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.
Due Process
The Right of Arms.
The following decisions, spanning the period from 1822 to 1981, have analysed the right to keep and bear arms provisions in the light of statutes ranging from complete bans on handgun sales to bans on carrying of weapons to regulation of carrying by permit systems. Those decisions that not only explained the nature of such a right, but also struck down legislative restrictions as violative of it, are designated by asterisks.
Extensively studied above. Reasoning upon the consequence of declaring Negroes to be citizens, describing some of the rights belonging to citizens:
"and it would give them full liberty of speech in public and in private upon all subjects upon which its own Citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went".
This judgement is oft-cited by both sides of the Gun Control debate. Readers should note that the Judges (we cannot call them Justices) ignore the 14th Amendment (extensively studied above) which had been made the law of the land 8 years previous to this judgement, and cite the 1st and 4th Amendments, along with the 2nd, as having no effect on State laws. REPEAT: This judgement holds Amendments 1, 2, & 4 as having no effect on the States. This judgement is badly flawed, and mostly overruled (see Griswold v. Connecticut). Considering only the evolution of the Supreme Court doctrine upon Amendment 14, it is more reasonable to presume Amendment 2 to apply to the States than to presume it does not. The Theory of Barron v. Baltimore, and the now-discredited Slaughter-House Cases shows here.
Facts behind Cruikshank: The Colfax Massacre, (Grant Parish) in which several hundred whites first disarmed (under a pledge of non-violence) and then murdered several hundred blacks, began with a disputed election for Sheriff and Judge in that County. Some killings arose. Black folk by the hundreds, among whom was Mr. Tillman, took up a common defense around the County Courthouse. They were all for the Republican candidates for the offices in dispute. Several hundred white folk, among whom was Mr. Cruikshank, levied siege against them. They were all for the Democratic candidates for the offices in dispute. Then arose the pledge of non-violence, the disarmament, and the slaughter. Amongst the hundreds of killings, (all by whites) Mr. Cruikshank killed Mr. Tillman. The details of the Colfax Massacre are not further explored here. Rather, we explore the claims and findings by the Supreme Court that led to the acquittal of the murderers. There was carelessness in the prosecution: they did not assert and prove that the killings, by several hundred whites, of several hundred blacks, were for "racial motives" and therefore within the reach of the Federal statute under which Mr. Cruikshank faced prosecution; they did not assert and prove that this resolution of disputed elections by mass murder of the members of the other party was a "State government action" prosecutable under the authority of the 14th Amendment. Defendants find the Courts' action on this omission as insane and corrupt as if they should acquit killers because the prosecution didn't prove that the victim didn't die of heart failure at the sight of the killer's shoes or something, rather than the body damage of the bullet or knife, and that they died of the wound, not subsequent emergency room medical misadventure or some such. Here is the heart of the "logic" of the Court: [92 U.S. 542, 551-555] (emphasis added)
The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope and application of these amendments are no longer subjects of discussion here.' They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.
The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
In Rebuttal,
Defendants suggest that, had several hundred blacks disarmed and murdered several hundred whites, especially as a mechanism for settling a disputed election, this Court would have found differently than it did here.
Summary: The Right to Keep and Bear Arms pre-exists both New York and the United States. The 14th Amendment does, per this judgement, prohibit state infringements on this right, which the statute at bar does. Cruikshank destroys New York's pistol ban.