Freedom Is Worth Fighting For !!
The Right Of The People To Keep And Bear Arms Shall Not Be Infringed !!
An Armed Citizen, Is A Safe Citizen !!
No Guns, No Rights !!
Molon Labe !!
Posted on 02/12/2002 4:22:44 AM PST by vannrox
Here is a decision of outstanding nonsense. Pertinent to the matter at bar, the Supreme Court talked about types of firearms and their protected uses.
The plaintiff in error was an unnaturalized foreign-born resident of Pennsylvania, and was complained of for owning or having in his possession a shotgun, contrary to an act of May 8, 1909. Laws 1909, No. 261, p. 466. This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in defense of person or property, and 'to that end' makes it unlawful for such foreign-born person to own or be possessed of a shotgun or rifle
and Mr. Patsone, of Italy, not a naturalized American, but an Italian National living in Pennsylvania possessed a shotgun. Arrested, tried, convicted, appealed up to the Supreme Court. Nobody ever alleged he hunted anything.
The great absurdity was this statement by the Court [232 U.S. 138, 143]:
The possession of rifles and shotguns is not necessary for other purposes not within the statute. It [the shotgun] is so peculiarly appropriated to the forbidden use [hunting] that if such a use may be denied to this class, the possession of the instruments desired chiefly for that end also may be. The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defense.
Comment: It is obvious that the Court knew less about the uses of rifles and shotguns in defense against criminals than the minimum necessary to be fit for their seats upon the High Bench.
The Court's words: "The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defense" makes it Supreme Court Writ that handguns are presumptively necessary for self-defense, at least occasionally, and as self-defense is an inalienable right, the tools presumptively useful to that end cannot be prohibited. This monument to racist ignorance has a grain of useful truth: handguns cannot be prohibited.
This judgement is also claimed by both sides of the Right to Arms debate as strengthening their side. It merits close reading.
Jack Miller, a bootlegger and 'gang member-turned-State's-Evidence', complained of his arrest and conviction for possession of a short-barrelled shotgun without the $200.00 tax stamp.
Mr. Miller won a suppression of the indictment in Federal District Court by complaining that this 'tax act' violated his Second Amendment rights. The District Court Judge agreed.
Shortly after Mr. Miller died, the U.S. Attorney General appealed this case to the Supreme Court; therefore, as noted in the Judgement, "No appearance for appellees". This was a one-sided hearing. Of course there was a one-sided result.
In the Courts opening words:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary militiary equipment or that its use could contribute to the common defense.
we see the following things:
the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"
must be labelled INVENTIVE MISCONSTRUCTION. The Miller Court noted that they had no evidence suggesting that short-barrelled shotguns were useful to a militia. This invites a re-hearing for discovery of evidence one way or the other about the usefulness of short-barrelled shotguns. In fact, the final disposition of this case was to send it back to the District Court for evidentiary hearings on the usefulness of the short-barrelled shotgun as a tool of the militia. As Mr. Jack Miller was dead, and Mr Frank Layton not pursuing appeals, the Federal Government let the matter drop with this judgement apparently (but not actually) sanctifying the tax as valid. In fact the Supreme Court only overturned the lower Court invalidation of the tax on short-barrelled shotguns, for lack of evidence.
"The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
is without foundation. The Court is to give Construction, not Constriction. This narrow view considered the Militia only as necessary to the security of the State, and ignored "the security of a free state".The Court had not one cite nor quote, not one particle of cause, for making this narrow an inspection of this matter, nor so narrow a conclusion upon it. They had, rather, common knowledge of the comment of Mr. Tench Coxe
"Their swords, and every other terrible implement of the soldier, are the birth-right of an American." (emphasis original; OSA (DHBR) p 276)
which Mr. James Madison, author of the proposal that became the Second Amendment, appreciated. As the phrase "every other terrible implement of the soldier" include grenades (rocket-propelled, rifle-propelled, and thrown), the mortar, bayonets, shotguns (short and long), rifles, muskets, pistols, swords and knives and more, a significant burden of proof lays upon whoever would encumber some weapons to prove that they are not and cannot reasonably become useful to the objective of the Militia: the security of a free state. Whereas the security of a free state includes overthrowing a tyrannical government, the number and types of weapons useful (if usefulness is a hinge upon which turns the Right of Arms and the question of uninfringeability) expands enormously, from the Infantry Trooper class of Miller, to the Special Forces class, which weapons set runs the gamut from shoelaces and barbed wire to shoulder-fired rockets, remote-controlled demolition explosives, bows, silenced guns of every variety, and just about anything that can be used to kill a targeted person or group. Nuclear and Biological weapons are rather clearly outside the group, land mines and Chemical weapons merit a case-by-case study, as both placement and size could (as Defendants read the History and the Law) sanctify or invalidate a Second Amendment claim.
The Court listed the laws of several of the colonies and States existent at the time of the ratification of the Constitution and Second Amendments, including one from New York [307 U.S. 174, 180, 181]:
By an Act passed April 4, 1786 (Laws 1786, c. 25), the New York Legislature directed:'That every able-bodied Male Person, being a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. ... That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; ....'
Defendants again belabor that this is no upper limit for what may be owned, but a lower limit on what must be owned.
The Court noted (which the gun banners will dismiss as mere dicta)
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for militiary 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 use at the time."
