Red Flag Laws and Their Attack on the 2nd Amendment by Matthew D. Winchell, J.D.

On June 23, 2022, the United States’ Supreme Court struck down a New York State law that placed an unsurmountable number of limitations on applicants seeking concealed carry pistol permits, the case commonly referred to as Bruen.1 In a 6-3 decision, the Supreme Court ruled against New York State, marking the largest win for 2nd Amendment advocates in well over a decade.2

In response to the decision, New York State has started enforcing Extreme Risk Protection Orders, more commonly known as Red Flag Laws. Essentially, there are seven relevant factors that the Court shall consider when making their determination whether there are grounds for a temporary extreme risk protection order:

(1) “a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

(2) a violation or alleged violation of an order of protection;

(3) any pending charge or conviction for an offense involving the use of a firearm;

(4) the reckless use, display or brandishing of a firearm, rifle, or shotgun;

(5) any history of a violation of an extreme risk protection order;

(6) evidence of recent or ongoing abuse of controlled substances or alcohol; or

(7) evidence of recent acquisition of a firearm, rifle, shotgun, or other deadly weapon or dangerous instrument, or any ammunition therefor.”3

This list seems expansive, but the legislature left the door open for each individual judge to add to the list as they see fit.4

If a Court has unilaterally found that a person is no longer capable of being in possession of weapons, a temporary extreme risk protection order will be served upon you in writing. The order will include the following:

(1) a statement of the grounds found for the issuance of the order;

(2) the date and time the order expires;

(3) the address of the Court that issued the order;

(4) a statement informing you that you may not purchase, possess, or attempt to purchase or possess any type of firearm and that the Court will hold a hearing no sooner than three business days, but no later than six business days after the service of the temporary order.5

If you receive a temporary extreme risk protection order, and you have been notified that there is a hearing scheduled to determine whether a final extreme risk protection order is appropriate, it is imperative that you have an attorney working with you through this process. If the Court issues a final extreme risk protection order, you will not be able to possess any firearms for a period of twelve months.6 Furthermore, a request can be made to extend the time frame that the extreme risk protection order is in place.7 If this is done a hearing will be held to determine if the request will be granted based on sufficient evidence of new conduct.8

These laws have been scrutinized in various regions of New York State as being unconstitutional for infringing on 2nd Amendment rights.9

In G.W. v. C.N., the Supreme Court in Monroe County held that the Extreme Risk Protection Order laws are unconstitutional and any temporary order or final order issued by the Court pursuant to this law be vacated immediately.10

Essentially, the question presented to the Court “is whether CPLR Article 63-a sufficiently protects a New York citizen’s due process rights when, as here, the state denies a fundamental right, to wit: by infringing on that citizen’s right to keep and bear arms under the Second Amendment of the United States Constitution.”11

Before analyzing the question presented, the Court looked back to Bruen and reiterated that “the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.”12 The Court also repeated from Bruen that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”13 Contrary to what many people against the 2nd Amendment would have us believe, in another hallmark case, McDonald, the Court declared that the Second Amendment is not a second-class right.14

Turning back to the question at hand in G.W. v. C.N., the Court notes in dicta that after July 6, 2022, police officers and district attorneys are mandated to file for a temporary extreme risk protection order “upon the receipt of credible information that an individual is likely to engage in conduct that would result in serious harm to himself, herself, or others” as defined by the mental hygiene law.15

The Court compared the language in the extreme risk protection order to that in the mental hygiene law, which defines likelihood to result in serious harm in the following manner:

(1) “substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself; or|

(2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.”16

Under the mental hygiene law, it is required that a physician to make the determination that a patient present a “likelihood to result in serious harm.”17

The extreme risk protection order and the mental hygiene law both require the same finding that “an individual is likely to engage in conduct that would result in serious harm.”18 The extreme risk protection order goes one step further when it specifically refers to the mental hygiene law in the definition.19 However, it does not afford the same protection of having a physician make the medical determination of a person being likely to engage in conduct that would result in serious harm.20 Instead, it places that decision in the hands of the district attorney, police officers, school administrators, and various other non-professionals.21

This would be one of the main issues the Court found within the law for extreme risk protection orders.22 The court said that “[i]n order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees, such as a physician’s determination that a respondent presents a condition ‘likely to result in serious harm,’ before a petitioner files for a TERPO or ERPO.”23

This was not the only problem the Court found within the law. It commented in depth of the possibility that someone other than the person subject to the ERPO may have their guns taken away without procedural due process.24 Specifically, “a court may be permitted to issue a search warrant to confiscate a respondent’s guns, but which also may result in certain circumstances of the confiscation of guns owned or possessed by non-respondents.”25 In legal terms possess has a specific meaning, “a person has tangible property in his or her constructive possession when that person exercises a level of control over the area in which the property is found sufficient to give him or her the ability to use or dispose of the property.”26 Therefore, if the respondent subject to the ERPO lives with a person who is not subject to an ERPO, that person would have their guns taken away without probable cause.27 This would be a violation of that person’s Second and Fourth Amendment rights guaranteed by the Constitution, which is applicable to the states through the Fourteenth Amendment.28

It is very likely that these Red Flag Laws will be held unconstitutional, either by New York State or by the Supreme Court of the United States. This is a very slow-moving process as it takes years for a case to make it to these levels. In the meantime, it is imperative that you seek assistance of counsel if you have a been served with a temporary extreme risk protection order. If you do not seek assistance, you risk losing your 2nd Amendment rights.

