Congress, the Second Amendment, and the Right of Arms.
The Federal Militia Act (1792)
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of the age of eighteen years, and under the age of of forty-five years (except as hereinafter excepted) shall severally, and respectively be enrolled in the Militia by the Captain or commanding officer of the company, within whose bounds such citizens shall reside... That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, [..other equipment...]; or with a good rifle, [...other equipment...]; and shall appear so armed, accoutred, and provided, when called out to exercise or into service... and also, for Dragoons: Each Dragoon to furnish himself with ... a pair of pistols, a sabre, and cartridge box to contain twelve cartridges for pistols.
Quoted from Clayton Cramer "For The Defense Of Themselves And The State" pp 8 & 12, with attribution: from Joseph Gales, ed., Debates and Proceedings in the Congress of United States, (Washington: Gales & Seaton, 1843), hereinafter cited as Annals of Congress, 2 Cong., May 8 1792, 1392 and Charlene Bangs Bickford & Helen E Veit, ed., Documentary History of the First Federal Congress 1789-91, (Baltimore: Johns Hopkins University Press, 1986), 5:1465.
The second Congress exercised it's authority to provide for organizing, arming, and disciplining the Militia, by laying the burden of owning battle-quality weapons upon almost every free white adult male in the United States. These persons were obligated by law to possess a firearm and a minimum supply of ammunition and militiary equipment. This statute, incidentally, remained in effect into the early years of the 20th Century as a legal requirement of gun ownership for most of the voting population of the United States. Citizens were not exempt by virtue of belonging to a state that forbade weapons, or certain weapons; it would be nonsensical to do so: Federal law supercedes and annuls state law where the two both operate on the same object, and where the Congress has specific authority to write the law in question. As it is obvious that the States cannot frustrate the Congress in their assigned duty, the States lack power to outlaw possession of weapons. Conversely, if the Second Amendment does not apply to the States, then this law violates the Tenth Amendment protected Police Powers of the States.
The Congress has never given the States leave to make possession of any weapon unlawful. Nor could it do so. Congress is not only restrained from disarming us to any degree, it is under a burden of duty to see to our arming sufficiently that we may protect our liberty against all enemies: foreign, domestic, and elected. If this duty is neglected, it returns to the States and to the People (see the 10th amendment); if the States neglect our general arming, the power returns to us, the people (see the 10th Amendment).
This requirement to own specified weapons did not declare a maximum amount of weaponry we had any right to own, but declared a minimum amount of weaponry we were required by Federal law to own. Note that this minimum included handguns.
Since it is outside the powers of any State to render a Federal law without effect (if the Federal law operates on Congress's enumerated responsibilities), and since providing for organizing, arming, and disciplining the Militia is expressly a Federal responsibility, THEREFORE, state weapon prohibition laws are generally violative of federal jurisdiction, and are void. The statute at bar forbids ownership of weapons Congress has power and authority to require us to own, and is therefore VOID.
The Freedmens Bureau Act of 1866, the Civil Rights Bills, and the 14th Amendment
With the end of the Civil War, slavery was declared ended. The Southern States, prohibited from using chains of iron on the black man, wrote chains of parchment called The Black Codes, which (inter alia) made it illegal for freemen to exercise basic civil, political, and personal rights; including the right to purchase, own and carry firearms. Congress responded to this challenge repeatedly, through the passage of the Freedmens Bureau Acts, the civil rights bills, the Militia Disbandment bill, and by proposing the Fourteenth Amendment. These were discussed above.
10 USC §§ 311 & 312
The act established the National Guard. The 1990's National Guard, and similar state-operated forces, had, in the 1790's, the name "select militia", and were held in great dread and general derision as little better than a standing army. In the 1700's, the Kings Army enforced unpopular laws (popular laws needed little enforcement). Our National Army has the respect and affection of the people, largely because it is not employed in enforcement of laws within the United States.-->
This Statute is important here mostly for what it is not.
It is obvious that Congress cannot re-define who is a person, so as to exclude people not in favor with government. Person is a term of the Constitution itself, and can only be redefined by an amendment to the Constitution.
Likewise, the term Right and Property, Tax and Regulate cannot be redefined by a federal law, as these are term of the Constitution.
Militia is also a term of the Constitution, and cannot be redefined by Congress, only by an Amendment.
