The Arbirtary, Unequal Application of Who Can and Can’t Exercise Their Second Amendment Rights

Big Tim Sullivan

Larry Mulligan – Hicks, Tim Sullivan. Photo shows Timothy (Big Tim) Daniel Sullivan (1862-1913) (right), a New York City Tammany Hall politician, with his half brother Larry Mulligan returning to New York on the Imperator from a trip to England. (Source: Flickr Commons project, 2009)

By MarkPA

Nelson Lund of George Mason Law, in his forthcoming Northwestern Law Review article, offers a provocative view of the gun control debate. One relatively minor point struck me as especially important:

. . . [V]ery few actual regulations effectively eliminate the right of individual Americans to keep or bear arms for the purpose of self-defense. Instead, gun control laws almost always restrict who may keep or bear arms, or what the kinds of arms civilians may have, or where they may take their weapons, or how they may lose their rights. . . When he was on the D.C. Circuit, Judge Brett Kavanaugh wrote a dissenting opinion in which he extended an historical analysis to much less drastic regulations, including bans on certain semi-automatic rifles and on large-capacity ammunition magazines. The historical record is far too sparse to provide meaningful guidance about the constitutionality of most modern regulations.

It has long struck me as odd that the debate over the Second Amendment has mostly ignored the right to bear arms for self defense, specifically in case of confrontation. Mostly, it strives to narrow the “who” and “where” aspects.

The historical record of controlling the “who” is a sorry recounting of race-based bans on native Americans and blacks. The New York Sullivan Act was justified on the grounds of barring foreigners (Italians, Jews, eastern Europeans and others deemed undesirable) from carrying guns.

So why is there such an obsession with suitcase nuclear bombs being carried in Times Square?  Scary-looking “assault weapons”? “Large capacity” magazines? Let alone Michael Bloomberg’s statement: “You just do not want the average citizen carrying a gun in a crowded place.”

The debate has become completely diverted from its historical roots of “who” and “where” to “what.” What gives?

Let’s focus just on the “who” and “where” facets of the right to keep and bear arms, avoiding the “what kinds of arms” and “how they may lose their rights” issues.

An immigrant woman, one Melanija Knavs, moved to New York City in 1996 to pursue a career she began in Milan and Paris. She became a permanent resident in 2001, thereupon joining the class “the People” whose “right to keep and bear arms shall not be infringed.”

Let’s imagine that she might have applied at One Police Plaza for a permit to keep and carry a double-barreled flint-lock black powder pistol in NYC. Ignoring the question of whether the Sullivan Act is constitutional, would she have been granted such a permit? Possibly, to keep in her humble apartment, but certainly not to carry it on Fifth Avenue. Why not?

double barrel flintlock pistol

Courtesy IMFDB.org

As a Green Card holder, she became eligible in the Spring of 2001 to exercise the right of the people to keep and bear arms.   That September, the streets of New York City were devastated by the World Trade Center attack. Until then, few people in America comprehended the risk of attack from a heretofore unknown quarter. That made our modern circumstances not terribly different from the American frontier in 1792 when the right to arms was ratified by the founding generation.

In our hypothetical study of Ms. Knavs, we are avoiding the “what kind of arms” issue. A black powder, muzzle-loading, flint lock handgun was a commonplace weapon for self defense in the era of ratification of the Second Amendment.  It’s successor today would be a pistol or revolver.  But Ms. Knavs would not have been granted a permit to carry a flintlock in NYC for self-defense any more than one of its modern descendants.

Our question is simply one of “who” and “where”.  Who? A Green Card holder. Where? The streets of a dangerous city. On what grounds should she be denied the right to bear arms on her journey between home and work in NYC? Today, in at least 16 states, she would need no permit at all. In an additional two dozen states, she would cheerfully be granted a permit upon application. What makes this “where,” New York City, so special? Are there other such “special places” in America?

As fate would have it, Ms. Knavs later took up temporary residence in our nation’s capital, Washington, D.C. It is now a ”shall-issue” jurisdiction for keeping handguns in the home and carrying them on the streets. Nevertheless, had Ms. Knavs applied to keep her flintlock pistol in her home, she would have been denied. Alas for Ms. Knavs, she lives in public housing.

Nevertheless, she could certainly have been issued a permit to carry it if she had applied as a D.C. non-resident from her now legal domicile in Florida. Why should she be able to hold a permit to carry on the streets of D.C., but not to keep a gun in her District residence?