For a printable .pdf copy of this article click HERE.

1 New York State Rifle and Pistol Assn., Inc. v. Bruen, 142 S.Ct. 2111 (2022).

2 Id.

3 N.Y. C.P.L.R. § 6342 (McKinney)

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 G.W. v. C.N., 181 N.Y.S.3d 432 (N.Y. Sup. Ct. 2022); See also R.M. v. C.M., 189 N.Y.S.3d 425 (N.Y. Sup. Ct. 2023).

10 Id.

11 Id. at 435.

12 Id.

13 Id.

14 McDonald v. City of Chicago, Ill, 130 S.Ct 3020 (2020).

15 G.W., 181 N.Y.S.3d at 436.

16 Id.; See also MHL § 9.39.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

25 Id. at 438-9.

26 Id. at 439

27 Id.

28 Id.

______________________________________________

Matthew Winchell is a law associate with Passalacqua & Associates, where he focuses his work on 2nd Amendment law and criminal defense. Passalacqua & Associates stands ready to fight for your 2nd Amendment rights in any proceeding against any New York State entity.

He can be reached at 315-500- 6425 or matt@cnytriallaw.com.

Columbus versus Indigenous Peoples  by Tom Reynolds

The Left wants to eliminate Columbus Day, as he offends them because he was involved with slavery.  Instead, the Left wants to honor Indigenous Peoples.  It’s appropriate that Democrats want to honor Indigenous Peoples as Indigenous Peoples’ history parallels the Democrat Party’s history of slavery.

Did you know that the 13th Amendment that abolished slavery did not apply to all slaves?  The “Five Civilized Tribes” of the southeast - Cherokee, Chickasaw, Choctaw, Creek, and Seminole - also participated in the institution of slavery.  Because these tribes were located outside the sovereignty of the United States, constitutional amendments did not apply to them.  (Kinda like Kathy Hochul, who doesn’t believe the 2nd Amendment of the Constitution applies to New York State.)

According to journalist Aliana E. Roberts, by 1800, the “Five Tribes” had developed “plantations that rivaled those of their white neighbors.”  She also notes that the percentage of black slaves in the population was not insignificant.  In 1860:

• Cherokee Nation citizens owned 2,511 slaves (15 percent of their total population),

• Choctaw citizens owned 2,349 slaves (14 percent of their total population), and

• Creek citizens owned 1,532 slaves (10 percent of their total population).

• Chickasaw citizens owned 975 slaves, which amounted to 18 percent of their total population.

These were proportions equivalent to that of white slave owners in Tennessee, a large slaveholding state.

Most other North American tribes also practiced some form of slavery, even before Columbus.  (Wait a minute – Columbus didn’t introduce slavery to America?  If that’s so, could the 1619 Project also be wrong?)

In The Birth of America, William Polk writes: “Indian societies were frequently at war with one another…booty consisted in part of slaves.  Slavery was as common in the New World as among Africans and Europeans. Practices were equally cruel.”

Close to home here in NY State, the Mohawks would eat their captives, which is usually referred to as cannibalism.

A special “shout out” on Indigenous Peoples Day should go to the Aztecs.

The Aztecs had religious festivities at the end of their 20-day months and human sacrifice was an essential feature of these festivities.  (And you thought giving up something for Lent was hard.)

Human sacrifice also was part of the legend around the founding of the Aztec capital city, Tenochtitlan, which was accompanied by the sacrifice and skinning of the daughter of the King Coxcox of Culhuacan.  (By contrast, Jefferson, Madison and Hamilton decided on the current site of Washington D.C. over dinner and a bottle of wine.)

Another aspect of Aztec human sacrifice was children who were made to cry before the sacrifice. The tears were thought to wet the earth and thus appease the gods. If a child did not cry, the priests would sometimes tear out the nails of the child to make him or her cry.

The Aztec practice of human sacrifice also served a political purpose.  The Aztecs were small in number compared to the other subjugated tribes and, thus, there was always a danger of an alliance between these tribes against the Aztecs.  To avert this, Aztecs demanded humans as a tribute from the subjugated tribes.  As a result, these tribes would constantly raid each other to procure humans for sacrifice. This minimized or eliminated the chance of an alliance between the tribes.  (Sounds like the current effort to keep the Left in power by dividing people over race and gender issues.)

In 1487, five years before Columbus discovered America, “Templo Mayor” was dedicated in the Aztec city of Tenochtitlan, with a four-day celebration. How many were sacrificed during that time is a subject of scholarly speculation with the lowest estimate at 4,000. 

