Cavalier Knight
Member
Sponsor: SALAND / Co-sponsor(s): BONACIC, GALLIVAN, LARKIN, MAZIARZ, NOZZOLIO, O'MARA, RANZENHOFER, RITCHIE, SEWARD, YOUNG / Committee: JUDICIARY
Law Section: Constitution, Concurrent Resolutions to Amend / Law: Ren Art 20 to be Art 21, add Art 20, Constn
S1427-2011 Memo
BILL NUMBER:S1427
TITLE OF BILL:
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to the constitution in relation to the right to keep and bear arms
PURPOSE:
This proposed constitutional amendment would provide within the New York State Constitution for a right of the people to keep and bear arms for traditionally recognized purposes.
SUMMARY OF PROVISIONS:
A new Article Twenty would be added to the State Constitution to ensure the individual right of the law-abiding citizen to keep and bear arms for the purposes of defense of self, state, hunting and recreation.
JUSTIFICATION:
The proposed language is an approximate conglomeration of the language of the Oregon and New Mexico State constitutions. It seeks to protect activities involving lawfully held arms, which have been traditionally recognized by the constitutions of the various states. The language also places with the State all authority over the regulation of arms and arms accouterments. This is something of particularly great need in New York State as a patchwork of local regulations and administrative practices have created tremendous confusion over and disparity between, applicable regulations from county to county.
In recent years, there has been considerable dispute as to whether the right of the people to keep and bear arms, (as guaranteed by the United States Constitution, Amendment II), protects an individual right to arms, or only state power over militias. Recently, in the landmark case of D. C. v. Heller the Supreme Court held that the Second Amendment does in fact protect an individual right to possess a firearm for traditionally lawful purposes such as self-defense. (D.C. v. Heller, 554 U.S. 290 (2008)). In reaching this holding, the Court cited historical scholarship and linguistic evidence which amply demonstrates that what the Second Amendment to the United States Constitution guarantees is a right of law-abiding, responsible adults to acquire and possess arms for lawful uses. (See, e.g. 4 Encyclopedia of the American Constitution, 1639-40, Karst & Levi eds. (1986); Levinson, The Embarrassing Second Amendment, 99 Yale Law Journal 637, (1991); Khates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Michigan Law Review 204, 244-52, (1983); Shalhope, The Ideological Origins of the Second Amendment, 69 Journal of American History 599, (1982)). The Court further cited the many state constitutions containing provisions protecting an individual right to bear arms for self-defense. (D.C. v. Heller, 554 U.S. 590). Thus, the amendment proposed puts to a final rest whatever remains of the now largely discredited states' rights position. However, as the proposed amendment explicitly provides for a right to keep and bear arms for the purpose of defense of the State, it is clear that the ability of the State to maintain its traditional militia is not in any way impaired by enactment of the amendment.
The proposal here is for a guarantee of individual rights in a state constitution, and this necessarily means that the guarantee is to the individual rather than the State. Indeed, the State would have no reason to guarantee rights of the state, possessed under the state Constitution, against prohibition by the State itself. Civil rights provisions, such as the proposal here, have been generally interpreted as broadly guaranteeing a right of individuals to possess various kinds of ordinary arms to law-abiding, responsible adults. (See, State v. Kessler, 614 P. 2d 94, (Or. S.Ct. 1980); see also, S. Halbrook, A Right To Bear Arms: State and Federal Bills of Right and Constitutional Guarantees 1989); Dowle, The Right to Arms, 36 Oklahoma Law Review 789 (1982); Dowle, Federal and State Constitutional Guarantees To Arms. 15 university of Dayton Law Review 1 1989); Chaplain, The Right of the Individual to Bear Arms, bet. Coll. Law Review 789 (1982). There is no provision currently in the New York State constitution providing for a guarantee of the right to keep and bear arms. This puts New York into a small minority of states lacking such traditional state constitutional protection for citizens. This is especially surprising when it is considered that it was New York's own delegation which prevented ratification of the original Federal Constitution until assurances were given that, upon ratification, work would begin on a Bill of Rights guaranteeing individual freedoms against government encroachment. It would seem a gross oversight that the very same protections against governmental excess which the New York delegation sought to prevent would nevertheless be found lacking in the New York State Constitution.
