Ken & Stephen,
First, I want the extend a huge "Thank You!!" to you both, to the BoD of S.C.O.P.E., and to the membership, for their support and backing of this lawsuit, from the start. This little case, budded by me as, "The little case that could...," has turned into a major precedent, for Penal Code 400, in New York State.
The case, Chwick v. Mulvey, 81 A.D.3d 161, 915 N.Y.S.2d 578 (2nd Dept. 2010), started, as you know, as a pro se case in N.Y. Supreme Court, with Tom Fess, Edward Botsch and myself as petitioners. At the trial level, we were denied our claims. Needless to say, as this court's ruling can be read at http://www.incnf.org/Art78/Doc04-JudgeDavisRuling.pdf, Judge Davis, and his staff, came to very wrong conclusion about New York State preemption.
The lawsuit was then appealed to the New York State Appellate Division, Second Department, and with the excellent skills of Mr. Robert Firriolo, Esq., of Duane Morris LLC, his oral argument won on the appeal. Go to http://www.incnf.org/2ndDeptOA/ChwickvMulvey.mp4 to hear the oral argument from 04/09/2011. The appellate court, viewing this from a state point of view, ruled, in our favor, with a 4-0, 12-page ruling (no dissents). Read the appellate court ruling at http://www.nycourts.gov/reporter/3dseries/2010/2010_09911.htm.
Now, normally, a ruling has downward jurisdiction, meaning that the trial courts served by the Second Department are bound by the ruling. But, as Mr. Firriolo found, there is case law that makes our precedent a statewide jurisdiction.
You see, New York State Appellate Division is a single State-wide court divided into departments for administrative convenience, not for judicial separation (see Waldo v Schmidt, 200 NY 199, 202). And, as long as there are no other contrary decisions from another Department, and there are none at this time, under the legal doctrine of stare decisis, all the trail courts, under the New York Supreme Court, Appellate Division, are required to follow precedents set by the Appellate Division of another department until the New York Court of Appeals or the Appellate Division pronounces a contrary rule (see, e.g., Kirby v Rouselle Corp., 108 Misc 2d 291, 296; Matter of Bonesteel, 38 Misc 2d 219, 222, 16 AD2d 324; 1 Carmody-Wait 2d, NY Prac, § 2:63, p 75).
This is a general principle of appellate procedure (see, e.g., Auto Equity Sales v Superior Ct. of Santa Clara County, 57 Cal 2d 450, 455; Chapman v Pinellas County, 423 So 2d 578, 580 [Fla App]; People v Foote, 104 Ill App 3d 581), and it is necessary to maintain uniformity and consistency (see Lee v Consolidated Edison Co., 98 Misc 2d 304, 306). Consequently, any cases holding to the contrary (see, e.g., People v Waterman, 122 Misc 2d 489, 495, n 2) are disapproved.
So, this "Little case the could...," becomes the the "Little case that does...," as its precedent is binding across the whole state. As to how this becomes valuable, that is is the hands of fine lawyers who need a strong case in a preemption suit.
Again, I thank all of S.C.O.P.E. for their continued support.
Thursday, October 27, 2011
Tuesday, October 25, 2011
Posted by Woodenblog on Tuesday, October 25, 2011 12:11:41 PM
Burqa wearing gun owners
There was a time in America where it was a privilege, an honor, and the law that one must, to be able to rightfully carry your weapon of choice out in the open, or concealed, however one wished, and without government interference, without the need for permits, submission to authority for licenses, etc. At one time our Second Amendment covered every citizen, and government protected the rights of the individual. That time has long passed. Since the Progressive movement, and even prior. States, like Tennessee, tried to outlaw the carry of firearms in the 1830's, but state courts rejected the law, and overturned it, based on Second Amendment criteria (“...shall not be infringed”). Even Justice Story, on his treatise on the Constitution, was noted to have written that should any attempt be made against the amendment it would be at the state level, but that if such an attempt were made, that the “Second Amendment” would prevent its being constitutional.
Once relegated (in vogue in western territories before they became states) to the outlaw west, the authority to do this was never considered correct within the United States proper. That is, until the period of Prohibition when running booze became a full time, gangster style job. Prior to that names like Dillinger, and 'Baby Face” Nelson, the James Boys, Ma Barker & her boys, and other bank robbers ran around taking money which the Federal Treasury properly considered within their purview. The Tax man, and revenuers, too became legendary in song, and movie.
