NEW YORK SANCTIONS MURDER THROUGH ENACTMENT OF REPRODUCTIVE HEALTH ACT OF 2019

Americans will remember Andrew Cuomo, the 56^th Governor of New York, long after he leaves Office and longer still, once he has departed from this Earth. They will remember Andrew Cuomo, but not in a good way. They will remember him for ramming through the State Government in Albany, two policy measures, both of which are antithetical to the core values, beliefs, and traditions of Americans, and both of which are inconsistent with the core tenets of the Bill of Rights of the United States Constitution.These two reprehensible policy measures go by the names: New York Safe Act and the Reproductive Health Act. Governor Cuomo has championed both these policies. With his political clout Cuomo forced both measures through the State Legislature, in Albany. Cuomo signed the former into law on February 15, 2013. He signed the latter into law, recently, on January 22, 2019.The descriptors employed for these two laws belie their purpose, as most laws do. Cuomo tells New York’s residents that the salient purpose and goal of the NY Safe Act is to promote and enhance public safety. But a perusal of the Act makes clear its true purpose and goal: disarming law-abiding members of the public.The NY Safe Act operates through a multitude of arcane laws that place extraordinary restrictions on firearms’ ownership and possession. A person has difficulty finding them all, as they are peppered throughout the New York State Code. Once found, their meaning is difficult to discern and fathom, even for lawyers, as the verbiage is ambiguous and vague. Whether due to unintentional poor draftsmanship or due to a deliberate attempt to obscure and confound, Cuomo and other antigun zealots do intend to frustrate the citizen, and, so, dissuade the citizen from obtaining and maintaining firearms within the jurisdiction of New York.Cuomo exclaims that he is more desirous of promoting, enhancing, and securing public safety and less intent on defeating the citizen’s exercise of a fundamental, enumerated, unalienable right. Hardly true, but, one thing is true enough. The NY Safe Act makes the public decidedly less, not more, safe, as it becomes an easy target for armed predators who demonstrate regard neither for law nor for the sanctity of human life. Thus, one is left to draw the inescapable conclusion that the NY Safe Act has, ultimately, nothing tangible to do with promoting, securing, and enhancing public safety and everything to do with undermining the ideals of individual responsibility, autonomy, and inviolability.It should come as no surprise then, that Andrew Cuomo would endorse a measure that amounts to legally sanctioned murder in the case of the State’s new “Reproductive Health Act,” for it is the individual—in this case the most innocent among us, the unborn child—whom the Reproductive Health Act targets. Murder, after all, may, in a figurative sense apply to an assault on society at large, writ large, but murder is a literal, life-ending assault on the integrity, and inviolability of the individual, as so defined with particularity in both Federal and State law.As with those who espouse the radical left-wing doctrines of Socialism and Communism, Cuomo is a ‘Collectivist.’ When Cuomo expresses concern for the health, well-being, safety, or welfare of the public, he uses the word, ‘public’ in a broad sense, consistent with the precepts of Collectivism. He refers to the body politic in its entirety; not to the individuals who comprise it.The ethical system Cuomo and other Collectivists embrace is called utilitarian consequentialism. This is an ethical system devoid of reference to or concern with a person’s intentions and motivations; only with the results of one’s actions. Motives and intentions fall out of the equation entirely. An action is deemed morally good or morally evil from the standpoint of consequences only. A morally good act is one that maximizes utility for the collective, the hive. A morally evil act or a morally neutral act is one that does not maximize utility for the collective.The notion of ‘utility maximization’ is nebulous. It means whatever the proponent of utilitarian consequentialism, says it means; nothing more. Utilitarian consequentialism an ethically bankrupt system as is ‘utility maximization, underlying it since, for the utilitarian consequentialist, good and evil are relative to times and circumstances. They aren’t, contrary to a person’s expectations. with the notion of fundamental rights and liberties, as relative concepts derived from and created by man, not by God.Not surprisingly, utilitarian consequentialists espouse no concern for the health, welfare, and well-being of the individual but only for that of an amorphous mass. Thus, Cuomo, the Collectivist and Utilitarian Consequentialist, does not express concern for the life, health, well-being and welfare of the individual souls of the body politic, but only concern for the well-being and welfare of the collective, “the hive.” Understandably, Andrew Cuomo would help draft the text of, avidly support enactment of, and sign into law such morally reprehensible schemes as the Reproductive Health Act and the New York Safe Act. Both these Acts have a decisive, negative impact on the life, health, safety, welfare, and well-being of each American citizen. Cuomo and others attempt to hide the awful impact of these schemes on Americans. They do this through carefully conceived and orchestrated campaigns of deception.Not unsurprisingly, the wording of New York’s Reproductive Health Act, as with the wording of the New York Safe Act, deliberately obscures and, in fact, belies its true purpose and effect. One sees the true import and purport of the Act only when one drills down into the language of it. Like the New York Safe Act, the Reproductive Health Act betrays the sanctity and inviolability of the life. It betrays the welfare and well-being of the American citizen. The New York Safe Act has nothing to do with promoting and enhancing safety. And the Reproductive Health Act has nothing to do with promoting health. It is a Death Act, not a Life and Health Act.Most Americans do not share Andrew Cuomo’s beliefs and wish neither to adopt nor suffer his political, social, and bankrupt moral belief system. But he thrusts his beliefs and belief system on others anyway. Since Cuomo wields considerable power and influence in New York and shows no reluctance in utilizing that power and outsize influence, those falling within the purview of his jurisdiction—namely the State of New York—are compelled to live in a reality, a hell-world, he has created for them. Few can object as Cuomo seeks to control public discourse, thought, and action; and, with the avid assistance of the mainstream media, he has become very successful at it.The qualities of compassion, restraint, humility, and respect for the beliefs of other Americans simply don’t exist in Andrew Cuomo’s psychological makeup. Cuomo, as with so many other Collectivists that comprise the Democratic Party, both on the State and Federal level, demonstrates callous disregard for the feelings and beliefs of others. Forcing his peculiar belief system onto millions of others, he does so with the conviction and certitude of a fanatic and sociopath, seemingly convinced of the infallibility of and superiority of his beliefs, and unmindful and, indeed, disdainful for the thoughts and feelings of others.As a private citizen of the United States, Cuomo may, of course, hold to and cultivate and express any belief or belief system he wishes. That’s his right--the right of free speech--as guaranteed in the First Amendment to the U.S. Constitution. That harms no one. But, as Governor of New York, one would hope the Governor would be circumspect. He isn't. As a Public Official, Cuomo thrusts his belief system onto others. He now harms everyone; and what he has ordained cannot and ought not be countenanced; and, indeed, ought to be roundly and soundly condemned.Through enactment of the NY Safe Act, Cuomo at once denied and denigrated a fundamental right, the right of the people to keep and bear arms—a right that is clearly, concisely, and categorically articulated in the Second Amendment to the U.S. Constitution. He did this because he utterly detests the Second Amendment and he finds the right of the people to keep and bear arms to be repugnant to his own peculiar sensibilities. Cuomo operates as if the Second Amendment did not exist. Similarly, through enactment of the Reproductive Health Act, he operates as if the unborn child is a non-entity and may therefore be erased from existence.

GOVERNOR CUOMO DEMONSTRATES NO RELUCTANCE IN DENYING, TO A CITIZEN OF THE UNITED STATES, THE FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS--A RIGHT CLEARLY CODIFIED IN THE BILL OF RIGHTS OF THE U.S. CONSTITUTION, YET HE DEMONSTRATES, AT ONE AND THE SAME TIME, A WILLINGNESS TO READ INTO THE BILL OF RIGHTS A FUNDAMENTAL RIGHT TO MURDER AN UNBORN CHILD, WHICH HE VIEWS AS INHERENT IN A CONSTITUTIONAL RIGHT TO PRIVACY EVEN THOUGH SUCH NOTION IS NEITHER EXPLICITLY STATED IN THE CONSTITUTION NOR IMPLIED.

Let us take a look at what the Reproductive Health Act, 2019 N.Y. SB 240, Chaptered, January 22, 2019, 2019 N.Y. ALS 1; 2019 N.Y. Laws 1; 2019 N.Y. Ch. 1; 2019 N.Y. SB 240, actually says. Section 1, titled, “Legislative Intent,” sets forth:“The legislature finds that comprehensive reproductive health care, including contraception and abortion, is a fundamental component of a woman’s health, privacy and equality. The New York Constitution and United States Constitution protect a woman’s fundamental right to access safe, legal abortion, courts have repeatedly reaffirmed this right and further emphasized that states may not place undue burdens on women seeking to access such right.Moreover, the legislature finds, as with other medical procedures, the safety of abortion is furthered by evidence-based practices developed and supported by medical professionals. Abortion is one of the safest medical procedures performed in the United States; the goal of medical regulation should be to improve the quality and availability of health care services.Furthermore, the legislature declares that it is the public policy of New York State that every individual possesses a fundamental right of privacy and equality with respect to their personal reproductive decisions and should be able to safely effectuate those decisions, including by seeking and obtaining abortion care, free from discrimination in the provision of health care.Therefore, it is the intent of the legislature to prevent the enforcement of laws or regulations that are not in furtherance of a legitimate state interest in protecting a woman’s health that burden abortion access.”As made abundantly clear, through this Section of the Act, titled, “Legislative Intent,” Cuomo dares to raise to the level of a fundamental right, something that is nowhere explicit or implied in the Bill of Rights, or, for that matter, anywhere else, in the Constitution. Yet, those members of the New York Legislature who enacted New York’s Reproductive Health Act, and Governor Andrew Cuomo, who signed the Reproductive Health Act into law, have the audacity to raise the killing of an unborn child to the level of a fundamental Constitutional Right. And, having done so, these people dare deny to the unborn child, the sanctity and autonomy, to which that living soul, as any other soul, is rightfully entitled: the right to exist as a living being, created by the Lord.Contrary to the wording of New York’s Reproductive Health Act, no person has a fundamental right to abortion. The Constitution of the United States does not sanction abortion, under any set of circumstances. But, with enactment of the Reproductive Health Act, an oxymoron, the State of York now sanctions murder, and has the audacity of raising murder to the level of a fundamental right.How does Cuomo and other proponents literally get away with murder? They do this by denying personhood to a living soul. And, how do they do that? They do that by declaring, in principal part, that the mother’s right to privacy, outweighs the life of the unborn child. But, where in the Constitution does this right of presumptive privacy for the mother over the life and well-being of the unborn child exist? The answer is: nowhere.Privacy is nowhere mentioned in any one of the Articles of the United States Constitution; and certainly not in the Bill of Rights of the Constitution subsequent amendment to the U.S Constitution. To be sure, the Fourth Amendment to the U.S. Constitution does indeed codify the fundamental right of the individual to be free from unreasonable searches and seizures. But, only through a feat of legerdemain can one claim that a general right of privacy exists within the definitive explicit right of the citizen to be free from unreasonable searches and seizures. The concept of “unreasonable searches and seizures” is precise. The concept of ‘privacy’ is abstract and vague. Certainly, no sane argument can be made that a right to deny life to an unborn child equates with a right to be free from unreasonable searches and seizures. The framers of the Constitution could not have feasibly, rationally have intended that. Obviously, they have not. Only a fevered mind would believe otherwise.Now, one may argue that a general right to privacy, apart from the fundamental, unalienable, enumerated right of each American to be free from unreasonable searches and seizures does, arguably, exist as an unenumerated right of the Ninth Amendment to the U.S. Constitution, but, again, no one can reasonably construe the idea of the assault on the life of an unborn child as something that is to be subsumed in or as something that can rationally be subsumed in a general notion of privacy, even if only as an unenumerated right in the Ninth Amendment. Further, although there have been attempts to interject privacy into the discussion of abortion, one cannot do so without dismissing out-of-hand the fact that abortion logically entails the killing of an unborn child.The New York abortion law dares raise abortion to the level of a substantive, fundamental right. It does so despite the absence of either a clear legal or moral foundation for it. And for those who assert with conviction a woman’s unalienable right to an abortion, they must contend with the necessary consequence of it: the death of the unborn child. They do not wish to contend with that fact. But, if pressed, supporters of abortion will simply assert that the unborn child isn’t a person. The unborn child is simply perceived as a nonentity. Advocates of abortion thereupon deny to the unborn child the most sacred right of all—that of life itself. The moral dubiousness of and indeed the outright absurdity of their position is, thus, laid bare.For those State Officials, who, like Cuomo, claim concern for human life—there is a curious and odd “consanguinity” in both the recent abortion Act, and in the New York Safe Act. Both acts proceed from the false assumption that what Government deems best for society, perceived in its entirety, must take precedence over the welfare of the individuals who comprise that society.Ostensible concern for public safety is the pretext for the New York Safe Act of 2013. But, as with all restrictive firearms’ measures, the NY Safe Act demonstrates a lack of concern for the health, safety, and well-being of the citizen. Thus, the proponents of restrictive gun laws, such as the NY Safe Act, claim to maximize benefit for society, but that presumed benefit to society comes at a cost: the concomitant loss of any benefit accruing to the individual.Similarly, the Reproductive Health Act of 2019 claims to extol the virtue of health, privacy, and equal protection to society comprising a class of women who seek abortion; but, in so doing, the proponents of the Reproductive Health Act demonstrate a lack of concern for the health, safety, and well-being of the most innocent beings. Thus, the proponents of abortion on demand, claim to maximize a benefit for society, but that presumed benefit to society comes at a most severe cost: the concomitant loss of the most critical need of all—life itself—as it is individuals who suffer the consequence of abortion as their life is snuffed out.

