19th century cases
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege."
Applicability: "[A] general deprivation of a constitutional privilege" is exactly what this pistol ban does. It is unconstitutional.
"We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. * * * One of his most sacred rights is that of having arms for his own defence and that of the State. This right is one of the surest safeguards of liberty and self-preservation."
Comment: We, Defendants, claim of the state the return of our handgun and our Right to keep and bear the same.
"The passage from Story shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."
Comment: Reference is to Joseph Story Commentaries on the (United States) Constitution, applicable sections quoted above in Barron, Judgement v. Stare Decisis. Again, the Second Amendment is held to be binding upon the states.
"'The right of the people to bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State."
Comment: Georgia had no bill of rights, the Court here referred to the Federal Constitution Second Amendment as binding upon the State.
"But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, [the statute of Northampton,] or portion of the common law, our constitution has completely abrogated it; it says, 'that the freemen of this State have a right to keep and bear arms for their common defence.' Article II, sec. 26. * * * By this clause of the constitution, an express power is given and secured to all the free citizens of the State to keep and bear arms for their defence, without any qualification whatever as to their kind or nature; and it is conceived, that it would be going much too far, to impair by construction or abridgement a constitutional privilege, which is so declared; neither, after so solemn an instrument hath said the people may carry arms, can we be permitted to impute to the acts thus licensed, such a necessarily consequent operation as terror to the people to be incurred thereby; we must attribute to the framers of it, the absence of such a view."
Comment: Whereas the right to keep and bear arms is without limit or degree, prohibition or licensure thereof is unconstitutional.
"For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise."
"But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."(p.18)
Comment: &Quot; [T]he right entire and complete", or, the Right Patent, is what we, the Defendants, seek to restore to life.
Summary: Amendment 2 applies to the States. State and federal Courts which have held that the Second Amendment does not apply to the States (e.g. Presser vs Illinois) have also asserted that the First and Fourth Amendments do not apply to the states either (or have relied on Supreme Court judgements which did so); thus case law and judicial tradition are flawed in this matter. Wherever any Court strives to deny the 2nd Amendment as binding upon the state or New York, the 14th Amendment, § 1, is amply able to resolve the matter: The 39th Congress intended the language of the 14th Amendment, § 1, to make state disarmament laws unconstitutional. This may also be denied: Slaughter House Cases, U.S. v. Cruikshank, Presser v. Illinois and Plessy vs Ferguson denied the meaning of the 14th Amendment, as have other examples of Judicial Intransigence.
Exhaustion
That we have not exhausted all open remedies before challenging the constitutionality of this statute does in no way "unripen" our challenge. From the judgement Moore v. East Cleveland, this support:
This Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted. See, e. g., Yakus v. United States, 321 U.S. 414, 446-447 (1944).
Prior Restraint.
This study is relevant to the case at bar to the extent that the State claims to License rather than Prohibit handgun ownership. Handgun licences may sought, but the applicant has no right to the license. Since the guidelines rest upon such ill-defined critera as "of good moral character" and since the discretion in issuing such licenses is extreme, this system of licensure is not only prior restraint for those who obtain a license, it is also unequal protection under the Law for those who don't.
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) n. 8 ("A licensing system need not effect total suppression in order to create a prior restraint").
"As a system of prior restraint, the Guidelines are presumptively invalid." Marshall dissent in Ward v. Rock Against Racism, 491 U.S. 781 (1989) referencing Southeastern Promotions, supra, at 558 and Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). -->
Equality before the Law.
Many State and Federal Government employees are (see § 265.20) exempt from § 400 permit requirements, and may possess handguns without permit and without fear of arrest or prosecution under this statute. Their right of self-defense is measurably greater (significantly less destroyed) than ours, showing this statute to violate the Equal Protection clause of Amendment 14 § 1 (Sentence 2 cl 3 "nor deny to any person within its jurisdiction the equal protection of the laws"). Argument is raised by the State that favored persons have a duty by reason of which they are armed of necessity, and that the permit requirements of this statute would, if enforced upon them, compromise their capacity to perform their duty. First: these favored persons are excused in presenting or using their firearms only in self defense. Thus, the duty of these favored persons which justifies their possession of firearms without permit, is the duty of self defense. We also have a duty of self defense, and this statute compromises our capacity to carry this duty into effect. Not only should we be as favored as the favored persons by reason of the 14th Amendment §1 sentence 2 cl 3 ("nor deny to any person within its jurisdiction the equal protection of the laws"), but because we have the same duty of self defense as the favored persons in consideration of which they are permitted without permit to possess firearms and bear them upon their persons.