In the early 1900's, Timothy Sullivan and the gang at Tammany Hall, the corruption involved, the desire to attain, and hold power, the state of NY determined that due to the rise of murders in NY City that a law needed to be on the books to stop the criminal activity, much of it sponsored by the criminal gangs, many of those run by Tammany Hall itself. Tim Sullivan was a man of ill repute, noted in the Movie “Gangs of New York.” The extent of the corruption was widespread, and the organization was under constant scrutiny, and investigation. The fact is, Tammany Hall was a corrupt political organization as many came to learn, and as many within the system knew at the time. The problem was the power the organization wielded, a power they were reluctant to relinquish to the people, especially the many of “we, the people” being 'undesirables', many illegal aliens, many legal aliens, but thought unequal to those Americans already here who had for generation eked an existence out of the woods, and cities of the new world.
As many states came to realize that their political power could be gained at the behest of the masses by staunching the corruption, and illegality, by keeping the people, in other words, “safe” from the criminal element they found these masses more willing to submit to laws which would stifle their rights. As the educational system devolved to our current 'socialist' public education system, as the criteria to be taught was changed, as the educational processes assumed that propaganda would be better than actual teaching of history, the constitution, the beginnings of our country, and why these then created a capitalist system with a rule of law, all law answering to the constitutionality by the court(s). Whatever happened to these concepts? The people were mis-educated, fed a line of BS for so long that today we don't question our masters, but instead simply kowtow to them. When did the change occur that presumed in a whole people's mind that government was the be all and end all, whereas individual thought, innovation, creativity, responsibility, and individual rights could be trampled upon for the new ideology of the 'common good', the new math, the new world order? How did 'the common good' devolve from “limited government” into 'all encompassing' government?
History relates that it started after the Civil War (War Between the States, or War of Northern Aggression, depending on where you live and your ideology). I tend to believe that the states could not only decide to join the union, but given the Declaration of Independence's assumption that one could decide to throw off any government, and design one to fit the needs of the people whom it represented; that secession was legal, justified, and constitutional.
During this after war period, the states often passed laws (Jim Crow) to prevent former slaves from owning, or bearing arms. This, of course, depended on these who were prohibited abiding by the law. As we know, some did not, and those who did often ended up at the end of a noose, put there by white sheeted, and hooded, thugs of the KKK. In essence, the war for liberation (meaning constitutional rights applied to all equally)of the black populace lasted much longer than the Civil War did, by decades. In the 1950's, and 1960's, the Civil Rights movement took off. Prior to this Amendment's 13, 14, and 15, were adopted to try to bring all states into compliance with equality under the law; in essence, true equal justice. However, nowhere was justice ever admittedly equal. Equality can only come from “rule of law,” and adherence to the principle(s) of the law, the primary law in our country being the constitution.
In 1934, FDR passed the first Federal Firearms Act. It disparaged the ownership of the first “Weapons of Mass Destruction,” fully automatic rifles (military assault rifles), and sawed off shotguns, and rifles. Alo0ng with these, the ownership of silencers was also prohibited. That the law was wholly unjustified given that weapons of this type were seldom used, or owned, by the general population, given that the majority of these weapons used were by notorious gangsters, and thugs, the non-necessity of the law couldn't be any more apparent. That one could own these if they applied to the FBI for a permit to do such, that said permit was, in essence, unconstitutional (see the meaning of 'infringed'; 'encroach,' and 'hinder,' among other definitions of infringe).
The Miller decision stated that American citizens could only own those weapons pertinent to militia/military use, but our military had used both shotguns, and full automatic weapons in WWI, which ended a full 16 years before passage of the Federal Firearms Act of 1934. The supposition was that such prohibitive laws would make it so costly to own these weapons that only outlaws would own them. At the time, a permit to own such was $200. During the Depression, when most worked for $1 a day, or less, this was cost prohibitive to the general person. This didn't include the cost of attaining the weapon, keeping it in good working order, or supplying it with ammunition. A cheaper alternative ewas the sawed off rifle, capable of being carried discretely (concealed) where ownership of pistols was now under “permit” systems.