NEW YORK’S REPRODUCTIVE HEALTH ACT SANCTIONS MURDER

Under any objective appraisal, New York’s Reproductive Health Act is an abomination. It sanctions as permissible conduct, acts of unimaginable savagery that other States codify in their own laws as impermissible, reprehensible, heinous criminal conduct: namely, murder.How does New York’s Reproductive Health Act do this? The Act sanctions murder by amending New York law: by adding to and deleting various provisions of New York public health law, penal law, the criminal procedure law, and other laws related to and regarding abortion.A new section of the Public Health Law of New York, Section 2599-bb reads:"A health care practitioner licensed, certified, or authorized under title eight of the education law, acting within his or her lawful scope of practice, may perform an abortion, when according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health."Those who defend the Reproductive Health Act argue that the law, as written, only prohibits abortion up to the third trimester, and at no time thereafter, unless “there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” A few points must be made to counter this unsound conclusion.First, by emphasizing prohibition of at will abortion after the third trimester, one loses sight of the fact that the Act does allow at will abortion during the first two trimesters, regardless of the viability of a child. Those favoring abortion point to the idea that the unborn child is not viable outside the womb before 20 weeks. Whether true or not that misses the point of the horror of abortion at all. It is simply a straw man argument in favor of abortion. If a child is healthy at any point during pregnancy, then the idea of viability inside or outside the womb should not be considered a rational factor in determining the legitimacy of abortion, whether during the first, second, or third trimester. In other words, abortion should not be countenanced at any point during pregnancy.Second, the New York Reproductive Health Act, as enacted, doesn’t limit the act of aborting a child to the services of a medical doctor. Virtually any individual who is licensed in New York, and “acting within his or her lawful scope of practice” may now lawfully perform an abortion in New York. The law broadly expands those who may conduct an abortion well beyond that of a medically trained and licensed physician certified in the field of obstetrics or gynecology. That should give anyone pause.Third, when analyzing the Act, one should pay attention to how the Reproductive Health Act changes New York’s Penal Code. The Penal Code has been extensively rewritten.Every Section of the Penal Code that refers to Abortion as a crime has been either deleted or repealed. Since abortion is no longer a crime, no one can, any longer, be charged with the crime for performing an abortion. Thus, even if one chooses to read Section 2599-bb very narrowly to proscribe abortions during the third trimester, in fact abortions are now perfectly legal in New York up to the point of birth of the child.Since criminal liability for abortion no longer exists in New York, no one can be held criminally liable for performing an abortion. This means that, in effect, anyone—literally anyone—can perform an abortion, contrary to the dictates of Section 2599-bb; and abortions can be lawfully performed up to and including the point where the mother is giving birth to a viable, perfectly formed, and healthy child.If there is any doubt about this, consider that New York’s County Coroners are now absolutely prohibited under the Reproductive Health Act from investigating abortion as a crime, in New York.“Section 11. Subdivision 1 of section of 673 of the county law, as added by chapter 545 of the laws of 1965, is amended to read as follows:A coroner or medical examiner has jurisdiction and authority to investigate the death of every person dying within his county, or whose body is found within the county, which is or appears to be:

• A violent death, whether by criminal violence, suicide or casualty;
• death caused by unlawful act or criminal neglect;
• death occurring in a suspicious, unusual or unexplained manner;

(d) A death caused by suspected criminal abortion;(e)A death while unattended by a physician, so far as can be discovered, or where no physician able to certify the cause of death as provided in the public health law and in form as prescribed by the commissioner of health can be found.”What does this Section of New York law mean? It means abortion—any abortion of a child—is perfectly legal in New York. It can be performed by anyone, and at any time.Where there is no liability for criminal conduct, there is, in effect, if not in fact, no crime. Abortion has literally been written out of the criminal code of New York.What is the bottom line here? Just this: In the absence of liability, one can reasonably conclude that:  Under New York’s Reproductive Health Act, abortion in New York is now permissible at any time, for any reason, performed by anyone. And, it gets even worse. Consider the following scenario: Suppose a woman, pregnant with child, has every intention of having a baby and that woman is assaulted by a criminal and, as a result of criminal assault, loses the baby. While the attacker can can be held criminally liable for harm to the mother, the attacker cannot now, unlike in the past, be held criminally liable for the death of the unborn child. The attacker cannot no longer be held liable for murder, for manslaughter, for criminal negligence—for anything related to the death of the unborn child.We can thus extrapolate from the law the following, where a pregnant woman is attacked an loses a child as a result of the attack:The loss of the child, as a result of an attack on the mother, may be construed as an unintended abortion. Since abortion is no longer a crime, the loss of the child from the abortion can no longer be deemed a crime. Cuomo himself makes the point by proclaiming that the mother cannot be held responsible for the loss of the child. But that misses the critical point. The question is not whether the mother can be held criminally liable for the loss of her child. Obviously, she cannot and ought not. Rather, the issue is whether the perpetrator of the violence on the mother can be held criminally liable for the harm done to the unborn child—i.e., the death of the child—caused by the perpetrator’s attack on the mother. He cannot!Since abortion is now ruled out as a homicide in New York in every instance, the child, as such, does not in law exist. One cannot be charged for a crime perpetrated on a non-entity. It is as if the mother were not pregnant at all. It simply no longer matters under New York law. It is not, then, merely that an unborn child is perceived as not worthy of life. It is as if the unborn child doesn’t exist; that the unborn child never existed. The child is not perceived as a person, but merely as an unwanted thing to be discarded.This is the new reality, the hellish cauldron of insanity and horror that Governor Andrew Cuomo’s Reproductive Health Act has thrown all New York residents into and which, like the reprehensible New York Safe Act, he would unleash on the entire Country if he were but given the chance.______________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

EXTREME RISK PROTECTION ORDERS: FURTHER EROSION OF THE SECOND AMENDMENT IN THE EMPIRE STATE, AS ENVISIONED BY GOVERNOR ANDREW CUOMO

While Congressional and State Democrats and Centrist Republicans fret over and complain about President Donald Trump’s lawful immigration enforcement actions, directed at tens of thousands of aliens attempting illegal entry across our Nation's Southern Border, these same members of Congress and legislators in State Government are no less busy, albeit at the moment ever so quietly, at work machinating to deprive American citizens’ of their sacred Second Amendment right to keep and bear arms. It is singularly odd that Congressional and State legislators and various State and Government officials and media commentators of a liberal bent bemoan what they describe, with a rhetorical flourish, as Border Patrol agents “stripping (or ripping) children from the arms of migrant Moms and Dads” who, for all that, when one stops to consider, have dared enter our Nation illegally. And, it is equally odd that these same legislators and federal Government officials and leftist media commentators wrongly and unabashedly slur federal ICE agents for simply doing their job, for the benefit of the citizens of this Country, and at considerable risk to their own lives, arresting illegal aliens who—showing contempt for our laws, having  illicitly entered our Country and having embedded themselves in our Nation, and who having further compounded their criminal actions by failing to report to the Courts for their deportation hearing—dare argue that these criminals have a moral and legal right to remain lawfully in our Country. And, third, these leftist legislators, leftist Government officials and leftist mainstream media types attempt, outrageously, to inflame public passion over HHS handling of illegal alien children and adults. But, these illegal aliens have dared to skirt our immigration and naturalization laws by entering our Country illegally. These leftist legislators and leftist Government officials and leftist news reporters and commentators ludicrously liken HHS detention of illegal aliens to concentration camp internment, yet, at once fail to acknowledge one inescapable, indisputable fact: American Government officials have not rounded up illegal aliens, spiriting them out of their native Countries, forcing them into detention in the United States.  No! These aliens came illegally to our Country through their own volition. They are, then, by any reasonable consideration, hardly in a position to contest their less than five star hotel treatment.Yet, despite, arguing for the existence of rights and liberties these illegal aliens simply do not have, and never have had--rights and liberties they would nonetheless lavishly bestow on illegal aliens--these sanctimonious leftist Congressional and State legislators, and leftist federal Government officials, and leftist media types, surprisingly, do not demonstrate equal concern for protecting the unalienable and fundamental right of the American people to keep and bear arms. We see just the opposite to be the case. These leftist Congressional and State legislators work strenuously, tirelessly to strip or rip away a sacred right of the American people, codified clearly and succinctly in the U.S. Constitution. And, our free Press, constantly heralding the right to spout dangerous nonsense—a right, just the same, protected under the First Amendment, constantly, consistently echo the work of these leftist Congressional and State legislators, proclaiming, and arguing for, the imposition of ever more restraints on the citizen’s exercise of his or her Second Amendment right to keep and bear arms. Indeed, some among the media's commentators, like the New York Times' Op-Ed Columnist, Bret Stephens, even argue, outrageously and insidiously, for outright de jure repeal of the Second Amendment to the U.S. Constitution—even though it is only through the preservation of and through the continued force and efficacy of the fundamental, sacred, and natural right codified in the Second Amendment that the ultimate, failsafe check by the People, on a runaway autocratic Government, exists to impose accountability on a Government that might run amok.

LEFTISTS PERCEIVE THE EXISTENCE OF RIGHTS AND LIBERTIES, ACCRUING TO ALIEN PEOPLES, THAT SIMPLY DO NOT EXIST AND, AT ONE AND THE SAME TIME, DARE TO DENY THE EXISTENCE OF THE MOST SALIENT FUNDAMENTAL, NATURAL RIGHT OF THE AMERICAN CITIZEN THAT CLEARLY, AND LITERALLY DOES EXIST, AS MANIFESTLY CODIFIED IN THE SECOND AMENDMENT OF THE BILL OF RIGHTS OF THE NATION’S CONSTITUTION.

In point of fact no non-citizen can assert, as a matter of right, a bald claim to reside in our Nation. Still, many individuals in Government, in the mainstream media, in entertainment, in liberal and socialist groups, along with “elitist” internationalists, assert that virtually anyone who seeks to reside in our Nation has the right to do so even when no such right exists either in our Constitution or in our Nation’s Statutes. At one and the same time these same leftists exclaim vociferously, incessantly, and inconsistently that parts of our Nation’s Constitution ought to be and can be patently ignored, even where the rights are etched firmly in stone.A collectivist mentality infects the airwaves. Collectivists have carefully orchestrated a campaign of propaganda, a campaign designed to divest a Nation’s people of their cultural heritage and history, of their sense of uniqueness and pride. These destroyers of the Nation State utilize a flexible sense of morality, predicated on utilitarian axioms that proceed from the notion that what is in the best interests of the world’s multitude, overrides what is in the best interests of the citizens of a Nation; and that what is deemed to be right, and fitting, and good, and fair, and just, in accordance with collectivist ideology, overrides the laws of a Nation; overrides a Nation’s Constitution; overrides the very needs, rights, personal safety, and sanctity of the individual citizen of a Nation.Collectivists do not like the fact that our Nation is an independent sovereign Nation State and that our Nation, as an independent sovereign Nation, operates through a set of concrete laws, and through a Constitution that exists as the supreme Law of the Land. The U.S. Constitution and the laws that Congress enacts are not subject to acceptance or rejection on a whim, predicated, ostensibly, on a collectivist notion of what constitutes correct action and what constitutes eggregious action. To deny the truth of this statement is to accept in its stead, a state of lawlessness, of anarchy. It is this lawlessness, this anarchy, that the destroyers of our Nation seek, even as they disingenuously and insidiously claim to defend our Constitution and the laws of the Nation. Consider, for example, the confounding, bizarre Collectivist message that proclaims a desire to destroy, Immigration and Customs Enforcement (ICE). And through the softening of our Nation’s laws and of our Nation’s Constitution, we, ourselves, become weakened, malleable. In the end, a new international world order, overseeing the conduct of all Nation States, would predominate, and our own free Republic would, in fact, not merely in name, cease to exist.Contrary to those dissemblers of our Nation, our Constitution is not to be toyed with. Our Country ceases to exist but for our Constitution. The United States Supreme Court made patently clear in the seminal immigration law case, United States v. Verdugo-Urquidez, 494 U.S. 259, 270; 110 S. Ct. 1056, 1063; 108 L. Ed. 2d 222, 236; 1990 U.S. LEXIS 1175, that: “The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution” “[and that] for better or worse, we live a world of nation-states in which our Government must be able to ‘function effectively in the company of [other] sovereign nations.’” 494 U.S. at 275; 110 S. Ct. at 1066; 108 L. Ed. 2d at 239. President Donald Trump understands this limitation and accepts this limitation and operates within the confines of our laws and our Constitution. And, by the same token, President Trump understands his duty, as Chief Executive of our Nation as an independent, Sovereign Nation-State, to maintain the integrity of our Nation’s Borders.Unfortunately there are all too many members of Congress and in the State Legislatures who allow raw emotion to cloud their judgment. They remonstrate against the President even as he operates within the stricture of Article 2, Section 3 of the Constitution to “take care that the laws be faithfully executed.”Emotion must never override nor cloud reason. Collectivist notions of morality are not and never have been a justifiable reason for ignoring the authority of and stricture of Constitutional precepts. Yet, Democrats and Centrist Republicans—through the echo chamber of the mainstream media—daily denigrate our Constitution and our Statutes even as they assert, disingenuously, to operate within the confines of the rule of law.Both in the matter of immigration and naturalization matters and in the matter of the Second Amendment right of the people to keep and bear arms, we, Americans, are constantly beset with a fusillade of false and misleading pronouncements aimed at confusing us as to the meaning of and purport of our Statutes and of the supremacy of the U.S. Constitution.Even before the two mass shooting incidents—one at the Marjory Stoneman Douglas High School, in Parkland, Florida, and the second at Santa Fe High School, in Santa Fe, Texas—State legislators contrived new ways to deprive citizens of owning any firearm, thereby directly impinging on and infringing the Second Amendment of the U.S. Constitution. States started looking at further ways to impede the citizen’s exercise of his or her fundamental right to keep and bear arms.In New York, for example, in March 2017, Democrat, Brian Kavanagh, introduced A.B. 6994, in the State Assembly. The bill is described as: “AN ACT to amend the civil practice law and rules, the criminal procedure law and the penal law, in relation to establishing extreme risk protection orders as court-issued orders of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.” AB 6994 has already passed the Assembly—the First Chamber of the New York State Government, in Albany New York—and it now sits in the Second Chamber, the New York State Senate. AB 6994 appears, fortunately, at least at this moment in time, to have a low chance of passage, but such passage should not be ruled out, especially in light of the two fairly recent high school mass shooting incidents.Those Americans who support our Second Amendment should bear in mind that New York’s AB 6994—along with similar predecessor bills that were introduced in the New York Assembly or State Senate, and that failed—is an altogether new restriction on gun owners. If enacted, this bill amounts not merely to a change in existing restrictive New York gun laws, but to the creation of a wholly new restriction in conjunction with New York’s present, extensive, oppressive set of restrictive gun laws.If enacted into law, AB 6994 says that “the civil practice law and rules are amended by adding a new article 63-A.”What does the bill say? The bill sets forth both the rationale and requirements, in addition those presently existent in New York, for removing firearms from a New York resident’s possession, along with a detailed list of mechanisms for such removal.