Please note this includes the defendants, both, and their handguns. In further comment on the scope of the deliberations of the Court in both Miller and the New York pistol ban, after We The People established a Congress with authority to lay and collect taxes, we took back, by the First Amendment, any portion of that power that intersects our publishing, buying, or possessing books. Ponder for a chuckle on the thought of Congress, or any state, laying a $200.00 tax on the printing or tranfer of a copy of the Book of Mormon. As the First Amendment does not protect only books of popular religious, political or scientific discourse, the Second Amendment does not protect only firearms of a "kind in common use" in a current militia or army. The key, operative words are "Press" and "Arms" respectively. Similarly, Congress' power to regulate commerce cannot be understood as putting in their hands power to determine which books we may ship, nor which arms we keep or bear, however one would by verbal origami seek to justify such a misconstruction of the limited power. While on the one hand, powers granted are generally understood as limited in scope but not in degree within that scope, it must be understood, on the other, that those degrees are in fact limited by the provisions of the Bill of Rights, which provisions also limit the police powers of the States. -->
Conclusion: U.S. v. Miller is sufficient to destroy this State law by itself, if the words of the Constitution were not.
This Judgement invalidated all Registration statutes where the regulatory powers and criminalizing powers overlap, such that a person cannot obey the Registration statute without (implicitly or explicitly) confessing to violating the criminal statute. The statute at bar has this construction.
Federal law requires that owners of machineguns, silencers, short-barrelled shotguns and other 'NFA' weapons register the weapon and pay a tax on it.
Federal law also lays felony penalties on the unregistered possession of any of the above.
So when Mr. Haynes was arrested, tried, and convicted of possession of unregistered 'NFA' weapons and of failure to register these same weapons, the Supreme Court threw out (8-1) the convictions on the grounds that the registration requirement violated the 5th Amendment prohibition on compelling a person to testify against themselves of their guilt of possession of the unregistered weapon.
Defendants note the moral of the story: The act of possession must be fundamentally legal to require registration thereof. Possession of something unregistered, where registration is legally required, may properly result in a fine or in the suspension of an applicable license, but not jail time or criminal record, without triggering Haynes.
Corollary Moral: Regulation and Prohibition are not only not the same, they are mutually exclusive. Regulation is the manner in which something may be done; prohibition defines something that cannot be done. Once an act is prohibited, there is nothing left to regulate.
Applicability to this case: When we crossed New York's borders with our pistols, we became violators of the prohibition statute, and would have remained violators thereof until we obeyed the Registration statute. If we then attempted to obey the Registration statute, we would have thereby confessed our guilt under the Prohibition statute. Per the doctrine of this judgement, we cannot be prosecuted for violating the Registration statute, for that would require us to confess our violation of the Possession statute, nor for violating the Possession statute because the open path of legal possession via Registration was closed to us by the Prohibition statute.
The Haynes v. United States Syllabus states it thus:
3. A proper claim of the privilege against self-incrimination provides a full defense to prosecutions either for failure to register under sec. 5841 or for possession of an unregistered firearm under sec. 5851. Pp. 95-100.
Now comes a critical question: What constitutes making a "proper claim of the privilege against self-incrimination"?
Per Defendants, living in quiet violation of an unconstitutional statute. Supposing, to separate the facts and the laws from the emotions and hysteria, New York had a law prohibiting being an adherent to the Mormon faith, and also required that Mormons living in the State register with the State. If we move into the State and live our Mormon faith quietly, we have by fact, rather than by ritual of the Court, invoked our right not to testify against ourselves. When we are betrayed to the Police, and they ask us if we adhere to this forbidden Faith, must we deny the Truth? Must we give rise to suspicions against us by answering "Objection, 5th Amendment, Immunity to self-incrimination"? If the act involved is the peaceable exercise of a Right, the answer is No. Declaring that we are in fact adherents to the Mormon Faith waives NOTHING because we have a Right to adhere to this forbidden faith. The State is the transgressor for writing or enforcing this unconstitutional statute, it is the State that ought to invoke it's right to remain silent. We need never be ashamed of a Right, nor it's peaceable exercise, we did not authorize our State to harm us for peaceably exercising a Right, nor for acknowledging the right nor the peaceable exercise of a Right.
Surrender of the handgun to avoid prosecution under § 265.01 while seeking the § 400 license (see § 265.20) is (since we have to right to the permit or reason to expect to receive it)
Applicability: the Statute At Bar can only prevail if the Court or the Accused is lazy, ignorant, or careless of the Constitution and the Bill of Rights. It is a trap for the unwary, and impotent in the face of knowledge and skill. That alone deprecates the Rights of Due Process: The State errs to write Statutes that Lawyers can, by their professions' skills, obey or evade; whilst the rest of us are vulnerable because of our ignorance. Elsewise, should we never answer any questions asked by Police except through Legal Counsel? Lawyers might answer in the affirmative, for this increases their fortunes. The Courts might answer in the affirmative, for questions answered through counsel are their daily occupation. To the People, the answer is (expletive) no. You are our servants, not our parents. You are to write and tolerate only such laws as are just, equitable, and fair (the statute at bar is none of the above), and which are necessary and proper to administering our state in our names (this statute is neither). Haynes v. U.S. guts the statute at bar, if it's victims and their counsel are sufficiently savvy.
This judgement makes a clear dissertation upon the nature of Due Process itself, and cites the Right to Keep and Bear Arms (see first emphasis) as one of the rights protected under Due Process (see second & third emphasis). This being the case, the Legislature and Courts of New York are obliged, to whatever degree they takes counsel from the High Bench, to consider their law making a crime of peaceable keeping and bearing of arms, by calling it Criminal Possession of a Weapon, to be frankly unconstitutional on grounds of Due Process as well as under the Second Amendment.
[431 U.S. 494, 501, 502]
Understanding those reasons requires careful attention to this Court's function under the Due Process Clause. Mr. Justice Harlan described it eloquently:Defendants interject: Mr. Justice Harlan just described the Ninth Amendment.
. . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.
Poe v. Ullman, supra, at 542-543 (dissenting opinion).
...There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. That history counsels caution and restraint. But it does not counsel abandonment...
But our cases have not departed from the requirement that the government's chosen means must rationally further some legitimate state purpose.
Even if there were no Second Amendment, the statute at bar is exactly what the Court pronounces intolerable: "substantial arbitrary impositions and purposeless restraints", which absent the presumption that handgun possession is inseparable from criminal intent, does not "rationally further some legitimate state purpose". This Statute is unconstitutional for violation of the Second Amendment and on grounds of Due Process.
Lewis lost his bid to have a conviction for Felon With A Firearm overturned; what is relevant to this case is that in studying the language of the prohibition, and the Congressional debates giving rise to the Felon With A Firearm prohibition, the Court "discovered" that the understanding of the Congress in writing the 1968 Gun Control Act was that every individual person has by right an immunity to encroachment against the Right to Arms until convicted of a felony. Here is the language of Lewis quoting Senator Long from the Congressional debates:
"So, under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm." 114 Cong. Rec. 14773 (1968).See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight.
The Court further reasoned:
It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960's. See e. g., S. Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed:
The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly - to keep guns out of the hands of those who have demonstrated that `they may not be trusted to possess a firearm without becoming a threat to society.' Scarborough v. United States, 431 U.S., at 572.
If it is coherent to ban the possession of firearms from the felon because of the "precipitous rise in political assassinations, riots, and other violent crimes involving firearms", what shall be said of a law banning possession of firearms from a person whose only crime is to possess firearms? It paints the whole body of the people with the tar brush of suspicion, effectively a Bill of Attainder, in that we are by statute presumed to be untrustworthy to exercise an individual right.
Also of significance in the case at bar (making a crime and "Serious Offense" of mere possession of a firearm, even in ones' home, in one's car, one's place of business, or on one's person going about one's lawful business) is the definition of Due Process as applied to the Right of Arms. The Lewis Court's list of cites is lengthy, indicating they consider this point well settled:
The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made . . . or . . . they `have some relevance to the purpose for which the classification is made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting from McGinnis v. Royster, 410 U.S. 263, 270 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111 (1966). See Vance v. Bradley, 440 U.S. 93, 97 (1979).
Defendants regret and deplore the necessity of reciting and belaboring to the Court that the statute at bar, which makes a crime of simple keeping and bearing of arms, has no rational basis whatsoever, pursues no particular objective other than disarmament of the citizenry, and invades a right with no explanation whatsoever.
This was a drug case, not a gun case. It hinged upon the meaning of the word people. It has been examined adequately above, and is re-referenced here to underscore that "the right of the people" cannot be mistaken to mean States or Militia Organizations of any variety.
The Federal government attempts to both tax and prohibit ownership of new machineguns. For the tax purpose, registration is required. For the prohibit part, the BATF refuses to receive the tax or register the weapon. The result is a felony penalty (failure to register and pay tax) for not doing what is by law impossible. The Court concluded:
In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are Dismissed.
Defendants cite, from this, that the government, at any level, cannot just require registration of firearms, said registration scheme must be necessary to carrying out something else that the government has authority to do. Whereas we can obtain licenses to operate motor vehicles in public spaces without owning any cars, and can own cars without obtaining licenses to operate them in public spaces, it follows that the State can issue licenses to possess pistols without our registering the weapons, and that the registration scheme in § 400 which requires that the license to possess pistols be amended with each purchase or sale of a firearm has no nexus of necessity and is void. This relates to the section on Fleas and Camels, vide infra.
Having lost this case at the Appellate Court level, the Government didn't appeal it to the Supreme Court (lest it become national Precident) and dropped the matter instead.
The facinating case also never went to the Supreme Court, the Federal Government saw it would lose there as it had lost in the Federal Appellate Court and dropped the matter.
Mr John William Dalton received a semi-auto pistol modified to be a machinegun. He didn't pay the $200.00 "machinegun tax". When arrested and tried for non-payment of the machinegun tax, he protested to the trial Court that, since the semi-auto pistol had been manufactured after1986, and since the 1986 FOPA (vide supra) (inter alia) forbade post-1986 machineguns coming into the personal possession of Citizens, Mr. Dalton couldn't possibly pay the tax. The BATF was specifically forbidden (by the 1986 FOPA) to accept the machinegun tax on post-1986 weapons. The Federal Appellate Court agreed and threw out the district Court conviction. -->
20th century State court cases
"The statute is written as a total proscription of the mere possession of certain weapons, and that mere possession, insofar as a billy is concerned, is constitutionally protected.
"In these circumstances, we conclude that it is proper for us to consider defendant's 'overbreadth' attack to mean that the statute swept so broadly as to infringe rights that it could not reach, which in this setting means the right to possess arms guaranteed by sec 27."
Applicability: Our State also has a prohibition on prohibitions on weapons: Civil Rights Law § 4, which echoes Amendment 2 of the U.S. Constitution. Accordingly, a sweeping prohibition such as the statute at bar is unconstitutional.
"We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision might not seem compelling if debated as (p.15)a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment."
"Therefore, the term 'arms' as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and militiary defense. The term 'arms' was not limited to firearms, but included several handcarried weapons commonly used for defense. The term 'arms' would not have included cannon or other heavy ordnance not kept by militia-men or private citizens."
Comment: "Respect [of] the Principles" requires annulment of the statute at bar. As an aside on artillery: see commentary on Art 1 § 8 cl. 11 'Letter of Marque' above, and, historically, wealthy people (e.g. Jefferson and Washington), owned heavy ordnance cannon artillery. Also note, they did so as measured by them to fit their needs and wants, not to prove the edge of the envelope of legal ownership of heavy weaponry.
