U.S.A. –-(AmmoLand.com)- As a NYPD veteran police officer, and Adjunct Professor/Lecturer of Police Science at John Jay College of Criminal Justice, National Rifle Association Certified Firearms Instructor (pistol, rifle, and shotgun), and Training Counselor, and active member of the International Association of Law Enforcement Firearms Instructors, and lifetime resident of New York City, I have dedicated my life to the preservation and strengthening of our cherished Second Amendment. This is no easy task, especially today, as we see constant, concerted, vigorous attacks on the fundamental right of personal defense with firearms.
So, it was with more than a little interest I read Stephen Halbrook’s article, “How Does New York City Get Away With This,” published in the August 2020 edition of NRA’s publication, “America’s 1st Freedom.”
Stephen Halbrook is a Second Amendment Constitutional law expert and a prolific writer and author who has argued and won several important Second Amendment cases before the U.S. Supreme Court.
In his article, he provides a brief history of restrictive handgun licensing in New York City. He correctly observes that “[i]t all started with the Sullivan Act of 1911, the first law in any state (other than the slave codes) to require a license for mere possession of a pistol even in the home.” Toward the end of the article, he makes the point that:
“Nothing has changed since 1911 when [an Italian-American] Mario Rossi carried a pistol for protection against the Black Hand, for which he was sentenced to a year in prison.”
It is of course disturbingly, depressingly, frustratingly true that “nothing has changed in New York City since 1911, insofar as the City continues to require a valid license to lawfully possess a handgun.
Still, in a few important respects, much has changed, and for the worse, since the enactment of the unconscionable and unconstitutional Sullivan Act.
In the 109 years since handgun licensing began, New York City’s laws have become more extensive, more oppressive and repressive, and confoundingly difficult to understand. These laws are a labyrinthine maze of ambiguity and vagueness, and they are singularly bizarre.
Unlike many other States that wisely preempt the field of gun regulation, as failure to do so invariably promotes and leads to confusion and inconsistencies across a State, the New York State Government, in Albany, has not preempted the field. The New York Legislature gives local governments wide discretion in establishing their own firearms rules as long as local government enactments don’t conflict with basic State law mandates.
Albany traditionally allows, and even encourages, local governments to devise their own, often numerous and extremely stringent, firearms rules. New York City has done so, and with glee, devising an extraordinarily complex and confusing array of rules directed to the ownership and possession of all firearms: rifles, shotguns, and handguns.
New York State law, NY CLS Penal § 400.00 (1) sets forth the basic handgun licensing scheme, applicable to all New York jurisdictions, making clear that possession of handguns falls within the province of the police and that,
“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.”
NY CLS Penal § 400.00 (3)(a) provides that,
Applications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his or her principal place of business as merchant or storekeeper.
New York City builds upon State Statute, establishing a mind-numbing set of tiers of handgun licensing, mandating the extent to which New York residents may exercise the privilege, not the right, to possess a handgun for self-defense.
The Rules of the City of New York, specifically 38 RCNY 5-01, has established, at the moment, at least, no less than 6 different categories of handgun licenses:
- Premises License—Residence or Business
- Carry Business License
- Limited Carry Business License
- Carry Guard License/Gun Custodian License
- Special Carry Business License
- Special Carry Guard License/Gun Custodian License
New York City’s tiered handgun licensing scheme is not only inconsistent with the Second Amendment, it promotes unlawful discrimination under the Due Process and Equal Protection clauses of the Fourteenth Amendment and invites both abuse by and corruption in the City’s Licensing Division. In fact, the City’s insufferable and puzzling handgun licensing scheme is, from a purely logical standpoint, apart from a legal standpoint, internally inconsistent and incoherent.
Premise residence and business handgun licenses place considerable restraints on a licensee’s right of self-defense. Unrestricted handgun carry licenses, on the other hand, are issued only to a select few people who satisfy arbitrary “proper cause,” requirements. Of course, powerful, wealthy, politically-connected elites are exceptions, routinely obtaining rare and coveted unrestricted handgun carry licenses, unavailable to the average citizen, residing in the City.
Criminals don’t obey handgun licensing rules or any other State law or City code, rule, or regulation pertaining to firearms, so they don’t care what the laws say. This hasn’t changed.
