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.