Therefore, the terms of 10 USC §§ 311 & 312, being "Organized Militia" and "Unorganized Militia", have NO IMPACT on the Second Amendment nor what is protected thereunder, and in fact have no impact anywhere outside of 10 USC §§ 311 & 312 and statutes that specifically reference these two sections of federal law.
It also is significant to understand that these sections draw upon Congress's authority (Art 1 § 8 cl 12) to raise and support armies, not their authority (Art 1 § 8 cl 15 & 16) to do anything with the Militia, nor the Militia of the several States. This is why the National Guard can be compelled to serve at the Presidents Order in foreign Nations (Central America and Saudi Arabia), whereas the Militia of the several States can only be called out "to execute the Laws of the Union, to suppress Insurrections, and repel Invasions".
The Framers, the Congress, US v. Miller, and Perpich v. Dept. of Defense all hold that the militia is more than the State and National Guards, it is the whole of the people.
The National Firearms Act of 1934 (NFA)
Before passage of the NFA (taxation and registration of machineguns and sawed-off weapons), there was detailed discussion between the Attorney General and lawmakers as to how to pass the law without violating the Second Amendment. These discussions illustrate that lawmakers considered the Second Amendment an individual right. During one crucial hearing discussion, Congressman David J. Lewis inquired about reconciling the bill with the Second Amendments individual right to keep and bear arms:
MR. LEWIS: Lawyer though I am, I have never quite understood how the laws of the various States have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms.
Defendants comment:
The Federal Firearms Act of 1938
In 1938, Congress passed the FFA, which regulated interstate commerce in firearms and prohibited possession of firearms by felons where an interstate nexus could be demonstrated. The FFA raised concerns over the infringement of rights guaranteed by the Second Amendment as well as highlighted Congressional support for individual gun ownership. In the early discussions on Second Amendment limitations, Senator William King stated to Senator Copeland, the chief sponsor, that "we have a constitutional provision that right of the people to keep and bear arms shall not be infringed ... [and I] was wondering if this bill was not in contravention of the constitutional provision."
Denying that the FFA infringed upon the Second Amendment, Copeland argued that
[t]he part relating to militia is important ... [as the] first part of the constitutional provision.
Senator McKellar responded,
while [the Second Amendment] refers to the militia, the provision is all-inclusive and provides that the right of the people to keep and bear arms shall remain inviolate.
Since the FFA purportedly related to regulation of Interstate Commerce, not individual gun ownership, little more mention of the individual right to keep and bear arms under Second Amendment protection was discussed. In support of individual gun ownership, the Senate Committee explained that the FFA was designed to impact criminals, not law abiding citizens:
The bill under consideration...is designed to regulate the manufacture of and the shipment through interstate commerce of all firearms. ...It is believed that the bill above referred to will go far in the direction we are seeking and will eliminate the gun from the crooks hands, while interfering as little as possible with the law abiding citizen from whom protests have been received against any attempt to take from him his means of protection from the outlaws who have rendered living conditions unbearable in the past decade.
Defendants note that
The 1941 Private Property Acquisition Act (PRA)
Congress asserted the Second Amendment as an individual right by exempting privately-owned firearms from the PRA. Less than two months before Pearl Harbor, Congress passed legislation authorizing Presidential requisition of many properties with militiary uses from the private sector upon payment of fair compensation.
Protections for Second Amendment rights were included in the PRA:
Nothing contained in this Act shall be construed-
- to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),
- to impair or infringe in any manner the right of any individual to keep and bear arms...
Originally, the bill did not include language protecting the individual right to keep and bear arms, but the House Military Affairs Committee added these provisions, noting:
It is not contemplated or even inferred that the President, or any executive board, agency, or officer, would trespass upon the right of the people in this respect [to keep and bear their privately owned arms]. There appears to be no occasion for the requisition of firearms owned and maintained by the people for sport and recreation, nor is there any desire or intention on the part of the Congress or the President to impair or infringe the right of the people under [amendment] 2 of the Constitution of the United States, which reads, in part, as follows: "the right of the people to keep and bear arms shall not be infringed." However, in view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, your committee deem[s] it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms. In so doing, it will be manifest that, although the Congress deems it expedient to grant certain extraordinary powers to the Executive in furtherance of the common defense during critical times, there is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution.
