2015 NRA Annual Convention in Nashville, Tennessee

Stephen L. D'Andrilli, President of Arbalest Group LLC., publisher of the Arbalest Quarrel weblog, is attending the 144th NRA Annual Meetings and Exhibits, being held in Nashville, Tennessee, on April 10-12, 2015. Mr. D’Andrilli will be taking an active and important part in this year’s event, meeting with NRA staff members, attorneys, exhibitors, industry leaders and attendees. Of critical importance to Arbalest Group’s work, as defender of the Second Amendment, Mr. D’Andrilli will be attending the “NRA 18th Annual Firearms Law Seminar,” taking place at the Renaissance Nashville Hotel on Friday, April 10, 2015. Mr. D’Andrilli will provide a detailed report in an upcoming post in the Arbalest Quarrel upon his return to New York. See our 2015 Spring Newsletter for additional information. We discuss the Arbalest Quarrel’s work to date to preserve our sacred Second Amendment on behalf of law- abiding American citizens, and we provide a glimpse of our future plans for the Arbalest Quarrel.

NRA FREEDOM: JOIN IT!

The Bill Of Rights: It's Your Birthright! The NRA Preserves It, The Antigun Crowd Would Strip You Of It. What Will You Do With It?

If you were to ask the average American what the NRA is, you would likely receive, in reply, any one or more of several short descriptive phrases, depending on the person’s political bent. Among them might include: defender of the Second Amendment; gun lobby; gun “nuts;” protectors of America’s liberties; shills for the gun manufacturers; cowboys; True American Patriots; Republican benefactors.As with any long-standing, financially powerful entity – whether a company, government agency, political organization, religious or educational institution, to name a few – the NRA has its fair share of supporters and detractors. And, as with any large, successful enterprise, myth and misunderstandings exist concerning it. It is our belief that many of the critics of NRA quite literally don’t know what they are talking about; for, when questioned, they appear generally to know nothing about the organization, its methods, or its goals.What, then, is the truth about the NRA. And what is myth? Let’s take a look.

NRA AS ORGANIZATION

Among the true statements, we can start with these: The National Rifle Association of America – NRA as it is typically known – is a citizen’s organization, a not-for-profit voluntary association that has been around for quite a while. It had its start in 1871, well over one hundred years ago. The NRA was created by two Union officers, Gen. George Wingate and Col. William C. Church. The officers formed the NRA to improve the marksmanship of American troops and to create a renewable pool of expert marksmen for the training of future citizen-troopers – certainly a worthy endeavor – that had been of observably low quality during the Civil War. Through the intervening years the NRA’s original purpose and goal – to improve marksmanship of union soldiers – expanded, well beyond the intent of its framers, to embrace a host of worthy activities and functions, including: training and promoting shooting sports among the youth of America; certifying range and safety officers for police and military training; creating programs for the training of law enforcement and hunters; and instituting programs for the training of civilians in the safe and proper use of firearms. Literally millions of citizens have received training in these programs – all this, apart from the NRA’s creation of specific programs for the training and certification of the police and military. Moreover, the NRA remains a huge educational institution, delivering “Eddie Eagle” safety training to millions of school age children.

NRA AS DEFENDER OF CITIZENS’ RIGHTS

NRA also defends citizens’ rights. NRA, like the NAACP and similar voluntary citizens associations, provides legal defense funds’ services in crucial cases, to correct injustice, and to battle overreaches of the law and overreaches by regulatory agencies. NRA has, in the past, teamed up with the NAACP and ACLU to fight discriminatory regulations that barred legally qualified and upstanding citizens from owning guns – regulations that barred gun ownership and possession by those legally qualified citizens who lived in public housing. NRA also conducts annual seminars for practicing attorneys to keep them up to date on firearms laws and to provide litigation techniques for those attorneys who litigate.

MYTHS ABOUT NRA

Myths abound about NRA as an organization, and they are especially prominent among academic and so-called “elite” journalists – journalists who are connected with large newspapers and with other major news outlets.One salient myth revolves around the idea that NRA is THE “Gun Lobby.” This suggests NRA is a sinister, secretive organization that operates merely as an arm for gun manufacturers. In truth, there is nothing sinister or secretive about it. NRA is, rather, a voluntary citizens’ group focused on firearms rights. It is one of many citizens groups focused on firearms rights. How does it differ from other such groups? NRA is merely the oldest and largest among voluntary citizens’ groups focused on firearms rights. It has currently more than five million members who pay dues to belong to NRA. In contrast, academic experts estimate that all of the American antigun groups combined have no more than about 150,000 members total.Consider, too, NAACP, at its height – during the civil rights era of the 1960s – had no more than one million members. Today NAACP has substantially fewer members. This places things in perspective.But, is NRA shrinking, retreating or otherwise suffering defeat? This is another myth perpetrated by mainstream media. In fact, during a period of time, from about 1968-1970, as American “elites” attempted to impose top-down severe, European-style gun control laws upon the American public, NRA has grown from about one million members to its present status: five million dues paying members. This present growth in membership in NRA is occurring at a time when, curiously, membership in voluntary associations – and volunteerism, generally – has declined. Thus, the growth of NRA is indicative of an unprecedented mass mobilization of well-informed citizens. Yet, “elite” newspapers and other “elite” media sources cheer-lead NRA defeat. How can the disparity between fact and false reporting of fact be reconciled? Well, quantitative scientific content analysis of “elite” newspaper coverage of NRA shows that “elite” media is entirely unaware of this growth. Do these reporters live in a different world from that of the rest of us? They certainly seem to be more interested in reporting what they wish to be true than in reporting what is in fact true.Interestingly, the more negative coverage NRA has received the more its membership has grown, as confirmed by a dissertation study of a University Professor: “NRA and the Media,” Arktos, 2013, Brian Anse Patrick.“Elite” media have been and continue to be out of touch with reality when it comes to NRA and American Gun Culture generally. The “elite” media attempts, wrongly, to project a picture of the world it prefers to see rather than to describe the world as it is. This is inconsistent with the ethics of journalism and suggests that “elite” media is utilizing propaganda to mold public opinion in a particular direction. In so doing, “elite” media disparages the very concept of “Freedom of the Press,” as embraced by the First Amendment to the U.S. Constitution. “Freedom of the Press” becomes, instead, a tool of control for those who seek to destroy our sacred Bill of Rights.A corollary to a major myth that NRA is merely an arm of gun manufacturers (the firearms industry) is that the NRA receives all of its funding from the firearms industry and, too, that NRA is run by the firearms industry. This myth is fostered and reinforced by – rather than dispelled by – the “elite” media.

NRA OPERATES TRANSPARENTLY

First, compared with the governance procedures established by other groups, NRA operates much more openly than other organizations and certainly more openly than the antigun groups that so vehemently attack it. And NRA utilizes a democratic process as opposed to an autocratic one. NRA’s numerous life members directly elect its 76-member board of directors. The Board then appoints its executives and functionaries. Contrariwise, antigun groups and some large member organizations, like the AARP, are actually run by small, relatively autocratic cabals.Antigun groups – forever railing against the NRA and insinuating that gun violence in this Country is due to the machinations of the NRA – as if the NRA is or rationally could be responsible for crime and for the criminals and lunatics that cause it – are duplicitous and hypocritical in the extreme. Where antigun groups irrationally call for more and more restrictive gun legislation, NRA calmly reiterates that we ought first to enforce the hundreds of laws we already have on the books. Where antigun groups rail that NRA outspends them, they fail to appreciate that the money NRA has in its coffers comes from the pockets of millions of hard working Americans – not from secretive PACS or from the checkbooks of a few billionaires who, with the stroke of a pen, handily write checks for millions of dollars to keep these antigun groups afloat – gloating over the tens of millions of dollars they can spend, have spent, have available to spend and will continue to spend to push through ever more restrictive gun laws until, by sheer weight of numbers, the Second Amendment topples of its own accord and takes with it the other nine Amendments as well.Where the NRA has the strength of its conviction – in the form of millions of active members who have a vested interest in preserving their sacred Rights under the Bill of Rights – the antigun groups have empty slogans, slick commercials, and highly paid image makers and media consultants, pressed into the service of billionaire plutocrats whose real goal is control over the American public – not curbing gun violence. And, where the NRA upholds the sanctity of the individual, the antigun groups argue the individual’s needs must ever be subservient to the greater good of the collective will.So, as the NRA derives its funds directly from membership dues and contributions, the complaints of antigun group executive officers’ complaints – as echoed by the “elite” media – of how unfair it is that NRA outspends the antigun groups – rings hollow. After all, NRA members outnumber members of these antigun groups on an order of more than 25 to 1. NRA has a true mass membership. Yet, all the while the public is fed the myth, through the “elite” media, that NRA’s membership is dwindling. And, this notion of a dwindling NRA membership is merely one more incoherent remark.Second, while the membership pool of NRA is deep and extensive, the antigun group, “One Million Moms for Gun Control,” is essentially spectral – merely a website and media simulation, and those who run it are well hidden from public view.

NRA ISN’T A GUN LOBBY

But, is there any truth at all to the notion as incessantly bandied about by the antigun crowd and the “elite” media that NRA is a “Gun Lobby?” No. That’s a common misconception; nothing more than a fabrication of antigun groups, trumpeted by the “elite” media.How is the term ‘Gun Lobby’ as applied to NRA a misconception? Let’s see. We must take a look at the meaning of words. Well, what is a ‘lobbyist?’ The term ‘lobbyist’ refers to someone hired by a business or a cause to persuade legislators to support that business or cause.” Extrapolating from that definition, the term ‘lobby,’ is, then, a collection of lobbyists. The words, ‘lobby’ and ‘lobbyist,’ are words of disparagement. When used in that way – to disparage a person or group – the terminology does not define a group but dehumanizes a target population and makes the group seem less deserving and sympathetic. So, instead of referring to NRA members as a “citizens association,” which is really what it is, the NRA becomes, instead, a non-human, cold, entity – a “lobby,” – which conveys a host of negative connotations, all used to disparage it.Calling NRA a “Gun Lobby” – or “THE Gun Lobby” – is to disparage the NRA. This is a typical propaganda technique. The NRA is decidedly not a “lobby,” according to the conventional definition of the word.Yes, the NRA does engage in lobbying activities. But, then, so do other organizations, like the NAACP, AARP and, for that matter, the “Brady Campaign to Prevent Gun Violence” (formerly, “Handgun Control, Inc.”) and many other groups. But, NRA is not a lobby.Now, there are gun lobbies, but the NRA isn’t one of them, if, as the antigun groups erroneously maintain, the NRA is a lobbying group for the firearms industry.But firearms manufacturers do organize as trade associations and those associations may operate in part as true “gun lobbies.” But those trade associations and their lobbying arms are not NRA. If one insists on referring to NRA as a lobby at all, then it would be fairer and decidedly more accurate to describe NRA as “the American citizen’s Bill of Rights lobby;” for, politically, NRA represents millions of American citizens in support of citizens’ Bill of Rights – and NRA does this often better than the Legislators who are elected to represent Americans. Even so, as we have shown, NRA does much more than lobby, even as such lobbying activities are for American citizens and even as such lobbying efforts are the most worthy of any lobbying an American organization might engage in – the preservation of our liberties, as embodied in the Bill of Rights.

NRA EXERCISES ITS FIRST AMENDMENT RIGHTS

Now, here’s a secret the editors and bureau chiefs at mainstream news publishers like New York Times and similar news organizations have yet to learn: the main reason NRA is so powerful is because of NRA’s principled application of the First Amendment of the U.S. Constitution to the defense of the Second. NRA advances the case for the individual right, natural law meaning of the Second Amendment by the effective application of the social action schematic established by the First Amendment. Mainstream journalists who attack NRA – who see themselves as enshrined and elevated in the social hierarchy above those who write for weblogs – often using disparaging phrases like, “gossip mongers” and “tellers of tales” when referring to weblog writers – clearly see themselves as distinctly superior to other news writers, believing, apparently, that the word, ‘Press,’ as it appears in the First Amendment, only applies to them. These mainstream news journalists don’t seem to note the irony in their remarks. For, it’s the weblogs that, all too often, provide real news; and it’s the mainstream media that fills the print medium and the airwaves with false news – mere propaganda – false news that aims to mold public thought and opinion rather than create a neutral platform upon which the American citizen might exercise his own critical faculties to discern the truth.And what are the First Amendment guarantees for Americans? The First Amendment guarantees to all Americans the fundamental right to voluntarily associate, free of any system of beliefs established by government. The First Amendment guarantees to all Americans the fundamental right to discuss, promote and publish their ideas. The First Amendment guarantees to all Americans the fundamental right to peacefully petition government officials and representatives for needed change.The Founders of our Republic did not intend for “the Press” to function as a propaganda implement – an institution to be operated by a privileged few in order to control everyone else. But, this is what the “Press” qua “mainstream media” has become – a mechanism of control. This mechanism of control comprises a slew of mass media professionals, employed by plutocrats, who give these “professional journalists” one salient task: brainwash the American citizenry. And these “professional journalists” do so with impunity, in accordance with their masters’ dictates. That is most unfortunate. However, what is fortunate is that a person need not have a license to practice the craft of journalism. In that respect journalism is unlike the professions of law or medicine. And that truly is fortunate.Today, the twin freedoms: freedom of the Press + freedom of speech give the People a voice – a voice that provides the People with a counterweight to the lies perpetrated by those that think “Freedom of the Press” applies only to an institution – an institution they control, an institution under the sway of a privileged few – a privileged few that seeks, through their control of the “Press,” the means to amass ever more power and authority for themselves at the expense of the American citizenry. And, with that power, these privileged few seek to control the lives of the many.

NRA SAFEGUARDS OUR REPUBLIC

The role for voluntary associations such as NRA in a healthy democratic social order is not only important, it is vital to the safeguarding of the Republic as envisioned by the Founders and as etched in stone in that Republic’s Bill of Rights. NRA is above all an informational node. It publishes magazines, hosts websites, and webcasts news services that have millions of subscribers. It provides information to lawmakers and policymakers. It dispenses educational information to students, citizens and firearm safety trainers. It targets information and makes it available where it will do the most good. It promotes meetings and democratic discussion, both in its national seminars, but also in it alliances and affiliations with numerous local and State associations. Without this sort of small and local group structure that allows immediate and small group discussion between equals – there is no effective democracy and our Republic falls.The historical roots of American Gun Culture and NRA go together seamlessly. They work well because they infuse the very power of democratic ideas, information, reasoned discussion and participation. The American citizenry is empowered to join in as true participants, not merely as passive observers of distant events, staged by “their betters” – the plutocrats in Washington. This makes for a true democratic society. For, it is the American citizenry that sets the agenda – an agenda that serves the American citizenry’s interests.This paradigm is not only to be preferred, it is essential to the existence of a Republic. For, if it is the plutocrats in Washington who set the agenda – then, the agenda envisioned will serve the interests of a few, and those interests are antithetical to right embodied in the Second Amendment and those interests are antithetical to the Bill of Rights in its entirety. Those interests are inconsistent with the principles of a democratic Republic.When it comes to “Informational Democracy,” NRA not only better serves the citizenry – as it is the American citizenry that has an essential role in the functioning of the NRA – the NRA’s interests coincide with and embrace the very preservation of and strengthening of the Second Amendment upon which the other Nine Amendments remain secure. Knowledge is Power. The NRA provides the public with the truth concerning the American citizen’s rights under the U.S. Constitution. So, it stands to reason that the forces that seek to crush the U.S. Constitution would seek to undermine the ability of NRA to proffer truth to the American public as well.

