Senate Bill S1427

                                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.