This provision was essential for the preservation of the individual right to keep and bear arms because if private guns were registered, the government could confiscate them. Compare the retention of private guns with the plight of the National and State Guard units organized under the Dick Act (10 USC §§ 310 & 311): the War Department began taking back all the rifles it had previous issued to them. If, as the gun banners contend, the entire militia is only the "select" militia (the State and National Guards), then the Second Amendment is the first guarantee of the Bill of Rights to cease to exist. Under the PRA, the State and National Guards were disarmed, and they may again be disarmed again in the future. Please note that the Government held, in it's 150th year of Stare Decisis, that registration of privately owned firearms was unconstitutional under the Second Amendment.
The 1968 Gun Control Act (GCA'68)
Key provisions of this act, particularly as applicable to the case before the Court, have their review under Due Process in United States v. Bass and Lewis v. United States, vide infra.
From Lewis,
As the Court has previously observed, [the GCA] "was hastily passed, with little discussion, no hearings, and no report." United States v. Bass, 404 U.S. 336, 344 (1971).
Defendants suggest that from the comment shown, that the GCA was a panic-reaction, or "drive-by legislation", accordingly the GCA should be taken with a few tons of salt as a statute not based upon investigation or findings of any particular kind. It should be noted that this law made great inroads against the freedom of the people to exercise their Right of Arms, breaking with 177 years of Stare Decisis.
In general, it is noteworthy that the powers to legislate are bounded on the one hand by the language of the instrument establishing that power, and on the other by the Bill of Rights. This is as true of State legislative powers as it is of Federal legislative powers.
It also is worthy on note, first, that the language of the debates surrounding the writing of the GCA include note of the right of the people to keep and bear arms as an individual right; and, second, that the Congress in 1986 wrote the FOPA (vide infra) to increase the protection of this right by decreasing the power of the GCA.
The Consumer Product Safety Act of 1976 (CPSIA)
When Congress authorized broad, sweeping powers to the Consumer Product Safety Commission, there was a concern that over-regulation would impact the individual gun ownership. An exemption from the law was created for the manufacture and sale of firearms or firearms ammunition. Pub. L. 94-284, Sec. 3(e), May 11, 1976, 90 Stat. 504, provided that:
The Consumer Product Safety Commission shall make no ruling or order that restricts the manufacture or sale of firearms, firearms ammunition, or components of firearms ammunition, including black powder or gunpowder for firearms.
It is clear that this amendment was adopted specifically to protect individual gun owners from intrusive and overbearing government bureaucracy and the restrictions that could occur. Although the Consumer Product Safety Act does not specifically invoke the Second Amendment, the CPSIA does reflect Congresss consistent desire to protect individual gun ownership. -->
The Report of the Subcommittee on the Constitution in 1982
Reference 97th Cong., 2d Sess., The Right to Keep and Bear Arms, 83-109 (1982)
The United States Senate declared it's understanding of the meaning of the Second Amendment in the February 1982 Report of the Subcommittee on the Constitution of the Committee on the Judiciary in the 97th Congress, "The Right to Keep and Bear Arms". It was a unanimous, bipartisan and strongly-worded Report supporting the individual right to keep and bear arms.
The report starts with the note:
The values of the Framers of the Constitution must be applied in any case construing the Constitution. Inferences from the text and history of the Constitution should be given great weight in discerning the original understanding and in determining the intentions of those who ratified the Constitution. The precedential value of cases and commentators tends to increase, therefore, in proportion to their proximity to the adoption of the Constitution, the Bill of Rights or any other amendments.
Powell v. McCormack, 395 U.S. 486, 547 (1969).
The report cites the common law as containing an individual right to arms which the Defendants have illustrated, supra.
In his opening remarks, Senator Orrin Hatch wrote:
What the Subcommittee on the Constitution uncovered was clear--and long-lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.
Sen. Dennis Deconcini echoed respect for the Second Amendment, quoting Thomas Jefferson and Samuel Adams and noted:
The right to bear arms is a tradition with deep roots in American society I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts.
The report then quoted Framers of our Constitution, Legal Commentators of the time, and various court cases. The concluding paragraphs destroy the notion that the "militia" is the National Guard of today and reaffirm the Second Amendment as an individual right:
That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia" This Congress chose to do in the interests of organizing reserve militiary units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).
This being the word of Congress on the matter, and the Congress being co-equal with the Courts and the Presidency, nay-saying this statement requires the nay-sayer to bear the burden of proof of their assertion.