EXTREME RISK PROTECTION ORDERS: A NEW AND OUTRAGEOUS TWIST ON AN OLD LEGAL DEVICE--ORDERS OF PROTECTION AND RESTRAINING ORDERS

We first set forth the bill in its entirety, and then explicate the salient portions of the bill.AB 6994 [AMENDING ARTICLE 63-A OF THE CIVIL PRACTICE LAW AND RULES OF THE STATE OF NEW YORK]:[NOTE: UPPER CASE LETTERS APPEAR IN THE ORIGINAL TEXT OF THE BILL; NUMBERING HAS BEEN REMOVED GIVEN EDITING DIFFICULTIES]EXTREME RISK PROTECTION ORDERSDEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:‘EXTREME RISK PROTECTION ORDER’ MEANS A COURT-ISSUED ORDER OF PROTECTION PROHIBITING A PERSON FROM PURCHASING, POSSESSING OR ATTEMPTING TO PURCHASE OR POSSESS A FIREARM, RIFLE OR SHOTGUN.‘PETITIONER’ MEANS: (A) A POLICE OFFICER, AS DEFINED IN SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW, OR DISTRICT ATTORNEY WITH JURISDICTION IN THE COUNTY OR CITY WHERE THE PERSON AGAINST WHOM THE ORDER IS SOUGHT RESIDES; OR (B) A FAMILY OR HOUSEHOLD MEMBER, AS DEFINED IN SUBDIVISION TWO OF SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW, OF THE PERSON AGAINST WHOM THE ORDER IS SOUGHT.‘RESPONDENT’ MEANS THE PERSON AGAINST WHOM AN EXTREME RISK PROTECTION ORDER IS OR MAY BE SOUGHT UNDER THIS ARTICLE.APPLICATION FOR AN EXTREME RISK PROTECTION ORDER. IN ACCORDANCE WITH THIS ARTICLE, A PETITIONER MAY FILE A SWORN APPLICATION, AND ACCOMPANYING SUPPORTING DOCUMENTATION, SETTING FORTH THE FACTS AND CIRCUMSTANCES JUSTIFYING THE ISSUANCE OF AN EXTREME RISK PROTECTION ORDER. SUCH APPLICATION AND SUPPORTING DOCUMENTATION SHALL BE FILED IN THE SUPREME COURT IN THE COUNTY IN WHICH THE RESPONDENT RESIDES. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ADOPT FORMS THAT MAY BE USED FOR PURPOSES OF SUCH APPLICATIONS AND THE COURT'S CONSIDERATION OF SUCH APPLICATIONS. SUCH APPLICATION FORM SHALL INCLUDE INQUIRY AS TO WHETHER THE PETITIONER KNOWS, OR HAS REASON TO BELIEVE, THAT THE RESPONDENT OWNS, POSSESSES OR HAS ACCESS TO A FIREARM, RIFLE OR SHOTGUN AND IF SO, A REQUEST THAT THE PETITIONER LIST OR DESCRIBE SUCH FIREARMS, RIFLES AND SHOTGUNS, AND THE RESPECTIVE LOCATIONS THEREOF, WITH AS MUCH SPECIFICITY AS POSSIBLE.A STATEMENT TO THE RESPONDENT: DIRECTING THAT THE RESPONDENT MAY NOT PURCHASE, POSSESS OR ATTEMPT TO PURCHASE OR POSSESS A FIREARM, RIFLE OR SHOTGUN WHILE THE ORDER IS IN EFFECT AND THAT ANY FIREARM, RIFLE OR SHOTGUN POSSESSED BY SUCH RESPONDENT SHALL BE PROMPTLY SURRENDERED TO ANY AUTHORIZED LAW ENFORCEMENT OFFICIAL;INFORMING THE RESPONDENT THAT THE COURT WILL HOLD A HEARING NO SOONER THAN THREE NOR MORE THAN SIX BUSINESS DAYS AFTER SERVICE OF THE TEMPORARY ORDER, TO DETERMINE WHETHER A FINAL EXTREME RISK PROTECTION ORDER WILL BE ISSUED AND THE DATE, TIME AND LOCATION OF SUCH HEARING, PROVIDED THAT THE RESPONDENT SHALL BE ENTITLED TO MORE THAN SIX DAYS UPON REQUEST IN ORDER TO PREPARE FOR THE HEARING; AND (III) INFORMING THE RESPONDENT THE HE OR SHE MAY SEEK THE ADVICE OF AN ATTORNEY AND THAT AN ATTORNEY SHOULD BE CONSULTED PROMPTLY; ANDA FORM TO BE COMPLETED AND EXECUTED BY THE RESPONDENT AT THE TIME OF SERVICE OF THE TEMPORARY EXTREME RISK PROTECTION ORDER WHICH ELICITS A LIST OF ALL FIREARMS, RIFLES AND SHOTGUNS POSSESSED BY THE RESPONDENT AND THE PARTICULAR LOCATION OF EACH FIREARM, RIFLE OR SHOTGUN LISTED.IF THE APPLICATION FOR A TEMPORARY EXTREME RISK PROTECTION ORDER IS NOT GRANTED, THE COURT SHALL NOTIFY THE PETITIONER AND, UNLESS THE APPLICATION IS VOLUNTARILY WITHDRAWN BY THE PETITIONER, NONETHELESS SCHEDULE A HEARING ON THE APPLICATION FOR A FINAL EXTREME RISK PROTECTION ORDER. SUCH HEARING SHALL BE SCHEDULED TO BE HELD PROMPTLY, BUT IN ANY EVENT NO LATER THAN TEN BUSINESS DAYS AFTER THE DATE ON WHICH SUCH APPLICATION IS SERVED ON THE RESPONDENT, PROVIDED, HOWEVER, THAT THE RESPONDENT MAY REQUEST, AND THE COURT MAY GRANT, ADDITIONAL TIME TO ALLOW THE RESPONDENT TO PREPARE FOR THE HEARING. A NOTICE OF SUCH HEARING SHALL BE PREPARED BY THE COURT AND SHALL INCLUDE THE DATE AND TIME OF THE HEARING, THE ADDRESS OF THE COURT, AND THE SUBJECT OF THE HEARING.THE COURT SHALL NOTIFY THE DIVISION OF STATE POLICE, ANY OTHER LAW ENFORCEMENT AGENCY WITH JURISDICTION, ALL APPLICABLE LICENSING OFFICERS, AND THE DIVISION OF CRIMINAL JUSTICE SERVICES OF THE ISSUANCE OF A TEMPORARY EXTREME RISK PROTECTION ORDER AND PROVIDE A COPY OF SUCH ORDER NO LATER THAN THE NEXT BUSINESS DAY AFTER ISSUING THE ORDER TO SUCH PERSONS OR AGENCIES. THE COURT ALSO SHALL PROMPTLY NOTIFY SUCH PERSONS AND AGENCIES AND PROVIDE A COPY OF ANY ORDER AMENDING OR REVOKING SUCH PROTECTION ORDER OR RESTORING THE RESPONDENT'S ABILITY TO OWN OR POSSESS FIREARMS, RIFLES OR SHOTGUNS NO LATER THAN THE NEXT BUSINESS DAY AFTER ISSUING THE ORDER TO RESTORE SUCH RIGHT TO THE RESPONDENT. ANY NOTICE OR REPORT SUBMITTED PURSUANT TO THIS SUBDIVISION SHALL BE IN AN ELECTRONIC FORMAT, IN A MANNER PRESCRIBED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.UPON RECEIVING NOTICE OF THE ISSUANCE OF A TEMPORARY EXTREME RISK PROTECTION ORDER, THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL IMMEDIATELY REPORT THE EXISTENCE OF SUCH ORDER TO THE FEDERAL BUREAU OF INVESTIGATION TO ALLOW THE BUREAU TO IDENTIFY PERSONS PROHIBITED FROM PURCHASING FIREARMS, RIFLES OR SHOTGUNS. THE DIVISION SHALL ALSO IMMEDIATELY REPORT TO THE BUREAU THE EXPIRATION OF ANY SUCH PROTECTION ORDER, ANY COURT ORDER AMENDING OR REVOKING SUCH PROTECTION ORDER OR RESTORING THE RESPONDENT'S ABILITY TO PURCHASE A FIREARM, RIFLE OR SHOTGUN.THE ISSUANCE OF A TEMPORARY EXTREME RISK PROTECTION ORDER SHALL CONSTITUTE AUTHORITY AND DIRECTION FOR A POLICE OFFICER TO REMOVE ALL FIREARMS, RIFLES AND SHOTGUNS IN THE RESPONDENT'S POSSESSION. AS PART OF THE ORDER, THE COURT MAY ALSO DIRECT A POLICE OFFICER TO SEARCH FOR FIREARMS, RIFLES AND SHOTGUNS IN THE RESPONDENT'S POSSESSION IN A MANNER CONSISTENT WITH THE PROCEDURES OF ARTICLE SIX HUNDRED NINETY OF THE CRIMINAL PROCEDURE LAW.UPON ISSUANCE OF A TEMPORARY EXTREME RISK PROTECTION ORDER, OR UPON SETTING A HEARING FOR A FINAL EXTREME RISK PROTECTION ORDER WHERE A TEMPORARY ORDER IS DENIED OR NOT REQUESTED, THE COURT SHALL DIRECT THE LAW ENFORCEMENT AGENCY HAVING JURISDICTION TO CONDUCT A BACKGROUND INVESTIGATION AND REPORT TO THE COURT AND, SUBJECT TO ANY APPROPRIATE REDACTIONS TO PROTECT ANY PERSON, EACH PARTY REGARDING WHETHER THE RESPONDENT:HAS ANY PRIOR CRIMINAL CONVICTION FOR AN OFFENSE INVOLVING DOMESTIC VIOLENCE, USE OF A WEAPON, OR OTHER VIOLENCE;HAS ANY CRIMINAL CHARGE OR VIOLATION CURRENTLY PENDING AGAINST HIM OR HER;IS CURRENTLY ON PAROLE OR PROBATION;POSSESSES ANY REGISTERED FIREARMS, RIFLES OR SHOTGUNS; ANDHAS BEEN, OR IS, SUBJECT TO ANY ORDER OF PROTECTION OR HAS VIOLATED OR ALLEGEDLY VIOLATED ANY ORDER OF PROTECTION.ISSUANCE OF A FINAL EXTREME RISK PROTECTION ORDER. IN ACCORDANCE WITH THIS ARTICLE, NO SOONER THAN THREE BUSINESS DAYS NOR LATER THAN SIX BUSINESS DAYS AFTER SERVICE OF A TEMPORARY EXTREME RISK PROTECTION ORDER AND, ALTERNATIVELY, NO LATER THAN TEN BUSINESS DAYS AFTER SERVICE OF AN APPLICATION UNDER THIS ARTICLE WHERE NO TEMPORARY EXTREME RISK PROTECTION ORDER HAS BEEN ISSUED, THE SUPREME COURT SHALL HOLD A HEARING TO DETERMINE WHETHER TO ISSUE A FINAL EXTREME RISK PROTECTION ORDER AND, WHEN APPLICABLE, WHETHER A FIREARM, RIFLE OR SHOTGUN SURRENDERED BY, OR REMOVED FROM, THE RESPONDENT SHOULD BE RETURNED TO THE RESPONDENT. THE RESPONDENT SHALL