WHY IS NRA THE FOCUS OF ATTACK?

NRA is a threat to the plutocrats because NRA exposes the plutocrats’ lies.  At present the plutocrats who seek to control the American citizenry cannot directly attack the NRA’s defense of the Second Amendment; for, to do so, amounts to an attack against a cornerstone of the Bill of Rights.What do they do? They attack the NRA obliquely through caustic remarks such as: the NRA only wants to sell guns; the NRA is against sensible gun control laws; the NRA lobbies on behalf of gun manufacturers and not on behalf of Americans; and the NRA isn’t serious about reducing gun violence in America. Implicit in all these remarks, is the notion that the NRA’s primary purpose and function – its modern day raison d’etre, is political influence and legislative action. If so, why is that?Now, it’s certainly true the NRA operates in the political arena, albeit that isn’t its only reason for its existence in the 21st Century. But the NRA’s political operation isn’t something its members or officers had originally sought to do or wished to do. Rather, the NRA was reluctantly compelled to enter the political arena by groups that are themselves politically motivated and, in fact, have no reason to exist other than to defeat the Second Amendment and by extension – to defeat the greatest protector of the Second Amendment – the NRA.

THE MYRIAD THREADS OF NRA COME TOGETHER

If there is a central theme running through the myriad marksmanship and training programs offered and sponsored by the NRA, that theme is reflected in this assertion, as presented prominently on the NRA website: “The National Rifle Association is America’s longest-standing civil rights organization. We’re proud defenders of history’s patriots and diligent protectors of the Second Amendment.”

WHENCE THE ANTIGUN GROUPS?

Curiously, the antigun lobbies and PACS, unlike the NRA, which is well over one century old, are of recent vintage. One of the oldest, “The Coalition to Stop Gun Violence,” is only 40 years old, as it proudly trumpets its 40th Anniversary on its website. Another, “The Ohio Coalition Against Gun Violence” is scarcely 14 years old. “The Delaware Coalition Against Gun Violence” is but one and one-half years old. And, “the Illinois Council Against Handgun Violence” that started in 1973, is scarcely over 40 years old. Perhaps the most well-known  antigun group is “the Brady Campaign to Prevent Handgun Violence.” It started in 1974 as the “National Committee to Control Handguns.”One begins to see a curious theme here. Most of these antigun groups had their start in the 1970s. Was this just coincidence,or was there another hand at work here, mapping out strategies to undermine and destroy the Second Amendment?While these antigun groups all claim that the greater threat to civility in this Country is the “Gun Lobby,” code for the NRA – as that is how these groups prefer to call the NRA, as we’ve seen – one can see as well that it’s the antigun groups themselves that are truly nothing more than lobbying arms and politically motivated action committees for the plutocrats.These groups, as fronts for cabals of powerful forces both within the Country and outside it, realize that, in order to undercut the Second Amendment, it is necessary to defeat the NRA. So, the NRA, on behalf of millions of Americans, who wish nothing more than to secure their rights under the Bill of Rights – including the Second Amendment – was compelled, reluctantly, to enter the political arena – to become a political force – a considerable political force – to be reckoned with in its own right.

MYTH AND TRUTH PLAY OUT

On balance, we see truth and myth both played out. The NRA’s goals are straightforward and virtuous: to preserve and protect the integrity of the Second Amendment. Contrariwise, the myriad antigun groups, springing up virtually at the same time – during the 1970s – have had and, today, continue to have, one goal: the destruction of the Second Amendment to the U.S. Constitution. That is their salient aim. That is their reason for being. And, in that singular disingenuous pursuit, they have operated  and continue to operate as top-down propaganda campaigns, financed by plutocrats and ideologues.The one force that can and has stopped them is the NRA. These groups know it, and American citizens know it.It is obvious that the stated purpose of these political groups – to prevent gun violence – is nothing more than a blind. We already have hundreds of so-called “commonsense” gun laws: laws banning felons from possessing guns and laws banning the violent and the mentally ill from possessing guns. We also have background checks. But, the plutocrats, through their antigun front groups, constantly insist on more.Obviously, it isn’t violent crimes with guns that motivate these plutocrats even if the dupes who do their bidding buy into the lies propagated. Many of the anti-gun groups seem to believe in absolute centralized governmental power, which maintains that all rights spring from and are distributed by government. This idea is an anathema to the founders of the Republic and inconsistent with the principles of Liberty as set down in stone in our sacred Bill of Rights.The plutocrats obviously have no use for the idea of natural inalienable rights. They wish to dictate behavior for all Americans. And in that process, they want to destroy their Rights and Liberties.

WHAT, THEN, MUST WE DO TO CURB THE EROSION OF OUR RIGHTS AND LIBERTIES?

Most Americans understand the nature of the danger lurking in the shadows, the nature of the danger hidden in the seemingly benign call for purported “commonsense gun laws” – laws that in their mode of expression and in their very essence – do nothing but erode the citizen’s basic freedoms, independence,  and personal autonomy; erode the sanctity and inalienable right of each individual American to be individual.Americans must fight these false flag groups at every turn. There is power in information and in knowledge, and in a true civil society. The NRA is our best ally in that effort. The NRA is your best ally in that effort.Whether you have a gun in your possession or not is unimportant. And, it’s unimportant whether you care ever to purchase a gun. What is important – what is critical to the existence of our Democratic Republic – is the Bill of Rights.The Bill of Rights must be preserved – indeed strengthened – at every turn. The Bill of Rights consists of Ten Amendments. The NRA’s efforts preserve and protect all of them – not just the Second Amendment. And, your membership dollars is an investment in the preservation of the Bill of Rights – all ten of them.So, the next time you feel that one week’s worth of café lattes at Starbucks is more important to your personal well-being than the cost of an annual membership in the NRA, recall that thought as you wake up one morning and read in the newspaper that the Bill of Rights has been preempted by Federal Statute, International Pacts and Treaties, and Presidential Executive Orders and Signing Statements. Those café lattes will probably taste a tad bitter.Keep in mind, by giving NRA a few dollars you’re not doing NRA a favor. NRA is doing you a favor! America’s Bill of Rights is uniquely American. It’s your birthright. Don’t let anyone take your Birthright from you! Support the NRA! Join now![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2014 Stephen L. D’Andrilli (Publius) and Brian Anse Patrick, Ph.D., Professor, University of Toledo All Rights Reserved.

GUNS, PLANES, AND PERSONAL RESPONSIBILITY

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

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

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

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

Introductory Remarks:

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

HOW THE NEW YORK SAFE ACT TREATS AMMUNITION FEEDING DEVICES

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

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

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

WHAT IS A LARGE CAPACITY AMMUNITION FEEDING DEVICE?

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

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

One good example of a semiautomatic handgun that the Safe Act does not ban is the popular Glock 17. As the name suggests, the Glock 17 has a magazine that holds 17 rounds of 9x9mm cartridges.The Glock 17, sans the 17 round magazine, is perfectly legal for an eligible New York resident and U.S. citizen to own and possess. That means the Glock 17 is not defined as an assault weapon under the Safe Act. How do we know that? Well, let’s take a look at what the New York Safe Act says.Section 37(C) of the Safe Act is codified in subdivision 22 of Section 265.00(22)(c) of the Penal Code of New York, namely, NY CLS Penal § 265.00(22)(c).  That Section, NY CLS Penal § 265.00(22)(c), says, “Assault weapon” “means a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or (viii) a semiautomatic version of an automatic rifle, shotgun or firearm.” Let's first look at and apply the above definition of an assault weapon. The definition of a handgun that is also an assault weapon under the Safe Act is also the test you use to determine whether your own handgun is also an assault weapon and therefore a banned weapon under the Act. So, let’s see if a stock Glock 17 that is manufactured to be sold in the civilian market is an assault weapon under the Safe Act.According to the manufacturer’s website, a stock Glock 17 weighs 25.06 ounces unloaded. It does not have a folding or telescoping stock; nor does it have a thumbhole stock. It does not have a second handgrip or a protruding grip that can be held by the non-trigger hand. It does not have the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip. Moreover, a stock Glock 17 does not have a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer. Lastly, a stock Glock 17 that is designed for the civilian market is not sensibly a semiautomatic version of an automatic rifle, shotgun or firearm, whatever that means.So, we can conclude with reasonable certainty, that a stock Glock 17 as designed for the civilian market is not an assault weapon under the Safe Act. An eligible New York resident and U.S. citizen can therefore lawfully own one. And you will note, there is nothing in the definition of a pistol that is also an assault weapon that talks about magazine capacity. But, Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York creates a problem for the New York gun owner who lawfully owns and possesses a Glock 17 and wishes to transfer the gun to another eligible New York resident and citizen of the United States. For, NY CLS Penal § 265.00(23) says that it is unlawful for a New York resident to lawfully possess an ammunition feeding device that is capable of holding more than ten rounds of ammunition if that eligible New York resident happened to come into possession of that ammunition feeding device after enactment of the Safe Act.What all this boils down to is this: If you are a New York resident and U.S. citizen that lawfully came into possession of a stock Glock 17 semiautomatic pistol with, reasonably enough, the stock ammunition magazine that was manufactured with and for the Glock 17, prior to enactment of the New York Safe Act, and you wish to transfer that Glock 17 semiautomatic pistol to another eligible New York resident and citizen of the United States, you are permitted, under the Safe Act, to do so and that includes, of course, a transfer of the weapon to your heir by testamentary bequest.  But, what you cannot do– what you are absolutely forbidden from doing – is attempt to transfer to an otherwise eligible New York resident and U.S. citizen, including, particularly, your eligible heir who also resides in New York – the 17 round capacity ammunition magazine that came with the weapon, unless that New York resident is also a licensed New York gun dealer or is otherwise exempted from the applicable provisions of the Safe Act.Again, you can only lawfully transfer that 10+ ammunition magazine to a New York resident and U.S. citizen who happens to be exempted from the applicable provisions of the Safe Act, such as a New York licensed gun dealer, or you can lawfully transfer that 10+ round capacity ammunition magazine to an eligible recipient who resides outside the jurisdiction of New York, or you can simply surrender that device to the appropriate official for destruction.As you can see, the New York Safe Act is horribly convoluted, ill-conceived, poorly drafted, and wrongly enacted. That the New York Safe Act exists and operates in New York at all says much about some – all too many – New York Legislators’ and Government Officials’ who wanted it, who campaigned for it, and who show, even to this present moment in time, a marked contempt for and condescending attitude toward New York residents and citizens of the United States who wish merely to exercise their sacred Second Amendment right to keep and bear arms.In Subpart 2 of Part 5 of this multi-part series Article, that we will present to you shortly, we look at the issue of ammunition. Can ammunition be lawfully transferred from one eligible New York gun owner to another or do strict controls exist in New York on the transfer of ammunition from one New York resident and U.S. citizen to another? Little if anything is said about this. We carefully examined the laws of New York. The answer may surprise you.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

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

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

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

A WORD OF CAUTION BEFORE WE PROCEED:

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

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

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

ONE FURTHER POINT BEFORE WE PROCEED

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

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

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

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

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

UPCOMING INSTALLMENT

In the fifth and final installment of this multi-series Article, we will discuss a few other matters we have not previously touched upon – matters that are directly related to bequests of firearms. For example, one might assume that the New York gun owner, like a gun owner residing anywhere else in the United States, will have a store of ammunition for one’s firearms. That is only reasonable. And the gun owner will likely wish to bequeath ammunition to one’s heirs, along with one’s firearm or collection of firearms. That, too, is only reasonable. And, York law has much to say about commercial transactions involving ammunition. Yet, New York law has virtually nothing to say about transfers of ammunition that do not involve commercial transactions. So, can a testator bequeath his or her ammunition to the testator’s heirs? We will get into that in Part 5 of this multi-series Article.And, then there is the issue of “large capacity ammunition feeding devices (magazines).” The New York Safe Act treats so-called large capacity magazines, separate and apart from the firearm itself. So, the firearm and the magazine are two distinct devices under New York law. Thus, the New York resident may have a firearm that is in fact, legal, but may have a magazine for that weapon, that, itself, isn’t legal, even though the magazine came with the gun – was, in fact, clearly, a critical component of the gun. Indeed, imagine, a gun dealer selling you a semiautomatic, but refraining from selling you the magazine that the manufacturer designed for it, to be used and sold together with it. Can a large capacity feeding device be transferred to heirs, along with the weapon that was manufactured with it, insofar as the magazine, reasonably, ought to be construed as integral to the weapon and would certainly have been sold with it? For, otherwise, why would an individual choose to purchase a semiautomatic weapon without the magazine? Would a person wish to purchase an automobile without the engine? The New York Safe Act creates, for the law-abiding New York gun owner, an “Alice and Wonderland World;” a place where things are not always as they seem; a place where you must leave your reason and sanity at the door before entering. If a testator can transfer a semiautomatic firearm to his or her heirs, can that testator also transfer the “large capacity ammunition feeding device” that came with it? We will discuss the ramifications of that question in the next installment of this multi-series Article as well.We will also talk about police officers -- but not in their professional capacity as police officers. We will be addressing the issue of bequests of firearms to police officers. Does New York law treat bequests of firearms to police officers any differently from bequests of firearms made to a New York resident who is not an active duty police officer or is not a police officer retired from the force?Of course, a police officer may lawfully possess and use so-called “assault weapons” when on active-duty, and, while on active-duty, the officer will most likely have access to “large capacity ammunition feeding devices” as well. Perhaps that officer may, and probably can, in accordance with Departmental policy, possess and use that same weapon when off-duty, too. That isn't our concern here. What is of concern here and relevant to the discussion, is whether that officer may receive and possess a non-departmental assault weapon as a bequest, for example, from a dying uncle, who happened to have purchased it lawfully prior to enactment of the NY Safe Act and who had timely registered it subsequent to enactment of the Act, in strict accordance with the Act. The answer to that question may surprise you. The answer may, in fact, surprise many New York police officers as well. We will deal with that matter as well in the upcoming fifth and final installment of this multi-series Article.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

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

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

CAPSULE SUMMARY

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

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

Now, let us begin.

