NY State Mulls Repeal of Assault Weapon "Grandfather Clause"

Adds semiautomatic rifles, shotguns or pistols or a replica or a duplicate thereof manufactured on October 1, 1993 and semiautomatic rifles, shotguns or semiautomatic pistols lawfully possessed prior to September 14, 1994 to the definition of assault weapon; provides for the superintendent of the division of state police to accept surrendered assault weapons; declares such assault weapons surrendered a nuisance. A03371 Actions: 02/02/2005 referred to codes

A03371 Memo: TITLE OF BILL: An act to amend the penal law, in relation to adding certain weapons to the definition of assault weapon and repealing certain provisions of such law relating thereto

To repeal the grandfather clause in the definition of assault weapon which currently allows the possession of an assault weapon if the weapon was lawfully possessed prior to September fourteenth, nineteen hundred ninety-four or if the weapon was manufactured on of before October first, nineteen hundred ninety-three; to provide for the surrender and destruction of such weapons.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 Subparagraphs (iii), (iv), and (v) of paragraph (e) of subdi- vision 22 of section 265.00 of the penal law are amended to prohibit the possession of an assault weapon lawfully possessed prior to September fourteenth, nineteen hundred ninety-four, and is amended to prohibit the possession of a weapon as defined in Appendix A to section 922 of 18 U.S.C. as such a weapon was manufactured on October first, nineteen hundred ninety-three. Section 2 Paragraph one of subdivision a of section 265.20 of the penal law is amended to provide that all assault weapons must be surrendered to the superintendent of the division of state police within 15 days of the repeal of the grandfather clause.

Section 3 Section 400.05 of the penal law is amended to provide that assault weapons surrendered after the repeal of the grandfather clause will be declared a nuisance and be destroyed.

JUSTIFICATION: In 2000, New York`s penal law was amended to define military-style weapons and weapons with excessively large ammunition capacities as "assault weapons." The possession and sale of such assault weapons was banned but a "grandfather clause" was included, allowing the legal possession of those assault weapons that were lawfully possessed since September 14,1994 or manufactured on or before October 1, 1993. Given the current heightened concerns regarding terrorism, and the danger posed by these military-style and large capacity weapons, this bill repeals the assault weapon grandfather clause and prohibits the sale and possession of all assault weapons in an effort to protect citizens and law enforcement personnel.

PRIOR LEGISLATIVE HISTORY: EFFECTIVE DATE: This act shall take effect on the first of January next succeeding the date on which it shall have become law.

"A well-regulated militia, being necessary to the security of a free state: the right of the people to keep and bear arms shall not be infringed" -- United States Constitution, second amendment of the Bill of Rights

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.--- Constitution of the State of Illinois, Article 1, Section 22

The legal term police power is an ancient concept, probably predating the Code of Hammurabi; serving to under gird the primary and most important reason for government, that of the responsibility to promulgate law necessary for the health, morals, safety, and welfare of the populace. Black's Law dictionary, 6th edition, p.1156 of defines police power as follows:
Police Power.
...adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of the citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws.
The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity. The police power is subject to limitations of the federal and State constitutions, and especially to the requirement of due process. Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government. Marshall v. Kansas City, Mo., 355 S.W.2d 877, 883.
Note how this definition of police power is circumscribed by the requirement to be exercised within “constitutional limits.” The supreme law of the land is the United States Constitution, not the common law provision of police power. The exercise of police power must be subordinate to the supreme dictates of the Constitution. In the Quilici vs. Morton Grove decision, the Seventh Circuit Court of Appeals took the most expansive interpretation possible of the phrase "police power" in Article I, Section 22 of the Illinois Constitution and said that the right to keep and bear arms is what any particular unit of government says it is under the home rule provisions of the Illinois Constitution. The court held that Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual's liberty or property. In effect, the power of the state legislature has already been usurped by the courts concerning home rule gun bans, and this effectively preempts the right of the state legislature to carve out legislative exceptions to the unconstitutional gun bans enacted under home rule provisions. Just wait until one of these communities decides to appeal Illinois’s recent Self Defense Act passed over Gov. Blagojevich’s veto. They will cite the 7th Circuit Court Morton Grove decision as the basis to overturn the Act.

I consulted with a good friend of mine, the constitutional scholar Mark McGuire. Mark gave me black letter law on the constitution. Mark said that “a Constitution, whether federal or state is not a grant of authority, but a limit. That means that the Second Amendment has such is a limit on legislative authority, i.e. the police power.”

A climate has been created in Illinois wherein local communities such as Morton Grove, Oak lawn, Chicago, Wilmette, and many others have seized upon "police power" has the pretextual cart of gun prohibition to drive the constitutional "horse" of the right to keep and bear arms. The order of things is inverted. The police power exception of the Illinois Constitution is being used to swallow the rule. (The rule being that constitutions inherently limit the Police Power.) The founding fathers were probably the most astute observers of governmental theories that have ever been gathered at one time in one place in all of history. They were quite aware of the police power aspect of English common law, but they did not intend that the police power would modify the Second Amendment’s general protection of the right to keep and bear arms into a general prohibition on a whole class of firearm that are suitable for militia use. This militia use is for the “people” mentioned in the second clause of the 2nd amendment and is in accord with the provisions of the last Supreme Court decision that directly bore on the Second Amendment, the Miller decision of 1939. The Miller decision of 1939 held that the militia was 'A body of citizens enrolled for military discipline.' And further that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common (military) use at the time." Hand guns are common weapons of military utility for the individual soldier. The military has thousands of them.

None of this means that the right to keep and bear arms may not be infringed under any circumstances. The police power can be properly invoked to do so should one employ a firearm under circumstances that can reasonably be construed to cause alarm or harm to another, or in the commission of a crime. It is an entirely appropriate exercise of the police power to seize weapons so used and prosecute any such offenders. But that is hardly the case insofar as Wilmette, Chicago, Morton Grove, and the other units of government that invoke blanket prohibitions of handguns to ALL their residents, who are law abiding and peaceable.

I note that these communities are generally pretty affluent. I think it is safe to say that a large percentage of the residents are mature adults in professions that license them to fly airplanes, practice medicine and surgery, use explosives such as dynamite in construction, design buildings and bridges, and employed in many other occupations that involve a considerable degree of expertise and skill. It should be highly insulting to them to think that NONE of these residents are capable of using an instrument that an 18-year-old private in the military can be taught to use effectively in three days.

It is my earnest hope that discussions of the Right to Keep and Bear Arms can be reclaimed from the province of emotionalism, junk science, unconstitutional judicial decisions, constitutionally illiterate politicians, anti-gun news editorials, and replaced with logic, the original intent of the framers of the Constitution, and a respect for the citizens to whom the inalienable right to keep and bear arms is granted by natural law and protected by the 2nd Amendment.

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