BE ENTITLED TO MORE THAN SIX BUSINESS DAYS IF A TEMPORARY EXTREME RISK PROTECTION ORDER HAS BEEN ISSUED AND THE RESPONDENT REQUESTS A REASONABLE PERIOD OF ADDITIONAL TIME TO PREPARE FOR THE HEARING. WHERE NO TEMPORARY ORDER HAS BEEN ISSUED, THE RESPONDENT MAY REQUEST, AND THE COURT MAY GRANT, ADDITIONAL TIME BEYOND THE TEN DAYS TO ALLOW THE RESPONDENT TO PREPARE FOR THE HEARING.AT THE HEARING PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE PETITIONER SHALL HAVE THE BURDEN OF PROVING, BY CLEAR AND CONVINCING EVIDENCE, THAT THE RESPONDENT IS LIKELY TO ENGAGE IN CONDUCT THAT WOULD RESULT IN SERIOUS HARM TO HIMSELF, HERSELF OR OTHERS, AS DEFINED IN PARAGRAPH ONE OR TWO OF SUBDIVISION (A) OF SECTION 9.39 OF THE MENTAL HYGIENE LAW. THE COURT MAY CONSIDER THE PETITION AND ANY EVIDENCE SUBMITTED BY THE PETITIONER, ANY EVIDENCE SUBMITTED BY THE RESPONDENT, ANY TESTIMONY PRESENTED, AND THE REPORT OF THE RELEVANT LAW ENFORCEMENT AGENCY SUBMITTED PURSUANT TO SUBDIVISION NINE OF SECTION SIXTY-THREE HUNDRED FORTY-TWO OF THIS ARTICLE. THE COURT SHALL ALSO CONSIDER THE FACTORS SET FORTH IN SUBDIVISION TWO OF SECTION SIXTY-THREE HUNDRED FORTY-TWO OF THIS ARTICLE.AFTER THE HEARING PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE COURT SHALL ISSUE A WRITTEN ORDER GRANTING OR DENYING THE EXTREME RISK PROTECTION ORDER AND SETTING FORTH THE REASONS FOR SUCH DETERMINATION. IF THE EXTREME RISK PROTECTION ORDER IS GRANTED, THE COURT SHALL DIRECT SERVICE OF SUCH ORDER IN THE MANNER AND IN ACCORDANCE WITH THE PROTECTIONS FOR THE PETITIONER SET FORTH IN SUBDIVISION SIX OF SECTION SIXTY-THREE HUNDRED FORTY-TWO OF THIS ARTICLE.UPON ISSUANCE OF AN EXTREME RISK PROTECTION ORDER: (I) ANY FIREARM, RIFLE OR SHOTGUN REMOVED PURSUANT TO A TEMPORARY EXTREME RISK PROTECTION ORDER OR SUCH EXTREME RISK PROTECTION ORDER SHALL BE RETAINED BY THE LAW ENFORCEMENT AGENCY HAVING JURISDICTION FOR THE DURATION OF THE ORDER, UNLESS OWNERSHIP OF THE FIREARM, RIFLE OR SHOTGUN IS LEGALLY TRANSFERRED BY THE RESPONDENT TO ANOTHER INDIVIDUAL PERMITTED BY LAW TO OWN AND POSSESS SUCH FIREARM, RIFLE OR SHOTGUN; (II) THE SUPREME COURT SHALL TEMPORARILY SUSPEND ANY EXISTING FIREARM LICENSE POSSESSED BY THE RESPONDENT AND ORDER THE RESPONDENT TEMPORARILY INELIGIBLE FOR SUCH A LICENSE; (III) THE RESPONDENT SHALL BE PROHIBITED FROM PURCHASING OR POSSESSING, OR ATTEMPTING TO PURCHASE OR POSSESS, A FIREARM, RIFLE OR SHOTGUN; AND (IV) THE COURT SHALL DIRECT THE RESPONDENT TO SURRENDER ANY FIREARM, RIFLE OR SHOTGUN IN HIS OR HER POSSESSION.AN EXTREME RISK PROTECTION ORDER ISSUED IN ACCORDANCE WITH THIS SECTION SHALL EXTEND, AS SPECIFIED BY THE COURT, FOR A PERIOD OF UP TO ONE YEAR FROM THE DATE OF THE ISSUANCE OF SUCH ORDER; PROVIDED, HOWEVER, THAT IF SUCH ORDER WAS IMMEDIATELY PRECEDED BY THE ISSUANCE OF A TEMPORARY EXTREME RISK PROTECTION ORDER, THEN THE DURATION OF THE EXTREME RISK PROTECTION ORDER SHALL BE MEASURED FROM THE DATE OF ISSUANCE OF SUCH TEMPORARY EXTREME RISK PROTECTION ORDER.THE ISSUANCE OF A FINAL EXTREME RISK PROTECTION ORDER SHALL CONSTITUTE AUTHORITY AND DIRECTION FOR A POLICE OFFICER TO REMOVE ALL FIREARMS, RIFLES AND SHOTGUNS IN THE RESPONDENT'S POSSESSION. AS PART OF THE ORDER, THE COURT MAY ALSO DIRECT A POLICE OFFICER TO SEARCH FOR FIREARMS, RIFLES AND SHOTGUNS IN A RESPONDENT'S POSSESSION CONSISTENT WITH THE PROCEDURES OF ARTICLE SIX HUNDRED NINETY OF THE CRIMINAL PROCEDURE LAW.THE COURT SHALL NOTIFY THE DIVISION OF STATE POLICE, ANY OTHER LAW ENFORCEMENT AGENCY WITH JURISDICTION, ALL APPLICABLE LICENSING OFFICERS, AND THE DIVISION OF CRIMINAL JUSTICE SERVICES OF THE ISSUANCE OF A FINAL EXTREME RISK PROTECTION ORDER AND PROVIDE A COPY OF SUCH ORDER TO SUCH PERSONS AND AGENCIES NO LATER THAN THE NEXT BUSINESS DAY AFTER ISSUING THE ORDER. THE COURT ALSO SHALL PROMPTLY NOTIFY SUCH PERSONS AND AGENCIES AND PROVIDE A COPY OF ANY ORDER AMENDING OR REVOKING SUCH PROTECTION ORDER OR RESTORING THE RESPONDENT'S ABILITY TO OWN OR POSSESS FIREARMS, RIFLES OR SHOTGUNS NO LATER THAN THE NEXT BUSINESS DAY AFTER ISSUING THE ORDER TO RESTORE SUCH RIGHT TO THE RESPONDENT. ANY NOTICE OR REPORT SUBMITTED PURSUANT TO THIS SUBDIVISION SHALL BE IN AN ELECTRONIC FORMAT, IN A MANNER PRESCRIBED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.UPON RECEIVING NOTICE OF THE ISSUANCE OF A FINAL EXTREME RISK PROTECTION ORDER, THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL IMMEDIATELY REPORT THE EXISTENCE OF SUCH ORDER TO THE FEDERAL BUREAU OF INVESTIGATION TO ALLOW THE BUREAU TO IDENTIFY PERSONS PROHIBITED FROM PURCHASING FIREARMS, RIFLES OR SHOTGUNS. THE DIVISION SHALL ALSO IMMEDIATELY REPORT TO THE BUREAU THE EXPIRATION OF SUCH PROTECTION ORDER AND ANY COURT ORDER AMENDING OR REVOKING SUCH PROTECTION ORDER OR RESTORING THE RESPONDENT'S ABILITY TO PURCHASE A FIREARM, RIFLE OR SHOTGUN.IF, IN ACCORDANCE WITH A TEMPORARY EXTREME RISK PROTECTION ORDER, A FIREARM, RIFLE OR SHOTGUN HAS BEEN SURRENDERED BY OR REMOVED FROM THE RESPONDENT, AND THE SUPREME COURT SUBSEQUENTLY FINDS THAT THE PETITIONER HAS NOT MET THE REQUIRED STANDARD OF PROOF, THE COURT'S FINDING SHALL INCLUDE A WRITTEN ORDER, ISSUED TO ALL PARTIES, DIRECTING THAT ANY FIREARM, RIFLE OR SHOTGUN SURRENDERED OR REMOVED PURSUANT TO SUCH TEMPORARY ORDER SHALL BE RETURNED TO THE RESPONDENT.IF ANY OTHER PERSON DEMONSTRATES THAT HE OR SHE IS THE LAWFUL OWNER OF ANY FIREARM, RIFLE OR SHOTGUN SURRENDERED OR REMOVED PURSUANT TO A PROTECTION ORDER ISSUED IN ACCORDANCE WITH THIS ARTICLE, AND PROVIDED THAT THERE IS NO LEGAL IMPEDIMENT TO THE PERSON'S POSSESSION OF A SURRENDERED OR REMOVED FIREARM, RIFLE OR SHOTGUN, THE COURT MAY, AFTER NOTICE TO THE PARTIES AND AN OPPORTUNITY TO BE HEARD, DIRECT THAT SUCH FIREARM, RIFLE OR SHOTGUN BE RETURNED TO SUCH LAWFUL OWNER.THE RESPONDENT SHALL BE NOTIFIED ON THE RECORD AND IN WRITING BY THE COURT THAT HE OR SHE MAY SUBMIT ONE WRITTEN REQUEST, AT ANY TIME DURING THE EFFECTIVE PERIOD OF AN EXTREME RISK PROTECTION ORDER, FOR A HEARING SETTING ASIDE ANY PORTION OF SUCH ORDER. THE REQUEST SHALL BE SUBMITTED IN SUBSTANTIALLY THE SAME FORM AND MANNER AS PRESCRIBED BY THE CHIEF ADMINISTRATOR OF THE COURTS. UPON SUCH REQUEST, THE COURT SHALL PROMPTLY HOLD A HEARING, IN ACCORDANCE WITH THIS ARTICLE, AFTER PROVIDING REASONABLE NOTICE TO THE PETITIONER. THE RESPONDENT SHALL BEAR THE BURDEN TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, ANY CHANGE OF CIRCUMSTANCES THAT MAY JUSTIFY A CHANGE TO THE ORDER.SURRENDER AND REMOVAL OF FIREARMS, RIFLES AND SHOTGUNS PURSUANT TO AN EXTREME RISK PROTECTION ORDER. WHEN A LAW ENFORCEMENT OFFICER TAKES ANY FIREARM, RIFLE OR SHOTGUN PURSUANT TO A TEMPORARY EXTREME RISK PROTECTION ORDER OR A FINAL EXTREME RISK PROTECTION ORDER, THE OFFICER SHALL GIVE TO THE PERSON FROM WHOM SUCH FIREARM, RIFLE OR SHOTGUN IS TAKEN A RECEIPT OR VOUCHER FOR THE PROPERTY TAKEN, DESCRIBING THE PROPERTY IN DETAIL. IN THE ABSENCE OF A PERSON, THE OFFICER SHALL LEAVE THE RECEIPT OR VOUCHER IN THE PLACE WHERE THE PROPERTY WAS FOUND, MAIL A COPY OF THE RECEIPT OR VOUCHER, RETAINING PROOF OF MAILING, TO THE LAST KNOWN ADDRESS OF THE RESPONDENT AND, IF DIFFERENT, THE OWNER OF THE FIREARM, RIFLE OR SHOTGUN, AND FILE A COPY OF SUCH RECEIPT OR VOUCHER WITH THE COURT. ALL FIREARMS, RIFLES AND SHOTGUNS IN THE POSSESSION OF A LAW ENFORCEMENT OFFICIAL PURSUANT TO THIS ARTICLE SHALL BE SUBJECT TO THE PROVISIONS OF APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO SUBDIVISION SIX OF SECTION 400.05 OF THE PENAL LAW; PROVIDED, HOWEVER, THAT ANY SUCH FIREARM, RIFLE OR SHOTGUN SHALL BE RETAINED AND NOT DISPOSED OF BY THE LAW ENFORCEMENT AGENCY FOR AT LEAST TWO YEARS UNLESS LEGALLY TRANSFERRED BY THE RESPONDENT TO AN INDIVIDUAL PERMITTED BY LAW TO OWN AND POSSESS SUCH FIREARM, RIFLE OR SHOTGUN.IF THE LOCATION TO BE SEARCHED DURING THE EXECUTION OF A TEMPORARY EXTREME RISK PROTECTION ORDER OR EXTREME RISK PROTECTION ORDER IS JOINTLY OCCUPIED BY TWO OR MORE PARTIES, AND A FIREARM, RIFLE OR SHOTGUN LOCATED DURING THE EXECUTION OF SUCH ORDER IS OWNED BY A PERSON OTHER THAN THE RESPONDENT, THE COURT MAY ALLOW RETURN OF SUCH FIREARM, RIFLE OR SHOTGUN IF IT IS DEMONSTRATED THAT THE FIREARM, RIFLE OR SHOTGUN WILL BE SAFELY STORED IN A MANNER CONSISTENT WITH SECTION 265.45 OF THE PENAL LAW, SO THAT THE RESPONDENT WILL NOT HAVE ACCESS TO OR CONTROL OF THE FIREARM, RIFLE OR SHOTGUN, AND THERE IS NO EVIDENCE OF UNLAWFUL POSSESSION OF THE FIREARM, RIFLE OR SHOTGUN BY THE OWNER.REQUEST FOR RENEWAL OF AN EXTREME RISK PROTECTION ORDER. IF A PETITIONER BELIEVES A PERSON SUBJECT TO AN EXTREME RISK PROTECTION ORDER CONTINUES TO BE LIKELY TO ENGAGE IN CONDUCT THAT WOULD RESULT IN SERIOUS HARM TO HIMSELF, HERSELF, OR OTHERS, AS DEFINED IN PARAGRAPH ONE OR TWO OF SUBDIVISION (A) OF SECTION 9.39 OF THE MENTAL HYGIENE LAW, SUCH PETITIONER MAY, AT ANY TIME WITHIN SIXTY DAYS PRIOR TO THE EXPIRATION OF SUCH EXISTING EXTREME RISK PROTECTION ORDER, INITIATE A REQUEST FOR A RENEWAL OF SUCH ORDER, SETTING FORTH THE FACTS AND CIRCUMSTANCES NECESSITATING THE REQUEST. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ADOPT FORMS THAT MAY BE USED FOR PURPOSES OF SUCH APPLICATIONS AND THE COURT'S CONSIDERATION OF SUCH APPLICATIONS. THE COURT MAY ISSUE A TEMPORARY EXTREME RISK PROTECTION ORDER IN ACCORDANCE WITH SECTION SIXTYTHREE HUNDRED FORTY-TWO OF THIS ARTICLE, DURING THE PERIOD THAT A REQUEST FOR RENEWAL OF AN EXTREME RISK PROTECTION ORDER IS UNDER CONSIDERATION PURSUANT TO THIS SECTION.A HEARING HELD PURSUANT TO THIS SECTION SHALL BE CONDUCTED IN THE SUPREME COURT, IN ACCORDANCE WITH SECTION SIXTY-THREE HUNDRED FORTYTHREE OF THIS ARTICLE, TO DETERMINE IF A REQUEST FOR RENEWAL OF THE ORDER SHALL BE GRANTED. THE RESPONDENT SHALL BE SERVED WITH WRITTEN NOTICE OF AN APPLICATION FOR RENEWAL A REASONABLE TIME BEFORE THE HEARING, AND SHALL BE AFFORDED AN OPPORTUNITY TO FULLY PARTICIPATE IN THE HEARING. THE COURT SHALL DIRECT SERVICE OF SUCH APPLICATION AND THE ACCOMPANYING PAPERS IN THE MANNER AND IN ACCORDANCE WITH THE PROTECTIONS FOR THE PETITIONER SET FORTH IN SUBDIVISION SIX OF SECTION SIXTY-THREE HUNDRED FORTY-TWO OF THIS ARTICLE.EXPIRATION OF AN EXTREME RISK PROTECTION ORDER. 1. A PROTECTION ORDER ISSUED PURSUANT TO THIS ARTICLE, AND ALL RECORDS OF ANY PROCEEDINGS CONDUCTED PURSUANT TO THIS ARTICLE, SHALL BE SEALED UPON EXPIRATION OF SUCH ORDER AND THE CLERK OF THE COURT WHEREIN SUCH PROCEEDINGS WERE CONDUCTED SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES, THE HEADS OF ALL APPROPRIATE POLICE DEPARTMENTS, APPLICABLE LICENSING OFFICERS, AND ALL OTHER APPROPRIATE LAW ENFORCEMENT AGENCIES THAT THE ORDER HAS EXPIRED AND THAT THE RECORD OF SUCH PROTECTION ORDER SHALL BE SEALED AND NOT BE MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE ENTITY, EXCEPT THAT SUCH RECORDS SHALL BE MADE AVAILABLE TO:(A)    THE RESPONDENT OR THE RESPONDENT'S DESIGNATED AGENT;(B)     COURTS IN THE UNIFIED COURT SYSTEM;(C)     POLICE FORCES AND DEPARTMENTS HAVING RESPONSIBILITY FOR ENFORCEMENT OF THE GENERAL CRIMINAL LAWS OF THE STATE;(D)    ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE ISSUANCE OF LICENSES TO POSSESS A FIREARM, RIFLE OR SHOTGUN, WHEN THE RESPONDENT HAS MADE APPLICATION FOR SUCH A LICENSE; AND(E)      ANY PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR OF SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW, IN RELATION TO AN APPLICATION FOR EMPLOYMENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER OR PEACE OFFICER SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS SUBPARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERETO.UPON EXPIRATION OF A PROTECTION ORDER ISSUED PURSUANT TO THIS ARTICLE AND UPON WRITTEN APPLICATION OF THE RESPONDENT WHO IS THE SUBJECT OF SUCH ORDER, WITH NOTICE AND OPPORTUNITY TO BE HEARD TO THE PETITIONER AND EVERY LICENSING OFFICER RESPONSIBLE FOR ISSUANCE OF A FIREARM LICENSE TO THE SUBJECT OF THE ORDER PURSUANT TO ARTICLE FOUR HUNDRED OF THE PENAL LAW, AND UPON A WRITTEN FINDING THAT THERE IS NO LEGAL IMPEDIMENT TO THE RESPONDENT'S POSSESSION OF A SURRENDERED FIREARM, RIFLE OR SHOTGUN, THE COURT SHALL ORDER THE RETURN OF A FIREARM, RIFLE OR SHOTGUN NOT OTHERWISE DISPOSED OF IN ACCORDANCE WITH SUBDIVISION ONE OF SECTION SIXTY-THREE HUNDRED FORTY-FOUR OF THIS ARTICLE. WHEN ISSUING SUCH ORDER IN CONNECTION WITH ANY FIREARM SUBJECT TO A LICENSE REQUIREMENT UNDER ARTICLE FOUR HUNDRED OF THE PENAL LAW, IF THE LICENSING OFFICER INFORMS THE COURT THAT HE OR SHE WILL SEEK TO REVOKE THE LICENSE, THE ORDER SHALL BE STAYED BY THE COURT UNTIL THE CONCLUSION OF ANY LICENSE REVOCATION PROCEEDING.EFFECT OF FINDINGS AND DETERMINATIONS IN SUBSEQUENT PROCEEDINGS. NOTWITHSTANDING ANY CONTRARY CLAIM BASED ON COMMON LAW OR A PROVISION OF ANY OTHER LAW, NO FINDING OR DETERMINATION MADE PURSUANT TO THIS ARTICLE SHALL BE INTERPRETED AS BINDING, OR HAVING COLLATERAL ESTOPPEL OR SIMILAR EFFECT, IN ANY OTHER ACTION OR PROCEEDING, OR WITH RESPECT TO ANY OTHER DETERMINATION OR FINDING, IN ANY COURT, FORUM OR ADMINISTRATIVE PROCEEDING.PARAGRAPH (B) OF SUBDIVISION 5 OF SECTION 530.14 OF THE CRIMINAL PROCEDURE LAW, AS ADDED BY CHAPTER 644 OF THE LAWS OF 1996, IS AMENDED TO READ AS FOLLOWS:THE PROMPT SURRENDER OF ONE OR MORE FIREARMS PURSUANT TO A COURT ORDER ISSUED PURSUANT TO THIS SECTION SHALL BE CONSIDERED A VOLUNTARY SURRENDER FOR PURPOSES OF SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVISION A OF SECTION 265.20 OF THE PENAL LAW. THE DISPOSITION OF ANY SUCH FIREARMS SHALL BE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION SIX OF SECTION 400.05 OF THE PENAL LAW  ; PROVIDED, HOWEVER, THAT UPON TERMINATION OF ANY SUSPENSION ORDER ISSUED PURSUANT TO THIS SECTION OR SECTION EIGHT HUNDRED FORTY-TWO-A OF THE FAMILY COURT ACT, UPON WRITTEN APPLICATION OF THE SUBJECT OF THE ORDER, WITH NOTICE AND OPPORTUNITY TO BE HEARD TO THE DISTRICT ATTORNEY, THE COUNTY ATTORNEY, THE PROTECTED PARTY, AND EVERY LICENSING OFFICER RESPONSIBLE FOR ISSUANCE OF A FIREARMS LICENSE TO THE SUBJECT OF THE ORDER PURSUANT TO ARTICLE FOUR HUNDRED OF THE PENAL LAW, AND UPON A WRITTEN FINDING THAT THERE IS NO LEGAL IMPEDIMENT TO THE SUBJECT'S POSSESSION OF A SURRENDERED FIREARM, RIFLE OR SHOTGUN, ANY COURT OF RECORD EXERCISING CRIMINAL JURISDICTION MAY ORDER THE RETURN OF A FIREARM, RIFLE OR SHOTGUN NOT OTHERWISE DISPOSED OF IN ACCORDANCE WITH SUBDIVISION SIX OF SECTION 400.05 OF THE PENAL LAW. WHEN ISSUING SUCH ORDER IN CONNECTION WITH ANY FIREARM SUBJECT TO A LICENSE REQUIREMENT UNDER ARTICLE FOUR HUNDRED OF THE PENAL LAW, IF THE LICENSING OFFICER INFORMS THE COURT THAT HE OR SHE WILL SEEK TO REVOKE THE LICENSE, THE ORDER SHALL BE STAYED BY THE COURT UNTIL THE CONCLUSION OF ANY LICENSE REVOCATION PROCEEDING.________________________________________________________ 

