From: [c--am--r] at [optilink.COM] (Clayton Cramer)
Newsgroups: misc.legal
Subject: Re: CCW in NYC
Date: 14 Aug 93 00:50:23 GMT
In article <[01 H 1 JHS 0 DIMAA 9 L 4 UF] at [HUSC14.HARVARD.EDU]> [z--le--y] at [husc8.harvard.edu] (Mikhail Zeleny) writes:
>In article <[1993 Aug 9 011803 28159] at [chpc.org]>
>[r--ud--e] at [chpc.org] (Rob Boudrie) writes:
>
>#I was recently speaking to a retired NYC cop who worked in the licensing
>#division for many years. He is strongly pro-gun rights, but was forced
>#to "treat people terribly". For one thing, he was warned that approval
>#of more than 20% of applications (for any kind of permit, I think)
>#would cause all his applicaitons for the month to be reviewed to see
>#what was wrong.
>
>Has anyone attempted fighting the Sullivan Law and/or the manner in
>which it is enforced in court? What was the outcome?
>
>mikhail [z--le--y] at [husc.harvard.edu]
The Sullivan Law, passed in 1911, licensed not simply
carrying of handguns, but also their ownership. Still,
there was a pretense that the Sullivan Law was merely a
regulation of handgun ownership, not a prohibition. The
distinction between "prohibition" and "regulation" was made
in People Ex Rel. Darling v. Warden of City Prison
(1913), a New York case where the state appellate court
upheld a conviction for unlicensed possession of a
handgun at home. This was apparently a "test case" for
the law, since:
The relator notified the police that he had a
pistol in his house without a permit. Thereupon a
captain of police went to his house and found a loaded
revolver and some loaded shells in a small cabinet in
the bedroom adjoining the parlor. He asked the
defendant why he kept the revolver there and defendant
said he preferred not to answer the question. The
captain asked if defendant had a permit, to which he
replied no. Whereupon the captain placed the relator
under arrest and took him before a city magistrate,
charging him with a violation of section 1897 of the
Penal Law, as amended in 1911.24
The State of New York had passed a series of progressively
more restrictive laws on the carrying of arms, and it would
appear that having failed to solve the problem ("the
problem," as we have discussed in a previous chapter, may
not have been crime), elected to license private possession
of handguns.25 Darling argued against the statute based
on:
the inherent and inalienable right to keep and bear
arms, declared by the English Bill of Rights
(1689), inherited by the Colonies, recognized by the
Bill of Rights as adopted in this State, and in the
Constitutions of many other States, and alluded to in
the second amendment to the Constitution of the United
States...26
Not surprisingly, the appellate court found that the Bill
of Rights was not a limitation on state actions -- a
perfectly valid assertion, in 1913. (Nor had Darling argued
otherwise, except as a form of moral example). To that end,
the court cited all the usual precedents, but also
Robertson v. Baldwin (1897), and quoted it that:
the right of the people to keep and bear arms... is not
infringed by laws prohibiting the carrying of concealed
weapons.27
But of course, the Sullivan Law was not about carrying
of concealed weapons, but of owning concealable weapons.
Concerning the New York Civil Rights Law, the Court
pointed out that it was not a part of the New York
Constitution, and being statutory, were simply another law,
which could be overturned by a subsequent act of the state
legislature, but:
Nevertheless we fully recognize the proposition that
the rights enumerated in the Bill of Rights were not
____________________________________________________________
24 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 414, 29 N.Y.Cr. 74 (1913).
25 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 414, 415, 29 N.Y.Cr. 74
(1913).
26 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 419, 29 N.Y.Cr. 74 (1913).
27 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 419, 420, 29 N.Y.Cr. 74
(1913).