Police Officers are not obliged to seek, obtain, or retain a permit to possess a pistol. It is necessary to the performance of their duty. Pistols are necessary to our performance of our duty, as well (the duty of defense of self, home, family, and property, the duty of being available to our Nation and State for it's defense, and the duty of being available to our fellow citizens in checking tyranny in government), but we are required to seek a permit and to accept the denial thereof as terminating our Right to Arms. This destroys equality before the law.
This section has to do with New York State statutes §§ 400.00 - 400.10, (licensing and other provisions relating to firearms (meaning handguns)). The provisions of this section are vague and overbroad to the point of being frankly unconstitutional on points of Due Process. They also implement an inequality under the law directly. This section of the Motion is relevant to the extent that New York State grants or generally grants licenses to (inter alia) police officers or judges, retired police officers or judges, or explicitly does not require a license of these favored persons. The heart of the matter is that the Constitution forbids anything that creates classes of people, and special privileges such as §§400.00-400.10 do exactly that.
In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. Kramer v. Union School District, 395 U.S. 621, 626 (1969), quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968).
Section 400.00 reads in part: No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true. No license shall be issued or renewed except for an applicant (a) of good moral character;... and (f) concerning whom no good cause exists for the denial of the license.
Although the reason for denial of the license must be stated concisely on the notice of denial, stating no more than "not of Good Moral Character" clearly fulfills the law.
In an era of "Instant Background Checks", where Federal law applicable throughout the United States finds 3 days sufficient to investigate, and many Congressmen campaign for a one-day background check, New York's statutory period of 6 months for processing the application is indefensible. Anyone seeking to procure this license because they have learned themselves to be targets of stalking will be dead and buried meat (if their fears were well founded) before they can hope to obtain this license, after which they may buy their handgun.
Making the name and address of the licensee to be a public record is an unreasonable breach of privacy. It's nobodies business who owns pistols, who carries them on a regular basis, or etc.
Licensees are required to apply for permission to purchase or sell a handgun, which permission, per the statute, may be denied. This wholly overbears upon the subject of free commerce.
Several paragraphs indicate that not only must one possess a license to possess handguns, each and every such weapon possessed must be registered on the license. Registration of firearms has been shown to be held by the Congress as violative of the Right to Arms. Also, under § 400, license holders must inform the Police every time we change County of Residence, as if we were registered sex offenders.
Another aspect of Equality before the Law is that, inspecting the Constitution, the Bill of Rights, and it's other Amendments, our rights deserve equality. Our right to handguns deserves equality with our right to books, our right to speech and press deserves equality with our right to arms. Several rights are stripped of the felon: voting and arms; several rights are enjoyed upon proving of qualifications: marrying, voting, and driving among them. One qualification: "good moral character", has been attached by legislatures and removed by the Supreme Court from various of these rights. For example, see the Equal Rights Voting Act and Oregon v. Mitchell, 400 U.S. 112 (1970). New York attaches this "Good Moral Character" qualification to the pistol permit application process. Absent the flaws taking the other 100 plus pages of this Motion, this clause renders the pistol permit law unenforceable, or at least requires that this "Good Moral Character" clause be stricken from the law.
"Good Moral Character" is at once overbroad and vague. When this statute arose (first decade of the 1900's) "Good Moral Character" excluded gays, lesbians, and others who are now mainstream, and, depending on the interviewer, excluded the poor, labor organizers, immigrants, Mormons, Socialists, Jews, Communists, Negros, and other socially deprecated groups and political and genetic minorities. Which of these is still not within "Good Moral Character" is unknown and will vary from interviewer to interviewer. Since it could depend on e.g. sexual orientation, which is otherwise not grounds for exclusion from basic civil, political, Constitutional, fundamental and/or natural rights, it is overbroad; since we can't tell what it means, as it has no statutory definition, it is vague, and cannot be reconciled with the obligations of Due Process.