1. AN EXPLICATION OF AB 6994

A couple of observations are in order. First, this bill is not to be considered an adjunct of the Federal “Family Protection and Domestic Violence Intervention Act of 1994” even though a family member, pursuant to both AB 6994 and the Federal Act, may petition the Court for protection against another family member. Under both AB 6994, in the event it becomes law in New York, and, under the federal domestic violence statute, an individual, against whom a Court order is issued, will lose possession of firearms. That much is the same and is clear.In New York, revocation or suspension of firearms licenses, and concomitantly, loss of one’s firearms follows upon issuance of an order of protection. See, NY CLS CPL § 530.14. Second, the merits of statutes aimed at protecting individuals against violence notwithstanding, Americans are in danger of turning against each other as we become a Nation of undercover “shooflies,” constantly reporting on each other, turning family member against family member and turning the police against everyone.In their zeal to protect society from the misuse of firearms, antigun proponents attempt to negate the import of the Second Amendment altogether, leaving ever more people altogether defenseless against criminal assailants. No matter, as antigun groups would rather the Second Amendment did not exist at all. But, the codification of the fundamental right of the people to keep and bear arms does exist, and the constant whittling away of that right under the mask of promoting public safety is not lost on those of us who place the Nation’s well-being on the strength of the citizenry’s Bill of Rights.In reviewing AB 6994, there is a presumption in the bill that sufficient due process requirements are met. But are they? Police officers and district attorneys and family members may both file a petition for a “temporary extreme protection order.” Once filed, that petition takes effect immediately, namely, prior to an evidentiary hearing. The individual against whom the petition is issued immediately loses his or her firearms, as the police are authorized to secure those weapons at once. The respondent is informed of a hearing date to present his case, and the petitioner has the burden of showing that the threat posed by the respondent warrants issuance of a permanent extreme protection order.  Disconcertingly, even before a hearing is held, the Court will notify the Federal Bureau of Investigation of the issuance of a temporary extreme protection order. That hardly accords with protecting the civil rights of an individual before he has had a chance to proffer evidence in his or her own defense that may warrant revocation of the temporary extreme protection order.As bad as this bill is, for Governor Cuomo, AB 6994, as written, doesn’t go far enough. He would include in the role of petitioners entitled to file for “temporary extreme protection orders,” classroom teachers, along with police officers, district attorneys, and family members. On June 5, 2018, wskg.org, in Albany New York, reported that:“Gov. Andrew Cuomo has proposed an expansion to his Extreme Risk Protection Order bill that would give teachers the power to go to court to prevent a student’s access to guns.Cuomo said the measure gives that power to teachers and school administrators who believe a student might use guns to be a danger to themselves or others.“If a teacher believes there is a troubled student who might be dangerous, that teacher has the legal authority to go to a judge directly,” Cuomo said.A judge could then determine whether the student needs a mental health exam, and whether the student’s or their family’s guns should be taken away.”The session is scheduled to end in a couple of weeks, and Cuomo concedes that he does not expect the measure to pass in the state Senate, which is gridlocked with 31 seats each in the Democratic and Republican factions.But Cuomo said he believes people in the state overwhelmingly support the measure and predicted that it will become an election issue in the fall.”It need hardly be said that teachers are not trained psychologists; nor are they police officers who deal with criminals on a daily basis; nor are they district attorneys, trained in the law; nor are they family members who have an intimate familial relationship with each other; and yet Governor Cuomo would bestow immense authority onto teachers to petition Courts directly against their students with whom they spend little time with. Of course, if teachers truly believe that a student poses a danger to self or others, the teacher may inform and should inform school officials. But, it is one thing for teachers to exercise authority to inform school officials of a possible danger posed by a particular student. It is quite another to grant to a teacher, on his or her own behalf, the power to file a petition with a court to secure a temporary extreme risk protection order. Imagine how this would play out, were a teacher permitted under law to secure such a protection order. Once such an extreme risk protection order issues, police officers would be empowered to go to the student’s home, and with court order in hand, the police would have the authority to secure the firearms belonging to the student’s parents, under the presumption that the student would otherwise be able to gain access to his or her parents’ firearms. The parent’s own firearm’s license would thereupon be suspended. If this scenario seems unlikely, keep in mind that Governor Cuomo hasn’t suggested any checks against such an occurrence. Bear in mind that in the few States that have enacted extreme risk protection laws, none have gone so far as to permit teachers to file such a petition. But, then, few individuals in any State have as far-reaching political ambitions as does Governor Andrew Cuomo, in preempting the citizen’s right to keep and bear arms as codified in the Second Amendment to the U.S. Constitution.We will have to wait and see how AB 6994 plays out in the months ahead and whether Governor Cuomo’s desire to expand AB 6994 results in further amendment prior to further action in Albany. But, we know full well Cuomo's antithesis toward the Second Amendment to the U.S. Constitution. As Governor of New York, Andrew Cuomo has frustrated the right of citizens of the State to exercise their fundamental right to keep and bear arms. That is bad enough; yet his power is constrained, limited to New York. But, Cuomo's ambitions extend well beyond that of Governor of a State. Cuomo has aspirations to become President of the United States in 2020. Were that to happen, the war he would wage against the Second Amendment would be far worse for Americans--the likes of which Americans have not yet seen--having a ripple effect throughout the Country._________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

IS THE “MAXIM 50 SUPPRESSED MUZZLELOADER”, MANUFACTURED BY SILENCERCO, LEGAL IN THE STATE OF NEW YORK?

A reader of the Arbalest Quarrel asked us whether New York bans the Maxim 50, manufactured by SilencerCo. To answer this question, we first went to the manufacturer’s website to get a handle on what the Maxim 50 is since the manufacturer’s description of it serves as the basis for legal analysis. The central issue is whether the Maxim 50 is a firearm under Federal and New York law. If the Maxim 50 is construed as a firearm under Federal law, it comes under the purview of the National Firearms Act of 1934, and under the purview of the Gun Control Act of 1968, and, as applicable, under the purview of those Acts as subsequently amended.The manufacturer, SilencerCo, describes the Maxim 50 as an “integrally suppressed muzzleloader.” The manufacturer says:“For the first time since the National Firearms Act (NFA) was created in 1934, civilians can enjoy suppressed shooting in all 50 states with SilencerCo’s latest innovation: the integrally suppressed Maxim 50 muzzleloader. In addition, this product can be purchased right now on the web with no regulation (no 4473, no $200 tax stamp, no photographs, and no fingerprints) and be shipped immediately to the customer with few exceptions.” New York is one of those few exceptions, according to the manufacturer. SilenceCo says a prospective purchaser, residing in New York may still obtain the weapon, but must do so, not directly, through interstate commerce, shipped directly to the purchaser’s home, but, indirectly, through a holder of an FFL.

BUT, IS THE MANUFACTURER’S STATEMENT ACCURATE? CAN A NEW YORK RESIDENT, NOT UNDER DISABILITY, PURCHASE THE MAXIM 50, LAWFULLY, THROUGH A LICENSED NEW YORK GUN DEALER EVEN IF THAT NEW YORK RESIDENT CANNOT TAKE POSSESSION OF THE MAXIM 50 THROUGH THE MANUFACTURER, DIRECTLY?

Can a resident of New York, who wishes to purchase the Maxim 50 obtain it, lawfully, then, through an FFL?To begin to answer this question intelligently, we must first ask what sort of thing the Maxim 50 integrally suppressed muzzleloader is, when viewed under federal law and under New York law.Let us look at the Maxim 50 from the standpoint of Federal law, first. Two federal code sections are critical to our investigation: 26 USCS § 5845 (Definitions) of the United States Code of Title 26, Internal Revenue Code, Subtitle E; Alcohol, Tobacco, And Certain Other Excise Taxes; Chapter 53 Machine Guns, Destructive Devices, And Certain Other Firearms; Subchapter B. General Provisions and Exemptions, Part I. General Provisions; and we look to 18 USCS § 921 (Definitions); Title 18, Crimes and Criminal Procedure; Part I. Crimes; Chapter 44. Firearms. We know that the Maxim 50 is a muzzle loader, since the manufacturer of the product describes it as such, and as the manufacturer further explains its nature, in detail, in the product manual, we can rest assured that the Maxim 50 is, in fact, a muzzle loader. The question for us is whether a muzzle loader is a firearm, under federal law. For, if federal law defines the Maxim 50 as a muzzle loader, then that fact is determinative of whether the device--which, as the manufacturer says comes equipped with an integrally suppressed muzzleloader--falls under federal firearms restrictions. We begin with the assumption that the expressions ‘firearm suppressor’  and ‘firearm silencer’ refer, from a legal standpoint, essentially to the same sort of thing. The term ‘silencer’ may be a misnomer to firearms experts, but, as it is that expression, 'silencer,' that is used in federal law and in New York law, rather than the more appropriate expression, 'firearm suppressor,' we need not quibble about the relative inaccuracy of the expression, 'firearm silencer,' when considering the legality of possession of the device by the average law-abiding American citizen. The firearms expert will understand that, to the legislator and to the police, and to the lawyer, the expressions, ‘firearm silencer,’ and ‘firearm suppressor,’ and ‘integrally suppressed firearm,’ or, as in the instant case, ‘integrally suppressed muzzleloader,’ mean pretty much the same thing in respect to what it is that the component is designed to do.

IS THE MAXIM 50 A FIREARM UNDER FEDERAL LAW?

26 USCS § 5845(a) says that, “The term 'firearm' means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term 'firearm' shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.” 26 USCS § 5845(a). AND,26 USCS § 921(a)(3) says, “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.Through 26 USCS § 5845(a) and 26 USCS § 921(a)(3), it doesn’t appear the Maxim 50 is a “firearm.” But further clarification is necessary. We obtain that clarification in another U.S. Federal Code Section. We ask,

IS THE MAXIM 50 AN ‘ANTIQUE FIREARM’ UNDER FEDERAL LAW?

If the Maxim 50 is an ‘Antique Firearm,” then, under 26 USCS § 5845(a), it is not a ‘Firearm.’ How does federal law define an ‘Antique Firearm?’ The expression ‘Antique Firearm,’ has two definitions. If the Maxim 50 falls under either one of those two definitions, then, the Maxim 50 is an ‘Antique Firearm’ under Federal law.18 USCS § 921(a)(16) says:“The term ‘antique firearm’ means—(A)  any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or(B)  any replica of any firearm described in subparagraph (A) if such replica—(i)  is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or(ii)  uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or(C)  any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ‘antique firearm’ shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.”AND,26 USCS § 5845(g) says, “The term 'antique firearm' means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.”The Maxim 50 is, of course, a weapon manufactured after 1898, so it doesn’t qualify as an ‘antique firearm’ under 26 USCS § 5845(g), but, it is a muzzle loader that does in fact use black powder, according to the manufacturer’s instruction manual. And, if we can infer that the Maxim 50 does not incorporate a “firearm frame or receiver” and that it cannot “be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock or any combination thereof,” then it is not a ‘firearm,’ under 18 USCS § 921(a)(16), and that is sufficient to remove the Maxim 50 from the category of ‘firearm’ under federal law.But, wait a second. Even if the Maxim 50 is an ‘antique firearm’ and, hence, not a ‘firearm’ under federal law, isn’t the Maxim 50 a “silencer?” Yes. BUT, the Maxim 50 isn’t a “firearm silencer.” That fact is crucial. But, how do we know this? We know this because federal law makes clear that, since the Maxim 50 isn't a firearm, under federal law, the Maxim 50 isn’t a “silencer” either, under federal law. Once again,18 USCS § 921(a)(3) says, “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. Since The Maxim 50, as a black powder muzzle loader  with integrally suppressed muzzleloader (silencer), isn't a firearm under federal law, then, by legal implication, the Maxim 50's silencer--more to the point, integrally suppressed muzzleloader--isn't a “firearm silencer,” under federal law, either.But, we still aren’t quite finished with our analysis. We must ask,

IS THE MAXIM 50 DEFINED AS “ANY OTHER WEAPON” UNDER FEDERAL LAW?

But, once again, the answer is, "No." The expression 'Any Other Weapon'--a generic description of 'weapon'--also finds its way in federal law. 26 USCS § 5845(g) says, “The term 'any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.”The Maxim 50 cannot be readily concealed “on the person,” and, indeed, it isn’t designed to be the sort of implement to be capable of being concealed on the person. So, the Maxim 50 is not defined, in federal law as, ‘any other weapon.’So, under federal law, we conclude that the Maxim 50 isn't a firearm and it doesn't fall under restrictions of the National Firearms Act of 1934, or under restrictions of the Gun Control Act of 1968.So, under federal law, the Maxim 50 doesn’t appear to run into problems under federal law.BUT,What about New York law, specifically. Is the Maxim 50, with integrated suppressor, considered a firearm within the jurisdiction of New York?

DOES THE MAXIM 50 COME UNDER THE PURVIEW OF NEW YORK GUN CONTROL LAWS?

To some extent New York law follows the dictates of federal law, but New York law has its own twists.

IS THE MAXIM 50 DEFINED AS A FIREARM UNDER NEW YORK LAW?