It is deeply troubling, indeed mind-boggling, to believe New York City’s harsh, brutal, even despotic handgun licensing scheme continues to escape Constitutional scrutiny, a point Stephen Halbrook makes at the outset of his August 2020 NRA article, in which he says,
“‘Under New York law, it is a crime to possess a firearm’, held the U.S. Court of Appeals for the Second Circuit in U.S. vs. Sanchez-Villar (2004). This ruling was based on the state’s ban on the possession of an unlicensed handgun. This prohibition did not offend the Second Amendment, said this ruling, because ‘the right to possess a gun is clearly not a fundamental right.’ Later rulings by the U.S. Supreme Court—D.C v. Heller (2008) and McDonald v. Chicago (2010—begged to differ. . . . But the Second Circuit must not have gotten the memo. . . .”
Stephen Halbrook makes clear that the New York licensing scheme is unlawful on its face because the very concept of licensing is grounded on the erroneous idea that gun possession is a privilege and not a fundamental right, a notion that is completely at odds with the Second Amendment and with High Court rulings. I agree with Stephen Halbrook’s assessment.
The Arbalest Quarrel has pointed out the Constitutional flaws inherent in gun licensing schemes over and over again, through the years, commencing with our first series of articles on Governor Andrew Cuomo’s draconian and inane New York Safe Act of 2013.
We called the Governor out on New York’s unconstitutional licensing scheme. See, e.g., our April 30, 2014 article where we concluded with this: “To suffer bad law is unfortunate. But, forced submission to State law that infringes a fundamental right is sinful.”
New York City residents have been forced to submit to unconstitutional firearms laws since 1911. New York’s gun control laws were and continue to be enacted to disarm the honest citizen and to discourage personal self-defense.
If a person insists on possessing a handgun for self-defense, New York insists on one’s first obtaining permission from the police department to do so, through acquisition of a license, issued by the police.
The imposition of stringent handgun license requirements is inconsistent with the import of the fundamental right to keep and bear arms as codified in the Second Amendment to the U.S. Constitution.
Redress is necessary. It’s about time.
Anti-Second Amendment proponents and zealots interject that every State requires that a motorist obtain an operator’s license to lawfully operate a motor vehicle on public streets, and they ask, “Why should gun possession be any different?” But in posing the question, these Anti-Second Amendment activists demonstrate an intention to reduce the fundamental right of the people to keep and bear arms to the status of mere privilege, which, in fact, is what a motorist’s license is; merely a privilege to drive an automobile on public roadways. It is logically and legally wrong to view and to treat a fundamental right as a mere privilege.
New York attempts to skirt addressing the inherent unconstitutionality of the entire firearms’ licensing scheme through pompous, imbecilic assurances that a person doesn’t need a handgun to defend him or herself because Government, protects a person. That is patently false and, in any event, it is wholly beside the point, as the Arbalest Quarrel made clear in an article posted on our site on November 21, 2019, https://arbalestquarrel.com/can-we-as-individuals-rely-on-the-police-to-protect-us-reprise/. That article was reprinted in Ammoland Shooting Sports News on November 26, 2019, although in a different format with some editing. https://www.ammoland.com/2019/11/can-we-rely-on-the-police-to-protect-us/
As we said, under the ‘doctrine of sovereign immunity’ the police are not, as a general rule, legally obligated to protect and guarantee the life and safety of any individual, and they cannot be held legally liable for failing to do so. Courts have routinely so held, including New York Courts. But many Americans fail to realize this because the seditious Press and politicians routinely lie to them.
The purpose of a community police department is to protect the society-at-large, nothing more. I had pointed this out 30 years ago, in an article I co-authored with Second Amendment scholar, David Kopel. That basic doctrine has not changed since.
But, very recently, something has changed and drastically.
Radical Left State and local governments are no longer even allowing their police departments to provide a modicum of protection for their community. This follows from the unrestrained actions and antics of volatile Marxist and Anarchist groups to whom they kowtow. They have called for the defunding of, and disbanding of, community police departments across the Country, and some jurisdictions have done so. In New York City the Radical Left Mayor, Bill de Blasio, has slashed $1 Billion from the NYPD budget. This comes at a critical time when soaring crime and daily riots demand more funding for police, not less.