Let me first off note here that in the Shuttlesworth v. City of Birmingham decision (1969), the courts declared that permits for rights were unconstitutional. They quoted the SCOTUS decision of Staub v. Baxley, which decried permits for sales within various districts. There was also a decision about permits being needed to solicit for churches proselytizing door to door. In Shuttlesworth, quoting from Staub, the justices noted that permits for rights were “unconstitutional censorships, or prior restraints” on the individual. As such, anyone faced with such a licensing law “may ignore it, and engage with impunity in the (right) for which the law required a license (permit).” One of our Supreme Court justices, Justice Ruth Bader-Ginsburg, during the Heller decision, asked complainant Heller if he would be acceptable of a permit system in D.C. I had written seven of the 9 justices, RB-G excluded, asking that when they considered the Heller decision that they also announce that not only was “the right to keep and bear arms” and individual right, but also that it was not to be infringed, as the amendment notes. I sent them the information on the Shuttlesworth decision, and asked that the two justices not written to be filled in by the other seven. As we can see, these justices, all 9 of them, didn't follow past precedent in this case, and instead opted for a watered down version of the Second Amendment more consistent with current ideology, and inconsistent with our Constitution's plain language; “...the right of the people to keep and bear arms shall not be infringed.” With what part of this didn't the dissenters concur? Were they using their perceived agenda to create a constitutional crisis? Why did a recent decision in regards the Permit system be turned away by the SCOTUS? We can only surmise that they have done so in an effort to put off the rights of the people to keep and bear arms. To what end? Do all those in power believe that our constitution needs revision, and if so, why are they unwilling to do it by the process inclusive to it; amendment? Worse, since even the left today considers “past precedent” so vital in being maintained, given the erroneous decision in Roe v Wade, why would they skip over Staub/Shuttlesworth? After all, it is a “Civil Rights” decision, and all of our rights are civil rights as Abraham Lincoln so aptly made known when he stated our constitution was a “Civil” document.
So, why is it that we have to “conceal” our firearms when we carry? It is very similar to those in Islam who make note that women must be covered head to toe by a burqa. Are firearms so enticing that more people would carry if they knew it was not only possible, but our God given, constitutionally guaranteed right? And, if it is a constitutionally guaranteed right, why haven't our past presidents taken states to court to get laws which are passed by them which”infringe” the right, and have them overturned? Isn't that their job?
I'm sick of being relegated to being someone who must hide my belief in my constitution. I am sick of being bullied by the media, the police, the government at all levels because I desire, and do, carry a weapon on myself at all times. I am tired of trying to keep it hidden, and should it poke out for some reason being prodded by local para-militarists with guns drawn as if I am some kind of human scum, the lowest of the low, for merely exercising my right as an American citizen? Why is my life jeopardized because I wish to be equal to a para-militarist (local law enforcement)? It seems incongruous with our rights, yet it is happening throughout the United States. Are we now Mexico, Canada, Britain, Australia, or New Zealand? Why is it a law abiding citizen who has a permit is subjected to guns drawn, in your face, confrontation by these para-militarists? And, what right do they have to do so given that the state allows my right to be turned into a privilege, and at my behest, when I comply with their inane, ridiculous, unconstitutional permit system laws?
I'm tired of, in essence, having to wear a burqa over my weapons in public, because I appreciate, and exercise, my right (not state sponsored privilege) to keep and bear arms. ###
Monday, October 24, 2011
Friday, October 21, 2011
Friday, October 14, 2011
So sportsmen sticking together in NY is not an option. Bet if theses birds had horns & antler they'd be on a fast track to legislation for a special season.
|Subject:||Status of the Mourning Dove Initiative|
|Date:||Thu, 13 Oct 2011 19:14:02 -0400|
|From:||Fred Z. Neff |
|To:||A lot of NY sportsmen|
I've had several inquiries as to whether I am still pursuing a dove reclassification initiative for New York. The answer is, "YOU BET! And each day, we are getting closer to "coming out". But it sure would help if some of you would join in. The following will explain just what I mean.
