I think it’s important that I revisit the sticky subject of gun control now and then. There were a couple of legal events that occurred in the last week on opposite coasts that warrant a serious review of the bidding on where America stands with respect to Second Amendment policy.
The first was the spectacular failure of California Senate Bill 918, a concealed carry law that would have instituted a series of restrictions on the issuance of permits. Despite heavy lobbying on the day of the vote by California Attorney General Rob Bonta and the support of Governor Gavin Newsom, an insufficient number of the Democrat controlled California Legislature could be persuaded to vote for the bill. Too many Californians from too many constituencies in the state, which is as large as most of the eastern seaboard of America, were against it. Newsom, Bonta, and gun control activist legislators have stated that they will try again later in the year, presumably after the risk of voter backlash in the November mid-term election has passed.
But I don’t think this law should ever be considered again because of just how rude and degrading its intent is towards the ordinary citizens of America.
SB 918 is a copycat bill closely following the template of the State of New York’s Concealed Carry Improvement Act (CCIA) that was railroaded to passage earlier this year following the Supreme Court decision to gut the discretionary issue permit laws of New York and other states, including California. New York’s angry response was to raise a fist against the Supreme Court declaring a minefield tapestry of restricted spaces, a presumption of denial in private spaces, and a demand to give up personal privacy and be judged by the state as to good moral character, raising a number of First Amendment concerns.
New York’s CCIA law barely survived being stifled by a preliminary injunction last week that would have prevented its concealed weapons carry law from taking effect. The law went into effect in New York on September 1, 2022.
The judge in the case stated that he did, in fact, have strong reservations about the constitutionality of the hastily passed New York Concealed Carry Improvement Act (CCIA) which turns the landscape of New York into a minefield for a concealed carry permit holder to the point that it is impossible to go from point A to point B without committing a crime.
The denial of the preliminary injunction turns out to be based on one simple thing. The judge determined the bringers of the lawsuit, Ivan Antonyuk, Gun Owners of America, Inc., Gun Owners of America New York, Inc., and Gun Owners Foundation do not have standing because none of them had been factually harmed by the as-yet-to-take-effect law.
The judge created a game of chicken for New York. Basically, the first person that is arrested by New York under the CCIA creates the standing for a new lawsuit that will likely shut down the law like a hammer. New York is surely aware that the decision in the very case that allowed the law to proceed contains specific instructions on what to do if the state tries to enforce it.
Will someone be arrested for crossing through a designated “safe space” when there is no reasonable way not to? Will someone’s existing permit renewal be denied by an arbitrary interpretation of their Facebook page? Will the surivors of someone who died in a “safe space” that could have lived had they been able to defend themselves claim harm? There are as many trap doors for New York as the traps the state has set for people.
California should watch this carefully because that’s pretty much all it will take to come under similar legal attack if it adopts a CCIA-like law to replace the changes the state made to its existing CCW permitting process made immediately following the Supreme Court’s decision.
California has already made changes to its CCW laws to conform with the Supreme Court decision and things look to be working well in most instances. Certainly, the failure of SB 918 in part recognized that this turmoil is inevitable and California legislators would be right to question why not just sit back and watch if New York sinks or swims alone in its obstinance. I frankly see little gain to California in joining a state rebellion against Washington to fight the Bill of Rights.
But that’s not what’s really disturbing me about the New York case.
The War Against Ordinary America
The CCIA creates unprecedented barriers to qualifying for a CCW permit. The shock is the historical basis that New York claims gives it the right to declare that only persons agreeable in their eyes may be issued permits. Squirreled away in the legal documents of the Antonyuk vs. Bruen case is Document 19. “DEFENDANT SUPERINTENDENT BRUEN’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION”
Pages 25 to 33, which were pointed out by Chief Judge Glenn T. Suddaby, contain New York’s “historical basis” for its right to implement the CCIA.
According to the State’s document:
“New York’s good moral character requirement is consistent with the long history in both England and America of disarming those whose associations, reputation, or conduct suggested they posed a danger to others or to the public order.”
The state claims this historical basis for the right to do as they please:
“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U.S. at 634-35. :[F]rom time immemorial, various jurisdictions recognizing a right to arms have nevertheless taken the step of forbidding suspect groups from having arms.”