The Firearms Owner Protection Act of 1986 (FOPA)
Congress again declared the individual nature of the right to keep and bear arms in passing the FOPA, by finding that:
(1) the rights of citizens
(A) to keep and bear arms under the second amendment to the United States Constitution;
(B) to security against illegal and unreasonable searches and seizures under the fourth amendment;
(C) Against uncompensated taking of property, double jeopardy, and assurance of due process of law under the Fifth Amendment; and
(D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and
(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law abiding citizens for lawful purposes."
The FOPA enforces the Second Amendment protection through prevention of registration of most firearms by providing:
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
The FOPA continued the no-registration policy of the PRA. This protection even carried over to appropriation budgets of the Bureau of Alcohol, Tobacco and Firearms (BATF). Congress has included the following provision in every BATF appropriation act since 1978:
Provided, That no funds appropriated herein shall be available for administrative expenses in connection with consolidating or centralizing within the Department of the Treasury the records of receipts and disposition of firearms maintained by Federal firearms licensees or for issuing or carrying out any provisions of the proposed rules of the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, on Firearms Regulations, as published in the Federal Register, volume 43, number 55, of March 21, 1978....
The Brady Handgun Control Law of 1993
The Congressional prohibition on firearm/firearm-owner registration is reaffirmed again in the Brady Law. Section 103 dealing with the National Instant Criminal Background check system reads in part:
(i) Prohibition Relating To Establishment of Registration Systems With Respect to Firearms. - No department, agency, officer, or employee of the United States may --
(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or
(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code, or State law, from receiving a firearm.
This portion of Brady continues the policy from the Constitution forwards, all of which specifically acknowledges the individual right to keep and bear arms as declared in the Second Amendment. -->
18 USC §§ 241 & 242
These sections of Federal Criminal code serve to show that States, and the officers thereof, are guilty of a felony if they invade (or conspire to invade) the Constitutional rights of the Citizens. That these officers wear a badge or a nice suit or a black robe gives no immunity to this felony statute. They may be enforcing a State law, and still be guilty of this felony, because State law does not shield the State, nor Police, Prosecutors, or Judges from Federal law operating in a Federal sphere. Section 5 of Amendment 14 "Congress shall have power to enforce, by appropriate legislation, the provisions of this article" puts the protection of the "privileges and immunities of citizens of the United States" and the guarantee of their rights of Due Process within the Federal sphere.
This serves to show that various state law and case law gimmicks used to excuse State officials in the denial of Constitutional Rights is rebellion, by the state and those state officers, against the Constitution and Laws of the United States, which do surely protect Constitutional Rights from state enfringement (elsewise there is nothing for these sections to enforce).
§§ 241 & 242 are as old as the 14th Amendment. They came into existance first during Reconstruction, and the cause that provoked it, according to the Congress that wrote both the 14th Amendment and this Statute's ancestor, was State officers and KKK gangs disarming black folk, and then perpetrating outrages of numberless varieties upon the now helpless Black citizens, from denying them the right to vote, to robbing them of household goods and burning down their houses, to murder. Everywhere these horrors fell upon the Black folk of the Southern States, disarmament went first, so that these American Citizens could not resist a criminal government.
Defendants hold that the Legislature of the State of New York did conspire to deprive the Brunner family (and virtually all of New York State) of their Right to Arms under the Second and Fourteenth Amendments to the United States Constitution by the act of writing this statute, that the four Police officers who obtained and served a Warrant seizing the handgun and arresting Defendants conspired voluntarily to perpetuate this invasion of rights, personalizing it against the Brunner family, and that the Judges and Prosecutors who have had this matter in their hands, who have not promptly slain this statute, do voluntarily join this conspiracy to deprive citizens of the United States of their Right to Arms, and are properly within the grasp of this Federal Felony Statute.
42 USC § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The attitude of many Police Officers and Courts, that Laws are sacred and Rights can go fend for themselves, is in sharp contrast with the intention of the Authors of the 14th Amendment, whose actions in writing that Amendment and this Law provided a means to sue Police and Courts who enforce Unconstitutional statutes, for all they are worth. This law puts every officer of every State on Notice, that an unconstitutional statute is to die by their hands as soon as it enters their hands; elsewise they, the officers of a State, by carrying out and putting into effect an unconstitutional statute, are personally liable for invading the rights of a citizen of the United States. For this they may be found liable for damages of bankrupting magnitude.