It's been a long haul so far. But the battle hasn't even begun yet. The totals to date, which are concentrated on obtaining letters of support from sportsmen organizations, are progressing at the pace of a turtle. Positive progress is a fact. But to be frank, I'm still not satisfied. If and when I take this issue public and ask you to approach our legislators in search of sponsors for a bill calling for the reclassification of the mourning dove, it will be crucial that NY's sportsmen demonstrate that we are united on this since political careers are going to be risked. For that reason, I can assure you that if I'm not satisfied that we are truly united, I will not go forward. I've made that clear more than once. Worse, any Federation or other organization that ignores this initiative or opposes it is indicating that they are on the side of the anti-hunting crowd (e.g. - the "Save the Dove" folks) and they will love you for it. They might even make you honorary members. Is that what we want? We have a chance to bring a new outdoor opportunity to our bird hunting fraternity. God knows, we need it. Evidently, 40 other states agree.
Here is the latest update as of 10/13/11:
A. NYSCC Federation Members
There are 62 counties in New York. 49 of them have Federations that are members of NYSCC. 13 counties are not members of NYSCC. 27 of the 49 member Federations in the NYSCC have responded so far. All 27 support the initiative. 22 Federations have not responded to date. Therefore, I have no idea if the 22 are for, against, or don't care about the issue.
The 22 Federations that have not responded are:
Several specific Federations listed above are significant surprises to me due to their lack of response. I truly expected support from them. In this world of personality and issue clashes, I wonder if some are cutting off their noses to spite their faces. In addition, several representatives of these Federations have promised me letters of support, but I haven't received them to date. (A particularly depressing encounter at the NYSCC Fall Conference occurred when a well-known figure who is also the president of one of the listed Federations informed me that he didn't think that his Federation would support the initiative; the only negative response that I've received thus far). I have to state that I am amazed at this status, especially since I have personally contacted every Federation delegate that has a valid email. I intend to contact each Federation, yet again, directly through their presidents if possible.
B. NYSCC Associate Members
There are15 Associate members of the NYSCC. 6 have responded so far, all supportive. 9 have not responded ( see bold, underlined above).
The 9 Associate members who have not responded are:
Deer Search, Inc.
Mad River Club
NY Conservation Officers Association
NY Deer and Elk Farmers Association
NY Field Archers and Bowhunters Association
NY Houndsmen Conservation Association
NYS Chapter, National Wild Turkey Federation
NYS Whitetail Management Coalition
C. NYSCC Affiliate Members
There are 11 Affiliate members of the NYSCC, 1 has responded in support; 10 have not responded (see bold, underlined above).
The one supporting response was from the NYS Outdoor Writers Association. FYI, here are the other 10 who haven't responded: Canandaigua Lake Duck Hunters, Elma Conservation Club, Finger Lakes Conservation Council, Leatherstocking Club, Mid-Hudson Fur Harvesters, Niagara Frontier Chapter NWTF, Seneca Lake Duck Hunters, Sullivan County Longbeards NTWF, Tribes Hill Fish and Game Club, and the Tri-Village Road and Gun Club. Some are already included in member Federations and so I'm not going to make them a priority at this point.
I have also received letters of support from 5 unaffiliated organizations:
Chenango County Federation
Oatka Fish and Game Club
Genesee Conservation Foundation, Inc.
Conservation Alliance of New York (CANY)
NY Division, Izaak Walton League
Of the 49 member Federations of NYSCC, 27 support the initiative. That's 55%.
Of the 75 total members of NYSCC, 34 support the initiative. That's 45%.
If I include the 80 total listed here, 39 are supportive. That's 49%.
If you are reading this email and note that your Federation is one of those who have not heeded requests for support, I urge you to correct the matter ASAP since I really want to move forward. There are more than a few individuals that have volunteered to work on this initiative and some of them have suggested excellent elements with regard to a game plan once the support matter is resolved.
Meanwhile, I urge each of you to use every opportunity to keep this initiative alive in the minds of your legislators.
Finally, I have a spreadsheet that contains the details that I asked for - support or oppose, number of member clubs in your organization and the estimated number of sportsmen that you feel that you represent. This spreadsheet will be part of the "package" that I intend to distribute to supporting legislators.
Any questions, don't hesitate to contact me. More importantly, if you recognize those listed above, please ask them to respond.
Fred Z. Neff