Of course, having moved her legal residence to Florida, Ms. Knavs is no longer eligible for any permit in New York City, even though she maintains a second residence there. By simply changing her domicile (e.g., by re-registering to vote in New York City) she would today certainly be issued a permit to keep a firearm at home. With her connections now, she might even get the normally unobtainable New York City carry permit. Why today, when not in 2001? NYC law on issuing permits has not changed in these past 19 years.

Which of Ms Knavs’ other constitutional rights have been so inconsistently respected as her right to keep and bear her flintlock? After becoming a U.S. citizen in 2006, she became eligible to vote in her precinct of domicile. Did her rights to speak, worship, or to refuse to quarter troops in her home change? To be free from unreasonable search and seizure? Trial by jury with benefit of council? Her meriting the means of individual self-defense has not changed, for better or for worse.

Ms. Knavs has come to no harm from the complications of living in jurisdictions that arbitrarily deny her Second Amendment rights. And she is extremely well-protected now. But such complexities resulted in a trying ordeal for Ms. Jamie Caetano.

A homeless, battered single mother, Ms. Caetano was arrested, prosecuted and convicted for arming herself with a non-lethal stun gun, which she successfully used to ward off a public attack by her ex. The Supreme Judicial Court of Massachusetts upheld her conviction, adding insult to injury by taunting that she would have avoided adjudication by legally carrying a firearm instead. (The court didn’t bother to identify which Massachusetts municipality would have approved an application for a carry permit from a homeless woman.)

Ms. Caetano’s right to keep and bear the stun gun for self-defense was finally upheld only by the U.S. Supreme Court. The opinion was unanimous, joined by the late Justice Ruth Bader Ginsberg, a champion of women’s rights.

In the current political torrent of accusations of inequity, discrimination and privilege, how can the Second Amendment be so easily ignored when it is so arbitrarily and unequally applied?

 

‘MarkPA’  is trained in economics, a life-long gun owner, NRA Instructor and Massad Ayoob graduate. He is inspired by our inalienable rights to “life, liberty and the pursuit of happiness” and holds that having the means to defend oneself and one’s community is vital to securing them.

This article originally appeared at drgo.us and is reprinted here with permission. 

comments

  1. avatar jwm says:

    I am a grandfather. A vet with a good record. I’ve been vetted by various .gov agencies as recently as 4 years ago. I have a cleaner record than most.

    I cannot get a permit to carry because of my zip code. Apparently constitutional rights are dependent on your address in the eyes of the left.

    I am not just pushing for a full restoration of human and civil rights in America. I’m pushing for prison time for those that have committed crimes against humanity, such as biden, newsom, and the rest of the gun control crime mob.

    1. avatar I Haz A Question says:

      I am a lifelong gun owner, armorer, and restoration specialist. An owner of numerous guns in multiple platforms. A person with consistent training (well regulated), including 100 hours of professional instruction and counting. An instructor in my own right who has trained many others. A person with a spotless record who would normally pass any background check.

      Yet I cannot purchase any ammo in CA because none of my guns appear in the CADOJ’s AFS database because I (legally) acquired them in years past via various means that didn’t include an FFL or 4473. I did purchase a few, but that was a couple of years before CADOJ’s chosen cutoff year because they apparently don’t want to consider going back that far. And I will never purchase any gun in CA from this point forward because I don’t want to put myself under the Eye of Sauron.

      I am not a sworn LEO, so I cannot purchase full capacity magazines, or most modern guns, or even carry on my person. No open carry because…well…thanks for nothing Jerry Brown. And no concealed carry because…well…thanks for nothing each and every L.A. County Sheriff going back for decades…

      As for that, even Californians to the north of me (Kern County), west (Ventura) and southeast (San Bernardino, Riverside) have an actual chance of obtaining a CCW. But no soup for me, because as ‘jwm’ says…my zip code. Please explain how this is not an infringement.

      So why is it my American brothers may exercise their 2A rights more fully only a couple hundred miles to the East in NV and AZ, but I am shackled?

      1. avatar paul says:

        You can always get some camping land in Kern County and use that as your primary address. I considered it, but can’t afford it(even though it could be a good investment.