Look upon the situation as seen by reasonably possible evaluators and see why we fail the Good Moral Character test, understanding that the facts would of course actually be written down in legally palatable terms:
While this is written tongue-in-cheek, it stands on a reasonable expectation that the past indicates the future. Racial profiling, political profiling, cultural profiling, it is all there, causing effects from denial of rights to prison sentences based on no more than "Innocent until presumed guilty". Rights should not hang on other's opinions of our opinions.
Self Incrimination.
Relevance: Upon entering the State, defendants became criminals awaiting discovery, because we brought our pistols with us. If we go ask for permission to keep our pistols, two things happen immediately:
First, we announce our criminal state to the Police. This cannot be compelled, by virtue of Due Process (5th Amendment, U.S. Constitution prohibition on self-incrimination).
Second, we are obliged to surrender our property to the State, with no compensation for the taking of this private property. The State seeks to excuse itself by allowing us to obtain our own compensation for that property by attempting to sell it, but this does not fulfill the burden laid upon the State upon taking private property for public purposes without just compensation.
And, we might not obtain either the permission nor, by sale, the compensation.
Haynes vs US (U.S. Sup Court 8-1 decision) showed that Felons cannot be obliged to register weapons, as they're prohibited from possession of that weapon; I am as prohibited as any Felon from possessing a pistol until it is registered and we are licensed, so we can't be punished for having an unlicensed pistol until we get the license, thereafter we are also immune to prosecution by reason of the license. This is a law defining the teeth of a dog that cannot bite -->
Conversion of Rights into Crimes:
The delicate interplay between government and the governed, particularly when the theory of government espouses as an axiom that just government arises "from the consent of the governed", is discernment of that critical consent, particularly as advancement in science and technology intersect with evolving notions of the limits of the consent. There is a foundation upon which to judge: the constitution, the many declarations of rights, and the blanket reservation of rights which is the Ninth Amendment. New inventions, whether birth control drugs or appliances, or smokeless powder and automatic weaponry, bring the legislature and the Courts into contest about what may be done on these new inventions, and within what may be done, what ought to be done. Due Process forbids conversion of rights into crimes; the legislature is not empowered to burden or abolish rights, and the Constitution marks out the Right to Arms. Conversation is had as to what arms are protected, and for whom and from whom. The following excerpt from Planned Parenthood v. Casey [505 U.S. 833, 848, 849] sheds applicable light:
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977);
Defendants challenge the State: What matter is more private, in the sense of being none of the government's durnd business, than whether we conceive new lives amongst us, save it be the defense of life from the predator? The Police powers of the State are to discern rape from consent, and to discern self-defense from manslaughter. It is none of the government's durnd business whether we defend our lives, nor how, and prohibitions upon handguns because some commit crimes thereby are as unconstitutional, by the words of the Supreme Court above, as laws that proscribe contraceptives.
Laws that obstruct the peaceable citizens from owning their personal choice of weapons with which to defend their lives are vile hypocrisy: "Ye may conceive new lives, or refrain as ye choose, but ye may not defend the lives ye may have but by the means we might, or might not, allot to that purpose.".
We are a Pro-Choice family: I choose .45ACP, my wife chooses .357Magnum, my 18-year-old daughter chooses .22, handguns all; my eldest son chooses 12ga. shotguns. Considering his taste in music, we understand.
More than Supreme Court writ stands on this subject: 18 USC 241 & 242 and 42 USC 1983, and many other sections besides, recognize that states may transgress by their writing of law, their enforcement of law, and in their adjudications thereupon.
This statute is unconstitutional as a conversion of a right into a crime.
Defendants
How much Infringement is too much?
Defendants liken Rights unto our own persons. We treasure Life, and right along side it Liberty, which, together or separately, are mocked absent capacity to Pursue Happiness.
