money to satisfy some will-o-the-wisp aspirations of antigun fanatics, is absolutely asinine. The mainstream media is but a useful tool of the Anti-American antigun crowd and its allies in Congress and in the State Legislatures – coughing up imbecilic slogans and rationalizations, and asides that are devoid of content, meaning and validity in order, merely and, indeed, solely to further a political and ideological agenda.Honest debate must precede enactment of microstamping legislation and – indeed – of any restrictive gun legislation. But, the antigun crowd isn’t interested in debate. And, it isn’t interested in listening to reason. It has directed its efforts to one singular, limited objective: remove all guns from the hands of civilian American citizens. It will resort to chicanery and lies, to accomplish that singular objective, always tugging at emotions, never informing the public with truth. Microstamping is but one more deceptive trick in the antigun crowd’s arsenal. And the mainstream news media isn’t interested in telling Americans the truth about the antigun crowd’s singular objective. Quite the contrary; the mainstream media is in on the secret and it is actively involved in spreading lies. It is interested in manipulating the news; not simply reporting it.Unsurprisingly the American public is deeply perplexed, as it plaintively asks: “What is true? “What is fiction?” “What is real?” “What is fantasy?” In the end the public gives up attempting to sort truth from fiction, reality from fantasy. The public doesn’t know anymore, which is understandable. But, worse, many members of the public don't care. That however is unconscionable. For, what is at stake is no less than the loss of our sacred liberties. The puppet masters know this, and that, of course is, their goal. Guns in the hands of the American citizenry do not fit into their plans. For, nothing is deemed more dangerous to the puppet masters than the thought of an American citizen who cares about his sacred Rights and – more – has the means to secure them.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2014 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.