"[N]ot making applications available at the chief's office effectively denied members of the community the opportunity to obtain a gun permit and bear arms for their self-defense." -->
"We think it clear that our constitution provides our citizenry the right to bear arms for their self-defense."
Defendants comment: So does ours. U.S. Constitution Amendment 2 and New York Civil Rights Law § 4. We seek the restoration of this vital right.
"The pistols in question are not contraband. * * * Under Art. I, sec 23, Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and bear arms in defense of his home, person and property, with the limitation that this section shall not justify the wearing of concealed arms."
Comment: The handguns owned by Defendants are not contraband, either; they are necessary and proper to several uses as outlined above; New York State is hysterical in calling handguns a nuisance. Neither the Federalists nor the anti-Federalists thought our Right to Arms annulled nor discarded for want of a written bill of rights.
"As an example, we note that this ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting guns to and from such places of business. Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense. Several of these activities are constitutionally protected. Colo. Const. art. II, sec 13."
Applicability: Our State also has a protection on possession of weapons: U.S. Const. Amendment 2 and Civil Rights Law § 4. Accordingly, a sweeping prohibition such as the statute at bar is unconstitutional.
"It is our opinion that an ordinance may not deny the people the constitutionally guaranteed right to bear arms, and to that extent the ordinance under consideration is void."
Applicability: Our State also has a protection on possession of weapons: U.S. Const. Amendment 2 and Civil Rights Law § 4. Accordingly, a sweeping prohibition such as the statute at bar is unconstitutional.
"The law of this jurisdiction accords to the defendant the right to keep and bear arms and to use same in defense of his own home, his person and property."
Applicability: Our jurisdiction also has a protection on possession of weapons: U.S. Const. Amendment 2 and Civil Rights Law § 4. Accordingly, a sweeping prohibition such as the statute at bar is unconstitutional.
"The second amendment to the constitution of the United States provides the right of the people to keep and bear arms shall not be infringed. This of course does not prevent the enactment of a law against carrying concealed weapons, but it does indicate it should be kept in mind, in the construction of a statute of such character, that it is aimed at persons of criminal instincts, and for the prevention of crime, and not against use in the protection of person or property."(p.16)
Comment: Also keep in mind that there is no criminality that can be implied by carrying one's weapons concealed, either. To Keep and Bear, not To Keep and Bear Openly. Let's please, for once, read the actual words present in the actual Constitution, and treat them like a law? The other words of the Court noted here destroy the statute at bar in Brunners v. New York.
"It is equally clear that the act wholly disarms aliens for all purposes. The state ... cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property. The guaranty thus extended is meaningless if any person is denied the right to posses arms for such protection."
The statute at bar disarms non-New Yorkers who enter the state with their lawfully owned weapons. It is also a solemn mockery of our right of self defense.
"There is no qualifications of the prohibition against the carrying of a pistol in the city ordinance before us but it is made unlawful 'to carry on or about the person any pistol,' that is, any sort of pistol in any sort of manner. *** [W]e must accordingly hold the provision of this ordinance as to the carrying of a pistol invalid."
Applicability: Our jurisdiction also has a protection on possession of weapons: U.S. Const. Amendment 2 and Civil Rights Law § 4. Accordingly, a sweeping prohibition such as the statute at bar is unconstitutional.
"The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff."
While it is not specified which provision of which constitution is referenced in the Court's words, as the second amendment has been shown to be binding upon the state, it doesn't matter. The keeping and bearing of arms is not within the police powers of the state.
"We are of the opinion, however, that 'pistol' ex vi termini is properly included within the word 'arms,' and that the right to bear such arms cannot be infringed. The historical use of pistols as 'arms' of offense and defense is beyond controversy."
"The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions."
Defendants note: Let us honor the Constitution of the United States, and it shall be so in New York as well, that the right of the people to keep and bear arms shall once again be uninfringed.
"The people of the state have a right to bear arms for the defense of themselves and the state. *** The result is that Ordinance No. 10, so far as it relates to the carrying of a pistol, is inconsistent with and repugnant to the Constitution and the laws of the state, and it is therefore to that extent, void."
Applicability: Our jurisdiction also has a protection on possession of weapons: U.S. Const. Amendment 2 and Civil Rights Law § 4. Accordingly, a sweeping prohibition such as the statute at bar is unconstitutional.
"The second amendment to the federal constitution is in the following language: '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.' The language of section 11, article I of the constitution of Idaho, is as follows: 'The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law.' Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages."
Comment 1: Regulation and Prohibition have no intersection. Regulation describes how something may be done, prohibition declares that it shall not be done. Once something is prohibited, it is no longer regulated. New York's statute § 265.01 ¶ 1 is a prohibition on the exercise of a right. It is therefore unconstitutional.
Comment 2: The Idaho Court, like most of America, thinks of the Second Amendment to the Federal Constitution as binding the States.
19th century cases
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege."
Applicability: "[A] general deprivation of a constitutional privilege" is exactly what this pistol ban does. It is unconstitutional.
"We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. * * * One of his most sacred rights is that of having arms for his own defence and that of the State. This right is one of the surest safeguards of liberty and self-preservation."
Comment: We, Defendants, claim of the state the return of our handgun and our Right to keep and bear the same.
"The passage from Story shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."
Comment: Reference is to Joseph Story Commentaries on the (United States) Constitution, applicable sections quoted above in Barron, Judgement v. Stare Decisis. Again, the Second Amendment is held to be binding upon the states.
"'The right of the people to bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State."