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

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

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

Once a New York firearms’ owner dies, the executor or administrator of the decedent’s estate who comes into possession of the decedent's firearms, or, otherwise, the heir who comes into immediate possession of decedent’s firearms, has a very short window in which to surrender the firearms to the appropriate official.NY CLS § 265.20(a) (1) (f) of the New York Penal Code says, in pertinent part, “. . . A person who possesses any such weapon, instrument, appliance or substance as an executor or administrator or any other lawful possessor of such property of a decedent may continue to possess such property for a period not over fifteen days. If such property is not lawfully disposed of within such period the possessor shall deliver it to an appropriate official described in this paragraph or such property may be delivered to the superintendent of state police. Such officer shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.”This Section is very important. It tells the administrator, executor, or holder of firearms that the firearms – all of them, not merely those that are defined as assault weapons – must be surrendered to the appropriate authority within 15 days of receipt of the firearms, upon the death of the owner of the firearms.And, who is an appropriate authority who can receive firearms? The first – and lengthy – sentence of NY CLS § 265.20(a) (1) (f) of the New York Penal Code sets forth: “A person voluntarily surrendering such weapon, instrument, appliance or substance, provided that such surrender shall be made to the superintendent of the division of state police or a member thereof designated by such superintendent, or to the sheriff of the county in which such person resides, or in the county of Nassau or in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown in the county of Suffolk to the commissioner of police or a member of the police department thereof designated by such commissioner, or if such person resides in a city, town other than one named in this subparagraph, or village to the police commissioner or head of the police force or department thereof or to a member of the force or department designated by such commissioner or head; and provided, further, that the same shall be surrendered by such person in accordance with such terms and conditions as may be established by such superintendent, sheriff, police force or department.”This means that firearms must not be surrendered to just any governmental official. Firearms must be surrendered to the appropriate official as defined in CLS Penal § 265.20(a) (1) (f) of the New York Penal Code.Now, suppose the administrator, executor, or holder of the firearms of decedent fails to surrender the weapons within fifteen days of receipt of them as the law requires. Well, under NY CLS Penal § 265.01-b, “A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of two thousand thirteen which added this section subject to the registration requirements of subdivision sixteen-a of section 400.00 of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Criminal possession of a firearm is a class E felony.”If a person – namely, the executor or administrator of an estate or the heir to a firearm or firearms, who comes into immediate possession of the firearm or firearms upon the death of the original owner of the firearms – fails, within fifteen days, to transfer the firearm or firearms to the appropriate official – that person is in unlawful possession of said firearm or firearms. Thus, failure to timely transfer a firearm or firearms of a decedent to the appropriate official, upon the death of the decedent – whether such failure to transfer is deliberate or inadvertent – places the possessor of the firearm or firearms in an untenable position. For that person is in felony possession of a firearm. That person is a criminal under New York law!Now, suppose a firearm or collection of firearms is in fact timely delivered to the appropriate official upon the death of the original owner. In that case NY CLS Penal § 400.05(6) says, “A firearm or other weapon which is surrendered, or is otherwise voluntarily delivered pursuant to section 265.20 of this chapter and which has not been declared a nuisance pursuant to subdivision one of this section, shall be retained by the official to whom it was delivered for a period not to exceed one year. Prior to the expiration of such time period, a person who surrenders a firearm shall have the right to arrange for the sale, or transfer, of such firearm to a dealer in firearms licensed in accordance with this chapter or for the transfer of such firearm to himself or herself provided that a license therefor has been issued in accordance with this chapter. If no lawful disposition of the firearm or other weapon is made within the time provided, the firearm or weapon concerned shall be declared a nuisance and shall be disposed of in accordance with the provisions of this section.”The last paragraph of NY CLS Penal § 400.05(6) makes clear that a firearm or other weapon will be disposed of if the party who surrendered the weapon does not arrange for the sale or transfer of it within the applicable time frame – one year from the date that the firearm or collection of firearms is delivered to the appropriate official.And, what does the expression ‘disposed of’ mean? NY CLS Penal § 400.05(2) spells that out bluntly. The Statute says, “The official to whom the weapon, instrument, appliance or substance which has subsequently been declared a nuisance pursuant to subdivision one of this section is so surrendered shall, at any time but at least once each year, destroy the same or cause it to be destroyed, or render the same or cause it to be rendered ineffective and useless for its intended purpose and harmless to human life.”The expression, 'disposed of' by an official” means 'destroyed' by that official.Now, NY CLS Penal § 400.05(1) defines ‘nuisance’ as, “Any weapon, instrument, appliance or substance specified in article two hundred sixty-five, when unlawfully possessed, manufactured, transported or disposed of, or when utilized in the commission of an offense, is hereby declared a nuisance.”We know that any firearm or weapon that is surrendered to the appropriate official by an executor or administrator of an estate or by another lawful possessor of such weapon, namely and particularly, an heir of decedent to whom a bequest of firearms has been made, in accordance with NY CLS § 265.20(a) (1) (f), is specifically not a nuisance under the applicable Statute, NY CLS Penal § 400.05(6), and therefore is not subject to summary destruction.NY CLS Penal § 265.20(a) (1) (f), provides that the officer to whom such weapon (or weapons) has been surrendered, “shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.”NY CLS Penal § 400.05(2) makes abundantly clear that the official – to whom a decedent’s firearms’ collection is delivered, in accordance with NY CLS § 265.20(a) (1), namely within 15 days of a party’s possession of it – cannot summarily destroy the weapons. He is the custodian of them. The firearms are still the property of decedent’s estate. And so long as decedent’s heir to the bequest of firearms timely informs the official as to the ultimate disposition of them, namely, within one year of the date of surrender of those firearms to the official, that official, the custodian of them, is responsible for their safekeeping.This does not mean that the official to whom the weapons are surrendered will perform his or her duty. What, then, is the responsibility of the State when those firearms are prematurely damaged, lost, or destroyed, prior to the one-year time period? That issue turns on whether the official would have known that failure to preserve the firearms violated the owner heir’s clearly established statutory or constitutional rights. See, Maio vs. Kralik, 70 A.D.3d 1; 888 N.Y.S.2d 582; 2009 N.Y. App. Div. LEXIS 8062; 2009 NY Slip Op 8187.In the next installment of this series, Part 4, we will provide you with a checklist for gun owners. Given present New York law, a testator who wishes to bequeath firearms to his living heirs, must be aware of traps and snares that lurk for the unwary.Be advised: failure to consider contingencies may place both the executor of one's estate as well as one's heirs in real danger of incurring felony charges for failure to make proper disposition of firearms in strict accordance with the applicable laws.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

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

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

 Join The Movement To End Gun Violence In America. Join Everytown For Gun Safety. Everytown is a movement of Americans working together to end gun violence and build safer communities. Gun violence touches every town in America. For a generation, change has been thwarted by the Washington gun lobby and by a broken Congress that has failed to take common-sense steps that will save lives. But something is changing. More than 2.5 million mayors, moms, survivors, law enforcement, teachers, gun owners, and everyday Americans have stepped up to demand more of our country and our elected officials -- and it's working. Because of this movement, the NRA is losing its grip on state houses across America. In 2015, we will continue to fight for laws that will keep guns out of the hands of dangerous people by requiring a simple background check for every gun sale. And we'll hold our lawmakers accountable when they put the gun lobby's interests before the safety of our communities. Everytown starts with you, and it starts in your town. Sign up here to help bring an end to gun violence in your community and across the country.As a movement of Americans fighting for common-sense gun policies, we depend on contributions from supporters like you to fund important work to reduce gun violence.Paid for by Everytown for Gun Safety Action Fund. Contributions to Everytown for Gun Safety Action Fund are not tax-deductible.____________________________________________It is not our purpose here to explicate this propaganda for you. It is all nonsense, anyway. However, there are a couple of reasons we are bringing this matter to your attention.First, take a close look at this propaganda advert and petition. Something is missing from it, something important. Do you know what is missing? It is this: "Everytown for Gun Safety Action" is the brainchild of former New York City Mayor, Michael R. Bloomberg. Apparently, Bloomberg doesn't want the public to know that a multi-billionaire is the driving force behind the effort to destroy the Second Amendment to the U.S. Constitution. The Arbalest Quarrel discussed Michael Bloomberg's, "Everytown" organization in depth, when he  first created it, almost one year ago. The Article in the Arbalest Quarrel is titled, "'Everytown for Gun Safety": Bloomberg's Blueprint for Destruction of the Second Amendment?'" "Everytown" is Bloomberg's raison d'etre, since leaving public office.Second, anyone who is ignorant enough to sign Bloomberg's petition is signing away and, in fact, wishing away his or her Second Amendment right to keep and bear arms: a sacred right that one is unlikely to find in the Constitution of any other nation in the world. If a person is willing to sign away even one Constitutional Right, that person obviously can be duped into signing away others. Once gone, one's rights and liberties are gone forever. Autocratic rulers and autocratic ruling bodies seek to reduce individual rights and liberties to a nullity. Destruction of the Second Amendment is a major step in that direction. Michael Bloomberg doesn't want to talk about that, though. He would rather talk about "violence" and, in so doing, he tortuously attempts to tie violence to guns -- inanimate objects. Bloomberg might just as sensibly tie violence to knives, and hammers, and broomstick handles -- the point being that the real issue here isn't guns at all -- it is people -- "dangerous people" as the "Everytown" petition says. And, who, are the dangerous people?  Why, everyone who owns and possesses a gun: people like you and me because, to the antigun crowd, a dangerous person is a person who would wish to own and possess a gun at all. Imagine that! So, don't for a minute believe that Michael Bloomberg's "Everytown" antigun group is concerned only with guns in the hands of criminals, and psychopaths, and lunatics. If that were so, the myriad gun laws in force today would be sufficient, for those laws would be enforced. They aren't. The Everytown petition drive is nothing more than a naked ploy, playing to irrational emotion. It is a devious attempt to obtain support from as wide a swathe of the American population as it can. With that support Bloomberg's "Everytown" organization will certainly attempt, anew, to make a case before the U.S. Congress and before the State Legislatures that ownership of and possession of firearms must be ever more stringently controlled and restricted -- controlled and restricted, ultimately, out of existence.The only real violence here is the violence to our Bill of Rights. Hopefully, the American public will see through the "Everytown" petition charade.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

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

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

CAPSULE SUMMARY

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

LEGAL TERMINOLOGY YOU NEED TO KNOW

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

THE NOTION OF ‘PRIVATE PROPERTY’ IN AMERICA

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

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

We have previously pointed to the Fifth Amendment “Takings clause” as the place where one finds a right of ownership in property. The Fifth Amendment sets forth in full: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”Now, to be clear, the Fifth Amendment doesn’t expressly assert private ownership of property in terms of a specific, expressly asserted “right” in the sense, for example, that the Second Amendment clearly speaks of “the right of the People to Keep and Bear Arms. . . .” Nonetheless, the implication is clear.The last clause of the Fifth Amendment says “. . . nor shall private property be taken for public use, without just compensation.” The expression ‘private property’ does expressly appear in the Fifth Amendment even if the right underlying it does not. Still, the right exists, even if only implied. For, if the right to own property in a personal capacity did not exist, then the “Takings Clause” of the Fifth Amendment would be meaningless. The Federal Government or a State Government would have no duty to provide a person just compensation for one’s property if a “right” in and to that property didn’t first exist. So, the right in and to private property must exist in order to make sense of a Government’s duty to provide just compensation for the taking of it.Basically, the “Takings Clause” of the Fifth Amendment says that no governmental body shall take a person’s private property for public benefit, without compensating the owner justly for it. The expression ‘just compensation’ is understood in law to mean ‘fair market value.’ Now proponents of the NY Safe Act will likely point out that the “Takings Clause” of the Fifth Amendment doesn’t apply here even if New York law does interfere with a gun owner’s desire to transfer his firearms to others. Proponents of NY Safe may argue that such interference with one’s private property – one’s firearms – doesn’t amount to a “Taking” under the Fifth Amendment at all because New York isn’t actually appropriating the firearms. Proponents of NY Safe might point out that the executor of the decedent original owner of the firearms isn’t prevented from selling the guns to a resident outside of New York or selling them to a licensed gun dealer in New York.  Still, one might reasonably respond that, to the extent a firearms’ owner isn’t able to do what he wishes with them – bequeath them to his or her heirs – the result is a constructive taking of them.Moreover, if a firearms’ owner is prevented from transferring his firearms to his or her heirs and the executor of the gun owner’s estate is compelled to sell the firearms in order to realize some monetary gain for them on behalf of the heirs, that gain is likely to be far less than the fair market value for the firearms.  A prospective buyer of the firearms would be well aware that the executor of the firearms’ owner’s estate is compelled to sell the firearms or, otherwise, the prospective buyer could certainly learn, with little effort, that the firearms must be disposed of because the heirs are ineligible under New York law to receive them.But proponents of the NY Safe Act might then argue that the State of New York isn’t taking one’s firearms because, under the Fifth Amendment, the taking of private property must be for a public benefit, and there is no public benefit associated with the firearms. There are two responses to that argument.First, since proponents of NY Safe presume that firearms are, ipso facto, dangerous instrumentalities, whose mere presence constitutes a danger to the public, the interference with one’s private property interest in them does, to the minds of proponents of NY Safe, confer a benefit on the public – namely, the removal of them from private hands. The firearms likely must either be transferred to someone outside the State or destroyed by the police, in the State.The benefit, at least to proponents of the Safe Act, however faulty their reasoning, is that public safety in general is increased to the extent that the number of firearms in private hands is decreased. The benefit to the public might be considered, then, a ‘constructive benefit’ if not an actual benefit. So, interference with one’s private property interest in firearms does amount to a taking for the public benefit. If so, then the Government is itself obligated, under the Fifth Amendment to the U.S. Constitution, to provide the owner’s heirs, the fair market value for the firearms – if New York law does not otherwise permit the owner’s heirs to receive the firearms upon the original owner’s death, pursuant to the original owner’s intent as expressed in his will and if the executor of the estate is unable, after diligent effort, to find a buyer outside the State or a licensed gun dealer inside the State who is willing to pay the executor the fair market value for them.Second, even if the interference with one’s ownership interest in firearms does not really amount to a taking under the Fifth Amendment precisely because no actual public benefit exists, still, in some instances, where private property interests are at stake, the Government’s interference with one’s private property interests may amount to a taking, notwithstanding the absence of a public benefit. The U.S. Supreme Court has held that interference with a person’s attempt to pass property to others upon death may constitute a “per se” taking. See, Hodel v. Irving, 481 U.S. 704, 716-18 (1987). If so, then, New York’s interference with a person’s desire to pass one’s firearms to one’s heirs may constitute a per se taking under the Hodel holding.The concept of ‘private property’ also appears, although tacitly,’ in the Third Amendment to the U.S. Constitution. The Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”The Third Amendment presumption is that a person owns his or her house. One’s house is, then, one’s private property. The Third Amendment makes clear that a soldier of the Federal Government shall not, in peace time, be allowed to enter or to stay in a person’s house unless the owner of the house – that is to say, the owner of that property – so allows it. During times of war, the Government can override the consent of the owner but, any overriding proviso must clearly be set forth in law.How many American citizens do you suppose are familiar with the Third Amendment to the U.S. Constitution? Probably, not many to be sure. Just imagine a circumstance, in the not too distant future, when, as economic calamity strikes this Country, and as our sacred rights and liberties become further eroded, under the guise of “National Security, the police and military demand access to an American’s home, your home. If this idea seems far-fetched, just keep in mind that it is only through the U.S. Constitution that Government in this Country is kept in check. As the mainframe of our Constitution -- the Articles and Sections and Amendments that comprise it -- becomes ignored or defeated – improbable events become likely events, and unlikely events become actual.In the next installment of this multi-series Article We will show you that, under present New York law, a New York resident and citizen of the United States does not have absolute control over his or her own firearms. That means that one’s private property interest is not preserved. If so, that is in contravention to the U.S. Constitution and in contravention to the New York State Constitution as well. We will begin to look at actual New York Statutes. We will list them, describe them, and explain how they operate to defeat one’s private property interest in one’s own firearms as they interfere with one’s right to make bequests of firearms to one’s heirs.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

GUNS, PRIVATE PROPERTY RIGHTS, AND THE CONSTITUTION

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

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

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

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

WHAT IS “PROPERTY?”

