IS THE SECOND AMENDMENT GUARANTEE ACT (SAGA) REALLY ALL IT IS CRACKED UP TO BE?

WITH MANY “CRACKS” IN THE SECOND AMENDMENT GUARANTEE ACT, IT GUARANTEES NOTHING CONCRETE.

This is a follow-up to our recent post on Congressman Chris Collins’ bill, titled the “Second Amendment Guarantee Act” (H.R. 3576) (“SAGA”).In our previous post we explained some major failings of Congressman Chris Collins’ bill as drafted. In our next post we will set down our own suggestions for a possible redraft of pertinent federal legislation that, in our humble opinion, will, we feel, more adequately accomplish Congressman Collins’ objective, and transcend it. Even so, we are mindful that drafting firearms legislation on the federal level—even with the best of intention and care—can invite unintended consequences. But, before we proceed with a suggested redraft of H.R. 3576, some explanation is in order—hence the need for this interim article. There are several problems with the Second Amendment Guarantee Act as drafted. The bill, in its present form, does not, in our estimate, accomplish the immediate goal the bill’s sponsors hope, trust, and pray it would accomplish, namely the toppling of New York’s Safe Act, and, by extension, the toppling of similar restrictive, draconian firearms’ legislation, such as Maryland’s Firearm Safety Act—an Act the United States Court of Appeals for the Fourth Circuit gave its “good housekeeping seal of approval” on in the disastrous Kolbe decision ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)). In Kolbe Plaintiffs challenged the constitutionality of Maryland’s “assault weapon” ban and “LCM” ban. In revisiting the three Judge panel's decision in that case, the U.S. Court of Appeals for the Fourth Circuit--hearing the case “en banc”--held that Maryland’s Firearm Safety Act ban on "assault weapons" and "LCMs" did not infringe the Second Amendment. In so holding, the Fourth Circuit Court of Appeals ignored U.S. Supreme Court precedent, essentially overriding and shredding the U.S. Supreme Court Majority Opinions in the seminal Second Amendment Heller case (554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) and in the subsequent seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)). Hopefully, Kolbe will be taken up by the U.S. Supreme Court and overturned by the high Court. If so, that will, in our estimate, accomplish more—and accomplish more directly and categorically and unequivocally—to defeat Maryland’s Firearm Safety Act and to defeat similar legislation, like New York’s notorious “Safe Act”—than Congressman Collins’ bill will do on the Legislative front, even if the Congressman’s bill were, in its present form, enacted. But, we do not see Collins’ Second Amendment Guarantee Act, even in the language of the present, weak and equivocal form ever moving out of Committee to full House Debate, and eventual House vote, absent concerted effort on the part of the public urging House Republicans to move the bill along.Our previous comments concerning what we see as failings in the Second Amendment Guarantee Act as presently drafted are not meant to cast aspersions on the bill or on the bill’s sponsors. Quite the contrary, we commend Congressman Collins for his efforts, commend those who drafted the bill, and we commend those U.S. Representatives who signed on to the bill—assuming those U.S. Representatives who signed on to the bill are truly serious in pressing forward with their efforts to strengthen the Second Amendment on the federal level.But, we are faced with two disturbing, incontrovertible realities that must be recognized and dealt with.

FIRST:

Notwithstanding his goal in introducing his bill (H.R. 3576) in the House—overturning New York’s Safe Act—we wonder whether Congressman Collins and the other sponsors of the bill have the heart to see their actions through to completion. If introduction of the bill is mere grandstanding to serve a political end but nothing more—namely to illustrate that Congressman Collins and others who signed on as sponsors to the bill are strong supporters of the Second Amendment—the introduction of a bill that goes nowhere, and is not really intended to go anywhere, does not serve the interests of the American people but, rather, serves only the interests of Legislators themselves who seek to secure their political futures. Legislators must have the courage and strength and fortitude of their conviction to see their initial efforts through. We hope that Congressman Collins is one of those intrepid Legislators. If not, and if other Republican Legislators, as well, who added their names in support of the bill, demonstrate reluctance, rather than boldness in following through on their efforts, then the American public should rightly be circumspect--as we are circumspect--in applauding what may amount to, at most, half-hearted efforts to “look good” to a Legislator’s base. In matters involving our Bill of Rights, caution should be thrown to the winds.We would rather see temerity demonstrated here than timidity. We have already seen how numerous national handgun carry reciprocity bills are still stuck in Committee. But, why is that? Were the sponsors of those bills intent on seeing their actions through? If so, why has there been no action on those bills?Indeed, why have we heard nothing about the bills, apart from their introduction in Congress? Not one of those bills, to the extent we are aware, has moved even one step beyond the initial stage of Congressional introduction of the bill even though the most recent has been introduced in Congress a couple of months ago, and others have been introduced several months ago; and all of them languish in Committee.We see no House or Senate Committee action. We see no House or Senate debate. We see no amendment to any one of those bills. We see no House or Senate vote. We see nothing concrete beyond introduction of a bill. From what we can see and deduce from a disturbing inaction on the part of Congress is that no action on any one of these pro-Second Amendment bills is expected anytime soon, if ever. So, from this experience, we ask: Why should anyone expect Congressional movement on Congressman Collins’ bill? The question is rhetorical. For, no one should expect action on Congressman Collins’ bill, if past experience is our guide. There must exist, then, an urge to action, and that urge, or nudge, will have to come, it is apparent, from the outside—from the public.So, don’t expect House members to act on this bill. But, why is that? Why must the public urge Congress to action? Why can’t Legislators follow through on their actions? Apart from introduction of pro-Second Amendment bills, accompanied by muted Press Releases, nothing is ever accomplished. Of course, we cannot expect the mainstream media—a tool of powerful, ruthless, nefarious, internationalists who seek nothing less than destruction of our Second Amendment—to herald enactment of pro-Second Amendment bills. The mainstream media only urges action to weaken and dismember the Second Amendment, not to offer its support of it and to strengthen it. That being the case, those Republicans in Congress who do truly support a strengthened Second Amendment must work all the harder to see their initial efforts through to completion.

SECOND:

Even if the Second Amendment Guarantee Act were enacted, still, as drafted, the Act guarantees nothing, to our mind, that is concrete. The Act as drafted is extraordinarily brief, modifying one and only one Section of Title 18 of the U.S. Code. While brevity is preferable over length for length’s own sake, simplicity in construction is not a good thing if ambiguity, vagueness, and critical gaps in legal drafting exist.In this instance, H.R. 3576 is truncated, vague and ambiguous and therefore invites the antigun crowd to challenge it, or, simply, to ignore it. were the bill enacted, as restrictive State firearms legislation may claim the bill--as federal law--is too indefinite to be considered, from a legal perspective, inconsistent with State law. Thus, contrary to the assertions of Congressman Collins Press Release, the Second Amendment Guarantee Act, in its present form, would not, then, likely accomplish what Congressman Collins and the other sponsors of it believe it would accomplish. There is too much wiggle room in it. Apart from inviting a challenge by restrictive gun law States, there is nothing in Congressman Collins' bill that would legally prevent States from continuing to enforce their restrictive gun Statutes.

WHY THE SECOND AMENDMENT GUARANTEE ACT IS AN IMPERFECT BILL THAT LIKELY WOULD NOT ACCOMPLISH WHAT CONGRESSMAN COLLINS SAYS IT WOULD ACCOMPLISH WERE IT TO BE ENACTED

Apart from the reality that no Committee action on this bill is to be expected, we again emphasize that, even if, by some miracle, this bill made it out of Committee, passed the House and then moved to the Senate where it received a super majority of votes, leading to enactment, it is highly doubtful that the bill would, in its present form, operate as an automatic repeal of restrictive gun laws such New York’s Safe Act or Maryland’s Firearm Safety Act, or of any other draconian State restrictive firearms Act that openly, glaringly infringes on the right of the people to keep and bear arms.

HOW DOES CONGRESSMAN COLLINS’ BILL MODIFY EXISTING FEDERAL LAW?

The bill (H.R. 3576), as written, operates as a redraft of one and only one federal firearms’ Statute: A Statute that may be construed as a federal firearms’ preemption Statute—in a sense, an “anti-preemption” Statute, given the weak wording of it. The preemption Statute, Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code, as enacted, reads as follows:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Section 927 of Title 18 of the U.S. Code, as written, basically tells States that, on the matter of firearms, generally, States have a free hand to regulate the field unless there is a direct and positive conflict and the two cannot be reconciled or stand together. The operative words, here, are ‘unless,’ and ‘direct and positive conflict,’ and ‘the two cannot be reconciled or stand together.’Congressman Collins bill rewrites that Section to read:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”This redraft of one Section of Title 18, namely, Section 927, is, in this instance, insufficient to defeat the Safe Act’s “assault weapons” ban, or to defeat “assault weapons” bans of any other State, because, among other things, there is nothing in federal law that talks about “assault weapons.” Pay particular attention to the words of the bill that read:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive. . . with respect to such a rifle or shotgun . . . than is provided under Federal law.” The problem is that federal law is silent or essentially silent on the matter of regulation of any firearm other than those defined as machine guns, as ‘machine gun’ is mentioned and defined with particularity in the Internal Revenue Service Code [Title 26 of the U.S. Code] and which, in Title 18 of the U.S. Code [18 U.S.C. § 922(b)(4)]  sets forth, with particularity, the intention of Congress to regulate destructive devices, machine guns, and short-barreled rifles and shotguns: “[i]t shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver--to any person any destructive device, machinegun (as defined in section 5845 of the Internal Revenue Code of 1954 [1986] [26 USCS § 5845]), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Attorney General consistent with public safety and necessity; . . .” So, then, by the very language of Congressman Collins’ bill, States such as New York would, arguably, remain free to regulate, through registration and transfer, all manner of firearms—rifles, shotguns, and handguns—apart from those clearly identified as and defined in the U.S. Code.Because federal law is essentially silent on the regulation of rifles, shotguns, and handguns, it does not follow, logically or legally, from the language of the proposed modification to Section 927 of Title 18 of the U.S. Code, that States are categorically prohibited from regulating any firearm other than machine guns, as defined in 26 USCS § 5845(b), short-barreled shotguns, short-barreled rifles, and destructive devices, as the expression, 'destructive device,' is defined in 26 USCS § 5845(f). Thus, if H.R. 3576 were enacted, NY Safe and other draconian State gun laws that operate to ban, within the State, weapons defined in State law as 'assault weapons' and components of firearms defined in State law as 'large capacity magazines' ('LCMs') could very well remain effectively untouched and, therefore, unaffected in accordance with the modified Section 927 of Title 18 of the U.S. Code, because by the very language of the Congressman Collins' bill, NY Safe and other similar restrictive gun laws of other States remain may be arguably considered to be consistent with or might otherwise be construed as capable of being reconciled with provisions of federal law. New York’s NY Safe and Maryland’s Firearm Safety Act, and similar draconian firearms legislation existent in other States would therefore remain intact. Hence, States might find that a Tenth Amendment challenge or other challenge to H.R. 3576 may be necessary. Yes, the Second Amendment Guarantee Act could survive a Tenth Amendment challenge, but its impact on State firearms’ laws would be nugatory. States would simply ignore the Second Amendment Guarantee Act as they could still register and regulate the transfer of firearms or ban outright many categories of weapons—including and especially, those defined as ‘assault weapons’ under State law, which the Second Amendment Guarantee Act was targeting. Thus, any guarantee of movement of, say, assault weapons in interstate traffic, would still be subject to heavy State regulation in intrastate traffic. One’s guarantee of exercise of one’s Second Amendment right of the people to keep and bear arms would then end up as an empty gesture.

MUCH WORK IS NEEDED TO MAKE THE SECOND AMENDMENT GUARANTEE ACT AN EFFECTIVE ACT, ENABLING A PERSON, WHO IS NOT UNDER DISABILITY, TO LAWFULLY OWN FIREARMS THAT SEVERAL STATE STATUTES PRESENTLY PROHIBIT, NAMELY AND SPECIFICALLY, THOSE DEFINED AS ‘ASSAULT WEAPONS.’

The Second Amendment Guarantee Act is an extensive redraft of Section 927 of Title 18 of the U.S. Code, only. But, had the bill been drafted effectively, to preclude a State from banning an entire category of firearms defined as “assault weapons,” Congressman Collins could have done so and should have done so by modifying not only Section 927 of Title 18 of the U.S. Code, but by modifying, explicitly, Sections 921, 922, and 926 of Title 18 of the U.S. Code, and modifying, as well, Section 5845 of the Internal Revenue Service Code (of the U.S. Code), 26 USCS § 5845, concentrating more expressly on guaranteeing one's right to own and possess semiautomatic weapons, the bane of antigun legislators and antigun groups--as they deposit ever more semiautomatic weapons into the category of 'assault weapons'--prohibiting the average law-abiding citizen from legally holding any of them. 

AN IMPORTANT CAVEAT TO MODIFYING ANY FEDERAL FIREARMS LEGISLATION

As we cautioned at the beginning of this article, Federal legislation operates across the board. If done improperly, the fundamental right of the people to keep and bear arms could be substantially curtailed or, at least, negatively impacted, and decidedly and decisively impaired.Consider: Federal law preempts State regulation of machine guns, “short-barreled” rifles and shotguns, and “destructive devices” altogether. The federal Government regulates ownership and possession of these firearms, together with destructive devices, through the Justice Department, the Internal Revenue Service, and through the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Would Americans be willing to accept federal registration of firearms defined as “assault weapons” for the privilege of lawfully owning and possessing them? Well, for residents of New York and Maryland and similar States that ban possession of assault weapons, outright, and that ban various components of firearms, except for those firearms and, possibly, those components of firearm that have been grandfathered in, federal registration of firearms defined as “assault weapons” may seem a small price to pay. But, for those of us who reside in States that do not presently impose bans on possession of weapons that other States routinely proscribe, such residents of States that do not impose bans on or registration of so-called assault weapons may not see that legislation, such as the Second Amendment Guarantee Act, a great and wonderful thing to be enacted. For, once enacted, H.R. 3576 must then be implemented and, if federal preemption truly does supersede State law regulation of firearms, we could expect the Justice Department, the Internal Revenue Service, and the Bureau of Tobacco, Alcohol, Firearms, and Explosives of the Justice Department (BATFE), to regulate the ownership and possession and transfer and licensing of “assault weapons,” just as it now regulates the ownership and possession and transfer and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices. That would likely—and conceivably, inevitably—entail the creation of a massive registry of the names and whereabouts of Americans who seek to own and possess all manner of firearms. Thus, there are hidden costs associated with federal firearms preemption Statutes.The best thing that can be said about State regulation of firearms is that the impact of draconian firearms legislation is limited jurisdictionally to that particular State. Thus, the NY Safe Act, while impinging awfully--indeed, catastrophically--on one’s right to keep and bear arms in New York, has, fortunately, no legal force or effect in, say, Ohio, or Texas, or Wyoming.Congressman Collins’ bill, as written, is too open-ended and, if it were enacted, as is, we believe that it would be of little, if any, benefit to those individuals living in States that have stringent firearms’ laws in place and, further, Congressman Collins' bill could, actually harm those that live in States with more permissive firearms’ laws. Moreover, even if the federal Government enacts laws that tend to strengthen the Second Amendment—which would be an anomaly anyway—remember full well: what the federal Government giveth, the federal government can taketh away. Thus, Congressman Collins’ Second Amendment Guarantee Act must be redrafted with the aim of emphasizing the word, ‘Guarantee.’ It must not be an empty gesture or worse, something that manifests as the inverse to the loftiness of its title or as something that devolves into a massive firearms’ registration and eventual firearms confiscation scheme--which could happen in the event Democrats gain control of both Houses of Congress, as Democrats, given the chance, would do their damnedest to repeal outright--or with a tweaking of a word, here and there, transform the Second Amendment Guarantee Act into a nightmare--a new federal assault weapons ban; and THAT, would definitely not be a good thing.Thus, one should always be mindful of the adage: “Be careful what you wish for”—certainly, one should be ever mindful of negative consequences--definitely where federal government agencies are given the opportunity to tinker with the Second Amendment. Keep in mind, Government agencies are tasked with implementing federal law through the promulgation of Administrative Rules, published in the Code of Federal Regulations, and these bureaucratic agencies of the Federal Government charged with drafting and then implementing rules to effectuate Congressional intent through Congressional legislation, often do so with a very, very heavy hand, creating and implementing rules that go well beyond the parameters of and intention of Congress.  The Devil is an artful twister of one's desires, no matter how carefully a person calibrates his stated wishes.**_______________________________   *The Arbalest Quarrel has written extensively on the Kolbe case and will continue to do so.**As a deadly serious example of what we are talking about here, take a look at the excellent comedy, "Bedazzled,"--the original, 1967 version with Dudley Moore and Peter Cooke, not the remake of that film. For another example, see the Arbalest Quarrel article, "The Flaws in Judge Garland's Reasoning," posted on the Arbalest Quarrel website on April 14, 2016._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CONGRESSMAN CHRIS COLLINS’ SECOND AMENDMENT GUARANTEE ACT (“SAGA”): A GOOD START BUT NOT A FINISHED PRODUCT

THE SECOND AMENDMENT GUARANTEE ACT

INTRODUCTION

The seminal Second Amendment Heller case (District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) made categorically clear and unequivocal that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia; and the seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)) that followed Heller, two years later, made clear that the right of the people to keep and bear arms—an individual right—applies to the States as well as to the federal Government. Unfortunately, many State Legislatures, along with many legislators in Congress and, worst of all, many jurists on State or Federal Courts strongly oppose the holdings and reasoning of the Majority in Heller and McDonald. This animosity carries over to and is reflected in poorly drafted legislation and in poorly crafted legal opinions. Occasionally, though, State Legislatures and Congress get it right, and do draft laws recognizing the fundamental right of the people to keep and bear arms. Congressman Chris Collins’ (NY-27) Second Amendment Guarantee Act (“SAGA”) that the Congressman recently introduced in Congress is just such a bill. We heartily support the Congressman’s efforts. But, what might we expect?

WHAT IS THE POSSIBILITY OF PASSAGE OF THE SECOND AMENDMENT GUARANTEE ACT?

Unfortunately, not good. We take our cue from other pro-Second Amendment bills. We have yet to see movement on several national handgun carry reciprocity bills that presently exist in a state of limbo, locked up in Committee.  Even if Congressman Collins’ bill makes it out of Committee, and, further, is voted on and passes a full House vote, it likely would be held up in the Senate where it must garner a super majority—60 votes—to pass and see enactment. The bill likely would not pass as a “stand-alone” bill in any event. That means the bill would have to be tacked on to other legislation to have any chance of passage. But, assuming the bill were enacted, what might we expect from it?

WHY DID CONGRESSMAN COLLINS DRAFT THE SECOND AMENDMENT GUARANTEE ACT AND WHAT IS THE PURPOSE OF THE BILL?

Congressman Collins, a Representative of New York, obviously had Governor Cuomo’s signature anti-Second Amendment legislation, the NY Safe Act, in mind, when he drafted this bill; for the bill, if enacted, is, ostensibly at least, at loggerheads with a key feature of the Safe Act—Section 37 of the Act—the Section that bans the possession and sale of all firearms defined as ‘assault weapons.’According to the Congressman’s Press Release “Congressman Chris Collins (NY-27) has proposed new measures for protecting Second Amendment rights by introducing legislation to limit states authority when it comes to regulating rifles and shotguns, commonly used by sportsmen and sportswomen. The Second Amendment Guarantee Act (SAGA) would prevent states from implementing any regulations on these weapons that are more restrictive than what is required by federal law. Upon passage of this bill, most of the language included in New York State’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 signed into law by Governor Cuomo would be void." But, is that true? Is the Press Release accurate? Or, does the Press Release presume more about the bill than what the bill produces, in the event the bill, as drafted, sees the light of day and becomes law?

WHAT DOES THE BILL SAY?

The bill (H.R. 3576), amends Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code.As presently enacted Section 927, says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” In pertinent part, Congressman Collins’ modification of Section 927 of Title 18 sets forth:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”What does the modification of Section 927 of Title 18 of the U.S. Code purport to do; and what does the modification of Section 927 of Title 18 of the U.S. Code mean?To understand the import of Congressman Collins’ bill, it is first helpful, in this instance, to understand what those who oppose it would do to challenge it, assuming the Second Amendment Guarantee Act does become law—which is far from clear given Democrats’ hysterical aversion to the Second Amendment and Republicans’ constant foot-dragging.

IF ANTIGUN GROUPS AND LEGISLATORS CHALLENGE THE BILL IN THE EVENT IT BECAME LAW, UNDER WHAT GROUND MIGHT THE BILL BE CHALLENGED?

Congressman Collins’ bill is likely to face stiff opposition and resistance in Congress prior to enactment—assuming it even moves out of Committee—as it would almost certainly be challenged, inter alia, on Constitutional, Tenth Amendment grounds were the bill to become law.What does the Tenth Amendment say? The Tenth Amendment to the U.S. Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment has always been a sticky wicket, especially in matters involving the Second Amendment because the matter of firearms’ regulations and licensing, apart from the regulation and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices, falls, traditionally, within the police powers of a State. Although the federal Government has, in the last several decades, amassed ever more powers unto itself, the fact of the matter is that this Nation is a confederation of independent sovereign States. This idea seems to be lost on people, not least of all in light of the present “Charlottesville” episode—a matter which the Arbalest Quarrel will be writing on in the near future, taking the mainstream news media to task for unleashing a wave of opinionated fake news on the matter, and which the mainstream media is egging the Trump Administration to handle, on the federal level, to support Marxist efforts to erase our Nation’s history, traditions, and core values.Yet, the federal Government cannot indiscriminately, lawfully, run roughshod over the States and the people. In the matter of Congressman Collins’ bill, the Second Amendment Guarantee Act, this creates something of a quandary; for, the bill—as the Congressman articulates through his Press Release—substantially preempts States’ rights on matters of firearms regulations and licensing. The paramount question is this: if Congressman Collins’ bill does become law, can those, who would then seek to mount a Tenth Amendment challenge against it, likely succeed in the Courts? The answer isn’t clear, but, a careful analysis of the bill’s text suggests the bill can survive a Tenth Amendment challenge, as it was carefully drafted to sidestep just such a challenge. Why do we say this? Well, looking at the Tenth Amendment issue, the actual drafter or drafters of the bill made clear the intent of the Act to supersede State regulation of and licensing of firearms; for, Congress would, under the Second Amendment Guarantee Act, be exercising its authority to regulate firearms moving in interstate commerce. It is a categorical, unequivocal principle of law that Congress has plenary power to regulate goods moving in interstate commerce under the Commerce clause. On that matter, no legitimate legal question exists, as the U.S. Supreme Court has made this point abundantly clear.“As we observed in Lopez, [United States v Lopez (1995) 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624] modern Commerce Clause jurisprudence has ‘identified three broad categories of activity that Congress may regulate under its commerce power.’ 514 U.S. at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). ‘First, Congress may regulate the use of the channels of interstate commerce.’ 514 U.S. at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941)). ‘Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.’ 514 U.S. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72 (1911); Perez, supra, at 150). ‘Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.’ 514 U.S. at 558-559 (citing Jones & Laughlin Steel, supra, at 37). United States v. Morrison, 529 U.S. 598, 609; 120 S Ct. 1740, 1749; 146 L. Ed. 2d 658, 670 (2000).”So, the Second Amendment Guarantee Act would likely survive a Tenth Amendment challenge. But, the strength of the bill, as drafted, also poses a weakness, notwithstanding. For, while State laws, such as New York’s SAFE Act and Maryland’s Firearm Safety Act, cannot, if Collins’ bill is enacted, most likely preclude importation of firearms into their State—including and importantly so-called assault weapons, as importation of such firearms affects interstate commerce and federal law, would, under the Second Amendment Guarantee Act, preempt State law in matters affecting interstate commerce—still, once the firearms are presented in States such as New York and Maryland, it isn’t clear, from the present language of the bill, that firearms’ dealers would be able to sell or trade such “assault weapons” to individuals residing in those States, so long as laws such as the SAFE Act and the Firearm Safety Act are in effect. And, those Acts would still be in effect. For, contrary to Collins’ Press Release, restrictive State gun laws, such as the NY Safe Act, do not, ipso facto, become nugatory. A legal challenge to the constitutionality of New York’s Safe Act and Maryland’s Firearm Safety Act would have to be made. But, once made, it is still unclear whether the Safe Act and the Firearm Safety Act could not prevent transfers of "assault weapons" to individuals, not under disability, within the State, on the ground that regulation of "assault weapons" was being conducted intrastate, thereby not affecting interstate commerce.The question, from the standpoint of those challenging restrictive gun legislation existent in States such as New York, Maryland, California, Hawaii, and others, then becomes whether so-called “assault weapons” that some States wish to ban and, at present, have banned outright, can be sold as “protected” firearms under federal law, once they are in a State, such as New York. If so, that means, then, that States could not legally proscribe the transfer, ownership, and possession of those weapons, try as they might. The issue raised by the Second Amendment Guarantee Act is analogous to the matter pertaining to machine guns, submachine guns, and selective fire weapons, as federal law completely preempts the field concerning those weapons, which means that States have absolutely no legal power to enact laws involving the regulation, licensing, and disposition of those kinds of weapons in their States. Federal law completely preempts the field in matters involving the licensing, regulation, and disposition of machine guns. Language in Section 922 (Unlawful Acts) of Title 18 of the U.S. Code makes clear the intent of Congress to preempt the field, in its entirety, in matters pertaining to the transfer and ownership and possession of machine guns. Paragraph “o” of Section 922 of Title 18 says,“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.(2)  This subsection does not apply with respect to—(A)  a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or(B)  any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986].”Curiously, the expressions, ‘firearm,’ ‘rifle,’ ‘shotgun,’ and ‘machine gun,’ are not defined in Section 922 of Chapter 4 (Firearms) of Title 18 of the U.S. Code, where a person might expect to find them, but in Section 5845 of the Internal Revenue Service Code of the U.S. Code, 26 USCS § 5845. In 26 USCS § 5845(b), “The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”Keep in mind that Congressman Collins’ bill modifies Section 927 of Title 18 of the U.S. Code only, which deals with federal preemption of State law regulation of firearms,  generally, but the bill modifies nothing in Section 922 of Title 18, where one would expect to find an assertion of those particular firearms and firearms’ components that federal law is preempting States from regulating and there is no modification of Section 5845 of Title 26 (Internal Revenue Code) where firearm terminology is specifically defined. And, it is in Section 922 of Title 18 of the U.S. Code that we see federal preemption of regulation of machine guns; and it is in that same Section of Title 18 that, in 1994, Congress expressly banned ownership and possession of “assault weapons,” nationally—as part of antigun efforts that orchestrated enactment of the “Violent Crime Control and Law Enforcement Act of 1994.” A national ban on the transfer of and ownership of so-called “assault weapons,” along with a ban on LCMs, was set forth in federal law, subsumed in Section 922 of Title 18 of the U.S. Code. But inclusion of an “assault weapons” provision of Section 922 of Title 18 of the U.S. Code, which added a paragraph “v” which made it “unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon,” and inclusion of a ban on large capacity magazines, set forth in paragraph “w” of Section 922 of Title 18 of the U.S. Code, which made it “unlawful for a person to transfer or possess a large capacity ammunition feeding device,” both expired in September of 2003. Those provisions of Section 922 of Title 18 of the U.S. Code were never reauthorized, despite subsequent and numerous efforts by antigun politicians to do so.Since the impetus for the Second Amendment Guarantee Act was predicated, obviously and reasonably, on Congressman Collins' laudable desire to negate the impact of the NY Safe Act on the federal level, through the federal preemption—since Albany appears either unwilling or incapable of repealing the NY Safe Act on the State level itself—we can infer that the Second Amendment Guarantee Act was designed principally to preclude States, such as New York, from banning substantial numbers of semiautomatic firearms that’s State antigun legislators, with great fanfare, cast into the category of “assault weapons.”Congressman Collins, a staunch proponent of the Second Amendment, clearly seeks, through enactment of his bill, to provide Americans the converse—the flipside—of efforts to curb exercise of the right of the people to keep and bear arms. The Second Amendment Guarantee Act, as some would argue, proscribes States from regulating all categories of rifle and shotgun, thereby curbing, with one fell swoop, attempts by any State Legislature to impose specific restrictions on the ownership and possession of one large category of firearms, those subsumed under the nomenclature “assault weapons,” and curbing, as well, attempts by any State Legislature to impose size restrictions on ammunition magazines.But, does Congressman Collins’ bill, that modifies Section 927 of Title 18 of the U.S. Code, make federal preemption of regulation of assault weapons and other firearms’ components absolutely clear?Once again, as presently enacted Section 927 says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” But, and this is an important, but, is such language enough to negate restrictive State firearms’ legislation such as the NY Safe Act? We don’t think so—thus, the failings of the bill, in its current form. For, what do the words, ‘more restrictive with respect to such a rifle or shotgun,’ mean, here?The reader must understand that federal law preemption of firearms, Sections 921, et. seq., of Title 18 of the U.S. Code, is directed essentially to a specific class of firearms, namely machine guns. As made clear in paragraph "o" of Section 922 of Title 18 of the U.S. Code, Federal law preempts the field as to those kinds of firearms only, and the language of the law makes federal preemption in matters involving the regulation of machine guns patently clear. Congressman Collins’ bill is silent on the subject of so-called “assault weapons”—which some believe Congressman Collins’ bill, if enacted, would adequately address, and which it must address if it were to do what it purports to do: preclude States from prohibiting the transfer and possession of firearms that New York’s Safe Act and Maryland’s Firearm Safety Act prohibit, expressly, and prohibit outright--"assault weapons."Had Congressman Collins’ bill been more explicit and precise, we believe that language should appear in Section 922 of Title 18 of the U.S. Code that would work in tandem with the language appearing in Section 927 of Title 18 of the U.S. Code. And, in Section 5845 of Title 26, we would like to see language that clearly and specifically defines the expression 'semiautomatic weapons.' And, in Section 922 of Title 18, we would like to see language that sets forth the lawful transfer of all semiautomatic weapons to individuals, not under disability. The federal preemption Statute, namely, Section 927 of Title 18, as modified in the Second Amendment Guarantee Act would then make federal preemption of the entire field of semiautomatic firearms abundantly and categorically clear. Ideally, language modifying Section 5845 of Title 26, and modifying Sections 922 and 927 of Title 18 of the U.S. Code would establish federal preemption of the entire field of firearms but--and this next point is critical--only to the extent that such modifications serve to enhance the citizen’s right to keep and bear arms under the Second Amendment. We have no desire to see federal preemption leading to mass registration of firearms and draconian licensing measures on the federal level that we already see much too often on the State level.Ideally, language in the Congressman’s bill would have set forth, in Section 922 of Title 18 of the U.S. Code explicit protection of all commercial transactions, among all the people, who are not under disability (as categories of disability are set forth with particularity in paragraph “g” of Section 922 of Title 18), involving all firearms—rifles, shotguns and pistols, whatever the configuration or mode of operation of those rifles, shotguns, and pistols; and, further, Collins’ bill should have included language doing away with BATFE licensing of such firearms as well, which, in the case of machine guns, involves a lengthy, time-consuming, expensive and mentally exhaustive process that does nothing to enshrine the Second Amendment right of the people to keep and bear arms, as exercise of that fundamental right is unduly hampered by a multitude of administrative obstacles. Lastly, we would like to see firearms’ licensing at both the State and Federal levels ended. As a parenthetical note, we point out that Congressman Collins’ bill is altogether silent on the matter of handguns which means that, under his bill, handguns would not be subject to federal preemption. States would still be able to impose draconian restrictions on the American citizenry in matters involving handguns. But, why should Americans suffer the indignity of exhaustive, extensive, and expensive firearms’ regulatory hurdles at all?One doesn’t need a license to freely exercise one’s right of free speech—at least at the moment—although leftwing groups—most notoriously, the so-called “ANTIFA,” an anarchist/communist, domestic terrorist group (as much as any other terrorist group that this Country formally recognizes), is doing its best to constrain the right of free expression in this Country. Why must one secure a license to exercise a fundamental natural right of self-defense, as firearms are the best means available to secure one's safety and well-being when threatened and access to firearms, for those not under disability (as set forth in paragraph "g" of Section 922 of Title 18 of the U.S. Code), is guaranteed under the Second Amendment!Congressman Collins’ modification of Section 927 of Title 18 of the U.S. Code, alone, does not, we believe, adequately establish federal preemption of firearms’ regulation because the purpose of Section 927 is simply designed to preclude conflict between State and Federal firearms laws. That is the Section’s only purpose. Its purpose is not to define the kinds of firearms that fall under the auspices of federal preemption—which is addressed, and is meant to be addressed in Section 5845 of Title 26 of the U.S. Code (referred to more specifically as the Internal Revenue Code of the U.S. Code) and does not set forth the manner in which federal preemption of firearms is specifically addressed, as is the case with machine guns, as set forth in paragraph "o" of Section 922 of Title 18 of the U.S. Code. We also note that the Congressman’s bill, as drafted, uses the permissive ‘may,’ rather than the obligatory ‘shall’ suggesting, then, that States might still regulate firearms, transecting, then, federal preemption, rather than being totally eclipsed by it. Furthermore, as drafted, Congressman Collins’ bill does not adequately establish the kinds of firearms that he intends federal law to preempt. The draft language of the bill simply sets forth that State law “may not” enact a law “that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law.” But, federal law, Sections 921 et. seq., direct attention to machine guns. Federal law does not address so-called “assault weapons”—semiautomatic weapons and, in New York, revolving cylinder shotguns (which are also defined as 'assault weapons'). Consider: had federal law still imposed federal licensing requirements on “assault weapons,” as it once had, in 1994, then New York’s SAFE Act and Maryland’s Firearm Safety Act, regulating such weapons, likely would have been struck down as unlawful under Section 927 because Federal law had, at that time, in effect, at least, preempted the field as to the regulation of assault weapons and large capacity magazines. What this means is that such restrictive State gun laws, regulating or proscribing ownership and possession of “assault weapons,” at that time, would either have been redundant, if otherwise consistent with federal law, or unlawful, if inconsistent with federal law.

CONCLUSION

The bottom line: In its present form, Congressman Collins’ Second Amendment Guarantee Act (“SAGA”), is a good start toward giving the Second Amendment full effect, as the framers of our Bill of Rights intended. And the Congressman is to be commended for his effort. But the bill, as drafted, leaves, we feel, too much uncertainty, in its present form, to be effective in defeating restrictive, draconian State gun measures like the New York’s Safe Act and Maryland’s Firearm Safety Act, contrary to the opinions of some. More work on the bill is needed. But, such work would, we feel, certainly be a worthwhile endeavor._________________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PERFORMS A SURPRISE SWITCHEROO TO THE CONSTERNATION OF D.C. GOVERNMENT, MAINSTREAM MEDIA, ANTIGUN GROUPS, AND ANTIGUN LEGISLATORS, IN WRENN CASE

APPELLATE COURT VACATES ORDERS OF LOWER DISTRICT COURT AND REMANDS WITH INSTRUCTIONS TO ENTER PERMANENT INJUNCTIONS AGAINST ENFORCEMENT OF DISTRICT’S “GOOD-REASON” ANTIGUN LAW.