The Right Of Private Possession 473
created by such declaration. They are of such
character as necessarily pertains to free men in a free
State. But in order to appeal thereto for the purpose
of declaring null and void an act of the Legislature,
possessing all the law-making power of the people, it
is necessary, before the act is declared null and void,
that it should clearly be made to appear that it is in
flat violation of some fundamental right of which the
citizen may not be deprived by any power.
The right to keep and bear arms is coupled with the
statement why the right is preserved and protected,
viz., that "a well regulated militia being necessary to
the security of a free State." (Civil Rights Law, sec.4).
If the Legislature had prohibited the keeping of arms,
it would have been clearly beyond its power.28
While Halbrook quotes this last sentence as showing that
the Court held that the regulatory authority of the state
did not include prohibiting the keeping of arms,29 the
following paragraphs show a rather different intent. The
Court went on to quote Presser v. Illinois (1886) and
English v. State (1872), for the purpose of
demonstrating that only "the arms of a militiaman or
soldier" were protected. Yet the English decision, even the
section quoted by the Court, acknowledged that "holster
pistols" were such militia arms, though they were
similarly restricted by the Sullivan Law.30
To justify their decision, the Court concluded:
In the statute at bar the Legislature has not
prohibited the keeping of arms. For the safety of the
public, for the preservation of the public peace, in
the exercise of the police power, the means
employed being within its discretion and not in that of
the courts, unless flagrantly in violation of
constitutional provisions, the Legislature has passed a
regulative, not a prohibitory, act. Legislation which
has for its object the promotion of the public welfare
and safety falls within the scope of the police power
____________________
28 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 420, 421, 29 N.Y.Cr. 74
(1913).
29 Halbrook, That Every Man Be Armed, 181.
30 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 422, 29 N.Y.Cr. 74 (1913).
474 For The Defense Of Themselves And The State
and must be submitted to even though it imposes
restraints and burdens on the individual. The rights
of the individual are subordinate to the welfare of the
State. The only question that can then arise is
whether the means employed are appropriate and
reasonably necessary for the accomplishment of the
purpose in view and are not unduly oppressive...
There has been for many years upon the statute books a
law against the carriage of concealed weapons. No
court in this country, so far as I know, has ever
declared such a law in violation of the Constitution or
the Bill of Rights.31 It did not seem effective in
preventing crimes of violence in this State.32 Of the
same kind and character, but proceeding a step further
with the regulatory legislation, the Legislature has
now picked out one particular kind of arm, the handy,
the usual and the favorite weapon of the turbulent
criminal class, and has said that in our organized
communities, our cities, towns and villages where the
public peace is protected by the officers of organized
government, the citizen may not have that particular
kind of weapon without a permit, as it had already said
that he might not carry it on his person without a
permit. If he has it in his possession, he can readily
stick it in his pocket when he goes abroad.33
The decision of the Court was split 3-2; Justice Scott
wrote the dissenting opinion, in which he pointed out:
[T]hat every statute shall be given a reasonable
construction, where its language is susceptible of more
than one construction, and in determining what is a
reasonable construction, regard is to be had not only
to the language but also to the evil sought to be
guarded against and to the nature of the remedy
provided. This is especially true of statutes like the
one now under consideration which is highly penal,
creates a crime out of that which was formerly lawful
and relies for its authority upon the existence of that
____________________
31 Of course, we have already seen in a previous chapter
that this is incorrect.
32 Beccaria, of course, would not have been surprised.
33 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 422, 423, 29 N.Y.Cr. 74
(1913).
The Right Of Private Possession 475
somewhat vague and shadowy right known as the police
power.34
____________________
34 People Ex Rel. Darling v. Warden of City Prison, 139
N.Y.S. 277, 154 App. Div. 413, 425, 29 N.Y.Cr. 74 (1913).
--
Clayton E. Cramer {uunet,pyramid}!optilink!cramer My opinions, all mine!
The California Bar Association wants lawyers added to the list of groups
given special protection by "hate crime" laws. Did I miss something? Since
when have $75/hour lawyers become oppressed minorities?