Comment: Georgia had no bill of rights, the Court here referred to the Federal Constitution Second Amendment as binding upon the State.
"But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, [the statute of Northampton,] or portion of the common law, our constitution has completely abrogated it; it says, 'that the freemen of this State have a right to keep and bear arms for their common defence.' Article II, sec. 26. * * * By this clause of the constitution, an express power is given and secured to all the free citizens of the State to keep and bear arms for their defence, without any qualification whatever as to their kind or nature; and it is conceived, that it would be going much too far, to impair by construction or abridgement a constitutional privilege, which is so declared; neither, after so solemn an instrument hath said the people may carry arms, can we be permitted to impute to the acts thus licensed, such a necessarily consequent operation as terror to the people to be incurred thereby; we must attribute to the framers of it, the absence of such a view."
Comment: Whereas the right to keep and bear arms is without limit or degree, prohibition or licensure thereof is unconstitutional.
"For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise."
"But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."(p.18)
Comment: &Quot; [T]he right entire and complete", or, the Right Patent, is what we, the Defendants, seek to restore to life.
Summary: Amendment 2 applies to the States. State and federal Courts which have held that the Second Amendment does not apply to the States (e.g. Presser vs Illinois) have also asserted that the First and Fourth Amendments do not apply to the states either (or have relied on Supreme Court judgements which did so); thus case law and judicial tradition are flawed in this matter. Wherever any Court strives to deny the 2nd Amendment as binding upon the state or New York, the 14th Amendment, § 1, is amply able to resolve the matter: The 39th Congress intended the language of the 14th Amendment, § 1, to make state disarmament laws unconstitutional. This may also be denied: Slaughter House Cases, U.S. v. Cruikshank, Presser v. Illinois and Plessy vs Ferguson denied the meaning of the 14th Amendment, as have other examples of Judicial Intransigence.
Exhaustion
That we have not exhausted all open remedies before challenging the constitutionality of this statute does in no way "unripen" our challenge. From the judgement Moore v. East Cleveland, this support:
This Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted. See, e. g., Yakus v. United States, 321 U.S. 414, 446-447 (1944).
Prior Restraint.
This study is relevant to the case at bar to the extent that the State claims to License rather than Prohibit handgun ownership. Handgun licences may sought, but the applicant has no right to the license. Since the guidelines rest upon such ill-defined critera as "of good moral character" and since the discretion in issuing such licenses is extreme, this system of licensure is not only prior restraint for those who obtain a license, it is also unequal protection under the Law for those who don't.
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) n. 8 ("A licensing system need not effect total suppression in order to create a prior restraint").
"As a system of prior restraint, the Guidelines are presumptively invalid." Marshall dissent in Ward v. Rock Against Racism, 491 U.S. 781 (1989) referencing Southeastern Promotions, supra, at 558 and Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). -->
Equality before the Law.
Many State and Federal Government employees are (see § 265.20) exempt from § 400 permit requirements, and may possess handguns without permit and without fear of arrest or prosecution under this statute. Their right of self-defense is measurably greater (significantly less destroyed) than ours, showing this statute to violate the Equal Protection clause of Amendment 14 § 1 (Sentence 2 cl 3 "nor deny to any person within its jurisdiction the equal protection of the laws"). Argument is raised by the State that favored persons have a duty by reason of which they are armed of necessity, and that the permit requirements of this statute would, if enforced upon them, compromise their capacity to perform their duty. First: these favored persons are excused in presenting or using their firearms only in self defense. Thus, the duty of these favored persons which justifies their possession of firearms without permit, is the duty of self defense. We also have a duty of self defense, and this statute compromises our capacity to carry this duty into effect. Not only should we be as favored as the favored persons by reason of the 14th Amendment §1 sentence 2 cl 3 ("nor deny to any person within its jurisdiction the equal protection of the laws"), but because we have the same duty of self defense as the favored persons in consideration of which they are permitted without permit to possess firearms and bear them upon their persons.
Police Officers are not obliged to seek, obtain, or retain a permit to possess a pistol. It is necessary to the performance of their duty. Pistols are necessary to our performance of our duty, as well (the duty of defense of self, home, family, and property, the duty of being available to our Nation and State for it's defense, and the duty of being available to our fellow citizens in checking tyranny in government), but we are required to seek a permit and to accept the denial thereof as terminating our Right to Arms. This destroys equality before the law.
This section has to do with New York State statutes §§ 400.00 - 400.10, (licensing and other provisions relating to firearms (meaning handguns)). The provisions of this section are vague and overbroad to the point of being frankly unconstitutional on points of Due Process. They also implement an inequality under the law directly. This section of the Motion is relevant to the extent that New York State grants or generally grants licenses to (inter alia) police officers or judges, retired police officers or judges, or explicitly does not require a license of these favored persons. The heart of the matter is that the Constitution forbids anything that creates classes of people, and special privileges such as §§400.00-400.10 do exactly that.
In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. Kramer v. Union School District, 395 U.S. 621, 626 (1969), quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968).
Section 400.00 reads in part: No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true. No license shall be issued or renewed except for an applicant (a) of good moral character;... and (f) concerning whom no good cause exists for the denial of the license.
Although the reason for denial of the license must be stated concisely on the notice of denial, stating no more than "not of Good Moral Character" clearly fulfills the law.
In an era of "Instant Background Checks", where Federal law applicable throughout the United States finds 3 days sufficient to investigate, and many Congressmen campaign for a one-day background check, New York's statutory period of 6 months for processing the application is indefensible. Anyone seeking to procure this license because they have learned themselves to be targets of stalking will be dead and buried meat (if their fears were well founded) before they can hope to obtain this license, after which they may buy their handgun.