      2. avatar GunnyGene says:

        That’s a damn good question. Unfortunately, I don’t have an answer other than what you already know. As a resident of MS, I can only offer my condolences and hope that some sunny day CA Government will see the light.

      3. avatar LampOfDiogenes says:

        I haz,

        Yeah, you kinda gave it away with the whole “California” thing. I am a native Californian – second generation. I remain here because my youngest daughter hasn’t graduated, yet. The minute her graduation ceremony ends, the last thing California will see of me is my disappearing talllights. If you stay in the Communist People’s Republic of KKKalifornia, don’t b**** at me about how you are treated. You KNOW hit’s happening, and you choose to accept it. I accept it (grudgingly) because I won’t pull my daughter away from her friends. The moment she graduates, I am OUTTA this sh**hole. And Gavin Gruesome can s*** a fat d***.

        1. avatar The Crimson Pirate says:

          I have mixed feelings about that, lamp.

          There probably is a time to cut and run. But being in PA and participating in the battle here I also know that things could change at any time and there is no place that’s perfect to run to.

          The division isn’t between free and non free states, it’s between rural and urban. And even in nominally freer states the big urban centers are leftist and can outvote the rural areas.

          Then we see the gerrymandering, the settling of foreign nationals in such a way as to dilute the conservative vote, and all the money from Bloomberg, Soros, and the Chinese communist party. We may as well fight here.

    2. avatar FormerParatrooper says:

      There are those who believe that veterans should not be allowed to bear arms because we must be unstable or some stupid crap like that.

      My zip code also restricts my ownership of about anything that requires a tax stamp. At least Illinois is kind enough to “allow” standard magazines, even though they have tried to be California a little further East.

    3. avatar Shirtonmyback says:

      I’m just one of the “people”, a nothing, a nobody, with the shirt still on my back, and I have a God given right to keep and bear arms without an justification whatsoever, and that shall not be infringed.

    4. avatar Miner49er says:

      The triumph of state’s rights over the central government.

      1. avatar Ing says:

        “Triumph,” he says.

        It only works one way for you “progressive” assholes. A ratchet that always squeezes tighter. State-level violations are a triumph in progtard world, and federal violations are always on the wish list.

        Also, “state’s rights” are a misnomer. No government has any kind of rights; governments only have powers, which in America are meant to granted by the will of the people — and also are restricted, again by the people, because people have rights.

      2. avatar LampOfDiogenes says:

        Yeah, as usual, Miner49er is not only wrong, he is stupidly wrong.

        Lemme put ya some knowledge, idjit – the Constitution sets a FLOORR for individual rights. State constitutions are welcome to make requirements different from the Constitution, so long as they do not conflict with the Constitution.

        Does that filter through your thick skull into your tiny, unused brain????

        Lemme make it easy for you, moron. I have an INHERENT right to self-defense, to rebel against tyranny, and to oppose an oppressive government. Don’t like that? Go cry on the chaplain. I have no f***s left to give for your stupidity.

        You think you and your Leftist p***y buddies have a chance???

        Bring it, mofo. Bring it.

        1. avatar Miner49er says:

          Oh good, I’m glad you see the fallacy of the states rights argument.

          Sadly, thousands of Americans died opposing the traitorous Jefferson Davis and Robert E Lee in their fight for what they called states rights.

          I hope you will join me in advocating to have every monument and memorial to those traitors and their accomplices destroyed and the remains thrown in the dustbin of history.

        2. avatar jwm says:

          miner. As soon as you start preaching treason charges for antifa. Or at least admit the truth about them. They are the fascists they claim to be against.

          Waiting…….

        3. avatar The Crimson Pirate says:

          Destroying history is always an early step in every communist revolution. Isn’t it ironic that the same nation that assertd it’s right to secede a mere 90 years or so prior then hypocritically denies it when they find it inconvenient. Those men were not traitors. They were heroes. We are either a nation of laws and follow principles or we will be just another empire in the dust bin of history.

    5. avatar uncommon_sense says:

      jwm,

      Apparently constitutional rights are dependent on your address in the eyes of the left.

      Actually, your constitutional rights are dependent upon the totally whimsical and arbitrary eyes of the Left. To be more specific and to the point: your constitutional rights are simply dependent upon the emotions of the Left wherever the Left controls government.

      Of course emotions vary wildly from moment-to-moment and person-to-person which is why constitutional rights are so erratic and inconsistent (wherever the Left controls government).