This is a major change because the average American can, now, no longer depend on the police to provide even general protection to the community.
It must be noted, too, that there are attempts by Marxists and Anarchists to rewrite the laws on sovereign immunity, so as to hold police accountable for harming citizens. This is not for the purpose of securing more police protection, or to make the police more accountable to the law-abiding public at large.
On the contrary, the purpose of overturning police sovereign immunity rulings is to provide the public with less protection and, at the same time, to allow lawless rioters, looters, arsonists, and assailants to engage in attacks on the police and on innocent people without having to fear justifiable retribution for their lawless acts.
So, in some ways, matters have changed. Radical Left Governments are leaving communities less safe by preventing the police from promoting law and order, while they are prevented from protecting themselves as lawlessness occurs all around them, rendering them powerless to engage lawbreakers.
The public sees the disturbing results: demoralized officers and less safe communities as police are not permitted to provide communities with even a modicum of safety. This obviously is not for the better.
Moreover, even as Radical Left Government leaders restrain and constrain the police, they continue to resist recognition of the fundamental, unalienable right of the people to keep and bear arms for their own defense. These Marxist leaders demonstrate their contempt for the very sanctity of human life, even as they claim disingenuously to care about human life. They don’t care and they never did. Theirs is a recipe for disaster: for a complete breakdown of law and order in society.
But a breakdown of society is precisely what these Radical Left Governments want. They wish to tear down the Nation, so they can reconfigure it in a manner completely at odds with the preservation of the free Constitutional Republic that our founders gave us.
Despite the intentions of the Radical Left Collectivists, they can’t subvert the dictates of natural law. Natural law dictates that the right and responsibility of self-defense rests today, as it always did, on the individual.
Americans must not listen to the seditious Press and duplicitous politicians who claim that defunding or eliminating the police is necessary and, who claim, at one and the same time, the necessity for curbing the personal right of armed self-defense as well; and that taking these actions will improve society. That is not only false, it is absurd. The seditious Press and Radical Left politicians don’t have, and never did have, the best interests of the Nation or its people at heart. This is now transparent and, given the present state of affairs afflicting our Country. This fact is irrefutable.
Although I have always been a staunch supporter of the Second Amendment, I never advocated that everyone should get a gun. I did support and continue to support freedom of choice in owning and possessing firearms. However, now it is time for every law-abiding American citizen to be armed. Learn how to properly use a gun and how to safeguard it.
Our Country is at a crossroads. We stand to lose everything near and dear to us if we don’t pay to heed to the threats directed against us, bearing down relentlessly on all of us.
It is the responsibility of all citizens to safeguard their own life and safety and that of their families, and to preserve our Republic as the founders intended; to protect it from the insinuation of tyranny that the Radical Left would dare impose on Americans.
About The Arbalest Quarrel:
Arbalest Group created `The Arbalest Quarrel’ website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.
For more information, visit: www.arbalestquarrel.com.
Maybe they forgot this one too
Johnny, Thank you very much for the citations. I confess I wasn’t aware of those cases. One correction, though. The quotation from the Shuttlesworth case is from another U.S. Supreme Court case with the same name. The correct citation is: 394 U.S.147. There are complex issues raised involving use of a State’s licensing and taxing power that operates impermissibly as an unconstitutional “prior restraint” on the exercise of a Constitutional Right. Very absorbing topic. Will research and write on it when we get the chance. We have much content in the works at the moment that must be completed. All… Read more »
First, our RIGHTS are given to us by the LORD GOD ALMIGHTY. Specifically re being armed see Luke 22:36. Secondly, our RIGHTS are further written into law as the constitution, bill of rights and the amendments. Our forefathers did this because they had seen first hand a government out of control to the point of absolute tyranny, much like we see in some states today. Read the declaration of indepence and you will see that all the above is true. You might want to look up Lexington and Concord for your historical homework assignment. Thirdly, a RIGHT is not a… Read more »
Great article, but, unfortunately, preaching to the choir. I bet the NY Times wouldn’t publish this. The socialist media has brainwashed the impulse-driven under-educated masses to the point that they’ll believe the wackiest concepts; even the most normally appearing views are now right-wing conspiracies. My neighbor is an avowed Leftie. She spends hours reading the socialist media internet, comes up with the silliest things – yesterday she told me about Trump building a secret army that was going to disarm everyone in America. Last week she corrected me when I mentioned antifa as a criminal group should be rounded up.… Read more »
Never confuse education with intelligence & common sense.