Making the name and address of the licensee to be a public record is an unreasonable breach of privacy. It's nobodies business who owns pistols, who carries them on a regular basis, or etc.
Licensees are required to apply for permission to purchase or sell a handgun, which permission, per the statute, may be denied. This wholly overbears upon the subject of free commerce.
Several paragraphs indicate that not only must one possess a license to possess handguns, each and every such weapon possessed must be registered on the license. Registration of firearms has been shown to be held by the Congress as violative of the Right to Arms. Also, under § 400, license holders must inform the Police every time we change County of Residence, as if we were registered sex offenders.
Another aspect of Equality before the Law is that, inspecting the Constitution, the Bill of Rights, and it's other Amendments, our rights deserve equality. Our right to handguns deserves equality with our right to books, our right to speech and press deserves equality with our right to arms. Several rights are stripped of the felon: voting and arms; several rights are enjoyed upon proving of qualifications: marrying, voting, and driving among them. One qualification: "good moral character", has been attached by legislatures and removed by the Supreme Court from various of these rights. For example, see the Equal Rights Voting Act and Oregon v. Mitchell, 400 U.S. 112 (1970). New York attaches this "Good Moral Character" qualification to the pistol permit application process. Absent the flaws taking the other 100 plus pages of this Motion, this clause renders the pistol permit law unenforceable, or at least requires that this "Good Moral Character" clause be stricken from the law.
"Good Moral Character" is at once overbroad and vague. When this statute arose (first decade of the 1900's) "Good Moral Character" excluded gays, lesbians, and others who are now mainstream, and, depending on the interviewer, excluded the poor, labor organizers, immigrants, Mormons, Socialists, Jews, Communists, Negros, and other socially deprecated groups and political and genetic minorities. Which of these is still not within "Good Moral Character" is unknown and will vary from interviewer to interviewer. Since it could depend on e.g. sexual orientation, which is otherwise not grounds for exclusion from basic civil, political, Constitutional, fundamental and/or natural rights, it is overbroad; since we can't tell what it means, as it has no statutory definition, it is vague, and cannot be reconciled with the obligations of Due Process.
Look upon the situation as seen by reasonably possible evaluators and see why we fail the Good Moral Character test, understanding that the facts would of course actually be written down in legally palatable terms:
While this is written tongue-in-cheek, it stands on a reasonable expectation that the past indicates the future. Racial profiling, political profiling, cultural profiling, it is all there, causing effects from denial of rights to prison sentences based on no more than "Innocent until presumed guilty". Rights should not hang on other's opinions of our opinions.
Self Incrimination.
Relevance: Upon entering the State, defendants became criminals awaiting discovery, because we brought our pistols with us. If we go ask for permission to keep our pistols, two things happen immediately:
First, we announce our criminal state to the Police. This cannot be compelled, by virtue of Due Process (5th Amendment, U.S. Constitution prohibition on self-incrimination).
Second, we are obliged to surrender our property to the State, with no compensation for the taking of this private property. The State seeks to excuse itself by allowing us to obtain our own compensation for that property by attempting to sell it, but this does not fulfill the burden laid upon the State upon taking private property for public purposes without just compensation.
And, we might not obtain either the permission nor, by sale, the compensation.
Haynes vs US (U.S. Sup Court 8-1 decision) showed that Felons cannot be obliged to register weapons, as they're prohibited from possession of that weapon; I am as prohibited as any Felon from possessing a pistol until it is registered and we are licensed, so we can't be punished for having an unlicensed pistol until we get the license, thereafter we are also immune to prosecution by reason of the license. This is a law defining the teeth of a dog that cannot bite -->
Conversion of Rights into Crimes:
The delicate interplay between government and the governed, particularly when the theory of government espouses as an axiom that just government arises "from the consent of the governed", is discernment of that critical consent, particularly as advancement in science and technology intersect with evolving notions of the limits of the consent. There is a foundation upon which to judge: the constitution, the many declarations of rights, and the blanket reservation of rights which is the Ninth Amendment. New inventions, whether birth control drugs or appliances, or smokeless powder and automatic weaponry, bring the legislature and the Courts into contest about what may be done on these new inventions, and within what may be done, what ought to be done. Due Process forbids conversion of rights into crimes; the legislature is not empowered to burden or abolish rights, and the Constitution marks out the Right to Arms. Conversation is had as to what arms are protected, and for whom and from whom. The following excerpt from Planned Parenthood v. Casey [505 U.S. 833, 848, 849] sheds applicable light:
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977);
Defendants challenge the State: What matter is more private, in the sense of being none of the government's durnd business, than whether we conceive new lives amongst us, save it be the defense of life from the predator? The Police powers of the State are to discern rape from consent, and to discern self-defense from manslaughter. It is none of the government's durnd business whether we defend our lives, nor how, and prohibitions upon handguns because some commit crimes thereby are as unconstitutional, by the words of the Supreme Court above, as laws that proscribe contraceptives.
Laws that obstruct the peaceable citizens from owning their personal choice of weapons with which to defend their lives are vile hypocrisy: "Ye may conceive new lives, or refrain as ye choose, but ye may not defend the lives ye may have but by the means we might, or might not, allot to that purpose.".
We are a Pro-Choice family: I choose .45ACP, my wife chooses .357Magnum, my 18-year-old daughter chooses .22, handguns all; my eldest son chooses 12ga. shotguns. Considering his taste in music, we understand.
More than Supreme Court writ stands on this subject: 18 USC 241 & 242 and 42 USC 1983, and many other sections besides, recognize that states may transgress by their writing of law, their enforcement of law, and in their adjudications thereupon.