The words ‘property’ and ‘private property’ are often bandied about. And the meanings of these expressions may seem obvious. But, colloquial meanings aside, you should know what the legal definitions of the words are.Legal definitions of words are important – in fact, critical – because the legal meanings given to words as embodied in law impact your rights and liberties. By the same token, when government officials ignore the plain legal meanings of words, they denigrate the U.S. Constitution, and the American People suffer the consequences.The primary source for the legal definitions of words is Black’s Law Dictionary. The definitions we give you here are those listed in the Ninth Edition of that Dictionary.Property takes one of two forms: personal property and real property. The expression ‘real property’ means ‘land and everything attached to, or erected on it, excluding anything that can be severed without injury to the land.’ We are not concerned with the notion of ‘real property’ here. We are concerned with the notion of ‘personal property.’ The expression, ‘personal property’ means ‘any movable or intangible property that is subject to ownership and not classified as real property.’Intangible personal property refers to intellectual property such as patents and trademarks and copyrights. And we are not talking about intangible personal property here either. We are talking about tangible personal property – that is to say, physical property. Firearms fall within the definition ‘tangible personal property’ because firearms are physical, movable objects, not attached to or erected on land. Now, both real property and personal property can be one of two types: public or private. The expression, ‘public property’ means ‘State or community-owned property not restricted to any one individual’s use or possession.’ The other kind of ‘real property’ and ‘personal property’ is ‘private property.’When talking about firearms, we are referring to ‘private property’ – property that is owned by the individual. We are not talking about property that is owned by the State or property that is owned collectively by the public – that is to say – the community.Your firearms are private property, not public property. Your firearms are not the property of the State and they are not owned collectively by the public. You paid for your firearms out-of-pocket with hard-earned dollars. They belong to you and to you alone. So your firearms are private property – your private property.In law, ‘private property’ means something more than simply property that isn’t State owned or community owned. The expression ‘private property’ means, in law, ‘property protected from public appropriation – over which the owner has exclusive and absolute rights.’ Think about that definition for a moment. The notion of private property exemplifies ideas of exclusive ownership and absolute control by the individual.Your firearms, like the clothes on your back and the automobile in your garage and the gas range and refrigerator in your home, all of which you paid out-of-pocket for, are your private property – property that you have exclusive ownership rights in and to and absolute power over. That is what it means for a citizen in a capitalist society to own property.To the extent that you control your property and to the extent that you have exclusive right to the use and enjoyment of it – to keep it or to sell it or to gift it to another, as you wish – the notion of ‘private property’ is preserved. And, to the extent that your private property rights are infringed or impinged upon, the notion of ‘private property’ is defeated.In the next installment of this article we will provide you with terminology that you need to know to fully appreciate the extent to which the NY Safe Act upends your property interest in your own firearms.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

OPEN LETTER TO THE NEW YORK CONGRESSIONAL DELEGATION IN WASHINGTON, D.C.

OPEN LETTER TO THE NEW YORK CONGRESSIONAL DELEGATION

ARBALEST GROUP'S OPEN LETTER TO EACH AND EVERY MEMBER OF THE NEW YORK CONGRESSIONAL DELEGATION, IN WASHINGTON, D.C.

THURSDAY, FEBRUARY 12, 2015

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

_________________________________________________February 9, 2015The Honorable_______________________United States Senate/United States House of Representatives_______________, Washington, D.C._______Dear Senator/Congressman/Congresswoman:A major flaw exists in the New York Safe Act and in the Penal Code of New York that has not been previously acknowledged and which requires immediate attention. This flaw involves bequests of firearms. Present New York law undermines a person’s fundamental right of ownership in his own private property because it defeats the ability of a New York gun owner and testator to effectively transfer firearms to the testator’s New York resident heirs.We have written to each member of the New York State Legislature, and to the New York Governor, Andrew M. Cuomo, and to officials within the Governor’s administration, bringing this critical matter to their attention.We are urging the New York Legislature to amend New York Law to allow bequests of firearms to be honored and fulfilled in strict accordance with the wishes of a testator.Only then will the fundamental right in and to one’s private property be preserved. We ask for your full support in this endeavor. Thank you very much for your time and consideration.Sincerely,Stephen L. D’AndrilliPresident, Arbalest Group, LLC.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved. 

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

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

THURSDAY, FEBRUARY 12, 2015

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

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

PRIVATE PROPERTY RIGHTS AND THE SECOND AMENDMENT

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

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

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

A new scandal has hit Albany, New York – a big one!  The arrest of the powerful New York State Assembly Speaker Sheldon Silver, by the FBI, on Friday, January 23, 2015, has sent shock waves across the State, most likely affecting Governor Andrew Cuomo’s Administration. The arrest of Sheldon Silver on corruption charges has less to do with Silver than it does for the way legislation affecting the rights and liberties of over 20 million New Yorkers has been and continues to be compromised by an elite group of elected officials – the “three men in a room” – Governor Cuomo, Assembly Speaker Silver, and the State Senate leader – whom the Governor has jokingly referred to as “the three amigos.” An overview of the Complaint filed in federal court, on January 21, 2015, bears this point out. It provides a disturbing picture of how business has been conducted in Albany for many, many years. The Complaint says in pertinent part: “Sheldon Silver, the defendant, has engaged in and continues to engage in a secret and corrupt scheme to deprive the citizens of the State of New York of his honest services, and to extort individuals and entities under color of official right, as an elected legislator and as Speaker of the New York State Assembly.”The U.S. Attorney for the Southern District of New York’s filing of felony corruption charges against Silver may cause Governor Cuomo to distance himself from the Assembly Speaker. Cuomo’s own actions cast a bright and disturbing light on Cuomo as well.On July 2, 2013 Cuomo created the Moreland Commission. Its purpose was twofold: to root out the very corruption the Complaint alleges Silver must now answer for and provide better governance for the residents of the State of New York. The Moreland Commission had the potential to be a good thing for New York State residents and it appears to be a bad thing for Silver.U.S. Attorney Preet Bharara, who filed the criminal case against Sheldon Silver on January 21, 2015, had testified before the Moreland Commission more than one year earlier. On September 17, 2013, Bharara pledged “the cooperation and assistance of [his] office with the Commission’s vitally important work.” He added, “Fighting public corruption has been a top priority for [Bharara] for a long while. . . .”Many of New York’s elite Legislators railed against the Commission and sued to have it disbanded. In their own filing, those Legislators argued the Commission’s actions trampled the Legislators’ Constitutional Rights. Imagine that.Less than one year after forming the Commission, Cuomo said, on March 29, 2014, he was disbanding it. On April 3, 2014 the U.S. Attorney for the Southern District sent a letter to the Commission. In it Bharara said he was taking possession of the Commission’s case files. He questioned whether the Governor was abandoning his commitment to fight public corruption. Cuomo, for his part, was petulant. According to a story published in Crain’s Insider on April 24, 2014, Cuomo told Crain’s: “‘It’s not a legal question. It’s my commission. My subpoena power, my Moreland Commission. I can appoint it, I can disband it. I appoint you, I can un-appoint you tomorrow.’” His power seems omnipotent.The concentration of power in New York has been, for many years, in the hands of a Triarchy, reminiscent of the First and Second Triumvirates that ruled ancient Rome. This modern Triarchy consists of the Governor, the Assembly Speaker, and the State Senate Leader. It has worked in secret, under cloak of darkness, without accountability. These three individuals seem to answer only to themselves as if they do not have to account to the public and do not have to account for their actions.Did these “three amigos” engineer the New York Safe Act and thrust it down the throats of New York residents and gun owners sans debate? It certainly seems so.News accounts report that Silver has temporarily stepped down as Assembly Speaker. However, in light of the serious criminal corruption charges the U.S. Attorney has brought against the Assembly Speaker, we question the wisdom of allowing Silver to continue to serve in the New York Assembly at all during the pendency of the case against him.There is another pressing issue that must be addressed. Since the propriety of the actions of “the three amigos” is in question, we feel the New York public has the right – in fact, the duty – to insist on a probe of how the New York Safe Act was drafted; how it was enacted; and, to what extent, if any, the creators of it knew or had good reason to know that enactment of the Act might undermine New York residents’ Constitutional Rights.If corruption is uncovered any step of the way, then the Safe Act should be repealed in its entirety.Despite the fact that some New York residents exhibit animosity toward guns and gun possession, elected officials, including and especially New York Legislators and the Governor, must operate with transparency and fairness on behalf of their constituencies.Any legislation – especially far-reaching legislation, such as the New York Safe Act, that negatively impacts not only one’s Second Amendment Right to keep and bear arms, but one’s Fifth Amendment private property interest in those firearms, and one’s Fourteenth Amendment Due Process and Equal Protection Rights – must be discussed in the light of day, before enactment. The New York Safe Act wasn’t enacted protecting these Rights. The impetus for it and passage of it all took place in secretive session, out of the public view. Why? The “three amigos” must explain their actions.How was the New York Safe Act pushed through the Legislature so quickly? How were these individuals able to get away with this? Did the “three amigos” honestly think they were acting on behalf of the New York public for the benefit of the public, as the mainstream media portrayed them? Or were they merely furthering a private agenda, using the power of their respective Office to systematically deprive millions of New York residents and gun owners of their Rights and Liberties under both the U.S. Constitution and the New York State Constitution? Did political ambitions motivate these individuals? If so, how? These are serious questions. And they deserve serious consideration. The public demands answers. The public demands accountability. New York residents and citizens must speak up. The damage to the Public’s Constitutional Rights and Liberties must be undone. The time to act is now.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

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

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

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

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

The concept of private property rights underlies and precedes the imperative of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” Further, the fundamental right of Americans to own, possess, and enjoy their private property is embraced in the language of the Takings Clause of the Fifth Amendment to the United States Constitution, as specifically applied to the States under the Fourteenth Amendment to the U.S. Constitution. Further, the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution secure for American gun owners the right to enjoy the liberties the Founders of our Republic intended for them as for all Americans. Present New York law denigrates the rights and protections and liberties of New York gun owners.Many New York residents have firearms’ collections worth many tens if not hundreds of thousands of dollars – perhaps millions of dollars. The fair market value of these firearms’ collections is placed in jeopardy by specific language of the NY Safe Act, and in the language of the Penal Code of New York, and, by implication, in other Rules and Regulations of New York. In that regard it is not sound to argue that New York law provides firearms owners with mechanisms through which they can freely transfer, or sell, or otherwise dispose of their firearms to appropriate parties within the State or outside it. For the language of New York law is coercive. New York law often requires a gun owner to sell, transfer, or dispose of a particular gun or an entire gun collection when he doesn’t want to and prohibits him from bequeathing his gun collection to those whom he does want to bequeath his gun collection to. And he obtains little or no monetary compensation for that gun collection. Such coercion is antithetical to free market practices and turns the very notion of a free market on its head.Oddly, Governor Cuomo doesn’t address how a property interest in a firearms’ collection might be secured. We know this to be true as we have checked out the Governor’s website. You can check it out for yourself. This is the link: http://programs.governor.ny.gov/nysafeact/gun-owners.The Governor’s website provides absolutely no information or guidance for New York gun owners who seek to bequeath a gun collection to their next of kin. Doesn’t Governor Cuomo believe this matter to be important? If that is the case, clearly, tens of thousands of law-abiding New York gun owners would disagree with the Governor. They believe this to be a matter of utmost importance. Many of our readers have expressed considerable bewilderment over the matter of transferring gun collections to their heirs, and they have expressed substantial confusion as to the specific manner of transferring gun collections to their heirs.The testator owner of an expensive gun collection who wishes to bequeath a gun collection to his heirs should not be subject to impediments. But he is. New York law takes his expensive gun collection away from him. It takes his private property away from him without justly compensating him for it. And it deprives the New York gun owner of his expensive firearms collection, his private property, in complete derogation of the precepts laid out in the United States Constitution.In fact the taking of a New York resident’s gun collection without just compensation is not only in contradistinction to the United States Constitution; such taking is in derogation of the New York State Constitution, too.NY CLS Const Art I, § 7(a) says, “Private property shall not be taken for public use without just compensation.” A person’s gun collection is his private property and the State essentially takes it from the owner and prospective heirs without just compensation. And, what public use is attendant to this “taking” of the firearms’ collection? Is the public use merely that a police department may, unbeknownst to the gun owner’s heirs, and, in fact, contrary even to the laws of New York, make use of the gun collection sans compensation to the owner’s heirs? Is the public use merely and incoherently that some of the firearms or the entirety of it will be destroyed by the police official and, so, the decedent’s heirs wind up with zero compensation for the firearms? The taking of private property without just compensation is also inconsistent with NY CLS Const Art I, § 11 which sets forth in pertinent part, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof. By failing to safeguard the monetary value of a New York resident’s gun collection, through the taking of it without just compensation, New York clearly and categorically denies to gun owners the equal protection of the laws to which they are entitled.The Bottom line:New York Statute altogether ignores the precepts implicit in the United States Constitution and in New York’s own State Constitution. New York’s governments operate in complete derogation of and, in fact, in unconscionable defiance to the dictates of both. Whether New York residents own firearms or not, they must wake up to the monstrous destruction of sacred rights and liberties, lest they lose all rights and liberties. [separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE ARSENAL OF DESTRUCTION: OBAMA SAYS ILLEGAL IMMIGRANTS CAN STAY IN AMERICA BECAUSE IT’S THE RIGHT THING TO DO? BUT, IS IT?