It is hard to know how many Aztecs died under the sacrificial knife. Many reputable scholars today put the number between 20,000 and 250,000 per year for the whole Aztec Empire.  (Hitler, Mao and Stalin would have been proud of the Aztecs.)

Indigenous People Day would not be complete without mentioning the Incas of Peru.  Although a little less bloodthirsty than Aztecs, the Incas had enslaved other indigenous people along the Andes.

Human sacrifices were practiced by the Incas to ward off danger, famine or an epidemic. The victims were usually children, sometimes men and virgins.  (Apparently, virgins have been sacrificial favorites, everywhere.) 

More recently, archaeologists have discovered a site in northern Peru of mass child sacrifice. About 550 years ago, over 140 children were probably sacrificed on a site known as Huanchaquito-Las Llamas.  Later, the number of sacrificed children’s remains found rose to 269, with the discovery of another nearby site. 

An interesting aspect of the Inca Empire is described in the book “A Socialist Empire: The Incas of Peru” by Louis Baudin.  (The Incas would make Stalin, Mao and Fidel proud.)  Baudin writes that the regime imposed by the Inca rulers on the indigenous populations they had enslaved was a precursor of Marxist-style socialism.  Private property and individual initiative were prohibited.  Money and commerce did not exist.  Private life was subject to tough state regulation: people had to dress in a similar way; marriage was allowed only following the eugenic laws of the state, to avoid “racial contamination”.  Like any tyrannical system of this type, it was oppressive and didn’t work, so much so that the subjugated indigenous peoples enthusiastically helped the few Spaniards who came to get rid of it.  (Sounds like the Incas deserve the Margaret Sanger Planned Parenthood award for eugenics.) 

So, the Aztecs and Incas enslaved other indigenous peoples.   Well, at least they weren’t racists.          

It’s lucky for those Indigenous Peoples that they weren’t “White European Heritage Peoples” or the ‘Woke’ would demand that they lose their new holiday because they practiced slavery.  To be fair, just about every peoples have practiced slavery; European, Asian, African and indigenous American. 

If the holiday had to be renamed, again, the “woke” would demand that it honor someone who did not practice slavery or cannibalism; that, of course, would eliminate just about every race and country in the history of the world. 

But if you wanted to name it for someone who did not practice human sacrifice or cannibalism, Christopher Columbus is available.

Newsome Checks the Boxes  by Tom Reynolds

On Monday, we wrote about California Governor Newsome’s appointment of a replacement for Diane Feinstein and that it would be a preview of the appointments that a (God help us) President Newsome would make.

Newsome checked almost every leftist box when he tapped Laphonza Butler with that appointment.

    Black.  Check.

    Woman. Check

    Lesbian (LGBTQ). Check

    Radical Abortionist.  Check (President of Emily’s List a pro-abortion organization.)

    Labor activist.  Check.  (President of SEIU Local 2015)

    Anti 2^nd Amendment.  Probably check.  (We could not find a direct statement of hers but Newsome said that Butler's appointment comes at a time when freedoms like…safety from gun violence "have never been under greater assault."  We’ll take that as a hint about where she stands on 2A.)

    Political Insider.  Check.  (Senior adviser for the presidential campaigns of Kamala Harris and Hillary Clinton.)

    No military experience.  Check.  (But she now has a vote on going to war, military budget, officer commissions, etc.)

    No business experience.  Check.  (But she now has a vote on major business legislation.)

    Got rich in politics.  Check.  Butler continues in the tradition of Joe Biden, Lyndon Johnson and many others, in that she was born poor (her widowed mother worked two jobs) and Butler has spent her entire working life in politics or near politics and can now afford two houses in two of the most expensive housing markets in the United States. That’s why politics is called public service, right?)

Now this is funny... 

Newsome also said that “Laphonza Butler represents the best of California.” 

Well, sorta.

California is leading the nation in out-migration from the state as ‘the best of California’ seem to prefer anywhere but California.  Butler lives in Silver Springs Maryland and is registered to vote in that state.  She does own a house in California and will have to register to vote In California before she can take the Senate seat.  (That pesky U S Constitution is constantly a pain-in-the butt to leftists like Newsome.)

On the chance that Newsome might yet end up with the Democrat presidential nomination, remember this appointment, along with all his many insane acts as governor when talking to gun owners who don’t vote.

By the way, Newsome just signed off on an 11% tax on retail sales of guns, gun parts and ammunition.

It Doesn’t Work – Who Cares  by Tom Reynolds

Thanks to Associate Supreme Court Justice Clarence Thomas, the Gazzola v. Hochul case, which challenges the ammunition background check in New York, is headed to a ‘conference’ in the Supreme Court on Friday, October 6th.  The ‘conference’ will decide if the Supreme Court will hear the case on an expedited basis or let it work its way through the lower courts.