This statute is also as old as the 14th Amendment and 18 USC §§ 241 & 242, and serves to protect rights, by allowing the Citizenry to bring the wrongdoers before a federal Judge independently of the Prosecutor, and they may do so in addition to any prosecution. It relieves the plaintiff of proving conspiracy, of pursuing violators in groups, and allows for joint and several damages claims.
New York State and the Right of Arms.
Constitution of the State of New York, 1777, Art XL
(carried over in the 1821 Constitution)
XL: And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defense; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.
(The Bill of Rights, a documentary history; Bernard Schwartz; Vol I; 342.73S; 1971; pp312, emphasis added).
Emphasis 1-4 show a duty to be armed laid upon every man, personally, that they may serve, personally.
Emphasis 5 shows what type of weapons and materiel was to be in our possession and provided to us by the State, and that this was in proportion to the inhabitants, not in proportion to the number enrolled in some select group.
New York State Bill of Rights
New York State Civil Rights Law
§ 4: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed."
This section has a long history, the location of this guarantee to the People of the state government's restraint upon itself changes as the statutes are reorganized and revised, and include
This provision appears in the Declaration of Rights of William and Mary (1689 ¶7), in the United States Constitution (2d Amendment) and in the Revised Statutes of 1828 (Pt 1, Ch 4, § 3).
Plainly, either this Civil Rights law means nothing, or criminal possession and peaceable possession of a handgun must be distinct, and the latter cannot be a crime. The collision between, on the one hand, the U.S. Constitution Amendment 2, this Civil Rights law section, and the Right of Arms, and, on the other hand, prosecutions under the statute at bar, must destroy either one or the other. Defendants inspect two New York State Appellate Court Reviews of this law, showing how utterly the Right to Arms, Due Process, and Common Sense are disregarded together:
Lawyer URL: 84 Misc.2d 110, 375 N.Y.S.2d 826 (1975)
Assertions, such as the Court's here, simply lack sanity:
A person's right to bear arms, as guaranteed by Federal Constitution [Amendment 2] and defined in this section does not extend to pistols or other readily concealable weapons; rather, those guarantees protect only right to be armed with weapon suitable for use by militia in warfare and for the general defense of the community.
This is 5 pounds of nonsense in a 2 pound bag. The very grounds for asserting that handguns are not covered compels the conclusion that handguns are covered.
The complaint of the Court in Guida v. Dier seems to hinge upon concealability; concealability is at times essential to militiary operations (cramped quarters aboard ships or planes, E&E (escape & evasion), and CQB (close quarters battle)), and occasionally required in Community Defense operations (just ask undercover cops about their primary weapon, and the uniformed troops about their backup weapon). It is just plumb stupid to assert that "militia in warfare" weapons are covered, which includes RPG's, demolitions, machineguns, and more, and then to assert that it does not cover handguns. Vide Supra, U.S. Const Art 1 § 8 cl 11 "Letter of Marque and Reprisal" about keeping herds of elephants freely but facing sever penalties for keeping a mouse.
Lawyer URL: (3 Dept. 1943) 267 A.D. 64, 45 N.Y.S.2d 63, affirmed 293 N.Y. 846, 59 N.E.2d 439, Motion Granted 294 N.Y. 699, 60 N.E.2d 847.
Here we find sloppy research by the Court, creating a judgement that is self-shaming. The Public Press propagandizes about "junk guns", Moore v. Gallup should be seen as Junk Government.
First the Court noted that the language of the Civil Rights law § 4 was essentially the same language and effectively the same meaning as the U.S. Constitution Second Amendment, and then applied the reasoning of Federal judgements upon the Second Amendment in State criminal matters.
U.S. v. Cruikshank and Presser v. Illinois are cited by the Court as grounds to hold that the Second Amendment means nothing to the State. For this to be more than annotational graffiti, this must be an attempt by the Court to justify an inference that New York State's Civil Rights law § 4 is likewise inapplicable to the state of New York. The Cruikshank and Presser judgements did assert that the Second Amendment meant nothing to the States, riding on the doctrine of Barron v. Baltimore (vide supra), these decisions also held that the 1st and 4th Amendments likewise meant nothing to the States. Whereas the 1st and 4th Amendment are now held by the Supreme Court to mean everything to the States that they mean to the Federal Government, and this due to the 14th Amendment, it is more reasonable to assume the Second does also, than that it doesn't. The intended effect of making this Civil Rights law was pretty clear: to instruct the judges of the State that the Second Amendment does (in every measurable effect) apply to this state. The Court writing Moore v. Gallup, however, assumes it does not, all facts to the contrary notwithstanding.
