By Roger Katz
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.
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 laws as long as local government enactments don’t conflict with basic state level mandates.
Albany traditionally allows, and even encourages, local governments to devise their own often numerous and extremely stringent firearms rules. New York City has happily done so, 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 the 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 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, 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 the rare and coveted unrestricted handgun carry licenses that are unavailable to the average citizen.
And criminals don’t obey handgun licensing rules or any other state or city law pertaining to firearms, so they don’t care how many laws the city enacts. This hasn’t changed and never will.
But it’s deeply troubling to believe New York City’s harsh, even despotic handgun licensing scheme continues to escape constitutional scrutiny, a point Halbrook makes at the outset of his article, when he states,
“‘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. . . .”
Halbrook makes clear that the New York licensing scheme is unlawful on its face because the very concept of licensing is grounded in the erroneous idea that gun possession is a privilege and not a fundamental right. That notion is at odds with the Second Amendment and high court rulings.
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 honest citizens and to discourage personal self-defense.
It’s Time for Redress
New York attempts to skirt addressing the inherent unconstitutionality of the firearms’ licensing scheme through pompous claims that a person doesn’t need a handgun to defend him- or herself because government is there to protect them. That’s patently false and, in any event, it’s wholly beside the point.
Under the doctrine of sovereign immunity the police are not legally obligated to protect any individual, and they can’t be held legally liable for failing to do so. Courts have routinely so held, including New York courts. This is a fact many Americans are unaware of.
Recent Drastic Changes
Radical leftist state and local governments are no longer even allowing their police departments to provide a modicum of protection for their communities. This follows from the unrestrained actions and antics of Marxist and Anarchist groups to whom they kowtow. They have called for the defunding of and disbanding of police departments across the country and some jurisdictions have begun to do just that.
In New York City the radical leftist Mayor, Bill de Blasio, has slashed $1 Billion from the NYPD budget. This comes at a critical time when soaring crime rates and almost daily rioting demand more funding for police, not less.
What does this mean? The average American can now no longer depend on the police to provide even general protection to their community.
There are also attempts to rewrite the laws on sovereign immunity, to hold police accountable for harming citizens. But this is not intended to secure more police protection or make the police more accountable to the law-abiding public at large. To the contrary, the purpose of overturning police sovereign immunity is to provide the public with less protection and, at once, to allow lawless rioters, looters, and arsonists to engage in attacks on police and innocent people without having to fear retribution.
So, in some ways, matters have changed. Radical leftist-controlled governments are leaving communities less safe by preventing the police from preserving law and order. In some cities, police are even prevented from protecting themselves as lawlessness occurs all around them, rendering them powerless to engage lawbreakers.
The public is seeing the disturbing results: demoralized officers and less safe communities as police aren’t permitted to provide communities with even a modicum of protection. T
Even as these leftist government leaders constrain the police, they continue to resist recognition of the fundamental, unalienable, individual right of the people to keep and bear arms. They demonstrate their contempt for the very sanctity of human life, even as they disingenuously claim to care about it. It’s a recipe for disaster: for a complete breakdown of law and order in society.
Yet, despite the intentions of the radical left, they can’t subvert the dictates of natural law which dictates the right and responsibility of self-defense rests today, as it always did, on the individual.
Americans must not listen to duplicitous politicians or the complicit media who claim that defunding or eliminating the police is necessary while continuing to push for curbing the right of armed self-defense. And judging by gun sales figures since March, they’re increasingly tuning them out.
Although I have always been a staunch supporter of the Second Amendment, I never advocated that everyone should get a gun. I support and continue to support freedom of choice in owning and possessing firearms. But now, in this new reality, it is time for every law-abiding American to be armed. To learn how to properly use a gun to protect themselves and their families.
Our country is at a crossroads. We stand to lose everything that’s near and dear to us if we don’t pay heed to the threats that are directed against us.
It’s the responsibility of each citizen to safeguard their own life and those of their families. It’s becoming increasingly clear that no one else is going to do it. You’ve always been your own first responder. We may soon be at the point where you are your only one.
This article was originally published at arbalestquarrel.com and is reprinted here with permission.