PART 2: EXECUTIVE BRANCH OVERREACH/USURPATION OF THE LEGISLATIVE FUNCTION BY THE UNITED STATES PRESIDENT IN CLEAR DEFIANCE OF THE SEPARATION OF POWERS DOCTRINE SET FORTH IN AND THE MAINSTAY OF THE U.S. CONSTITUTION.

SUBPART 3: THE OFFICE OF LEGAL COUNSEL’S OPINION ON ILLEGAL IMMIGRATION

SUB-SUBPART 1: OBAMA SAYS ILLEGAL IMMIGRANTS CAN STAY IN AMERICA BECAUSE IT’S THE RIGHT THING FOR AMERICA TO DO? BUT, IS IT?

Lost in the chorus of sloganeering over immigration is any discussion of the legality of Obama’s executive order, granting amnesty to 5 million illegal immigrants. Obama claims that a legal basis for his executive order exists. But what is it? Does Obama tell us? Curiously, when Obama talks, he glosses quickly over critical points he doesn’t want the public to focus on. And that’s true of his intention to give amnesty to millions of illegal aliens.Obama happened to mention, in passing, that the Office of Legal Counsel told him he has the legal authority to unilaterally grant amnesty to millions of illegal immigrants. And the mainstream media (MSM), quick to echo the President’s sentiments, is slow to question the accuracy of the President’s assertions and the sincerity of his motives. The MSM simply takes Obama at his word. In so doing, the MSM becomes merely a toady for the President, and, as such, utterly fails to serve the public interest. Neither Obama nor the mainstream media troubles to tell the American People what the Office of Legal Counsel actually said. Obama, an attorney himself and purported Constitutional law expert doesn’t want to talk about the law. Rather, Obama talks incessantly about morality. Obama says granting amnesty to millions of illegal aliens is the right thing to do. Some Americans might disagree with Obama’s notions of morality. But, whether you agree with Obama’s brand of morality or not is beside the point. What we are concerned with here is law, not one person’s notions of morality.So, let us consider what the Office of Legal Counsel actually says. Let us consider the purported legal authority of the Chief Executive to grant amnesty to millions of illegal aliens.We begin with a simple truth: letting millions of people remain in this Country because it would be nice for us to do so – individuals, who had no business being in this Country in the first place – isn’t a tenable basis for letting them remain here.Keep in mind, at the outset of this discussion and analysis, three critical points.The first critical point is that the opinion of the Office of Legal Counsel is just that: an opinion. The opinion does not have the force of law because the opinion is not handed down by a court of law after an adversarial proceeding. Still, the opinion by the Office of Legal Counsel has more import than dubious, simplistic, bombastic, moralistic pronouncements by Obama.  For, the opinion sets the stage for the Chief Executive’s arguments in Court in the event Republicans in Congress ever demonstrate the courage to throw down the gauntlet. At the moment Congressional Republicans are merely huffing and puffing smoke. And Obama suspects Congressional Republicans don’t have the backbone to challenge him on illegal immigration.The second critical point is that our Founders gave considerable thought  to the matter of naturalization and understood the singular importance of it by explicitly referring to it in Article I, Section 8, Clause 4 of the U.S. Constitution. The Founders made clear that Congress, alone, has the power to create rules for naturalization. No other Branch of Government has such power. Yet Obama seeks to assume that power unto himself, as Chief Executive.The third critical point is this: the laws our Nation adopts for those who are to become citizens have a decisive impact on what this Nation is; what this Nation may become; how successful this Nation shall be. We ignore our own laws at our peril. And, we undermine the strength of our citizenry by admitting, ultimately, as new citizens of our Nation, the worst among people – those who would dare to cross our borders illegally. For how can such people claim to be law-abiding, honorable individuals, who break the first of our laws, crossing our borders illegally – and then daring to claim what they are not: responsible individuals, respectful of our Nation’s laws – those who come to this Nation under cloak of darkness -- their very presence here, a lie?  The opinion of the Office of Legal Counsel is extraordinarily long and detailed. The person who drafted the report, Karl R. Thompson, Principal Deputy Assistant Attorney General, talks about a lot of things, but one thing he doesn’t talk about is morality. There isn’t one word about it in the entire length and breadth of the report. And that makes sense. That is as it should be. For, the issue of amnesty raises a legal issue, not a moral one. So, Obama’s rhetorical utterances to the Public are irrelevant. What is relevant – the only thing that is relevant – is whether Obama has the legal authority to grant amnesty to millions of illegal aliens. Once again, the Constitution certainly doesn’t give him that power. That power resides only with Congress.Now, the Office of Legal Counsel doesn’t suggest that the authority to enact laws governing naturalization and citizenship reside in the Office of the Chief Executive. Clearly, it does not. Rather, what the Office of Legal Counsel seems to opine, at least according to Obama’s terse and tacit assertion about it, is that Obama’s executive action, granting amnesty to millions of illegal aliens, does not rise to the level of law-making. For, if it did, Obama’s action would definitely lie beyond his authority as Chief Executive. But, if Obama’s executive action is no more than an exercise of administrative discretion, then such action would fall within his legal purview. So, which is it? On scrutiny of the opinion, the Office of Legal Counsel actually equivocates on this very point. But Obama goes his merry way, claiming his power to act unilaterally on illegal immigration, in the bold unprecedented manner he wants and does, is clear and unequivocal. And there's the rub. Obama is dead wrong. And that, perhaps, explains why Obama says next to nothing about the law to the American public and all too much about morality.Obama is less a competent leader of a nation and more an able stage magician. He deliberately, cleverly, and perniciously, directs the public's attention away from what is important, namely the laws of immigration and a Chief Executive's duties under the U.S.  Constitution, and toward something totally irrelevant, an odd sermon on morality as he or his enablers define it. Thus, he completes his conjuring trick.Let’s take a look at the opinion of the Office of Legal Counsel.Two specific questions are raised: (1) whether, given limited resources, it is legally permissible for the President to prioritize the illegal aliens the DHS first gets rid of; and (2) whether it is permissible for DHS to give temporary relief from removal to certain illegal aliens who are the parents of children who are present in the U.S.  Those are the two questions that Obama asked the Office of Legal Counsel to answer. Those are the only questions that Obama asked the Office of Legal Counsel to answer. But what were Counsel’s  answers?In providing answers to the President, the Office of Legal Counsel first looked at the impetus for the questions.  The Office acknowledged that 11.3 million illegal aliens have taken up residence in this Country and that the DHS only has resources sufficient to remove 400,000 of them each year. So, in the absence of additional resources DHS has to prioritize what illegal aliens it rids the Country of. And the legal questions, especially, the first one, go to the issue of prioritization.The President asks the Office whether he can decide, irrespective of Congress, who among the illegal aliens can stay here, at least for a while, although, in fact, indefinitely, and who among them must be removed immediately. The crux of the first issue is: how far does Executive discretion extend? We will explore this question in depth in the next installment. In a subsequent post we will deal with the second of the two questions, pertaining to temporary relief for a specific class of illegal aliens.One further point to ponder:In dealing with immigration here, understand, no one is seriously contesting the propriety of immigration proper. After all, we are a Nation of immigrants. What we are looking at here is whether people who entered our Country illegally, with impunity, should be forgiven their transgression, and allowed to remain. In the context of the desire of millions of illegal immigrants to remain this Country, we must remember that many millions of individuals throughout the world desire to become American citizens. And the vast majority of those wishing to become American citizens do respect our laws. They wait their turn. They wait patiently to become citizens in accordance with the laws of naturalization Congress has enacted.To give preference to those who disrespect our laws is to denigrate those who respect and honor our laws. To give preference to those who disrespect our laws is, as well, to undercut the rule of law. It is to denigrate our parents and grandparents and great grandparents – individuals who came to this Country through legal channels; individuals who sought to learn the English language; individuals who sought to adopt American culture, and customs, and traditions, rather than to force America to adopt theirs. Those who come to our shores in the dark of night, rather than in the light of day, do not concern themselves about our laws, our culture, our customs, our traditions, our history, our language. Is that not all too obvious?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

OF BOTTLECAPS AND TOY GUNS: CITY OF CLEVELAND “BUYBACK” PROGRAM OF “FAKE GUNS” TAKES "DANGEROUS TOYS" OFF STREET

TO BEGIN, A TRUE STORY:

The story you are about to read is a true one. The name of the perpetrator has been retained to castigate the guilty.Once when the author of this post was the ripe old age of 4 years old, he had a “run-in” with the police. This is what happened:My friend and I were waiting one day, outside our apartment on Superior Road, in Cleveland Heights, Ohio for the station wagon to pick us up and take us to nursery school, as it did every weekday. In those days, back in the 50s – which gives you some idea how old I am now – mothers did not wait with their children on a corner of the street for the school bus or school van. Sure, there were sexual predators back then as there are now but, apparently, they did not exist in the numbers we have today. And the mainstream news media did not drone on endlessly about such things, unlike  today, to secure readership through unapologetic sensationalism. Anyway, as my friend and I were waiting for the nursery school wagon to take us to school, I got the bright idea of going to the park, down the street, to have some fun. It would only be a few minutes. School could wait. My friend agreed, and we walked toward the park, about one-quarter of a mile away. A long, hard-packed dirt footpath sloped down to the park. Once at the park, we noticed “tons” of shiny bottle caps on the ground by the park benches. These were gems to us. We began to fill our pockets full of bottle caps. Soon mine were swollen with caps. The sky-blue and gold Anchor steam beer bottle caps particularly attracted me. As might be expected to happen with young boys, my friend and I lost all track of time.In retrospect, as I think about it, at least one-half hour must have passed while we were in the park. We can only surmise what had occurred on the street above us as the driver of the nursery school wagon saw no one at a corner where two very young boys were supposed to be. The driver must have notified the mothers that we were absent. And the mothers immediately notified the police. As I was walking up the path, from the park to the street above, I noticed a police station wagon pulling up into the park. My friend lagged behind me and he was still in the park when the car arrived. I often wonder what road the police had taken that enabled them to get into the park as I was only aware of one entrance into the park, namely, the footpath we took.A police officer emerged from the car and pulled my friend into the backseat. The officer saw me on the path and yelled, angrily, for me to come down. What should I do? I thought for a second, “it’s okay; I’m on my way home now. I’ll meet you guys there.” But, I knew better. When a man in uniform with a badge, and a gun, and authority tells you to do something, you don’t ignore him; you certainly don’t argue with him, or disparage him; you don’t wave a gun or a toy gun at him, or a knife, or a hammer, or a baseball bat; and you don’t throw bottle caps at him. You obey him quickly and to the letter. I did so. I too was pulled into the backseat of the car. I saw two officers in the front seat of the car. My friend and I said nothing either to the officers or to each other. We were a trifle frightened to be sure, but also a bit bewildered. What was the big deal? One of the officers made a call. I felt, “oh, boy; we are in for it now.” When the police car drove up to the apartment, both our mothers were on the curb, waiting for us, mildly hysterical. The nursery school wagon was at the curb too, the driver outside the vehicle.We didn’t go to nursery school that day. Upstairs in the apartment, I unloaded “my haul” onto the kitchen table. I was given a “talking to.” And that was that. Thereafter, I never strolled away alone to the park. I dutifully waited for the nursery school wagon to take me to school. I learned my lesson very well and that was a good thing.  For, never again did I find myself in the backseat of a police car.

MORAL OF THE STORY:

When a police officer orders you to do something, you do it; time enough to fight the legitimacy of the officer’s behavior in a court of law. Now, I was 4 years old when I had my “run-in” with the law and I had enough sense to recognize authority and to obey a police officer’s command. Tamir Rice –  who was 12 years old and who, arguably, looked much older at 5’7” and 195 pounds, according to news accounts  – was three times my age, and he disobeyed a command that should have been clear enough to understand and important enough to obey whether one is an adult, a teenager, a pre-teen, or a child. He didn’t. He died. A mother has lost her son. The son has lost his future. And a police officer may have lost his career and, certainly, forever after, his peace of mind.

ONE ANSWER: GET RID OF THE “FAKE GUNS!”

On the front page of the Sunday December 14, 2014 edition of the Plain Dealer, an article appears, titled “120 fake weapons are turned in.” The Plain Dealer has previously written about “real” gun buyback programs which may have political coin, but are a joke and an affront to the American public. Moreover, apropos of the City's novel "toy gun" buyback program, I wish to point out that, when I was a child, we played with “cap guns” that had the heft and appearance of real six-shooters. There were no calls for buybacks of these toy guns back then; there was no lunacy or hysteria on the part of the newspapers calling for gun control (and, now, toy gun control); and there was an absence of moronic behavior on the part of some members of the public when confronted by understandably nervous police officers.So, what has changed and, perhaps, more to the point, why? Is there something in the water we drink, in the food we eat, in the air we breathe?The writer of the December 14^th Plain Dealer front page article quotes Jan Thorpe, executive director of Inner Visions of Cleveland, one of the toy gun buyback sponsors as saying, “‘guns that were once a symbol of death will become a symbol of life because we will crush them and turn the pieces into some sort of mosaic.’” How smug.  Thorpe is talking about toys here, not guns, merely toys in the shape of guns. Boys play with toy guns. I played with toy guns in my youth. My neighborhood friends and I played soldier, and cops and robbers, and cowboys and Indians. This was normal, this was decent. This was our rite of passage as American boys who would one day be men. This is in the natural order of things.What has changed? I will tell you: lack of belief in and trust in the indomitability of the human spirit; the loss of personal accountability and responsibility; governmental, indeed, societal mistrust of the individual; and loss of faith in one’s own true self.Wake up America! The salient problem with our Country is not the presence of guns, or toy guns, or any other toy or implement. The problem is lack of faith and trust in one’s own abilities and in one’s own sanctity. Giving up this or that implement – and now toy – because a newspaper tells us that this is the sane thing to do shows, rather, how insanity in the guise of sanity has permeated our society and is slowly draining the lifeblood out of each and every one of us.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2014 Roger J Katz (Towne Criour).