Then this judgement declares a socialist, or collectivist view: that we have no individual right to keep and bear arms, but when called to militia duty (per U.S. v. Miller 1939) we're to appear with arms we own, and then exercise our rights to militia duty. This is insane. Do our guns materialize out of thin air upon the announcement of a Militia Call-up? According to the Moore v. Gallup Court, we have no rights to our weapons until then, which re-writes the Civil Rights law § 4 to say "the right of the people to keep and bear arms when called into actual militia service cannot be infringed." Such an rewrite of § 4 is outside the authority of the Judiciary, and renders the entire construction of § 4 absurd.
Then the Court references other gun cases, as if to bolster it's logic, but this only served to show that valid clues are mighty scarce on the Appellate Court bench.
The minority opinion in Moore v. Gallup, written by Judge Hill, shows some coherency with history and constitutional intent:
The several statutes which are known as the Sullivan Law, were enacted in an effort to prevent, or make more difficult, the obtaining of weapons by the criminal classes or by those who might use them in connection with crime. If the statute is extended beyond that scope and field, it is unconstitutional and infringes the right of the people to keep and bear arms. The need of the citizens to become proficient in the use of firearms is now [1943] brought strikingly to our attention. Six hundred thousand of our citizens in cities have sat in shelters at the top of tall buildings and in the country on lonely hillsides every hour, day and night, for more than eighteen months. Unless the home defense authorities were foolishly and unnecessarily panic-stricken there was some danger, no matter how slight, that a foreign foe would land or disloyal residents would take to the air in a hostile way. Under those circumstances, a man of the type of this petitioner who could shoot with accuracy, would be a more useful citizen that one who, if attacked, could only throw a bootjack at his assailant.Looked at soberly, this statute assumes we are all presumed to be probably of the criminal class (whatever that really is), as we are all prohibited from possession of handguns, or else this statute does in fact extend far beyond it's intended scope and field. This presumption of guilt, intrinsic in all prohibition of ownership statutes, and most licensure and permit regulation statutes, is not consistent with the Constitution of the United States under Due Process obligations.
We, the defendants, will gladly research and debunk any "precedent" the Court desires to cite to support this disgraceful statute. Our desire, above all, is to see the Right of Arms restored to it's proper place, whereupon we may, with peace, sit in the front of the Second Amendment Street bus.
This statute conflicts with the Civil Rights laws of the state of New York; Defendants claim the Right named herein and an immunity to the prohibition asserted by the statute at bar. This statute is unconstitutional and void.
New York State Penal Code § 1.05
The Introductory paragraph of New York State's penal code, § 1.05, sheds some interesting light. There, the intention of the entire Penal code is set forth: to proscribe, or make into a crime, conduct which "unreasonably and inexcusably" causes or threatens "substantial harm" to individual or public interests. Reason has it that whatever is found in the penal statutes shall conform to this purpose, or shall be deemed in excess of the legislative authority of the State.
At the very least, a statute that does not conform to this purpose cannot be an element of the penal statutes but must be located under some other chapter of the statutes. To hold otherwise is to assert that the statutes are of full force upon the people, however incoherent they may be; that no limit stated anywhere is applicable anywhere, in fine, that legislative power is as absolute as it is arbitrary. We hold the legislative power to be neither. ("...It is prescribing limits, and declaring that those limits may be passed at pleasure..." (Marbury v. Madison 5 US 137 (1803))
The obverse, the contention that mere Keeping and Bearing Arms is, en se, unreasonably and inexcusably harmful or threatening, and therefore within the Police Powers of the state, is to hold that the state conventions on the ratification of the Constitution, notably New York's Convention, in requiring a Bill of Rights including a Right to Keep and Bear Arms, demanded, in effect, a Right to Unreasonably and Inexcusably Cause or Threaten Harm to be made the Supreme Law of the Land. Such a contention is absurd. Equally absurd, the contention that the House proposed, and the Senate concurred, and the States ratified, "A well regulated militia being necessary to the security of a free state, the right of the people to unreasonably and inexcusably cause or threaten harm shall not be infringed." We sought no license from ourselves to cause or threaten harm to each other in 1789, nor did we grant such in 1791, nor do we think to construe, from the Second Amendment or anywhere, a "Right to Be Unreasonably and Inexcusably Threatening Or Harmful Without Cause", in 1999 or 2000. We sought and obtained, in 1789, in 1791, and hold now in 2000 and beyond, a right to prevent or repel harm to our persons, our property, or our personal and public liberty, whether by individuals or by the state, through the proper use of shootin irons, including handguns. This statute is as contrary to our reserved rights as one forbidding membership in a particular Church.
