From our friends at DRGO
[Ed: This was originally published on Ammoland August 6. Edited modestly for DRGO.]
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 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: “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.”
NYS 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.
And 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. And this hasn’t changed. But it is deeply troubling, indeed mind-boggling, to believe New York City’s despotic handgun licensing scheme continues to escape Constitutional scrutiny, a point Stephen Halbrook makes at the outset of his NRA article, when 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. And I agree with 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.
Yet, 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.
Still, anti-Second Amendment 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, . That article was reprinted in Ammoland Shooting Sports News on November 26, 2019, in a different format.
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 press and politicians routinely lie to them.
The purpose of a community police department is to protect society at large, nothing more. I pointed this out 30 years ago, in an article I co-authored with Second Amendment scholar, David Kopel. And 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 assaults 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 now can no longer depend on the police to provide even general protection to the community.
There are currently leftist attempts to rewrite the laws on sovereign immunity, to hold police accountable for harming citizens. But this is not for the purpose of securing more police protection and for making the police more accountable to the law-abiding public at large. To the contrary, the purpose of overturning police sovereign immunity rulings is to provide the public with less protection and, at once, 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 leftist governments are leaving communities less safe by preventing the police from promoting law and order, and they are even 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 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 activists 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. Yet, despite their intentions , 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; that taking these actions will improve society. That is not only false, it is absurd. The seditious press and radical 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 have never advocated that everyone should get a gun. I support freedom of choice in owning and possessing firearms. But now it is time for every law-abiding American citizen to choose to be armed. Learn how to properly use a gun and how to safeguard it.
Our nation is at a crossroads. We stand to lose everything dear to us if we don’t heed 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. We must protect it from the insinuation of tyranny that the Radical Left would dare impose on Americans.
—NYPD veteran Stephen D’Andrilli is President & CMO of Arbalest Group, with masters degrees in Criminal Justice and Public Administration. He is an NRA Certified Firearms Instructor & Training Counselor, and is passionate about the Constitution and Bill of Rights.