By Roger J. Katz, Attorney At Law
New York –-(Ammoland.com)- While much attention is paid to the erosion of the Second Amendment right to keep and bear arms, too little attention, if any, is paid to the concept of private property rights in connection with that Second Amendment right.
Gun owners take it for granted they have a private property right in their firearms.
They shouldn’t.
When it comes to firearms, no American should take anything for granted and that fact extends to the notion of a property right interest in one’s firearms.
But, what is a ‘property right interest’? The notion of ‘private property’ is a fixture of a capitalist society. The notion of ‘private property’ does not exist in a communist society. And the notion has limited application in a socialist society.
The words, ‘private property,’ mean, in law, ‘exclusive ownership’ and ‘absolute control’ over property.
With firearms, the notion of ‘private property’ is all too often strained.
In New York, for example, a gun owner does not have the ability to transfer his or her firearms to whomever the gun owner wants, whenever the gun owner wants.
A New York resident cannot transfer his or her firearms to another New York resident – even next of kin – unless that person is eligible to receive firearms. And firearms defined as ‘assault weapons’ in New York, cannot be transferred to another New York resident at all unless that resident is also a licensed New York gun dealer. How many New York residents do you suppose are licensed gun dealers? Not many, to be sure. So, a gun owner may have exclusive ownership in his or her firearms – at least to the extent that the State of New York deigns to allow one to continue to own and possess firearms – but the New York gun owner does not have and never has had absolute control over them. State law governs the manner in which guns are kept and used by the owner, and the gun owner’s ability to transfer a firearm to another person is tightly controlled by the Government.
Thus, the idea that a New York resident and gun owner has a private property interest in his or her own firearms is, as a matter of law, simply false.
In an article recently posted on the Arbalest Quarrel, we dealt with this issue at length. In a subsequent multi-series – the first part of which has just been published on the arbalest quarrel website – we expand upon the manner in which the New York Safe Act and other related New York law operate, together, to deprive New York residents of their private property interest in their own firearms.
You may access that article on the arbalest quarrel website, found here: www.arbalestquarrel.com. We invite you to take a look.
LameBear, Sure, we can ignore unconstitutional laws all day. But that means absolutely nothing when LEOs view their oaths as requirements to uphold any law before it’s overturned by a court. Plenty of extremist Mormons ignore the laws for monogamy until they’re caught with three wives and charged with tax offenses or other means of jailing them. How many so called sovereign citizens are now in jail for believing they don’t need a car tag or drivers license because both are unconstitutional, or since driving is a privilege by law and not a right, how many are felons for refusing… Read more »
Yep. There is nothing in the Constitution about marriage, period. None of gov’t’s affair. Also true of a whole bunch of other stuff they’ve stuck their noses in. When this awareness hits critical mass, we’ll be able to get back to actual liberty much to the chagrin of our “public servants”, who will then need to find real actual jobs…
One other little point – since this “legislation” by the State of New York CONFLICTS DIRECTLY with the Second Amendment to the Constitution – this “legislation”, BY LAW, is Not Law and NEED NOT BE OBEYED.
” In New York, for example, a gun owner does not have the ability to transfer his or her firearms to whomever the gun owner wants, whenever the gun owner wants. ” Actually – he can. The Constitution FORBIDS the State of New York from interfering in any way with purchase, transfer, ownership, possession, or carry, of ANY WEAPON THAT CAN BE FIELDED BY A CREW OF THREE MEN OR FEWER ( the definition of “arms” according to our Founders). As long as New York is one of these united States of America, New York IS BOUND BY THE CONSTITUTION… Read more »
Imagine how much better off we’d be had the late 18th-century founders not provided us with Enlightenment rights but instead stuck with Biblical responsibilities. Think about it: Although the Second Amendment is one of the few components in the Constitution that’s close to being biblical, the late 18th-century founders robbed bearing arms in defense of ourselves, families, and others of its potency when they replaced the God-expected responsibility with the optional Enlightenment right. The result: Except for a few victories like the one described in this article, the Second Amendment is the MOST infringed, licensed, and limited Amendment of the… Read more »
The last time that the left and right were this far apart we , America, we’re 13 seperate colonies fighting with the idea of braking from England. Texans do not care about New Yorkers. people in Maine have forgotten what they have in common with the Americans in Oregon. The idea that I learned from the men and women who made up the greatest gen. that I may not agree with your opinion but I will defend to the death your write to your own opinion , is dead and unless we fix that we are finished as a nation.… Read more »
Texas gun laws are not that great, when comparing to ID, WA, AK
Simple solution don’t own your guns at all. Have an entity other then an individual own your guns and you can “use them at will” but if you want to transfer them simply transfer the entity. It is called a Federal Gun Trust and it eliminates all this bunk. Put your guns in the FGT and then you are all done. Plus it allows you to buy SBG’s and silencers without a need for fingerprints or approval of the local sheriff (as long as your state allows them to exist inside the state boundaries)
Ill Annoy won’t let us own suppressors.
trusts are not guaranteed safe, like any corporation, a simple change in law can desolve them. sure many states recognize them, not all.not sure how other states will recognize the trust if illegal there. then again. how will they deal with you transporting your firearms not in your name, just a trust? trust sounds nice, and legal in pennsylvania. yet i don’t trust them to always be legal. think about this. if you have 6 full-auto weapons and 6 silencers, if trusts become illegal in your state, you will have to transfer everything to you name. which is $2,400.00 in… Read more »
Good point, but still INFRINGES on our GOD GIVEN rights that predate all government. All “laws” infringe”, as they do not create or allow any more options or freedom than already existed before their creation…
Tex: try a little thing called domino theory. Your thinking is the embodiment of the oft-quoted ‘at first they came for’ poem.
Libertarians have long argued that the key to protecting gun rights (all rights actually) is by protecting property rights. (See Gun Rights vs. Freedom?
How “take your guns to work” laws violate property rights https://reason.com/archives/2008/08/25/gun-rights-vs-freedom ). As long as conservatives keep advocating the violation of property rights, up to & including taxation, our gun rights will be in danger.
I thought it might be an interesting read then its all about New York,NY,…who gives a damn about that shithole called New York ? I’m proud native Texan and thats what its all about ! ‘Texas like a whole other country’ ! ….and I’m damn sure within a couple three years it will be again too !
The concepts involved apply wherever in USSA you live mr texan …..if ya had any intelligence ya would see that……
Finally realizing that many states and government departments are socialist and fascist. About time some more people wake up . When are you going to realize that property tax is just serfdom . The redistribution of wealth benefits the 1 % , the middle class is dead from the poor leaching government and giving the homes they cannot afford, increasing property values on middle class , so we live pay check to pay check. To make us work to the day we die is the goal of government through taxation and the non accumulation of wealth. They do not want… Read more »
Eric I couldn’t have said it better then you just did.