Abuse of the Right to Arms, such as wrongfully damaging or destroying property (vandalism or mischief), wrongfully injuring or killing persons (assault, battery, and or murder, or the attempt or intent thereunto), or unreasonably and inexcusably casting an unhealthy fear over other people's sense of freedom and security (brandishing or reckless endangerment) are proper subjects for criminal statutes in the penal code. Mere ownership of a handgun, or of a camera, or of a mouth, cannot by itself be construed to be the substantial harm of assault, or of pornography, or of slander.
New York State Penal Code § 265.01 ¶ 1
(A person is guilty of criminal possession of a weapon in the fourth degree when:) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star".
This statute is rife with hysteria.
Take a sock, fill it with sand, and turn yourself in for committing the serious offense of Criminal Possession of a Weapon in the Fourth Degree, for you are in possession of a sandclub!
Get yourself a baseball bat, recognize that the definitions portion of the Statutes do not give a clear indicator of what a billy or bludgeon is or is not so that you can be sure that a baseball bat does not qualify, recognize that the baseball bat can do everything that a billy or bludgeon can do, and dial 911! You're evidently in violation of Criminal Statutes!
If baseball bats are somehow excluded, are cricket bats, golf clubs, axe handles, and various farm implements also? Since the line between what is legal and what is a "Serious Offense" is unknown and unknowable, this statute is both overbroad and vague, two flaws that kill it upon the alter of Due Process.
This law would convict Jesus, though he love all with a perfect and harmless love, if he but possessed a crystal, glass, or metal Star of David, (if it had sufficient mass to be thrown), for it is a "Kung Fu Star".
This statute arises from "logic" that would jail every owner of every camera for Child Pornography, every owner of a printing press for libel, every person capable of speech for slander, every owner of a car for speeding (and if they also own alcoholic beverages, for drunk driving), every owner of a photocopier for copyright violation (or counterfeiting), and every person with friends for Conspiracy, Sedition, or some other Corrupt Organization or Gang-related offence. This statute is hysterical, not in the comic sense, but in the emotionally deranged sense. This statute is not written or enforced with the consent and authority of the people; enforcing it "In The Name of the People of the State of New York" is FRAUD.
It should be apparent to all, that if the pencil can be outlawed, so can the pen; if the handgun can be outlawed, so can the shotgun; if either can be outlawed, so can the rifle. No greater scope of authority is required to outlaw any one, than is required to outlaw them all. If New York can make handgun ownership a crime, it can do the same to every other type of weapon as well. This surely destroys any right to keep or bear arms. Therefore, either this law is unconstitutional, or we have no right to keep and bear arms. The Constitution of the United States, Amendment 2, declares the existance of a Right to Keep and Bear Arms, this law destroys that right. This Statute is unconstitutional.
New York State Penal Code § 265.01 ¶ 2
(A person is guilty of criminal possession of a weapon in the fourth degree when:) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same harmfully against another.
If the crime defined in § 265.01 ¶ 1 had that trigger "with intent to use the same harmfully against another" (which is mens rea), the law would have no quarrel with us, nor we with it; though coherency with self-defense statutes and rights begs that the words harmfully against be replaced with wrongfully against. This condition, the requirement on the part of the State prosecutor to prove Mens Rea on the part of the accused, clears the Statute of any Unconstitutionality. Arrest can be imposed upon persons going armed to the intended victim's location, with no need to wait until assault actually starts (by which event the victim's life may be ended).
Upon the Order of the Court Granting this Motion, the phrase "or any other dangerous or deadly instrument or weapon" would then cover handguns, as no other section in this statute would then be doing so. The word "firearm" could be added to paragraph 2 easily by the legislature. Either way, carrying firearms with provable intent to wrongfully harm another therewith would still be prosecutable. In summary, granting the Defendants motion costs the state nothing.