PRELUDE TO COMPREHENSIVE ANALYSIS OF THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT CASE, WRENN VS. DISTRICT OF COLUMBIA

The decision handed down very recently, in Wrenn vs. District of Columbia, 2017 U.S. App. LEXIS 13348 (D.C. Cir. July 25, 2017), supporting the right of the people to keep and bear arms, would not have been possible were it not for the landmark U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). Justice Antonin Scalia’s glorious and sublime legacy will forever be tied to that one singularly important case: a case that stands as a living testament to Justice Scalia’s service to and his great love for this Nation and for its people. In that singular, seminal case, District of Columbia vs. Heller, 554 U.S. 570, Justice Scalia threw down the gauntlet at those malevolent forces that seek to tear down the fabric of our Free Republic as they whittle away at the Nation’s sacred Second Amendment. They shall not have an easy time of it as the Second Amendment now stands front in center in the Nation’s psyche as a meaningful reminder to those who seek to disassemble our Nation and who seek to tear down and reconfigure our Bill of Rights out of all semblance to that as conceived by the framers of it. They will learn: our Bill of Rights and, especially, our Second Amendment, will not be toyed with.Through Heller three points are made abundantly clear. One, the right of the people to keep and bear arms is no longer to be dismissed as a subordinate right. The right expressed is fundamental, second in importance to no other right that comprises the Bill of Rights to the U.S. Constitution. Two, the right, as codified in the Second Amendment, is capable of vindication and shall ultimately be vindicated in our Courts of law when Government, whether State or Federal, dares blithely to trample upon it. And, three our Nation stands preeminent above all other Nations on this Earth. The founders of our Nation took great pains to establish that such Government they happen to form shall serve—must serve—at the behest of and at the pleasure of the Nation’s people, responsive to and responsible to the Nation’s people. The founders of our Nation forged that understanding in the Bill of Rights to the U.S. Constitution. The Second Amendment of the Bill of Rights provides the mechanism to make that fact poignantly clear to anyone or any group who might disagree with that idea and who would dare wish to test the resolve of the American people.Tyranny cannot arise where the citizenry stands armed against the imposition of it. Implicit in the language of the Second Amendment is the idea the individual’s existence as an individual, separate and apart from any group affiliation, remains always sacrosanct and inviolate. Any threat to individuality constitutes a threat to the sanctity of one’s personal security and well-being—a threat to one’s personal integrity. Thus, the language of the Second Amendment also implies the right of the individual to take responsibility for his own life, his own protection, his own personal safety and well-being. Government cannot do this, and the law makes clear that it is not Government’s duty or responsibility to do this. It is not Government’s duty or responsibility to protect the security and integrity of the individual, and case law makes this point clear. But, in turn, this means the Government must not intrude on one’s life. Each of us, in this Nation, has the right to be free from Government interference and meddling. Each of us has the right to protect the integrity of his person—of his self—from the tyranny of Government and from threats posed to one’s self by others who would dare do one harm.No other Country will recognize or acknowledge these sacred truths. We know this because no other Country has codified in its own constitution or in any other legal writing of that Country the right of the people to keep and bear arms.Contrary to notions promulgated by propagandists or apologists for restricting the exercise of the fundamental and natural right of the people to keep and bear arms, this right is not archaic. It is not anachronistic. It is not to be construed, as some ignorant or ignoble people may wish perhaps, to convey it, as mere anomaly, or peculiarity, or curiosity, or annoyance. It is the very instantiation of the sovereignty, sanctity, and inviolability of the individual self.The right of the people to keep and bear arms is, therefore, as meaningful and purposeful today as it was in the day the founders of our Nation codified and enshrined this sacred natural, preeminent, fundamental right in the Bill of Rights of the U.S. Constitution. The founders of our Nation’s federal Government knew that the forces that seek to waylay a Nation’s people—to crush a Nation’s people into submission—lie ominously about—secretly, silently, malevolently. The founders of our Nation therefore sought a mechanism to fervently prevent or, at least, to forestall the subjugation of a Nation’s people—to forestall or prevent the subjugation of a people from the greatest and gravest and most insidious threat existent to our Nation’s people—a threat posed not from outside the Nation—but from the bowels within it. They sought to create an insurmountable hurdle to those secretive, powerful, evil forces that might seek then as now, the creation of a one world government—a government seemingly promoting the well-being of the planet’s people, but intent on crushing everyone, for the benefit of a few. Thus, our Nation’s founders drafted a short but prominent statement reminding those who may seek to destroy the American people, in body, mind, and spirit, and who may seek to dismantle this Nation State, that they will have a difficult time of it—that they will find the implementation of their insidious plan difficult, if not impossible—but certainly, impracticable—precisely because of those words etched in stone, impervious to erasure, that are, forever, our sacred Second Amendment to the U.S. Constitution.The majority opinion in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), penned by Justice Scalia, made clear, unmistakable, unequivocal, and categorical that the Second Amendment bespeaks an individual right of the people to keep and bear arms and that the right of the people to keep and bear arms logically entails the right of self-defense. In that seminal case, as well, the high Court’s majority made clear, unmistakable, unequivocal, and categorical that Government cannot legally preclude the right of each of us to defend ourselves with a handgun in one’s own home.Does that mean that one’s right of self-defense stops at the doorstep of one’s home? Not at all. Yet, the forces that would crush the American people into submission went quickly and quietly to work to undermine the Heller rulings. They attempted and continue, to this very day, to attempt to undermine Heller. They do this through State Legislatures; through Congress; through mainstream news organizations; through grass root efforts, organized and funded by those despicable, disreputable, but powerful, highly secretive, and incommensurably wealthy overseers who seek to destroy our sacred Bill of Rights; and, most unfortunately, the forces that would crush the American people into submission do this through our Courts.While politicians and media attempt to whittle away at the Heller rulings through pompous oratory and misleading and dubious assertions, their fellow travelers in the Courts attempt to whittle away at Heller through obfuscation and through use of arcane legalese that serves to hide the misapplication of law, and that is designed to hoodwink the lay person, not attuned to the intricacies of legal thought.But, with Heller, the floodgates are open. The right expressed in the Second Amendment to the U.S. Constitution can no longer be simply and summarily dismissed as a subordinate right or, worse, as a dead letter—a meaningless assertion without force or substance.The case handed down by the D.C. Circuit, yesterday, in Wrenn vs. District of Columbia, 2017 U.S. App. LEXIS 13348 (D.C. Cir. July 25, 2017), is the latest case to deal directly with a core Second Amendment issue. Does the right of use of a handgun in one’s self-defense in one’s home extend to the carrying of a handgun in one’s self-defense—which implies the carrying of a handgun in public—namely, outside the home. If so, defense of self, then, does not stop at the doorstep of one’s home, and Government is enjoined from creating arbitrary standards to restrict one’s right to carry a handgun for self-defense outside the home.The decision was correctly decided in favor of plaintiffs but it came through a convoluted, circuitous path through the lower District Courts; and the ultimate decision, wasn’t unanimous. One Judge, in the three-Judge panel that decided the case, dissented from the majority opinion.The jurist who wrote the opinion for the Majority, Judge Griffith, began, thus: “Constitutional challenges to gun laws create peculiar puzzles for courts. In other areas, after all, a law’s validity might turn on the value of its goals and the efficiency of its means. But gun laws almost always aim at the most compelling  goal—saving lives—while evidence of their effects is almost always deeply contested. On top of that, the Supreme Court has offered little guidance. Its ‘first in-depth examination of the Second Amendment’ is younger than the first iPhone. District of Columbia v. Heller (Heller I), 554 U.S. 570, 634, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). And by its own admission, that first treatment manages to be mute on how to review gun laws in a range of other cases. See id. at 634. But listening closely to Heller I reveals this much at least: the Second Amendment erects some absolute barriers that no gun law may breach. This lesson will prove crucial as we consider the challenges presented in these cases to the District of Columbia’s limits on carrying guns in public.”Judge Griffith, concluded the Wrenn opinion with this: “To watch the news for even a week in any major city is to give up any illusions about ‘the problem of handgun violence in this country.’  Heller I, 554 U.S. at 570. The District has understandably sought to fight this scourge with every legal tool at its disposal. For that long struggle against gun violence, you might see in today’s decision a defeat; you might see the opposite. To say whether it is one or the other is beyond our ken here. We are bound to leave the District as much space to regulate as the Constitution allows—but no more. Just so, our opinion does little more than trace the boundaries laid in 1791 and flagged in Heller I. And the resulting decision rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.”Judge Griffith obviously took pains to appease the angry antigun mob with a few sops. But, he made clear, if only tacitly, alluding to Justice Scalia’s assertions in Heller, that Government restrictions on one’s right to keep and bear arms, predicated on securing the safety of society does not invariably take precedent over the individual’s right to keep and bear arms. Clearly, Government restrictions on the sacred right of the people to keep and bear arms, grounded on notions of protecting society as a whole, in order to secure the safety and tranquility of the collective, of the hive, is doubtless false, fatuous. What Government is truly undertaking in restricting the exercise of the right of the people to keep and bear arms is to constrain and control the people—to protect Government and the “elites” from the visible “threat” posed to their own unlawful usurpation of authority. Thus, restrictive gun legislation is contrary to the very import and purport of the Bill of Rights, as envisioned by the framers.As with the Kolbe case (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017) ), that the Arbalest Quarrel will continue to analyze, the Arbalest Quarrel will provide an in-depth analysis of the Wrenn case as well.Keep in mind that both cases, Kolbe and Wrenn, involve two core Second Amendment issues, and those two issues go hand-in-hand.Kolbe involves the issue as to what firearms are protected under the core of the Second Amendment. The Wrenn case involves the issue as to what constitutes good cause or, rather, whether, one must establish cause at all to carry a handgun—to be able, then, lawfully to carry a handgun; and that issue necessarily implicates the notion of where a person may exercise the right: namely, whether the right to defend one’s life with a handgun exists only  inside the home, or outside the home, as well. Plaintiffs in Kolbe have filed for an extension of time for U.S. Supreme Court review of their case. The $1,000,000.00 question in Wrenn is: what will the Defendant, District of Columbia do, now that the U.S. Court of Appeals for the D.C. Circuit effectively struck down the restrictive District of Columbia handgun carry Statute?This state of affairs is odd to say the least and exasperating for government, for no State government has, in recent times, coming on the heels of Heller, failed to secure a win at the U.S. Court of Appeals level, in spite of the rulings and reasoning of the majority in Heller. Consider: Plaintiffs--namely, those individuals and entities filing complaints alleging government violation of the core of the Second Amendment--who lost at the U.S. Circuit Court level, in those critical cases implicating the core of the Second Amendment. Plaintiffs then filed for U.S. Supreme Court review, but failed to obtain review. Four U.S. Supreme Court Justices must vote to hear a case. We know that Justices Scalia and Thomas had voted to review U.S. Court of Appeals decisions in Friedman v. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015) and in Jackson v. City & County of San Francisco, 746 F.3d 953, 2014 U.S. App. LEXIS 5498 (9th Cir. Cal., 2014) because Justices Scalia and Thomas wrote scathing comments, indicting the decisions of the U.S. Circuit Courts in those cases and tacitly voiced, vociferously, their disapproval of those jurists--Justices--on the high Court who failed to vote in favor of review of the cases. Likely, Justice Alito cast a third vote in favor of review of the Friedman and Jackson cases, consistent with the votes cast by Justices Scalia and Thomas; but three votes is insufficient to support U.S. Supreme Court review. Recently, the high Court also rejected a writ of certiorari in Peruta v. Cnty. of San Diego, 824 F.3d 919, 2016 U.S. App. LEXIS 10436 (9th Cir. Cal., June 9, 2016). Justice Thomas wrote a comment, amounting to a vehement denunciation of the Ninth Circuit Court of Appeal's decision in that case. The comment obviously alluded, as well, to more than slight chastisement of those Justices on the high Court who voted against review of Peruta. Justice Gorsuch, the most recent Justice to sit on the U.S. Supreme Court, now joined Justice Thomas in dissenting the denial of the writ of certiorari. In each of those cases--Friedman v. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015), Jackson v. City & County of San Francisco, 746 F.3d 953, 2014 U.S. App. LEXIS 5498 (9th Cir. Cal., 2014), and Peruta v. Cnty. of San Diego, 824 F.3d 919, 2016 U.S. App. LEXIS 10436 (9th Cir. Cal., June 9, 2016)--the U.S. Circuit Courts of Appeal in the Seventh and Ninth Circuits, clearly and, to our minds, unconscionably, revolted against the clear and categorical pronouncements of Heller and, further, deliberately and wrongly failed to heed to U.S. Supreme Court precedent. In so failing to follow high Court precedent, those recalcitrant U.S. Circuit Courts of Appeal denigrated our system of laws that relies for its efficacy, efficiency, and consistency on adherence to case law precedent.At this moment it isn't clear what the Defendant, District of Columbia, will do having lost in Wrenn. There are three options. One, the District of Columbia can file its own petition for review of the case to the U.S. Supreme Court. If the District of Columbia does this, the high Court may very well decide to hear the case as Wrenn's connection to Heller--emanating as it does in the same jurisdiction--begs for a hearing if the District of Columbia dares to take the case up. Two, the District of Columbia can request an en banc review of the adverse decision. While en banc review--that is to say, a hearing of the full complement of U.S. Court of Appeals Judges of the D.C. Circuit to review the decision of the three-Judge panel--is not guaranteed, as an appellant cannot demand en banc review as a matter of right any more than a petitioner can demand that the U.S. Supreme Court accept petitioner's writ of certiorari (in fact, the high Court accepts very few cases for review), there is, we believe, albeit unfortunately, in all likelihood, more than an even chance that the decision of the three-judge panel would be reversed, since the D.C. Circuit, like the Ninth Circuit, has a deep-set aversion to the Second Amendment. Three, the District of Columbia can let the ruling of the three-Judge panel in Wrenn stand. This means the District of Columbia will become a "shall-issue" handgun carry jurisdiction. For supporters of the Second Amendment, as true Americans, faithful to the strictures of the Bill of Rights as defined by and understood by the framers, are, this last scenario is an acceptable situation. For, while the decision of the D.C. Circuit Court of Appeals does not constitute binding precedent in other jurisdictions, the decision does constitute support, that sister jurisdictions might adopt.One cautionary note to those individuals who seek to carry a handgun in the District of Columbia on the basis of the Wrenn decision: Be advised that to do so, one must still obtain a license to carry a handgun, issued by the appropriate authorities in the District of Columbia. Do not attempt to carry a handgun in the District of Columbia without first obtaining a valid District of Columbia handgun license! It is a serious offense to do so; and penalties are harsh.One last note: Assuming the decision in Wrenn is not overturned by the U.S. Court of Appeals for the District of Columbia Circuit, hearing the case en banc, in the event the full complement of Judges decides to hear the case, or, in the alternative, assuming the decision in Wrenn is not overturned by the U.S. Supreme Court, in the event the District of Columbia petitions the high Court for review of the case and the high Court accepts review of Wrenn vs. District of Columbia, 2017 U.S. App. LEXIS 13348 (D.C. Cir. July 25, 2017), that means one more United States jurisdiction is slowly, if grudgingly, commencing to comply with the rulings of Heller. That also means that we, supporters of full exercise of the right to keep and bear arms as codified in the Second Amendment, are one step closer to realization of our goal of National handgun carry reciprocity. It is time for Congress to get off its duff and act to make National handgun carry reciprocity a reality!______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

NEW YORK TIMES BLAMES GUN FOR LUNATIC’S MURDEROUS RAMPAGE AT BRONX-LEBANON HOSPITAL IN NEW YORK CITY

NEW YORK TIMES BLAMES GUN FOR LUNATIC’S MURDEROUS RAMPAGE AT BRONX-LEBANON HOSPITAL IN NEW YORK CITY

Introduction to multipart series article on New York Times fake news story

“Lux et Veritas”: “Light and Truth.” Don’t expect to find either in the New York Times.

After the tragic incident at the Bronx-Lebanon Hospital, on Friday, June 30, 2017, when a lunatic, Henry Bello, an unlicensed, Nigerian-born “doctor” and irate employee of the Hospital—let go for good cause—sexual harassment—went on a shooting spree, killing one person, a physician, and seriously wounding several others before taking his own life, the New York Times wasted no time, casting blame and aspersion on the party the Times holds to be truly responsible for the crimes of murder and attempted murder: a firearm, variously and ineptly described by the newspaper reporters writing the story, Marc Santora and Al Baker, as an “assault rifle”—which it wasn’t or as an “assault weapon,” which it couldn’t be, since there is, really, no such weapon. The expression, ‘assault weapon,’ is nothing more than a legal fiction, drummed up by antigun media sorts, for psychological effect, and used by antigun groups and like-minded politicians to deny Americans their fundamental and natural right to keep and bear arms under the Second Amendment of the Bill of Rights of the U.S. Constitution. The firearm—that the “health care provider,” Henry Bello, used to deprive one health care provider, a physician, of her life, and who then seriously injured several more health care providers, attempting to deprive them of their life and well-being—would be described simply but at least accurately as a semiautomatic rifle, and more descriptively and accurately as an AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle, manufactured by Anderson Manufacturing, lawfully modified by a licensed New York gunsmith to conform to New York State law.The Times reporters, Santora and Baker, clearly blame the rifle for the horrific crimes committed by a lunatic, in whom blame really, and solely, rests. The blame that Santora and Baker thrust more on the M4 AR-15 Rifle, and less on Bello, is tacit but nonetheless clear enough, as the reporters argue that, but for the rifle, the tragedy that occurred at the Hospital would not have taken place.Santora and Baker create a fairy tale disguised as a news story to suggest the rifle is the principal perpetrator—not Bello, who pulled the trigger, because Bello couldn’t help himself. You see, Bello is, or rather was—before the rifle turned on him or before Bello turned the rifle on himself—mentally ill.The Times newspaper in a follow-up article to the deadly Bronx-Lebanon shooting, posted on-line, on July 3, 2017, and published, in the print edition of the paper, on July 4, 2017, with the title, “Despite Strict Gun Law, Doctor was able to Buy Assault rifle,” makes abundantly clear that the M4-AR 15 rifle must be perceived as the central character and the main culprit in the incident as the reporters, Santora and Baker, who wrote the story, focus their attention on the rifle, rather than on Bello. That isn’t to say the Times reporters don’t also focus their attention on other culpable players in the tragic incident. For, Santora and Baker mention others who abetted the M4-AR15 rifle—the principal assailant—and who abetted Bello, who was more along for the ride.The reporters cast a wide net. They blame the gunsmith who modified the weapon to conform to the New York Safe Act so that a New York gun dealer could lawfully sell the weapon. They also blame the gun dealer who lawfully sold the modified M4-AM 15 to Bello. And, finally, the Times reporters blame the NY Safe Act, itself, for the tragedy that occurred at Bronx-Lebanon Hospital because, as the Times reporters strongly suggest, the SAFE Act, strict as it is, isn’t strict and restrictive enough—not nearly strict and restrictive enough.The Arbalest Quarrel explains in a series of in depth articles that follow this introduction, previously posted as one, unbroken essay on the Arbalest Quarrel website, and to be posted in multiple parts on Ammoland Sporting Shooting Sports News, how the New York Times’ implicit bias toward and against firearms generally and against civilian possession and ownership of firearms particularly colors its news accounts so that what the public takes to be factual news coverage of specific events, appearing in the news section of the publication, is really an opinion piece, masked as a factual news piece, that really belongs in the editorial section of the newspaper.The New York Times newspaper, as with other mainstream media organizations, makes much of the notion of “fake news,” when vigorously attacking alternative media sources, but never once admits that the Times newspaper, itself, is often a main source of its own “fake news.” Whence cometh "Fake News?"“Fake news” is a thing conceived or contrived by the mainstream media as a device or conceit to attack alternative news and commentary sources, which the mainstream media perceives, and, admittedly and rightly so, as a mechanism to counteract mainstream news media influence over the American public."Fake news" is an expression that has, through overuse, principally by the mainstream news media that first commenced use of it, become nothing more than cliché.  It is the mainstream news media that is truly the perpetrator of "fake news" and has used it to sway public opinion. But, what is this thing, referred to as “fake news," really?”What “fake news” really refers to is fabricated stories. It is not merely false news—in the sense that the reporters or distributors of the news are delivering false news of events inadvertently as they are not aware that the news is false—but a more serious affront to conscience, where the reporters or distributors of the news deliberately conceive and distribute contrived stories—stories that are specifically designed to deceive the target audience--to induce, in the target audience, false perceptions of events—stories designed to mislead the target audience and to sway public opinion in a specific direction, a direction designed to further the aims and goals of mainstream media’s powerful wealthy benefactors—those forces at work, behind the scenes, whose aims are antithetical to the aims of and antithetical to the best interests of this Nation and of its people. The mainstream media has, accordingly, evolved into a propaganda machine—a well-oiled and well-funded tool of those forces that seek to undermine the rights and liberties of the American people—especially the right of the people to keep and bear arms, as codified in the Second Amendment to the U.S. Constitution.While the First Amendment guarantee of Freedom of the Press precludes any attempt by the Government to abridge that Freedom, there is nothing in the First Amendment that precludes the Press from presenting biased reports of the news. But bias in the news is what the American public receives daily from the mainstream media. A prime example of implicit bias in the news is seen in mainstream media’s attempt, to sway public opinion on the matter of civilian ownership and possession of firearms.In the Times article, “Despite Strict Gun Law, Doctor Was Able to Buy Gun,” that we deconstruct, we point to specific factual errors made pertaining to the firearm the Times reporters, Messrs. Santora and Baker,   talk about in the story. To those individuals who might assert that the Arbalest Quarrel is merely quibbling, we point out that factual errors about guns is a serious matter.If the mainstream media attempts to make a case for restrictive gun laws, it should, at the very least, know of what it speaks. But, obviously, the mainstream media knows little about the technical aspects of firearms that it writes about. Worse, it doesn’t care. Worst of all, the mainstream media concocts a mythology about guns that has absolutely no basis in reality and is designed to induce, in the public, fear and loathing toward firearms and to mistrust those who support and respect the right embodied in the Second Amendment that the framers of the U.S. Constitution felt strongly enough about to set in stone.The mainstream media, which includes the NY Times newspaper, apparently believes it can, when it chooses, be sloppy when talking about the news, and the Times is often sloppy. Now, it is one thing for a news source to provide erroneous information about firearms out of ignorance, and we see that constantly in articles about firearms. Sloppiness in news articles may be the result of ignorance or it may be the result of a rush to make a deadline. In either event such ignorance may be forgiven if a correction or retraction is in the offing. However, when a major news source, that reaches millions of Americans, makes the same error over and over, it is reasonable to conclude, and we do conclude, that erroneous remarks about firearms are the result of something more than ignorance or a casual disregard toward reporting on them and about them. What we are seeing is nothing less than a deliberate, callous, deceitful, orchestrated program of conscious deception, to make the public induce Americans to relinquish their fundamental right to keep and bear arms—our birthright.“Truth in reporting” on the news involves more than disgorging statements that ostensibly cohere with or correspond to specific “facts” about the world.A trustworthy news organization should ever be mindful of the subliminal effect the narrative of a story has on the audience because the narrative—the theme of the story—is always inextricably intertwined in and linked to the statements made.Narratives of articles appearing in the news section of a paper should always be functionally neutral. That is not always possible, of course. Still, a reputable news organization should—indeed, must—strive to achieve neutrality in its news accounts. That should always be the goal of any news organization. That is what news organizations and publications, such as the New York Times, will pointedly say that it delivers. But that is a double lie. The Times does not invariably provide accurate news accounts of the events and subjects its reporters write about even if it says it does. And, with mainstream media news accounts pertaining to firearms, the public rarely, if ever, sees accurate, neutral reporting of the news—for that isn’t the aim of the Times or of other mainstream news organizations and publications. We, personally, have never seen neutral accurate reporting about firearms in mainstream media.The Bronx-Lebanon Hospital tragedy is merely the latest, or certainly one of the latest of serious tragedies to occur in this Nation. But, by making the firearm the deceased killer, Henry Bello, used in the shooting, the focus of the story, rather than Henry Bello, himself, the reporters suggest that the firearm has a will of its own. The reporters induce an irrational fear of firearms in the mind of the public.You would think that Times reporters would attempt to alleviate fear of guns—as guns are merely inanimate objects. Instead, the Times Reporters, Messrs. Santora and Baker, magnify that fear, intensify it, suggesting that fear of guns is a healthy response to guns—suggesting that guns have a will of their own and that will—an evil will—is one that influences the wielder of the firearm to commit heinous acts, such as those committed by Henry Bello. It is a ridiculous notion, but one that we see conveyed over and over again in the mainstream media--usually tacitly, but sometimes, bizarrely enough, overtly too.This irrational fear of guns is broadcast in the mainstream media, throughout the Country. Today a child in public school who so much as points a finger at another child, suggestive of a gun, and says, “bang,” is forthwith immediately suspended and that child’s parents are contacted by the School Board officials who then encourage the parents to seek psychiatric care for the child. Really? Who is it that is in dire need of psychiatric care, here? Is it the child? Is it the young child who likes to play “soldier” or “cowboys and Indians” with a toy gun, or is the members of the School Board who have been conditioned and brainwashed by false narratives they see on “news” programs or that they read about in newspapers, such as the New York Times?A retired U.S. Marine Corps Colonel, Jeff Cooper, has coined a word to describe this irrational fear of guns—a fear that manifests, in the mind of a susceptible person, that a firearm is a sentient being, harboring evil intentions—that a firearm is a demon. This irrational fear of guns is called, “hoplophobia,” and this fear is not ameliorated by mainstream media news accounts. Rather, mainstream media news accounts deliberately generate this fear. Such behavior by seemingly reputable news organizations is reprehensible, unforgivable.If publications like the New York Times intend to thrust their animosity toward firearms and toward civilian ownership of firearms on the public, then there is a place for the publications to do so. It is called the editorial section of a newspaper. Opinions belong in the editorial section of a newspaper, not in the news section. Reporting on the news and commenting or reflecting on the news are two different things. The New York Times, as with many if not most other mainstream news publications and news broadcasting organizations, is notorious for intermingling and conflating news reporting and news commentary, suggesting, deviously, to the target audience, that, what happens to appear in the news section of its paper, is neutral news report, not opinion, when in fact, the New York Times and others of its ilk are deceiving those members of the public that do not and cannot see the difference—which even for astute communications and propaganda specialists—is not often readily discernible, except through careful analysis. This conflation of news reporting, on the one hand, and news commentary or news opinion, on the other, is by design. And the Times, unfortunately, isn’t the only mainstream news publication that does this. News commentary that appears in the editorial section of a newspaper is understood to be biased. That is fine. That is opinion, and the public knows or should know that opinion equates with implicit bias. Opinion is not expected to be neutral. And, implicit bias, when it isn’t cloaked as such, is acceptable, even welcomed. Public policy is grounded as much on opinion—about what a government should do—as much as by the events in the world that may require the development and implementation of policy to deal with those events. But when news is intertwined with opinion, as we see regularly in mainstream news publications and broadcasts, then news reports are “colored.” What is happening in the world becomes blended with what a particular reporter of the news believes is happening in the world—and that belief is always colored by one’s personal biases and values, and by ones hopes and fears and expectations, and all too often those beliefs are false.When assertions cohere with or correspond with facts, we say assertions are true. When assertions do not cohere with or correspond with facts, we say assertions are false. When assertions, true or not, are blended with value judgments, “ought” statements or “should” statements, such statements or assertions are not about the world. They are, rather, about one’s personal beliefs about the way the world ought to be, not the way the world is.Messrs. Santora and Baker have, in their “news article, made statements, knowingly or not, that are false. Worse, they have taken those false statements, predicated on their own false beliefs about firearms, and have concocted a fairy tale about guns. They have taken events, accurately reported about Bello, and about the NY Safe Act--factually true statements about the world--but, surreptitiously, blended those facts with fiction. They then draw tacit conclusions about reforming the NY Safe Act to make the Act ever more restrictive, consistent with both their personal distaste for firearms and with their false beliefs about them. Thus, they turn what is supposed to be a neutral news story into an opinion piece, but masked as a news story since it appears in the news section of the Times publication instead of in the editorial section of the paper. This is not acceptable, honorable, journalistic behavior, unfitting for any organization that prides itself “on all the news that’s fit to print.”The Arbalest Quarrel explains in detail exactly how Times Reporters Santora and Baker distort the news by inserting or injecting personal biases into their story, and, how, by tacitly arguing for reformation of the SAFE Act, consistent with their biases and false beliefs, they represent powerful interests in this Country and abroad, who seek to undermine the Second Amendment to the U.S. Constitution.The Arbalest Quarrel has attempted to contact Messrs. Santora and Baker, to defend their distortions about firearms. Mr. Bill Frady, host of the famed, “Lock N Load" Radio Show, has invited these two Times reporters to appear on his program. The Arbalest Quarrel would look forward to debating Messrs. Santora and Baker over the manner of their reporting and on assertions they make regarding the particulars of firearms and ammunition that they talk about in their article.If the New York Times wishes to engage in dialogue with us over the “gun” issue, the Arbalest Quarrel will be more than happy to do oblige. We would look forward to an open dialogue about the technical aspects of firearms, and the manner in which false information about firearms is delivered to the public. We would specifically like to engage the New York Times in a frank discussion over their news narratives that we see as no less than editorials and arguments for more restrictive gun laws, disguised as neutral news reports.As of the posting of this article on the Arbalest Quarrel weblog and on Ammoland Shooting Sports News, we have not heard back from the NY Times reporters.______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

NEW YORK TIMES INSINUATES BRONX-LEBANON HOSPITAL SHOOTER, HENRY BELLO, DID NOT ACT ALONE; HE HAD ACCOMPLICES.

NEW YORK TIMES INSINUATES BRONX-LEBANON HOSPITAL SHOOTER, HENRY BELLO, DID NOT ACT ALONE; HE HAD ACCOMPLICES.

NEW YORK TIMES INTIMATES RESPONSIBILITY FOR BRONX-LEBANON HOSPITAL TRAGEDY RESTS WITH THREE PARTIES ALONG WITH HENRY BELLO—ONE OF WHOM IS THE TRUE MASTERMIND BEHIND THE CARNAGE BELLO WROUGHT

By now, anyone who keeps abreast of National news is aware of the tragedy that occurred recently at Bronx Lebanon Hospital in New York City. News accounts point out that a “physician” from Nigeria, Henry Bello, went on a shooting spree after having his limited hospital privileges revoked. Although the Hospital used the appellation “Doctor” to describe Bello’s position with the hospital, Henry Bello did not have the privileges of a medical doctor because Bello did not have a license to practice medicine in New York. The Hospital ultimately terminated Bello’s employment, and it did so for good cause: sexual harassment. Bello, obviously in a rage over the termination of his employment with the Hospital, decided to get even.The matter of sexual harassment, though, ought not have come as a surprise to the Hospital Administrators—which should have given careful thought before they hired Henry Bello—because Bello has a criminal record that includes, among other things, the crime of sexual abuse. Other incidents in his life, as reported through a multitude of news accounts, available to anyone through a simple internet search, point to a mentally unstable person—a person who certainly had no place in a Hospital setting, in the capacity of an employee. Is what had transpired at Bronx-Lebanon Hospital an instance of a theme one sees in a typical Hollywood horror film--i.e., a psychotic patient posing as a staff physician, fooling Hospital staff, visitors, and patients, and then going berserk--killing and injuring people at random, once having fallen into a murderous rage over a perceived wrong. What occurred at Bronx-Lebanon Hospital, though, is factual, not a fictional Hollywood script. To make the argument that Hospital Administration hired Henry Bello because the Hospital happened to be short-staffed merely demonstrates desperation substituting for and overriding common-sense. Clearly, there existed, at the Hospital, both security lapses and employee hiring lapses. What actions are Bronx-Lebanon Hospital Administration officials taking to correct these obvious lapses in policy and judgment?Hopefully, Bronx-Lebanon Hospital will give more thought to its hiring practices going forward, since, obviously, the Hospital's past practices are quite sloppy. And, once Hospital Administration reappraises its hiring policies, it should also consider reevaluating its security policies. Bronx-Lebanon Hospital ought to ask how an individual could secret a rifle into the Hospital and why, apparently, the Hospital had no armed security officers at the Hospital’s entrance and at its reception desk. Furthermore, if security officers were present at the Hospital’s reception desk, how is it that none of them managed to discover an assailant walking past them, hiding a bulky weapon—a rifle, not a handgun—under a thin lab coat? In that regard, it appears that this tragic incident was not the first to occur at the Hospital.Mainstream news accounts do not spend time investigating how an individual, once in Bronx-Lebanon Hospital, had sufficient time to murder one person, a physician, and wound several more, stalking the interior of the Hospital. Mainstream media news sources gloss over these matters, at best, or fail to mention them at all. The New York Times, for its part, ultimately turned its attention to and expressed keen interest investigating and reporting on Henry Bello’s accomplices in the crime.

NEW YORK TIMES ALLUDES TO BELLO’S ACCOMPLICES IN THE COMMISSION OF HIS HEINOUS ACTS

You didn’t know that Bello had accomplices, did you? But, it seems that he did, for the New York Times makes abundantly clear Henry Bello did not act alone—that he did not truly act alone—when he went on his murderous shooting rampage at the Hospital, killing one physician and shooting several more people before the carnage ended—with Bello’s principal accomplice turning on Bello, himself.

ABOUT THOSE ACCOMPLICES—

The Times strongly suggests that Henry Bello had one principal accomplice who assisted him in carrying out the multiple crime and two others who abetted him. The name of the principal accomplice—indeed, the master architect of the crimes—is, as can be gleaned from a perusal of a recent NY Times story, none other than what the Times refers to as the "assault weapon," a.k.a., the “assault rifle.”  In a Times story, titled, “Despite Strict Gun Law, Doctor Was Able to Buy Assault Rifle,” published Tuesday, July 4, 2017, Times journalists, Marc Santora and Al Baker, assert that Bello “carried a semiautomatic AM-15, which is Anderson Manufacturing’s version of the AR-15, a civilian rifle, close in design to the M-16.” * A digital version of the story, available to subscribers of the NY Times and non-subscribers of the paper, alike, was posted one day earlier, on July 3, 2017. The digital version of the story is titled slightly differently, through inclusion of the word, ‘Troubled,’ appearing before the word, ‘Doctor’: “Despite Strict Gun Law, Troubled Doctor Was Able to Buy Assault Rifle.” More precisely, the manufacturer of the rifle, Anderson Manufacturing, designates the rifle as the “AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle.”But the New York Times newspaper reporters, Messrs. Santora and Baker, do not, apparently, exhibit an interest in providing the public with those details since it does nothing to move the narrative along--a narrative the newspaper wishes to project on the screen of the American public’s consciousness—namely that guns are evil personified and must, in good conscience, be outlawed.A photograph of the rifle Bello used during his murderous rampage at the Bronx Hospital appears immediately to the left of a photograph of Bello himself on page “A15” of the print edition of the Times newspaper. The photographs carry a strong message. The message is that the fault for the tragedy that occurred rests not merely on Bello but, more particularly, on the rifle.The appearance of the rifle, directly to the left of Bello, in the print edition of the news story graphics—below which the caption reads, in part, “Dr. Bello and the AM-15 that he used,”—is not and should not be considered mere happenstance.Readers of English, as those of other Indo-European language, read, left to right. As advertisers and psychologists know, the eye is trained to emphasize words and graphics that appear to the left of one’s visual gaze and to minimize those that appear to the right of one’s visual gaze, consistent with the way a reader of English or of other Indo-European languages, from an early age, is trained to read. Thus, scanning an image or word is managed and emphasized, “left to right.”By juxtaposing a photograph of the rifle next to and to the left of the photograph of Bello, the editors of the NY Times, responsible for the placement of words and graphics in the Times newspaper, create the impression—whether consciously or not, but probably consciously—that the implement Bello employed in carrying out his crimes—the AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle—is, truly, the real culprit—the main perpetrator, evil doer, and mastermind of the crime—and that Bello, who pulled the trigger, less so—that Bello happened merely to be the toady who pulled the trigger, as commanded by the M4 AR-15 Rifle.Thus, Henry Bello happened simply to be more along for the ride. In this way, the subliminal message conveyed to the reader of the Times story is that both the rifle used to commit horrible crimes and the individual who utilized the rifle are both sentient beings: one of whom is truly evil—the AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle, and the other, who is not, namely, Henry Bello, who is--now, was--simply mentally ill--seriously mentally ill--and therefore, not responsible for his actions. The message: blame the AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle, not the man; place the ill individuals in a mental health facility, and, at once, eradicate firearms.The public is presented with the sad, inevitable, inescapable conclusion, consistent with the subconscious messaging projected, that the rifle, the M4 AR-15 Rifle, is Public Enemy No. 1—a Public enemy beyond redemption, that will ever remain so, but that Henry Bello is not, or, if he had remained alive, not beyond redemption. We are to believe that Henry Bello is—that is to say, was—basically a good man in a bad Karma and that he was brought to do horrific acts—ever more horrific acts because he was a health care provider—through the diabolical machinations of another, the M4 AR-15 Rifle. Had the M4 AR-15 Rifle not turned on Bello, Bello likely would have argued, at trial, in his defense, that the actions of unspeakable savagery, should be ascribed to the M4 AR-15, that made him do it--after all Bello was seriously mentally ill-no question about it--and the Times reporters acknowledge as much. Having commanded Bello to kill himself, rather than to give himself up to the police, the M4 AR-15 has thereupon successfully eliminated the one perpetrator that can effectively cast blame on “him”—“the Rifle”—but the M4 AR-15 Rifle isn’t talking, and isn’t expected ever to cooperate with investigators.Were the Times editors, who created and positioned the graphics that appeared with the print edition of the story, aware of the impression they were creating with the graphics that were used in association with the newsprint edition of the story? Perhaps so, if we give the Times editors credit as psychologists and experts in the field of propaganda.As we know full well, the Times is notorious for creating illusions and allusions about guns: false notions about guns and hints about the “nature” of guns, as if guns have “natures” at all and that they can and do behave like the worst of people amongst us, not unlike any sentient being. The authors of the Times article, Messrs. Santora and Baker, suggest, as well, that there were two additional accomplices to the crimes—those that were not at the scene of  the crimes but who were, nonetheless enablers of the crimes committed by the M4 AR-15 Rifle and by Bello: one, the dealer, who lawfully sold Bello the rifle he used to kill an innocent individual—a medical doctor—and to seriously injure several other innocent people; and, two, the gunsmith—holder of both a valid federal firearms license (“FFL”) and a valid New York State gunsmith license, who lawfully modified the rifle (the “Optic Ready .223/5.56 Caliber M4 AR-15 Rifle”) to conform to New York’s restrictive gun laws that then allowed the dealer to lawfully sell the rifle to an individual, Bello, the killer, who, was not under disability.The Times’ reporters, in a scarcely disguised attempt to implicate and castigate both the gunsmith and the dealer—particularly the dealer, who sold the Rifle to Bello—as we can glean from both the graphic of the dealer’s store and of the dealer’s vehicle--as the graphics, accompanying the story create a distinct and unflattering impression, completely unfair, that the dealer is somewhat of an unsavory individual for being a dealer in firearms at all. To emphasize the point, Messrs. Santora and Baker point to the location of the Gun dealer’s store, adjacent to a used-car dealership, a fact, yes, but a fact completely irrelevant to the story, and yet, at once, suggestive of the idea that a gun dealer and a used car dealer both operate morally dubious and objectionable businesses, not unlike those purveyors of payday loans and pornography.The Times reporters suggest that these two abettors of Bello—the gun dealer and the gunsmith—are definitely morally culpable even if not legally culpable in the matter of Bello’s actions and of the actions of the principal criminal, the M4 AR-15 Rifle—under a philosophical notion and legal theory of causation. In other words, we are to believe that, if the gunsmith had not modified the M4 AR-15 Rifle, to conform to the New York law, the rifle could not have been lawfully sold in the State to average, law-abiding citizens, who are not under disability; and had the dealer who lawfully sold the rifle to Bello, not obtained the rifle from the gunsmith to sell to Bello, then Bello would not have used that rifle to commit the horrific acts he committed. This chain of causation is aptly demonstrated in a child’s nursery rhyme, by "Mother Goose": “This is the House that Jack Built.”What is left unsaid but what is certainly true, though, is that, as long as Bello operated in murderous frenzy mode, he would still have committed his acts of murder and mayhem: if not with the M4 AR-15 Rifle, then, perhaps, with another firearm, or if not with a firearm, then perhaps with a knife, or with a hatchet, or with a bomb, or with anything else at hand. A reasonably intelligent person can devise many effective ways to destroy human life, and destroy human life relatively quickly, if destruction is in the heart and mind of that person.The journalists, Messrs. Santora and Baker are adamant in their insinuation that the gun dealer and the gunsmith ought not to be ignored in the blame game the reporters construct—and Messrs. Santora and Baker do not ignore them, spending substantial time talking about them in their story. Messrs. Santora and Baker apparently consider both the licensed gun dealer and the licensed gunsmith to be participants in Bello’s brutal actions, along with the principal killer, the M4 AR-15 Rifle—passive participants to be sure, but critical players and factors in the equation of violence that occurred, since, as they present in their NY Times story, but for the actions of the gun dealer and the gunsmith, Bello would not have committed the horrific crimes he did commit with the implement he employed—the M4 AR-15 Rifle; and that, but for the very existence of the M4 AR-15 Rifle or any other firearm, there would be no tragedy. But, is that true? Obviously, that statement is not true, and there is no reasonable basis for that tacit conjecture.Bello intended to cause serious harm. If a firearm were not available, he would have found some other implement. No doubt about it--another implement that would have been just as effective--perhaps a butcher knife or an axe. But, Bello did not use a butcher knife or axe to commit horrific crimes. He used a firearm, and since it is firearms that the mainstream media is forever focused on, as the source of many if not most of the major ills in society, the fact that a firearm happened to be utilized by Bello in the death of one individual and in the injury of several others, that fact plays well into the narrative the mainstream media, such as the narrative New York Times newspaper, loves to play into and relishes: namely, that restrictive firearms laws, such as the New York Safe Act, must be made ever more strict. But why is that? What is it about the firearms that creates in the minds of those that perceive “the gun” as the object, the focus of attention when an individual uses it to harm another--the focus of such morbid fascination? The public sees no such focus of attention on the implements employed to harm others when that implement is a knife, or an axe, or an automobile. Mainstream news media sources maintain that “the gun” is an implement that enables a person to kill efficiently, quickly. Yet, a person can in fact kill many people just as efficiently and effectively with a knife, or with an axe, or with an automobile. But, then knives and axes and automobiles are not implements specifically mentioned in the U.S. Constitution. The right of the people to keep and bear arms—referring, specifically to firearms, as the f0unders of a free Republic and the framers of the Constitution intended—is a right specifically, expressly codified in the Bill of Rights of the Constitution—in the Second Amendment of the Bill of Rights of the U.S. Constitution. But, the Second Amendment, as with the entirety of the Constitution, is an “old” document. The mainstream media considers the Second Amendment to be outdated, archaic, anachronistic. Reporters, such as Santora and Baker of the New York Times, suggest as much. They take the position that the Second Amendment may have had import and purpose at one time but that it doesn’t any longer and that the Country would be better off were the Second Amendment to be ignored, and, therefore, de facto repealed. Since, then, from their perspective, the right of the people to keep and bear arms has no legitimate, reasonable purpose in this day and age, no one should have expectations that anyone, not under disability, may legitimately, lawfully exercise that right as one will. So, the reporters, Santora and Baker, cast about looking for those individuals, apart from a lunatic and a killer, Henry Bello, in which to place blame for the horrible tragedy that occurred at Bronx-Lebanon Hospital. Messrs Santora and Baker make much of the fact that the gunsmith that modified the M4 AR-15 Rifle that Bello utilized to kill one person and to seriously injure several others at the Hospital was exercising a loophole through which a banned firearm, called variously, an ‘assault weapon’ and ‘assault rifle’—the former expression which is simply a legal fiction, and the latter expression which, as applied to the M4 AR-15 Rifle, manufactured for the civilian market, not for the military or law enforcement, is a misnomer, and , in either case, the two expressions are not synonyms and therefore are not interchangeable—allowed a banned weapon to be sold legally in New York through modifications to the weapon. The idea conveyed by Messrs. Santora and Baker is that the gunsmith who made the modifications that allowed the M4 AR-15 Rifle to be sold lawfully in New York to those individuals, not under disability, as the expression, ‘disability’ is defined in the U.S. Code, 18 USCS § 922(g), and the dealer who lawfully sold the M4 AR-15 Rifle to Bello, ought to be implicated in the crimes, precisely because they utilized loopholes in the New York Safe Act to avoid the import of the Act. But, this is no different than a professional CPA who lawfully uses loopholes in the Federal Tax Code to benefit his or her client. Now, it is not a reasonable response to say that, after all, a CPA lawfully using perceived loopholes in the Federal Tax Code to benefit a client is not harming and cannot harm another human being while a New York gunsmith and a New York gun dealer that use loopholes in the New York State Penal Code to legally sell an otherwise illegal weapon to a person, not under disability, does allow the purchaser of the weapon potentially at least—and, in the Bronx-Lebanon case, actually—to harm or kill another human being. For, the gunsmith that modified the M4 AR-15 Rifle that permitted the weapon to be sold lawfully in New York, and the gun dealer who lawfully sold the M4 AR-15 Rifle to Henry Bello, did not deviously, insidiously, devise schemes to avoid the import of the SAFE Act. Rather, the SAFE Act itself is a devious, insidious, scheme—a massive loophole—to slither around the import and purport of the Second Amendment to the U.S. Constitution. In fact, it is highly unlikely that the SAFE Act of New York and similar draconian firearms’ Acts presently in force in other jurisdictions would survive U.S. Supreme Court review. But, then, those legislators and jurists who hold nothing but contempt for the Second Amendment see no reason why they cannot treat the natural right, codified in the Second Amendment, with disdain. So, we see politicians and jurists and journalists voicing vociferous distaste for and utter disdain toward the right of the people to keep and bear arms in the legislation drafted, in the opinions reported, and in the articles written, operating as either express or implied attacks on the sanctity of the natural right codified in the Second Amendment.Messrs. Santora and Baker would likely protest that the NY SAFE Act must go further and more must be done to prevent individuals, not under disability, but who, like Henry Bello, present a danger to self and to others when they have access to firearms. That does present a conundrum, but one no different than the dangers posed by those who have no business being behind the wheel of an automobile. We do not see States constantly imposing new requirements on motorists; but, for all that, the right of the people to drive vehicles on public roads is not expressly established in the Bill of Rights, although one might make the claim that such right might be presumed as existing under the Ninth Amendment to the U.S. Constitution, as an unenumerated right. But, such a right would not, in any event, be construed, nor should it be construed, as a right of the same magnitude as that right codified in the Second Amendment of the Bill of Rights of the U.S. Constitution.But, in responding to those who insist that restrictive gun laws must be enacted to prevent those individuals, who, like Henry Bello, present potential problems before the fact, from obtaining firearms, how might that be accomplished? The short answer is that it cannot and ought not be accomplished. The fact is that it is dangerous to presume on past conduct precisely what a person will do in the future. Today, millions of law-abiding citizens, and non-citizens who legally reside in the U.S., possess firearms and pose no danger to themselves or to anyone else. If draconian gun laws are enacted in an attempt to weed out anyone deemed to pose a potential risk to self or others if that person has access to firearms, how do we go about weeding out those individuals? The fact of the matter is that the occasional lunatic, as with the occasional drunkard behind the wheel of a car, will do harm. We know that. But the danger posed is minimal, and minimal as it is, that danger can be reduced yet further--through the arming of more citizens, not disarming them. But if Government is permitted to exert ever more control over the lives of millions of rational, law-abiding citizens in order to successfully weed out the few potential risks, a greater harm to a free Republic and to the rights and liberties codified in the Bill of Rights exists.Neither a State Government nor the federal Government should be permitted to place ever increasing restrictions on the right of the people to keep and bear arms. The risk posed by criminal elements in society and by lunatics is far and away less significant than risks posed to the preservation of our Republic and to the preservation of the rights and liberties of Americans.There exist forces in America today that seek to align our values with those of Western European Nations. Social, political, economic, and philosophical constructs, such as liberal democracy, multiculturalism, bilingualism, neoliberalism, globalization, and open borders are not consistent with the rights and liberties codified in our Nation’s Bill of Rights, and, particularly, those social, political, economic and philosophical constructs are not consistent with our Nation’s Second Amendment. No other Nation on Earth has, within its Constitution, anything remotely like our Second Amendment. For, the right of the people to keep and bear arms exists intrinsically and inextricably in the individual. It is not a privilege bestowed on the citizens or subjects of a Country by Government. That such right of the people to keep and bear arms be recognized as residing in the individual, the Second Amendment must not be toyed with. The NY Safe Act is an abomination. The very language of the Statute betrays the unalienable right codified in the Second Amendment and illustrates Government’s distrust of and contempt for the individual. Further restrictions imposed on the right of the people to keep and bear arms demonstrates a profound disconnect between Government and the people governed. There are mechanisms to deal effectively with people like Henry Bello. The answer, once again, is to arm more people, not to disarm them. Tragedies do happen through misuse of firearms, as with misuse of other objects. But, restrictive gun laws that attempt to foreclose the harm caused by a few, foreclose, as well, and worse, the right of the many to have access to firearms for self-defense. Restrictive gun laws are incompatible with our Nation’s Constitution and with the continuation of our Country as an independent sovereign Nation and free Republic.The journalists, Messrs. Santora and Baker are adamant in their insinuation that the gun dealer and the gunsmith ought not to be ignored in the blame game the reporters construct—and Messrs. Santora and Baker do not ignore them, spending substantial time talking about them in their story. Messrs. Santora and Baker apparently consider both the licensed gun dealer and the licensed gunsmith to be participants in Bello’s brutal actions, along with the principal killer, the the M4 AR-15 Rifle—passive participants to be sure, but critical players and factors in the equation since, but for the actions of the gun dealer and the gunsmith, Bello would not have committed the horrific crimes he did commit with the implement he employed—the M4 AR-15 Rifle; and that, but for the very existence of the M4 AR-15 Rifle or any other firearm, there would be no tragedy. But, there is no basis for that tacit conjecture. Bello intended to cause serious harm. If a firearm were not available, he would have found some other implement. No doubt about it--another implement that would have been just as effective--perhaps a butcher knife or an axe. But, Bello did not use a butcher knife or axe to commit horrific crimes. He used a firearm, and since it is firearms that the mainstream media is forever focused on, as the source of many if not most of the major ills in society, the fact that a firearm happened to be utilized by Bello in the death of one individual and in the injury of several others, that fact plays well into the narrative the mainstream media, such as the New York Times newspaper, loves to play into and relishes: namely, that restrictive firearms laws, such as the New York Safe Act, must be made ever more strict.However, that it was that Henry Bello employed an the M4 AR-15 Rifle to kill one individual and to seriously injure a half dozen others and given the Times' particular fascination with blaming firearms for a multitude of sins in society, it is no surprise that the Times reporters would cast a wide net to condemn both the licensed gunsmith who lawfully modified the M4 AR-15 Rifle to conform to New York State gun laws and the dealer who lawfully sold the modified M4 AR-15 Rifle to Henry Bello. Thus, the Times reporters, Santora and Baker, give some  measure of “credit” for the horrific crimes Bello committed with the M4 AR-15 Rifle to the licensed gun dealer and to the licensed gunsmith  even though the New York gun dealer and the new York gunsmith did not know, and could not have known and certainly would not, willingly, have abetted Bello’s criminal actions had they known of Bello’s murderous inclinations and intentions.