This statute is unconstitutional as a conversion of a right into a crime.
Defendants
How much Infringement is too much?
Defendants liken Rights unto our own persons. We treasure Life, and right along side it Liberty, which, together or separately, are mocked absent capacity to Pursue Happiness.
Government, then, is likened to a strong servant, laden with arms, armor, trust, respect, power, and training.
When a servant invades the privicy or privacy of the employer of the servant, we hold such servants to be worse than burglars or thieves, because of the added element of betrayal of trust.
When Government invades the rights of the people, it stands too similar to rape to be ignored as a parallel: Rape commences with the entry upon intent, not the exit upon satisfaction. It is the first millimeter, not the last, which completes the crime. This statute infringes, sufficiently, to be deemed unconstitutional.
Judges of Fact and Law
Juries have the same power, right, and prerogative to judge a law as do Judges of the Courts. The supreme Court held criminal and civil trials in the 1790's, e.g. Georgia v. Brailsford (3 US 1 1794). The plaintiffs and defendants pleaded their cases to the Judges of the Supreme Court and the Jury. The Chief and Associate Judges of the supreme Court rendered their judgment on the law and their opinion as to the facts. Then, Mr. John Jay, Chief Judge of the Supreme Court, said this to the jurors as they were about to take all the above into their deliberation (emphasis mine):
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
Defendants judge this law to be repugnant to the Constitution and to our liberty thereunder, and call upon our Courts to judge likewise.
Defendants have harmed no-one, have harmed nothing, disturbed not the peace of any person, were not engaged in criminal activity of any kind, and were not citable nor arrestable for anything aside from Keeping and Bearing Arms. Defendants have done no wrong, they are clean of Mens Rea (guiltiness of mind), have committed nothing Mala En Se (inherently bad) neither have they violated anything Malum Prohibitum (bad by virtue of being prohibited) which the State has authority to prohibit. Defendants claim the natural, common law, common sense, and Constitutional right to keep and bear arms that are handguns.
Defendants hold the Government's actions in writing and enforcing this Statute to be hysterical, not in the comedian sense, but in the emotionally deranged sense of defective reasoning put into forceful action.
Usurpation, Contempt, and Hypocrisy in Government
The Bill Of Rights Limits The General Powers
In further comment on the scope of the deliberations of the Court in both Miller and the New York pistol ban, after We The People established a Congress with authority to lay and collect taxes, we took back, by the First Amendment, any portion of that power that intersects our publishing, buying, or possessing books. Ponder for a chuckle on the thought of Congress, or any state, laying a $200.00 tax on the printing or transfer of a copy of the Book of Mormon. As the First Amendment does not protect only books of popular religious, political or scientific discourse, the Second Amendment does not protect only firearms of a "kind in common use" in a current militia or army. The key, operative words are "Press" and "Arms" respectively. Similarly, Congress' power to regulate commerce cannot be understood as putting in their hands power to determine which books we may ship, nor which arms we keep or bear, however one would by verbal origami seek to justify such a misconstruction of the limited power. While on the one hand, powers granted are generally understood as limited in scope but not in degree within that scope, it must be understood, on the other, that those degrees are in fact limited by the provisions of the Bill of Rights, which provisions also limit the police powers of the States.
The statute at bar exceeds the limits placed on the general powers, and is therefore unconstitutional.
The Proud Fools' Hypocritical Gamble
Let them who would ban handguns first give up their armed guards. It is no surprise that they who write laws disarming the common citizen and adjudicate cases arising under them have open means to ample armed security, frequently paid for by others. They are willing to bet our safety, but not their own, on their fool's gamble that disarming the victims of violent crime will cause violent crime to cease.
This statute implements unequal protection in reality as well as under the law, and is unconstitutional.
It is important to the pride of the handgun prohibitionists and to their hunger for supremacy that we be beholden to them for security, this is the driving factor behind the determination to destroy the Right to Arms. It is likewise essential to their sense of Divine Right that we cannot say NO and make it stick. It is the same disease of defective reason that made private property of Negros, which domestic slavery the Civil War transformed into civil slavery. Voter qualification tests, disarmament statutes, and jury exclusions hoarded true citizenship, depriving the Hated Ones. The Industrial Revolution brought in the factory and the need for cheap, abundant, expendable, and replaceable labor, and a new breed of Negro was born: the factory worker. When these sought to form Unions to wrestle with effect against the legal power of a government drunk on pride and the money of industrial barons, Police dispersed them violently. Hired guards within the corporations, and professional security companies, became mercenary bands of armed killers, dispersing striker camps with machine gun and cannon fire.
This statute implements a Badge of Slavery and is unconstitutional under Amendments 13 and 14.
During the time period of the above, New York's anti-pistol law came into effect, to make sure that persons of "good moral character", or in other words, supportive of the power brokers of the System, could get guns, but strikers, unionizers, labor-oriented political party heads, and the poorer common folk could be kept disarmed. We have not been able to learn what the fees for this license were in 1909, if it was the same as today, $25 was the cost of a pistol, making it a 100% tax, easily affordable by the upper and middle classes, but crippling to workers whose weekly wages were $15.00. On this basis, this law is frankly racist. Italian immigrants, then Swedish immigrants, then Polish immigrants, and others since found out you don't have to have a black skin to be sent to the back of the Civil Rights bus in New York.
Let the Court be ashamed of this unconstitutional law.
Penny Wise and Pound Foolish
Enforcing this law against peaceable citizens is just plain stupid. Every hour spent investigating the peaceable citizens application for a permit to exercise a right is an hour not spent investigating a crime. The money spent warehousing information, issuing licenses and investigating the backgrounds of peaceable citizens is money wasted. Should a license be deemed necessary, our driver's license should suffice. When crime is committed, let the money be spent jailing the offender, not already spent grinding useless paper. This is misappropriation of public funds.