  2. avatar Darkman says:

    The conundrum of Rights Vs Government has always been a slippery slope. It comes down to one simple precept. The difference between those who wish to Govern and those who wish to Rule.

  3. avatar Debbie W. says:

    If it’s Jim Crow Gun Control joe biden AKA “half and half” nobody gets a gun and those who have them well the democRat slave master’s plans are to get them. Think not ? Think again.

    TRUMP/PENCE 2020.

    1. avatar Anymouse says:

      That’s the thinking behind all the discretionary issue schemes. Only the “right kind” of people get approved, while minorities, “wrong thinkers,” and political enemies get excluded.

  4. avatar Debbie W. says:

    Gun Control? It’s a democRat Party and nazi party family tradition rooted in racism and genocide. What filth.

    1. avatar James Campbell says:

      Marge Sanger was a HUGE fan.
      Trump/Pence 2020.
      Come on yuck, embarrass yourself some more today, like the leashed monkey everyone on TTAG KNOWS you are.
      I command you, DANCE for your bloomturd/soros bucks!
      Trump/Pence 2020

      1. avatar Debbie W. says:

        Obviously I must have really upset yuck and instead of a debate all the poor fellow can do is shadow box. I pity all the girly men he goes down on.

        1. avatar James Campbell says:

          🤣
          Trump/Pence 2020…..and slowjoe for PRISON!

        2. avatar Miner49er says:

          Did you say Trump/Prison 2020?

          “Exchange between Robert Mueller and Rep. Ken Buck (R-CO) during Mueller’s testimony.

          “Could you charge the president with a crime after he left office?” Buck asked.

          “Yes,” Mueller replied instantly.

          Buck went on: “You believe that he committed — you could charge the President of the United States with obstruction of justice after he left office?”

          “Yes,” Mueller said again.”

          Trump broke the law, the only reason he wasn’t indicted by Mueller was because US Department of Justice policy is not to indict a sitting President.

        3. avatar jwm says:

          So muellar can file charges after 2024.

        4. avatar LampOfDiogenes says:

          Yeah, Miner49er,

          Blow it out your @$$. You are possibly the least intelligent troll I have encountered – and the most wimpy (you NEVER respond to serious responses to your idiocy). In short, suck a fat c***, Miner.

  5. avatar Vic Nighthorse says:

    I suspect that most people in constitutional carry states couldn’t practically carry a gun to and from work legally without a without a state issued permit due to the federal gun-free school zone law.

    1. avatar GunnyGene says:

      You’d be wrong.

    2. avatar The Crimson Pirate says:

      I would imagine in constitutional carry states no one worries much about the school zones and the only way it would ever become an issue is if something happened that required one to be talked to by a police officer.

  6. avatar Montana Actual says:

    The second amendment exist to fight tyranny, which is much more than self-defense.

    We’ve simply allowed the government to dictate specifics. It’s unacceptable.

    Shall not be infringed. That includes people that some of you boot lickers think should not own a gun. You can’t have it both ways.

    The same goes for speech. There is no such thing as hate speech. We’ve allowed priv ate businesses, companies, agencies, etc etc to dictate what we can and cannot say and where we can and cannot say it. Legal ramifications for threats are one thing, but it’s still not an action. Unless they can prove that you mean to do what you say, like if somebody says I’m going to blow up a building, Then the government and everybody in between needs to stay out of speech too.

    Thus begins the discussion of privacy invasion…

    Limited freedoms. The only truly free people are the ones we colonized our lands on. Not just native Americans, but worldwide. Touchy subject, sure, but true.

    1. avatar Montana Actual says:

      “doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, as long as what we do does not harm them even though they should think our conduct foolish, perverse or wrong.”

      “Your freedom to do as you please with your fist ends where my jaw begins.”

      – John Stuart Mill In “On Liberty,”

      1. avatar UpInArms says:

        An oft-used concept to curtail rights, the “jaw” in this case being the public interest as defined by the legislative process. The abuse comes in when the “jaw” gets bigger and bigger, and more of them and closer and closer in. Eventually the jaws are so big, so numerous and so close that moving your fists in any direction or any distance becomes impossible without hitting a jaw. And that, folks, is how our rights get chipped away until we now have 20,000+ gun laws to contend with across the nation. The gun-grabbers can all say they support the 2A… BUT we just need one more law. And one more. And then one more… next thing you know, as a gun owner, you’re walking in a mine field, but, you know— ya still got the right.