THE ARSENAL OF DESTRUCTION: OBAMA GRANTS AMNESTY FOR MILLIONS OF ILLEGAL IMMIGRANTS. WILL HE GRANT THEM FULL CITIZENSHIP TOMORROW?

PART 2: EXECUTIVE BRANCH OVERREACH/USURPATION OF THE LEGISLATIVE FUNCTION BY THE UNITED STATES PRESIDENT IN CLEAR DEFIANCE OF THE SEPARATION OF POWERS DOCTRINE SET FORTH IN AND THE MAINSTAY OF THE U.S. CONSTITUTION.

SUBPART 2: PRESIDENT OBAMA GRANTS AMNESTY FOR MILLIONS OF ILLEGAL IMMIGRANTS TODAY; WILL HE GRANT THEM FULL CITIZENSHIP TOMORROW?

HEAD OF THE DEPARTMENT OF HOMELAND SECURITY CALLED TO TESTIFY BEFORE HOUSE HOMELAND SECURITY COMMITTEE

On Tuesday, December 2, 2014, Jeh Charles Johnson, Secretary of DHS, testified before the House Homeland Security Committee. What prompted the Congressional Hearing is well known. President Obama had unilaterally granted amnesty to millions of illegal immigrants. He had threatened to do so, after the 2014 midterm elections. And immediately following the midterm elections, Obama did in fact order DHS to suspend deportation proceedings on 5 million illegal immigrants on U.S. soil. In so doing, he has acted contrary to the will of Congress. Congressional Republicans insist that Obama explain his actions.Over 11 million illegal immigrants currently reside in the U.S. Potentially all of these illegal immigrants are subject to deportation, pursuant to present immigration law. The Department of Homeland Security (DHS) is tasked with their removal. Yet, President Obama has called for an immediate halt to deportation of roughly half of them.At Tuesday’s Hearing, Representative Michael McCall, R-Texas, Chairman of the House Committee on Homeland Security, expressed outrage at the Obama Administration’s actions that effectively bypass Congress. Upon calling the Committee Meeting to Order McCall wasted no time asserting that the President’s actions “undermine our Constitution and threaten our Democracy.”Representative Bill Keating, D-Massachusetts, asked Secretary Johnson, pointedly, whether the President’s actions amount to granting amnesty for millions of illegal immigrants? Johnson replied that the current situation does amount to amnesty.But, what does ‘amnesty’ mean? Black’s Law Dictionary (Ninth Edition), defines ‘amnesty’ as “a pardon extended by the government to a group or class of persons, usually for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not been convicted.” Black’s Law Dictionary (Ninth Edition) also says that, “unlike an ordinary pardon, amnesty is usually addressed to crimes against State authority – that is, to political offenses with respect to which forgiveness is deemed more expedient for the public welfare than prosecution and punishment. Amnesty is usually general, addressed to classes or even communities.” The President, not Congress, has granted amnesty to literally millions of illegal immigrants. Congress can do so. The President cannot. See previous Article on immigration. The President does so anyway. The unstated basis for the President’s unilateral action is expediency and public welfare. But, illegally crossing U.S. borders in the first instance or re-entering the U.S.  illegally, once again, after deportation, are both criminal offenses under present U.S. immigration law.Moreover, we may rightly ask whether presumed “expediency” is a sound basis for the President’s actions when such actions disrupt the rule of law and undercut the U.S. Constitution. And we may well ask whose public welfare the President has in mind by granting amnesty. Is he not less concerned for the welfare of American citizens and more concerned for the welfare of millions of immigrants who crossed our Nation’s borders illegally in obvious defiance of our Nation’s immigration laws? It would seem so!

DOES THE PRESIDENT’S GRANT OF AMNESTY TO FIVE MILLION ILLEGAL IMMIGRANTS CONFER CITIZENSHIP ON THOSE FIVE MILLION ILLEGAL IMMIGRANTS?

This question is singularly important and has been given scant, if any, attention in the face of the President’s grant of amnesty. But, the American public should consider the ramifications of the President's grant of amnesty to millions of illegal immigrants. For, where amnesty is awarded to those so undeserving of it, will they not flex their muscles and, in the future, request – indeed, at some point demand – full citizenship, with all that the word, ‘citizenship’ entails?To be sure, granting amnesty does not ipso facto confer citizenship. But, might not the President’s actions operate as a step toward full citizenship for these five million illegal immigrants? Is that not the tacit assumption behind the President’s unilateral actions?

WHO IS A CITIZEN?

To understand who is a citizen we must first get a handle on what the word ‘citizen’ means? Once again, let us turn to the legal definition of ‘citizen.’ Black’s Law Dictionary (Ninth Edition) defines the word ‘citizen’ as “a person who, by either birth or naturalization, is a member of a political community, owing allegiance to the political community and being entitled to enjoy all its civil rights and protections.”The paramount question before us, aside from the obvious pertinent ones -- directed to the purported legal basis for the President's actions, granting amnesty to millions of illegal immigrants, and the political rationale for granting amnesty to so many individuals who crossed our borders illegally, in contradistinction to the laws of naturalization enacted by Congress -- is whether the President’s unilateral actions create a defacto class of citizens. What we need to ask is: what legal rights will accrue to these five million illegal immigrants through the President’s unprecedented act of amnesty? And, having arrived here illegally, we may also wish to consider to whom these people owe their allegiance? Do they owe allegiance to the U.S. or to their native Countries? And, if they are not at present entitled to all the rights and protections of bona fide American citizens, what rights and protections, if any, are they entitled to? And, if they are in fact entitled to the same rights and protections as those enjoyed by American citizens, are they not, then, essentially American citizens?Even if the President denies he has created or intends to create a quasi-class of citizens through the grant of amnesty to five million illegal immigrants, might not these five million illegal immigrants sue for full rights and protections somewhere down the road if they do not in fact enjoy all rights and protections under the U.S. Constitution by virtue of the President’s grant of amnesty to them?Can we not imagine a slew of civil rights lawsuits filed by, or on behalf of, these five million illegal immigrants at some point in the future? Would these illegal immigrants not claim that their rights under the Constitution must be met? As incongruous as that may sound at the moment, we should reflect on the true implications of the President’s unsound actions in granting amnesty to millions of illegal immigrants.

WHAT LIES IN STORE FOR AMERICANS?

Clearly, the President’s actions have opened a Pandora’s Box of troubles for Americans. Whatever complications exist over the mere presence of millions of illegal immigrants in this Country, such complications pale in comparison to what lies ahead for Americans as a result of Obama’s unlawful actions granting amnesty to five million illegal immigrants in the first place.[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.

THE ARSENAL OF DESTRUCTION: USURPATION OF THE POWERS OF CONGRESS; OBAMA REWRITES IMMIGRATION LAW

PART 2: EXECUTIVE BRANCH OVERREACH/USURPATION OF THE LEGISLATIVE FUNCTION BY THE UNITED STATES PRESIDENT IN CLEAR DEFIANCE OF THE SEPARATION OF POWERS DOCTRINE SET FORTH IN AND THE MAINSTAY OF THE U.S. CONSTITUTION.

SUBPART 1: OBAMA REWRITES IMMIGRATION LAW

WHAT ARE THE POWERS OF CONGRESS?

Article 1, Section 1 of the U.S. Constitution 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.” Among those legislative Powers, Article 1, Section 8 says, “the Congress shall have Power to establish . . . a uniform rule of Naturalization.”  The term ‘naturalization’ means ‘immigration’ and the power to regulate immigration implies the power to vest citizenship in a person. This means that Congress has authority to enact federal legislation establishing the rules for naturalization and the rules for conferring citizenship. But, does this mean the President also has power to establish a uniform rule of Naturalization?Unless specific language in the Constitution says otherwise, we must infer that Congress alone has control over immigration and the conferring of citizenship. And the Constitution does not confer control over immigration and the conferring of citizenship on any Branch of Government, other than the Legislative Branch: Congress. So, then,

WHAT ARE THE POWERS OF THE PRESIDENT?

Article 2, Section 1 says, “The executive Power shall be vested in a President of the United States of America.” Article 2, Section 3 mandates that the President “shall take Care that the Laws be faithfully executed. . . .” This means that the President has the singular duty to make sure the laws of Congress are adhered to. Nothing in Article 2 of the U.S. Constitution suggests the President shall share law making functions with Congress. Yet, President Obama says he can do this.We must assume that President Obama, a Harvard Law School graduate and Constitutional Law Professor, has a firm grasp of the Constitution of the United States. He must know that Congress, alone, and not the President, has power to establish a uniform law of Naturalization. Yet Obama in defiance of Congress has granted, through Executive fiat, amnesty for five million illegal aliens. By that act Obama has usurped a Power that resides solely in Congress. Does that usurpation of power constitute an impeachable offense? Article 2, Section 4 makes clear that, “the President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Executive Office usurpation of the Powers of Congress certainly falls into the domain of impeachable offenses.

THE COSTS OF ILLEGAL IMMIGRATION

Contrary to Obama’s remarks about the purported benefits illegal immigrants bring to this Country, the cost to Americans is astronomical. “By some estimates, illegal immigration costs the United States $45 billion a year. Not only does society bear the financial costs of illegal immigration, but it is also burdened with the loss of jobs and a decrease in the average household income. The labor market is more than willing to hire illegal immigrants under the table to avoid paying American workers a higher wage. Many illegal immigrants, in turn, accept payment below the federal minimum wage. Consequently, American workers are forced out of their jobs and are unable to locate jobs elsewhere because the only jobs they are qualified for are being taken by illegal immigrants.” “NOTE: Taking Back the Power: Federal vs. State Regulation On Postsecondary Education Benefits For Illegal Immigrants," Rebecca Ness Rhymer,” 44 Washburn L.J. 603 (Spring, 2005).Moreover, most Americans oppose amnesty for undocumented workers. “Americans also feel the financial burden of illegal immigration in other areas, such as social security, criminal justice programs, housing, public education, and health care. With illegal immigration posing a threat to workers and their families, it is understandable that two-thirds of Americans oppose measures designed to make it easier for illegal immigrants to cross the borders in hopes of securing United States citizenship. In 1986, the federal government, intending to curb illegal immigration, implemented a program which granted amnesty to illegal immigrants already within United States borders and increased measures to block further illegal entry. The program sanctioned employers whose hiring of illegal immigrants spread the use of ‘forgery-proof’ residency documents. After 3.1 million illegal immigrants received amnesty, subsequent measures to enforce the program failed. The result did little to curb illegal immigration.” Id.Notwithstanding Americans’ opposition to amnesty programs for illegal immigrants, and notwithstanding the lack of Congressional authorization to give amnesty to illegal immigrants, and notwithstanding the failure of past Congressional amnesty programs, Obama has, nonetheless, decided, unilaterally, and contrary to the authority of the Chief Executive to do so under our Constitution, to give amnesty to millions of these people anyway.

HOW OBAMA HAS REWRITTEN THE UNIFORM LAWS OF NATURALIZATION AND VESTING OF CITIZENSHIP

To understand how Obama has rewritten the uniform laws of naturalization and the vesting of citizenship we need to look at a couple of the Naturalization laws that Congress has enacted in prior years.The idea of granting amnesty to illegal immigrants is nothing new, but Congress alone has authority to grant amnesty to illegal immigrants if it chooses to do so, not the President. While naturalization programs go back to the dawn of the Republic, Congress has most recently experimented with amnesty during the last quarter of the Twentieth Century. This was a time – continuing to the present moment – when millions of aliens have crossed and are continuing to cross the Nation’s borders illegally. Amnesty for illegal aliens took the form of providing temporary asylum for some illegal aliens. The program failed miserably as it simply encouraged rather than discouraged ever more illegal entry into the Country.  So, subsequent acts of Congress were directed to denying amnesty to undocumented aliens.Let’s take a look at the two most recent immigration programs.The first such fairly modern program was the Immigration Reform and Control Act of 1986 (IRCA). This Act did in fact grant temporary amnesty to certain qualifying illegal immigrants, did in fact grant permanent residency for certain qualifying agricultural workers, and did impose legal penalties on employers who hired undocumented workers. The program also funded border patrol in the hope of preventing more undocumented workers from venturing onto U.S. soil. See, generally, “Comment: Economic Effects of Immigration: Avoiding Past Mistakes and Preparing for the Future,” 14 Scholar 869 Natalya Shatniy (2012). IRCA failed because the INS was unable to satisfactorily enforce the Act. Id.See also, “NOTE: The Political Discourse of Amnesty in Immigration Policy,” Bryn Siegel, 41 Akron L.R. (2008). “IRCA is widely recognized as a failed attempt to regulate undocumented immigration. The failure of IRCA to control illegal immigration now stands as the central hurdle in any campaign for a legalization statute.  Known commonly as the ‘first amnesty,’ IRCA has a pervasive legacy. Following IRCA, illegal immigration continued to rise and many undocumented immigrants in the United States remained without legal status when the opportunity to apply expired.  The critical failure of IRCA in terms of inspiring sympathetic supporters was the relative ease of the legalization process.”So, Congress decided to end leniency toward illegal aliens.Congress enacted a new immigration program: the “Immigration Reform and Immigrant Responsibility Act of 1996” (IIRIRA). Congress enacted the 1996 program, IIRIRA, to correct problems inherent in the Act of 1986, IRCA. The new program, IIRIRA, imposed stricter penalties on immigrants remaining in the U.S. after expiration of their authorized period of stay. And the 1996 Act restricted deportees from reentering the U.S. for several years after deportation. Id. The stricter penalties were designed to discourage unauthorized immigration. “Comment: Economic Effects of Immigration: Avoiding Past Mistakes and Preparing for the Future,” 14 Scholar 869 Natalya Shatniy (2012).The 1996 IIRIRA program, together with The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), “imposed a number of restrictions on illegal immigrants’ in the United States. Specifically, Congress created this legislation to reduce the increasing availability of public benefits to illegal immigrants, which serve as incentives for keeping their illegal status.  Not only did the PRWORA and the IIRIRA restrict illegal immigrants’ access to federal public benefits, such as social security and health care, but they also restricted access to state and local benefits, including the limitation on eligibility for preferential treatment for higher education purposes.” “NOTE: Taking Back the Power: Federal vs. State Regulation on Postsecondary Education Benefits for Illegal Immigrants,” Rebecca Ness Rhymer, 44 Washburn L.J. 603 (Spring, 2005).