AS RESTRICTIVE AS THE NEW YORK SAFE ACT IS,  NEW YORK TIMES REPORTERS, SANTORA AND BAKER ARGUE THAT THE SAFE ACT ISN’T AS STRICT AS IT NEEDS TO BE—THAT IT IS NOT NEARLY AS RESTRICTIVE AS IT OUGHT TO BE.

The Times reporters strongly suggest that the SAFE Act, strict as it is, isn’t strict enough. They are asserting that the SAFE Act has “loopholes” that need to be closed. But, to make that point, the NY Times plays fast and loose with facts concerning so-called assault weapons and would deny access of firearms to millions of law-abiding New York residents based on the reprehensible actions of a few lunatics and psychopathic criminal elements in society. But should restrictions impacting the sacred right of the people to keep and bear arms be drawn based on the lowest common denominator in society? Or, is the call for ever more restrictive gun laws, ostensibly to deal with lunatics and criminal psychopaths, no more than a convenient, seemingly palatable makeweight? Is the desire of  the gun grabbers for more and more restrictive gun laws not really designed to disarm the tens of millions of law-abiding, sane Americans who seek merely to exercise their personal right of self-defense—with the most effective means available, a firearm—against those who would otherwise find it easy to prey upon them.The gun grabbers might respond that they are not attempting to dispossess the average, honest, law-abiding, rational individual of all weapons—only certain kinds of weapons. But, they inevitably, invariably, make a poor show of it by exhibiting their lack of knowledge of both firearms and of ammunition for firearms. And, that lack of knowledge is considerable. Many examples are found in mainstream media news stories, such as the one that is the subject of this article.The Times consistently, erroneously conflates assault weapons with military assault rifles. One sees this in the very title of the July 4 news article, “Despite Strict Gun Law, Doctor Was Able to Buy Assault Rifle,” —substituting one expression, 'assault rifle,' for the other, 'assault weapon,' without rhyme or reason. But assault rifles and so-called assault weapons are not the same thing. They are not functional equivalents and should not be considered functional equivalents. The expression, ‘assault rifle,’ is a military term of art and refers to selective fire weapons. The expression, ‘assault weapon,’ on the other hand, is not a military term of art; nor is it a term of art in the firearms’ industry.“Assault rifles” are selective fire weapons. Selective fire weapons are weapons that can fire in either semiautomatic mode or full automatic mode, through the incorporation of a selective fire lever or switch on the weapon. Such weapons do not fall under the SAFE Act. They fall under the purview of the National Firearms Act of 1934 that bans certain classes of firearms, including machine guns. So-called “assault weapons” are not military assault rifles because assault weapons are not capable of full auto fire. So-called “assault weapons” are not designed by gun manufacturers for the military or law enforcement markets; only for the civilian market, given specific limitations in their application which limitations make them unsuitable for military or for law enforcement work.Such weapons that may happen to look like military weapons are not military weapons. And appearance does not change the functional nature of the weapon. Consider: an automobile designed to look like a Ferrari that has a typical Toyota Corolla engine under the hood may look exotic and sexy, and to some people, perhaps intimidating, frightening, but one only needs to take the car out for a spin to realize something amiss. On the other hand, a Buick Skylark, manufactured during the 1960s might look relatively tame, but, outfitted with a 350-cubic inch V8 engine, the Skylark declared its power once the driver tapped on the accelerator.Similarly, calling a firearm an ‘assault rifle,’ or using the expression ‘assault weapon’ interchangeably with ‘assault rifle’ when the weapon is capable of semiautomatic operation only does not thereby convert the weapon into a military assault rifle; and designing a weapon to look like an assault rifle, does not an assault rifle make.Functionality, not cosmetics, is critical to—and the key—to a weapon’s performance.

“ASSAULT WEAPONS” ARE NOTHING MORE THAN ORDINARY SEMIAUTOMATIC FIREARMS OUTFITTED MERELY TO LOOK INTIMIDATING TO THE UNEDUCATED. REMOVE THE PISTOL GRIP, FOLDING STOCK, AND HANDGUARD, AND THEN FINISH THE WEAPON IN WALNUT, IN LIEU OF POLYMER AND BLACK STAINLESS STEEL, AND, ABRACADABRA, WHAT DO WE HAVE? NO MORE NOR LESS THAN THE SAME WEAPON FOR CIVILIANS AND NOTHING THAT THE MILITARY OR LAW ENFORCEMENT WOULD BE INTERESTED IN FOR LAW ENFORCEMENT OR FOR MILITARY PURPOSES.

The expression, ‘assault weapon,’ isn’t a military term of art; nor is it an industry term. The expression is a political expression, created by antigun groups and utilized as a tool for propaganda. The mainstream media says that such weapons are essentially military weapons, “weapons of war,” as some journalists refer to them in that way. Or, they say that such firearms are “military style weapons,” or that “they are like” military weapons. In fact, phrases such as ‘looks like a military weapon’ or ‘weapons of war’ or ‘military style weapon’ when parsed, don’t mean a damn thing. A weapon either is or isn’t a military weapon—a weapon for military use. The expression, ‘assault weapon,’ is merely a legal fiction to confuse and intimidate the ignorant and unwary.Through that legal fiction antigun legislators create a special category of weapons—a category that includes generally, and almost invariably, many semiautomatic weapons—weapons that, by law, are illegal for the average civilian to own. Semiautomatic weapons that legislators, at their whim, deem to be “assault weapons” are banned unless those weapons happen to be “grandfathered in”  by law. But is that all there is to it? Are those weapons designated as ‘assault weapons’ the only weapons the American public cannot legally own and possess? No; not at all. The problem is that, through time, the gun grabbers seek to place more semiautomatic weapons in the category of banned semiautomatic weapons, until, eventually, all semiautomatic weapons become inextricably linked to “assault weapon” nomenclature. This is by design. This is what the gun grabbers intend to do. For they will not sit contented until all weapons in the hands of civilians are banned.Indeed, the expression ‘assault weapon’ is, now, virtually synonymous with the expression ‘semiautomatic weapon.’ Categorizing this or that weapon as an assault weapon out of whole cloth creates a warrant for ever more weapons to be placed in the domain of banned weapons. Thus, we fall down a slippery slope. But, this is no “slippery slope fallacy." It is an inevitability.Antigun groups and antigun legislators seek, eventually, to ban all semiautomatic weapons. They do this by subsuming ever more weapons and ever more components of weapons under the ‘assault weapon’ designation. Moreover, there is nothing to prevent antigun legislators from subsuming non-semiautomatic firearms under the category, ‘assault weapons,’ too. In fact, we already see this. Consider: Section 37 of the New York Safe Act lays out several definitions of ‘assault weapon': Specific definitions of 'assault weapon' for pistol, rifle, and shotgun. Section 37 is codified in subdivision 22 of Section 265 of the Penal Code of New York.One definition of ‘assault weapon,’ in New York law specifically includes some weapons that aren’t semiautomatic in operation at all. Section 37(D) of the SAFE Act, for example, bans revolving cylinder shotguns, referring to them as “assault weapons” even though revolving cylinder shotguns aren’t semiautomatic in operation.Note, on Governor Cuomo’s New York Safe Act website, he provides an example of a revolving cylinder shotgun, the Armsel Striker-12 Shotgun, via a graphic that, according, to the SAFE Act represents an example of a banned “assault weapon,” because, as the site sets forth, the weapon is “semiautomatic” in operation and has at least one “military characteristic.” The Armsel Striker-12 Shotgun is an assault weapon under the SAFE Act, but the Armsel Striker-12 Shotgun isn’t an assault weapon on the basis of having a military characteristic at all, contrary to the explanation given for including it in the banned 'assault weapon' category. The Armsel Striker-12 Shotgun is designated an ‘assault weapon’ under the SAFE Act precisely and exclusively because it is a revolving cylinder shotgun and, under the SAFE Act, that fact alone is the reason why it is banned as an ‘assault weapon.’ The fact that this shotgun has a “military characteristic” means nothing. It is neither a necessary, nor a sufficient condition for legally ascribing the designation, ‘assault weapon’ to it. Rather, the fact that a shotgun is a revolving cylinder shotgun is both a necessary and sufficient condition for banning it as an assault weapon under the NY Safe Act.But for the existence of Section 37(D) of the SAFE Act, the Armsel Striker-12 Shotgun would not—and in fact could not—legally be designated a banned ‘assault weapon,’ precisely because it isn’t semiautomatic in operation. Why do we say this? We say this because a person must comply with what the law expressly says, and not what one believes the law, erroneously to mean, even if that erroneous belief is held in good faith and even if the person who comes to have a false belief as to which firearm is or is not an assault weapon can point to an official New York State website as the reason for that person’s false belief. For all that, if the Governor expects the public to rely on the accuracy of the very Act that he signed into law, you would think he would make it a point to know what it is that he is talking about and would ascertain that an official New York State website that purports to provide a person with information a person can rely on as true and completely accurate is in fact true and completely accurate.Now, some people might interject that we are quibbling here; for, after all, the Armsel Striker-12 is defined as a banned ‘assault weapon’ under New York law even if the reason provided on the New York State website is not accurate. But, that is sloppy and dangerous thinking. For, suppose, Section 37(D) of the SAFE Act were repealed. In that case, the Armsel Striker-12 Shotgun would be perfectly legal for a person, who is not under disability, to possess in New York. But, given what the NY SAFE Act website says about the weapon, the person who is relying on the website for advice, to comply with the law, would believe that possession of the weapon is prohibited in the State when that would not be the case at all. We say this precisely because the Armsel Striker-12 is not semiautomatic in operation. If Section 37(D) of the Safe Act did not exist, then a shotgun that is not semiautomatic in operation could have any number of so-called military characteristics. Under the New York Safe Act, that shotgun would not be an “assault weapon,” and, then, under New York law, that weapon would not and, thus, could not, legally be banned as an ‘assault weapon’ because the weapon is not, by definition, an ‘assault weapon.’Section 37(D) does proscribe the Armsel Striker-12 but not for the reason the New York State website says. A revolving cylinder shotgun, such as the Armsel Striker-12, represents a special, a unique instance where a weapon is not semiautomatic in operation—which is otherwise a condition precedent for ascribing the designation, ‘assault weapon’ to the firearm, but is defined as an assault weapon due to the fact that it operates through revolving cylinder and that it happens to be a shotgun. Many handguns are designed as revolvers—that is to say, that function through a revolving cylinder, whether double action or single action—and such firearms are not defined as ‘assault weapon.’ So, it all boils down to definition—whatever it is in the feverish mind of the drafter of the legislation.

THE ‘ASSAULT WEAPON’ DESIGNATION IS DEVILISHLY AND CONVENIENTLY CHANGEABLE AS IT CAN MEAN WHATEVER THE LEGISLATOR WISHES FOR IT TO MEAN.

The “assault weapon” attribution is amorphous and nebulous and allows antigun legislators to broaden the scope of banned firearms at will, at their whim—to include anything and everything they wish to include under that designation, as a mark of opprobrium.

NEW YORK TIMES—WHOSE LOGO IS “ALL THE NEWS THAT’S FIT TO PRINT”--PLAYS FAST AND LOOSE WITH THE TRUTH ON MATTERS PERTAINING TO FIREARMS.

The NY Times inappropriately uses an opinion piece, that belongs in the Op Ed section of the paper, as a news piece because the paper illustrates clearly and forcefully and unmistakably its vehement distaste for firearms in civilian hands. Value judgments belong in the editorial section, not in the news section, of a newspaper. The Times is not, it is clear, invariably, concerned with truth in reporting—certainly not on matters pertaining to firearms as the paper deliberately confuses the public rather than informs the public.The NY Times reporters, Messrs. Santora and Baker, assert that, “the law [NY SAFE] was also aimed at decreasing the damage a gunman could do by limiting the size of a clip to 10 rounds.” But, then, since Henry Bello "carried three of them," as Messrs. Santora and Baker assert, quoting an unnamed law enforcement official: “as a practical matter, Dr. Bello ‘had his 30 rounds.’” What are the Times reporters getting at here? It’s no secret.The NY Times is making a case, in customary oblique fashion that, since semiautomatic weapons generally use clips, it hardly matters how many rounds a clip may hold. An individual can carry several clips at once, easily loading them into the firearm. Thus, the Times is making a not very subtle suggestion that the NY SAFE Act should be amended to ban semiautomatic weapons, along with their component parts, and ammunition for the weapons, altogether.In the same article, the NY Times’ reporters, Messrs. Santora and Baker, play fast and loose with another point, asserting that, “while the weapon [the AM15, that Bello used], did not have some of the features it might have before the SAFE Act was passed, it was just as powerful.”Messrs. Santora and Baker description here is inaccurate. For it is not the weapon itself but, rather, the .223 cartridge that the weapon, the M4 AR-15 Rifle, happens to be chambered for, that the reporters should have referred to when using the adjective, ‘powerful.’ But, we can excuse them imprecision here on that point, as it is understood that the reporters must be referring to the cartridge rather than the weapon when they assert that the weapon Bello used, in the commission of his crimes of murder and intent to commit murder, is “powerful.”The reporters’ quote, for ostensible credibility, a law enforcement official--albeit unnamed--to buttress the claim that the .223 cartridge is a powerful cartridge. Yet, we do not know who this official is other than that he is in the field of law enforcement. But, crucially, is there anything about this law enforcement official’s background to suggest the official is a ballistics and firearms’ expert? No! There is nothing to suggest that.Messrs. Santora and Baker, assert, further, quoting, apparently the same law enforcement official: “‘They [the gun industry] turned an AR-15’s aiming and firepower into a World War II rifle without the bolt action.” This statement is either erroneous or ambiguous and vague. We must ask: what World War II rifle is this law enforcement official referring to? If he is referring to the standard U.S. Army issue rifle issued to troops during World War II, that rifle would be the M1 .30-06 Garand. But, the M1 .30-06 Garand Rifle was semiautomatic in operation, not bolt action, and it did use a high-power cartridge: the .30-06—a cartridge that is still much in wide use today, especially in hunting rifles, for taking down large game, such as deer, moose, antelope, and bear. If the law enforcement official, whom the Times reporters quote, is in fact referring specifically to a standard bolt-action World War II rifle, then that official may be referring to the Model 98 Mauser Rifle, that the Germans referred to as the Gewehr 98. The Gewehr 98 was chambered for the 7.92 millimeter cartridge—essentially equivalent to the U.S. M1 Garand Rifle that is chambered for the .30-06 cartridge. The Gewehr was a standard issue rifle of German Infantry troops during World War II, and it was manufactured for German troops in several configurations, all of which operated by bolt action. They were not semiautomatic in operation, unlike the U.S. Army’s M1 .30-06 Garand.The official, whom Messrs. Santora and Baker quote, also says, wrapping up the Times article: “It was point and shoot for him [Bello] because he was shooting up close, and the lethality here was enhance by the large rounds—the .223 that’s in that weapon—as opposed to a handgun or something else.”The law enforcement official, whom the Times reporters quote, says the .223 cartridge are “large rounds.” But, is the .223 cartridge a large round? What does the expression “large round” mean? Do firearms experts even use expressions “large round” or “small round” to describe cartridges?

AMMUNITION CARTRIDGE BASICS

To weapons experts, cartridges fall into one of three major categories or groups. One group includes handgun cartridges. These are generally the least powerful cartridges. The second group of cartridges is referred to as intermediate cartridges. The third group of cartridges includes high-power cartridges.Within each group of cartridges, experts describe cartridge characteristics. These characteristics break down into discussions of the case; the primer; the propellant; and the projectile. The expression, ‘large round’ or ‘small round’ is inherently vague and therefore essentially meaningless and arms and ballistics experts do not use those words as technical terms.What can we say, generally about these three different groups of cartridges that is still essentially accurate? Handgun cartridges are the “weakest” in terms of power.** The .223 cartridge, a typical ‘assault rifle’ cartridge, falls in the intermediate cartridge range. There is a reason for this. Assault rifles, in full auto mode are difficult to control. That is one salient reason the military uses a round .223 round cartridge for the rifle instead of a high-power cartridge, such as the ,30-06. Incidentally, the .223 cartridge round is essentially identical to the 5.56 cartridge, although experts may wish to argue the intricacies of the point. The 5.56 cartridge is designated in millimeters and is the standard NATO round in use by the military of NATO Countries today.Note: the Anderson Manufacturing AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle can be chambered for both rounds since, once again, they are essentially identical. But the salient point here is that both rounds are not deemed, in the arms industry, to be “powerful” cartridges. The term, “high-power,” as applied to cartridges, is a term of art. It applies to many cartridges, but not to the .223/5.56. High-Power cartridges have no use in selective-fire assault rifles due to control issues in full auto mode.If a military assault rifle were chambered for a typical high-power cartridge such as the .30-06—the round utilized in the semiautomatic M1 Garand Rifle—such round in an assault rifle would be useless for hand-held full auto fire because a soldier would find the weapon extremely difficult to control. This is one salient reason that the intermediate cartridge—the .223—was developed by the military for the assault rifle. In full auto mode, a soldier can fire his weapon effectively, controllably, with this round. The .223 also is an effective round for hunting small varmints, such as ground hogs. But, it is ineffective for taking down larger game, such as deer. That is why, once again, many large game rifles are chambered for the powerful .30-06 cartridge.The .223 also has distinct advantages for civilian defensive use. The cartridge is frangible. That means it is designed to disintegrate when it comes into contact with a hard surface. A .30-06 cartridge, on the other hand, can easily penetrate hard surfaces. So, if the Times writers, Santora and Baker, through the law enforcement official they quote are claiming the .223 cartridge is large and/or powerful—suggesting that it is on par, say, with the firepower of a typical rifle cartridge used to hunt large game—they are simply wrong and, more to the point, the law enforcement officer they rely on, for technical firearms and ballistics information, is himself wrong--feeding the reporters with false information, regarding the AM15 Optic Ready .223/5.56 Caliber M4 AR-15 Rifle and regarding the .223 cartridge. These reporters should have corroborated the claims made by the official with whom they spoke to ascertain if that official was in fact a firearms or ballistics expert. Obviously, that official doesn’t strike us as a firearms or ballistics expert, given his purported remarks. But, if Messrs. Santora and Baker were to insist that the official whom they quote is in fact a firearms or ballistics expert, the official certainly doesn’t come across as such, to us, predicated on what the official says in the Times article. Messrs. Santora and Baker did not, apparently, corroborate what the law enforcement official, whom they quote, had said. If they did attempt to corroborate the points made by the law enforcement official they quote, they would have most certainly found discrepancies. Perhaps the reporters did find discrepancies, but decided to ignore those discrepancies anyway because the truth would not have fit the narrative they sought to present to the public. But, that would suggest they had little regard for the truth in their presentation. As with the fictional “assault weapon” itself that the reporters, Santora and Baker talk about, the article presented is essentially an Op Ed propaganda piece masked as a news story.The New York Times presents false information pertaining to firearms and ammunition, passes that information off as factually true, and uses that information in an Op Ed piece, itself disguised as a factually true and neutral news article. The newspaper does this to buttress a narrative. It is a narrative which the public has seen many times before and, undoubtedly, will see many times to come. It is this: “assault weapons are weapons of war and ought to be banned outright.” The verbiage may change slightly here and there. But, the message is always the same, droning incessantly on and on again ad nauseum. It is a message intended not to educate the American public, engaging the public’s intellectual faculties, but, rather, one designed to stir the emotions of the public—the “lizard” part of the brain.

WHAT IS THE ENDGAME OF THE NEW YORK TIMES ON THE MATTER OF FIREARMS OWNERSHIP AND POSSESSION?

The points made here are not insignificant as they have quite profound social, and political and legal consequences for the right of the people to keep and bear arms under the Second Amendment to the U.S. Constitution and, secondarily, for the credibility of the Times and similar mainstream media news publications. The Times newspaper, in the Santora and Baker news article, is attempting to make the case for restricting the right of the people to keep and bear arms through an ever more restrictive NY Safe Act, but they are making their case through inaccurate statements.Incidentally, hunting rifles that are chambered for the high-power .30-06, do not—presently at least—fall within the domain of ‘assault weapons,’ and are perfectly legal for a person, who is not under disability, to own, in New York. We would like to ask Times reporters, Messrs. Santora and Baker, whether hunting rifles, that are chambered for the .30-06 ought not also to be placed under the category of “assault weapons” since the .30-06 as a high-power cartridge, is certainly much more powerful than the .223, the latter of which is designated as an intermediate cartridge, in terms of power. But, then, we know the answer. A ban on all firearms is the endgame of the gun grabbers. If pressed, Messrs. Santora and Baker would likely admit as much, as would the publisher and editors of the New York Times.

TRUTH IS A RELATIVE CONCEPT FOR MAINSTREAM MEDIA—RELATIVE TO THE NARRATIVE THEY WISH TO CONVEY TO SUSCEPTIBLE MINDS.

For a newspaper that prides itself on the truth, the NY Times demonstrates a considerable lack of it when it comes to an understanding of firearms and ammunition and of firearms’ and ammunition nomenclature. But, then, the NY Times has no desire to inform the reader with facts. The NY Times, as with other mainstream newspapers and like-minded mainstream media outlets, are interested in conveying the same tiresome message—as they always do whenever and wherever a tragedy with firearms occurs. It is that firearms of all sorts should be—must be—banned.The fact that millions of average law-abiding citizens in our Country, unlike those subjects in Australia and those in the nations of Western Europe that comprise the EU, have successfully defended their lives and those of their loved ones against brutal attacks by savage criminals does not, apparently, enter into their equation. But, then, antigun groups, antigun legislators and antigun media types aren’t really concerned about the life of any one individual. They are only interested in the well-being of the hive, of the collective; and that hive—that collective—is well served when it is controlled. Their agenda is not the safeguarding of the Nation’s Second Amendment to the U.S. Constitution. Indeed, it is quite the opposite. They seek to destroy this Country’s heritage, along with the Bill of Rights, as the framers of the Constitution understood it to mean, and that meaning is not to be toyed with.Our history is not to be erased, and rewritten to conform to the New World Order--a deeply troubling phrase that Senator John McCain oddly used, and used several times, one Sunday, on Meet the Press, when interviewed by the network host, Chuck Todd. Curiously, Chuck Todd never once asked the Senator to explain his use of that phrase, and McCain, for his part, although emphasizing the expression through repeated use of it, during the Sunday morning show, never bothered to explicate the bizarre, disturbing phrase himself. Yet, he must have realized that the expression has specific negative connotations and associations for Americans who hold our Free Republic and Constitution dear, and he must have given serious thought to use of the expression but never bothered to explicate it or provide a reason for using it at all during the interview. Our Nation is not a product of nor is it to be reformed and transformed, like so much clay, into something completely alien to our founders’ conception of our Nation as a free Republic. We see the forces that crush our Nation and its citizenry through the insidious ideas manifested in non-American conceptual constructs such as: democratic liberalism, multiculturalism, bilingualism, neoliberalism, and globalization.We, Americans, are not and do not ever wish to be construed as “citizens of the world.” We are citizens of the United States and shall forever remain so. We do not seek nor ever wish to gratuitously open our borders up to everyone.We shall maintain the integrity of our Nation’s borders. We shall maintain our Nation’s singular language: English. We shall use our military first and foremost to protect our Nation’s interests and our Nation’s security. And, we will never compromise the right our framers bequeathed to us in our sacred Second Amendment. This is what we must defend at all costs if our Nation is to survive against the insidious currents that seek to deprive us of our birthright—that seek the very end of the concept of the ‘Nation State.’Mainstream media organizations such as the New York Times orchestrate against the preservation of our Nation—against the idea of a free Republic as our founders intended it. They construe our Bill of Rights in a manner alien to our framers’—alien to the meaning inherent in the rights and liberties codified in the Bill of Rights as the framers drafted it.The Second Amendment has no place in the World as the New York Times and other mainstream media organizations envision it, as they would like it to be, as their overseers, the wealthy, secretive group of so-called “elites”—internationalists and trans-nationalists wish to transform it—to remold it—in a way inapposite to the principals laid down by the fathers’ of our Nation.The mainstream media, echoing the interests, concerns, and aims of their internationalist, trans-nationalist overseers and benefactors do not believe in the right of each individual to be individual, to be left alone. So, they do not believe in natural right of the people to keep and bear arms.The New York Times and other mainstream media organizations, at the behest of their internationalist, trans-nationalist overseers, desire no less than absolute control over the individual. That entails destroying the right of the people to be free from unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution, and that means, as well, destroying the right of the people to keep and bear arms under the Second Amendment to the U.S. Constitution.Firearms in the hands of the American citizenry are an anathema to those who seek absolute control. Americans are perceived by these “elites,” who owe allegiance to no Country—as no more than a mass of bees that make up a hive. Firearms in the hands of the citizenry do not allow for orderly control and, so, firearms must be eliminated from the hands of the citizenry—from the hands of the multitude of worker bees of the hive.The internationalist, trans-nationalist “elites” are not really concerned about gun violence caused by criminals, by gang members, by terrorists, by the occasional lunatic. No! they are concerned about guns in the hands of the average, rational, law-abiding citizen. It is the average, sane, law-abiding citizen that these “elites” truly fear and that fear is reflected in the restrictive gun laws that exist today. That fear is reflected in ever more restrictive gun laws they seek to see enacted. But, these “elites,” through the New York Times and through similar publications and through other mainstream media outlets say that such restrictions on access to guns and ammunition are ultimately for the good of the people. What they really mean, though, is that such gun restrictions operate for the benefit of the “elites” who seek to clamp down on the American citizenry. They seek to enact restrictive gun laws for their own good, clearly to the detriment of the American people. Restrictive gun laws operate as, and are designed to operate as, constraints on the people. Restrictive gun laws do not operate as and are not designed to operate for and never were designed to operate for the good of the American people. But, these internationalist, trans-nationalist “elites”, through their public loudspeakers, the mainstream media, would not, of course, say that.What these so-called “elites” propose for Americans is the end of all that Americans hold precious, the end of all that Americans hold dear: the end of Americans’ sacred rights and liberties, codified in the Nation’s Bill of Rights. The “elites,” see this as necessary. They see this as the way things should be, must be, if their dream of a New World Order is to become a reality. So, they argue that such restrictions and repressions on firearms ownership and possession and such restrictions and repressions on other natural rights and liberties are truly, manifestly, for our own good, of course.What is good, and right, and natural is, they believe, just a matter of perception. Change one’s perceptions and you change one’s reality—you change one’s sense of what is just and proper. And, the forces that crush this Nation and its people into submission intend to do just that: to change our perceptions, to change our attitudes and perceptions toward guns and to change our attitudes and perceptions toward everything else that we hold dear: our history, our heritage, our values. The forces that crush seek to change everything that makes us, uniquely, Americans. The forces that crush seek to change our reality—to change the idea that we, Americans, are unique, and to destroy the notion that our uniqueness is expressed and reflected first and foremost, in the natural right of the people to keep and bear arms.Loss of this one unalienable right—the right of the people to keep and bear arms is sufficient to destroy our Nation’s identity; it is sufficient to effectively disable and disassemble the U.S. Constitution; it is sufficient to break our Nation’s back and our Nation’s spirit. That is what the gun grabbers want. That is what they seek. That is what they have worked and continue to work relentlessly, unceasingly, consistently, and strenuously toward.____________________________*The prefix, “AM,” refers to the manufacturer, Anderson Manufacturing. The prototypical rifle, the “AR-15,” with the prefix, ‘AR,’ does not denote ‘Assault Rifle,’ contrary to what some people might think. Rather the prefix, “AR,” refers, to the manufacturer of that semiautomatic rifle, “ArmaLite.” The original “AR-15” “Assault Rifle,” prototype became the standard arm for the U.S. Army foot soldier during the Vietnam War.The U.S. Army reluctantly adopted the M16 assault rifle as the standard infantry rifle in lieu of the M14 selective-fire rifle it had much preferred—as a replacement for the World War II M1 Garand rifle, that, in design, the M14 superficially resembled.The military M16 “Assault Rifle” had several variants and was chambered for the 5.56 millimeter cartridge. The 5.56 millimeter NATO round, is a cartridge essentially identical to the 2.23 caliber cartridge round that many semiautomatic rifles, manufactured for the civilian market, are chambered for—semiautomatic rifles that continue to be described by the mainstream media, inaccurately, as military “assault rifles” or, otherwise, for political propaganda purposes, described as “assault weapons”—a fictional phrase that has no recognized meaning in military or firearms industry argot. Often the two expressions, ‘assault rifle’ and ‘assault weapon,’ are used interchangeably by the mainstream media, antigun groups, and antigun politicians when talking about semiautomatic rifles manufactured for the civilian market. The two expressions are not synonymous, and the use of the two expressions, interchangeably by mainstream news organizations, does nothing to enlighten the public, and does much to illustrate the ineptitude and sloppiness of journalists and commentators when reporting news.**There do exist handguns chambered for .50 caliber cartridges and there even exist a few exotic handguns chambered for the .60 caliber cartridge —the latter of which are found in atypical, novelty handguns. Handguns that are chambered for the .60 caliber "nitro express" cartridge likely are not designed to be fired at all—given, arguably, the sheer difficulty, if not virtual impossibility, for most individuals to be able to hold onto the weapon, once having fired it, let alone maintaining the ability to shoot such weapons accurately. Such handguns certainly do not have utility in any common real world application, whether for law enforcement, for the military, for hunting or for self-defense. More likely, handguns chambered for such cartridges are "show pieces"--curiosities only, designed for the collector--to be showcased in gun collection displays but not actually to be used. Both cartridges, the .50 caliber and .60 caliber, are more powerful—much more powerful than the intermediate .223 cartridge. But, these cartridge exceptions, in handgun cartridges, do not belie the general rule regarding three major categories of cartridges: handgun rounds (generally, the least powerful cartridge rounds); intermediate assault rifle rounds; and high-power rifle or machine gun (the most powerful) rounds. Even so, the American public should keep in mind that handguns or rifles chambered for the .50 caliber cartridge or for the exotic .60 caliber "nitro express" handgun cartridge round, are not, and never were, designed, and, sensibly, never will be manufactured for use in hand-held full auto fire weapons be those weapons, selective fire assault rifles in full auto mode, or full auto only submachine guns.The .223/5.56 NATO cartridge round was specifically designed for selective fire “assault rifles,” enabling the user of those rifles to fire a round, controllably, in full auto mode. Were a high-power rifle round like the .30-06 caliber, or .50 caliber cartridge chambered for the assault rifle would render the assault rifle uncontrollable in full auto mode. Moreover, for a soldier to have to carry a substantial number of high-power rifle .30-06 caliber cartridge rounds or a substantial number of .50 caliber cartridge rounds would be unduly burdensome due to weight considerations and, too, would lessen the number of rounds the foot soldier might otherwise be able to carry on his person. ______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

DID THE FEDERAL COURTS IN THE FOURTH CIRCUIT BETRAY AMERICA’S FUNDAMENTAL RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS? IT APPEARS SO.

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

KOLBE VS. HOGAN

PART TEN

Despite the need for deference to our federal and State court systems, we must speak out and speak out harshly when it is clear, on both legal, logical, and, not least of all, ethical grounds, that a court disregards U.S. Supreme Court precedent and does so, not out of ignorance of the law as it exists, but with apparent deliberate disregard to Supreme Court law, and more so when it acts with clear disdain for Supreme Court, rendering decisions at odds with Supreme Court precedent with impunity. We certainly see the hallmarks of this in recent lower federal Court decisions and in higher federal appellate Court decisions. The disdain for U.S. Supreme Court precedent in matters involving our Nation’s Second Amendment is not, today, unfortunately, a unique, or, at worst, rare, happenstance. No! disdain for high Court rulings in matters involving our sacred Second Amendment has become no less prevalent—contrary to what Americans might think—in the decisions handed down in the seminal Second Amendment U.S. Supreme Court cases: District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and McDonald v. Chicago, 561 U. S. 742; 780, 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010).The Kolbe vs. Hogan case ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), is a case in point: a case that demands harsh criticism. The ultimate decision must be deemed no less than a betrayal; and, lest some believe we use the harsh word, ‘betrayal,’ here as mere hyperbole, we wish to controvert that belief. We are deadly serious in our choice of words to describe the ultimate decision handed down by the majority of the U.S. Court of Appeals for the Fourth Circuit.

WHY WE ASSERT THAT THE ULTIMATE DECISION OF THE FOURTH CIRCUIT COURT OF APPEALS OPERATES AS A BETRAYAL

The decision in Kolbe stands as a betrayal first because the rulings of the lower U.S. District Court that first heard the case, and the rulings of the full panel of the U.S. Court of Appeals that had the last word in the case, applied legal reasoning in clear contravention of and in contradistinction to U.S. Supreme Court case law precedent as set forth in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and in McDonald v. Chicago, 561 U. S. 742; 780, 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010).The rulings of the U.S. District Court of Maryland and those of the U.S. Court of Appeals for the Fourth Circuit that reviewed the case, en banc, cannot be reconciled with the rulings of the high Court, try as some jurists on those Courts might, opining that Maryland’s outrageous gun legislation does not offend the Second Amendment and, therefore, that it is consistent with or otherwise compatible with the holdings and reasoning of Heller and McDonald. Yet, the fact of the matter is that the rulings and reasoning of the U.S. District Court of Maryland, and of the full panel of the U.S. Court of Appeals for the Fourth Circuit that had the final word in the case, are not consistent with the rulings and reasoning of the high Court’s majority and cannot be legally or logically reconciled with those rulings and reasoning, and, so, operate as blots on our case law—opinions resisting high Court rulings—manifesting a federal Circuit’s defiance of a bedrock principal of U.S. jurisprudence: adherence to case precedent. The ultimate rulings in Kolbe vs. Hogan operate as a betrayal, second, on an elemental level. They operate as a betrayal to our Constitution, to our Nation, and, not least of all, to the American people, namely and specifically, as a betrayal of the natural right of self-defense existent in the right of the American people to keep and bear arms. The rulings of the lower U.S. District Court, as affirmed by the full panel of the U.S. Court of Appeals for the Fourth Circuit, defiantly and decisively and rudely attack this sacred, fundamental right of the U.S. citizenry as codified in the Nation’s Second Amendment of the Bill of Rights.How did the federal Courts of the Fourth Circuit display their disenchantment with the right of the people to keep and bear arms and by what tortuous reasoning did those Courts come to disenfranchise a substantial number of American people of their natural right to keep and bear arms?