We look to the Consolidated laws of New York for the answer.Let’s look at some definitions under Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. NY CLS Penal § 265.00(2) and (3) of Article 265 provide us with two definitions of importance to us here.“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.”“3. ‘Firearm’ means (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than twenty-six inches; or (e) an assault weapon. For the purpose of this subdivision the length of the barrel on a shotgun or rifle shall be determined by measuring the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked; the overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. Firearm does not include an antique firearm.”The Consolidated laws of New York do not, to the best of our information and belief, define an implement that has the characteristics of the Maxim 50. New York law does define the expression, ‘antique firearm,’ but that definition does not track the federal law definitions.NY CLS Penal § 265.00(16) says, “‘Antique firearm’ means: Any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.” Under New York law the Maxim 50 is a muzzle loading device but it isn’t a pistol or revolver.It would appear, at first glance, that the Maxim 50 doesn’t come under the purview of Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. But, on closer inspection, it’s clear that the Maxim 50 does come under the purview of Article 265. Let’s look once again at NY CLS Penal § 265.00(2).“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.” The expression, ‘firearm silencer’ refers to “any instrument, attachment, weapon or appliance . . . to lessen or muffle the noise of the firing of any gun. . . .” Pay close attention to the word, ‘gun.’The term, ‘gun,’ is an amorphous concept that can reasonably apply to the Maxim 50. New York law doesn't define the word, 'gun.' It is simply mentioned in New York law. And, we don't see a definition for the word, 'gun,' as such, defined in federal law either. So, we have to go to a common dictionary source to get a handle on the plain meaning of the word. The Merriam Webster Dictionary defines the term, ‘gun,’ as ‘a piece of ordnance usually with high muzzle velocity and comparatively flat trajectory.’ The American Heritage Dictionary, Fourth Edition, defines, the term, ‘gun,’ as ‘A weapon consisting of a metal tube from which a projectile is fired at high velocity into a relatively flat trajectory.’  Clearly enough, the Maxim 50 is a gun under New York law. Since the Maxim 50 is manufactured with an integrated silencer component--as the manufacturer refers to the Maxim 50 as an integrally suppressed muzzleloader--the Maxim 50 does fall under NY CLS Penal § 265.00(2).The drafters of ‘firearm silencer’ clearly and poignantly intended to make firearm silencers unlawful in New York. Case law makes this point clearer still. The Opinion of the Appellate Court of Albany is insightful and is quoted at length in the 1984 New York case, Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881.In Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881, “The Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms denied the gunsmith's request for permission to transfer two machine guns and a firearm silencer to persons who could lawfully possess them in New York. The gunsmith, who was also a dealer, filed an action for a declaratory judgment. The trial court granted the state police's motion for summary judgment and dismissed the complaint. The court modified the trial court's judgment so as to allow a declaratory judgment because such was designed to allow the adjudication of rights before a wrong took place. Thus, the gunsmith did not need to be in danger of prosecution before a declaratory judgment as to his rights could be entered. The court then declared that the gunsmith could not lawfully possess or dispose of firearm silencers and machine guns.  N.Y. Penal Law § 265.00(8), (9) defined a ‘gunsmith’ and a ‘dealer in firearms’ and prescribed the activities in which persons who were duly licensed for those businesses could lawfully engage. Because possession and disposition of a silencer or machine gun were not mentioned in N.Y. Penal Law §§ 265.00(8), (9), 265.02(2), 265.10(3), they were not permissible.”The Appellate Court of Albany said this about the possession of silencers by either a New York licensed dealer or gunsmith: "Penal Law § 265.00 (8) defines a ‘gunsmith’ and Penal Law § 265.00 (9) defines a ‘dealer in firearms.’ “These definitions specifically prescribe the activities in which those persons or entities who are duly licensed for those businesses under Penal Law § 265.20 (a) (10) can lawfully engage.  Applying the rule of statutory construction that states expressio unius est exclusio alterius, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded' (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208-209, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 240).  It follows that inasmuch as subdivisions (8) and (9) of Penal Law § 265.00 contain no reference to firearm silencer possession and disposition by a ‘gunsmith’ or a ‘dealer in firearms,’ such possession and disposition are not permissible (Penal Law § 265.02 [2]; § 265.10 [3]).  We find no merit in plaintiff's contention that Penal Law § 265.20 (a) (10) provides an exemption for gunsmiths and dealers in firearms from all of the penalties provided by Penal Law article 265. The exemption provided by Penal Law § 265.20 (a) (10) permits gunsmiths and dealers in firearms to engage only in the activities prescribed in the definitions of those terms in Penal Law § 265.00 (8) and (9), for without such exemption the prescribed activities would be  unlawful. Contrary to plaintiff's claim, however, the exemption cannot be construed to broaden and expand the statutory activities in which a gunsmith or dealer in firearms can lawfully engage.”“By similar reasoning and applying the same statutory rule of construction, a ‘dealer in firearms’ is not authorized to possess or in any other way deal in ‘machine guns’ (Penal Law § 265.02 [2]; § 265.10 [3]).  The definition of ‘firearm’ contained in Penal Law § 265.00 (3) does not include ‘machine guns,’ which are separately defined in Penal Law § 265.00 (1).  Again, contrary to plaintiff's contention, no exemption is provided in Penal Law § 265.20 (a) (10) for a licensed dealer in firearms to possess or dispose of machine guns to any individual who may lawfully possess them.  The activities of licensed dealers in firearms are limited to pistols or revolvers (Penal Law § 265.00 [9]).  As to licensed gunsmiths, the activities permitted by Penal Law § 265.20 (a) (8) in respect to machine guns applies only if they are the [manufacturers]’ of machine guns. Since plaintiff is not such a ‘manufacturer’ of machine guns, the statute has no application to him. Pursuant to Penal Law § 265.00 (8), a licensed gunsmith may engage in certain activities with respect to machine guns, but disposition is not one of those activities.  Plaintiff's other contentions have been considered and found to be without merit.”Under New York law, as interpreted by the Appellate Court of Albany, licensed dealers and gunsmiths are not permitted to transfer machine guns or silencers. Whether the integrally suppressed muzzleloader (silencer) of the Maxim 50 is integrated into a device that is not construed as a firearm under federal law or New York law is, then, decidedly and decisively legally irrelevant.The Maxim 50 is a “gun” under New York law, and since the suppressor (silencer) is integrated into that gun, it is the Arbalest Quarrel’s educated opinion (albeit, not a formal legal opinion), that the Maxim 50 is illegal in New York.FURTHER NOTE:The Arbalest Quarrel has spoken with one licensed gun dealer in New York, and holder of an FFL, who told us that, under no circumstances, would he accept delivery of the Maxim 50 for anyone. And, it is doubtful that a New York resident, not under disability, would be able to locate any conscientious licensed New York gun dealer or gunsmith who would be willing to accept delivery of the Maxim 50 on behalf of a customer, for transfer to that customer. It should go without saying, then, that, under no circumstance should a resident of New York attempt to obtain delivery of the Maxim 50 directly from the manufacturer; for, to do so would be to invite serious criminal repercussions under New York State law. Such attempt to obtain possession of the Maxim 50 in New York would invite unwelcome attention from the BATF as well. Interested parties should peruse the National Firearms Handbook which can be found on the BATF website. Other web pages on the BATF website contain a wealth of information on firearms rules and regulations.To its credit SilenceCo does make clear that “customers from any state should verify they are abiding by all state, local, and federal laws before purchasing.”  Individuals interested in obtaining the Maxim 50 should takes those words to heart.BOTTOM LINE: The Arbalest Quarrel concludes that the Maxim 50, as with “Assault Weapons,” as the expression ‘Assault Weapon’ is defined in the Consolidated Laws of New York, is illegal in New York. Therefore, no New York resident should attempt to obtain one.Whether the Maxim 50 is "legal" in other States requires a separate analysis of each State's own peculiar firearms' laws. The Arbalest Quarrel will analyze other State laws to ascertain whether the Maxim 50 is legal in those States, upon specific request of readers._________________________________________________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.

Obtaining A CCW From Multiple Jurisdictions Is Time-Consuming, Expensive, and Slow

A ROAD TRIP WITH A HANDGUN: The Case For Universal State Concealed Handgun Carry Reciprocity

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

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

SUBPART TWO

OVERVIEW OF NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY IN THE CONTEXT OF COUNFOUNDINGLY DIFFICULT AND WASTEFUL TIME AND MONEY ONE MUST SPEND ACQUIRING MULTIPLE CONCEALED CARRY HANDGUN LICENSES FROM MULTIPLE STATE AND LOCAL JURISDICTIONS AS ONE SEEKS NOTHING MORE THAN TO EXERCISE ONE'S NATURAL AND GUARANTEED RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE, AS THE FOUNDERS OF OUR REPUBLIC INTENDED BOTH FOR THEM AND FOR US.

INTRODUCTION

In this section of our “ROAD TRIP” series of articles we lay out the necessity of National concealed handgun carry reciprocity legislation. National concealed handgun carry reciprocity legislation would dramatically reduce the time, energy, and cost factors involved in obtaining handgun licenses from multiple jurisdictions. We follow the experience of one American citizen as he deals with the complexity of applying for and acquiring multiple handgun licenses.For over two decades Mr. Wright has spent substantial time and exorbitant suns of money securing concealed handgun carry licenses from multiple jurisdictions. Most of the requirements are duplicative. He continues to spend time and money, renewing those licenses as required in each jurisdiction. The Arbalest Quarrel has laid out in detail the intricacies and difficulties in obtaining CCW handgun licenses. We have discussed Mr. Wright’s acquisition of handgun licenses in New York and in Maine.

LICENSING OF FIREARMS AND STATE PREEMPTION

Unlike many, if not most States, the New York State Legislature hasn’t preempted the field of firearms laws. That means cities and counties within New York may enact their own firearms’ codes and ordinances, consistent with State Statute—so long as the city and county codes and ordinances are not less stringent than State law. They aren’t. New York City’s codes, regulating the ownership, possession, and licensing of firearms, including handguns, shotguns, rifles and even black powder muskets and non-functioning replicas, are numerous, complex, and onerous.Mr. Wright is a resident of Nassau County, Long Island, New York. We wrote about Mr. Wright’s acquisition of a Nassau County handgun license. That license isn’t valid in New York City. Mr. Wright’s main business offices are in New York City. Under the firearms’ codes of New York City, Mr. Wright had to acquire a separate New York City handgun license to carry a handgun concealed, lawfully, in any of the Boroughs within the City because, unlike most jurisdictions, the New York State Legislature has not preempted the field of firearms’ licensing. This means that lower level government jurisdictions, Counties and Cities, within the State of New York, can institute their own codes and regulations, so long as those codes and regulations are no less stringent than and are consistent with State Statute. That results in codes and regulations much more complex and clearly more stringent than anything coming out of Albany.In a previous article we discussed the procedure for obtaining an unrestricted, “full carry” concealed handgun license in New York City. The procedure is costly, in both time and money. Mr. Wright had no alternative but to obtain an unrestricted New York City handgun license if he were to protect his life and safety conducting business in the City. He could not rely on the Nassau County gun permit. New York City does not have firearms' "reciprocity" with other Cities and Counties in the same State--a strange situation, but not unique. Other States, such as Hawaii, operate similarly. The result is a hodgepodge of firearms' codes and regulations across the State of New York.Mr. Wright also conducts business in Maine, and we discussed the procedure for obtaining a concealed handgun carry license, that would allow Mr. Wright, a law-abiding American citizen and inordinately busy entrepreneur, to carry, concealed, on his person, a handgun, in the State of Maine.

THE IMPACT OF THE HELLER CASE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS

For over two decades Mr. Wright has spent substantial time and money securing handgun licenses. He should not have had to do so. The natural right of self-defense follows logically from the natural right of the people to keep and bear arms as codified in the Second Amendment to the United States Constitution. This isn’t supposition. It is fact. If there remain any doubt, about that, the U.S. Supreme Court, in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), laid such doubt to rest. Indeed, self-defense was a salient issue of Heller. The overview of the case sums up the holdings as follows: “The Court held that the District’s ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment. The Court held that the Second Amendment protected an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court determined that the Second Amendment’s prefatory clause announced a purpose but did not limit or expand the scope of the operative clause. The operative clause’s text and history demonstrated that it connoted an individual right to keep and bear arms, and the Court's reading of the operative clause was consistent with the announced purpose of the prefatory clause. None of the Court's precedents foreclosed its conclusions.”The majority in Heller stopped short of extending its holding to the carrying of a handgun for self-defense outside the home. But, the high Court generally tailors its decisions narrowly to the specific legal issues of the case. The central issue in Heller was whether the District of Columbia can lawfully ban outright a person’s use of a handgun for self-defense within one’s home. The District of Columbia attempted to do so, thereby reducing the effectiveness of a handgun for self-defense to that of a heavy paperweight, or hammer.The high Court made clear that the District of Columbia’s constraint on one’s ability to use a handgun for self-defense within one’s home is unconstitutional as it conflicts with the import of the Second Amendment. Since Heller, every State, including the District of Columbia must acknowledge, at least tacitly, and often enough, grudgingly, the right of a person to rely on a handgun for self-defense in one’s home. That right flows, logically, from the high Court’s determination in Heller, as the Court made clear and unequivocal, that the right of the people to keep and bear arms is an individual right, unconnected to an individual’s membership, if any, in a State militia.The laws of each State and the District of Columbia ostensibly make provision for the carrying of a handgun concealed for self-defense. Yet, in practice several States, including the District of Columbia, issue such licenses, rarely, if at all, and, if they do so, such licenses are issued only to a privileged, well-connected, few which raises, then, Fourteenth Amendment due process and equal protection concerns as America is a class-less society. No American citizen’s rights are function of one’s personal wealth, or power, or connection to those who have extraordinary wealth or who wield extraordinary power. One’s rights and liberties as an American citizen are not expanded or reduced predicated on his net worth, or market value, or position, or status. At least that is not supposed to be the case, but that happens to be true where a law-abiding citizen seeks to exercise one particular natural and fundamental right: namely the right to keep and bear arms.Moreover, not all jurisdictions that do issue concealed handgun carry licenses maintain a reciprocal relationship with another State. Reciprocity agreements among States is often muddled and fluid—subject to change, often without adequate notice.

WOULD NATIONAL CONCEALED HANDGUN CARRY LEGISLATION ENACTED BY CONGRESS REALLY BE EFFECTIVE IN ENABLING LAW-ABIDING AMERICAN CITZENS TO CARRY A HANDGUN CONCEALED ON THEIR PERSON, FOR SELF-DEFENSE?

