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Shooters Committee on Political Education

 

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Shooters Committee on Political Education

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Shooters Committee on Political Education

The Right to Keep and Bear Arms in New York State

 

Introduction
Essay 1             A Short Analysis of the Second Amendment
Essay 2             Apathy and Disunity have caused a Crisis of Liberty
Essay 3             The Firearm Privileges of New York State        
Essay 4             You are SCOPE

Firearm Priviliges in New York State

As a citizen of New York State, you do not have a constitutional right to keep and bear arms. Why? A full explanation requires a short review of history.

There are no gun rights in New York State - only gun privileges

Prior to the ratification of the United States Constitution in 1787, each state existed as a sovereign political entity - a country unto itself. Fervent debate raged between proponents of a strong federal government (Federalists) and those against any such unification (Anti-Federalists). The Federalists insisted that a unified country was essential for economic or political global status, and military preparedness against foreign threats, while the Anti-Federalists argued that the independence of the states and the liberties of the individual citizen would be overshadowed by a hegemonic central government.

The final result of this debate was two of the three founding documents of our nation: the United States Constitution and The Bill of Rights.

However, these documents only limit the federal government’s authority over its citizens, and do not address the rights or liberties of the state citizen. This fundamental authority resides in the various State Constitutions. Nonetheless, many states recognized the significance of James Madison’s contribution to individual liberty by including some of the language of the Bill of Rights when drafting their constitutions; but not all states viewed the right to keep and bear arms similarly. Remarkably, New York is one of only six states that failed to extend this liberty to its citizens through their state constitutions. (The other states are California, Maryland, Minnesota, Iowa and New Jersey.)

The issue of individual liberty, states rights, and the authority of the federal government remains one of the most contested and debated points of law. Even the United States Supreme Court has yielded different interpretations of these rights throughout its history.

Although the most infamous power struggle to determine the equality of citizens under either state or federal law was the American Civil War (1861-1865), this controversy was first addressed more than a quarter of a century earlier. In 1833, the U.S. Supreme Court, in considering a case of eminent domain, Barron v Baltimore, declared that the Bill of Rights did not apply to the states. Later, the so called Slaughter-House Cases (1 873) found that the Privileges and Immunities clause of the newly ratified Fourteenth amendment had no influence on state citizen’s rights, and is properly applied only to issues concerning national citizenship. This court, lead by Justice Miller, unambiguously declared that all American citizens, except for residents of D.C., have a distinct dual citizenship; that is, we are
each a citizen of the United States and a citizen of the state in which we reside; and therefore we are subject to two governments. Although the framers of the Fourteenth Amendment had intended to extend the liberties of the first eight constitutional amendments to the citizens of the states, these two decisions effectively silenced that interpretation.

In short, State governments are not bound by the same rules as the federal government. If the States are not held to the same standards as the federal government, could any right be stripped from the people by the power of the state? Where is the state citizen to go for relief of unjust state governments?

The answer to these questions is found in the concept of incorporation. Beginning in the 1890’s the US Supreme Court incrementally reversed the implications of the 1833 ruling via the due process clause of the Fourteenth amendment. In so doing, certain clauses of the first eight articles were selectively applied against the states. To date, the states are legally bound to recognize many of the liberties guaranteed by the Bill of Rights. Only the second, fifth, and seventh amendments remain unincorporated against the states.

Irrespective of the status of the second amendment as it applies to the states, New York citizens legally own and use firearms. But this fact belies an unappreciated point. Our gun rights are legislative, and not constitutional. They are granted by the state legislature in New York’s consolidated laws, article 2, section 4, and are signed into law by the Governor. And what the legislature grants one day may be taken away in another.

To bluntly summarize: There are no gun rights in New York State - only gun privileges.

We have only two forms of relief with which to maintain our right to keep and bear arms in New York State. The first is a gun friendly majority in the legislature; and in the past this has been a begrudgingly sufficient (but by no means ideal) stopgap in maintaining the status quo. The second is a US Supreme court ruling that favors incorporation of an individual right to keep and bear arms.
The recent Supreme Court case, District of Colombia v Heller, avoided the necessarily contentious arguments of incorporation because DC is not a state. But this ruling has laid the groundwork for possible later incorporation. The majority held that the right to self-defense using a handgun within one’s home is a natural, individual right, and not a collective right of the state (i.e. it is not linked to militia service).

At present, there is a circuit split on the question of second amendment incorporation in the lower US court system. The Ninth Circuit Court of Appeals, in Nordyke v. King; 2009, has ruled in favor of incorporation, but the Second and Seventh Circuit Court of Appeals followed a very narrow application of the Heller decision by finding in favor of local ordinances and against incorporation.

Most importantly, the United States Supreme Court has accepted by writ of certiorari, McDonald v. Chicago; the case rejected by the Seventh Circuit Court of Appeals. This case challenges the City of Chicago’s 27-year ban on handgun possession, and will be argued by Allen Gura, the attorney in the pivotal Heller case.

The Second Amendment Foundation, Illinois State Rifle Association, and four private individuals are pursuing this case. Arguments should proceed directly to the matter of incorporation because Chicago is a city within the state of Illinois. Indeed, the writ of certiorari asks the question directly:
“Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” This case is, scheduled for opening arguments in February 2010, with a decision expected near the end of the Court’s session in June.

It is critical to understand however, that the Heller decision has allowed some level of government regulation, and even if the Supreme Court rules in favor of the second amendment incorporation, state and local governments will undoubtedly apply their own interpretation of ‘reasonable regulation’ to local and state ordinances. The right to keep and bear arms activist may have an extra tool in his or her war chest, but the campaign to protect the civil liberties of our fellow citizens will not be over. We must anticipate continued infringements by our state legislature who will surely claim (and abuse) the legal power to determine what is and is not a reasonable level of regulation. We must echo the words of our greatest statesman Thomas Jefferson, “the price of freedom is eternal vigilance” and ensure we continue to fulfill our obligation as free citizens through peaceful, but effective, political means to preserve all of our civil rights.

 

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Essay 4             You are SCOPE

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