THE U.S. DISTRICT COURT OF MARYLAND HAS FIRST CRACK AT THE OBSCENELY RESTRICTIVE FIREARMS SAFETY ACT OF MARYALND

Before the Kolbe case wended its way to the U.S. Court of Appeals for the Fourth Circuit for an en banc review, the lower U.S. District Court of Maryland had first crack at it, and did so, falling back on its own faulty, indeed benighted, case law precedent, in clear and abject derogation to and defiance of case law precedent set by the U.S. Supreme Court. But the Fourth Circuit is not alone in their tacit condemnation of U.S. Supreme Court precedent in Second Amendment matters. Other federal Circuits have acted similarly: relying on their own faulty case law precedent and on similar rulings of sister federal Courts in other jurisdictions, such as, and principally, those of the Second, Seventh, and Ninth Circuits, and those of the D.C. Circuit—all of which continue to defy high Court case law precedent, as if to suggest that the combined rulings and reasoning of multiple Appellate Courts outweigh the singular holdings and reasoning of the highest Court in the Land, even as these Appellate Courts, as one, pretend, insincerely, to apply the rulings of the high Court in the decisions they render. The Kolbe case is simply the latest major Second Amendment case coming out of any Circuit that, as with decisions emanating from sister Courts that hold the same disdain toward the Second Amendment, reflects hostility toward, rather than deference toward the rulings, reasoning, and methodology of the high Court Majority in the landmark Heller and McDonald cases.The Kolbe case was first heard in the United States District Court of Maryland, where the case was captioned, Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976; 2014 WL 3955361 (U.S. Dist. Md. 2014). The Governor, at the time, Martin J. O’Malley, was named as a Party Defendant in the case. His name, as a Party Defendant, was replaced by that of Larry Hogan, who became the new Governor of Maryland as the Kolbe case slowly, inexorably wended its way through the federal Court system.The Kolbe case remains noteworthy in two important respects. First, the case illustrates the extent to which a federal Court will go to disregard United States Supreme Court reasoning and rulings when that lower federal Court permits its personal philosophical predilections to interfere with sound legal judicial decision-making. Second, the decision of the U.S. Court of Appeals for the Fourth Circuit that heard the case, en banc, negatively impacts the fundamental rights and liberties of the American people.But, it is one thing for a lay person to happen to hold a negative if aberrant view toward possession and ownership of firearms and toward the Second Amendment because that negative viewpoint does not of itself translate into the infringement of another American’s fundamental, natural right to keep and bear arms. It is, though, quite another thing for a jurist, deciding a case that impacts millions of law-abiding gun owners, to thrust his or her personal viewpoint on other Americans and place the judicial imprimatur on a matter that unconstitutionally intrudes on the rights and liberties of Americans who do not happen to share that jurist’s philosophical bent toward gun possession and gun ownership and, more to the point, when that philosophical viewpoint, culminating in a judicial decision, is contrary to the rulings and reasoning of the highest Court in the Land, the United States Supreme Court. But that is what we have here and what, unfortunately, we see in many lower U.S. District Court and what we see in higher U.S. Circuit Courts of Appeal decisions involving the core of the Second Amendment to the United States Constitution.

THE U.S. DISTRICT COURT OF MARYLAND’S DECISION WAS DECIDED ON MOTION; THE CASE NEVER WENT TO TRIAL.

Critical as this Second Amendment case is to the rights and liberties of law-abiding Americans, the case never went to trial. The U.S. District Court of Maryland decided Kolbe on Motion, specifically on arguments presented in Defendants’ Motion for Summary Judgment (“MOSJ”). An MOSJ is governed by Fed R. Civ. P. 56(a). How does that Rule work?Fed R. Civ. P. 56(a) sets forth that a Party’s Motion will be granted only if the movant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. But, an MOSJ requires a Court to consider the Motion in a light most favorable to the nonmoving Party, in this instance, the Party Plaintiffs, Plaintiff Kolbe and others. Did the Court follow this directive of the Rule? Hardly!

THE CENTRAL ISSUE BEFORE THE U.S. DISTRICT COURT OF MARYLAND THAT HAD FIRST STAB AT KOLBE.

How a Court frames the issues before it, often goes a long way, in determining how that Court will ultimately decide a case.The central question before the U.S. District Court went to the constitutionality of Maryland’s Firearm Safety Act. What does the Act say? In critical part, it says this:The Firearm Safety Act of 2013 provides in general that, after October 1, 2013, a person may not possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat   weapons’ (together, ‘assault weapons’). Md. Code Ann., Crim. Law (‘CR’) §§ 4-301(d), 4-303(a)(2). In addition, the Act states that a person ‘may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm.’ Id. § 4-305(b). A person who violates the Act ‘is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both,’ although different penalties are provided for a person who uses an assault weapon or LCM in the commission of a felony or a crime of violence. Id. § 4-306.” The Firearm Safety Act of 2013 is a highly restrictive gun control Act. Maryland’s gun control attacks the very core—the very heart—of the Second Amendment and it does so in a particularly blatant fashion. No doubt about it. The Party Plaintiffs rightly, appropriately challenged the constitutionality of it, asserting that a State ban on firearms lumped into the amorphous category, ‘assault weapons,’ and a ban on critical components of those firearms, referred to as “LCMs” (large capacity magazines), impermissibly violates the Second Amendment. Plaintiffs also argued the Act violated the Equal Protection Clause of the Fourteenth Amendment and that the Act is void for vagueness.For relatively quick final resolution of the case both Party Plaintiffs and Party Defendants, together, agreed the District Court ought to bypass consideration of Plaintiffs’ prayer for a preliminary injunction and should proceed immediately on consideration of the case on its merits. The Court did so.

THE SECOND AMENDMENT CHALLENGE

Did the Court prejudge the case? Consider: In the first paragraph of the Opinion, the Court asserted, “On May 16, 2013, in the wake of a number of mass shootings, the most recent of which claimed the lives of twenty children and six adult staff members at Sandy Hook Elementary School in Connecticut, the Governor of Maryland signed into law the Firearm Safety Act of 2013. The Act bans certain assault weapons and large-capacity magazines (‘LCMs’).”  Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 774; 2014 U.S. Dist. LEXIS 110976; 2014 WL 3955361 (U.S. Dist. Md. 2014).The assertion is simply a presumptive rationale for enactment of a draconian antigun Act that the U.S. District Court of Maryland bought into. It has no pertinent legal merit. It should not have been included in the Court’s Opinion.If the U.S. District Court felt compelled to make the assertion, the Court could have done so and ought to have done so merely in a footnote to the Opinion, as a parenthetical matter. Instead, the Court’s assertion became the touchstone of its decision—the paramount ground upon which it rendered its decision, having agreed that Maryland’s public policy objective justified banning an entire category of weapons, commonly used by millions of Americans, thereby accepting, on its face, the constitutionality of the governmental action, rather than scrutinizing it in terms of its deleterious impact on a fundamental Constitutional right.The District Court’s analysis was wrong, blatantly wrong. In fact, the late Justice Antonin Scalia, writing for the majority in District of Columbia vs. Heller, pointed out—cautioned Courts of review—that certain policy choices are off the table precisely because they effectively and essentially obliterate exercise of the right of the people to keep and bear arms enshrined in the U.S. Constitution. Justice Scalia said this:“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns [citation omitted]. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." District of Columbia vs. Heller, 554 U.S. 570, 636; 128 S. Ct. 2783, 2822; 171 L. Ed. 2d 637, 684 (2008), The U.S. District Court did not heed Justice Scalia’s directive. Instead it went its own way, either oblivious to the import of Justice Scalia’s warning or exhibiting a deliberate disdainful attitude toward it.

WHAT IS THE APPROPRIATE STANDARD OF REVIEW A COURT SHOULD EMPLOY WHERE THE VERY CORE OF THE SECOND AMENDMENT IS ATTACKED?

Since the standard employed will have decisive impact on the result obtained, it is incumbent on a Court of competent jurisdiction to use the correct Standard of review. There are three traditional standards of review: rational basis, intermediate scrutiny, and strict scrutiny. These three standards of review of a governmental action may be considered tiers or levels of scrutiny. What are the differences? Generally, as one scholar asserts “The essential difference among rational basis review, intermediate scrutiny, and strict scrutiny lies in the extent to which the Court is willing to examine empirically the nexus between the challenged statute’s ends and the means by which they are sought. Depending on which test is applied, the classification must either be ‘rationally related,’ ‘substantially related,’ or ‘narrowly tailored’ to a ‘legitimate,’ ‘important,’ or ‘compelling’ state interest. The varying levels of scrutiny used to keep the state in line with the Constitution represent the reality that while policymakers are granted considerable leeway in achieving societal goals, there are occasions where we prefer not to grant them a presumption of benevolence in their policy choices.” NOTE: HIV-Positive, Equal Protection Negative.” 81 Geo. L.J. 375, 383, by Sean Doyle, J.D., Georgetown University. Although the focus of that article is directed to the “extent to which traditional equal protection jurisprudence and the current Supreme Court will protect individual rights when policymakers attempt to control the spread of AIDS,” Id. at 378, the author’s brief description of the salient differences among the traditional standards of review have general application. The author of the Note added this remark: “When it is likely that ignorance, prejudice, or antipathy has informed the judgment of policymakers, courts will review the legislation from a more critical standpoint in order to safeguard the equitable promise of the Equal Protection Clause.” “HIV-Positive, Equal Protection Negative.” 81 Geo. L.J. 375, 383, by Sean Doyle, J.D., Georgetown University. That remark is more of a hope than a promise for, where, as here, a Second Amendment issue comes before a federal Court where a Court is biased against an American’s exercise of his or her Second Amendment right to keep and bear arms, that Court will invariably find an infringement of the right to be acceptable, notwithstanding the extent to which the infringement of the right is particularly onerous, even absolute.The question we must ask here is: how do these three standards “stack up” when a Second Amendment challenge to a Governmental action is raised? And, more to the point, we need to ask: should a Court even invoke a standard of review when it is evident that the core—the very heart of the Second Amendment—is attacked? And, if no standard of review should be employed, what does that mean? How is a challenge to a Statute that attacks the Second Amendment--a Statute that attacks the very core of the Second Amendment-- to be resolved?These questions would not have been given serious consideration—a few of them might not have even been asked—prior to Heller and McDonald, but, post Heller and McDonald, a Court of review must be mindful of these questions and be ready to answer them and be wary of any governmental action directed against the Second Amendment.Government actions that impinge on and infringe upon the Second Amendment—should reasonably, at the very least, invoke the highest level of review—strict scrutiny and, if that standard of review were properly employed, any highly restrictive gun legislation would be summarily struck down. And, where the very core of the Second Amendment is attacked, a governmental action that attacks the very core of the Second Amendment should be summarily struck down without need of a Court to resort to any standard of review. {We will discuss this latter idea in detail, in a future article}.Yet, the Second Amendment has been, for decades, in many federal and State Courts, treated as a secondary, subordinate right rather than as a fundamental right, notwithstanding that its station in the Bill of Rights is overt, manifest--not left to conjecture. Be that as it may, some federal Circuits, to this day--and in clear contravention to the dictates of Heller and McDonald--still use rational basis--the most lenient--standard--to test the constitutionality of even the most draconian of gun laws such as, and particularly, the New York Safe Act which was signed into law by Governor Andrew M. Cuomo in January 2013.The New York Safe Act is the model for restrictive gun legislation in various jurisdictions across the Country. Antigun Legislators in Congress had hoped the NY Safe Act, operating in the vanguard for federal legislation, banning so-called “assault weapons” and so-called "high capacity magazines," would pave the way for such federal legislation. Recall that the Majority Speaker of the House—at the time, Harry Reid (D-Nevada)—would not allow Senator Dianne Feinstein’s notorious bill, the"Assault Weapons Ban of 2013," introduced in January 2013, on the heels of the NY Safe Act, to come up for a vote on the Floor of the Senate. Dianne Feinstein was furious, but could do nothing to change Senator Reid’s mind. Reid realized that he did not have the votes. But, had Dianne Feinstein’s bill been enacted, it would have banned, nationally, 150 semiautomatic weapons, along with magazines that hold more than ten rounds of ammunition. Now that a Republican Majority holds both Houses of Congress, the possibility of federal antigun legislation is, thankfully, dead and buried. So efforts of antigun politicians and groups have now been redirected toward exacting a toll on the Second Amendment through enactment of semiautomatic weapon bans and "LCM" bans piecemeal across the Country--which, time-wise, is a lengthy, drawn-out process, but one which antigun groups and their friends in Congress and in State Legislatures and in the mainstream media are grudgingly accepting.One way to throw a wrench in the efforts of antigun groups is for Republicans to use their Majority position to enact National handgun carry reciprocity legislation. A second way is for the U.S. Supreme Court to hear the Kolbe case and to reverse the decision of the U.S. Court of Appeals for the Fourth Circuit. Both sequence of events can occur in tandem if both Congress and the U.S. Supreme Court have the will to proceed to assert the right of the people to keep and bear arms, as the framers of our Constitution fully intended.The latest example of a State sponsored semiautomatic gun ban--and one operating as a suppurating sore on the Second Amendment--is Maryland’s Firearm Safety Act—an Act that can potentially impact States beyond Maryland—namely, and specifically, those within the jurisdiction of the Fourth Circuit. Those States in the ambit of the Federal Fourth Circuit, apart from Maryland, include North and South Carolina, Virginia, and West Virginia. Governments of each of those States may impose the same bans on possession of similar semiautomatic weapons and on so-called “LCMs,” knowing that the U.S. Court of Appeals for the Fourth Circuit has already given its blessing on such onerous gun laws that may be enacted in the States of that Circuit.

THE U.S. DISTRICT COURT OF MARYLAND'S HORRIBLE, DISASTROUS, ERRONEOUS DECISION PAVED THE WAY FOR THE DECISION OF THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT, EN BANC, THAT AFFIRMED THE DECISION OF THE LOWER COURT, FINDING MARYLAND'S FIREARM SAFETY ACT NOT TO OFFEND THE SECOND AMENDMENT TO THE U.S. CONSTITUTION, ALTHOUGH THE DECISION STANDS IN CLEAR, ABJECT CONTRAVENTION TO U.S. SUPREME COURT REASONING AND LAW.

The U.S. District Court of Maryland handed down a decision favorable to the Government of Maryland. On the Second Amendment issue the Court said, inter alia: “the evidence demonstrates that the banned weapons pose a threat to law enforcement and public safety because of a combination of features of which the ability to penetrate soft body armor is just one [citation omitted]. Once finding that the ban will sufficiently further the government's substantial interests in protecting public safety and preventing crime—including murders of police officers—to pass intermediate scrutiny, the court cannot question the legislature's judgment that the Firearm Safety Act was the appropriate balance of various interests when compared to other possible regulations.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 796 (D.C. Md. 2014). The U.S. District Court applied “intermediate scrutiny.” having applied that standard of review, would there be --could there be--any doubt as to the outcome? None, of course. The Court concluded, saying, “In sum, the defendants have met their burden to demonstrate a reasonable fit between the Firearm Safety Act and the government’s substantial interests in protecting public safety and reducing the negative effects of firearm-related crime. Accordingly,  the Act does not violate the Second Amendment. Kolbe vs. O’Malley, 42 F. Supp. 3d at 797.But how did the U.S. District Court come to apply intermediate scrutiny in Kolbe? Through what tortuous legal and logical reasoning did the U.S. District Court of Maryland come to believe that intermediate scrutiny was the appropriate standard of review to be used to test the constitutionality of Maryland’s Firearm Safety Act—an Act that banned outright any firearm the State Government of Maryland sought, arbitrarily, to place within the domain of firearms that the State defined as 'assault weapons;' and an Act that banned outright magazines for those weapons that happen to hold a number of rounds that the Government arbitrarily deemed to be illegal for the average law-abiding American residing in Maryland to own and possess?We deconstruct the U.S. District Court’s reasoning in the next article of this continuing series.______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY IS THE ANSWER TO INTERNATIONAL ISLAMIC TERRORISM IN THE UNITED STATES.

On January 3, 2017, Richard Hudson, (R-NC), introduced the Concealed Carry Reciprocity Act of 2017 (115 H.R. 38) in the House of Representatives. This Bill, if enacted would allow an individual “who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that has a statute under which residents of the State may apply for a license or permit to carry a concealed firearm; or does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.” What is the status of this bill? It languishes in Committee. Nothing is being done on it, but momentum is building across the Country to compel Congress to take action. Antigun politicians are angered and frightened that national concealed handgun carry will become a reality. In response, they create unsound, bogus arguments directed to containing the very possibility of it. Case in point: Manhattan District Attorney Cy Vance, according to an article by Mark Moore, appearing in the June 25, 2017 edition of the New York Post, titled, “DA: I am sure ISIS supports concealed carry reciprocity bill, asserts, ludicrously, that national concealed handgun carry will play into the hands of Islamic terrorists. This is merely a new twist on the favorite tired line of antigun groups—that this Nation has a gun problem—as if to suggest that guns, inanimate objects, are responsible for criminal violence. That idea is not only false, it is imbecilic. Sentient beings are responsible for violence, and it is those beings who engineer violence who are to be constrained, not the implements the perpetrators use to promote and do violence.Of course, as we have seen, most notably, in Europe, but also here at home, Islamic terrorists don’t demonstrate a preference toward any one implement when destroying lives: bombs, knives, axes, gasoline, even trucks and automobiles as well as firearms are used--and often several of these implements in one horrific act of violence have been used--by Islamic terrorists, and with devastating effect against innocent civilians--and against soldiers and against police officers as well.Why are guns singled out as the cause célèbre of violent deeds? The emphasis on guns plays into the tiresome raison d’etre of antigun groups: "get rid of guns," so they say, "and all will be right with the world." That is utter nonsense, of course, but the theme plays out in the remonstrations of politicians and as echoed in the choruses of pundits and journalists of the mainstream media through endless, insufferable iterations—an incessant cacophony of meaningless sound bites.Violent crime is a sad fact of life, but its impact can be minimized. In fact, the impact of violent crime can be and has been minimized by arming, not by disarming the American public, and the impact of violent crime can be further minimized through strict enforcement of criminal penalties against those who inflict pain and suffering on innocent Americans. The latest incarnation of violent crime, international Islamic terrorism, is a special species of violent crime, to be sure, a species of crime that must, of course, be dealt with, and must be dealt with at the highest Government levels.In the U.S., the threat posed by international Islamic terrorism is being dealt with sensibly, rationally, and directly, by the U.S. President, Donald Trump. An armed American citizenry can certainly aid the U.S. President in his efforts.Courts in the Ninth Circuit though disagree. Not content merely to disarm the American public—inhibiting Americans from exercising their natural right of self-defense with the best means available—a firearm—the Courts of the Ninth Circuit have attempted to throw a wrench into the President’s efforts as well—opining, wrongly, that individuals, non-citizens, who reside outside of this Country, have rights secured under the Bill of Rights and that, in effect, the rights of these non-citizens apparently transcend the security of this Nation and the security of its people. Non-citizens residing outside our Country, though, have no rights or liberties under our Bill of Rights and the concerns of non-citizens residing outside our Country do not transcend—will never transcend—the needs and security of the citizens of our own Nation.The U.S. Supreme Court's June 26, 2017 decision is consistent with that principle. The high Court essentially stayed the preliminary injunctions of the U.S. Court of Appeals for the Ninth Circuit, opining that the preliminary injunctions were valid only to the extent that a refugee could establish a bona fide relationship with a person or entity in the United States. Trump v. Int'l Refugee Assistance Project, 2017 U.S. LEXIS 4266. Justice Thomas, joined by Justices Alito and Gorsuch, concurred in part and dissented in part in the unanimous decision of the high Court. In his dissent Justice Thomas stated that he, joined by Justices Alito and Gorsuch, would have granted a full stay of the preliminary injunctions. Justice Thomas stated in pertinent part:"The Government has satisfied the standard for issuing a stay pending certiorari. We have, of course, decided to grant certiorari. . . . And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed. The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its “compelling need to provide for the Nation’s security.” Finally, weighing the Government’s interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of the equities favors the Government. I would thus grant the Government’s applications for a stay in their entirety."Clearly, the best defense against international Islamic terrorism and the first-line of defense for our Nation is found in an armed citizenry. To paraphrase a statement of NRA Executive Vice President Wayne LaPierre, the best deterrent against a “bad guy with a gun is a good guy with a gun.”  That may seem like a trite slogan, but, time and time again, it has been proved true.The natural right of self-defense should never be restricted and must never be trivialized. Unfortunately, those who hold an irrational hostility toward gun ownership and toward gun possession by the law-abiding citizenry will continue their efforts to constrain the natural right of self-defense. But, they are losing. They are left flailing about, trying to drum up support for their doomed cause: namely, destruction of our Nation’s sacred Second Amendment. The bizarre, irrational statements of antigun proponents, like those of the Manhattan DA, Cy Vance, aptly illustrate the extent of their desperation.The Arbalest Quarrel is a strong supporter of National Concealed Handgun Carry legislation. We provide a strong case for it in our continuing series: “A ROAD TRIP WITH A GUN.” You will find those articles and much more right here, on this website.________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved

CONNECTICUT HANDGUN LICENSING LAWS AND PROCEDURES: COMPLETING THE APPLICATION

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

The Adventures of One Law-Abiding American Citizen as He Traverses the Minefield of Firearms’ Laws, Attempting to Secure for Himself Multiple Concealed Handgun Carry Licenses from A Multitude Of Jurisdictions That He May Exercise His Fundamental Right To Keep And Bear Arms Under The Second Amendment To The U.S. Constitution For The Purpose Of Self-Defense

A Comprehensive Analysis of The Procedures for Obtaining a Concealed Handgun Carry License in Various States for The Layman

PART FOUR: THE CONNECTICUT FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE: THE APPLICATION PACKET

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

SUBPART FIVE

COMPLETING THE APPLICATION

INTRODUCTION

In the previous segment of the ROAD TRIP series, we commenced a detailed analysis of the application process for obtaining a Connecticut handgun carry permit. Mr. Wright, an American citizen and successful businessman has applied for several handgun carry licenses. He has done this because he conducts business in several jurisdictions and he carries with him substantial business assets when he travels to and through various States. He is a tempting target for thieves. Mr. Wright knows that the best defense against assault, when he is on the road, is through possession of handgun. Mr. Wright is thoroughly trained in the safe handling of a handgun and he has had special training in the use of a handgun for self-defense in critical life-threatening situations.We laid out for you, in the previous segment, SUBPART FOUR, all the documents the Special Licensing and Firearms Unit of the Division of State Police provides in the information and application packet. In this segment, SUBPART FIVE, we take a close look at the formal “PISTOL PERMIT/ELIGIBILITY CERTIFICATE APPLICATION." This Application is four pages in length—two pages folded over, in dark blue heavy stock paper. The first page lays out the instructions. There are three columns: one, “Instructions for State Pistol Permits,” (which applies to residents of Connecticut); two, “Instructions for Non-Resident State Pistol Permits;” and, three, “Instructions for Eligibility Certificates to Purchase Pistols or Revolvers and/or Eligibility Certificates to Purchase Long Guns.”As we are following the procedures for completing applications for handgun licenses that Mr. Wright—a law-abiding U.S. citizen and successful businessman who we use as our example in this exercise—followed, we see Mr. Wright and his attorney and professional security consultant, reviewing the application. Since Mr. Wright is a non-resident, Mr. Wright first checks off the box for a “Non-Resident State Pistol Permit.” Turning the page, Mr. Wright fills out the usual information requested—which he has done many times before, when completing applications for handgun licenses as issued in other jurisdictions. He sets forth his complete name, date of birth, vital statistics, namely, sex, height, and weight, race and sex.

A WORD OF ADVICE FOR INDIVIDUALS WHO HAVE UNDERGONE SEX REASSIGNMENT SURGERY OR WHO WISH TO CLASSIFY THEMSELVES AS TRANSGENDER AND WHO IDENTIFY WITH A SEX OTHER THAN THEIR BIOLOGICAL (BIRTH) SEX.

Given changing societal norms, matters that have, for decades, never been an issue but that are slowly manifesting as new issues in employment, in schools in the military and in government, generally may create conundrums for applicants.It goes without saying that those parties authorized to prosecute applications for firearms’ licenses and permits are not permitted to discriminate on the basis of age, sex, race, religion, national origin, and that likely includes sexual orientation. Now, the matter of sex identification is a complex subject. Much legislation and litigation is or will be ongoing for some time to come. So, prior to specific legislation and Court rulings on the matter of sex, how should a person who, say, was born a man, but who identifies as a woman, complete an application for a firearm’s license or permit, when that person is instructed to set forth sex?For those who have not undergone sex reassignment, one should check the box that refers to their sex at birth—namely, their biological sex. Even for those who have undergone sex reassignment, it is probably best to indicate one’s sex at birth. Remember, the purpose here is to obtain a handgun license. Do not attempt to get into a philosophical fight with the firearms’ licensing official. You will lose. Nor should you leave the entry pertaining to sex, blank. The licensing official will assume that you had simply forgotten to enter your sex and this will delay prosecution of one’s handgun license. That goes for the issue of one’s race. A person may not wish to check off the appropriate box. There are six categories for race, and they include a category for “unknown.” Do not refrain from checking off at least one box on the application form. For, once again, if you leave this category blank, that will only delay prosecution of the application.If there is any doubt as to the appropriate course of action, you should contact a licensed attorney.For, Mr. Wright, the completion of this section on vital statistics was simple enough to complete. Mr. Wright is male, and white. He completed the entry for his height, weight, date of birth, place of birth and Country of Citizenship. Mr. Wright is a citizen of the United States.

IMPORTANT NOTE FOR THOSE INDIVIDUALS WHO ARE NOT LEGAL RESIDENTS OF THIS COUNTRY.

For those individuals who do not reside in this Country legally, do not attempt to complete this application. The licensing official will deny your application. If you do reside in this Country legally, there is a box on the application form requiring you to set forth your “alien registration number.”

RESIDENTIAL AND MAILING ADDRESS AND EMPLOYMENT HISTORY

In this section of the Application, the Special Licensing and Firearms Unit of the Division of State Police of the DESSP, requires applicants to provide residential address—which includes addresses for the last seven years, from the date of the application, if the applicant has changed residences, and a mailing address (if different from residential address). Note, if residential address and mailing address are different, this may cause the Special Licensing and Firearms Unit Officer to flag the application.The applicant must also provide the name, address, and telephone number of one’s employer. If the applicant has had several employers, then the applicant must list the name, address, and telephone number of each employer that that applicant worked for during the last seven years. Be specific and do not refrain from listing every employer.Mr. Wright, for his part, is self-employed and has been self-employed for many years. So, Mr. Wright listed his Company as employer, the address of his main business offices, and his business phone number.

"PERMIT/ELIGIBILITY CERTIFICATE APPLICATION”

Every section of the Application is critical. But, some sections raise red flags. This is one of those sections. This section of the application requires the applicant to indicate whether he or she has had an application for a firearm’s permit “denied,” “suspended,” “revoked,” from any jurisdiction. Mr. Wright has several firearms’ permits and licenses issued by appropriate licensing authority from multiple States and, as required, from various jurisdictions within a State—as is the case with the State of New York, as Mr. Wright has handgun licenses issued by the appropriate licensing authority for New York City and for Nassau County, Long Island, New York. Mr. Wright has never had a firearm’s license permit, denied, suspended, or revoked and he checks off the appropriate box to indicate that fact.For those individuals who have applied for a firearm’s permit or license and a permit or license has been denied, suspended, or revoked, you must indicate that fact and give the particulars, by identifying the jurisdiction that denied, suspended, or revoked the application, the date of denial, suspension, or revocation, and the reason for the denial, suspension, or revocation.DO NOT LIE! And, do not refrain from indicating a denial, suspension, or revocation, that you might have, for that is tantamount to lying on the application. While admitting a denial, suspension, or revocation does raise a red flag, this does not constitute an automatic denial of your application. Lying does. You will find that The Firearms and Special Licensing Unit of the Division of State Police unforgiving of outright lies. On the other hand admitting a denial, suspension, or revocation of a handgun license does not mean that you will not receive a permit. The Firearms and Special Licensing Unit of the Division of State Police is mindful that, in some jurisdictions, securing a handgun license or permit is very difficult and that this is due to the fact that some jurisdictions are “MAY ISSUE,” not “SHALL ISSUE,” where a person seeks to secure a handgun carry license. The Firearms and Special Licensing Unit of the Division of State Police of Connecticut is certainly mindful that denial of a handgun carry permit or license may not be due to a “disability”—such as a felony arrest record—but simply due to the fact that a person does not meet the stringent requirements for obtaining a handgun carry license. Now, even though Connecticut is, itself considered a “MAY ISSUE” State for handgun carry permits, the issuance of a handgun carry permit is, for qualified individuals, much less stringent than is the case in a jurisdiction such as New York City. For, in Connecticut, the stated reason of “SELF DEFENSE” constitutes good and sufficient cause for issuance of a handgun carry permit to a qualified person. In New York City, on the other hand, “SELF DEFENSE,” as a stated reason for issuance of a handgun carry license is patently insufficient.If an individual’s application for a firearm has been denied due to “DISABILITY” that individual must indicate that fact. If an individual’s firearm’s license or permit has been suspended or revoked after issuance, the date of suspension or revocation and the reason therefor must also be stated. Once again, DO NOT LIE AND DO NOT REFRAIN FROM MENTIONING EACH AND VERY OCCURRENCE OF A DENIAL, SUSPENSION, OR REVOCATION OF A FIREARM’S LICENSE OR PERMIT! Be advised, too, that the Connecticut Application makes reference in this Section of the Application to “FIREARMS.” So don’t try to be cute and suppose that, if one had applied, in another jurisdiction for a long gun—that is to say, a rifle or shotgun—and that person has been denied issuance of a permit or license for a long gun—a person may refrain from mentioning that fact simply because he or she is applying, in Connecticut, for a handgun license. The Firearms and Special Licensing Unit of the Division of State Police has used the term, ‘Firearm,’ for a reason, when it asks an individual to indicate whether that person’s application for a license or permit, in any jurisdiction, has been denied, suspended or revoked. If the Special Licensing Unit had indicated an interest in determining whether an individual’s application for a pistol or revolver had ever been denied, suspended, or revoked, it would have made specific reference to the denial, suspension, or revocation of one’s pistol or revolver license or permit. The use of the general term, ‘FIREARM,’ here is meant to be all-inclusive.

MEDICAL HISTORY, CRIMINAL HISTORY, AND MILITARY HISTORY

The third page of “THE PISTOL PERMIT/ELIGIBILITY CERTIFICATE APPLICATION” is the most critical section, for it is the true “RED FLAG” portion of the Application.In the “MEDICAL SECTION” of the Application, the applicant for a Connecticut handgun carry permit must check the appropriate for each of the following:

CONFINEMENT TO A HOSPITAL FOR MENTAL ILLNESS BY ORDER OF A PROBATE COURT

The Firearms and Special Licensing Unit of the Division of State Police asks:“Have you been confined in a hospital for mental illness in the past sixty (60) months by order of a Probate Court?” There is a check box for “yes” and for “no.”Mr. Wright truthfully checks the box, “no” as he has never been confined to a hospital for mental illness by order of a Probate Court. The question asked is inapplicable to him. Mr. Wright proceeds to the next section of the Application.NOTE: THE QUESTION PERTAINS TO INDIVIDUALS WHO HAVE BEEN INVOLUNTARILY COMMITTED TO A HOSPITAL FOR MENTAL ILLNESS AS INVOLUNTARILY COMMITMENTS REQUIRE AN ORDER OF COURT. NO ONE CAN BE LAWFULLY CONFINED TO A HOSPITAL AGAINST HIS OR HER WISHES ABSENT AN ORDER FROM A COURT OF COMPETENT JURISDICTION.

DISCHARGED FROM CUSTODY HAVING BEEN FOUND NOT GUILTY OF A CRIME BY REASON OF MENTAL DISEASE OR MENTAL DEFECT

The Firearms and Special Licensing Unit of the Division of State Police asks:“Have you been discharged from custody within the past twenty years after having been found not guilty of a crime by reason of a mental disease or defect.”Mr. Wright truthfully checks the box, “no,” as the question asked is inapplicable to him. He has never been charged with a crime and, so, has never been in the position of having been found guilty of a crime where a court might have found him not guilty by reason of a mental disease or defect. Mr. Wright now proceeds to the next section of the Application.

VOLUNTARY ADMISSION TO A HOSPITAL FOR MENTAL ILLNESS

The Firearms and Special Licensing Unit of the Division of State Police asks:“Have you been voluntarily admitted to a hospital for mental illness within the past six (6) months for reason other than solely for alcohol or drug dependence?"Mr. Wright truthfully checks the box, “no,” as he has never had reason to voluntarily commit himself to a hospital for mental illness or, for that matter, for any reason, relating to mental illness, or for alcohol or drug issues. The question asked is inapplicable to him. Mr. Wright then proceeds to the next section of the Application.NOTE: THIS QUESTION, UNLIKE THE FIRST QUESTION, REFERS TO A VOLUNTARY COMMITMENT, WHERE AN INDIVIDUAL VOLUNTARILY ADMITS HIM OR HERSELF TO A HOSPITAL FOR TREATMENT FOR A MENTAL ILLNESS OR FOR ALCOHOL OR DRUG ISSUE RELATED TO OR UNRELATED TO AN UNDERLYING MENTAL ILLNESS.If the applicant has voluntarily admitted himself to a hospital for treatment for alcohol dependency or for dependency on drugs, whether those drugs be illegal or through lawful prescription, but the treatment does not entail “mental illness,” then the applicant can reasonably check the corresponding check box, “no.” This is tricky, though. If the applicant voluntarily commits himself to a hospital, within the six months preceding the date of application for a Connecticut, handgun carry permit, for treatment of an alcohol and/or drug related problem, the applicant may also be treated for a mental condition as alcohol and/or drug related problems may subsume a mental condition. If there is doubt about this, the applicant who has voluntarily committed himself or herself to a hospital for alcohol and/or drug related problems within the last six months should take a look at his or her medical record to ascertain whether the record indicates a mental disorder as it is incumbent on the applicant to be certain what his or her medical record says.“NOTICE: “DESPP HEREIN NOTIFIES THE APPLICANT THAT, PURSUANT TO C.G.S. §§ 29-28 THROUGH 29-30b, DESSP WILL BE NOTIFIED BY THE DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES IF THE APPLICANT HAS BEEN CONFINED TO A HOSPITAL FOR PSYCHIATRIC DISABILITIES WITHIN THE PRECEDING SIXTY (60) MONTHS BY ORDER OF PROBATE COURT, OR IF THE APPLICANT HAS BEEN VOLUNTARILY ADMITTED TO A HOSPITAL FOR MENTAL ILLNESS WITH THE PAST SIX (6) MONTHS FOR REASONS OTHER THAN SOLELY FOR ALCOHOL OR DRUG DEPENDENCE.”This “NOTICE” is to alert the Applicant that, regardless how the Applicant answers the questions of this section, DESPP will contact the Department of Mental Health and Addiction Services. So, under no circumstances should the applicant think that, by lying on the application, the DESPP, will not find out whether an applicant has been voluntarily or involuntarily committed to a hospital for treatment. DESPP will also be contacting the FBI, to ascertain criminal record of the applicant if any and if an individual was found not guilty of a crime due to mental illness or mental defect, that is likely to be in the FBI data bases as well.

PRIOR ARREST RECORD

The Firearms and Special Licensing Unit of the Division of State Police asks:“Have you ever been ARRESTED for any crime in any jurisdiction?”Mr. Wright truthfully checks the appropriate box, “no,” and proceeds to the next section of the Application.For those individuals who do have an arrest record and therefore must check off the box, “yes,” the Firearms and Special Licensing Division of the Division of State Police instructs the applicant to list all arrests, indicating charges, locations, dates of arrest and dispositions.“NOTICE: YOU ARE NOT REQUIRED TO DISCLOSE THE EXISTENCE OF ANY ARREST, CRIMINAL CHARGE OR CONVICTION, THE RECORDS OF WHICH HAVE GBEEN ERASED PURSUANT TO C.G.S. §§ 46-b-146, 54-142a. IF YOUR CRIMINAL RECORDS HAVE BEEN ERASED PURSUANT TO ONE OF THESE STATUTES, YOU MAY SWEAR UNDER OATH THAT YOU HAVE NEVER BEEN ARRESTED. CRIMINAL RECORDS THAT MAY BE ERASES ARE RECORDS PERTAINING TO A FINDING OF DELINQUENCY OR THAT A CHILDE WAS A MEMBER OF A FAMILY WITH SERVICE NEEDS (C.G.S. 46b-146), AN ADJUDICATION AS A YOUTHFUL OFFENDER (C.G.S. 54-76o), A CRIMINAL CHARGE THAT HAS BEEN DISMISSED OR NOLLED, A CRIMINAL CHARGE FOR WHICH THE PERSON HAS BEEN FOUND NOT GUILTY, OR A CONVICTION FOR WHICH THE PERSONA RECEIVED AN ABSOLUTE PARDON (C.G.S. 54-142a).”“WITH REGARD TO CRIMINAL HISTORY INFORMATION ARISING FROM JURISDICTIONS OTHER THAN THE STATE OF CONNECTICUT: YOU ARE NOT REQUIRED TO DISCLOSE THE EXISTENCE OF ANY ARREST, CRIMINAL CHARGE OR CONVICTION, THE RECORDS OF WHICH HAVE BEEN ERASED PURSUANT TO THE LAW OF THE OTHE RJURISDCITION. ADDITIONALLY, YOU ARE NOT REQUIRED TO DISCLOSE THE EXISTENCE OF AN ARREST ARISING FROM ANOTHER JURISDICTION IF YOU ARE PERMITTED UNDER THE LAW OF THAT JURISDICTION TO SWEAR UNDER OATH THAT YOU HAVE NEVER BEEN ARRESTED.”The Section pertaining to criminal history too, gets tricky. The applicant with an arrest record must, of course, be completely honest. Failure to admit an arrest record when required to do so, will not likely fool the Firearms and Special Licensing Unit of the Division of State Police. And, even if a handgun carry license should issue because a mistake was made, don’t think that you have “pulled the wool over the eyes” of the Licensing Official. For, at some point the truth will come out. You will lose your firearms; you will lose your handgun carry permit; and you will face federal prosecution and possibly State prosecution as well on the ground of unlawful possession of firearms contrary to law because of disability. On the other hand, whether you can properly check the corresponding check box, “no,” regarding ARREST RECORD, notwithstanding that you DO have an arrest record, this comes down to whether you fall within an exception as noted above. READ THE "NOTICE" CAREFULLY. The safest course of action for those applicants who do have an arrest record, whether or not it is apparent that the applicant falls within an exception to acknowledging the arrest record on the application, is to contact a licensed attorney before completing and sending in the application packet. That will prevent a multitude of sins if you make an error, intentionally or not, in filling out this section of the Application for a Connecticut handgun carry permit. For mistakes in accurate reporting have negative ramifications, not only in Connecticut, but in any other jurisdiction where a person is considering applying for a handgun carry permit or license.