To be sure, Congressional enactment of well-crafted national concealed handgun reciprocity legislation would do much to obviate confusion in the lawful carrying of concealed handguns in the several States as each State that provides for concealed handgun carry licensing would be required to recognize the validity of a concealed handgun carry license issued by another State. But that means States—those referred to as “may issue”—that, at present, turn a guaranteed right into a jurisdictional grant or privilege, issuing concealed handgun carry licenses rarely if at all—may not be required to recognize the validity of licenses issued by States that routinely issue such licenses to average, law-abiding citizens—those referred to as the “shall issue” States.There are several permutations of possible national concealed handgun carry reciprocity legislation formulae that Congress can consider when drafting national concealed carry bills. The Arbalest Quarrel will provide a detailed analysis of the pending bills in a forthcoming article. But, we will say this now: the most effective national concealed handgun carry reciprocity legislation would require all States, including the District of Columbia and all U.S. territories, to recognize and accept, within their respective jurisdictions, and recognize and accept, unconditionally, the validity of every valid State issued concealed carry license whether one is a resident of the State that issued the license or not. That means that no American citizen , carrying a handgun concealed on his person, while also holding a valid concealed handgun carry license, validly issued by the appropriate licensing authority, shall not be subject to arrest.Suppose, then, a resident of Hawaii—where issuance of concealed handgun carry licenses is extremely rare and virtually impossible to secure unless one is well-connected—obtains a concealed handgun carry license from, say, Texas. Can the resident of Hawaii, then, rely on the validity of the Texas CCW license to lawfully carry a handgun concealed in Hawaii? Well, that depends on how the Congressional national concealed carry legislation is worded. If the legislation sets forth that every State must recognize and honor a valid State issued CCW license in every other State, regardless of a given State’s own firearms’ licensing laws, then the Hawaii resident, holding a valid CCW license issued, say, from Texas, is in safe waters and may utilize the Texas CCW license to carry a handgun concealed in every State, including, then, his home State of Hawaii. The Hawaii resident would be able, then, effectively, to override his home State’s draconian gun laws. But that would make, nugatory, Hawaii’s highly restrictive, draconian gun laws. What would Hawaii do? Hawaii wouldn’t sit idle seeing its “may issue” gun laws neutralized as its own residents, as well as non-residents, can then carry a handgun concealed on their person throughout the islands of Hawaii and the Hawaiian Government could not do a thing about it.Hawaii would undoubtedly file lawsuits, objecting to the constitutionality of such Congressional legislation. Antigun organizations and the Attorneys General of States such as New York, New Jersey, and Illinois would probably file their own amicus briefs in support of Hawaii’s lawsuits. Hawaii would argue, inter alia, that such Congressional legislation is a bald attempt to override Hawaii’s right under the Tenth Amendment to enact its own firearms’ laws, and that such national concealed handgun carry legislation enacted by Congress operates as an unconstitutional, impermissible infringement on Hawaii’s State as Congressional legislation enjoins States from exercising their own police powers. The Tenth Amendment to the U.S. Constitution says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  Hawaii would also likely argue that such national concealed handgun carry legislation operates as an unconstitutional, unconscionable encroachment on State sovereignty as Congress preempts a traditional power of the States—regulation of firearms within a State’s own borders. So-called “may issue” States would argue that such impermissible encroachment means that, as residents of “shall issue” States enter their States carrying valid CCW licenses, with handguns in tow, Hawaii’s police could not arrest them. They would be immune from arrest and from prosecution. Residents of “may issue” States, on their part, who seek to carry a handgun concealed would be unhappy as well if Hawaii’s draconian gun laws prevent them from exercising the very right that non-residents may exercise in their own State—especially if residents of Hawaii would not recognize their own resident’s obtaining valid handgun licenses from another State. This would present a conundrum for Congress and for the Courts.Antigun proponent residents of those States that do not wish to see—what they perceive, albeit wrongly, to be—an extension of the Second Amendment right of the people to keep and bear arms would raise a hailstorm of objections to guns coming into their State from other States, while those residents who seek to secure CCW licenses for themselves would argue that it makes no sense to deny to them the right to keep and bear arms that is extended to non-residents simply by virtue of less restrictive gun laws existent in non-resident States, especially if any handgun license they obtain from another State is considered invalid in Hawaii if one happens to be a resident of Hawaii.While antigun groups file lawsuits to curtail the effectiveness of Congressional national concealed handgun carry legislation, there would be, on the other side, plans afoot by residents of “may-issue” States to compel State Legislatures to repeal draconian firearms’ laws and to enact new less restrictive laws that cohere with the firearms’ laws of “shall issue” States and with the Congressional legislation.Anticipating problems, Republicans in Congress may seek to enact a weaker yet still improbable version of national concealed handgun carry reciprocity legislation. A weaker version of the national concealed handgun carry reciprocity legislation would require every State, including the District of Columbia, and the U.S. territories, to recognize the validity of and therefore honor a validly issued CCW license of the issuing jurisdiction from a citizen’s own State of residence if and only if one’s resident State issues CCW licenses to its residents. But, for “may issue” States, the fact that they issue CCW licenses, theoretically, at least, means that they may be required to recognize and honor the CCW license of any non-resident who comes into their State, “packing” a gun anyway. In that event, we would undoubtedly see present “may issue” States modifying their gun laws, yet further, making their gun laws even more stringent—altogether proscribing the issuance of CCW licenses in their States. Those “may-issue” concealed handgun carry States, such as Hawaii and New York, and Illinois, would not, then, be required to recognize and honor a CCW license issued by another State since they do not, any longer issue CCW licenses. Thus, anyone entering the State with a firearm and a valid CCW license issued by another State would not be in safe harbor. That person would be subject to immediate arrest and prosecution for carrying a gun into the State at all. So, a weakened national concealed handgun carry reciprocity law would really not be a national concealed handgun carry reciprocity law at all, but merely a qualified national concealed handgun carry reciprocity law.Nonetheless, even weakened versions of Congressional national concealed handgun carry legislation would likely see major battles in Congress. Those battles would then pour over into the Courts.Looking forward—let’s say the next ten years—assuming national concealed handgun carry reciprocity legislation of some sort or another is passed in the next few months, we would see—indeed would probably have to see—the Heller holding extended to the public domain—namely the domain outside one’s home. That may be the only way to finally snuff out the antigun movement’s efforts to curtail firearm’s ownership and possession once and for all.

HOW MIGHT PROPONENTS OF THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS COMBAT THE EFFORTS OF ANTIGUN GROUPS AND “MAY ISSUE” STATES THAT SEEK TO CURTAIL EXPANSION OF THE HELLER DECISION?

One tenable response to Hawaii’s objection is that the Second Amendment right of the people to keep and bear arms, made applicable to the States under the due process clause of the Fourteenth Amendment to the U.S. Constitution, overrides a possible Tenth Amendment or police powers objection a State, might make, if, as a proponent of national concealed handgun carry reciprocity legislation, argues, as well, that the right of self-defense, a hallmark of the individual right to keep and bear arms, cannot be legitimately circumscribed by States. A framing of constitutional issues may look in part like this:The natural right of self-defense falls, one, within the right guaranteed under the Second Amendment to the U.S. Constitution; and that right, is protected, two, under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution; and the right of self-defense is protected, three, under the full faith and credit clause of Article IV, Section 1 of the U.S. Constitution; and perhaps a novel argument may set forth that the right of self-defense, embodied in and entailed by the Second Amendment to the U.S. Constitution is complemented, four, in the Ninth Amendment of the U.S. Constitution as one of the unenumerated rights and liberties underlying the Ninth Amendment. An argument of a Ninth Amendment right of self-defense would likely butt up against the argument that such right is inconsistent with the sovereignty of States under the Tenth Amendment and under the police powers of States to regulate firearms’ laws within their own borders, assuming one can draft a tenable Ninth Amendment argument of self-defense at all—apart from the application of the Second Amendment right to the matter of self-defense as now recognized as a result of the Heller decision, made applicable to the States through the Fourteenth Amendment as set forth in the U.S. Supreme Court's McDonald decision, that came on the heels of Heller. See, McDonald vs. City of Chicago, 557 U.S. 965, 130 S. Ct. 48 (2009).  The Ninth Amendment to the U.S. Constitution says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Had Hillary Clinton succeeded to the U.S. Presidency, any thought of national concealed handgun carry reciprocity legislation would be no more than a pipedream. With the Trump Administration, soon to be ensconced in the White House, passage of national concealed handgun carry reciprocity legislation, in some form, will pass, notwithstanding efforts of virulent Antigun Legislators, like Senator Charles Schumer, who made very clear that he would oppose it. But, Americans will see enactment of such legislation even if it takes several months to do so, followed by years of Court battles.Thus, for now, those States that do not at the moment have concealed handgun carry reciprocity agreements with other jurisdictions, and that have no desire to enter into such concealed handgun carry reciprocity agreements with other States, place out-of-State residents in a bind. One must either forego the carrying of a handgun concealed in those jurisdictions that do not have a concealed handgun carry reciprocity agreement with another jurisdiction or one must—like Mr. Wright, who seeks to carry a weapon for self-defense in multiple jurisdictions that he travels to and through for business related purposes—apply for and obtain separate concealed handgun carry licenses, issued by multiple issuing authorities. That at present is the nature of the Country we live in. That is the case for Mr. Wright whose trials and tribulations we follow as he works his way through the obstacles of obtaining a concealed handgun carry license in various New England and mid-Atlantic States where he conducts business.Thus, the problems Mr. Wright faces simply to exercise his right of self-defense is hampered and constrained—making, for him, and for those of us who seek merely to exercise the natural right guaranteed to us, as codified in the Second Amendment—an elusive goal. Thus the antigun groups and antigun Congress and antigun State Legislatures and mainstream media, and the secretive, wealthy, powerful, ruthless, individuals and groups behind them all continue to make a mockery of the American citizen and continue to make a mockery of the American citizen’s Bill of Rights.Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

SHOULD SCHOOL TEACHERS BE ARMED? THE UFT DOESN’T THINK SO, BUT ONE EFFECTIVE ALTERNATIVE WOULD BE TAXING TO TAX PAYERS.

CO-FOUNDER OF ARBALEST GROUP, LLC., RESPONDS TO UFT OPINION PIECE CONCERNING THE ARMING OF NEW YORK'S SCHOOL TEACHERS

The “United Federation of Teachers (UFT”), a New York City affiliate of the American Federation of Teachers, posted an article in its  publication, Teacher, titled, “Gun Fight.” The article appeared in the May 5, 2016 edition of Teacher. The editorial takes aim at the notion that arming teachers to protect students is a bad idea.Stephen L. D’Andrilli, one of three founders of the weblog, the Arbalest Quarrel, was a licensed New York teacher and receives the UFT publication, Teacher.After reading the UFT Op-Ed, Stephen felt a need to respond and did so. Stephen’s response to the Op-Ed was published in the June 2, 2016 edition of Teacher, under the Editor's title, “Editorial shoots blanks.”Stephen's response to the UFT editorial appears, in full, below:“I am responding to your recent editorial (“Gunfight”). The question posed is whether allowing educators to bring firearms to K-12 schools in New York would protect students against gun violence. The editorial considers the question from the standpoint of the 2012 Sandy Hook Elementary School tragedy.In arguing that arming educators is a bad idea, a few hypothetical situations involving armed educators are presented; outcomes are postulated; and a tacit conclusion is drawn: educators should not be allowed to bring firearms to school.The scenarios are typical straw man arguments. Nothing substantive can be deduced from them. One may argue just as readily that an armed educator would likely successfully protect the lives of his or her students from an armed aggressor. The editorial’s hypotheticals amount to straw man arguments. Straw man arguments obfuscate. They do not elucidate. Any possibility follows from a false antecedent in a counterfactual.The editorial concludes by discussing another matter entirely: the need to provide adequate mental health care for deeply disturbed individuals is no more than a stopgap. The point does not address deeply disturbed individuals who slip through the cracks; nor does it address the issue of criminals and terrorists that threaten soft targets like schools.So, if the invasion of schools by armed lunatics, terrorists, or assorted criminals cannot be contained and, through time, becomes pervasive and, if educators are not armed, what is the alternative? There is one we can think of: an armed contingent of police officers, peace officers, or private armed security to protect students, faculty, and administrators in schools. That will work, but, what will it cost? One armed guard, as the editorial staff of New York Teacher admits, will, arguably, never be enough.”

STEPHEN D'ANDRILLI'S BIO

Stephen was President and CEO of two security consulting and criminological research firms. He was also a business partner in a New York City licensed indoor gun range. Stephen is a decorated veteran police officer of the New York City Police Department. While employed with the N.Y.P.D., Stephen earned three University degrees from John Jay College of Criminal Justice. Stephen earned a Bachelor of Science degree in Police Science, a Master of Arts degree in Criminal Justice Administration and a Master in Public Administration degree.Later, Stephen served as an Adjunct Professor/Lecturer of Police Science at John Jay College of Criminal Justice. Stephen then served as a high school Social Studies Teacher for the New York City Department of Education and served as Dean and Athletic Coach for the Department. He is an expert in personal and corporate security.Stephen is a National Rifle Association Certified Firearms Instructor (pistol, rifle and shotgun) and Training Counselor, and is an active member of the International Association of Law Enforcement Firearms Instructors. He has testified on firearms, crime, and self-defense before governmental committees and at governmental hearings, on many occasions.Stephen has written many articles on these subjects and has appeared on television and radio. Major national and international newspapers, magazines and professional journals have profiled Stephen. Stephen is passionate about the Constitution and passionate about the Bill of Rights, the cornerstone of the Republic. Stephen is aware the Bill of Rights is under attack. Stephen understands that Americans must defend the Bill of Rights if they are to protect and preserve their heritage.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Stephen L. D’Andrilli (Publius) All Rights Reserved.