PART 1: GUNS, PRIVATE PROPERTY RIGHTS, AND THE CONSTITUTION
Question For New York Gun Owners: Do You Think Your Firearms Are Your Private Property? If So, You Are In For A Rude Awakening!
The NY Safe Act And Other Provisions Of New York Antigun Laws Wrongly Destroy Gun Owners Private Property Rights And Interest In Their Own Guns.
No one can rationally deny that the Second Amendment to the U.S. Constitution is the cornerstone of the right of the American People to possess firearms. Still, scant attention is paid to the private property interest embedded in the Second Amendment right of the People to Keep and Bear arms. And too little attention is paid to the independent nature of private property interests in this Country.
The “Takings Clause” of the Fifth Amendment prevents the Federal Government from taking one’s private property without just compensation. The “Takings Clause” of the Fifth Amendment, as directed originally and alone to the Federal Government, applies to the States, as well, through the Fourteenth Amendment. This means that a State Government, too, is not permitted to take one’s private property without just compensation.
The “Takings Clause,” as applied to both State Governments and to the Federal Government operates as a check and safeguard against a Government’s unlawful attempt to secure unto itself the private property of a citizen. Such taking of a citizen’s private property without just compensation deprives and denies a citizen the use and enjoyment of it and destroys the economic value associated with it.
In our previous article we discussed generally how New York law undercuts one’s possessory and legal interest in one’s firearms – firearms that are a person’s private property. We discussed how New York law operates to dispossess the owner of his or her personal interest in and enjoyment of those firearms as private property. We pointed to New York law that effectively denies a gun owner the inalienable right to effectuate the bequest of firearms to his or her heirs.
We now take a closer look at those New York Statutes that make it extremely difficult for person to transfer his or her private property – one’s firearms – to one’s heirs. By denying a New York resident and citizen of the United States the right to quickly and easily transfer legal ownership and possession of one’s firearms to one’s heirs – assuming the law permits one to do so at all – New York law essentially and effectively deprives the owner of his or her property without just compensation and without due process of law.
Because of the length of this article, we have broken it down into several parts. One new part or installment will be posted every day.
NEW YORK STATUTES CONTRAVENE BOTH THE U.S. CONSTITUTION AND NEW YORK’S STATE CONSTITUTION
New York State Statutes operate in derogation to the U.S. Constitution and in derogation of New York’s State Constitution, undermining New York firearms’ owners’ property interest in their own firearms.
New York Statutes deprive gun owners of their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. And New York Statutes amount to an unconscionable taking of gun owners’ private property without just compensation in derogation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.
New York Statutes are also inconsistent with New York’s State Constitution. New York Statutes deprive gun owners of their private property rights in firearms in contravention to NY CLS Const Art I, § 7(a). That Article prohibits the taking of private property for public use without just compensation. And New York Statutes deprive gun owners of their private property rights in contravention to NY CLS Const Art I, § 11, which states categorically that New York residents and citizens shall not be denied the equal protection of the laws to which they are entitled.
WHAT IS “PROPERTY?”
The words ‘property’ and ‘private property’ are often bandied about. And the meanings of these expressions may seem obvious. But, colloquial meanings aside, you should know what the legal definitions of the words are.
Legal definitions of words are important – in fact, critical – because the legal meanings given to words as embodied in law impact your rights and liberties. By the same token, when government officials ignore the plain legal meanings of words, they denigrate the U.S. Constitution, and the American People suffer the consequences.
The primary source for the legal definitions of words is Black’s Law Dictionary. The definitions we give you here are those listed in the Ninth Edition of that Dictionary.
Property takes one of two forms: personal property and real property. The expression ‘real property’ means ‘land and everything attached to, or erected on it, excluding anything that can be severed without injury to the land.’ We are not concerned with the notion of ‘real property’ here. We are concerned with the notion of ‘personal property.’
The expression, ‘personal property’ means ‘any movable or intangible property that is subject to ownership and not classified as real property.’
Intangible personal property refers to intellectual property such as patents and trademarks and copyrights. And we are not talking about intangible personal property here either. We are talking about tangible personal property – that is to say, physical property. Firearms fall within the definition ‘tangible personal property’ because firearms are physical, movable objects, not attached to or erected on land.
Now, both real property and personal property can be one of two types: public or private. The expression, ‘public property’ means ‘State or community-owned property not restricted to any one individual’s use or possession.’ The other kind of ‘real property’ and ‘personal property’ is ‘private property.’
When talking about firearms, we are referring to ‘private property’ – property that is owned by the individual. We are not talking about property that is owned by the State or property that is owned collectively by the public – that is to say – the community.
Your firearms are private property, not public property. Your firearms are not the property of the State and they are not owned collectively by the public. You paid for your firearms out-of-pocket with hard-earned dollars. They belong to you and to you alone. So your firearms are private property – your private property.
In law, ‘private property’ means something more than simply property that isn’t State owned or community owned. The expression ‘private property’ means, in law, ‘property protected from public appropriation – over which the owner has exclusive and absolute rights.’
Think about that definition for a moment. The notion of private property exemplifies ideas of exclusive ownership and absolute control by the individual.
Your firearms, like the clothes on your back and the automobile in your garage and the gas range and refrigerator in your home, all of which you paid out-of-pocket for, are your private property – property that you have exclusive ownership rights in and to and absolute power over. That is what it means for a citizen in a capitalist society to own property.
To the extent that you control your property and to the extent that you have exclusive right to the use and enjoyment of it – to keep it or to sell it or to gift it to another, as you wish – the notion of ‘private property’ is preserved. And, to the extent that your private property rights are infringed or impinged upon, the notion of ‘private property’ is defeated.
In the next installment of this article we will provide you with terminology that you need to know to fully appreciate the extent to which the NY Safe Act upends your property interest in your own firearms.[separator type=”medium” style=”normal” align=”left”margin-bottom=”25″ margin_top=”5″] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.