LEGISLATIVE HISTORY:
2009-2010: S.1256 - Opinion referred to Judiciary
2007-2008: S.1079 - Opinion referred to Judiciary
2005-2006: S.463 - Opinion referred to Judiciary
2003-2004: S.2824 - Opinion referred to Judiciary
2001-2002: S.5059 - Opinion referred to Judiciary
1999-2000: S.3079 - Opinion referred to Judiciary
1997-1998: S.677 - Opinion referred to Judiciary
1995-1996: S.1420 - Opinion referred to Judiciary
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
RESOLVED (if the Assembly concur), That the foregoing amendments be referred to the first regular legisaltive session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.
S1427-2011 Text
S T A T E O F N E W Y O R K
1427
2011-2012 Regular Sessions
I N SENATE
January 7, 2011
Introduced by Sens. SALAND, BONACIC, LARKIN, MAZIARZ, RANZENHOFER, SEWARD -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to the constitution in relation to the right to keep and bear arms
Section 1. RESOLVED (if the Assembly concur), That article 20 of the constitution be renumbered article 21 and a new article 20 be added to read as follows:
ARTICLE XX
RIGHT TO KEEP AND BEAR ARMS
SECTION 1. THE PEOPLE SHALL HAVE THE RIGHT TO KEEP AND BEAR ARMS FOR THE DEFENSE OF THEMSELVES AND THE STATE, FOR LAWFUL HUNTING AND RECREATIONAL USE, AND FOR ANY OTHER LAWFUL PURPOSES, AND NO COUNTY, MUNICIPALITY OR OTHER POLITICAL SUBDIVISION OF THE STATE SHALL REGULATE, IN ANY WAY, AN INCIDENT OF THE RIGHT TO KEEP AND BEAR ARMS.
S 2. RESOLVED (if the Assembly concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the Assembly, and, in conformity with section 1 of article 19 of the constitution be published for 3 months previous to the time of such election.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD89043-01-1
1: LINK: S1427-2011
2 LINK: Committee Meeting: Tuesday, May 15th, 2012, 11:30 am - 12:30 pm
Law Section: Constitution, Concurrent Resolutions to Amend / Law: Ren Art 20 to be Art 21, add Art 20, Constn
S1427-2011 Memo
BILL NUMBER:S1427
TITLE OF BILL:
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to the constitution in relation to the right to keep and bear arms
PURPOSE:
This proposed constitutional amendment would provide within the New York State Constitution for a right of the people to keep and bear arms for traditionally recognized purposes.
SUMMARY OF PROVISIONS:
A new Article Twenty would be added to the State Constitution to ensure the individual right of the law-abiding citizen to keep and bear arms for the purposes of defense of self, state, hunting and recreation.
JUSTIFICATION:
The proposed language is an approximate conglomeration of the language of the Oregon and New Mexico State constitutions. It seeks to protect activities involving lawfully held arms, which have been traditionally recognized by the constitutions of the various states. The language also places with the State all authority over the regulation of arms and arms accouterments. This is something of particularly great need in New York State as a patchwork of local regulations and administrative practices have created tremendous confusion over and disparity between, applicable regulations from county to county.
In recent years, there has been considerable dispute as to whether the right of the people to keep and bear arms, (as guaranteed by the United States Constitution, Amendment II), protects an individual right to arms, or only state power over militias. Recently, in the landmark case of D. C. v. Heller the Supreme Court held that the Second Amendment does in fact protect an individual right to possess a firearm for traditionally lawful purposes such as self-defense. (D.C. v. Heller, 554 U.S. 290 (2008)). In reaching this holding, the Court cited historical scholarship and linguistic evidence which amply demonstrates that what the Second Amendment to the United States Constitution guarantees is a right of law-abiding, responsible adults to acquire and possess arms for lawful uses. (See, e.g. 4 Encyclopedia of the American Constitution, 1639-40, Karst & Levi eds. (1986); Levinson, The Embarrassing Second Amendment, 99 Yale Law Journal 637, (1991); Khates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Michigan Law Review 204, 244-52, (1983); Shalhope, The Ideological Origins of the Second Amendment, 69 Journal of American History 599, (1982)). The Court further cited the many state constitutions containing provisions protecting an individual right to bear arms for self-defense. (D.C. v. Heller, 554 U.S. 590). Thus, the amendment proposed puts to a final rest whatever remains of the now largely discredited states' rights position. However, as the proposed amendment explicitly provides for a right to keep and bear arms for the purpose of defense of the State, it is clear that the ability of the State to maintain its traditional militia is not in any way impaired by enactment of the amendment.