Cementing her challenge to Kamala Harris as not the sharpest tack in the box, Governor Hochul confused Gazzola v. Hochul with the Antonyuk v. Hochul case; she claimed that Justice Thomas was bringing the matter to conference to try to dismantle New York’s concealed carry provisions, but Gazzola deals with inspections and ammunition background checks. It does not touch things such as what the state deems sensitive areas. (There are other cases in process that challenge the latter.)

Hochul says she's confident the law will be upheld.

Rob Rosborough, a litigation attorney with Whiteman Osterman & Hanna LLP said: "I wouldn't expect the governor to say anything different…She's more of a politician than a legal scholar."

Note: SCOPE and its members have financially contributed to Gazzola.

Speaking of Gazzola and the new background checks…

Albany County Sheriff Craig Apple, a Democrat, who is also the president of the state Sheriff's Association. says the required background checks to purchase weapons or ammunition “…isn't going to keep New Yorkers safe.”

Apple says that people who commit gun crimes don't buy their guns or ammo legally and they will go across state lines.  Hochul and the NY legislators “…believe it'll make people safe…I don't really know how."

Fulton County Sheriff Richard Giardino says he continues to hear about delays in certain parts of the state, especially for people with minor crimes on their record from decades ago, or that had dismissed charges that trip the system.

Giardino said: "…when somebody was 17 years old, they stole a pack of cigarettes from a grocery store, they did community service and it was supposed to be dismissed.  And now all of a sudden this popped up."

Earlier this week, Governor Kathy Hochul said "The whole premise behind this is…for us to understand who has what weapons and what ammunition.”

Note: Hochul will know what guns and ammo law abiding gun owners have.  Criminals…not so much since, as Sheriff Apple said, criminals don’t buy guns and ammo legally. 

_______________________________________________________
______________________________________________________

Legalizing marijuana was supposed to lead to a drop in crime.  Instead, it has created new crimes.

ABC7 in California reports that:

Amid California's ongoing drought, drug cartels have been stealing 2-3 million gallons of water a day to feed illegal marijuana grows in the Antelope Valley.

Los Angeles County Sheriff Alex Villanueva said the cartels are "stealing water in the middle of the night from the farmers."  Villanueva said the stolen water is typically loaded onto tanker trucks and then delivered to the grow sites in the area. "The only tanker trucks out there are for the illegal marijuana grows," he said.

______________________________________________________

From tsa.gov:

A King George, Va., man was cited by police after he was stopped by Transportation Security Administration (TSA) officers with a loaded handgun at one of the checkpoints at Ronald Reagan Washington National Airport on Thursday, Sept. 21. The .22 caliber pistol was loaded with five bullets and was packed in the man’s carry-on bag.  Police confiscated the gun and cited the man on state charges.  (Emphasis added.)

The man blamed his wife and told officials that she packed his carry-on bag and did not know that he already had his loaded gun inside.

The lesson here is that if your wife is mad at you, don’t let her pack your bags.

California Senator Diane Feinstein died leaving the Democrats with a 50-49 advantage which puts Joe Manchin of West Virginia back in power as a deciding swing vote.

Breitbart had an interesting take on it - everyone else wins, because she was a senior Senator and brought lots of ‘goodies’ to California.  She will be replaced by a junior Senator without much influence and the ‘goodies’ will flow elsewhere.  Breitbart opines that Texas may be the biggest winner because there will be fewer reasons to stay in California and not move to Texas.

It also puts California Governor Newsome’s presidential ambitions in the limelight.  He has promised to appoint a black woman - not the best person available which is who he should have promised to appoint.  (Joe Biden nominated a semi-black woman for VP and look what happened.)  And if he appoints someone far left, that will be a preview of his appointments as a president and will be used against him.  (And if he appointed a moderate – very unlikely – the far left will crucify him.) 

Ah, the problems they create when they put politics ahead of duty and country!

Senator Pam Helming Fights Back Against New Regs

          As you know, background checks for ammunition and firearms in New York State are now conducted by the New York State Police. This change took effect on September 13, 2023, and was instituted as a requirement of the Concealed Carry Improvement Act, legislation I strongly opposed and voted against.  

          The Concealed Carry Improvement Act requires background checks for both firearm and ammunition purchases. The background checks are conducted by a new centralized bureau established within the State Police. As I mentioned, I oppose the State taking control of the background check process and implementing further steps and fees. I wanted you to know that I have introduced legislation removing background check requirements for ammunition purchases and preventing new fees from being passed on to retailers and consumers.

          My legislation, Senate Bill S.7650-A, would: 

• Require that all costs associated with the creation and maintenance of the background check system be borne by the State and prohibited from being passed on to either retailers or consumers, eliminating any possibility of new fees. 
• Eliminate new requirements that those purchasing ammunition submit to a background check. 
• Eliminate the creation of an ammunition purchase database, removing concerns about the State unnecessarily collecting data. 
  