Speaking to New York’s willingness to throw its weight around:
“In the period between the establishment of colonies in America and the Revolutionary War, both the colonial governments and the monarchy from which their legal traditions originated did not hesitate to disarm persons based on a finding that they were potentially dangerous.”
As to what the state thinks of ordinary Americans, who are today’s equivalent of the populace that dots the landscape, a chilling reminder that we are expected to remember that we must behave on the reservations that we live in.
“From the early days of English settlement in America, the colonies sought to prevent Native American tribes from acquiring firearms, passing laws forbidding the sale and trading of arms to Indigenous people.”
I really don’t know why New York had to say this in a gun control legal filing because, quite honestly, all of us who live west of the Hudson River probably wouldn’t be too happy that New York still thinks it is in the business of taming savages. Special note to the California Legislature here, we are they of whom the forked tongue speaks.
I’ve sometimes joked that New York is still the last British garrison in America. And in its legal arguments about the right of the state to continue to act like New York is still a colony controlled by a governor appointed by the Crown, they continue:
Colonial governments also directly regulated gun ownership of individuals believed to be unfit. The Massachusetts Bay Colony, for instance, issued an order in 1637 disarming the followers of a dissident preacher named John Wheelwright because there was “just cause of suspition that they .. may, upon some revelation, make some suddaine irruption upon those that differ from them in judgment.”
Likewise, King Charles II of England passed the Militia Act of 1662, which authorized royal officials, called Lord Lieutenants, to “search for and seize all arms in the custody or possession of any person or persons whom the said Lieutenant or two or more of their deputies shall judge dangerous to the peace of the Kingdom.” Militia Act of 1662, 13 & 14 Car. 2, c. 3 § 13 (1662), TD Ex. 8.10 Based only on a person’s reputation for supposed dangerousness, as known to one English official or two of his deputies, the person could be disarmed to protect public safety.
And then there is this dark assertion of a right to discrimination not just on race, but on the basis of religion:
And even after the English Bill of Rights established a right of the people to arm themselves, the right was only given to Protestants, based on a continued belief that Catholics were likely to engage in conduct that would harm themselves or others and upset the peace. Virginia followed this example, passing an act in 1756 that ordered the disarmament of all Catholics or “reputed Papists” who refused to take an oath of loyalty to the colonial government.
And then comes the call for loyalty to the state:
In the Revolutionary era, colonies frequently disarmed individuals based on their reputation for being disloyal or hostile to the new American nation. Once an individual had been deemed disaffected to the cause of America, he could often only regain his right to bear arms by appearing in person before an official to swear an oath of loyalty.
New York also calls for an “are you good enough for us” test when it comes to arms quoting this historical passage about militias in the early American nation:
“Character judgments also played a role in Founding-era statutes governing the militia, which provided for the disarmament and punishment of those who showed up to muster and demonstrated their unfitness to bear arms.”
And then finally, despite the Supreme Court’s ruling that this this logic cannot be used in making law in the United States anymore, and in a ruling aimed directly at New York no less, Bruen et al just refuse to give up on insisting New York has the right to discretion in the control every people on its reservation:
“In the period before and after the ratification of the Fourteenth Amendment, Congress and the states began to implement firearm licensing regimes involving a discretionary determination of whether an individual was potentially dangerous.”
Bear in mind that the Supreme Court decision in the last Bruen case specifically discussed the interpretation of the Fourteenth Amendment as it pertains to the Second Amendment. And here’s the Colony of New York telling Washington to shove it.
But the bottom line when you really read New York’s argument is that the state is trapped in its colonial history and in denial about the reality the there is a vast American nation west of the Hudson River today. It is a country that recognizes it has done wrong to indigenous people. It is a country that values the diversity of its opinions, often disagreeing, that do not have to cow to the dictates of those in power. It is a land where “fit” to contribute to the American experiment has become a tapestry. And it is a land where ordinary people matter.
And at the other end of the American continent is a place called California, where every argument that New York made about why it has the right to treat its residents like serfs on a reservation is garbage. Californians should remember this the next time someone tries to foist a carbon copy of the CCIA on us. The right answer is, “Pack that carpet bag and go home.”