CONVICTION OF A CRIME

The Firearms and Special Licensing Unit of the Division of State Police asks:“Have you ever been CONVICTED under the laws of this state, federal law or the laws of another jurisdiction?"Mr. Wright truthfully checks the appropriate check box, “no,” and proceeds to the next section of the Application.NOTE: TO THOSE APPLICANTS FOR A CONNECTICUT HANDGUN CARRY PERMIT WHO HAVE BEEN CONVICTED OF A CRIME EITHER IN CONNECTICUT, OR IN ANOTHER STATE, OR HAVE BEEN CONVICTED OF VIOLATION OF FEDERAL LAW, THAT APPLICANT MUST LIST ALL CONVICTIONS, INCLUDING, CHARGES, LOCATION , DATE OF ARREST, AND DISPOSITION.THE APPLICANT MUST ANSWER THIS QUESTION TRUTHFULLY, AND MUST PROVIDE COMPLETE ANSWERS. THE FIREARMS AND SPECIAL LICENSING UNIT WILL OBTAIN RECORDS, REGARDLESS OF HOW THE APPLICANT RESPONDS, BUT THE LICENSING OFFICIAL IS LOOKING FIRST AND FOREMOST FOR VERACITY ON THE PART OF APPLICANTS FOR HANDGUN CARRY PERMITS. IF AN APPLICANT IS LIAR, THAT ALONE IS GROUNDS FOR REJECTION OF ONE’S APPLICATION, FOR LYING ON THIS APPLICATION CONSTITUTES OVERT ADMISSION OF BAD CHARACTER, AND INDICATION THAT SUCH A PERSON SHOULD NOT BE IN POSSESSION OF FIREARMS.

PROBATION, PAROLE, OR WORK RELEASE

Other than arrest or conviction of a crime, or concomitant with arrest or conviction of a crime, the Firearms and Special Licensing Unit of the Division of State Police asks:“Are you currently on probation, parole, work release, in an alcohol and/or drug treatment program or other pre-trial diversionary program or currently released on personal recognizance, a written promise to appear or a bail bond for a pending court case?"Mr. Wright responds, truthfully, answering, “no,” by checking the appropriate check box and proceeds to the next section of the application.NOTE: THE FIREARMS AND SPECIAL LICENSING UNIT DOES NOT ASK FOR SPECIFIC INFORMATION AS SET FORTH IN THE PRIOR SECTIONS OF THE APPLICANT, NAMELY, CHARGES, LOCATION OF COURT, AND SPECIFIC DISPOSITION. THE QUESTION APPEARS MORE OPEN-ENDED, PARTLY, PERHAPS, BECAUSE PROBATION, PAROLE, WORK RELEASE, AND OTHER COURT ORDERS, RESPECTING SPECIFICALLY DRUG AND ALCOHOL TREATMENT ,REQUIRE THE APPLICANT HERE TO SPECIFY DETAILS OF CONVICTION AND ARREST IN THE PRIOR SECTIONS AND HAVING TO REPEAT THOSE IS REDUNDANT.

PROTECTIVE ORDERS AND RESTRAINING ORDERS

The Firearms and Special Licensing Unit of the Division of State Police asks:“Within the past five (5) years, have you been the subject of a Protective Order or Restraining Order issued by a court in a case involving the use, attempted use or threatened use of physical force against another person, regardless of the outcome or result of any related criminal case?”Mr. Wright truthfully answered, “no” to this question, checking off the appropriate box on the Application. He then proceeded to the next question.NOTE: ONCE AGAIN, THE FIREARMS AND SPECIAL LICENSING DIVISION ISN’T INSTRUCTING THE APPLICANT TO PROVIDE DETAILS OF THE EVENTS SURROUNDING THE ISSUANCE OF AN ORDER, BUT MERELY FACT OF IT AND, IF AN ORDER HAS BEEN ISSUED, THEN THE APPLICANT IS REQUIRED TO SET FORTH, ON THE APPLICATION, THE COURT THAT ISSUED THE ORDER.

MILITARY HISTORY

The Firearms and Special Licensing Unit of the Division of State Police asks:“Were you ever a member of the Armed Forces of the United States?” And, if so, the Applicant is requested to provide a copy of the applicant’s “DD-214”—the Discharge Documents.Mr. Wright was never a member for the Armed Forces, so he truthfully, responds by checking the appropriate checkbox, “no,” and he proceeds to the next section of the application.If the applicant were a member of the Armed Forces, the Firearms and Special Licensing Unit of the Division of State Police pointedly asks:“Were you ever discharged from the Armed Forces of the United States with a less than Honorable Discharge?” The Applicant must respond with either, “yes,” or, “no,” checking off the appropriate check box.

AUTOMATIC DISQUALIFICATIONS

The “PISTOL PERMIT/ELIGIBILITY CERTIFICATE APPLICATION” doesn’t state, but an individual applying for a pistol permit in Connecticut—or in any other jurisdiction for that matter, should be advised that, under FEDERAL LAW, specified grounds exist that prohibit a person from possessing a firearm. That means the Firearms and Special Licensing Division of the Division of State Police cannot and will not issue a handgun carry permit to anyone who is not permitted under federal law—wholly apart from the requirements of Connecticut Law—from possessing a firearm. Under Title 18 (Crimes and Criminal Procedure), Part I (Crimes), Chapter 44 (Firearms) of the Federal Penal Code, 18 U.S.C. § 922(d):“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—(1)  is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;(2)  is a fugitive from justice;(3)  is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));(4)  has been adjudicated as a mental defective or has been committed to any mental institution;(5)  who, being an alien—(A)  is illegally or unlawfully in the United States; or(B)  except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a) (26) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (26));(6) [who] has been discharged from the Armed Forces under dishonorable conditions;(7)  who, having been a citizen of the United States, has renounced his citizenship;(8)  is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—(A)  was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and(B) (i)  includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or(ii)  by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or(9)  has been convicted in any court of a misdemeanor crime of domestic violence.”If you fall under any one or more of the above categories, then do not apply for a Connecticut permit to carry a pistol or revolver. Save your money. The Firearms and Special Licensing Division will deny you a permit to carry and you may be subject to federal and State criminal penalties for attempting to gain possession of a firearm by lying on the application. Worse, if you lie on the application and a permit is issued to you, and through the issuance of a permit you obtain a firearm, you are now in criminal possession of a firearm and subject to immediate arrest. AND, Be advised that, if a handgun permit is erroneously issued to you, because you lied on the Application, the DESPP will eventually become aware of the error. Don’t think that you will be able to fool the DESPP—that no further investigation won’t be done specifically to spot errors on an application. Further, suppose you are truthful in answering each question on the Application and yet you are under a disability that the Firearms and Special Licensing Unit Officer fails to spot, still, under federal law if you are not permitted lawfully to own a firearm, then the mere assertion you told the truth when completing the PISTOL PERMIT/ELIGIBILITY CERTIFICATE APPLICATION and that it is the fault of the DESPP in issuing you a handgun carry permit will not protect you from criminal liability. For, intent to be truthful is not a defense to the litany of disqualifications of Title 18. If a person isn’t permitted under federal and/or State law from possessing a firearm, then the fact that he or she has been issued a firearm’s license or permit erroneously will not provide one with a defense to the discharge of unlawful possession of a firearm.

PROOF OF TRAINING

On page 4, the last page of the PISTOL PERMIT/ELIGIBILITY CERTIFICATE APPLICATION, the applicant must attach a copy of his or her handgun training certificate, setting forth the agency that offered the training and issued the certificate, along with the Instructor’s name and ID Number.Mr. Wright made a copy of his Certificate and completed the application with the information requested.

DECLARATION

The Applicant must attest that the information he has provided in the PISTOL PERMIT/ELIGIBILITY CERTIFICATE APPLICATION is truthful and that the Applicant understands that an untruthful statement will void the Application. This DECLARATION is UNDER OATH. So, the Applicant must swear before a Notary Public and the Notary Public must duly notarize the Application.Mr. Wright duly signed his name and swore, before the Notary Public, that the contents of the Application that he completed were truthful. Mr. Wright and his attorney and professional security expert then made sure that the Application packet contained all documents that the Firearms and Special Licensing Unit of the Division of State Police of the DESPP required, that all portions of the Application that Mr. Wright had to complete were in fact answered, and that the Application packet contained Mr. Wright’s personal checks to cover the processing of his Application.Mr. Wright waited a few weeks. His attorney checked with the Firearms and Special Licensing Unit, regularly, to make sure, first, that the Licensing Unit did receive the Application, and subsequently, that Mr. Wright’s Application was complete and, lastly, that the Application was being prosecuted.Mr. Wright was eventually contacted by the Firearms and Special Licensing Unit of the Division of State Police. Mr. Wright was required to travel to Connecticut to receive his Connecticut Pistol Permit.

NOTICE: APPEAL PROCESS FOR PERMITS

The final section of the Application provides the Applicant with the process for Appeal if his or her Application is denied. Further discussion of the appeals process.In the concluding segment of analysis of Connecticut handgun carry permit application procedures, Subpart Six, we discuss renewals. Although renewals are generally a relatively easy and painless process, they do take time and they do require more outlay of cash. Furthermore, each jurisdiction has its own timetable for renewals. This causes a busy entrepreneur like Mr. Wright more than a little frustration. Renewals of handgun licenses must not be taken lightly. Missing a renewal date means that the license or permit holder will have to go through the entire ordeal of obtaining a permit again with the concomitant monetary outlays, aggravation, and delays in the processing of the application.National concealed handgun carry reciprocity legislation will go a very long way in streamlining the process of obtaining and renewing a handgun carry permit, as, if Congressional Legislation is drafted well, then the handgun holder of a valid handgun permit or license will only be required to have on his person, when carrying a handgun, just one valid handgun carry permit. That means, too, that the permit or license holder will only need to renew one handgun license and not several that many license holders must now carry—that Mr. Wright must, at present, hold.We conclude our discussion of Connecticut handgun licensing laws and procedures with the next installment of the Road Trip Series: Part Four, Subpart Six, a Postscript. We will then move to a detailed analysis of Massachusetts handgun licensing laws and procedures, as we continue the Road Trip Series of articles.____________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved

SMART GUNS: INTERVIEW WITH BBC ON TUESDAY, JUNE 6, 2017, AT SENECA SPORTING RANGE, LOCATED IN RIDGEWOOD, QUEENS, NEW YORK.

SMART GUNS: INTERVIEW WITH BBC ON TUESDAY, JUNE 6, 2017, AT SENECA SPORTING RANGE, LOCATED IN RIDGEWOOD, QUEENS, NEW YORK

In early May 2017, a researcher with a BBC affiliate, BBC Radio 4, contacted the Arbalest Quarrel by email, informing me (Stephen D’Andrilli) that the BBC was doing a Documentary on “Smart Guns,” titled, “Guns and Coders,” and invited the Arbalest Quarrel to take part in it.I informed my Business Partner, and co-founder of the Arbalest Quarrel, Roger Katz, and we agreed that the Arbalest Quarrel would be interested in taking part in the Documentary. A series of back-and-forth emails followed. We pointed out that we were very busy but would take the time to prepare for the Documentary, researching and publishing articles.In one email, Roger wrote to the BBC researcher with this: “Thank you for contacting us. I see that my business partner, Stephen L. D'Andrilli, contacted you. I have been in phone contact with Stephen this morning as well. We would like very much to assist you in your research on ‘smart gun’ technology and would like to set the record straight. We have much information to share with you, to help you better understand the problems associated with ‘smart gun’ technology. In that regard, there are four basic areas, pertaining to ‘smart gun’ technology we would like to touch upon: (1) media related matters apropos of social and political messaging; (2) technical and pragmatic issues; (3) economic considerations; and (4) legal issues.”Roger and I felt it important to establish parameters for agreeing to take part in the Documentary. In that regard, Roger elaborated with a further email, which he directed to the Producer of the BBC Documentary, stating:“In preparation for the upcoming interview, be advised: 1)  Stephen has arranged for you to meet with the owner at the owner's NYC licensed in-door firearms range in Queens. The owner of the range holds a Federal Firearms License (“FFL”) and will be able to answer technical questions related, generally, to proper firearms use and safety. 2) We have provided for your perusal links to two articles we wrote and posted on our website, on smart guns. They are, one, "Smart Guns are not a Smart Idea;" posted on August 1, 2016;" and, two, "'Smart Guns for Gun Owners: A New Monitoring Device," posted on May 2, 2014.  You will note we present a specific slant to the issue of firearms ownership and possession, just as those, on the other side, present their own slant. We don’t apologize for this. We readily admit it. But the points we make, in the articles on smart gun technology are sound and valid. We trust they will operate as a useful springboard to further questions you may wish to pose to us. In that regard, we ask that you provide us with specific questions. We will respond to you, in writing, and discuss and expand upon the points made, during the interview in June. You may wish to consider the following, in posing specific questions to us, to which we will gladly respond in depth. A) TECHNICAL: Understand that there is no one specific “smart gun” technology. There are several. Each has defects. Real world, in depth, tests have not, to our knowledge, been undertaken. Questions remain whether police departments around the Country would recommend use of such technology for their rank and file officers. And, if not, why not? B) ECONOMIC: Quality firearms are not cheap. Factor in the cost of ammunition, cleaning supplies, accessories, cost of licensing, and an individual could spend hundreds or even thousands of dollars. If smart gun technology becomes a requirement, the cost of producing firearms will skyrocket. Those costs will be passed onto the consumer. Only the most well-heeled individuals will be able to afford such firearms. Further, question remains whether application of certain “smart gun” technology is feasible from a manufacturing perspective. It is the firearms manufacturers alone who can best answer that question. C) LEGAL: The right of the people to keep and bear arms is an “individual” right. The 2008 U.S. Supreme Court case, District of Columbia vs. Heller, has made that point clear. Smart gun technology would “lock out” poorer Americans ability to exercise their right of self-defense inherent in the 2008 Heller decision. Keep in mind a basic tension that exists between Government that seeks increased regulation of firearms ostensibly to promote public safety versus the right and duty of each individual to take responsibility for his or her own life and safety. Public safety does not equate with personal safety. There is no one-to-one relationship. State Governments have no duty under their laws, with few exceptions, to protect the life and well-being of individuals, only communities. That idea tends to be lost in discussion. D) MEDIA RELATED: The mainstream media is antithetical to the notion of civilian gun ownership. That is not conjecture. It is fact. We ask that you keep in mind, as you approach the subject matter of “smart guns,” that the specific matter you wish to address exists within the context of two fundamental, contradictory influences that  overshadow the question whether “smart gun” technology is a good idea or not. On one side of the debate there are the antigun groups, which, together with the mainstream media, and like-minded politicians approach the “gun issue” from the standpoint that no civilian should own or possess a firearm. They believe the Second Amendment is archaic and they would seek de facto repeal of it if they could. This fundamental premise informs their argument in support of “smart gun” technology and cannot logically be separated from it. This antithetical view toward guns is visceral and functions as the raw foundation of the antigun movement, stripped to its essentials. On the other side are the proponents of civilian gun ownership and possession. That is the side we fall on. We begin with the assumption, as the Heller majority made clear, that gun ownership and possession is a sacred right, not a privilege, and that it is grounded in natural law. The Second Amendment does not create the right, but merely codifies the right that exists inherently in each American. Smart gun technology is an unnecessary restriction that, to use a cliché, appears, to us, to be simply “a solution in search of a problem.” We understand that, given time constraints and exigencies, you will be compelled to edit the responses we provide you with. Our concern is that our answers can, if improperly edited, be taken out of context. We ask that if you do edit our written responses, you allow us the opportunity to see the proposed edits before presenting them in a final cut. Thank you.”In a third email, Roger provided further commentary which we felt the BBC should be aware of:“This is a follow-up to the email I sent to you earlier this evening. I realized I had not responded to your query regarding specific case law pertaining to smart guns. The long and short of my response to you here is that no case law exists in any jurisdiction that I was able to find through legal research. That doesn't surprise me because no laws have been enacted in any jurisdiction, as of yet (at least that I am aware of), that would require a person—who is under no federal or State disability and who seeks to own and possess a firearm—to purchase a firearm utilizing ‘smart’ technology. I have no doubt that there would be challenges to the Constitutionality of such legislation if or when a State enacts ‘smart gun’ legislation. The Constitutional challenge will rely, in part, at least, on the  Heller case where the high Court, held—apart from striking down the District of Columbia's total ban on handguns as patently unconstitutional—that ‘the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.’ Extrapolating from that holding in Heller, this means that, if ‘smart gun’ technology delays reaction time in an emergency either due to the nature of the technology—assuming it is functioning properly and is not otherwise defective—or otherwise delays use of the firearm in an emergency due to the requirement that some manipulation of ‘smart’ technology is required by the user before the firearm will function properly, this may result in a successful challenge by a party plaintiff on the ground that such technology when employed in firearms is unconstitutional, consistent with U.S. Supreme Court holding that, if self-defense is a legitimate and well-founded ground for the right of the people to keep and bear arms, it is ludicrous, to preclude a person from having immediate, effective access to a firearm in a critical emergency self-defense situation. By the way, the Kolbe case that we have written extensively on does not involve ‘smart guns.’ [The Producer had asked about the Kolbe case as we had pointed out that we were doing a comprehensive analysis on Kolbe, at the time and the Producer had apparently erroneously made an association between that case and the issue of ‘smart guns’]. The plaintiffs in Kolbe challenged the constitutionality of Maryland's ‘Firearms Safety Act’ that, inter alia, bans lawful ownership of firearms that Maryland defines as so-called ‘assault weapons.’ The U.S. Court of Appeals for the Fourth Circuit, en banc, held that the Act does not offend the Second Amendment. The Court employed the ‘intermediate scrutiny’ standard when it upheld the lawfulness of the Act. Plaintiffs will appeal that decision to the U.S. Supreme Court. That is a virtual certainty. But, whether the high Court will grant certiorari to hear the case is an open question. Two previous Second Amendment cases, one from the Ninth Circuit and one from the Seventh Circuit, coming on the heels of Heller, were denied cert. Justice Clarence Thomas and the late Justice Antonin Scalia were livid at the failure of the Justices to vote to hear those cases. Clearly, one or more of the conservative wing Justices, along with the liberal wing Justices did not wish to hear the cases, fearing an expansion of Heller. There is no other reasonable explanation for the high Court's failure to grant certiorari in those two cases.”The Producer responded to Roger’s emails, exclaiming:“Personally I don’t have position on this, as I said, so I  find the arguments interesting and strong actually. I look forward to meeting to discuss further.”Roger and I felt it important to establish the parameters for my interview with the BBC, concerned the BBC, during the editing process, might unfairly manipulate the data we present to them, as the BBC would then present to the public, recalling the infamous Katie Couric "Under the Gun" pseudo-Documentary. The Virginia Citizen's Defense League ("VCDL"), brought a defamation suit against Couric in the case, Va. Citizens Def. League vs. Couric, 2017 U.S. Dist. LEXIS 83308) (E.D.V.A. 2017). The case was decided against Plaintiff VCDL on May 31, 2017. The VCDL is appealing the adverse decision.We agreed to take part in the Documentary but with the stipulation that we would receive questions that would be asked beforehand and, because we were under publication deadlines, we would need time to prepare a detailed, formal response. It was also our understanding that the BBC would not stray from the questions provided to us.These are the questions the BBC Producer emailed us, on June 2, 2017. They are predicated, in part, in substantial part, on Roger’s correspondence with the BBC.“Do you have a gun in your home? What is it, where do you keep it? Do you think smart guns are a good idea? Why not? Tell us about the legal reasons Tell us about the technical reasons Tell us about the economic reasons What are the different groups involved in this debate in the US? Where do you reside? What do you think would be a good way to reduce gun violence (accidental deaths etc)?”With these questions provided us, Roger and I prepared a comprehensive written response.The interview took place on June 6, 2017, as planned.The BBC interviewed John Deloca, owner of the Seneca Sporting Range, first. My interview immediately followed. I was prepared to answer the questions based upon our research. The BBC deviated from the questions provided, expecting spontaneous informal responses.At that point I was prepared to call off the interview. But I agreed to go forward with the interview when the interviewer gave me the latitude to deal with what underlies the entire debate about “smart guns”: the issue concerning gun possession in America.As I proceeded, I talked about gun ownership and gun possession in America and in the context of UK attitudes toward gun ownership and gun possession, as the BBC Documentary was really targeting the UK audience.As the British Government does not recognize the right of their citizens—really subjects—to own and possess guns, and as the average British subject has no conception of a right to keep and bear arms, a British subject would not understand Americans antipathy toward “smart guns” as an alternative to those firearms presently on the market.I explained that, in this Country, neither manufacturers of firearms nor consumers of firearms have expressed any interest in “smart guns.” I pointed out that “Smart guns” are being pushed on the American public by antigun politicians, antigun groups, and by the mainstream media. Smart guns are not needed, and they are not wanted. Smart guns are nothing more than an expensive, foolhardy solution in search of a problem.I also pointed to Great Britain’s own antipathy toward firearms, explaining that, at one time, the average British subject could own firearms, back in the Nineteenth and early Twentieth Centuries but that, through time, British subjects had lost their right to own and possess firearms. I explained that the British Government did not confiscate guns immediately. Gun prohibition was done slowly but inexorably. The British Government made incremental changes to gun laws until the right was completely lost.More insidiously, British subjects lost all knowledge that, at one time, it was commonplace for those subjects to own and possess firearms. The BBC interviewer was unaware of that fact. Today, the average British police officer (colloquially, even affectionately, referred to as the “Bobby”) is unarmed. But, in light of devastating attacks recently against British subjects and against the British police, by radical Islamic terrorists, the Government in Britain is reappraising now whether the “Bobby” should be armed. But, it is clear that the British Government is not entertaining any notion of arming the average British subject.British politicians claim that the British subjects may be unnerved and alarmed to see heavily armed military police patrolling after the fact. Yet, if the Metropolitan Police force (the “Bobbies”) were armed before the fact, coupled with armed British subjects, it is clear that the number of lives lost because of the despicable actions of radical Islamic terrorists could have been reduced. The entire United Kingdom is a soft target.Concern over offending Muslims prevents the British Government from enacting the stringent laws necessary to combat terrorism. The Islamic terrorists have taken advantage of an unarmed citizenry and even an unarmed police force.The interview didn’t go as we had expected and had hoped for, but the BBC interviewer seemed amenable to the points we made. Toward the end of the interview, the BBC interviewer expressed a desire to learn more generally about the gun debate and about self-defense with firearms; and I was pleased to expound upon these matters at some length. How much of my exposition will appear in the Documentary remains to be seen. That there be no doubt as to our position on "Smart Guns," we provide, below, our complete response to the BBC Interviewer's questions._____________________________

ARBALEST QUARREL’S DETAILED RESEARCH MATERIAL PREPARED IN RESPONSE TO THE BBC’S QUESTIONS

QUESTION #1: DO YOU HAVE A GUN IN YOUR HOME?

• As a veteran police officer with the New York City Police Department, I carried and possessed firearms on a daily basis. As an NRA Certified Instructor in pistol, rifle, and shotgun, a Training Counselor, and an active member in the International Association of Law Enforcement Firearms Instructors (“IALEFI”), I handled firearms regularly. As an Associate Professor/Lecturer of Police Science at John Jay College of Criminal Justice (CUNY), I taught about the proper and safe use of firearms. So, I am comfortable and experienced with firearms.
• The purpose of a gun is deterrence and one should be discrete about it. It would not be prudent for me or for anyone who is similarly situated to advertise that they have a gun on them or in their possession.
• There are millions of honest, law-abiding citizens who own and possess handguns and who carry handguns on their person or keep them in their home and place of business. Although Americans possess firearms for sporting, recreational, and competitive purposes, most do so for self-defense and protection. These are all lawful purposes for possessing firearms in the U.S. The U.S. Supreme Court held, in the 2008 Heller decision, that the Second Amendment protects the right of American citizens, as individuals, who are not under a disability, to possess firearms for lawful purposes.
• Now, I understand your inquisitiveness, coming from the United Kingdom where it is illegal for the average person to possess firearms, where even the police are unarmed, and where your Government does not recognize an individual’s right of self-defense with firearms. But, in our Country, the right of the people to keep and bear arms is a natural right, codified in the Second Amendment to the U.S. Constitution.

QUESTION #2. WHAT KIND OF FIREARMS DO YOU HAVE

• The type of firearms a person chooses to own and possess is a personal matter, based on one’s needs. There are three categories of firearms available to the American public: rifle, shotgun and handgun. Handguns can be revolvers that generally hold 5 or 6 rounds of ammunition or semi-automatics with magazines where the number of rounds carried, varies. Each type of handgun has its own advantages and disadvantages and applications.

QUESTION #3. WHERE DO YOU KEEP YOUR FIREARMS?

• Persons who choose to exercise their right to possess firearms bear the responsibility to properly handle them when in use and to safeguard them when not in use.
• A firearm should not be left unattended where an unauthorized person or child could get his/her hands on it.

QUESTION #4. DO YOU THINK “SMART GUNS” ARE A GOOD IDEA?

• No. But, to understand why I don’t think they are a good idea, it is necessary to define the term. So, we must ask first:

WHAT IS A “SMART GUN?”

• Basically a ‘smart gun,’ as the expression is generally understood, means a firearm that can only be operated by the authorized user of it. My close friend, David Kopel, an academician, a licensed attorney, and constitutional law expert defines the expression in this way: “‘Smart Guns’ is a slang term for a hypothetical firearm that incorporates computer technology so that the gun can only be fired by the authorized user.’”  
• As an aside, the expression, ‘smart gun,’ was registered in the United States Patent and Trademark Office on October 9, 2007: Registration No. 3307653, for “firearms having automatic locking mechanisms.” The registration is still active.
• The owner, Kenneth Pugh, held, as well, the first patent for such technology. Patents, though, expire; trademarks never do, so long as the mark, in connection with the goods, is continuously used in interstate commerce and if an affidavit of continuous use in interstate commerce is filed every six years with the USPTO.
• If federal or State law requires use of such technology in firearms, and firearms are mass-produced by companies using “smart” technology, those companies will not be able to use the expression, “smart gun” on their firearms unless they successfully bring an action to challenge the registration arguing that the expression, “smart gun,” as applied to firearms having automatic locking mechanisms is generic of the goods. The expression, ‘smart gun,’ may also be available if the owner of the registration has cancelled it or the registration, or the registration is abandoned.
• Through time, companies have attempted to market firearms using such technology. The most commonly drawn example is the iP1 semiautomatic pistol manufactured by the German manufacturer, Armatix GMBH. The firearm, as advertised, uses RFID technology. Retail gun dealers in the U.S. are, to our knowledge, not interested in it. The manufacturer does offer the handgun on its website. The price, though, is not listed. An interested party must contact the manufacturer directly to obtain pricing. The pistol is surely expensive and beyond the budget of most consumers.
• Several technologies have been employed in research and development of firearms using such “smart” technology. The most common technology employs what I talked about above, “Radio Frequency Technology” (“RFID”). Firearms that incorporate this technology require the user to wear a ring, bracelet, or watch that transmits radio waves to the receiver that then allows the gun to be fired. Other technology would employ some form of biometric control, such as voice or touch recognition. Still a third type of “smart” technology would utilize some form of remote control feature.
• Smart gun technology first arrived in the latter quarter of the Twentieth Century, and, so, is relatively new. It is the application of computer technology to firearms.
• Today’s mechanical guns, though, are not new. They are the state of the art in product development, design, materials, and testing, going back to the Nineteenth Century. They operate reliably in every conceivable extreme condition: heat, cold, sand, mud, or submerged in water. They can be abused in many ways: dropped, thrown, and stepped on. They can be operated with hands covered in dirt, grime, or blood, or when wearing gloves. They can be inoperable for years and can still operate perfectly when required for use.

QUESTION #5. WHAT ARE THE TECHNICAL, ECONOMIC, AND PRAGMATIC REASONS AGAINST “SMART GUNS?”

• To begin, there are always costs, some of them unintended, even with the supposed benefits of adopting a new technology. That is certainly true in the case of mandating a major change to handgun production.
• If safety is the object, to prevent unauthorized use, then it is relevant to consider that this issue cuts two ways. Handguns, as used by civilians in the U.S., are essentially defensive weapons. It is as critical that the weapon operate for the authorized user of it when the authorized user has need of it—for self-defense—no less than it is to prevent an unauthorized user from gaining access to it. Yet, the default, fallback, state of “smart guns,”—if the “smart technology” detects a technical problem with the mechanism—is for the weapon to shut-down, which means that it will not operate. However, in a self-defense situation, that can mean the difference between life and death for the “authorized” user who depends on the weapon for self-defense.
• The technology is not proved reliable. Firearms have come a long way. Smart technology, as applied, to handguns, as of this date, has not. The major manufacturers of handguns, including, among others, Glock, Ruger, Colt, Beretta, Heckler Koch, Sig Sauer, and Smith and Wesson, produce quality products. That’s why military and police forces around the world, as well as law-abiding American citizens, have come to depend on these weapons for self-defense. Through decades, and in some instances for over a century that these gun manufacturers have been in business, they have honed their skills and have, as a result, created quality weapons that are known for their durability and dependability.
• Smart gun technology has not been demonstrated to be reliable. To date police departments in the U.S. have not adopted smart gun technology for this very reason. If law enforcement and the military cannot be expected to rely on “smart guns” in life and death situations because of the anticipated unreliability of weapons incorporating this technology, why should the government force this technology on the public. The answer is simple. Look to those politicians and groups who are promoting its use. It is not coming from firearms manufacturers or from the firearms consumer, or from the police or the military. It is coming from politicians and organizations that are viscerally opposed to civilian ownership and possession of firearms. These politicians and groups know virtually nothing about firearms, nor do they care to learn the mechanics of their operation. They promote these firearms from a purported “safety” aspect only. But “safe” for whom, against whom? These politicians and groups would be perfectly content that “smart guns” don’t work; that, they cannot be relied upon as a self-defense implements.
• Considering that one impetus for “smart guns” started with the idea of providing a way to protect police from incidents where, in a confrontation with an individual, the officer’s weapon is taken away from him and then used against him, proposed legislation specifically exempts the police from the mandate that they use the technology when or if available.
• If smart guns do become feasible from a technology and production standpoint and if the problem of reliability—marrying a mechanical tool with computer technology—there is still a hurdle; and that hurdle is one of cost. Academicians posit the cost of a smart gun to range from a few hundred dollars to double the cost of a gun that is presently manufactured. Quality guns already cost the consumer several hundred dollars. Add in the cost of manufacturing guns with “smart” technology, to produce a quality, dependable, durable handgun for the average consumer, the price of the average handgun may well exceed one thousand dollars, perhaps, two or even three thousand dollars. Only the “well-heeled” among law-abiding citizens will be able to afford handguns. That means most law-abiding citizen consumers who seek to purchase a handgun for self-defense will be priced out of the market.
• Even if major reliability issues of smart technology are overcome some residual inherent flaws remain, specific to each “smart” technology. Those handguns utilizing RFID technology rely on some power source and any power source, such as batteries, are prone to failure over time. Those handguns that utilize a remote-control transmitter require proximity to the person and all such transmitters would be prone to excitation through radio waves from some other external source thereby causing a malfunction in the handgun due to interference. The transmitter itself may be lost or held by a third person, causing another avenue for malfunction. Biometric technologies such as voice or fingerprint command are prone to their own set of flaws: change in voice tone or modulation, or contaminants on the hand or on the weapon causing malfunction.
• There is a practical issue that must be considered and it relates to problems inherent in the context of authorized user and to the notion of personalization intrinsic to smart guns. Suppose a household has a smart gun, using, for example, RFID technology. RFID technology requires the authorized user of the weapon to wear a ring or bracelet or watch. “What happens if a spouse, who does not wear the ring or bracelet, has to use the weapon to defend the gun owner who is already incapacitated by the perpetrator?” This should not be construed as an implausible situation that would not arise in a real-life situation. It is all too possible. We have a situation here where one spouse might have to come to the aid of the other, but now have both spouses at the mercy of the house invader. The smart gun, designed to reduce risk of unintentional injury, has now become a useless object—useless for self-defense. This problematic fact of smart guns was brought to my attention by another close friend and my former partner in the NYPD, Andrew Cilenti. Andy is a retired Police Lieutenant, a New York State Licensed Private Investigator, and an active member of several national law enforcement organizations.
• There exists an inherent flaw in smart gun technology that likely will never be overcome, regardless of the type of “smart” technology employed, making adoption of smart guns by both police and law-abiding citizens problematic. This involves “delay time.” Smart gun technology—whatever its nature—must incorporate sensors of some sort—to ascertain whether the user is, in fact, authorized to use the weapon. Academic studies point out that the delay time can be as much as a few seconds—much too long in a life and death situation to be practical.
• Since “smart guns” contain computer technology, it is well within the realm of possibility that they can be “hacked into,” thereby permitting an unauthorized user to gain use to the weapon. Moreover, if smart guns can be hacked remotely, it is possible that the guns may fire unexpectedly, thus defeating the de facto state of non-operation. Hence, smart guns may not offer the paramount “safety” that the proponents of them assume, erroneously, that they have.
• While smart gun technology may prevent operation of a stolen gun by a criminal who might otherwise use that stolen gun in a homicide, smart gun technology will do nothing to prevent an authorized user of his or her smart gun from using it to commit suicide, which is the single source of major deaths attributed to firearms next to homicide. Criminal traffickers of stolen “smart guns” will always find a way to override the “smart gun” features. This is no different than hackers of computers always finding ways to overcome even the best computer defenses, leading to a constant arms race between those who wish to protect computers from being broken into and those committed to breaking into those computers.
• There are about 250 million firearms presently in civilian hands in the United States. Laws requiring that all new civilian handgun purchases incorporate smart gun technology is unlikely to have substantial statistical impact on gun deaths resulting from accident or intentional, unlawful killing. Moreover, accidental deaths might increase as gun safety becomes laxer as individuals come to rely on purported safety benefits accruing from handguns that utilize “smart” technology.
• Advocates of this technology proclaim that surveys demonstrate public support for “childproofing” guns and for “personalization,” but the legislation being proposed does not necessarily address those issues. Yet, assuming for argument that they do, the mandate of built-in safety features can very well make it difficult for the authorized user to be able to access the weapon in an emergency self-defense situation. Likely, many gun owners will find a way to defeat the features that create the problems of accessibility to a firearm when needed in an emergency. Hacking tools available on the internet applied to phones and other devices will almost certainly be made available to others, including criminal organizations that steal “smart guns,” override the safety features, and then sell the guns on the black market.
• Would smart gun technology prevent accidents? The issue here is generally directed to accidental deaths caused by children gaining access to a handgun that has not been properly secured in the household and where the child has not been properly trained to avoid contact with firearms the child might happen upon.
• Smart gun technology, employed in handguns, if it ever becomes reliable—and that is a big IF—would likely prevent a child from harming himself or others if that child did gain hold of the weapon, but we should consider that accidental gun deaths attributed to young children getting hold of guns has been declining since the 1970s and the number of such accidental deaths is, in relation to gun deaths due to homicides and suicides, is virtually non-existent. Moreover, the duty to prevent child access to firearms adheres to adults in those households with children, to make sure firearms are secured. The danger that a handgun poses to a child—if an adult does not secure the handgun and train the child—is like the danger posed by kitchen knives, by power saws, and by electrical outlets—the responsibility of which, in our society, devolves to the individual, not to government.
• While advocates of application of “smart” technology to firearms, tend universally to come from those groups that are antithetical to civilian ownership and possession of firearms, little, if anything, is said about the public’s own disposition toward “smart guns.”
• My close friend, Richard Washburn, confirms several of the points that I mentioned. He is the President of The Specialists Ltd., a licensed federal firearms dealer and gunsmith, and a recognized expert in weapons and firearms technology.
• Rick says: “‘Smart Gun’ technology has not been developed to the point where it is reliable enough for life and death situations involving handgun use. In addition, it is expensive beyond the average cost of today’s defensive handgun. The handgun buyer has many options from current firearm manufacturer’s with proven technology, while ‘smart guns’ are a developing unproven technology and would limit the market to one or two manufacturers. In light of all the above, requiring handgun owners to buy/own only ‘smart guns’ amounts to a de facto ban of handguns, which would appear to be the intent of any government sponsored legislation promoting ‘smart guns’ only.”
• To sum up, for governments to mandate that manufacturers retool machinery to incorporate “smart” technology makes no sense from a technical, economic, and even policy safety standpoint. First, the modern firearm has achieved a state of near perfection, after innovations and improvements over a period of one hundred years. Incorporating computer technology to firearms is, in a very real sense, then, creating an entirely new firearm, one that will inevitably exhibit numerous problems in real world situations. Those real-world situations will have life and death consequences, resulting, conceivably, in more innocent deaths, not fewer deaths. Second, the attendant new costs involved in retooling machinery production for the manufacturing of firearms with “smart” computer technology will inevitably be passed on to the consumer, increasing the cost of the handgun beyond the reach of what the average consumer can afford. Third, the advent of “smart guns” is driven by the media at the behest of interests that are antithetical to firearms in the hands of the American public. What drives these interests to push governments to enact legislation, mandating adoption of “smart guns,” is blind abhorrence toward firearms. These interests look only at the violence caused through misuse of firearms, rather than the innocent lives that are saved through firearms. 

QUESTION #6. WHAT ARE THE LEGAL REASONS AGAINST ADOPTION OF “SMART GUNS?”

• There is a blurring of the line between politics and the law, especially involving guns rights, and it arises through a tension existing, as, on the one hand, between State Governments that, through the application of their police powers, enact laws restricting both the kinds of firearms and ammunition law-abiding individuals may lawfully own and possess and the circumstances of use of firearms by those individuals, and, on the other hand, the individuals who wish to exercise their right to keep and bear arms, as codified in the Second Amendment, sans restrictions. The clash of policy and politics of government that constrains the individual versus the rights of the individual to remain free of governmental restrictions plays out in the Courts.
• The specific legal issue is whether “smart gun” technology, as a government mandate is consistent with the U.S. Supreme Court Heller case. Apart from the holding that the right of the people to keep and bear arms is an individual right unconnected to one’s service in a militia, the Court also held that, one, the District of Columbia’s outright ban on handguns violates the Second Amendment and, two, that the District of Columbia’s requirement that such firearms that may be lawfully possessed must be rendered inoperable in a household also violates the Second Amendment. It is in respect to the second holding that a Constitutional problem involving “smart guns” arises because, whatever “smart gun” technology is employed, “smart guns” are not readily accessible for immediate use. Thus, the issue is whether incorporation of smart gun technology in firearms amounts to making the firearm inoperable. If so, then “smart guns” are not consistent with the rulings and reasoning of the U.S. Supreme Court’s Heller decision. We conclude that the new technology, as applied to handguns is in fact primitive and amounts to making handguns inaccessible, inoperable and therefore not consistent with U.S. Supreme Court law.
• There is, as well, an implicit equal protection argument under the Fifth Amendment and an explicit equal protection argument under the Fourteenth Amendment that is applicable here as well. The manufacturing of quality handguns is expensive. If manufacturers are compelled to incorporate “smart” technology in the production of all new handguns, a sizable portion of the adult population that is under no disability and that wishes to purchase a handgun for self-defense will be unable to do so. Such handguns will only be affordable to persons who are financially well off. A legitimate equal protection argument is likely to be made and likely to be successful.
• Since firearms are private property a question will be raised as to the right of individuals who own handguns that do not incorporate “smart gun” technology to bequeath them or sell them or trade them to others. Millions of such firearms are already on the market. They would likely be “grandfathered in” but, then, what can an individual who owns such “grandfathered” firearms do if that person wishes to sell, trade, or bequeath those firearms to another. To deny an individual the right to dispose of his property as he wishes conflicts with the due process clauses of the Fifth and Fourteenth Amendments and involves an illegal taking of property under the Fifth Amendment as well.

QUESTION # 7. WHAT ARE THE DIFFERENT GROUPS INVOLVED IN THE DEBATE?