UNDER PRESENT LAW HOW MAY A PERSON BECOME A U.S. CITIZEN?

“There are currently four ways to become a naturalized U.S. citizen: (1) permanent U.S. residency for five years, (2) permanent U.S. residency for three years and a spouse who is a U.S. citizen, (3) serving in the U.S. Armed Forces, or (4) being a child of a U.S. citizen. The majority of immigrants become a naturalized U.S. citizen through permanent residence by obtaining a "Green Card." A Green Card can be obtained through family, employment, asylee or refugee status, and other special programs that apply to a very small class of immigrants. In order to obtain a Green Card, you must first acquire a visa in order to enter the United States. In 2010, there were 482,052 immigrant visas issued.” See, “Comment: Economic Effects of Immigration: Avoiding Past Mistakes and Preparing for the Future,” 14 Scholar 869 Natalya Shatniy (2012).Under present immigration law, enacted by Congress, amnesty for illegal immigrants doesn't exist. A person who enters the U.S. in the hope of becoming a U.S. citizen must first obtain a visa. Id. That means a person must enter the U.S. legally. Visas are not issued to individuals who cross a U.S. border illegally.

WE HEAR SO MUCH ABOUT THE “DREAM ACT.” DOESN’T THE “DREAM ACT” PROVIDE AMNESTY FOR UNDOCUMENTED ALIENS?

The answer is, “no,” because it was never enacted. The Development, Relief, and Education for Alien Minors of 2010 (DREAM ACT) which is trumped up in the news – “a law that would have provided a path to citizenship for young undocumented immigrants living in the United States who succeed academically and/or through service in the United States military” – failed. See “The State of the Ordinary Family: A Symposium: Article: The Impact of Recessionary Politics on Latino-American and Immigrant Families: SCHIP Success and DREAM Act Failure," Mariela Oliveras, 55 How. L.J. 359 (Winter, 2012).The Development, Relief, and Education for Alien Minors of 2010 (DREAM Act) might be considered a revamped Immigration Reform and Control Act of 1986 (IRCA) that had failed decades ago. Democrats in Congress pushed for it. Understandably, Congressional Republicans pushed back. As IRCA had failed abysmally, Congressional Republicans, justifiably, saw nothing to warrant resurrecting it in the form of the so-called "DREAM Act."

THE FAILURE OF CONGRESS TO ENACT THE “DREAM ACT” PROVIDED THE IMPETUS FOR OBAMA TO UNILATERALLY GRANT AMNESTY TO MILLIONS OF ILLEGAL ALIENS.

Frustrated that Congress wouldn’t enact the DREAM Act, Obama decided to take action without Congress -- threatening to do so only after the Midterm elections, hoping that Democrats would retain control of the U.S. Senate. That didn't happen. Realizing that the Dream Act -- or some form of it -- wouldn't be enacted anytime soon, if ever, Obama decided to act on his threat.Curiously, Obama previously admitted, correctly, that he cannot legislate where Congress fails to do so. He now argues, inconsistently, that Executive amnesty for millions of undocumented aliens falls within his purview as Chief Executive. Supporters of Obama’s action may call it “administrative expediency.” But Obama’s action amounts to an Executive Order of clemency for millions of undocumented aliens who should be deported. In effect the Order is an unlawful legislative act on the part of the Executive. It is not a legitimate administrative action. Rather, Obama's Order is designed to thwart immigration law.What Obama’s immigration Order says is that illegal immigrants won’t be deported if they don’t pose a threat to national security, public safety or border security. What Obama's immigration Order means is that immigration officials are prohibited from doing their job -- deporting illegal aliens. Obama believes that he has the legal authority to do this because immigration officials work for the Executive, not Congress, and because he believes that telling immigration officials not to do their job, deporting illegals, is somehow different than telling Congress straightforwardly that he won't faithfully execute immigration law -- that he won't, then, give any thought to the intent of Congress.

HOW DOES DEPORTATION OF ALIENS WORK AND IN WHAT MANNER DOES OBAMA BELIEVE HE CAN LEGALLY OVERRIDE CONGRESSIONAL AUTHORITY?

Obama believes he can legally get around what, to his mind, is an uncooperative Congress. Obama argues he isn't willfully disobeying Congressional authority because his immigration order only goes to the matter of deportation, not amnesty. And deportation authority, unlike the matter of granting amnesty to millions of illegal immigrants, is an Executive function. So Obama is trying to make the case that he isn’t really giving amnesty to millions of illegal immigrants at all. He is simply not enforcing deportation. Indeed, “the most common form of protection {for illegal immigrants} has been the non-enforcement of deportation rather than the grant of a specific temporary status.” See, "ARTICLE: Temporary Protection: Towards a New Regional and Domestic Framework," Susan Martin, Andy Schoenholtz, and Deborah Waller Meyers 12 Geo. Immigration L.J. 543 (Summer, 1998).This is just equivocation. Whether Obama, on his own, were actively to bestow amnesty on millions of illegal immigrants (in effect, wrongly invoking Executive clemency for illegal immigrants by implicitly rewriting present immigration law) or simply were to order his  immigration officials to refrain from enforcing deportation rules, Obama is telling illegal immigrants that they can stay in the United States. In fact Obama has ordered immigration officials to stop deporting millions of illegal immigrants whom Congress has dictated, through present immigration law, must be deported. Obama is thus telling millions of illegal immigrants that  they need not fear deportation because immigration officials will not deport them, as immigration officials have been ordered by Obama not to deport them. However one chooses to describe Obama's action here, Obama has clearly thwarted the will of Congress. That is obviously Obama's intention and that is certainly what he has done. That will certainly make millions of illegal immigrants happy. But whom does Obama, as President of the United States, represent: illegal immigrants or bona fide American citizens? And, whose welfare is Obama, as President of the United States, supposed to be concerned with: the welfare of illegal immigrants or the welfare of bona fide American citizens? It appears that Obama is concerned more for the welfare of  people who ought not remain in this Country, who should never have come to the Country in the manner they did -- in defiance of our laws, exhibiting contempt for our People -- and he seems concerned less for the welfare of bona fide American citizens. Illegal immigrants are not honest, law-abiding people. Their very presence here is a testament to their disrespect for our laws, our culture, our citizenry. Obama caters to that!Moreover, through his actions, Obama hasn't merely condoned illegal immigration, he has actively encouraged it. And he is inviting more of the same.Americans will see millions of illegal immigrants flooding across our borders in the future, many more from Mexico, from Countries of Central America, from Countries of South America, and from Countries around the world. This is just what Congress -- Congressional Republicans at least -- sought to prevent enactment of IIRIRA in 1996.Obama's action undermines America's immigration laws and constitutes a direct challenge to the authority and power of Congress, under the U.S. Constitution, to establish the rules of Naturalization and Citizenship for all Americans. And, what does Obama's action say to foreigners who have waited for years to become American citizens, through proper legal channels, through adherence to the rule of law? What does Obama's action say to the  millions of Americans whose grandparents and great grandparents came to this Country legally through Ellis Island? How much respect can a person have for a Country's rule of law when that person has already broken the Laws of the Land through illegal entry into this Country? Such a person doesn't care. And Obama doesn't care either.Obama says his policy will not prevent the deportation of  "criminals." That is an incongruous remark since all illegal immigrants are by definition criminals. The phrases, 'illegal entry' and 'illegal reentry,' denote 'crimes' under U.S. immigration law. For a historical perspective on this, see, generally, "Article, Re-thinking Illegal Entry and Reentry," Doug Keller, 44 Loyola U. Chi. 65 (Fall 2012)What Obama is doing, essentially, is pushing the DREAM Act through by Executive Action/Executive fiat since Democrats in Congress were unsuccessful in their efforts to enact the DREAM Act. Indeed, his action, tying the hands of immigration officials so they aren't permitted to do their job, deporting millions of illegal immigrants, extends the Dream Act well beyond what even the Dream Act was designed to do if Congress had enacted it.

OBAMA HAS NOT ACTED ALONE

To Argue Obama has acted alone in granting amnesty to millions of illegal immigrants is not precisely true. Congressional Democrats encouraged the President to act and, in so doing, they, too, have acted irresponsibly. Moreover, these elected officials have undermined their own authority. They have undermined the authority and power of  Congress as an independent Branch of Government -- a Branch critical to the operations of and well-being of the Republic. Their action constitutes a betrayal to the American public they were elected to serve.Congressional Democrats complicity in the President's action is clearly in evidence. Consider: “In April 2011, Senator Harry Reid (D-NV) and twenty-one other Democratic senators published a letter they sent to President Barack Obama urging him to use executive discretion and authority to stop deportations and removals of undocumented young people-who grew up in the United States or have been residing in the United States for many years-who would have benefitted from the DREAM Act.” See, “Symposium: Noncitizen Participation In The American Polity: Dreams Deferred: Deferred Action, Prosecutorial Discretion, And The Vexing Cases(s) Of Dream Act Students, Michael A. Olivas, 21 Wm. & Mary Bill of Rights J. 463 (December, 2012).“The Obama Administration has apparently determined that any forms of immigration reform will have to be modest, and in the nature of non-legislative, adjudicatory, administrative review and discretionary deferred action.” Id.Deportation of aliens is an Executive function to be sure. But, that does not mean the Chief Executive – the President – can take it upon himself unilaterally to suspend deportation of millions of illegal aliens. That is an abuse of Executive discretion because deportation is a tool that Congress uses to effectuate the laws it has enacted. It is not a device to be used by the Chief Executive to thwart the will of Congress.Still, Congressional Democrats persevered in their own irresponsible actions. Senator Charles (“Chuck”) Schumer wrote a personal letter to then Secretary of the Department of Homeland Security, Janet Napolitano, attempting to pressure her to exclude millions of illegal aliens from deportation. But, Napolitano, a lawyer herself, responded with a letter of her own, barely containing her anger, “insisting that no category of Prosecutorial Discretion (PD) would be employed for groups of individuals: ‘I am not going to stand here and say that there are whole categories that we will, by executive fiat, exempt from the current immigration system, as sympathetic as we feel towards them.’” Id. Yet, three years later, we find Obama compelling Executive departments and Agencies to do just that: defying Congressional Mandate by excluding entire categories of individuals – literally millions of them – from deportation.

OBAMA HAS PREVIOUSLY EXPERIMENTED WITH AMNESTY

On June 15, 2012, Obama initiated a new policy, providing temporary amnesty to 800,000 illegal immigrants who came here as children -- a policy known as "Deferred Action for Childhood Arrivals" (DACA). "Note, 'You may say I'm a Dreamer, but I'm not the Only One,' a1: Categorical Prosecutorial Discretion and Its Consequences for US Immigration Law," Maria A. Fufidio, 36 Fordham Int'l L.J., 976 (June, 2013).  Opposition to DACA came not only from Republicans in Congress but from State governments and even from agents within the Department of Homeland Security. Id.What does DACA do? DACA "defers removal action for two years and provides individuals with work authorization if they meet other eligibility criteria for eligibility." Id.We now see what DACA really was and where DACA was obviously headed: universal amnesty for millions of illegal immigrants. The President's DACA policy was, then, merely a dress rehearsal for his latest initiative. For, where DACA granted temporary amnesty to 800,000 illegal immigrants, the President has now granted amnesty to 5 million illegal immigrants. It would not be a stretch to infer from the President's actions, that he intends, ultimately, to bestow amnesty to the 11 million plus illegal immigrants who currently reside on U.S. soil and to the thousands  -- perhaps millions  more -- who are crossing U.S. borders today and who, undoubtedly, will continue to cross U.S. borders and enter our ports, illegally, in the coming weeks, months, and years.

WHERE DOES ALL THIS LEAVE CONGRESS AND THE AMERICAN PEOPLE?

Not surprisingly, Senate and House Republicans are livid and the American public should sound off too.It may be academic why Obama waited almost three years to thwart the will of Congress. Likely, Obama hoped that Congress would enact the DREAM Act or something like it. Pressured by House and Senate Democrats, and by millions of undocumented aliens who shouldn’t have a voice at all, Obama decided to usurp the authority of Congress. Even now Obama says a Congressional enactment on immigration would override his Executive action. So saying, Obama is admitting he has usurped the authority of Congress. Moreover, immigration legislation already exists. That legislation does not provide for general amnesty. Obama doesn’t like it. Democrats in Congress don’t like it. And eleven million plus illegal aliens don’t like it. But most Americans -- bona fide citizens -- do like it. And it is the law.Obama likes to blurt out slogans. He says the present immigration system is broken. But, is it? What does he mean by the word, 'broken?' Does he mean the system is broken because it doesn't sanctify the presence of "border jumpers" in the U.S.? One might say, just as nonsensically, that our criminal justice system is broken because it preys on individuals who commit crimes.Apparently, illegal immigrants, some members of Congress, and the United States President believe they can, together, thrust their will on the American People, contrary to the import and purport of the United States Constitution and contrary to the authority of Congress, which alone, has power, under the Constitution, to establish the laws of naturalization and citizenship. Hopefully, some members of Congress will remember where their duty rests.

WHAT LIES AHEAD FOR THE AMERICAN PEOPLE

The American People must understand that usurpation of the U.S. Constitution – even by those who believe, possibly, they are acting with the best of intentions – undermines the Republic. The Obama Administration is testing the waters by granting amnesty to millions of illegal aliens, contrary to dictates of the present immigration law. But, Obama is testing the waters in ways far beyond the issue of immigration. If Congress fails to take strong measures against the Obama Administration and fails to do so immediately, then precedent will exist for further encroachment upon the Powers of Congress.Would a President dare to argue, for example, the First Amendment, Second Amendment, or Fourth Amendment Rights might be legally curtailed on the ground of a President’s personal convictions? We see an inkling of this -- and in matters of Fourth Amendment privacy rights, more than an inkling -- even now. If a President believes his Office is unassailable and that he, personally, is invincible, then the Rule of Law ceases to exist; the Constitution weakens; the Republic falls.[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.

THE ARSENAL OF DESTRUCTION: THE HISTORY OF POLICING IN AMERICA: AN INTRODUCTION

PART 3: FATHERLAND, MOTHERLAND, HOMELAND: THE ORIGINS OF A POLICE STATE WITHIN THE UNITED STATES

SUBPART 3: THE HISTORY OF POLICING IN AMERICA: AN INTRODUCTION

The militarization and federalization of police forces is not a recent occurrence. It isn’t a singular event. And, it isn’t an anomaly. It’s a calculated strategy through which the Departments of Homeland Security (DHS), Defense (DOD) and Justice (DOJ) on behalf of powerful, secretive, sinister, ruthless forces both within the United States and outside it seek to undermine the Second Amendment to the U.S. Constitution and bring an end to our Republic. Once the Second Amendment of our Bill of Rights topples, the other Nine Amendments will fall of their own accord. In the absence of our sacred Bill of Rights, the U.S. Constitution will have lost a crucial leg upon which the very structure of our free Republic stands. Never, since its inception in the 18^th Century, has the Bill of Rights suffered a more ferocious assault upon its sacred principals than in the 21^st Century – hardly an Age of Enlightenment.