Government, then, is likened to a strong servant, laden with arms, armor, trust, respect, power, and training.
When a servant invades the privicy or privacy of the employer of the servant, we hold such servants to be worse than burglars or thieves, because of the added element of betrayal of trust.
When Government invades the rights of the people, it stands too similar to rape to be ignored as a parallel: Rape commences with the entry upon intent, not the exit upon satisfaction. It is the first millimeter, not the last, which completes the crime. This statute infringes, sufficiently, to be deemed unconstitutional.
Judges of Fact and Law
Juries have the same power, right, and prerogative to judge a law as do Judges of the Courts. The supreme Court held criminal and civil trials in the 1790's, e.g. Georgia v. Brailsford (3 US 1 1794). The plaintiffs and defendants pleaded their cases to the Judges of the Supreme Court and the Jury. The Chief and Associate Judges of the supreme Court rendered their judgment on the law and their opinion as to the facts. Then, Mr. John Jay, Chief Judge of the Supreme Court, said this to the jurors as they were about to take all the above into their deliberation (emphasis mine):
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
Defendants judge this law to be repugnant to the Constitution and to our liberty thereunder, and call upon our Courts to judge likewise.
Defendants have harmed no-one, have harmed nothing, disturbed not the peace of any person, were not engaged in criminal activity of any kind, and were not citable nor arrestable for anything aside from Keeping and Bearing Arms. Defendants have done no wrong, they are clean of Mens Rea (guiltiness of mind), have committed nothing Mala En Se (inherently bad) neither have they violated anything Malum Prohibitum (bad by virtue of being prohibited) which the State has authority to prohibit. Defendants claim the natural, common law, common sense, and Constitutional right to keep and bear arms that are handguns.
Defendants hold the Government's actions in writing and enforcing this Statute to be hysterical, not in the comedian sense, but in the emotionally deranged sense of defective reasoning put into forceful action.
Usurpation, Contempt, and Hypocrisy in Government
The Bill Of Rights Limits The General Powers
In further comment on the scope of the deliberations of the Court in both Miller and the New York pistol ban, after We The People established a Congress with authority to lay and collect taxes, we took back, by the First Amendment, any portion of that power that intersects our publishing, buying, or possessing books. Ponder for a chuckle on the thought of Congress, or any state, laying a $200.00 tax on the printing or transfer of a copy of the Book of Mormon. As the First Amendment does not protect only books of popular religious, political or scientific discourse, the Second Amendment does not protect only firearms of a "kind in common use" in a current militia or army. The key, operative words are "Press" and "Arms" respectively. Similarly, Congress' power to regulate commerce cannot be understood as putting in their hands power to determine which books we may ship, nor which arms we keep or bear, however one would by verbal origami seek to justify such a misconstruction of the limited power. While on the one hand, powers granted are generally understood as limited in scope but not in degree within that scope, it must be understood, on the other, that those degrees are in fact limited by the provisions of the Bill of Rights, which provisions also limit the police powers of the States.
The statute at bar exceeds the limits placed on the general powers, and is therefore unconstitutional.
The Proud Fools' Hypocritical Gamble
Let them who would ban handguns first give up their armed guards. It is no surprise that they who write laws disarming the common citizen and adjudicate cases arising under them have open means to ample armed security, frequently paid for by others. They are willing to bet our safety, but not their own, on their fool's gamble that disarming the victims of violent crime will cause violent crime to cease.
This statute implements unequal protection in reality as well as under the law, and is unconstitutional.
It is important to the pride of the handgun prohibitionists and to their hunger for supremacy that we be beholden to them for security, this is the driving factor behind the determination to destroy the Right to Arms. It is likewise essential to their sense of Divine Right that we cannot say NO and make it stick. It is the same disease of defective reason that made private property of Negros, which domestic slavery the Civil War transformed into civil slavery. Voter qualification tests, disarmament statutes, and jury exclusions hoarded true citizenship, depriving the Hated Ones. The Industrial Revolution brought in the factory and the need for cheap, abundant, expendable, and replaceable labor, and a new breed of Negro was born: the factory worker. When these sought to form Unions to wrestle with effect against the legal power of a government drunk on pride and the money of industrial barons, Police dispersed them violently. Hired guards within the corporations, and professional security companies, became mercenary bands of armed killers, dispersing striker camps with machine gun and cannon fire.