  I have heard from many of my constituents about the burdensome process and unreliability of the new background check system. Please know that I will continue to fight this State overreach and other legislation – like Bail Reform, the HALT Act, and the Concealed Carry Improvement Act – that undermine lawful gun owners and sportspeople while prioritizing criminals. 
  
  Senator Pam Helming
  helming@nysenate.gov
  119 Fall St
  Seneca Falls NY 13148

Kamala is On Her Way to Save the Day  by Tom Reynolds

Joe Biden announced the formation of ‘Executive Office of Gun Violence Prevention.’  Biden pledged to use the office to “centralize, accelerate, and intensify” his administration’s gun control push.

A  report by the Washington Post makes clear that this new office will be coordinating with the ‘Community Justice Action Fund’ and ‘Everytown for Gun Safety,’ two far left gun control organizations.

On a positive note, Biden said he had chosen Vice President Kamala Harris to oversee the office.  She was a disaster as the ‘Border Czar” so let’s hope she is as successful in this endeavor as she was on illegal immigration.

After Biden announced the launch of the new office, he then called for an “assault weapons” ban, a “high capacity” magazine ban, and universal background checks. He also called for Congress to take action for more gun restrictions.

Biden previously used 2022’s Bi-Partisan Safer Communities Act to cut off funding to those bastions of criminal activity: high school trap shooting and high school archery programs.

His ATF has put in place rules defining partially complete firearm frames as firearms, has put forward a rule requiring registration of AR-pistols with stabilizer braces, and has most recently proposed a rule to bring the country nearer to universal background checks.  In addition the ATF has a zero tolerance of clerical mistakes in its efforts to drive FFL’s out of business.

______________________________________________

We are constantly bombarded with studies showing how wonderful every Democrat initiative is in preventing the imminent destruction of the world in 5 or 10 or 15 years.  The media is quick to publicize any study, without hesitation.

A column in the ‘Wall Street Journal Webview’ entitled The Band of Debunkers Busting Bad Scientists highlights a group of scientists that get little notice, but they cast doubt on studies that were quickly accepted.  The investigative work of the ‘Data Colada’ scientists and many other academic volunteers has caused numerous studies to be redacted.

How many you ask?

At least 5,500 faulty papers were retracted in 2022, compared with 119 in 2002, according to ‘Retraction Watch,’ a website that keeps a tally.

Of nearly 800 papers that one researcher reported to 40 journals in 2014 and 2015 for running misleading images, only a third had been corrected or retracted five years later.

An article by some of these scientists, published in 2014, coined the now-common academic term “p-hacking,” which describes cherry-picking data or analyses to make insignificant results look statistically credible.

Why does this happen?

The pressure to publish papers—which can yield jobs, grants, speaking engagements and seats on corporate advisory boards—pushes researchers to chase unique and interesting findings, sometimes at the expense of truth, according to researcher Joe Simmons.

“It drives me crazy that slow, good, careful science—if you do that stuff, if you do science that way, it means you publish less,” Simmons said. “Obviously, if you fake your data, you can get anything to work.”   

So, the next time you see the media hyperventilating over some new leftist study about guns – take a deep breath.

WSJ Webview - The Band of Debunkers Busting Bad Scientists (onservo.com)

_____________________________________________

The gun grabbing left would have us believe that, when the 2nd Amendment was passed, the founding fathers could not have imagined the advances in firearms that have taken place.  Not so.  The Founders were well aware that what had been impossible or unimaginable to one generation could become commonplace in the next. 

The following is per ‘reason’ website: The Founders were well aware of continuing advances in arms technology (reason.com)

The first European settlers in America had mainly owned matchlocks. When the trigger was pressed, a smoldering hemp cord was lowered to the firing pan; the powder in the pan then ignited the main gunpowder charge in the barrel.

Then there was the wheel lock, invented by Leonardo da Vinci (1452 to 1519). In a wheel lock, the powder in the firing pan is ignited when a serrated wheel strikes a piece of iron pyrite.

Even better than the wheel lock, but simpler and less expensive, was the flintlock which first appeared in the mid-sixteenth century. Flintlocks were more reliable than matchlocks, especially in adverse weather, although still far from impervious to rain and moisture. Significantly, Flintlocks are much simpler and faster to reload than matchlocks. 

In 1777, in Philadelphia, inventor Joseph Belton demonstrated a firearm that could fire 16 shots all at once. The Continental Congress voted to order a hundred, while requesting that they be produced as 8-shot models.  (Gunpowder was scarce.) The deal fell through because Congress could not afford the high price that Belton demanded as the small internal components required especially complex and precise fitting and were expensive.

The 22-shot Girardoni rifle with a 21 or 22 round caliber tubular magazine had been invented in 1779 and was later carried by the Lewis & Clark expedition.  Powered by compressed air, its .46 caliber bullet had a muzzle velocity of 900 fps.  It was able to punch a hole in a 1 inch pine board for the first 30 shots on a single air reservoir. (It was no Daisy BB Gun!)  The power dissipated after 30 shots and required a ‘pump up.’  The disadvantage was that once empty the reservoirs required a significant effort and 1500 strokes to restore full power. 