The proposal here is for a guarantee of individual rights in a state constitution, and this necessarily means that the guarantee is to the individual rather than the State. Indeed, the State would have no reason to guarantee rights of the state, possessed under the state Constitution, against prohibition by the State itself. Civil rights provisions, such as the proposal here, have been generally interpreted as broadly guaranteeing a right of individuals to possess various kinds of ordinary arms to law-abiding, responsible adults. (See, State v. Kessler, 614 P. 2d 94, (Or. S.Ct. 1980); see also, S. Halbrook, A Right To Bear Arms: State and Federal Bills of Right and Constitutional Guarantees 1989); Dowle, The Right to Arms, 36 Oklahoma Law Review 789 (1982); Dowle, Federal and State Constitutional Guarantees To Arms. 15 university of Dayton Law Review 1 1989); Chaplain, The Right of the Individual to Bear Arms, bet. Coll. Law Review 789 (1982). There is no provision currently in the New York State constitution providing for a guarantee of the right to keep and bear arms. This puts New York into a small minority of states lacking such traditional state constitutional protection for citizens. This is especially surprising when it is considered that it was New York's own delegation which prevented ratification of the original Federal Constitution until assurances were given that, upon ratification, work would begin on a Bill of Rights guaranteeing individual freedoms against government encroachment. It would seem a gross oversight that the very same protections against governmental excess which the New York delegation sought to prevent would nevertheless be found lacking in the New York State Constitution.
LEGISLATIVE HISTORY:
2009-2010: S.1256 - Opinion referred to Judiciary
2007-2008: S.1079 - Opinion referred to Judiciary
2005-2006: S.463 - Opinion referred to Judiciary
2003-2004: S.2824 - Opinion referred to Judiciary
2001-2002: S.5059 - Opinion referred to Judiciary
1999-2000: S.3079 - Opinion referred to Judiciary
1997-1998: S.677 - Opinion referred to Judiciary
1995-1996: S.1420 - Opinion referred to Judiciary
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
RESOLVED (if the Assembly concur), That the foregoing amendments be referred to the first regular legisaltive session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.
S1427-2011 Text
S T A T E O F N E W Y O R K
1427
2011-2012 Regular Sessions
I N SENATE
January 7, 2011
Introduced by Sens. SALAND, BONACIC, LARKIN, MAZIARZ, RANZENHOFER, SEWARD -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to the constitution in relation to the right to keep and bear arms
Section 1. RESOLVED (if the Assembly concur), That article 20 of the constitution be renumbered article 21 and a new article 20 be added to read as follows:
ARTICLE XX
RIGHT TO KEEP AND BEAR ARMS
SECTION 1. THE PEOPLE SHALL HAVE THE RIGHT TO KEEP AND BEAR ARMS FOR THE DEFENSE OF THEMSELVES AND THE STATE, FOR LAWFUL HUNTING AND RECREATIONAL USE, AND FOR ANY OTHER LAWFUL PURPOSES, AND NO COUNTY, MUNICIPALITY OR OTHER POLITICAL SUBDIVISION OF THE STATE SHALL REGULATE, IN ANY WAY, AN INCIDENT OF THE RIGHT TO KEEP AND BEAR ARMS.
S 2. RESOLVED (if the Assembly concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the Assembly, and, in conformity with section 1 of article 19 of the constitution be published for 3 months previous to the time of such election.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD89043-01-1
1: LINK: S1427-2011
2 LINK: Committee Meeting: Tuesday, May 15th, 2012, 11:30 am - 12:30 pm
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