The people and groups that advocate for smart guns are, not surprisingly, advocates of restrictive gun control laws--laws directed to, and that adversely affect the rights of, law-abiding honest citizens. The impetus for these laws are not, contrary to popular belief, directed to curtailing crime. Gun control advocates direct their energies to curtailing the right of the people to keep and bear arms as codified in the Second Amendment--the right to keep and bear arms of honest, law-abiding American citizens. It is the Second Amendment, itself, that gun control advocates are really targeting. Gun control advocates thrust "smart guns" on the populace as a temporary stopgap to attainment of their primary goal, a complete ban on citizen ownership and possession of firearms of any kind.A partial list consists of participants of “The New York City Smart Gun Symposium,” subtitled, “An Action Plan for Moving Smart Gun Technology,” held on August 2, 2016, at the Brooklyn Borough Hall include the following:

• Eric L. Adams--Brooklyn Borough President co-founded "100 Blacks in Law Enforcement Who Care;" organized support against the NYPD’s controversial “Stop and Frisk” policy; and led efforts on behalf of gun control initiatives.
• Leah Gunn Barrett--Executive Director of the antigun group, "New Yorkers Against Gun Violence" ("nyagv.org") and "CeaseFire MD," another antigun group that led efforts for an "assault weapons" ban
• David H. Chipman--Senior Policy Advisor for the antigun group, "Americans for Responsible Solutions," established by Gabby Giffords and her husband Mark Kelly
• Ralph Fascitelli--30 years in Tech Marketing and 17 years in Gun Safety and Brand Marketing; became President of the antigun group: "Washington CeaseFire"Mark Glaza--Named “the face of the gun control movement” by the WSJ; is Board President of "Campaign to Unload," which encourages divestment of institutions from gun stocks, and is also Executive Director of "Everytown for Gun Safety."
• Dennis A. Henigan-Former VP of the "Brady Center To Prevent Gun Violence," and author of the books: “Guns Don’t Kill People, People Kill People" and "Other Myths about Guns and Gun Control.” Henigan is a leading advocate of gun control measures and has appeared on several news and news commentary programs, including: 60 Minutes, Frontline, Hardball, Nightline, and The Today Show.
• Stephen P. Teret, J.D., M.P.H.--Professor of Health Policy and Director of the "Johns Hopkins Center for Law and the Public’s Health," a known gun control advocate who drafted the N.J. “Childproof Handgun Law” of 2002.
• Loretta Weinberg--New Jersey Senate Majority Leader and Co-sponsor of the N.J. “Childproof Handgun Law.”

QUESTION #8. WHERE DO STAND ON THE ISSUE?

• It should be obvious by now that I am not in favor of “smart guns.”

QUESTION #9. WHAT WOULD BE A GOOD WAY TO REDUCE “GUN VIOLENCE?”

• More law-abiding citizens who choose to carry and possess firearms and receive training in their proper and safe use will deter crime, coupled by strict enforcement of laws on-the-books and prosecution and imprisonment of criminals found guilty of violent crimes, and no plea bargaining in cases involving criminal use of a weapon.

QUESTION #10. WHAT WOULD BE A GOOD WAY TO REDUCE “ACCIDENTAL DEATHS?”

• Commonsense, training, and education in the proper and safe use and safeguarding of firearms and dangerous instruments.

--END--______________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

KOLBE VS. HOGAN: A SECOND AMENDMENT CASE DECISION THAT IS CONTRARY TO THE RULE OF LAW

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

WHAT DOES THE RULE OF LAW REALLY MEAN?

KOLBE VS. HOGAN

PART NINE

Politicians love to pontificate, tirelessly, grandiosely, often meaninglessly. We hear them say that our Country is ruled by law, not by men, proclaiming, indefatigably, assiduously, pompously, but ingenuously, how important the rule of law is in a free Democratic Republic and how much importance they attach to the concept of the rule of law—that is to say, how much importance they attach to the concept of the rule of law over men as opposed to law ruled over by men.Yet, as with any overused expression—the rule of law phrase no less so than any other expression becomes trite, over worn. The phrase has been, through much misuse and overuse by politicians and political pundits and hacks, reduced to cliché with little if any real effect and efficacy behind it. It is recited with little thought and care as to its import. So, we should step back and ask what the phrase means as used in the sentence: our Country is a Nation ruled by law, not by men. What does that sentence as a proposition to live by—for the people to be governed by—really mean, were it in fact adhered to, rather than given mere lip service? It means just this: no person, regardless of position, wealth, status, or station, stands above our Constitution, our Bill of Rights, our system of laws, our jurisprudential authority. That is the intent at any rate, lofty as that intent is, and so often disregarded.We, Americans, are supposed to be governed by laws, but laws and jurisprudential standards, consistent with the dictates of our Nation’s Constitution, sublimely overseen by our Nation’s Bill of Rights. That is as the framers of our Nation’s Constitution with its preeminent Bill of Rights intended. That is as the founders of a free Republic envisioned. That is as our Nation was always supposed to be. What happened to change this?Quietly, subtly, seemingly irrevocably we are sliding into the throes of tyranny, which, by definition, means a Nation ruled by men—by the dictates of men—not by law.

HOW TYRANNY ARISES IN A FREE REPUBLIC

How may tyranny arise in a free Republic—in our free Republic?Tyranny arises in one of three ways. It arises, first, when our Legislative Branch drafts and enacts laws that subvert our Constitution or subvert our Bill of Rights. We see this, firsthand, through Congressional enactment of laws that undermine the searches and seizures clause of the Fourth Amendment and Congressional enactment of laws that whittle away at the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution. We see this also when laws designed to protect the integrity of our borders are not adhered to. How often do we hear by Congressional Democrats and by Congressional Centrist Republicans that the Nation’s immigration laws are broken—a scarcely disguised phrase that means we have millions of illegal immigrants in our Nation whom—some would argue—cannot feasibly, from a pragmatic standpoint, be returned to their native Countries or that—as others may argue— ought not, from some moral imperative, be returned to their native Countries; and, so, we should amend our immigration laws to allow these illegal immigrants to remain in our Country, providing all of them with amnesty and, eventually, with de facto, if not de jure, citizenship.Yet we ought to ask, before Congress either amends our present immigration laws or repeals the laws outright and rewrites the laws in full, how is it that we have eleven or twelve million illegal immigrants in our Nation? Where did they all come from? How did they happen to be here? It is not as if eleven or twelve million immigrants surreptitiously crept across our borders overnight. They came in dribs and drabs over decades. That would suggest that our present immigration laws are not broken at all and that they never were broken. It is simply that the federal Government never adequately, zealously enforced the laws we have. Similarly, it may be convenient and useful for some to say that we have a problem with gun violence and that we should curtail civilian citizen ownership and possession of firearms. But, to account for gun violence, is the problem to be found in the millions of law-abiding civilian citizens who own and possess firearms or is it, rather, in the lack of enforcement of federal and State criminal laws that the problem of gun violence truly rests? Do we then ask of Congress that it enact further gun laws directed against the citizen civilian population? Would that really address the problem of gun violence that is the product of criminal misuse of firearms? Tyranny arises when Congress—the First Branch of Government—either fails to enforce the useful laws—those designed to preserve and strengthen our Nation’s values and traditions, and our rights and liberties—or enacts useless or bad laws—laws at odds with our values and traditions, and at odds with our sacred rights and liberties.Tyranny arises, second, when the Chief Executive of the Nation, the Second Branch of Government unilaterally undermines our Constitution and our Bill of Rights, occurring through executive edict and fiat, essentially subsuming the functions of the Legislative Branch, unconscionably into the Executive Branch. We saw this firsthand with Barack Obama’s misuse of executive directives, most glaringly, those directives weakening our immigration laws and those directives weakening the right of the people to keep and bear arms, and those directives aimed at weakening our moral codes.We would have seen this through the misuse of executive directives had Hillary Clinton assumed the Office of the U.S. President. Where a U.S. President ignores the laws enacted by Congress or where a U.S. President actively contravenes the laws of Congress, or where a U.S. President creates his or her own laws through edicts and directives adverse to the laws laid down by Congress, thereby becoming a law unto himself, this is tyranny. This means our Nation is ruled by men, not by law.In these two instances the Legislative and Executive Branches of our Government often take their orders from powerful, secretive interests, desirous of supplanting the U.S. Constitution and the Bill of Rights in the pursuit of personal nefarious interests at odds with the rule of law, at odds with the Separation of Powers Doctrine, and at odds with the rights and liberties and protections secured for the benefit of the American people under the Nation’s Bill of Rights. Thus, we would see our Country proceeding inexorably toward ruin. We would see our Country, as an independent, sovereign Nation and as a free Republic, in jeopardy.But, there is a third threat to our Nation’s continued existence as a free Republic and as an independent sovereign Nation, second to no other Nation.Tyranny arises, third, when our Judiciary--the third Branch of our Government—comprising our Federal Courts--go awry, ignoring its own case law precedent, peppering and lacing case decisions, not with the law as it exists, but with law as individual jurists would like that law to be, creating new “law” out of whole cloth—new law that undermines, rather than safeguards, our Bill of Rights—new law that supports a jurist’s personal philosophical convictions and beliefs—such personal philosophical convictions and beliefs that, taken to the extreme, disassemble our sacred rights and liberties—that, taken to the extreme, supplant our rights and liberties with artificial constructs, denigrating the very idea inherent in our legal system, namely that our Constitution, our Bill of Rights, reign supreme—second to those of no other nation, and no group of nations, and no international tribunals.The threat to our Nation—our Nation as a Free Republic, grounded in and overseen by our Bill of Rights, codifying natural law, our fundamental rights, supreme, emphatic—is most serious, most grievous, and most egregious when that threat derives from an overzealous, freewheeling Federal Judiciary, operating from a personal philosophical perspective, one at odds with the import and purport of our Nation’s Bill of Rights, one in contravention to clear case law precedent that promotes uniformity, consistency in our body of law.The threat posed by a federal judiciary that eschews case law precedent constitutes a serious breach and the most serious threat to our Nation and to the rule of law, for the federal Judiciary, as the Third Branch of our Government, as the interpreter of law, is the final bastion of “the rule of law.”If a federal judiciary forsakes its duty under the law, tyranny arises in the most devious way imaginable, for it is in the third Branch of Government—with its learned practitioners of the law—most adept at subverting the law if it so chooses—doing so secretly, within the interstices of complex terminology and argot—that the lay American public becomes hoodwinked, thinking that its rights and liberties are other than the way the public might think--less than they may have imagined--less than they really are. That is where the true subversion of the rule of law occurs.The Second Amendment case ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), illustrates how far some federal courts will go to decide cases in contravention to United States Supreme Court precedent, doing so through dissimulation, through dissembling; and, in so doing, acting in league—whether conscious or not—with those unscrupulous interests in Congress and with those sanctimonious interests in the mainstream media, and with those hardened, confident, powerful, shadowy, ruthless interests behind the scene—to undermine our most sacred right—the right of the American people to keep and bear arms in their own defense, in defense of their families, and in defense of all American people— against tyranny.It is one thing for Courts to denigrate the sanctity of the Second Amendment through misapprehension of the law. It is quite another for Courts to denigrate the sanctity of the Second Amendment through deliberate misapplication of the law. Unconscious misapprehension of the law in judicial decision-making may be pardonable although its impact on the lives of Americans is harmed just the same, albeit contained. Deliberate misapplication of the law in judicial decision-making isn’t pardonable. It operates as a betrayal. That betrayal suffuses itself throughout the body of our Nation’s law, throughout the entirety of our system of law, throughout our jurisprudence, weakening the very heart of the Constitution—the Bill of Rights, negating the principle that we are a Nation ruled by law, not by men.Part Ten of the Arbalest Quarrel analysis of the disastrous Fourth Circuit Kolbe decision follows forthwith, where we begin our in-depth analysis of the lower U.S. District Court of Maryland that first decided Kolbe. We explain how the lower Federal Court contravened U.S. Supreme Court case precedent, rendering a decision wholly at odds with the holdings and reasoning of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008).______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE MECHANISMS FOR BRINGING DOWN A U.S. PRESIDENT

HOW TO DESTROY A U.S. PRESIDENT

PART THREE

THE FIRST MECHANISM: THE ETHICS IN GOVERNMENT ACT OF 1978—NOW DEFUNCT.

One mechanism to bring down a U.S. President is through Congressional Statute that calls for appointment of independent counsel to investigate and to prosecute crimes of the highest Government Officials, including those crimes, most notably, of a U.S. President, but only after the Attorney General has concluded, after conducting a preliminary investigation of possible criminal conduct, that further investigation is warranted.The Ethics in Government Act of 1978 was designed to ensure ethics and integrity in Government.The expression, “independent counsel” refers here to counsel in private practice: an attorney who is not, then, an employee of the federal Government but who wields expansive authority to undertake criminal investigations and prosecutions of high Government officials.The Act had a sunset provision. It would automatically lapse unless Congress reauthorized the Act and Congress did so: in 1982, 1987, and 1994. But the law lapsed in 1999 after Congress, under pressure from Bill Clinton’s Administration and by the Democratic Party, allowed it to lapse.Fifteen plus years passed, and then two Congressmen, Republicans, Michael Turner and Rick Allen, sought to revitalize ethics and integrity in Government, introducing the Independent Counsel Reauthorization Act of 2016, H.R. 5271, on May 20, 2016. The two Congressmen took this action when it became apparent to them that the U.S. Department of Justice demonstrated reluctance to hold Hillary Clinton accountable for numerous and serious criminal acts—criminal acts conducted during Clinton’s tenure as Secretary of State in the Obama Administration.The Independent Counsel Reauthorization Act of 2016 would have required the Attorney General—at the time, Loretta Lynch—to make provision for appointment of outside counsel, in accordance with the procedures set forth in the Act, to investigate Hillary Clinton’s crimes and to prosecute Clinton for her crimes against this Nation and against the American people. Loretta Lynch would have been compelled to exercise her duty under the Act to relinquish further action by her Department in the Clinton investigation of felonious acts and hand over that investigation to outside counsel through the procedures set forth in the Act.Clearly, Hillary Clinton violated federal law—several laws, serious laws—felonies—and she committed those crimes several times, and over several years, during her tenure as Secretary of State in the Obama Administration.The Arbalest Quarrel has dealt with this matter at length in articles posted on the Arbalest Quarrel website. The Arbalest Quarrel urged Congress to enact the Independent Counsel Reauthorization Act of 2016, as it was clear to us that the Director of the Federal Bureau of Investigation, James Comey, would not recommend indictment of Hillary Clinton, or was pressured not to recommend indictment of Clinton. As of this writing, the Independent Counsel Reauthorization Act of 2016 lies dormant—dead, really, in Committee. See, DEMOCRATS AND CENTRIST REPUBLICANS ARE THE PROBLEM. THERE IS A SOLUTION: IMMEDIATE ENACTMENT OF H.R. 5271; and THE FOUNDATION OF JUSTICE UNDONE BY THE FOUNDATION, CLINTON.THE SECOND MECHANISM: A DEPARTMENT-MADE RULE, CALLING FOR APPOINTMENT OF SPECIAL COUNSELOstensibly, to fill the gap left through failure of Congress to reauthorize the Ethics in Government Act of 1978 or to replace it through passage of another similar Act, such as the one languishing in Congressional Committee—the Independent Counsel Reauthorization Act of 2016, H.R. 5271—the Justice Department on its own initiative promulgated a rule, calling for the appointment of special, outside, counsel. That rule constitutes the second mechanism that might be used to destroy a United States President.The device employed by the Justice Department exists in an obscure federal regulation, falling within TITLE 28, JUDICIAL ADMINISTRATION, CHAPTER VI, OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE, PART 600, GENERAL POWERS OF SPECIAL COUNSEL. The mechanism here establishes the procedures for appointment of independent, private counsel to investigate violation of federal law when a conflict of interest within the Department of Justice precludes the Department from properly, effectively engaging in the investigation and prosecution of federal crimes committed by high ranking public officials. The mechanism is found in federal regulation: 28 CFR 600.1, titled, “Grounds for Appointing a Special Counsel.”It is through this mechanism that the Deputy Attorney General, Rod Rosenstein, intends, like Pontius Pilate, to wash the hands of personal responsibility on his part, on the part of his Office in the Justice Department, and on the part of the FBI, as he quietly sits by to watch the undermining of and possible destruction of the U.S. President, Donald Trump and his Administration, and, the undermining of the Second Branch of Government. We will look at this Rule, at length in a subsequent article in this series.We will seek to answer three questions. The first question is this: Is the federal Rule lawful? Americans often presume, wrongly, that rules a Government Agency promulgates, are lawful. A Government Agency can only promulgate rules in accordance with Congressional intent and objective, as reflected in Statute. When doing so properly, lawfully, agencies promulgate rules to give effect to Statutes—to enforce the laws Congress enacts, within the parameters established by Congress in Statute.This is as it should be under our three Branch system of Government. However, if the Statutes promulgated extend beyond the parameters set forth in Statute—or, in a worst-case scenario, are promulgated absent any Congressional Statutory authority, which means the Government agency has acted unlawfully, becoming, in effect, a Legislative Body unto itself—then such rules must be struck down as unconstitutional.The Second question is this: Assuming the Rule is lawful, did the Attorney General, or his Assistant—in the event the Attorney General recuses himself or herself—properly invoke the rule? There is a general assumption—one that the mainstream media has not investigated and one which Congress has not, evidently, bothered to consider—that the Deputy Attorney General, Rod Rosenstein, did properly invoke the Rule, appointing a Special Counsel. But did he? Once again, before we even get to that question, there is the fundamental question that goes to the constitutionality of the Rule itself. For, if the Rule has not been promulgated lawfully, then the issue whether the Deputy Attorney General had properly invoked the Rule is moot since under no circumstance can a special counsel be appointed because the Rule, under which such special counsel is appointed, is per se unconstitutional.There is a third question we must ask and answer. It is this: Assuming 28 CFR 600.1, titled, “Grounds for Appointing a Special Counsel,” is lawful, and, given that Congress would not enact the Independent Counsel Reauthorization Act of 2016, why didn’t the Attorney General under then President Barack Obama--Loretta Lynch--invoke the 28 CFR 600.1, appointing outside “special counsel” to investigate and to proceed with the prosecution of Hillary Rodham Clinton, who, unlike Donald Trump, did in fact commit unlawful felonious acts under federal law? It appears that the Department of Justice, through the Deputy Attorney General, Rod J. Rosenstein, is willing to invoke the Rule against Trump, with little thought as to the legal justification for the appointment, for there is no compelling, justifiable reason for him to do so as there exists an absence of any credible evidence of criminal wrongdoing on the part of the U.S. President, Donald Trump, or on the part of anyone in his Administration or in his campaign, and there exists no probable cause that either the U.S. President or anyone in his Administration or in his campaign committed an act that can reasonably be attached to violation of federal law, despite the tortuous contortions of some politicians who would turn bare and baseless allegations into evidence of wrongdoing, and despite the mainstream media echoing the sentiments of the politicians bent on destroying the U.S. President and bent on destroying those in his Administration. Yet, there existed, at another point in time, in comparison, incongruously, no desire on the part of Obama’s Attorney General, Loretta Lynch, or on the part of Lynch’s then diffident and reticent but now vociferous and strident Deputy Attorney General, Sally Yates, to invoke 28 CFR 600.1 against Hillary Clinton—a person whom the FBI had heretofore investigated over a substantial period of time, having found substantial evidence of multiple counts of serious crimes, committed multiple times, over a lengthy period of time. Fancy that!We will parse 28 CFR 600.1 in the next segment of this multipart series, dealing at length with the three questions posed.

THE THIRD MECHANISM: IMPEACHMENT

Impeachment is a process that Congress may invoke and that Congress alone may invoke. The mainstream media and more than a few unenlightened, vicious members of Congress, bandy impeachment about without a care as to the seriousness of it, especially when applied to the U.S. President—the literal embodiment of the Second Branch of Government.The most important clause, pertaining to the impeachment process, is that found in Article II, Section 4. It says:“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”One must understand that the impeachment process is, notably and singularly, a political process, not a criminal process. The question thus arises whether Congressional use of it, especially as against U.S. Presidents, springs less from the appearance of criminal wrongdoing on the part of a U.S. President, and more from the desire of some members of Congress who wish to use it against a U.S. President whom they simply dislike. We will take a close look at the mechanics of the impeachment process and then ascertain whether those in Congress who would dare use the impeachment process against Donald Trump would do so, not for any perceived wrong committed, but because they happen to bear a personal grudge against this U.S. President. If so, such sanctimonious members of Congress should suffer censure by their brethren.We will look closely at the mechanics of the impeachment process, under our Constitution.

THE FOURTH MECHANISM: APPLICATION OF THE 25^TH AMENDMENT

USCS Const. Amend. 25, USCS Const. Amend. 25, § 4 sets forth in pertinent part:“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department [departments] or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office."The forces that would dare destroy Donald Trump’s Presidency seek, in truth, to destroy this Nation and its Constitution, and its Bill of Rights. Until Donald Trump had taken the oath of Office, little if anything had ever been heard of the 25^th Amendment either in Congress or in the mainstream media. Curious, now that Donald Trump is the Nation’s 45^th President, the hidden forces that envision a New World Order, have pulled out all the stops, looking for a means, any means, through which to take down a man whose one cardinal sin is to dare place “America First” among Nations. For that reason—and as “payback” for upsetting the applecart—defeating their puppet, Hillary Rodham Clinton—the forces that would crush this Country and its people into submission will use a means, any means, however dubious, to destroy Trump and his Administration. If the insidious, powerful, ruthless forces, that hide in the shadows, succeed in undermining Trump's Presidency, the destruction of our free Republic and of our Constitution, upon which our Republic rests, will follow. The one entails the other.We will look at the history of, and the import and purport of, the 25^th Amendment in a forthcoming article.

FURTHER ANALYSIS, ON THE MECHANISMS TO DESTROY A U.S. PRESIDENT, TO CONTINUE, IN FUTURE ARTICLES

We will discuss these mechanisms, in depth, in subsequent articles. Congress and the mainstream media simply skirt over them. A deep understanding of these mechanisms deserves the attention of all Americans. The sanctity of the U.S. Constitution and the preservation of our free Republic are at stake. Beyond these critical concerns, we see a duty to protect the honor and good name of the U.S. President, Donald Trump, against the treachery of those who seek to tarnish his good name and his honor.________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

AMERICA FIRST? NOT IF THE CONGRESSIONAL DEMOCRATS AND CONGRESSIONAL CENTRIST REPUBLICANS HAVE THEIR WAY.

HOW TO DESTROY A U.S. PRESIDENT

PART TWO

It should go without saying, but we will say it anyway because few other voices are saying it: This Country needs Donald Trump! A substantial number of Americans understands this and agrees with this assertion. Those who do not are prone to smug self-complacency, or to mournful resignation, or to emotional hand-wringing, or have simply given to parroting the nonsense spouted through the mainstream media believing that the nonsense emanates from their conscience when it is but an external virus thrust deep into the subconscious mind through insidious unrelenting psychological programming, where it remains to do its harm.Our Country has lost its way. For far too long our Nation has been backsliding into defeatist statism. With Trump’s ascendancy, we have the means to return to our traditions, our heritage, our values, our sense of purpose, our pride in Nation, in family, in self. But, Congressional Democrats and Congressional Centrist Republicans don’t want this. The two groups share the same basic political goals and objectives. Those goals and objectives are contrary to the well-being of our Nation and its citizenry. Our President, Donald Trump, has charted a new course for our Country, one in line with the founders’ beliefs and ideals, one that asks the question, what is in our best interests of our Country rather than what is the best interests of other Countries. But, the naysayers—the Congressional Democrats and Centrist Republicans—will have none of it.

THE AIMS AND OBJECTIVES OF CONGRESSIONAL DEMOCRATS AND CENTRIST REPUBLICANS

One, Congressional Democrats and Congressional Centrist Republicans machinate continuously for an expansion of neoliberal globalist economic policies. This operates to the detriment of American labor and small business although beneficial to the multinationals, whose allegiance to any Nation State is nominal at best.Two, Congressional Democrats and Congressional Centrist Republicans support the relaxation of our immigration laws. In so doing, they would effectively destroy the geographical integrity of our Nation. This reflects a conscious desire to mirror the aims of EU leaders, who seek, subtly, to erode the independence and sovereignty of individual European Nation States through uniform economic, political, and social governance, assisted through the slow dissolution of an individual Nation State's national identity.Concomitant with the relaxing of our Nation’s laws on naturalization, the two political groups, comprising the Congressional Democrats and Congressional Centrist Republicans, would give amnesty to millions of illegal immigrants, dismissing concern over the fact that at least hundred thousand of them belong to criminal gangs and drug cartels or are otherwise common criminals. A policy of amnesty for those residents in our Country, who are here illegally and are not, then, of our Country, would do nothing to curtail further influxes of illegal aliens entering our Country. To the contrary, granting amnesty to those persons who reside in our Country illegally would simply encourage millions more to enter this Country illegally, encouraging, also, the disassembling of our Nation’s history, its traditions, mores, and values, all of which would be replaced with a program reflecting new ideas and ideals--ideas and ideals at odds with our Country’s ideals and traditions. These new ideas and ideals include: multiculturalism, bilingualism or multilingualism, historical revisionism, ethical relativism, and obscuration and ambiguation of our sacred rights and liberties.Three, Congressional Democrats and Congressional Centrist Republicans would carelessly invite into our Country—with the connivance of friendly federal Courts—millions of Muslims from failed Arab States, some of whom are, no doubt, actively in league with or who otherwise share sympathies with various Fundamentalist Islamic factions, all of which are resentful toward our Nation, its values, its laws, and which exhibit hatred toward our citizenry.For those Islamists who are not radicalized on admission to this Country, there exists the inherent danger posed by radicalization, after the fact, as we have seen manifesting with disturbing regularity in this Country and in Europe.Radical Islam constitutes a clear and present danger to the security of this Nation and to the safety and well-being of its citizens. Those who espouse utilitarian ethics piously endanger the safety and well-being of our citizenry.Four, Congressional Democrats and Congressional Centrist Republicans adhere to and exhibit a fascination for neoconservative principals that reflect a desire for expanding influence--through any means—diplomatic or military—both in the Middle East and in the Baltic States. This expansionism merely for the sake of expansionism does not serve the security interests of our Nation and is, in fact, detrimental to our national security interests. It has cost our Country dearly in both currency and blood. Moreover, neoconservative policies have destabilized the Middle East. Dictators, such as Hussein, Gaddafi, and Assad have kept radical Islamic rebel groups at bay for decades. Removing two of the three has created a vacuum in the Middle East which has threatened the third. Would removal of Assad reverse the trend? Not likely. Nor would neoconservative policies designed to expand NATO influence in the Baltic States serve our Nation’s security interests. One need only consider how close the world came to nuclear annihilation when the Soviet Union encroached on our hemisphere through plans to plant nuclear weapons in Cuba, aimed at the U.S. We should not encroach on territory abutting Russia. Yet, this idea is not in line with the policies favored by the Congressional Democrats and Congressional Centrist Republicans that treat Russia as an adversary, even an enemy--policies that would in fact turn Russia into a most formidable adversary and enemy—policies in vogue with and pushed by Congressional Democrats and by Congressional Centrist Republicans and by the EU leadership, that profit from those who support them—the internationalist, globalist interests. These internationalist, globalist interests make their financial fortunes by promoting continuous tumultuous international tension, volatility, and upheaval. That is decidedly good for their profit margins. That is their upside. But, an unstable world has a downside for the American people: endangering their well-being, their own financial security, their very lives.Five, the Congressional Democrats and Congressional Centrist Republicans seek to denigrate the notion of the inherent sovereignty of the Nation State. By undermining the value Americans place in this concept, Congressional Democrats and Congressional Centrist Republicans, seek, at the behest of the inordinately wealthy, immensely powerful, highly secretive, and utterly ruthless globalist, international forces that fund and control them, to loosen the historical ties that bind our Nation to its Constitution, that sanctify our rights and liberties, that solidify our values and traditions. With the loss of the ties that bind the American people to their Nation and to their National identity, the rights and liberties of the people are lost; the Constitution is undermined; the Nation’s great body of laws, it system of laws, the legal philosophical principals and jurisprudential underpinnings, all of which provide the foundation of our governance are subordinated to the legal system and laws of foreign courts and international tribunals. The sovereignty of our Nation is jeopardized.Americans would see the eventual absorption of their Country into a wholly new economic, social, and political framework and reality—a new world order—a new economic, social, and political system mandating the disassembling of and the eventual eradication of the sovereignty of all Western Nation States. These Nation States would be reconstituted as subordinate elements within a large corporate consortium of member units, governed by a group of ruthless, inordinately wealthy and immensely powerful overseers who, alone, would wield supreme economic, political, and social powers over the masses. The masses would euphemistically be described as “citizens of the world”—a phrase even now coming into vogue through the assistance of the mainstream media.This is what the destroyers of our Nation, of our Bill of Rights, of our history, of our traditions, and of our values, want, and that is what we will most certainly get, in time, if the powerful, secretive forces that seek to undermine Donald Trump’s Presidency prevail.What is currently underway is no less than a quiet coup dˊétat of Government -- to destroy a U.S. president.In Part three of this series we look at the mechanisms the destroyers of our Nation would use to bring down a United States President.__________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

CONSTITUTIONAL CRISIS? YES! BUT, DOES THAT CRISIS REST WITH TRUMP OR IN THE ACTIONS OF THOSE WHO WISH TO DESTROY TRUMP?

HOW TO DESTROY A UNITED STATES PRESIDENT

PART ONE

Several Congressional Democrats, along with their fellow travelers in the mainstream media, have claimed, in recent days, that our Nation faces a “Constitutional crisis.” That is the phrase they use: serious to contemplate, surely, and dangerous in its implications. They are correct, but not in the way they think and, so, not in the way they present their claim to the American people. The claim they present to the American public is based on the notion that our President has no legitimate claim to the U.S. Presidency and that, as long as he retains the Presidency, our Nation suffers Constitutional crisis. The notion is absurd, of course.Our President, Donald Trump, has campaigned vigorously and fairly in a difficult election and the American people have elected Trump in strict accordance with our system of laws. Yet these Democrats, along with journalists of the liberal mainstream media, assert, nonetheless, that Trump is not the legitimate U.S. President, and, therefore, must go.You would think that politicians who have the audacity to make the assertion would explain what they mean by it. But they prefer to presume Americans will accept their claim on faith as self-evident, when of course it is not. Some Americans, surprisingly, do accept the claim on faith. Most, though, do not. Those who do not accept the claim on faith insist on an explanation for it. They will never receive one. If pressed, politicians will grow irritated. They become upset because no discernible, concrete facts support the claim they have made. They are dumbfounded that a person would dare question them. They are flummoxed if one persists; if one insists on an answer.With casual, familiar bluster, ignoring remonstrations from Americans who do not accept the pompous empty claim made—that Donald Trump and his Administration are illegitimate pretenders—these politicians simply reiterate their empty, hollow, baseless claim, and the mainstream media callously echoes the sentiment.If one looks for independent confirmation of the empty claim, they will find none. For, no discernible, concrete facts support the claim asserted. It is pointedly ludicrous. But, it makes for good theater, as the bald claim shocks both the consciousness and the conscience of Americans, as it was meant to do.Congressional investigations are called to support the claim of the illegitimacy of the Trump Presidency. The conclusion is predicated on an assumption: that Trump’s "legitimate" victory is impossible. So, then, how did it happen? There must be an answer. Politicians chase, hither and yon, after ghosts—Russians, WikiLeaks, Comey, Flynn; this one and that one; assorted denizens of fevered imaginations: unicorns and centaurs; fairies and elves; Martians and Venusians. Take your pick! But all this comes at public expense—costing the taxpayers millions of dollars—looking for a reason, a rationale, a scapegoat, however dubious, however implausible, however unlikely or however nonsensical—something, anything, to support, to give credence to, to account for a Trump inauguration, rather than a Clinton coronation. Meanwhile Congress does not do the business of Government, as the real business of Congress, serving the American people, languishes as Congress traipses, aimlessly, looking for bugaboos in the bushes.Unfortunately, this “theatrical display” of hypocritical righteousness and sanctimonious indignation comes with tangible and substantial cost, wholly apart from the monetary outlay; for, a real threat to the preservation of our Nation as a free Republic and to our Constitution, as the foundation of that Free Republic, does exist and has existed for some time. We have seen this threat played out in the actions of the previous U.S. President, Barack Obama, as he slowly dismantled our Bill of Rights through Executive fiat, predicating his actions, defiantly, presumptuously, on a private notion of morality that he thinks more fitting than the profound wisdom of the founders of our Nation; the framers of our Constitution. But, the Press raised nary an eyebrow.Make no mistake: the threat to the preservation of our Nation as a free Republic and the threat to the underpinnings of our Constitution would have continued with a Clinton Presidency. To begin, Hillary Rodham Clinton is a criminal. Of that, there is no doubt. Her crimes are both serious and legion. The idea that she, rather than Trump, would better serve the American people is laughable to consider; yet, the reality would be no laughing matter. It would be horrific.A Clinton Presidency would be an affront to the dignity of the Office of the Chief Executive of our Nation; a sacrilege to the rule of law that our public servants claim, mendaciously, to adhere to; an assault against our Constitution and against our sacred Bill of Rights; and a jagged knife thrust into the chest of common decency and moral propriety.Yet, politicians of all stripes, Democrats, of course, but some Republicans, too, and bureaucrats hiding within the Deep State, along with the ubiquitous mainstream media, and Hollywood moguls and performers; and members of the Bilderberg Group and of similar secretive groups conclaves, were “all in” for Clinton. Yet, she lost the election as the American public wasn’t buying any of the nonsense that spouted from her mouth and from that of her surrogates.It was Clinton, the false voices of Democracy wanted, and it was Clinton they would have had, but for the fact that millions of American voters thought otherwise—that and the mechanism the framers perceptively and propitiously cemented in our Constitution—the Electoral College—protected the rights of smaller States to have a voice in our Presidential elections and helped protect the Country from seating a tyrant in the White House.In the 2016 U.S. Presidential election, the Electoral College did operate as a fortunate “fail-safe” device to what otherwise would have resulted in a Clinton Presidency—and the seating of an actual tyrant in the White House. But, there are those in Congress who would much prefer having the tyrant, Hillary Clinton, as U.S. President. And, if they cannot, they intend to destroy a man who seeks to set things right with this Nation—who seeks no less than to place this Nation back on a sound footing, making certain that this Nation's needs and concerns take precedence over those of all other Nations or groups of Nations, and that the laws governing our Nation remain supreme, not subject to subordination to those of any other Nation or international tribunal.This is as the founders of our Nation had intended. This is as they established. This, however, is in contradistinction to what Hillary Clinton had planned for this Nation had she succeeded Obama, as she would have continued his policies: undermining the Constitution; erasing our rights and liberties; and subordinating our Nation's needs, concerns, and laws to those of internationalists, pan-nationalists, and to those espousing multiculturalism, globalization, multilateral trade agreements, historical revisionism, and the removal of all immigration barriers--the vehicles for and harbingers of the eventual dismantling of our Sovereign Nation State and the disassembling of, the disintegration of the very idea of what it means to be an American qua citizen who is not, at once, merely a "citizen of the world," not aligned with or to any particular Country: but a serf of the New World Order. So, then, a true threat to our Nation, in the form of a Constitutional crisis, does exist, but that threat does not lie with Trump or with his Administration. No such threat to our Nation ever existed that can be pinned on our President or laid at his feet. A threat does exist but it has nothing to do with a Trump Presidency. The threat to our Nation lurks in the shadows. It rests in devious, insidious and utterly false challenges to the legitimacy of the Trump Presidency—challenges that arose in the planning stages immediately after the 2016 U.S Presidential election went decidedly and decisively to Trump—and challenges that had commenced immediately after Trump took the oath of Office. Yet these challenges have no tenable legal basis. Why, then, do we see these challenges to the Presidency of Donald Trump?There are forces at work both in this Country, and outside it—forces operating to undermine the Trump Presidency. These forces are extraordinarily wealthy, immensely powerful, extremely adept, inordinately secretive, ruthless in the extreme, assiduous and resolute in their efforts to bring down Donald Trump and his Presidency. These forces are livid over Donald Trump’s electoral success in the 2016 U.S. Presidential election. For, here is a man who has made clear his intent to raise the United States to preeminent status among Nations, a goal manifest in his campaign slogan, “America First.”Donald Trump means to take head-on the destroyers of our Nation State—those forces that seek to undercut our Nation as an independent, sovereign Nation; those forces that seek to rewrite our Constitution; those forces that seek to erase our Bill of Rights; those forces that seek—in the unabashed words of one of their principal spokesmen and pseudo defender of our Republic, U.S. Senator John McCain—to undercut our Democratic Republic through the creation of “a new world order.” John McCain did not elaborate on his use of the phrase when he repeated it over and over one Sunday afternoon on Meet the Press.Yet, Chuck Todd, host of the Sunday news program, did not ask McCain what McCain meant by use of the phrase—even as McCain repeated it, emphatically, several times.The expression alludes clearly and unmistakably to the destruction of our Country as an independent, sovereign Nation; the dismantling of our Constitution, its system of laws, and its jurisprudence; and the obliteration, the eradication of the very idea that the American people have natural rights and liberties that cannot be lawfully taken away by Governmental edict or by force of arms.Those forces that desire to crush our Nation and its People into submission have mechanisms at their disposal. There is impeachment, of course—a political process. In that, we see Centrist Republicans playing into the hands of the Democrats—setting up Committees, engaging in a fishing expedition, in a naked, illicit attempt to bring down a U.S. President simply because the forces that would crush this Nation will not abide a U.S. President who is not their puppet.Donald Trump is not “their boy.” Donald Trump had not been bought and cannot be bought. Hillary Rodham Clinton, on the other hand, has been bought; and,  for her blind obedience to these puppet masters, Clinton and her husband were paid handsomely; and they were paid in full. The forces that crush feel cheated. They require their quid pro quo for their investment. No less than destruction of the Trump Presidency and reassembling of Order, their notion of Order,  will do to set things right—to set matters back on track.But an effete and effeminate Congress, alone, cannot, defeat Trump. Independent Counsel, operating secretly, with full prosecutorial powers can. Appointment of private counsel, with full powers of the Department of Justice, presents a tangible threat to the Trump Presidency. We explain why that is and how that is in the next article.________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE MILITIA CLAUSE IN THE SECOND AMENDMENT: IT IS, UNFORTUNATELY, STILL AT LOGGERHEADS WITH THE INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety

KOLBE VS. HOGAN:

PART EIGHT

Those Lower Federal District Courts And Higher Federal Circuit Courts Of Appeal That Seek To Disarm Americans, Do So In Clear Denigration Of The Core Of The Second Amendment And In Clear Defiance Of The U.S. Supreme Court Decision And Reasoning In Heller.