The People would rather the money wasted here were spent enlarging the jails for the recidivists and violent criminals in our midst so that there would be no cause to release violent offenders on parole and probation with little to no jail time, and the trial time spent convicting offenders against the public safety of their crimes. Defendants know personally of burglars and violent assailants let off with no significant penalty whatsoever, ostensibly because the system is overloaded.
This statute is unconstitutional as repugnant to Civil Rights Law § 2: Authority arises from the people, and we don't consent to this law.
The Fleas of the Camel
All will agree that no amount of grooming will transform a camel into a horse.
The Heart of this Matter is discerning the camel of a state-owned prerogative to permit restricted possession and bearing of limited types of arms to the extent the State pleases, from the horse of a Right Patent to Arms belonging to the common folk.
Changing the word "firearm" to "handgun", or any other vocabulary exercise, is flea-grooming. Moving the prohibition from the "Offenses Against Public Safety" to "Anticipatory Crimes", or any other juxtapositional shell-game is flea-grooming. A narrow order, striking only the word "firearm" from ¶ 1, and saying no more, leaves much room for the State groom the camel and to continue to parade the re-groomed camel as a horse. Any order by the Court that leaves room for the state to retain the effect of an invasion of the Right of Arms by changing how the effect manifests in the statutes is an order requiring certain fleas be moved or removed, not an order requiring the defendant's horse be surrendered to them. Of course, leaving the statute intact, while within the power of the Court, is calling a camel a horse, in which case the fleas are not the problem.
CONCLUSION
The record on the Right of Arms is overwhelmingly consistent. As written into our history, the Constitution and Bill of Rights, acts of federal and state origin, including acts legislative, executive, and judicial, taken together show with overwhelming consistence that the Right to Arms was individual, uninfringeable by federal or state authority, and included handguns. We have seen that all evidence to the contrary comes from racist pride and judicial intransigence.
Defendants move the Court issue an order to the effect: "The Right of the People to Keep and Bear Arms shall not be infringed." Whether any mention of us as a people being trained or engaged in training ourselves is not at bar, therefore, the order may, but need not, cite a preamble such as "A well regulated Militia, being necessary to the security of a Free state,". The order may be Capitalized in the style of Millenial English, rather than Colonial, so long as the effect of the order does not become vulnerable to ambiguous readings. Above all, Defendants desire to return to their home with their handgun and their right to keep and bear the same, without fear of future need to bring this matter, in whatever legislative fish wrap, before this Court or any other.
BIBLIOGRAPHY
Ping to some of the 2A folks I know of; please pass this on with reference to NovemberCharlie's posts, starting at Post No. 34; plus the wealth of other links and references from many others.
Cheers.
/\\ilt
From roadrunner@madbbs.com Wed Feb 21 17:15:44 2001
Date: Wed, 21 Feb 2001 20:11:08 -0500
From: Brian Brunner
To: Michael Pelletier
Subject: Re: [ca-firearms] Re: old topic private sales?
On Wed, 21 Feb 2001 13:59:08 -0800 (PST), you wrote:
>On Wed, 21 Feb 2001, Brian Brunner wrote:
>
>> The key is the work 'people' which included whoever was qualified to
>> vote. *that* excludes escapees and the such like.
>
>Is this Brian Brunner of New York? If so, please update us on the
>outcome of your motion to vacate at
>http://www.firearmsfreedom.net/BrunnerMotion.html
>
> -Michael Pelletier.
It is the same! Howdy!
Arrrgh! How to summarize...
I contacted lawyers 'savvy' on the second amendment from all sources I could imagine, and every one fell into one of three categories:
1: too busy
2: you're wrong, it's constitutional
3: I'll help you keep out of jail.
The law in question is NYS Penal Code 265.01 para 1 'illegal possession of a weapon' (firearm, meaning any pistol or revolver).
Got an attorney to agree to help.
He's helping *his* way.
I wrote a motion to dismiss (pre trial motion challenging the accusation), he arranged a plea bargain (disorderly conduct, no fine or time, $50 surcharge, reservation of right to appeal the constitutionality of the original charge). I converted my motion to dismiss to a motion to vacate (post-conviction challenge) and he 'didn't get around to' filing it
So I complained to the Attorney Grievance Committee for the 8th Judicial District (Western Upstate NY), and the attorney agreed to the mediator to get onto the job. I sent the last papers he needs in order to formally file the appeal, and got back the return receipt today. I'll call him tomorrow, if he hasn't filed by Monday I start the next round of nastygrams.
The plea was entered in July, this appeal should have been filed in August.
Arrrgh! As Soon As Lawyerly Possible, I'll get a copy of *exactly* what was filed, and compare it jot and tittle with what *should* have been filed. Then I submit corrections, and we wait for the town Court judge to read 114 pages of history and case law.
Costs incurred so far: $750. plus gas, time, toner cartridges, and such.
Thanks for asking!
Typical, unfortunately. My few dealings with lawyers (divorce/Family Court in NYS) showed me you need to keep a very tight leash and parse every sheet and sentence they submit 'on your behalf'. My first one needed a choke-chain; I fired the second for incompetence; the third one (finally after much rewriting) got the job done as I and my ex wanted. Thanks for the info.
Freedom Is Worth Fighting For !!
The Right Of The People To Keep And Bear Arms Shall Not Be Infringed !!
An Armed Citizen, Is A Safe Citizen !!
No Guns, No Rights !!
Molon Labe !!
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