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?