When deconstructing the history of Kolbe, (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individual’s service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movement’s benefactors in Congress, in the media, in finance, and in several of the Courts, may finally be laid to rest. Yet, that isn’t true at all. Those opposed to Heller's rulings maintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though, should not be surprised about this. After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by, the positions embraced by, and the legal and logical conclusions deduced from the premises accepted by the Court's majority in reaching their conclusions. For, the Heller Court majority accepted, as axiomatic, and, in the first instance, that the right of the people to keep and bear arms is a natural right, preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. This sacred principal, that the right of the people to keep and bear arms is a natural right, preexistent in man, is consistent with the framers' belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through its Government, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept, would never accept. Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed to those conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Court’s majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of the nature of and extent of the philosophical differences that lay between them, that informed their notions of the individual's relation to Government. They pushed back and pushed back hard against the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions, in Heller are legally and logically weak. The reasoning of the dissenting Justices is logically faulty, often internally inconsistent, incoherent, and clearly antithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdle that weakens their position and ultimately makes their position untenable, ultimately reducing their argument to a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can, at least in theory, under the dissenting Justices' thesis, be vindicated. This is critical. For, if the right of the people to keep and bear arms cannot be vindicated, then the right does not exist, and the right codified in the Second Amendment reduces the Second Amendment to a nullity as the right sits empty in the Second Amendment, as a bald face lie. Of course the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say that even as inconsistencies in their position illustrate that the right codified in the Second Amendment simply cannot, under their thesis, be vindicated. It is a painful thing to see--and their contempt for the right codified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet, Justice Stevens lays out this odd gambit, proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear arms can be vindicated, notwithstanding that the right is tied exclusively to one’s connection with and service in a militia. But, is not the right of the people to keep and bear arms, then, as argued by Justice Stevens, a collective right, after all? If so, the right cannot be an individual right. It is one or the other, not both; and it must be one or the other. But, the two are mutually exclusive. But, if the right of the people to keep and bear arms is a collective right, after all, then, how is the right ever to be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, the point that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.Justice Stevens attempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits that the reader can and should dispense with the individual right/collective right distinction in the context of the Second Amendment. He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding of the import and purport of the sacred right embodied in the Second Amendment. Still, he posits, up front, that the reader can and should  dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural law--that the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens asserts it anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can exist within the notion of connection with one's service in a militia--a collective right, after all, a collective right that does not and cannot exist legally, and, more importantly, a right that does not and cannot exist logically. Justice Stevens thereupon, negates, tacitly, at least, the truth of the assumption he makes, and his argument, existing as it does on that single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia, Justice Stevens continues with the crux of his thesis, namely that the Second Amendment's dependent clause, that he refers to as a "preamble," carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by, limited by the "preamble." Justice Stevens claims that the preamble is critical to an understanding of the meaning of the right established. He emphasizes the importance of the "preamble" to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all. Enforceable rights do not exist in the preambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The right is contained solely in the independent, operative clause of Second Amendment. And, in that operative clause of the Second Amendment there is no qualification or condition, limiting the extent of the right. Moreover, as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. He opines, “The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be ‘well regulated.’ In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.” District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687. Were Justice Stevens correct—an opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as well—a question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to one’s service in a militia, does not that interpretation essentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.Justice Stevens was, apparently, astute enough to recognize the problem with his position. It’s a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.Attempting to circumvent Justice Scalia’s point, Justice Stevens asserted in his typical roundabout, fashion that, “The Court assumes—incorrectly, in my view—that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to ‘organiz[e], ar[m], and disciplin[e], the Militia,’ Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees ‘citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them.’ Ante, at 600, 171 L. Ed. 2d, at 662.” District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20. Justice Stevens argues in his dissenting opinion that Congress cannot exclude one’s right to keep and bear arms. But, suppose a State should decide to exclude one’s right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against one’s own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a State’s militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made construct--a militia--and, if so, the right, then, does not exist and never existed at all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then, in the individual. A State’s militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a State’s National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. “Today, the states’ security personnel are not militiamen, but principally are the members of local law enforcement—and the bulk of counterterrorism work will fall to them.” “The Security Constitution,” 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School. Expanding upon the point, the author says, in a footnote, “In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the ‘State National Guard,’ in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, ‘the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis.’ Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment - the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard - as part of the national military - for homeland security purposes.” 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.To tie the right of the people to keep and bear arms into the notion of a "militia" or into the descendent of the militia--the National Guard, which is essentially a part of a "standing army"--the very thing the framers sought, in the codification of the right in the Second Amendment to be a guard against--turns the right into a blasphemous, ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens’ intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburg concurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the public--where excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendment--a contempt shared by the liberal wing of the Court that concurred in his opinion--is on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing, in Printz, essentially that the Federal Government must require the individual States to clamp down on an "armed citizenry." This according to Justice Stevens, in his usual twisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference? In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Court—in an opinion penned by Justice Scalia, for the majority—invalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting “the epidemic of gun violence”—which, Stevens felt the Brady Act was enacted to combat.With his proclivity to contort ideas through verbal legerdemain, Justice Stevens argued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to “create vast national bureaucracies to implement its policies.” Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959 (1997). Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individual’s right to keep and bear arms is a function of one’s connection with a State militia qua a State’s National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenry’s connection with a State’s militia qua National Guard, as merely an adjunct of the Federal Government’s standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?Does it matter whether it is the State that constrains the individual or the State that constrains the individual on behalf of and at the behest of the Federal Government, or the Federal Government that constrains the individual on its own behalf and at its own behest? Tyranny is the end result in any event, however one chooses to look at it.________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

DOES THE SECOND AMENDMENT CODIFY NATURAL LAW, PREEXISTENT IN THE INDIVIDUAL, OR IS THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS A MAN-MADE CONSTRUCT?

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety

KOLBE VS. HOGAN

PART SEVEN

The Underpinnings Of The Second Amendment Right Of The People To Keep And Bear Arms

Against the backdrop of every major Second Amendment case rests a fundamental and profound philosophical question. The question is this: does the right of the people to keep and bear arms exist as a quality, feature, attribute, aspect, condition, or characteristic intrinsic to the individual, existing, then, within the individual, or is the right to be perceived as an endowment, bestowed on the individual by others, something, then, extrinsic to the individual—existing, if at all, outside the individual? If the right of the people to keep and bear arms is extrinsic to the individual, this means the right is a human invention. It is a construct, convention, or contrivance. It is a thing created by and then granted to, licensed to, or bestowed upon the individual by another entity, say the State, through Government. But, if it is a thing bestowed upon the individual by the State, then the right does not belong to the individual. The right belongs to the State. The State may, then, at its discretion, at its whim lawfully withdraw or rescind the right so bestowed upon the people. That means the right of the people to keep and bear arms is less a right than a privilege of the people to keep and bear arms—a privilege which the State may grant, or cede, or license to an individual, for a time, and, thereafter, at the State’s pleasure, rescind or withdraw. The individual has no legal recourse to contest the privilege rescinded or withdrawn except to the extent that law set forth in statute—also a creation of the State, through the State's government, yet another man-made construct—allows.If, however, the right of the people to keep and bear arms is an inherent quintessential quality, feature, attribute, characteristic, condition or aspect of each person, existing within an person qua an autonomous individual, this means, by logical implication, the right exists outside of and independently of the State. If so, the right of the people to keep and bear arms operates as an extraordinary constraint on the State’s power, through Government to regulate and control the exercise of the right. For the right is indefeasible, immutable, archetypal, preexistent in the soul of man, and therefore resting beyond space and time. In its purest application, the right of the people to keep and bear arms is absolute. The right cannot be constrained without also restraining and constraining the sanctity and inviolability of the individual soul. The right of the people to keep and bear arms--the operative clause of the Second Amendment--is not, then, a creation of man. The Second Amendment to the U.S. Constitution is simply a codification of, and an acknowledgment of the right preexisting in the individual. It is not a thing that can, lawfully, be defeated through legislation or really destroyed by the State, through government since it was never a thing enacted through legislation or granted or licensed to the individual by grace of the State through the State's Government. To suggest otherwise is mere pretense and artifice. The right of the people to keep and bear arms as a right, preexisting in the individual, is not a novel idea. The U.S. Supreme Court made the point in 1879, as Justice Antonin Scalia reminds those jurists who may have forgotten this critically important fact or who may simply have chosen to ignore it or belittle it. Justice Scalia says, "The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed. . . ." Columbia vs. Heller, 554 U.S. 570, 592; 128 S. Ct. 2783, 2797-2798; 171 L. Ed. 2d 637, 657-658 (2008). How a Court perceives the right of the people to keep and bear arms informs a Court's resolution of all Second Amendment cases that come before it. Does a Court perceive the right of the people to keep and bear arms as a primordial, preeminent right preexisting in the individual, consistent with the framers' beliefs when the framers codified the right within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as recognized by the U.S. Supreme Court as early as 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in the 2008 Heller case, or does a Court simply view the right of the people to keep and bear arms as a man-made construct or invention, no more so nor less so than any man-made statute, code, rule, regulation, or ordinance? If a Court chooses to deny, or chooses to ignore, or, if a Court  simply chooses, seemingly and  conveniently, to forget the import of the operative clause of the Second Amendment--the right of the people to keep and bear arms--as several United States District Courts and United States Circuit Court of Appeals are wont to do, as the United States Court of Appeals for the Fourth Circuit has done as seen in its disastrous Kolbe decision, the Second Amendment will lose its strength, its efficacy. The right, though, does not cease to exist. It cannot ever cease to exist because the right is deathless. The right exists in a person's very being. But, if a Nation fails to recognize and accede to the import of the right of the people to keep and bear arms, the right remains dormant, and a nation, any nation--but, in particular, our Nation--will loses its soul that would seek to deny to the individual his or her natural birthright. Tyranny will, then, inevitably, rear its ugly head, and if tyranny should arise, our Free Republic will surely fall, for the existence of a Free Republic is incompatible with the existence of autocracy even as government heads assert the continued existence of a republic in an attempt to assuage public consternation, public doubt, public enmity, and to quell rebellion--rebellion that would be impossible to effectuate anyway with the loss of a citizen army with the denial of one's natural right to keep and bear arms. Thus, the philosophical underpinnings of the sacred right embodied in the Second Amendment to the United States Constitution cannot be overstated. It is the hallmark of this Nation and of this Nation's regard for the autonomy, sanctity, and inviolability of the individual, as this is in accord with the framers' own core beliefs in codifying The right of the people to keep and bear arms within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as, subsequently recognized by the U.S. Supreme Court in 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in 2008, in the seminal Heller case. And it is the ultimate "fail-safe device" against tyranny. The attempt, any attempt by a Court to denigrate the right of the people to keep and bear arms is nothing less than an apostasy.Unfortunately, as we have seen, although Courts will acknowledge the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), as they must when faced with a Second Amendment issue, this acknowledgement does nothing, of itself, to restrain courts from often blatantly ignoring the rulings of that seminal case, and, in so doing, ignoring the jurisprudential principles that ought guide judicial conduct in the resolution of a case before it, and, more so, committing the cardinal sin of undercutting the sacred precepts of our Nation. The Heller case has cast the right of the people to keep and bear arms in stark relief. Lower Federal District Courts and higher Circuit Courts of Appeal can no longer hide their animus toward the Second Amendment by contending that the import of the Second Amendment has never been adequately resolved by the Courts or by academicians. The Heller case makes abundantly clear, in no uncertain terms, that the right of the people to keep and bear arms is a fundamental right and, more, a preexisting right, intrinsic to the individual, a right unconnected with one's service in a militia.The high Court has provided clear guidance for resolution of cases that involve government actions that attack the core of the right of the people to keep and bear arms. Lower federal courts that ignore the clear intent of and clear reasoning of the seminal Heller case, do so at their peril. For they can no longer hide behind obfuscating language if they choose to ignore the holdings of the case and the reasoning of the Court's majority in rendering those holdings. They can no longer claim that the meaning and purport of the right of the people to keep and bear arms is still in doubt. The Kolbe case ((Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)) is the latest in a line of poorly decided and poorly reasoned--and extremely dangerous--cases cascading through the legal system from Courts that directly and routinely and unabashedly attack the core of the right of the people to keep and bear arms. Kolbe is a case that aptly illustrates a U.S. Circuit Court of Appeal’s caustic attitude toward Heller, and, by extension, aptly illustrates the Court's disregard for application of case precedent to the Second Amendment cases before it; the Court's disregard for the sanctity of the American citizen as an autonomous individual; and the Court's refutation of the importance of adherence to the core traditions, values, and belief system as reflected in the Constitution and in the Republican form of Government that our framers created and passed down to us.The Kolbe case aptly demonstrates that, once a Court disagrees with the philosophical underpinnings of the Second Amendment—that the right of the people to keep and bear arms exists within man, and not as a thing extrinsic to man—that Court will invariably rule for the State, against the individual. It will do so in clear contravention to and in clear defiance of case precedent, as set by the U.S. Supreme Court in Heller, and will do so in ostensible contemptuous disregard of our Nation’s historical traditions and in disregard of our Nation’s substantial jurisprudential history, manipulating law to derive a result consistent only with the Court's personal flawed philosophy, remarking, in its opinion, what, in the Court's view, the Second Amendment ought to say, rather than in adhering to what the Second Amendment does say, as clarified through the rulings and reasoning of the Heller majority.

THE BILL OF RIGHTS, AS A COMPONENT OF THE U.S. CONSTITUTION, STANDS PREEMINENT; FOR THE BILL OF RIGHTS, UNLIKE THE CONSTITUTION’S ARTICLES AND SUBSEQUENT AMENDMENTS, CODIFY NATURAL LAW, NOT MAN-MADE LAW.

The framers of our Constitution accepted, as axiomatic, that a critical component part of that Constitution —the normative rights and liberties, of the Bill of Rights—are, in a critical manner, wholly unlike the main body of the Constitution. For, although the structure of Government is man-made, the rights and liberties codified in the Bill of Rights, are not man-made. The rights and liberties, set forth in the Bill of Rights are not social or political constructs, conventions, contrivances, or mechanisms. The framers knew that any Governmental form they created could, even with the best checks and balances in place, can still devolve into tyranny. The framers understood that the greatest threat to the sanctity and inviolability of each person, each American citizen—is the threat that the Federal Government might one day devolve into autocracy, into totalitarianism, into tyranny. To guard against this possibility, to offset the insinuation of tyranny, lurking behind the corner of every government formed by man, the founders of our Nation and framers of our Constitution, established, as a critical component of our Nation’s Constitution, an indelible Bill of Rights.The Bill of Rights comprises a set of primary, primordial, fundamental, natural laws that Government must adhere to lest Government devolve into tyranny. These natural laws rest well beyond the power of the Federal Government, lawfully, to destroy. Preeminent among the natural laws that constrain the possibility of a despotic Government is the Second Amendment to the U.S. Constitution.The framers understood that an armed citizenry protects the entirety of the Bill of Rights and that an armed citizenry is the single best guardian against and check on a Federal Government run amok and that an armed citizenry is the ultimate bastion against tyranny. Some jurists, though, do not appreciate the threat posed to a free Republic, in the absence of an armed citizenry. They don’t accept this. They are philosophically predisposed to regard an armed citizenry with trepidation, with suspicion; as a potential threat against public order. So, they don't accept the necessity of an armed citizenry. They do not and will not accept the emphatic command to the State, to a State's Government, to the Court itself, as a component of the State, of the Government. They do not accept, will not accept the idea that the Second Amendment is to be revered, respected, preserved, strengthened, exalted, as the framers intended. They don't accept this. But, they must. The Heller holdings and the legal and logical reasoning of the Court's majority, as penned by the late Justice Scalia, fell upon those courts, that find the Second Amendment anachronistic, like a ton of bricks. They don't like the holdings and they do not agree with the Heller majority's reasoning. So, they slither around Heller, pretending to adhere to it rather than truly complying with it, rendering decisions, antithetical to Heller, and, therefore, antithetical to the import and purport of the Second Amendment.

WHY THE HELLER CASE IS TRULY CRITICAL TO U.S. SUPREME COURT JURISPRUDENCE

The Heller case is generally cited for its principal holding: that the right of the people to keep and bear arms is an individual right, exclusive of a person’s connection with a militia. But, in dicta, the Court's majority spoke, at several points, of the “natural right” of self-defense and resistance. To the framers of our Constitution, the right of the people to keep and bear arms is not a creation of government. The right exists intrinsic to man, as natural law, not man-made law. Justice Antonin Scalia refers to the right of the people to keep and bear arms as a natural right several times in the opinion he penned for the majority of the high Court, citing to the historical writings of the Second Amendment that he reports in the Heller case. Not surprisingly, the dissenting Justices for their part, notably Justices Stevens and Breyer, who penned penned two separate dissenting opinions, do not. The dissenting Justices do not even allude to the notion of a right of the right of the people to keep and bear arms in the context of natural law and natural rights.The dissenting Justices on the high Court do not accept the facticity of the rights and liberties of man as codified in the Bill of Rights, as natural rights. These Justices—and many other judges that fill the seats on the lower U.S. District Courts and that fill the seats on the higher U.S. Circuit Courts of Appeal—do not and will not accept as axiomatic that the Bill of Rights comprises a set of indefeasible rights and liberties.The liberal wing of the high Court and the liberal jurists of the lower Federal District and higher Federal Appellate Courts take as a jurisprudential principle, that the right of the people to keep and bear arms is no less a social, political, and legal construct than any other part of the law. For such jurists, the idea that the right of the people to keep and bear arms bespeaks natural law, outside one’s service in a militia, is not only false, it is patently ridiculous. Their opinions are infused with the notion that the Bill of Rights may be lawfully violated if utilitarian demands so dictate. None of the dissenting Justices in Heller would, though, make such a remark overtly and none have done so. But, since none of the dissenting Justices accept as axiomatic that the right of the people to keep and bear arms codifies a natural right, they fail to see how discordant their position is when they proclaim that such right of the people to keep and bear arms that exists is contingent only on one’s service in a militia. For, one might reasonably ask that, if a person's right to keep and bear arms is tenable only in the event one serves in a militia, then under what circumstance or set of circumstances might an individual ever vindicate the right so violated, if such right operates only in connection with one's service in a militia? And, if the right cannot be vindicated, is the right, then, not simply nugatory?Justice Stevens, in his dissenting opinion, joined by Justices, Souter, Ginsburg and Breyer, attempts, unsuccessfully, to skirt as de minimis the question whether the Second Amendment codifies an individual right to keep and bear arms as opposed to a collective right. In the first sentence of his dissenting opinion, Justice Stevens says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822.* How is the individual right to be vindicated legally--indeed, how is the individual right to be vindicated logically--if that "individual" right is subsumed under or in connection with one's service in a militia? Is that right not, then, a mere "collective" right? But, if the right of the people to keep and bear arms is a "collective" right, how is that collective right to be vindicated? Is a collective right of the people to keep and bear arms, a right in any legal or logical sense at all?Justice Stevens undermines the import of his own remark as he directs the entirety of his argument to the thesis that the right of the people to keep and bear arms is merely and solely tied to one’s service in a militia. The scope of the right is, apparently, the issue Stevens seemingly wrestles with in his dissenting opinion because he must realize the logical flaw inherent in it. Justice Stevens attempts to respond to Justice Scalia's logical argument that, on Justice Stevens' interpretation of the right codified in the Second Amendment, there is nothing in "the scope of the individual right" left to be protected. Justice Stevens cannot and does not adequately argue that there is something left of the individual right to be protected on his peculiar interpretation of the Second Amendment, because, once Justice Stevens accepts, as a premise, that the right of the people to keep and bear arms rests principally upon the person’s service in a militia, he cannot escape the implication of that premise, namely that there exists no individual right of the people to keep and bear arms left to be protected, as he has severed the right, which exists only in the operative clause of the Second Amendment, from the prefatory clause, and, in so doing, he attempts, unsatisfactorily and unjustifiably, and, indeed, incoherently, to insinuate the right into the prefatory clause. But, there is no legal or logical, or linguistic way in which he might reasonably do this. Thus, the right of the people to keep and bear arms cannot be protected, which is to say vindicated, in any manner, because the right is contained, according to Justice Stevens, in the prefatory, dependent clause of the Second Amendment. The prefatory clause, though, has, in its very language, no operative force. It talks of no right at all. So, there is nothing in the prefatory clause that can be vindicated. Justice Scalia laid bare the problems with Justice Stevens argument. Justice Stevens, for his part, had no adequate rejoinder. Justice Scalia, writing for the majority, pointed out that, "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed [citation omitted]. . . . Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.'" District of Columbia vs. Heller, 554 U.S. at 577; 128 S. Ct. at 2789; 171 L. Ed. 2d at 648, 649 (2008).** Moreover, if one assumes for purpose of argument that a right does exist or can be implied in the prefatory clause of the Second Amendment, that somehow carries over to the independent, operative clause, that still doesn't help to salvage Justice Stevens' argument. For, the State, through Government is, then, and, in fact, must be, the final arbiter not only of what firearms the individual may possess but whether the individual may possess any firearms at all, outside of that individual’s connection with a militia. But, if that were so, then, once it is posited that the Government has sole authority to regulate the kinds of firearms a person may possess in his or her individual capacity, or whether a person may possess any firearms at all, then, the right of the people to keep and bear arms, as a right exercised by the individual, is subject to the whim of Government. The right, then, is not a real right at all, as the "right" may very well be regulated out of existence. The right, then, is ephemeral. It simply falls away. This is the salient problem with Kolbe and those cases that, like Kolbe, accept, at least tacitly, the absolute power of Government to dictate the kinds of firearms that Americans may possess and, ultimately, whether Americans may possess any firearms at all.We continue with our exegesis of Kolbe in light of the Heller case in Part Eight of this series._________________________________________________________*Did Justice Stevens pilfer from a law review article having failed to acknowledge the source? Consider and compare the remarks in the first paragraph of Justice Stevens' dissenting opinion in Heller to the following statements that appeared in a law review article written nine years before the high Court decided Heller: "There are two relevant Second Amendment questions. The first question is whether the right belongs to the individual. Professor Yassky [David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment - A Response to Professor Kopel, 18 St. Louis U. Pub. L. Rev. 189, 190 (1999) (debating scope of individual's rights under Second Amendment)] believes the question to be confused because 'all constitutional rights - even those most obviously concerned with government structure rather than individual freedom - ultimately belong to individuals in the sense that individuals can sue to vindicate them.' The proper question assumes that the  Second Amendment recognizes some individual right but asks what the scope of the right is. This article argues that the scope of the individual right is limited to those circumstances in which the individual participates in a government militia." From, "The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate Over the Right to Bear Arms," 16 St. John's J.L. Comm. 41 (Winter 2002), by Robert Hardaway, Elizabeth Gormley, and Bryan Taylor. **Curiously, after Justice Stevens retired from serving on the United States Supreme Court, he attempted, apparently, as set forth in his book, published in April of 2014, titled, "Six Amendments: How and Why We Should Change the Constitution," to come to grips with if not to circumvent the problem, with his thesis as pointed out by Justice Scalia. Justice Stevens' contended, as set forth in his dissenting opinion in Heller, that a way exists through which the right of the people to keep and bear arms" may be vindicated. Justice Scalia explained that, under Justice Stevens approach, though, that, under Justice Stevens' thesis, there is no manner in which the individual right of the people to keep and bear arms can be vindicated, that, under Justice Stevens' thesis, the right is nugatory. Justice Scalia had proved that the right of the people to keep and bear arms cannot be vindicated through the prefatory clause, "A well-regulated militia being necessary to the security of a free State," because the right--on the plain meaning of the language of the Second Amendment--does not exist in the prefatory, dependent clause and cannot logically be transported into "the right of the people to keep and bear arms shall not be infringed" exists in the operative, independent clause only, for that is where the right is expressly stated.There is no logical, rational reason or basis for inserting the right of the people to keep and bear arms into the prefatory clause and tying the intrinsic right of the individual, inextricably, to that individual's connection with a militia. For, there is no mechanism for vindicating the right when the right is tied to one's connection with a militia. Thus, there is no right to be vindicated and the Second Amendment, as a codification of and assertion of a right, would be, must be nugatory. Apparently realizing this and not acceding to the idea that the right of the people to keep and bear arms is an individual right, preexisting in the individual, not connected with service in a militia--as these ideas are not philosophically acceptable to Justice Stevens--Justice Stevens suggests, in his book, that the Second Amendment should be rewritten as: "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in a militia shall not be infringed." Justice Stevens apparently sees this rendition of the Second Amendment--which, by the way,  does not comport with any such suggestion by any of the framers of our Constitution--as a tenable way to get around the late Justice Antonin Scalia's contention   that, on Justice John Paul Stevens interpretation of the right of the people to keep and bear arms, there is nothing left of the right to be vindicated. Justice Stevens apparently believes that, in his novel rendition of the Second Amendment, the right of the individual is, now, successfully limited but still vindicated, and the Second Amendment is not, then, nugatory as he has now tied the right of the people to keep and bear arms specifically, linguistically, indisputably, to a person's connection with a militia. The right is duly limited but expressly stated in the operative clause. But, there is still a problem, and it is a problem quite apart from the fact that Justice Steven's reworking of the Second Amendment fails to comport with any view of the import of the Second Amendment as set forth by any of the framers of the U.S. Constitution, and it is a problem that cannot be surmounted through the rewriting of the Second Amendment, which, is, by any account, an extremely drastic way to respond to the fatal flaw in his argument. For, even accepting, on logical grounds, that there is something to be made of Justice Stevens' redraft of the Second Amendment as a way to avoid the flaws in his position, as he has set forth that position in his dissenting opinion in Heller, the question arises how a group right, that is to say, a collective right, is to be vindicated. Justice Scalia had remarked on this point as well, in pointing to another flaw in Justice Stevens' position, that Justice Scalia referenced in the majority opinion he penned, in Heller. How, one might ask, might one petition the Courts for vindication of a right purportedly tied to one's service in a militia? Moreover, suppose the militia, "necessary to the security of a free State" though it be, as set forth in the prefatory clause, ceases to exist. Wherein is the right, that one may exercise, be vindicated if there is no right left to be exercised? What, really, is there left of the right? One may ask: was there ever truly a right that might be vindicated at all?  As Justice Scalia pointed out, the necessity for the armed citizen lay not in the existence of the militia but in the force of arms of the citizenry that the citizenry brought to the militia and that made a militia possible. Justice Scalia, writing for the majority said, ". . . the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution." District of Columbia vs. Heller, 554 U.S. at 599; 128 S. Ct. at 2801; 171 L. Ed. 2d at 662 (2008). It is the right of the people to keep and bear arms, that is to say, in the individual ownership of and possession of firearms, in and of itself, that is critical to the exercise of and vindication of the right, a right unconnected to service in a militia or in connection with any other man-made creation; and in that exercise of the right intrinsic to, immutable, indestructible, preexisting in each person, where each person is perceived as an autonomous individual, whose individuality must remain sacred and inviolate, would the security of a free State be preserved. An armed citizenry resides in what remains, today, of the true militia, namely, the unorganized militia, and that unorganized militia is not equivalent to or equated with, nor is it to be considered equivalent to or equated with the "organized militia," namely, the National Guard of each individual State that exists as a reserve military arm of and for the Federal Government, as dictated by Federal Statute.Better it would have been for Justice Stevens to accept that his thesis regarding the Second Amendment is wrong and that Justice Scalia is correct and that Justice Scalia was correct all along. But, Justice Stevens doesn't accept the plain meaning of the Second Amendment; he refuses to do so on a deep, visceral level. Justice Stevens absolutely refuses to accept the plain meaning of the Second Amendment as set forth in the Constitution, and in refusing to accept the plain meaning of the Second Amendment, Justice Stevens is taking exception with and contending with the deeply held beliefs of the framers of our Constitution. So, Justice Stevens is compelled to hold onto the legally deficient, logically unsound, and ethically dubious notion of an individual right of the people to keep and bear arms that happens to be tied to and exercised only by one's service in or connection with a militia.In point of fact, though, the "organized militia," as such no longer exists. It has been subsumed into and, more accurately, replaced by the "National Guard," which has become a reserve component of the federal Government, subject to federal control. This might not bother Justice  Stevens although it might be of concern to others. Justice Stevens seems to be more concerned with the logical coherency and consistency of his position, as well he should be, that requires that a right exercised by an individual must, in a logical sense, to be considered a true right at all be capable of vindication if violated. Justice Stevens seems less concerned over the practical application of the right that is to be vindicated, though, which, consistent with his thesis, is a contingent matter, after all, contingent on the existence of a militia. If there exists no militia, then, apparently, the failure of the condition precedent does not negatively impact the fact that a right may, at least, logically, if not empirically, that is to say, factually, be vindicated. In other words, the right to be exercised, albeit, one tied to the militia, under Justice Stevens' thesis, does always exist. For, Justice Stevens does, after all, in his redraft of the Second Amendment, retain the words, "shall not be infringed." So, if the militia exists, then the right may, Justice Stevens would argue, be vindicated. If the militia does not exist, the right, although it still exists, cannot be exercised and cannot be vindicated. The success or failure of a right to be vindicated is a function of the existence of the militia. But, then, what does it mean to say the right, supposedly, always exists? This is a tortuous attempt at legal and logical manipulation of concepts to give credence to an idea that Justice Stevens, doesn't even truly accept--that the right of the people to keep and bear arms {a right that shall not be infringed by anyone or any entity} if such right truly exists, beyond the power of the State to lawfully destroy, must be a right  preexistent, immutable, indestructible, and absolutely capable of exercise in all instances, for all time, beyond the possibility of any conceivable contingency that might serve to make the right impossible of exercise (as for example the nonexistence of a militia). Thus, merely tacking on this or that phrase to a proposition, in a dubious attempt to erode an indestructible right and in an attempt to overcome an insurmountable, logical flaw that exists in his argument, the retired Justice, John Paul Stevens cannot successfully sidestep the problem inherent in Justice Stevens' thesis that the late Justice Antonin Scalia had perceptively pointed to in Heller. Anyway, the proposed redraft of the Second Amendment, insufferable and ludicrous as that proposed redraft is, appears, then, to be, in part, at least, Justice Stevens belated answer to the late Justice Antonin Scalia's sharp attack on the weaknesses of Justice Stevens' argument as evinced in Justice Stevens' dissenting opinion in Heller.________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

RATIONALIZING AWAY THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: THE LENGTHS SOME COURTS WILL GO "TO DISARM" HELLER

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety.

KOLBE VS. HOGAN:

PART SIX

Kolbe Is Not Merely An Example Of A Poorly Decided Case; It Is Illustrative Of The Way In Which Courts, Antithetical To The Second Amendment Right Of The People To Keep And Bear Arms, Use Legal Argot To Disguise Their Contempt For And, Indeed, Abhorrence Of Our Sacred Right And Their Disdain For The Heller Court Rulings.

To understand the Kolbe case*—to truly understand its diabolical import—it is incumbent to delve into the intricacies and nuances of the seminal 2008 U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). It is difficult to appreciate the lengths to which some federal courts will go to undermine the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution; and it is difficult to appreciate just how horrific the decision in Kolbe is—certainly to those who take seriously the right of the people to keep and bear arms—without considering the thought that went into the Heller decision, as penned by the late Justice Antonin Scalia, writing for the Majority of the high Court.Heller is the most important Second Amendment case to come out of the U.S. Supreme Court since the 1939 case, U.S. vs. Miller, 307 U.S. 174; 59 S. Ct. 816; 83 L. Ed. 1206 (1939). The high Court in Heller has, for the first time in the Court’s history, enunciated and elucidated several critical precepts that constitute the impetus for the Framers' inclusion of the Amendment in the Bill of Rights. The import of the Heller case rulings and reasoning of the Court's Majority can be reasonably perceived as the purest, clearest recognition by the high Court, to date, of the Framers' expression of the inviolability of and sanctity of the individual, within the Nation State. This is seen in the individual's position of and status, in this Nation State, as the armed citizen. The armed citizen stands above the Federal Government. The armed citizen stands as the guarantor of and guardian of a Free Republic. The armed citizen stands as the resolute and absolute check against tyranny. These points frighten those that espouse a collectivist society, operated by powerful interests that lurk unseen in the interstices of Government and in the World at large. It is not the criminal element that is feared by these collectivists. It isn't the occasional lunatic that is feared by these collectivists. It isn't even Islamic terrorists that is feared by these collectivists. No! It is the armed citizen that these collectivists fear; and they use, for propaganda purposes, the criminal psychopath, the lunatic, and the rapacious Islamist terrorist as a rationale for disarming the average, rational law-abiding, American citizen--the one element that, alone, can prevent the collapse of a Free Republic and the shredding of the U.S. Constitution. For, it is the end of our Free Republic and the erasing of the U.S. Constitution and of our sacred Bill of Rights that is the endgame for these silent, secretive, seductive, seditious collectivists. The Second Amendment and the Heller case stand, like a massive, impenetrable,   concrete wall in their way.The following ten precepts follow from the rulings of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008):First, the right of the people to keep and bear arms is a natural right, preexistent in the people. Second, since the right of the people to keep and bear arms is a natural right, preexistent in the people, the right is not to be considered man-made; the right is not, then, a creature of Statute, created by government. Third, since the right of the people to keep and bear arms is not a right created by government, the right cannot be lawfully taken away from the people by government. Fourth, the Second Amendment exists merely as a codification of the right of the people to keep and bear arms. That means the right doesn’t flow from or spring into existence due to its presence in the U.S. Constitution as the Second Amendment. Rather, the Second Amendment exemplifies—is a literal token for—the intangible, indestructible right that preexists in the people. Fifth, the right of the People to keep and bear arms is an individual right, unconnected to one’s service in a militia. Sixth, the dependent clause, “a well-regulated militia being necessary to the security of a free State” does not function as a limitation on the right of the people to keep and bear arms. The words, “a well-regulated militia being necessary to the security of a free State,” functions merely as a rationale for the codification of the right in the Constitution. The prefatory, dependent clause is not the operative clause and must not be taken as such. For, it is not the militia that has the right to keep and bear arms and it is not one’s service in a militia that serves as a basis upon which the right, if any, to keep and bear arms, exists; for, once again, the right to keep and bear arms preexists in the people. Seventh, the 'people' refers to each individual American. The term, as utilized in the Second Amendment is not referring to 'people' in a collective or group sense. Eighth, to minimize the operative clause, “the right of the people to keep and bear arms,” in relation to the prefatory clause, “a well-regulated militia being necessary to the security of a free State—not only denigrates the right inherent in the people, but destroys any notion that the right of the people to keep and bear arms exists inherently, primordially, intrinsically, in the individual. Ninth, the right of the people to keep and bear arms is not a social construct, but exists within the essence of man. Tenth, the right of the people to keep and bear arms exists immutably, independently in the individual self, completely apart from all social, political, or legal systems. The Court’s Majority in Heller accepts these precepts. The dissenting Minority Justices did not, and do not, and to date—along with like-minded Federal Appellate and District Courts, and like-minded antigun groups and like-minded mainstream media publishers, editors, and journalists, and like-minded legislators at the local, State and federal levels—the distaste for the Heller rulings, among those who have no regard for the Second Amendment, remains strong, virulent.Local and State governments that draft codes, regulations, and Statutes in denigration of the plain, explicit meaning of the Second Amendment, do so at their peril for they are operating in clear defiance of our Constitution; they are demonstrating ignorance of the Framers’ intentions; they are exhibiting disdain for the rulings of the U.S. Supreme Court in Heller; and, therewith, they do show an abject lack of concern for the rights and liberties of the American people.Worse, yet, lower federal District Courts and higher federal Appellate Courts that dare to uphold rather than strike down unconstitutional laws that collide with the right codified in the Second Amendment show their disdain for legal precedent when they opine injudiciously and deprecatingly the inscrutability of Heller and try, ignominiously and duplicitously, to distinguish Heller from the case before them, thereby forsaking all sound judgment and jurisprudential consideration to obtain a ruling that meets with their personal feelings of what the law pertaining to fundamental rights ought to be, rather than what the law is.The Heller case is notable for dispelling—decidedly, decisively completely—any lingering doubt that antigun groups and like-minded Courts, and the mainstream media might have that the Second Amendment bestows, upon Americans, a collective right to bear arms only—a right to bear arms connected with one’s service in a State militia and nothing more. Thus, local and State governments hell-bent on curbing the Second Amendment and Courts of competent jurisdiction that are called upon to give their imprimatur on Statutes and codes and regulations that are inconsistent with the Second Amendment and inconsistent with U.S. Supreme Court precedent are caught in a vise. So, how do they proceed?These renegade State governments and their fellow travelers in the federal Court system operate as if the Heller rulings don’t exist. The Governments continue to draft and to enact draconian gun laws, inconsistent with and detrimental to the meaning and purport of the Second Amendment, while lower federal courts and the higher federal Appellate Courts, working in lockstep with these renegade governments defy U.S. Supreme Court precedent, rather than render decisions in deference to it, albeit no doubt, concerned that their decisions will be overturned—as well they should—by the U.S. Supreme Court if the high Court accepts the case for hearing.Of course, the hope of those who oppose the Heller decision and who seek to chisel away at the imposing immutability of the right of the people to keep and bear arms has been dashed. Opponents of the Heller decision had expected, but failed, to place on the high Court, Judge Merrick Garland who had sat, and now, once again sits, on the U.S. Court of Appeals for the D.C. Circuit. Judge Garland is an intractable foe of the fundamental right of the people to keep and bear arms—Americans’ most sacred right. The reaction of those in the Government bureaucracy, and those in the Courts, and those in Congress, and those in the mainstream media that seek de facto repeal of the Second Amendment through the overturning of Heller, is palpable, visceral—more so now that a Judge, nominated by U.S. President Donald Trump, and confirmed by the United States Senate, and who respects U.S. Supreme Court precedent, sits on the high Court, Justice Neil Gorsuch.Now that Justice Neil Gorsuch has taken his seat on the United States Supreme Court, Americans have a man who will give due regard to the rulings in Heller—rulings that Judge Merrick Garland, were he to sit on the high Court instead, would, with the other liberal wing Justices, most certainly, shred. There's no doubt about that. With Justice Neil Gorsuch on the high Court, however, the legacy of the late Justice Antonin Scalia, as ardent defender of Americans’ fundamental right to keep and bear arms as codified in the Second Amendment, should remain secure. But, no one individual can ever guarantee that our Bill of Rights will remain secure. Federal Court cases such as the Kolbe case illustrate that lower Federal District Courts and higher U.S. Circuit Courts of Appeal that disagree with the Heller Majority’s legal and logical reasoning, jurisprudential methodology and philosophy, and the Majority’s precedential holdings, will slither around the clear, precise, emphatic instructions of the Heller Court to uphold draconian gun laws that strike at the core, the essence, of the Second Amendment right--laws that, are, then, like Maryland's Firearm Safety Act, per se unconstitutional.

THE DISSENTING JUSTICES DISAGREEMENT WITH THE MAJORITY’S RULINGS IN HELLER IS NOT PREDICATED ON FINE POINTS OF LAW BUT RESTS ON PROFOUND PHILOSOPHICAL DIFFERENCES CONCERNING WHERE THE FOUNTAIN OF RIGHTS AND LIBERTIES OF MAN DRAW THEIR STRENGTH, THEIR VERY EXISTENCE: WHETHER FROM MAN-MADE SOCIAL CONSTRUCTS, AS THOSE DISSENTING JUSTICES BELIEVE, OR FROM RIGHTS AND LIBERTIES PREEXISTENT IN MAN THAT THEREFORE TRANSCEND ALL SOCIAL, POLITICAL, AND LEGAL CONSTRUCTS, AS THE MAJORITY OF THE HELLER COURT BELIEVES.

The dissenting Justices disagreed strenuously, mightily with the Majority’s reasoning, conclusions, and decisions in Heller. This disagreement between the liberal wing of the high Court and the Court’s conservative wing bespeaks more than a mere difference in approach to legal decision-making. No! The disputation is more profound and sublime. Disputation extends to the essence of a Jurist’s being. Writing for the Majority, Justice Scalia refers several times to the right of the people to keep and bear arms as a “natural right.” Reference to the phrase, “natural right” is not to be dismissed as affectation. Justice Antonin Scalia would have none of that. Every word the late Justice had penned has clear, precise, and critical meaning. The right of the people to keep and bear arms, as a natural right, means that the right exists inherently in man. The right of the American people to keep and bear arms is not a creation of man. It is not a creature of Statute. It is not to be deigned merely a social construct as a thing devoid of clear, irrefutable, power. No! The right to keep and bear arms exists over and above the Constitution itself. The right of the people to keep and bear arms stems from the Divine. The Right needs no proof. It needs no clarification. It needs no justification.The Bill of Rights as constituted in—as an imposing component of the United States Constitution   —acknowledges through the codification of the right of the people to keep and bear arms—the preeminence of the right that existed prior to the creation of the Country, as an independent, preeminent and Sovereign Nation. But the right of the people to keep and bear arms is not forsaken with the creation of the Nation State, nor is the right discounted or reduced in some sense through the creation of the Nation State. Rather, the Nation exalts the right, and, in so doing exalts the individual to be and remain individual.The right of the people to keep and bear arms is not and cannot be limited or constrained. Any attempt to do so by government operates as a betrayal of the relationship of individual to State. For this Nation State has, itself, limited powers. The People do not. Thus, it is that the Federal Government, through which the Nation State operates, obtains its power and authority by grace of the People. The People created the Government of the United States and it is within the power and right and duty of the American people to dismantle that Government if it devolves to tyranny. The Heller decision has, then, far-reaching implications, as the right of the people to keep and bear arms, preexistent in the people—and therefore existing in the people prior to the creation of the Constitution—reiterates the Framers’ intention that the Nation is the servant of the people, and not that the people are servants—merely subjects—of the State.Thus, Justice Scalia takes strong exception to Justice Stevens’ remark, set forth in Justice Stevens’ dissenting opinion in District of Columbia vs. Heller, 554 U.S. at 678, 679; 128 S. Ct. at 2845, that the Majority’s opinion, somehow rests for support merely upon Second Amendment “drafting history.”  Justice Scalia makes short work of that, saying: “Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” District of Columbia vs. Heller, 554 U.S. at 603; 128 S. Ct. at 2804. Not surprisingly, none of the dissenting Justices—not one—accepts as axiomatic, as self-evident, that the right of the people to keep and bear arms is intrinsic to the very being of an American. Drafting history—however language of the Second Amendment is ultimately formulated, as Justice Scalia makes clear, does no more than to codify the right—the natural right of the people to keep and bear arms.A codification of a preexistent right is not equivalent to and, by logical implication, it is not instrumental in creating the right. Justice Scalia makes plain that the Second Amendment merely codifies a preexisting right; that the Framers’ did not create the right and did not importunately, intend to create rights. There is nothing in any of the various gyrations that the written Amendment went through to so much as suggest that the right of the people to keep and bear arms is to be construed as a right the framers had created for the American people. Such an idea would have been ridiculous to them and the suggestion would probably have been abhorrent to them, as well.