This statute implements a Badge of Slavery and is unconstitutional under Amendments 13 and 14.
During the time period of the above, New York's anti-pistol law came into effect, to make sure that persons of "good moral character", or in other words, supportive of the power brokers of the System, could get guns, but strikers, unionizers, labor-oriented political party heads, and the poorer common folk could be kept disarmed. We have not been able to learn what the fees for this license were in 1909, if it was the same as today, $25 was the cost of a pistol, making it a 100% tax, easily affordable by the upper and middle classes, but crippling to workers whose weekly wages were $15.00. On this basis, this law is frankly racist. Italian immigrants, then Swedish immigrants, then Polish immigrants, and others since found out you don't have to have a black skin to be sent to the back of the Civil Rights bus in New York.
Let the Court be ashamed of this unconstitutional law.
Penny Wise and Pound Foolish
Enforcing this law against peaceable citizens is just plain stupid. Every hour spent investigating the peaceable citizens application for a permit to exercise a right is an hour not spent investigating a crime. The money spent warehousing information, issuing licenses and investigating the backgrounds of peaceable citizens is money wasted. Should a license be deemed necessary, our driver's license should suffice. When crime is committed, let the money be spent jailing the offender, not already spent grinding useless paper. This is misappropriation of public funds.
The People would rather the money wasted here were spent enlarging the jails for the recidivists and violent criminals in our midst so that there would be no cause to release violent offenders on parole and probation with little to no jail time, and the trial time spent convicting offenders against the public safety of their crimes. Defendants know personally of burglars and violent assailants let off with no significant penalty whatsoever, ostensibly because the system is overloaded.
This statute is unconstitutional as repugnant to Civil Rights Law § 2: Authority arises from the people, and we don't consent to this law.
The Fleas of the Camel
All will agree that no amount of grooming will transform a camel into a horse.
The Heart of this Matter is discerning the camel of a state-owned prerogative to permit restricted possession and bearing of limited types of arms to the extent the State pleases, from the horse of a Right Patent to Arms belonging to the common folk.
Changing the word "firearm" to "handgun", or any other vocabulary exercise, is flea-grooming. Moving the prohibition from the "Offenses Against Public Safety" to "Anticipatory Crimes", or any other juxtapositional shell-game is flea-grooming. A narrow order, striking only the word "firearm" from ¶ 1, and saying no more, leaves much room for the State groom the camel and to continue to parade the re-groomed camel as a horse. Any order by the Court that leaves room for the state to retain the effect of an invasion of the Right of Arms by changing how the effect manifests in the statutes is an order requiring certain fleas be moved or removed, not an order requiring the defendant's horse be surrendered to them. Of course, leaving the statute intact, while within the power of the Court, is calling a camel a horse, in which case the fleas are not the problem.
CONCLUSION
The record on the Right of Arms is overwhelmingly consistent. As written into our history, the Constitution and Bill of Rights, acts of federal and state origin, including acts legislative, executive, and judicial, taken together show with overwhelming consistence that the Right to Arms was individual, uninfringeable by federal or state authority, and included handguns. We have seen that all evidence to the contrary comes from racist pride and judicial intransigence.
Defendants move the Court issue an order to the effect: "The Right of the People to Keep and Bear Arms shall not be infringed." Whether any mention of us as a people being trained or engaged in training ourselves is not at bar, therefore, the order may, but need not, cite a preamble such as "A well regulated Militia, being necessary to the security of a Free state,". The order may be Capitalized in the style of Millenial English, rather than Colonial, so long as the effect of the order does not become vulnerable to ambiguous readings. Above all, Defendants desire to return to their home with their handgun and their right to keep and bear the same, without fear of future need to bring this matter, in whatever legislative fish wrap, before this Court or any other.
BIBLIOGRAPHY