South Carolina gunsmith James Ransier of Charleston was advertising four-shot repeaters for sale in the Columbian Herald (Charleston) on October 26, 1785.

Firearms had improved significantly in the 300 years after Columbus landed and the founding fathers had no reason to believe they would not continue to evolve.  Keeping and bearing arms was not intended to stop with those in existence when the 2nd Amendment was passed, as the Supreme Court rightly decreed.

So, Sue Me!  by Tom Reynolds

People whose sole religion is power will do anything to gain and maintain that power.  Ignoring the law means nothing to them.

SCOPE has spoken often on how Democrat run states just ignore the Constitution when passing gun control laws and basically say: “What are you gonna do about it?  Sue me?  The state has bottomless taxpayer financed funds to defend the illegal laws while you have to self-finance the challenge.”

And in solid blue states like New York, there is no chance of impeachment .    

It isn’t just gun related laws they ignore.

New York State’s Constitution states that to get an absentee ballot, you have to be absent or physically unable to vote on election day: Article II §2. [Absentee voting] The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or, if residents of the city of New York, from the city, and qualified voters who, on the occurrence of any election, may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes.  (Emphasis added.)

In 2021, a Constitutional amendment was on the ballot to change that which, if passed, would have removed the requirement to be absent or physically unable to vote on election day and allowed no excuse absentee balloting.  The proposed amendment said: The proposed amendment would delete from the current provision on absentee ballots the requirement that an absentee voter must be unable to appear at the polls by reason of absence from the county or illness or physical disability. (Emphasis added.)           

It was defeated by 300,000 votes in the election.  The NY Constitution was unchanged.

One of the election law changes that the Democrat controlled legislature recently passed and Democrat Governor Hochul signed was S7394 /A7632 which would allow early voting by mail, also known as no-excuse absentee voting. There is no absentee or illness or physical disability requirement to get an absentee ballot.

Clearly…clearly…and beyond a doubt…the law is unconstitutional.

Former Governor candidate Lee Zeldin said it clearly: “Kathy Hochul is showing an intense desire to spit in the face of voters…Strictly on merits, Hochul doesn't have a leg to stand on and I’d be shocked if she didn't know that. It’s so blatantly obvious that the move made here is giving the middle finger to the voters who said they don't want it.”

We would all be shocked if she didn’t know it was unconstitutional.

A lawsuit was filed challenging the law by Representatives Elise Stefanik (R-N.Y.),

Nicole Malliotakis (R-N.Y.), Claudia Tenney (R-N.Y.), the New York Republican State Committee, the Republican National Committee, the National Republican Congressional Committee, and others.

When New Mexico’s Democrat Governor tried to suspend the 2nd Amendment by her emergency order, it was so obviously unconstitutional that New Mexico’s Attorney General would not defend it, even though he is also a Democrat.  We’ll see if NY Attorney General Letitia James will let party loyalty trump principle and defend it.

Does this make you angry? 

Do you believe it has nothing to do with your 2nd Amendment rights?

The governor and legislature are violating the NY Constitution and went against the will of the people expressed in an election.  But principle means nothing when there is a chance to advance the liberal agenda and ideology.  And in this case, that agenda is unquestionably unconstitutional.

When elected officials are smug and confident of their position that they knowingly and willingly violate the Constitution, the citizens have no protection from a tyrannical government.  And to those gun owners who believe that Hochul and company won’t come for their guns because they are protected by the 2nd Amendment…think again.  They’re coming.  The question isn’t if – it’s when.  The Constitution means nothing to them.

'It's not working': State police ammo database sees issues, delays

By Kate Lisa New York State

PUBLISHED 5:23 AM ET Sep. 19, 2023

Gun owners in the state say they've been improperly denied, or experienced lengthy delays to purchase ammunition for their legal firearms in the days since a new law took effect requiring a New York State Police background check to purchase firing rounds.

Gun rights advocates are questioning how efficiently State Police can process incoming applications, and if the department has the necessary technology and staff to manage appeals in a timely manner.

Gun and ammunition dealers can submit background check applications to the State Police through with an online submission form 24 hours a day, seven days per week, but gun owners said Monday it can take from 30 minutes to a few days until the person requesting to make the purchase gets a response.

Under the new requirements, New Yorkers will pay an additional $9 fee to cover the cost of the background check when purchasing a firearm, or an additional $2.50, which will fund the State Police unit and the system.

"The system isn't working — they're making mistakes," said Tom King, executive director of the state Rifle and Pistol Association.

King said he was denied over the weekend when he filed an application for a background check to purchase .410 shotgun shells in Rensselaer County.

A person has 30 days to appeal if State Police deny the attempted sale, and police have 30 days to respond and explain the reason for the denial. Additional appeals are filed with the state attorney general's office.

The length of appeal may vary based on the reason for denial, according to State Police.