THE DISSENTING JUSTICES, IN HELLER, EITHER HAVE NO CONCEPTION OF THE FRAMERS’ BELIEF IN THE NOTION OF NATURAL RIGHTS AND LIBERTIES THAT EXIST IN MEN OR THEY DON’T CARE, PREFERRING INSTEAD TO READ OUR BILL OF RIGHTS IN RELATION TO THE CONSTITUTIONS AND BELIEF SYSTEMS OF OTHER COUNTRIES AS SUCH CONSTITUTIONS EXIST AT THE PRESENT TIME—TOGETHER WITH NOTIONS ANTITHETICAL TO THE VERY CONCEPT OF NATURAL RIGHTS AND LIBERTIES.

Justices Stevens and Breyer and the other Justices who dissented in the Heller case refuse to accept the Second Amendment as anything more or other than a creation of man. This is clear from their exposition. Thus, Justices Stevens and Breyer and the other dissenting Justices consider the right of the people to keep and bear arms as nothing more or other than a mere social construct. It isn’t remarkable, then, that the dissenting Justices would argue that the right of the people to keep and bear arms is tied merely to service in a militia; but, in so tying the right to the militia, the dissenting Justices do more than merely set forth a misguided interpretation of the Framers’ belief in the truth and sanctity of a natural right of the people to keep and bear arms, these Justices essentially eviscerate the right—a critical point that Justice Scalia, looking at the writings of a professor, judge, and Civil War commentator, Thomas Cooley, aptly propounds. See District of Columbia vs. Heller, 554 U.S. at 617; 128 S. Ct. at 2812.The point made—that the dissenting Justices’ position, tying the right of the people to keep and bear arms singularly to service in a militia, functions, logically, to destroy the right—is one that cannot be overemphasized. For it is not a minor point. It is one critical to understanding the logical impasse that exists between the liberal wing of the high Court and the conservative wing. For, differences in viewpoint commence and proceed on a very basic level. The differences in viewpoint suffuse and percolate through the reasoning of each of the two wings of the high Court and manifest as an irrefutable and irreconcilable conflict among the Justices on a level transcending mere disagreement about the law. The import of the Second Amendment as the dissenting Justices view it and as the high Court’s Majority view it may be likened to a chasm that cannot be bridged. The differences are deep-seated, intractable, grounded in unshakeable convictions of philosophical and ethical dimensions. They reflect distinctive notions concerning the relation of individual to State. The one accepting as axiomatic that rights and liberties are government constructs and, as such, those rights and liberties can be lawfully amended, disregarded, or erased altogether. The other accepting as self-evident that rights and liberties are indelibly imprinted in the individual—existing beyond space and time—part of the soul of the individual, critical to a person’s essence, and beyond a government’s lawful ability to change, disregard or eliminate.We continue with our exposition of Kolbe and the importance of Heller in Second Amendment case decisions in Part Seven of this series.________________________*Case History: Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4^th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4^th Cir. 2017)________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

A Court Of Review Is Blind To Inappropriate, And Unlawful Government Action When A Court Of Review Is Philosophically Predisposed To Inhibit The Right Of The People To Keep And Bear Arms.

KOLBE VS. HOGAN:

PART FIVE

HAD THE DISTRICT COURT OF MARYLAND REVIEWED MARYLAND’S FIREARM SAFETY ACT AS THE HELLER COURT REQUIRED, THE DISTRICT COURT WOULD HAVE SEEN THROUGH THE CHARADE OF THAT RESTRICTIVE GUN ACT THAT ATTACKS THE CORE OF THE SECOND AMENDMENT.THE U.S. SUPREME COURT MAJORITY CAUTIONED, IN HELLER, AGAINST USE OF ANY TRADITIONAL STANDARD OF REVIEW TO TEST THE CONSTITUTIONALITY OF A LAW THAT IMPACTS THE CORE OF THE SECOND AMENDMENT.The Arbalest Quarrel continues with its comprehensive, in depth analysis of Kolbe in light of the seminal U.S. Supreme Court Heller case.Realizing the futility of articulating any standard of review for testing the constitutionality of government action that attacks the very core--the very essence--of a fundamental right, the Heller majority realized the need to dispense with all traditional standards of review and all hybrid versions of conventional standards of review in those instances where governmental action—in the Heller case, a total ban on firearms that the public traditionally and commonly uses for self-defense, namely firearms categorized as handguns, be those handguns semiautomatic pistols or single or double action revolvers—attacks the very essence, or core of the right. Justice Breyer, himself, who wrote a dissenting opinion in Heller, realized the conundrum posed in the application of traditional standards of review for testing the constitutionality of government action that is directed to the core of a fundamental right.The dissenting Justice, Stephen Breyer, did realize, perceptively, that application of even a stringent standard, strict scrutiny—no less than application of the most relaxed standard of review, rational basis—would not be a fair standard for a Court to employ to test the lawfulness of a governmental action that is directed to the core of a fundamental right because Courts could still come to the wrong conclusion and effectively destroy a fundamental right. Breyer therefore thought that his novel interest-balancing inquiry would overcome problems associated with conventional standards of review. In support of use of his novel interest-balancing inquiry to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District, Justice Breyer said this (and we quote Justice Breyer, at length):“In weighing needs and burdens [utilizing my interest-balancing standard to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District] we must take account of the possibility that there are reasonable, but less restrictive, alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions [Citation Omitted]? Here I see none. The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. It does not help respondent’s [D.C. Government’s] case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use [Citation omitted]. That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery [Citations omitted]. This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence [Citations omitted]. If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.”Justice Breyer concludes that no less restrictive means exists to promote the goal of promoting public safety than the District of Columbia’s total ban on handguns promotes and that, under the strict scrutiny standard, a total ban on handguns would therefore pass judicial scrutiny and therefore be found constitutional even though the Second Amendment right of the people to keep and bear arms is clearly burdened. As he says:“The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the ‘permissible regulation’ question: Does the District's law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.”So, is that the end of the inquiry? Does Justice Breyer assert that the D.C. handgun ban is constitutional even though a total ban on possession of handguns clearly burdens, and in a substantial way, the American citizen’s exercise of his or her fundamental right? No. Justice Breyer says that application of his standard is superior to that of application of even a stringent standard like strict scrutiny, for there is a second part to Justice Breyer’s test, even though he has already inferred that the burden on those who seek to exercise their Second Amendment right is substantial." Justice Breyer goes on to say (and once again we quote Justice Breyer at length):“First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban [Citation omitted]. That urban area suffers from a serious handgun-fatality problem. The District's law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks.”“Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a ‘Militia,’ says nothing of ‘self-defense.’ As Justice Stevens points out, the Second Amendment;s drafting history shows that the language reflects the Framers' primary, if not exclusive, objective [Citation omitted]. And the majority itself says that ‘the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right . . . was codified in a written Constitution’ [Citation omitted]. The way in which the Amendment's operative clause seeks to promote that interest--by protecting a right ‘to keep and bear Arms’ may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U.S., at 178, 59 S. Ct. 816, 83 L. Ed. 1206 (‘With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,’ and the Amendment ‘must be interpreted and applied with that end in view’).”“Further, any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays' Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways [Citation omitted]. Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not [Citation omitted]. They were likely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment's more basic protective ends [Citation omitted].”“Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late-18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular.”Justice Breyer continues with his polemic, adding: “Regardless, why would the [Heller] majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge?” The answer to Justice Breyer's question should be obvious to anyone who recognizes the importance of the Second Amendment--as much now, in the present, as then, in the past. The Heller majority felt compelled to respond to antigun critics, including, most notably, those who, like Justice Breyer and Justice Stevens, curiously enough, have, in extrajudicial commentary and publications, made clear their desire to interpose foreign laws foreign jurisprudential values--alien to our unique history, our unique laws, and our unique Constitution--into their own methodological approach to U.S. Supreme Court case analysis and decision-making. Since the laws of Countries such as Great Britain and Australia, for example, have nothing even remotely analogous to our Second Amendment, one should reasonably conclude that anything set forth in the laws and jurisprudence of those Nations would be legally irrelevant to and certainly impossible to reconcile with our own system of laws and jurisprudence should anyone wish to insinuate such laws and jurisprudence into our case law anyway.Justice Breyer concludes his polemic, by asserting essentially the argument we hear ad nauseum from antigun groups. It is this: Americans should leave to “democratically elected officials” of government the power to impose government's will on the rest of us because government knows what’s best for all of us, even unto the veritable destruction of our fundamental rights and liberties. Justice Breyer asserts,“‘As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District ‘a variety of tools for combating’ such problems [Citation omitted]. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”So it is that Justice Breyer would apply his novel “interest-balancing” inquiry to test the lawfulness, the very constitutionality, of Maryland's Firearm Safety Act, fully believing in and having complete faith in the usefulness of his novel standard for application to governmental actions that attack the core of the Second Amendment. Having, then, utilized his interest-balancing inquiry standard, he seems oblivious to the fact that, even with his preferred new test, no less than with any of the other conventional standards, he, along with anyone else who might be tempted to use his novel approach, would not be prevented from automatically ordaining the result wanted--which means that, notwithstanding Justice Breyer's conviction that his novel test would preclude a foreordained conclusion, a Court that finds the Second Amendment repugnant will still come to the conclusion desired: a finding that governmental action that effectively bans the lawful possession of an entire category of firearms and that negatively impacts the core of the Second Amendment is lawful when, in fact, it isn’t. Indeed, one finds that Justice Breyer was not immune to the fatal flaw that can and often is the bane of all otherwise brilliant Jurists. We find that the fatal flaw that exists is found to reside less in a presumed fault with any conventional or fanciful approach used by a Jurist to test the constitutionality of a governmental action than in the depth of the Jurist's very being. That is to say, the fault, we see, rests, first and foremost, in the Jurist's heart, not in the Jurist's analytical and intellectual acumen. The late Justice Scalia recognized this, which is why he felt it necessary to discard any Judge-made test that might be applied to governmental actions that target the core of a fundamental right. Sadly, Justice Breyer did not see this, even when Justice Scalia pointed out the fatal flaw, which he, tactfully ascribed to Justice Breyer's interest-balancing inquiry, rather than to Justice Breyer, himself.

INTEREST-BALANCING INQUIRY ANALYSIS SHOULD NEVER BE USED TO TEST THE CONSTITUTIONALITY OF GOVERNMENTAL ACTION THAT ATTACKS THE CORE OF THE SECOND AMENDMENT RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

What more do we find problematic in Justice Breyer's Dissenting Opinion? Justice Breyer quibbles when he suggests that the Framers of the Constitution had considered muskets--Americans' early long guns, rather than handguns--as the sorts of weapons that fall under the purview of Second Amendment protection. But, there is really nothing concrete to suggest that the Framers of the Constitution had sought to specify those particular weapons that fall within the core of the Second Amendment protection and those that do not. Had the Framers had any idea that, in the future, there would exist individuals and groups whose repugnance of firearms was so strong and whose efforts to abolish the right to keep and bear arms so emphatic--who would go to such great lengths to abolish that right, working methodically and inexorably to ban first one category of weapons and then another until the entirety of weapons in civilian hands would effectively be banned by Statute, irrespective of the language of the Constitution--then, we suspect, the Framers' codification of the natural and fundamental right of the people to keep and bear arms in the Constitution would have been set forth with perspicuity. That the Framers thought the right codified in the Second Amendment so clear and obvious, and the need for it so transparent, they obviously didn't feel further explication in the language of the Amendment necessary.Since Heller had set forth in case law what had previously been set forth in most of the academic articles on the subject—the fact that the right of the people to keep and bear arms is an individual right, not merely a collective right, relegated to one's service in a militia—antigun groups are now forced to attack the fundamental right of the people to keep and bear arms, one category of weaponry at a time. That is a slow, tedious process for them and one that antigun groups were, it seems, loathe to contend with but realize now they must contend with. So they are now, once again, since the early 1990's, seeking to ban individual categories of weapons—one category at a time, until all firearms are banned. Exemptions would exist for certain groups such as police and the military. But, those exemptions would be stated with specificity and very narrowly drawn.Antigun groups have found that the appellation, 'assault weapon' is a useful category because they can place a substantially large number of firearms in that makeshift category. The goal of antigun groups is to ban all semiautomatic weapons. So, if they are successful through use of the nomenclature, 'assault weapon,' as a prohibited category of weapons in State Statute, we will see more and more semiautomatic weapons placed in that category until all semiautomatic weapons are banned.The loss of an antigun proponent, Judge Merrick Garland does not sit well with antigun proponents. Judge Garland might have sat on the high Court had the U.S. Senate Judiciary Committee capitulated to cajoling from Congressional Democrats and cajoling from the mainstream media. Judge Garland would now sit on the high Court, and Heller might, eventually, be overturned outright. And, had Hillary Clinton, a virulent attack dog, been elected U.S. President, we would see much of the Second Amendment dismantled by Executive fiat. Fortunately, neither one of these two worst cases scenarios came to pass. That doesn't mean that antigun groups and antigun State Legislatures, and antigun members of the U.S. Congress, are not actively working, even as these words are being written, to weaken the Second Amendment. Those Americans who cherish their Bill of Rights and, especially, the sacred Second Amendment, must remain ever vigilant.In reading Heller, one must keep uppermost in mind that Justice Breyer wrote a dissenting opinion, not a concurring opinion, where, utilizing his novel interest-balancing inquiry test, he found the District of Columbia’s ban on possession of handguns not to be unconstitutional even though the D.C. handgun ban infringed the very core of, the very essence of the Second Amendment. Yet, for all of his seemingly carefully executed, assiduous remarks, Justice Breyer ultimately “makes” Justice Scalia’s case for the futility of applying any standard of review to what is clearly a facially unconstitutional act. Justice Breyer ultimately presents, quite eloquently, actually, how a seemingly meticulously crafted argument can have absolutely devastating consequences for Americans if Justice Breyer were writing for the Majority in Heller, rather than for the Dissent. The "Pen" can destroy the Bill of Rights even more effectively than a force of arms.As Justice Scalia made eminently clear, albeit tacitly, application of a standard of a conventional standard of review or application of Breyer’s novel interest-balancing inquiry to governmental action that attacks the core of the Second Amendment would still not prevent a Court that is philosophically opposed to the natural, right codified in the Second Amendment from drawing the wrong conclusion--a conclusion a Court wants: namely that an attack on the core of the Second Amendment will nonetheless pass judicial scrutiny, when such governmental action should not--when such governmental action should be struck down, and struck down hard.Indeed, the interest-balancing inquiry test that Justice Breyer devised and used in Heller demonstrates the futility of employing a makeshift standard, any more than any of the conventional standards, because, once having applied his test, Justice Breyer finds--no less than would he find through application of rational basis, intermediate scrutiny, or strict scrutiny--the result he wants, the result he knew he would obtain: namely that a clearly unconstitutional law—the District of Columbia’s total ban on possession of handguns—is lawful.Consider: if utilization of any test, rational basis, intermediate scrutiny, strict scrutiny, or Justice Breyer's interest-balancing inquiry test cannot reasonably guarantee a sound conclusion, then perhaps the U.S. Supreme Court should consider dispensing with--scrapping--all of them, certainly where it is clear that governmental action is targeting the very core, the very essence of a fundamental right. A Court should not bother to go through, should not have to go through, numerous intricate, tortuous gyrations, pretending or fooling itself that it is possible to salvage a government action that is designed, on its face, to destroy a fundamental right, codified in the Bill of Rights. For, a government--be it federal, State, or local--can, under no circumstance or set of circumstances, constitutionally, rationally, legitimately, justify burdening the core, the very essence of our Constitutional rights and liberties.How, then, ought a Court of competent jurisdiction proceed? A Court should simply ascertain, first, whether a governmental action is attacking the core of a sacred right. If so, then, that should end the matter. No further analysis is needed. The governmental action should indeed be struck down; must be struck down. There is no need to beat around the bush on this. The Heller Majority Opinion, penned by Justice Scalia, made that point abundantly clear.

PROCEEDING FURTHER WITH OUR ANALYSIS:

Commencing with the U.S. District Court of Maryland opinion, having, as the lower Court, the first look at the case presented to it by Plaintiff, Kolbe, and others, the District Court failed to heed Heller, falling into the same trap that Justice Breyer fell into.The District Court of Maryland could not, though, employ Justice Breyer’s interest-balancing inquiry standard—much as it would have liked to—as that test was one devised by the Dissenting Opinion Justice, not the Majority, and, so, the case analysis presented by the Dissenting Justice in Heller, does not have precedential value.What, then, did the District Court of Maryland do? The District Court of Maryland employed as a standard of review, a fallback—in this case, intermediate scrutiny--and the Court did so on the mistaken belief that the Heller Court Majority’s failure to clearly articulate a test--the failure of the Heller Court's Majority to set forth, convincingly, at least to the satisfaction of the lower District Court of Maryland--a test or standard of review through which a Court might definitively determine, definitively ascertain, the constitutionality of a government action, meant that a lower Court is free to utilize any standard of review it wants, consistent—so it is—with prior rulings, in this instance, Fourth Circuit Court rulings, rulings, then, that precede Heller. The District Court of Maryland then fooled itself into believing it could apply its test reasonably, rationally, judicially, to reach the correct conclusion. But the Court could not do so and did not do so. The District Court reached a wrong conclusion: finding Maryland’s “Firearm Safety Act” to be lawful, constitutional, notwithstanding that implementation of it burdens the exercise of the fundamental right of the people to keep and bear arms, and that the government action does so in an extensive, intensive, and inordinately intrusive manner.In asserting the deficiencies inherent in interest-balancing, for ascertaining the moral good of actions, the great German Philosopher, Immanuel Kant, said this: “Woe unto him who searches in the winding paths of the theory of interest-balancing for some technique to uphold the debasing of human dignity.” “The Metaphysics of Morals 141 (Mary Gregor trans., 1991),” as cited in “Essay: In God’s Image: The Religious Imperative Of Equality Under Law,”  99 Colum. L. Rev. 1608, 1624 (October 1999). We continue with our in-depth analysis of the dangerous and horrible Kolbe decision in Part Six of this ongoing series of articles.________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.      

WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!

KOLBE VS. HOGAN:

INTERIM REMARKS

The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe. Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

KOLBE VS. HOGAN: THE U.S. DISTRICT COURT OF MARYLAND IGNORES U.S. SUPREME COURT PRECEDENT, OPENLY AND BLATANTLY DEFYING HELLER.

PART FOUR

The Maryland District Court incorrectly and improperly interpreted Justice Scalia as saying: “the Supreme Court held in Heller I* that a heightened level of scrutiny applies to regulations found to burden the Second Amendment right, 554 U.S. at 628 n.27, but did not further articulate whether and when strict or intermediate scrutiny applies.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 789 (U.S. Dist. Ct. Md. 2014), affirmed in part, vacated in part, and remanded to the District Court by the three Judge Panel in Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016). It was not by accident that the high Court in Heller refrained from articulating when intermediate scrutiny or strict scrutiny, as a legal standard, applies to test the constitutionality of legislation impinging on the Second Amendment. The Heller Court deliberately refrained from doing so.The high Court intentionally refrained from articulating any standard of review—whether rational basis, intermediate scrutiny, strict scrutiny, some hybrid standard, or a completely new and novel standard of review, such as the one Justice Breyer devised for Heller, in his dissenting opinion—because Justice Scalia, who wrote the majority’s opinion, knew that any standard a lower court or the U.S. Supreme Court utilized to test the constitutionality of legislation, impinging upon and directly infringing the right of the people to keep and bear arms, would likely fail if a lower Court—antithetical to the very existence of the Second Amendment—wished to uphold an unconstitutional law. The decision and reasoning of the U.S. District Court of Maryland in Kolbe vs. O’Malley demonstrably bears out Justice Scalia’s concern.Justice Scalia knew full well a lower Court would foreordain the result it wanted, through any standard of review the high Court might articulate. Thus, a lower Court could cloak a wrongly decided case by simply pointing to the standard the high Court happens to tell a lower Court to use, and, in so “applying” that standard, uphold a facially unconstitutional law, finding the law to be perfectly valid and, hence, lawful, when in fact it isn’t.Justice Scalia apparently felt confident that, by refusing to articulate a standard of review for testing the constitutionality of a government action that directly impinges and infringes the core of the Second Amendment, a lower Court will draw the right conclusion and strike down such government action—even if a lower Court does so reluctantly because it happens to harbor animosity toward the Second Amendment. But, Justice Scalia did not, apparently, realize the lengths to which a lower Court would go to defend governmental actions directed to the core of the Second Amendment even if such Courts flirt with injudicious defiance of clear U.S. Supreme Court precedent.The District Court of Maryland extrapolated from a totally erroneous interpretation of Heller, relying on exposition from an earlier Fourth Circuit case that reflects law decidedly and decisively overridden by Heller. The District Court of Maryland said, “From the Court’s holding in Heller I, the Fourth Circuit has subsequently determined that whether strict or intermediate scrutiny applies requires the court to consider ‘the nature of the person’s Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government’s justifications for the regulation.’” Kolbe vs. O’Malley, 42 F. Supp. 3d at 789, relying for support on United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).The District Court’s understanding of Heller is flat-out wrong. The District Court points for support, for its reasoning and for its decision, to parenthetical material, dicta, appearing in Heller. Dicta, though, does not constitute the salient ruling of the high Court—hence the reason that such material appears in a footnote and not in the body of the high Court’s opinion.In that footnote to the Heller Opinion, Justice Scalia was doing nothing more than responding to Justice Breyer’s comment—a comment that appeared in Justice Breyer’s dissenting opinion. Justice Scalia was simply agreeing with Breyer that rational basis—the lowest standard of review to test the constitutionality of government action—is never an appropriate standard when that government action directly and clearly and fatally impinges on and infringes an enumerated right, such as the Second Amendment. What Justice Scalia said in “fn27,” which the District Court refers to, and as we pointed out in Part Three of this series, and which bears repeating is this:“Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n 4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) (‘There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . . .’ If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."From these remarks the U.S. District Court for the District of Maryland felt justified, nonetheless, to apply some standard of review—when the Heller majority did not warrant use of any standard of review to test the constitutionality of governmental action that impinges on and infringes the very core of the Second Amendment. Justice Scalia, writing for the majority in Heller, made abundantly clear that all standards of review are inadequate when the core of the Second Amendment is attacked.Justice Scalia therefore refused to be pinned down to elucidating a test to be used by the courts when analyzing whether a given law that operates to ban an entire category of weapons that the public commonly uses for self-defense might feasibly survive a constitutional challenge. Justice Scalia, writing for the majority, refused to be pinned down because he realized that, under any of the standard tests Court’s employ to test the constitutionality of a legislative act—specifically where a legislature attacks a core component of the Second Amendment—will often be found to be constitutional if the Court and an antigun government are of like mind.Responding to Justice Breyer’s criticism of the majority for not elucidating a standard of review, Justice Scalia said this:"Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ [citation omitted]. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—and the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”Curiously, Justice Breyer, in his dissenting opinion, makes Justice Scalia’s point for Scalia’s refusal to articulate a standard of review—even strict scrutiny. Justice Breyer says:“. . . adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’” United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). The Court has deemed that interest, as well as "the Government's general interest in preventing crime," to be "compelling," see id., at 750, 754, 107 S. Ct. 2095, 95 L. Ed. 2d 697, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam) (First Amendment  free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)); Salerno, supra, at 755, 107 S.  Ct. 2095, 95 L. Ed. 2d 697 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter. I would simply adopt such an interest-balancing inquiry explicitly.” And, in so doing, Justice Breyer made a glaring mistake. Justice Breyer was so convinced that a test of some sort must be used, he failed to realize that, in some instances, as in Heller, a governmental action that effectively neutralizes a fundamental right does not require application of some sort of Court devised test, as the governmental action is per se invalid. A governmental action must be struck down if it is directed to the core of a fundamental right. If a governmental action is directed to the core of a fundamental right, that means the governmental action is invalid on its face, i.e., facially, or per se, invalid. That is a salient, if tacit point of Heller. The point made is really nothing new. The U.S. Supreme Court has struck down facially unconstitutional laws, repeatedly, in the past, bypassing application of any test to ascertain constitutionality of a governmental action when the governmental action attacks the very core of the right protected by the Bill of Rights. For a general review of and good discussion of cases involving laws that the U.S. Supreme Court struck down on the ground of facial invalidity, see, e.g., two academic articles, written by an expert on the issue of facially unconstitutional laws, Richard H. Fallon, Jr., Professor of Law at Harvard university, "Fact and Fiction About Facial Challenges," 99 California Law Review 915 (August 2011); and, "As-Applied and Facial Challenges and Third Party Standing," Harvard Law Review (April 2000). There are a plethora of academic articles on this subject.Granted, Heller appears to be the first and only Second Amendment case, to date, where the U.S. Supreme Court has struck down a governmental action on the ground of facial invalidity—Justice Scalia finding application of any standard of review either to be redundant or possibly eliciting the wrong conclusion if applied--even if the words, "facial invalidity" do not appear expressly in Scalia's Heller opinion.Courts should seriously consider the reality and enormity of government transgression as government, at the federal, State, and local levels, callously enacts laws and regulations that attack the core of the Second Amendment, albeit doing so under the obvious guise of promoting public safety. Courts of competent jurisdiction should call out such patently unlawful government actions for what they are--scarcely covert attempts to destroy the Second Amendment to the U.S. Constitution. Laws and regulations, such as Maryland's Firearm Safety Act, should be found to be facially invalid as such laws and regulations are designed and implemented for no real purpose other than to prevent an American citizen from exercising his natural right to keep and bear arms under the Second Amendment. Courts should strike down such laws and regulations, unequivocally, peremptorily, totally, thereby sending a clear message to Congress, to the State Legislatures, and to local governments, that the Third Branch of Government, the Judiciary will not sit idly by as government seeks to legislate away the American citizen's fundamental right to keep and bear arms as codified under the Second Amendment. We continue with our analysis of Kolbe in Part Five of this series._________________________*Occasionally, Courts will use a Roman numeral as an informal designation for a case, if a plaintiff in an older case files a new action, raising a similar issue in the new case, against the same defendant. In fact, the principal plaintiff, in the seminal Heller case—a case subsequently and often referred to, as the U.S. District Court of Maryland refers to it, as Heller I—filed a new action against the District of Columbia, challenging the District of Columbia’s registration requirement on handguns and long guns and also challenging the District of Columbia’s ban on so-called “assault weapons” and so-called large capacity magazines—the same sort of challenge that Plaintiffs make to the Maryland Firearm Safety Act, in the Kolbe case.The citation of the recent Federal Circuit Heller case is, Heller vs. District of Columbia, 670 F.3d 1244 (Fed. Cir. 2011). This more recent case is often referred to, informally, as Heller II. We will be taking a close look at this case, as we continue with this important series of articles.Note: it isn’t coincidence that antigun Courts all use the same faulty reasoning when ruling that facially unconstitutional laws, infringing the Second Amendment, nonetheless pass constitutional muster. These Federal Circuit Courts of Appeal—notably, the Second, Fourth, Seventh, and Ninth—dealing with the same or similar fact patterns, are, we believe, clearly working in concert, having created an unholy alliance to uphold laws unconstitutionally infringing the core of the Second Amendment. These Courts, an important component of the  Judiciary—that should rise above the fray--above political and social dissension, exercising independent legal judgment—become, all too often, a lackey of political forces, doing nothing, really, to disguise that fact and doing nothing to disguise the fact, too, that they will ignore U.S. Supreme Court precedent when they wish to impose their own social and political will on society. What makes the actions of these Courts particularly reprehensible is that their actions always have the pious imprimatur of the law—falsely suggesting that their conduct is forever above the fray of politics when it really isn't as they are merely masking, in their judicial orders, what it is they are really doing--what they have done all along--making political and legislative pronouncements, becoming a servant of the Press and of the First Branch of Government--the Legislature--rather than operating as a co-equal Branch of Government as the Founders of our Republic intended for them to operate--namely as the grand interpreter of the law that the Constitution has given them the singular power and authority to oversee._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

KOLBE VS. HOGAN: WILL THE CORRECT STANDARD OF REVIEW IN A SECOND AMENDMENT CASE PLEASE STAND UP!

PART THREE

THE U.S. DISTRICT COURT OF MARYLAND EMPLOYED THE WRONG STANDARD OF REVIEW IN FINDING THAT MARYLAND’S DRACONIAN FIREARM SAFETY ACT IS LAWFUL.

The U.S. Supreme Court, in the case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), wrestled with the legal test to be applied when determining if a law, impacting the Second Amendment, would pass Constitutional muster. The U.S. Supreme Court has, through time, in its great body of case law, developed three salient standards of review, or tests, one of the three which a court of competent jurisdiction must apply when testing the constitutionality of government action. But which test a court must apply to test the constitutionality of a particular government action depends on the nature and importance of the right protected, the extent to which a government--local, State, or federal--infringes that right, and the class of persons impacted by that governmental action.Apart from the high Court's three seminal holdings on the Second Amendment, in Heller, the Heller case is notable for explicating problems associated with all of those standard tests previously employed—and with problems associated with a new one that the dissenting Justice, Stephen Breyer, would like to have applied—when government enacts a law directly impinging on and infringing the very core of the Second Amendment. The late Justice, Antonin Scalia, writing for the majority in Heller, discussed the problems of each  of these standard tests, concluding that none of the traditional tests, including the balancing of interests test proposed by Justice Breyer, are adequate to protect the core of the Second Amendment, when a government deliberately, unabashedly attacks the very core of it.Justice Scalia began by pointing out that the weakest standard of judicial scrutiny, “rational basis,” should never be used to test the constitutionality of legislation, that, on its face, is directed against the exercise of a fundamental right, especially when legislation negatively impacts the Second Amendment. “Rational basis” is an unacceptable standard to be used because, if it is used, a governmental entity--be that a local, State, or Federal governmental entity—need only demonstrate that the governmental legislation is rationally related to a legitimate government purpose. Where the Second Amendment is impacted, this generally means that a governmental entity need only demonstrate that the governmental action is rationally related to a legitimate goal such as promoting public safety in order for that governmental entity to successfully defend against a challenge to the constitutionality of the governmental action.Rational basis, as a standard of review, to test the constitutionality of governmental action, where, as here, the Second Amendment is negatively impacted, is categorically inappropriate. Even the left-wing Justice, Stephen Breyer, agreed. As Justice Scalia stated, in Heller, “Justice Breyer correctly notes that this law [Maryland’s Firearm Safety Act] like almost all laws, would pass rational-basis scrutiny. [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee.” Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms [citation omitted].” District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Justice Scalia points out clearly, categorically the inappropriateness of rational basis in testing the constitutionality of legislation negatively impacting the Second Amendment. For a Court using that lax standard could easily find that laws that unconstitutionally impinge on and infringe fundamental rights would, nonetheless, pass judicial scrutiny every time unless the governmental action is determined, by a court of competent jurisdiction, to be arbitrary and capricious—a notoriously difficult burden for a challenger to overcome, and something which a Court very rarely finds in governmental actions.On Second Amendment matters, where public safety is always asserted as the, or certainly a, salient reason for restrictive gun legislation, it is highly unlikely that a Court of competent jurisdiction would ever find any restrictive gun legislation—even an absolute gun restriction—to be arbitrary and capricious when public safety is asserted as at least one of the primary bases for the legislation. Of course, drafters of restrictive gun legislation, and the mainstream media that always trumpets such legislation, invariably assert “public safety” as the salient, predicate basis for enacting such legislation in the first place. Courts rarely, if ever, look beyond and behind the assertion to determine whether “public safety” is truly the basis for restrictive gun legislation and not simply a makeweight employed for the specific purpose of defeating any challenge made to it.Thus, a challenger—who, under rational basis, always bears the burden of proof, at the get-go, to demonstrate that a particular government action is unconstitutional—would have a very difficult time, demonstrating, to the satisfaction of a court of review, that such restrictive legislation is, under law, unconstitutional. This means, of course, that, under rational basis, any infringement of an American's fundamental right to keep and bear arms always passes constitutional muster. This isn’t an academic consideration. For New York Courts routinely use rational basis as a standard of review and have found, not unsurprisingly, the New York Safe Act—one of the most restrictive and notorious gun enactments in the Nation, that clearly, negatively impacts the core of the Second Amendment—to pass constitutional muster.But, would application of the highest standard of review, strict scrutiny, defeat restrictive gun legislation that hides behind the cloak of promoting public safety? Justice Scalia didn’t think so, notwithstanding the import of such heightened scrutiny.

WHAT DOES JUDICIAL REVIEW UNDER STRICT SCRUTINY MEAN?

What does review of legislation, under “strict scrutiny,” entail? Under strict scrutiny, a governmental body must show, one, that legislation impinging upon and infringing upon a constitutional right, must serve a “compelling governmental interest” and, two, that the law that ostensibly serves a compelling governmental interest, is, in fact, the least restrictive means government has available to it for achieving its stated goal.Such a test, properly used, would, one might reasonably think, preclude implementation of--or if implemented, would require a Court to strike down--devious  antigun legislation, designed primarily to curtail the legitimate right of gun owners to own and possess firearms by unconstitutionally, and, therefore, unlawfully, divesting them of that right. For, the mere and obviously false and ridiculous assertion by government that restrictive gun legislation is not designed to divest gun owners of their guns--as government doesn’t really wish to deny average law-abiding, rational Americans their right to own and possess firearms--but is designed merely to promote public safety--will not, by itself, satisfy strict scrutiny.The mere trivial claim of government--adequate to satisfy rational basis--is not enough to satisfy strict scrutiny. Such legislation would, it is reasoned, fail such severe judicial scrutiny, time and time again. That, of course, is what application of strict scrutiny is designed to do. But that is not always what happens--especially where legislation impinging on and infringing the right of the people to keep and bear arms exists. Justice Scalia knew this. He wasn’t fooled by the promise that strict scrutiny sought to engender. Justice Scalia saw the fallibility in the test of strict scrutiny—in any test or standard, really, that a Court may be called upon to employ when testing the constitutionality of restrictive gun legislation—even the test of strict scrutiny as applied to test the constitutionality of governmental enactments.Justice Scalia reasoned, in the Heller opinion, that, if the Courts use the most stringent standard, strict scrutiny, then government action, negatively impacting the right of the people to keep and bear arms—a fundamental right as codified under the Second Amendment—could still feasibly pass Constitutional muster.He said in Heller, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’” [citation omitted] would fail constitutional muster. District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Academicians concur. One legal scholar writes, “Strict scrutiny must be worthy of its name; ‘strict’ should be truly ‘strict,’ not merely ‘significant.’ It should take more than a good college try to satisfy strict scrutiny. Otherwise aspects of liberty encapsulated in fundamental rights will lack the vigor the Supreme Law of the Land should command in a free society. That is why strict scrutiny is ‘the most demanding test known to constitutional law.’” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, Kenneth A. Klukowski, University of Notre Dame Law School, J.D., 93 Nebraska Law Review 429, 444 (2014). The author says, unabashedly, that the courts have “emasculated strict scrutiny.” Certainly, Justice Scalia was aware of this “emasculation” of the strict scrutiny test. It was for this reason that he was skeptical of asserting a standard of review for Second Amendment cases at all. Justice Scalia knew that many courts, federal and State, frown on the very existence of the Second Amendment. Given the chance, judges that despise the Second Amendment would find a restrictive gun law constitutional using any articulated standard of review. Justice Scalia also obviously knew that, to enhance the effectiveness of Heller, it was necessary to make clear to courts of inquiry that outright bans on entire categories of guns that the public has traditionally and commonly used for self-defense are per se unconstitutional. “There are situations in which even strict scrutiny proves insufficient to vindicate constitutional rights. Those are (1) categorical bans on firearms, and (2) firearm confiscations. . . . Per se rulings will . . . take off the table certain questions wherein courts are giving short shrift to the Second Amendment. The Second and Fourth Circuits have held that near-absolute bans on carrying firearms outside the home are constitutional, applying a faux intermediate scrutiny that more resembles rational-basis review.” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, 93 Nebraska Law Review at 446-447.

WHAT STANDARD OF REVIEW DID THE U.S. DISTRICT COURT OF MARYLAND USE IN DECIDING KOLBE?

But, what did the U.S. District Court of the District of Maryland, in Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014), do? The lower Court didn’t apply strict scrutiny, nor did it apply rational basis. The U.S. District Court applied another standard of review—intermediate scrutiny, and, having done, the Court, held, not surprisingly, that facially unconstitutional legislation nonetheless passes judicial inquiry into the constitutionality of that legislation--namely, that the Maryland Firearm Safety Act is lawful and consistent with the Second Amendment right of the people to keep and bear arms. Under “intermediate scrutiny,” a standard of review created by the U.S. Supreme Court, that ostensibly falls between the very lax “rational basis” standard and the seemingly strong “strict scrutiny” standard, a Court, using the intermediate scrutiny test, commences by asking whether legislation is rationally related to a legitimate government goal. That of course is the rational basis test; and, under that test, if the government action meets that liberal test, as it almost invariably does, the Court must need go no further in determining the constitutionality of the government action. But, rational basis is only the first step when a Court employs intermediate scrutiny. The Court then proceeds to the next step, and asks whether the legislation is substantially related to the governmental interest in achieving that goal. How did intermediate scrutiny come to pass? Originally, intermediate scrutiny was devised by the U.S. Supreme Court for use in gender discrimination cases. Intermediate scrutiny, though, has increasingly been used by Courts, in lieu of the heightened strict scrutiny, in cases where fundamental rights are at stake—most notably under the First and Second Amendments.Antigun Courts that are generally restrained from using rational basis—apart from the Courts of New York that have systematically gotten away with use of this altogether inapt standard of review—the standard of review of choice of these antigun Courts, tasked with ruling on the constitutionality of a government action that negatively impacts the Second Amendment, is intermediate scrutiny.But there is a problem with this standard of review. The problem with “intermediate scrutiny” is that it is difficult to get a handle on it. What does “substantially related” mean? It means different things to different Courts.Understand, if, as Justice Scalia pointed out in Heller, strict scrutiny is not an appropriate test to be used in testing the constitutionality of government action that infringes the core of the Second Amendment, intermediate scrutiny, as with the lax test, rational basis, is clearly not the appropriate test for a Court to use either. The U.S. District Court of Maryland used the test of intermediate scrutiny, anyway.Maryland’s Firearm Safety Act, operating as a total ban on an entire category of firearms that the law-abiding citizenry traditionally and commonly uses for self-defense—namely, those firearms the State arbitrarily defines as “copycat weapons” or “assault weapons” or “military style weapons” and ammunition magazines classified as “LCM” (Large Capacity Magazines)” commonly used for those weapons—passes constitutional muster on a standard of review the U.S. District Court for the District of Maryland decided to use—a standard of review to test the constitutionality of the Maryland Firearm Safety Act that the Heller majority discussed—along with rational basis and strict scrutiny—and summarily rejected.Why did the U.S. District Court of Maryland use a standard of review in clear contravention to Heller in testing the constitutionality of the Maryland Firearm Safety Act—that so blatantly infringes the right of the people to keep and bear arms? What was the U.S. District Court of Maryland thinking? Did the U.S. District Court of Maryland really believe that it could so easily snub the U.S. Supreme Court? What was the reasoning of the U.S. District Court? We deal with these questions in Part Four of this multipart series on Kolbe.__________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.