Shame on any Gun Owner who votes Democrat!
Yep… Mine Too
“You will obey me while I lead you, into the garbage that I feed you. Do cry for help. No one will heed you! Your mind is totally controlled, it has been stuffed into my mold, and you will do as you are told, until the rights to you are sold!” I am the Slime from your video, oozing along on your living room floor.” Frank Zappa
“In 1954 this was the issue of primary concern. Although the so-called “moral issues” were raised, in view of the law of natural selection it was agreed that a nation or world of people who will not use their intelligence are no better than animals who do not have intelligence. Such people are beasts of burden and steaks on the table by choice and consent.”
-Silent Weapons for Quiet Wars
Operations Research Technical Manual
Available under FOIA from: The dept. of the Navy, Office of Naval Intelligence.
Just curious, hippybiker, did you ever get around to writing that apology you owe me?
I believe you meant – “You will obey while I lead you, AND EAT the garbage that I feed you; UNTIL THE DAY THAT WE DON’T NEED YOU, DON’T GO FOR HELP, No one will heed you! Your mind is totally controlled, it has been stuffed into my mold, and you will do as you are told, until the rights to you are sold!” I am the Slime from your video, oozing along on your living room floor.” Frank Zappa
does federal law not overrule state’s laws? politicians and most other government officials swear an oath to uphold the Constitution of the U.S.A. and the state when they assume office. why are the ones that make law contrary to the Constitution, especially on the 2A not prosecuted for perjury or other crimes and not removed from office? most Americans want police in their areas, especially blacks from a recent poll, to protect their communities. most police are good and decent people who, like the military want to serve their communities and country. that being said, the police being a subsection… Read more »
You’re right, the politicians are apparently immune from prosecution. They obviously are not accountable to the citizenry and they want to cement their hold by disarming the citizenry one way or another. This is the same thing and the same reason the British did prior to and during the revelutionary war. With a two tiered legal system that is actually illegal and certainly immoral, the common man, the working class has little hope of a better tomorrow for himself and his children. So what do we do now? Well, if the system won’t prosecute everyone equally, the only other options… Read more »
“… why are the those who enact law contrary to the Constitution not prosecuted for perjury?”
One simple answer. No district attorney (certainly not one with functioning testicles) is willing to prosecute. End of discussion. THERE is the problem, either fix it or don’t.
All great comments below, but If the liberal loons win, the bottom-line is should have joined your local militia. You cant stand alone when the SHTF. There is strength in number. Just look at what a rag tag bunch of antifa/BLM anarchists can do. Join a local militia.
YAWN….same old same old since at least…uh, forever.
Only thing to stop a bad guy with a gun
is a good guy with a gun.
A politician with a law never stops a bad guy with a gun.
He only controls the good guys, which is his true agenda.
The bad guys with guns are merely the politicians’ Useful Idiots.
To anyone who is not, you must be fully cognizant of the fact that the police only arrive in time to take the report! If you are not fully prepared, you will usually find yourself hurt or DEAD!
Fact is, the Sullivan Law is unconstitutional on its face. Why it has never been successfully challenged as such is beyond anyone’s comprehension! It directly violates the Second Amendment to the Constitution of the United States (as do firearms laws in many other states). I guess I will never see the day when we can get the Second Amendment fully implemented as the law of the land and get the court system and the politics out of it!
“It is the responsibility of all citizens to safeguard their own life and safety and that of their families, and to preserve our Republic as the founders intended; to protect it from the insinuation of tyranny that the Radical Left would dare impose on Americans.” EXACTLY! . . . and THIS is exactly why the PRIORITY of democrat communists is to ban semi-automatic rifles that accept detachable magazines . . . 30 round magazines . . . you know, AR15 type rifles! (Though they are used in less that .01% of crime) THEY ARE THE MINIMUM CLASS OF FIREARM THAT… Read more »
One still needs to be careful as to how one “protects oneself.”