"The New York State Police will continue to update the NYS NICS system in order to provide an accurate and timely response," police said. "Again, while some transactions are processed immediately, others require more research."

King, who's had a pistol permit in the state for more than 40 years, is preparing to go through the appeal process. He cannot try to buy ammunition again until the appeals process concludes as the fall hunting season approaches.

"The only people that this is affecting is the lawful legal citizen in New York state," King said Monday. "We're the ones that are being discriminated against."

Executive director of New Yorkers Against Gun Violence Rebecca Fisher said the new system works with the state's strengthened Red Flag Laws to reduce gun violence, and prevent someone who poses a threat to themselves or others from accessing a weapon.

"While lawful gun owners may have to wait a bit longer right now in the immediate, they themselves understand what could potentially happen if an individual who does not have a license or does not pass a background check is able to obtain that gun,” Fischer said.

King plans to file a federal lawsuit to challenge the new rules with other gun owners across the state who say they've also been improperly denied.

"They're denying everybody I've talked to," King added. "I don't know how many individuals who have a totally clean background and they're getting denied, and that happened to me. I've never had anything. I've never had a red flag. I've never had any kind of protection order. I've never been involved with the police ... and I was denied. And that's just wrong."

A separate case challenging the constitutionality of the ammunition database and background checks is working its way through federal court.

The Democratic Legislature implemented the ammunition database and background check process last year in response to a lawsuit from King in which the U.S. Supreme Court overturned the state's century-old concealed carry statute.

But Fischer said advocates confident this law will hold up in court.

"Thirty minutes is not a long time given what's at stake when an individual who should not have a firearm in their hands and should not possess a firearm, is going through the process," Fischer said.

Fischer said it's up to the State Police to implement the system correctly. The legislation requires the department to publish related statistical data in an annual report.

Lawmakers included $20 million in the 2023-24 budget for State Police to implement the new system, including the hiring of 100 additional staff. State Police would not answer questions about its hiring processes or how many of the staff have been hired to date.

"The State Police absolutely has an obligation to ensure that this new system is implemented and enforced," Fischer said. "We are losing over 40,000 individual Americans to gun violence every single year with hundreds of thousands more injured by guns. We need to find that balance."

Assemblyman Robert Smullen, a Republican from Fulton County, said he's heard State Police are struggling with the database rollout.

"It's one of those things whenever you try to do a system the first time usually doesn't go very well, and that's what I'm hearing," he said.

New York State Police officials could not provide the number of background check applications a person in the state has filed to purchase ammo or a firearm since the law took effect. The department will release numbers at a later date.

Any background check conducted is not considered a public record and will not be disclosed to anyone not authorized by law, according to State Police.

Gun and ammo dealers will be able to file background check applications using an automated phone system, but the line will not be available until an undetermined date in October.

State Police also will use funding from background check fees to support operational costs of the program, including the platform that supports the background check process, according to the state Budget Division.

NY NY It’s a Wonderful State:  NEW YORK’S GUN LAWS ARE CHANGING:  HERE’S WHAT YOU NEED TO KNOW   Column from Assembly Minority Leader Will Barclay 

Gun owners, outdoor sportsmen and women and stores selling firearms and ammunition will be subjected to some troublesome procedures and protocols after new regulations went into effect on Wednesday, Sept. 13. The crux of the changes pertains to the way background checks will be conducted as well as new fees associated with buying guns and ammunition from your local dealership.

Notably, the new law calls for the New York State Police to conduct background checks for ammunition purchases. Beginning this week, a background check is required prior to the purchase and the responsibility for initiating NICS background checks for firearm, rifle or shotgun purchases has shifted to the State Police. Gun dealers and licensed ammunition sellers will now be required to contact the state police online to process these background checks, however an automated phone system is expected to be active sometime soon. There will now be a $9 fee associated with each firearm purchase and a $2.50 fee for ammunition purchases  to cover the new system’s costs   

If you have any questions or comments on this or any other state issue, or if you would like to be added to my mailing list or receive my newsletter, please contact my office. My office can be reached by mail at 19 Canalview Mall, Fulton, NY 13069 and by email at barclayw@nyassembly.gov. You may also find me, Assembly Minority Leader Will Barclay, on Facebook or on Twitter at @WillABarclay.

These changes are especially noteworthy as hunting season is about to begin and as a result gun and ammunition purchases are likely to increase. With the State Police taking on this new responsibility, there will be delays with respect to the background checks and answering all the questions hunters will have as this new law is implemented. If you are planning to enjoy New York’s exceptional hunting opportunities, budget extra time and money.

There are very legitimate concerns about the burden this new system is going to place on the businesses as well as the State Police and the hunting community. Costs will go up and it is unclear what benefits this new law will generate. Albany Democrats have portrayed this new law as a way to improve public safety. However, we know most gun violence comes from those using illegally obtained weapons. This law targets law-abiding gun owners and puts yet another financial burden on already overtaxed businesses and individuals. It’s hard not to look at this as anything more than a punitive fee for access to the Second Amendment.

