Over-Regulation and Deprivation of Rights  by Jarrod Lomozik

            Through over-regulation, New York is removing the protections of society from people who wish to exercise their 2nd Amendment protected Right to effective self-defense.

            As Second Amendment supporters in New York State, we have watched as state legislators and governors have sought to transform the Second Amendment from a Constitutional Right into a privilege through over-regulation. The Concealed Carry Improvement Act and its prohibition on concealed carrying in places open to the public - without express permission - is an example of that. The Second Amendment guarantees the Right to EFFECTIVE self-defense.

          This brings up the distinction between a Right and privilege. A Right does not require anyone’s permission to exercise while a privilege requires permission to exercise. For example, Self-defense is a Right – not a privilege - that’s been codified into law, even in New York.  Article 35 of the New York State Penal Law authorizes the use of reasonable proportional force in self-defense.

          Anti-Second Amendment forces are trying to overregulate the Second Amendment thereby turning it into a privilege - requiring permission to exercise (which violates Supreme Court precedent.)  The state cannot make regulations so burdensome that it discourages individuals from exercising their Rights.  

          In addition, NY State legislators are constantly introducing proposed laws to attach burdensome fees to our 2nd Amendment rights.  They ignore the case Murdock v. Pennsylvania in which the Supreme Court ruled that a state “May not convert a Right into privilege and attach a fee to it”. 

             To protect our Rights against government over-reach, Congress codified: USC Title 18 section 241 “Conspiracy Against Rights”; section 242 “Deprivation of Rights Under Color of Law”; and USC Title 42 section 1983 “Civil Remedy for Deprivation of Rights”. The thing to remember here is that state and Federal laws have concurrent jurisdiction meaning they are applicable simultaneously just as a Citizen is both a state and Federal Citizen simultaneously.

           Section 241 makes it a Federal Felony for two or more persons to threaten, intimidate, oppress, or obstruct the free exercise of any Right or privilege granted by the Constitution or laws of the United States.

          Section 242 makes it either a Federal misdemeanor or Felony for any person under the color of law to deprive someone of Rights, privileges, or immunities secured by the Constitution or laws of the United States.

            Section 242 “Deprivation of Rights Under Color of Law” brings up the concept of “lawful authority.  Police officers who act within the limits of their lawful authority and are acting in good faith are protected by Qualified Immunity.  Section 242 comes into play if a police officer or executive official engages in conduct that violates the Constitution by engaging in “ultra vires” acts and are no longer legally protected by Qualified Immunity. (“Ultra vires” is a legal concept that translates from Latin as “beyond the powers”.)  An example of this is the use of excessive or unlawful force. If a court finds that a police officer used excessive or unlawful force (such as striking a handcuffed compliant subject) that officer is deprived of Qualified Immunity because Qualified Immunity requires police officers to act within the scope of their powers.

            What about legislatures and governors who ignore Supreme Court of the United States (SCOTUS) rulings when they pass and enforce gun laws that are directly aimed at depriving us of our rights?  How about sheriffs, judges and county clerks that intentionally delay processing and approving pistol permits?  That seems like a Section 242 violation.    

             Under US Code Title 18 section 242 “Deprivation of Rights Under Color of Law” and US Code Title 42 section 1983 “Civil Remedy for Deprivation of Rights,” governmental agents are liable both criminally and civilly for violations of individuals Civil Rights under Federal law. This liability also places an affirmative duty on public officials to know what conduct constitutes a violation of Civil Rights and what does not. It’s no different than a holder of a fishing or hunting license has the affirmative duty to be in compliance with hunting and fishing laws/regulations.           

            Under Nuremburg Principle IV, international law imposes both ethical and legal obligations to disobey unlawful orders. This was done in the aftermath of the Holocaust to prevent Human Rights abuses by removing the defense of obedience to superior orders or “I was ordered to do it.” That precedent means that even if a government official is ordered to violate someone’s Civil Rights, they have a legal and ethical obligation to disobey that order. This is a check conferred by the International Criminal Court on authoritarian power as exercised by the Nazi’s and Communists.

            One of the commonalities of the Nazi’s and Communists is the mobilization of governmental resources against perceived enemies. In Nazi Germany that included Jews, Gypsies, Slavs, and Homosexuals. In the Soviet Union it was “class enemies” such as the middle class, the upper class, and people considered “Counter Revolutionaries”. Under the Nazi and Communist regimes, the law was used to define these groups as enemies of the state and strip them of the protections of society.

          The commonality here is that New York, through overregulation, is removing the protections of society from people who wish to exercise their Right to effective self-defense.  From my perspective, part of the debate should be about the threat of state sponsored force to achieve partisan political objectives that obstruct our rights.