Senate Bill S1256

                                 BILL NUMBER : S1256

 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.  This dispute
appears to have been resolved based upon 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 Supreme Court of the United States has yet to definitively rule on
the specific subject of the individual versus states' rights debate,
but the Court has of late recognized that the Second Amendment phrase
"right of the people" refers to individual rights, just as the rights
of the "people" found in the First and Fourth Amendments are
individual rights.  (United States v.  Verdugo-Urquidez, 110 S.Ct.
1056, 108 L.Ed. 2d 222 (1990)).  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.  And 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);
Caplan, 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.  Therefore, the New York State
Conservation Council respectfully urges passage of the proposed
amendment to the State Constitution.

 LEGISLATIVE HISTORY :
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 :
This amendment shall take effect upon approval of the voters at a
general election succeeding the passage of such amendment by two
separately elected legislatures.