Remember how the term ‘Not In My Back Yard’ (NIMBY) was popularized, as solar and wind power advocates had second thoughts when their beloved alternate energy schemes were being planned for close to them?  For instance, the leftist elites on Cape Cod had a fit that offshore wind power would spoil their ocean view.

Never to be outdone in the hypocrisy department, these same elite took delight in making their cities, counties and states into ‘sanctuaries’ where illegal immigrants would be safe from federal prosecution.  (Not that the Biden Administration was exactly rabid about prosecuting any illegals.)  Illegal immigrants by the millions were fine in border states like Texas and if a very few made it to New York City they were welcome.

Then, Texas’ governor took the elites at their word and started shipping the illegals to NY City.

The NIMBY’s, like Lazarus, rose from the grave.  They suddenly realized that someone would have to pay to keep all these illegals.

NYC Mayor Eric Adams is quoted as saying: “Let me tell you something New Yorkers: Never in my life have I had a problem that I did not see an ending to. I don’t see an ending to this. I don’t see an ending to this. This issue will destroy New York City, destroy New York City. We’re getting 10,000 migrants a month.”

According to the recent New York Post article, Adams explained that caring for the migrants flooding the area will add up to $12 billion in the coming three years.

But it’s not just NY City that NY City believes should pay for NY City shooting itself in the foot.  New York City lawmakers want statewide tax increases to pay for migrants flooding into New York City.

The New York Post quoted state Senator Julia Salazar (D-Brooklyn): “We should increase taxes because it’s economically just policy to offset all costs for our state to function.”

And never missing an opportunity to push the left’s favorite talking point, she added: “I’d say that even if our city and state hadn’t seen an increase in migrants seeking asylum, this moment makes it all the more important for the wealthy to pay their fair share of taxes.”

We all know that NY City is a very difficult place to get a pistol permit for personal protection.  After all, the theory goes, they have the NYPD to protect them.  Except, Breitbart News has reported that the sanctuary city of New York City is gearing up to slash overtime for its police officers to foot the bill for tens of thousands of border crossers and illegal aliens living off citizens in the area.

The far left is attacking both the safety and the pocketbooks of New Yorkers.  They must believe that NY has swallowed so much of the left’s Kkool-aid that nothing can stop them.

Good News!   Yesterday, we wrote that, The Olean Times Herald reported: High school trap team coaches, registered as “ammunition keepers” with the state police for their teams, typically buy shotgun ammunition in bulk and then give it to team members during practice and competition. Last week, the coach/ammunition keepers received letters from Gov. Kathy Hochul and Acting State Police Superintendent Steven Nigrelli requiring them to register with NYSNICS and establish a method of payment to cover the cost of the background checks.

We are happy to report that we may have been incorrect.  A registered Seller of Ammunition with NYNICS, whose club supports a local High School Trap team, wrote us: I specifically asked a NYNICS rep on Tuesday about the transfer of ammunition to the student shooters and was told that the transfer will not require a background check if there is no sale to the student.  

He added: This may not hold true for skeet/trap teams that buy bulk ammo and SELL it to their members/shooters.  

This sounds great but one note of caution; there is usually confusion over new issues from Hochul, so we hope the NYNICS rep is correct that when there is no sale there will be no background check or fee. 

_______________________________________

SCOPE has been writing about the New Mexico Governor’s emergency public health order suspending the 2nd Amendment. 

Democratic New Mexico Attorney General Raul Torrez announced he will NOT defend the state in pending lawsuits against the democratic governor's public health emergency order.  Torrez said: "Though I recognize my statutory obligation as New Mexico's chief legal officer to defend state officials when they are sued in their official capacity, my duty to uphold and defend the constitutional rights of every citizen takes precedence," Torrez wrote. "Simply put, I do not believe that the Emergency Order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster."

Apparently, Grisham did find another attorney to represent her…sort of.

Showing how far out on a limb the New Mexico governor was, at a hearing, Governor Grisham’s attorney conceded that "no law" may infringe the Second Amendment.  Instead, the attorney made the silly argument that the order wasn't a law but was an executive action and should be allowed.  Unconstitutional executive orders are constitutional!

U.S. District Court Judge David Urias (who was nominated by gun grabber in chief Joe Biden) issued a temporary Restraining Order blocking the portion of the order that prohibits lawful gun owners from carrying their guns in public for 30 days.

"The violation of a constitutional right, even for minimal periods of time, unquestionably constitutes irreparable injury," Urias said during the hearing.

This order was so openly unconstitutional that even a Biden Judge and a democrat Attorney General would not support it.

Governor Grisham tried to spin this in the best light saying she is happy that this put the spotlight on“…the significant problem of gun violence in this state.”

Don’t count on this loss stopping the gun grabbers in any state, and especially in New York State, from trying any method to back door the 2nd Amendment into impotence.  Eternal vigilance is necessary.