  7. avatar DrDKW says:

    It’s all about denying second amendment rights (and eventually any other ‘inconvenient’ rights) by making their excercise as confusing and difficult as possible – the death of a thousand cuts – nationwide or at the state level. Why else do they want to strike down state pre-emption laws.

  8. avatar eagle10 says:

    For the Demotators, gun control is not about the gun. It is about ‘Control’. They want the subjects to raise their right hands and salute – ‘Heil Biden’. 🤬

  9. avatar John in FL says:

    She would look sexi AF brandishing that flintlock, or not.

    1. avatar Montana Actual says:

      Edward Kenway is that you?

      1. avatar John in FL says:

        Who are you calling a runt?

  10. avatar LifeSavor says:

    Thank you, MarkPA. Learned a few things from you. Thought provoking.

    To preserve our Constitution we need to take back the education system; it has been over-run by leftist extremists. It teaches socialist and even communist ideology while dismissing the US Constitution as racist and out-dated. Education has been replaced by propaganda and pop-culture.

    My daughter stopped attending her online writing class because the instructor spent most of the lessons ranting about feminism. This was a college course that was supposed to cover writing skills. Fortunately, she aced it by completing the assignments and not challenging the instructor. The college also offered a writing course that studied the lyrics of someone called ‘Lizzo’. Not Hemmingway, not Faulkner, not O’Henry, Lizzo.

    We need to demand that schools teach the Constitution, teach the details, what they mean, why they are important. Especially the 1st and 2nd Amendments. Why these were and have been so instrumental in the founding and growth of this country.

    We need to take back the schools.

    1. avatar The Crimson Pirate says:

      The only way to do that is to eliminate compulsory public education and go all private. If you are writing the check directly to the school you have a lot more say in what and how they teach.

      Everyone sees the utility in the separation of church and state. Now we need to separate everything else from the state; education, business, charity, healthcare, etc.

  11. avatar Gregolas says:

    MarkPA. Thank you for a fresh look at arguments for the 2A. Well written, and well reasoned.

  12. Well, I’d have to say that’s the Miltant, Socialist , Police State , Utopia of The People’s 3rd World Republic of M-assachusetts ! A place where Demo-Authoritarian Politicians, Our Figurehead .GOV RINO, Our Authoritarian General, Local/State P.D., STASI controlled, Licensing Ponzi Scheme System, state readily that there is NO 2nd Amendment in MA. Only a barely tolerated “Police (may) issued privilege…” Where as in, NO MA resident can handle, purchase, own, possess, carry, any firearms or ammo without a FID/LTC card permit….MA is ranked number# 48th worst state to live in with 2nd Amendment violations….Daily……..

  13. avatar Aaron Walker says:

    ….Oh, and that stun gun issue in MA. It only lifted the stun gun ban for the police (law enforcement community only.) It is still restricted for citizens! The original ban was because law enforcement (Boston PD drug units) in the 80s were using the early contact stun guns (Nova XR 5000) to torture drug 💉 suspects in custody…It was summed at police brutality…Now, unfortunately, it has opened the door to LEOs only…In clear violation of the end Amendment and the 14th amendment regarding special privileges…..

    1. avatar Aaron Walker says:

      Edit button: “aimed”…

      1. avatar Aaron Walker says:

        Edit button: “2nd Amendment….”

  14. avatar gus says:

    the restrictions on our right to bear arms are “so arbitrarily and unequally applied” because they are peicemeal abrogations of one monolithic right.

    does that make sense? this is what it looks like when a right is chipped away. bit by bit, piece by piece, all of it illegal.

    “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    does that specify who, what, when, where or why?

    there it is in black and white. NO, it does not. WE HAVE THE RIGHT TO BEAR ARMS. end of story.

  15. avatar Grumpy Old Guy says:

    The strategy of the anti gun movement is to simply make owning / carrying a gun too difficult for the average citizen to do so legally. Arbitrary limits, safe gun list (California), abundant no gun zones, age limits, special taxes, background checks for ammo, registration, list of all different types of people banned by group, thousands and thousands of conflicting laws by city and states with their own limitations…..these are all combined to basically kill the 2A by a thousand lashes. It might survive with some vestigial text but they will makes it nothing more than some quaint text if we are not diligent in protecting it.

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