WHAT PROOF EXISTS THAT POWERFUL, SECRETIVE, RUTHLESS FORCES ANTITHETICAL TO OUR FREE REPUBLIC EXIST; THAT THEY HAVE CONSPIRED TO DESTROY OUR BILL OF RIGHTS, AND, ONCE HAVING ACCOMPLISHED THAT TASK, SEEK TO DISMANTLE OUR SOVEREIGN NATION STATE?

You may have heard of the Trilateral Commission, the Bilderberg Group, the Council on Foreign Relations, among others. The mainstream media (MSM) won’t talk about these groups. The MSM won’t investigate the aims and goals of these groups.  The MSM won’t discuss how these groups work secretly to coordinate foreign and domestic policies; how these groups manipulate public perception; how these groups manufacture lies; how these groups infiltrate the institutions of this Country. The MSM won’t discuss these matters at all, won’t even mention them. The MSM won’t do this because the MSM is an instrument of these groups.Still, the public can obtain an inkling of the machinations of these groups: the strategies they employ to control society: the arsenal of destruction. One strategy is the militarization and federalization of the police forces in this Country.

WHAT PROOF EXISTS THAT POLICE FORCES ACROSS THE COUNTRY REALLY ARE MILITARIZED AND FEDERALIZED OR, AT LEAST, ARE RAPIDLY BECOMING MILITARIZED AND FEDERALIZED?

In the aftermath of the fatal shooting of Michael Brown in Ferguson, Missouri, on August 9, 2014, the Senate Homeland Security & Governmental Affairs Committee, held a public hearing on September 9, 2014. Representatives of DHS, DOD, and Department of Justice (DOJ) offered testimony. Police use of military equipment was the subject of the hearing. The topic of the hearing may seem banal. The import of it isn’t. Apart from “SWAT” teams – the creation and purpose of which raises some interesting issues of its own – why, generally, would rank and file police officers, operating in thousands of police forces across the Country, need military equipment: sniper rifles, night vision goggles, armored vehicles, fully automatic weaponry, military uniforms and military armor?Today, the subject of militarization and federalization of police in American society is viewed alongside discussions of police brutality, race relations, “broken windows” theory,  Fourth Amendment privacy rights, and Fourth Amendment privacy concerns – matters that reflect and encompass policing strategies, theories, philosophies, and topics of recent vintage, extending from the mid-twentieth century, through the first decade of the 21^st – up to this very moment.But, to understand how we got to this point we must grasp the historical role and function of police in American society. For, you shall see, the militarization and federalization of civilian police forces is not simply a matter of discerning changes in police equipment. It is more – much more.

HOW DID WE GET FROM THERE TO HERE?

It may seem a trifling matter, even quaint, to ask this question. After all, every community in America has a police department of some kind and, seemingly, always had a police department. The public accepts concepts such as ‘State police power,’ ‘police departments,’ ‘policing,’ and ‘police officers’ as “givens,” without need for definitive explication or even a cursory explanation.But, if you stop to think about it – really stop to think about it – you begin to realize the need to ask this question and a slew of other questions -- questions the MSM does not ask and does not investigate and, so, does not try to answer.Why do we have police officers and police departments at all? What is their purpose in society? How did they come to be? How did the concept of ‘police power’ come into being?  Does the ‘police power’ reside only in the individual States? Or, does the ‘police power’ also reside with the Federal Government? If that power only resides in the individual States, how did that power come to be transferred to the Federal Government? Was it through subterfuge? Did the individual States willingly sell their “soul” to the Federal Government in exchange for military hardware? To whom do the police agencies of the individual States really answer? What was the role of policing in colonial America? Did the public itself serve, at one time, as “the police?” If so, at what point did policing transform into an independent segment or organ of society and why? What was the original function of policing in American society? What was policing supposed to accomplish? Once policing became a unique profession, whom did the police serve? How did policing evolve? What is the function and role of the police today? Is the primary role of the police today one of protecting the public from transgressors? Or, is the primary role of police one of protecting certain wealthy, powerful segments of the society against the public, where the public is itself deemed, inherently, to be the transgressor or, at least, deemed to be a potential transgressor?

OUR HYPOTHESIS

Policing, ultimately, is about control: control of the masses. And control of the masses is the sine qua non of the “Police State.”But, is this hypothesis true? To test this hypothesis we must take a close look at the history of policing.We begin with a look at policing in Colonial America.

DID POLICE DEPARTMENTS AND POLICE OFFICERS EXIST IN COLONIAL AMERICA?

The answer is, “no.” There were no police departments in the colonies or early States. In fact, there were no professional law enforcement officers. The peace officer, most commonly a constable, was usually a low status ‘freeman’ pressed into a tour of duty for a year. He was not paid a salary; rather, he was a part-time officer who received small fees for performing various services, probably while attempting to maintain his usual occupation. Although constables in some cities might have been loosely organized under a ‘high constable,’ and might have been augmented by a nightwatch, peace officers were not numerous; the usual pattern was one constable for each parish, ward, or similar local jurisdiction. Thus, the constable often depended on the assistance of bystanders to execute an arrest – in fact, the constable’s authority to command the assistance of others may have been the most distinctive attribute of his office. Constables were expected to preserve order by keeping an eye on taverns, controlling drunks, apprehending vagrants, and responding to ‘affrays’ (fights) and other disturbances but they were not otherwise expected to investigate crime. Instead, the mobilization of criminal justice depended almost entirely on private initiation of criminal prosecutions. Except for homicides, which might be inquired into by a coroner’s inquest or grand jury, the initiation of arrests and searches commenced when a crime victim either raised the ‘hue and cry’ or made a sworn complaint. How and how often (if at all) the hue and cry was used in late eighteenth-century America is not well understood, but it appears to have been reserved primarily as a response to ‘fresh’ crimes, especially robbery and escapes.” “Recovering the Original Fourth Amendment,” Thomas Y. Davies, 98 Mich. L. Rev. 547, 621 (December, 1999)In the earliest days of the Republic the duty of policing resided in the public. The public took responsibility for law and order. “The evolution of American policing was a slow and selective process.” “Evolving Strategies: A Historical Examination of Changes in Principle, Authority and Function to Inform Policing,” Julia E. Scott, Police Journal 83 2 (June 2010). The process was slow and selective because the public feared centralized power and control. “The unification of the English colonies as an independent nation in the West brought a greater need for communal security, and heightened the necessity for a governing authority and laws with which to maintain order, than prior to America’s autonomy. Ratification of the United States Constitution offered a well-defined Federal influence, administered through three branches of government, executive, legislative, and judicial, and provided the central authority necessary to administer justice. In the United States, the laws and ‘elaborate machinery’ needed to enforce them had not yet been tested; thus law enforcement was administered in the only manner with which citizens were familiar: the parish-constable system.” Id.The rise of the professional police officer and the rise of centralized police departments – the modern police system – replacing the informal parish-constable system – was a development, oddly enough, owing much to the philosophy of policing in English society. “American policing is generally ascribed to an Englishman, Sir Robert Peel.”“Appointed as the British Home Secretary, Peel introduced the Metropolitan Police Act of 1829. The Act was designed to reform the antiquated parish-constable system of policing that had failed to effectively repress the rising incidence of violent and property crime in England.” Peel is considered the father of modern policing. Peel’s philosophy of policing is codified in a set of 26 principles. They are:

1. Absence of crime best improves police efficiency
2. Principle objective is crime prevention
3. Organization must be stable, efficient, military-like
4. Police headquarters centralized
5. Establishment of rank with assigned duties
6. Separation of police management from judiciary
7. Modification of system to meet local needs
8. Creation of a divisional reserve
9. Police records are necessary (to allot divisional strength)
10. Recruits hired on a probationary basis
11. Police applicants to be judged on their merits
12. Police should be even-tempered; a quiet determined manner
13. Each officer will be assigned a number
14. Proper training is the root of police efficiency
15. Strict discipline of officers will ensure high behavioral standards
16. Deployment by shift and beat
17. A “beat card” will be issued to each officer
18. Promotions will be filled from lower-rank officers
19. Good appearance commands respect
20. Distribution of crime news is essential
21. Power of police depends on public approval
22. To maintain public respect police must secure public cooperation and obey laws
23. Public cooperation diminishes proportionately with police use of physical force
24. To preserve public favor, police must demonstrate impartial service for the law
25. To maintain a relation with the public that denotes the police are the public and the public are the police
26. Daily reporting of police activity

As you can see, Peel’s list includes several administrative mechanisms, normative values, and, perhaps most revealing, a military structure.What we have today – the militarization and federalization of police – is not, then, a creature that just happened suddenly and mysteriously. Its seeds were planted over 180 years ago. The fear that Americans have today over the increasing power of police forces in American society echo those of Americans and the English, too, almost two centuries ago.In the next installment we will continue our investigation into the roots of the modern policing and the rise of the Police State.[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.

THE ARBALEST QUARREL’S TAKE ON THE MIDTERM ELECTION RESULTS

For the first time in eight years Republicans have taken control of both Houses of Congress. This is no accident. The American public has had enough of Barack Obama. This glib, smooth-talking “used car” salesman can’t convince the public to purchase any more of his wrecks.In the next two years the Republicans can do much to set the Country on a corrective path, paving the way for a Republican in the White House. Through a concerted effort Republicans can rein in the Executive and can make Congress functional.This does not mean the Republicans are required to do everything; but they can’t sit idly by doing nothing, merely arguing that they do much by prohibiting Obama from doing anything. That won’t work anymore. The public won’t stand for that. The public will accept no more excuses. They will no longer buy sugar-coated lies.The results of this mid-term election are a wake-up call to Republicans. If the Republicans sit idly by for the next two years, Americans may very well see another Democrat – a Clinton at that – in the White House. Hillary Clinton feels cheated. She feels that she, not Obama, should have sat in the Oval Office these past six years. But, the puppet masters ordained Obama should rule in her stead. But now the puppet masters have given Clinton the green light. For most Americans the salient concern is that she might just make it to the White House.And don’t doubt for a moment Clinton won’t run for Office; that Clinton won’t be the Democratic Party’s candidate of choice; that Clinton won’t have a real shot at the Presidency in 2016.Although coyly disengaged from the subject of her candidacy, Hillary Clinton is quietly whipping her believers into frenzy. The lemmings support Clinton and no one else. Clinton is chomping at the bit. She lusts for the Oval Office. And many Americans – all too many – want her in the White House. She knows this and is counting on their active support.And what will Obama do in the interim? He will “ruff” a low trump card. His low trump card is his audacity.Any middle school student knows or should know we have a tripartite system of Government, based on a clear separation of powers:The Legislature shall make the laws and the President shall faithfully execute the laws, and the Judiciary, a U.S. Supreme Court, shall interpret the laws.This is the Separation of Powers Doctrine. And it exists for a reason: to preclude usurpation of all powers by one individual or one group. Usurpation of power, whether by one individual or a few, leads invariably to oligarchy or monarchy – tyranny. We are moving inexorably in that direction.Obama is obviously disdainful of Congress and of the U.S. Constitution. He wishes to accumulate legislative powers and executive powers in one Branch of Government: the Executive Branch. Is there proof of this?Consider the touchy subject of immigration. Obama has made plain his intention to give amnesty to millions of illegal aliens. Under our Constitution he can’t do that. He says he’ll do that anyway. What does this mean?The President will do whatever he wants to do but will refrain from doing whatever he wants to do if Congress does what the President wants Congress to do.And, what does that mean?Obama wants immigration reform. So he compels Congress to act to provide him with that reform.Congress, though, doesn’t work at the behest of the Executive Branch. And the Executive Branch cannot legally assume the role of the Legislature unto itself. That constitutes a clear breach of the Separation of Powers Doctrine, and is inconsistent with the dictates of the U.S. Constitution.Understand, Congress need not act on immigration matters at all. Congress determines what laws to enact. Moreover, Congress decides what matters it deals with. These are not prerogatives of the President.The President can’t act as if he were the Legislature. He says that he can. He says he can take action by executive fiat. He says immigration reform is the right thing to do. Obama says lots of things. But his saying this, that, or the other does not make it so.The President has no authority under our Constitution to dictate what laws Congress must pass. The President has no authority under our Constitution to dictate what policy issues Congress must consider. And the President has no authority under our Constitution to make law in lieu of Congress by Executive fiat simply because Congress fails to act.Obama demonstrates an incredible arrogance even to suggest America must have immigration reform. He thrusts his notion of morality on the entire Nation. Obama argues a lawful right to act, if Congress doesn’t. This he bases, ostensibly, on his own ethical belief system. But normative prescriptions don’t, ipso facto, provide a legitimate legal basis for action under the U.S. Constitution. Unilateral action based on a moral claim, however lofty, is, ultimately, clearly, unlawful, and conceivably constitutes an impeachable offense.Although the Republican Congress has much to do, it need not take on work the American public doesn’t want or truly need. It should deal with pressing matters, not unimportant ones. It must avoid being side-tracked by petty impulses and political posturing by the President.Several matters that Congress might reasonably consider spending time on these next two years include, inter alia, these:

• Encouraging economic growth and jobs for Americans
• Reining in the Executive Branch of Government
• Countering Obamacare
• Simplifying the tax code
• Developing coherent foreign policy objectives
• Reducing fraud and waste in Government
• Requiring accountability of the Federal Reserve
• Preventing Executive Branch encroachment on State rights and prerogatives.
• Repairing deteriorating infrastructure
• Protecting America from external biological and ideological threats
• Securing our borders
• Taking steps against foreign nations and foreign transnational conglomerates insinuating themselves into the political, social, economic, financial, and legal affairs of the United States.

In the next two years, Republicans must make headway to protect the fabric of American society. That will help secure our free Republic. That will go a long way to appease a rightfully angry public.Unfortunately, there are already disturbing signs from some centrist Republican Senators that, when dealing with Obama, compromise and conciliation will be the strategies employed. Confrontation is the strategy centrist Senators will reserve for their own Tea Party base. They intend to keep the base in line. Should that occur, these centrist Republicans will certainly tear the GOP wide open, and they may very well hand the White House over to Hillary Clinton in 2016. [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.