Talking Points for the Lawsuit Banning Body in Armor in NY State Brought Forth the by Plaintiff Armored Republic Holdings LLC

• Armored Republic Holdings LLC (Arizona Company) v s Walter Mosley (NY State Secretary of State, Steven James, Superintendent of the New York State Police, Anne Donnelly, Nassau County District Attorney, and Melinda Katz, Queens County District Attorney.
• The lawsuit is a Second Amendment challenge to the State of New York’s statutes and regulations banning the sale, purchase, acquisition, and transfer of body armor to persons who are not in certain “eligible professions”.
• The lawsuit is based on the Second and Fourteenth amendments.
• The right to keep and bear arms includes/refers to the right to WEAR, BEAR, or CARRY upon the person or in the clothing or in a pocket for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.
• Body armor is included in the term “arms”
• The Challenged Regulations infringe on the rights of New York citizens to keep and bear body armor by prohibiting all, but a select few from lawfully acquiring body armor.
• Under the Bruen decision, the defendants must meet their burden by showing that the Challenged Regulations are consistent with America’s historical tradition of firearms regulation.  This is a burden the defendants cannot meet.
   
• Bruen struck down NY’s “Proper Cause” licensing regime for the carry of firearms under which an applicant could only obtain a license to carry a firearm “only if he demonstrated a special need for self-protection distinguishable from that of the general public. 
• The Challenged Regulations in this case, are worse than the “special need” regime invalidated in Bruen.  Unlike in Bruen when an individualized determination was made for each applicant as a person, the Challenged Regulations bar ANYONE from acquiring body armor unless they are employed in an eligible profession.
• The inherent right for self-defense is central to the Second Amendment right (Heller).  Like the D.C. handgun ban was struck down, NY’s body armor ban amounts to a prohibition on an entire class of “arms” that is overwhelming chosen by the American society for that lawful purpose.   
• The Bruen decision described both weapons and armor as “ARMS”.
• History of the Use Body Armor:
• • 1181 – King Henry II of England proclaim every free layman to have a shirt of mail, a helmet of some sort, and a lance.
  • 1285 – Statute of Winchester – commanded every man have in his house a chainmail shirt, a haubergeon, and a helmet of iron.
  • 1328 – Statute of Northampton – demonstrated not only that armor was within the meaning of “arms” but also that armor was possessed by all classes and professions of persons.
  • 1511 – King Henry VIII reissued the Statue of Winchester
  • 1606 – King James I granted a charter to the Virginia Company for the creation of a settlement.  Among the rights granted was the right to acquire “Armour” and all other things useful for their defense.
  • 1680 – New York forbad the sale of any amor or weapons to the Indians.
  • 1756 - Maryland statute prohibited Roman Catholics from possessing armor.
  • 1783 – Connecticut statue made it a capital crime to commit robbery while being armed with any dangerous armour or weapons.
  • No law in American history leading up to the ratification of the Second Amendment n 1791 prohibited the acquisition of body armor by persons based on their profession or restricted the lawful acquisition of armor to select professions.
  • Body armor was in common use.  NY, NC, RI, and VA required citizens to keep various kinds of armor for use in the cavalry as late as 1798; used in the French and Indian War and the Revolutionary War.
  • 1860s – bullet proof vests were purchasable by the general public, used in the Civil War
  • NO LAWS EXIST IN AMERICAN HISTORY THAT PROHIBIT LAW-ABIDING CITIZENS FROM ACQUIRING BODY ARMOR OR RESTRICTING THE ABILITY TO ACQUIRE BODY ARMOR TO SELECT PROFESSIONS, UNTIL JULY 2022 WHEN NEW YORK STATE ENACTED THE CHALLENGED REGULATIONS.

• Statistics for Modern Body Armor Use Today
• • Nearly 99.4% of police forces nationwide use some form of body armor when on duty.
  • Currently there are millions of body armor products in use among American private citizens for civilian purposes. The overwhelming majority of body armor products are used for lawful purposes such as law enforcement and civilian purposes. 
  • The FBI also found that 70% of mass-shootings are committed using handguns, but handguns are not banned, yet they are used far more than body armor. 

• What about the issue of whether an arm is “in common use”/
• • Common use is met when at least tens of thousands of an item are in use (Avitabile v Beach) or (Maloney v Singas).
  • The ban on stun gunswas reversed in Massachusetts because hundreds of thousands of tasers and stun guns have been sold to private citizens (Caetano v Massachusetts).
  • There are far more body armor products in use among Americans today.

The Challenged Regulations

• On June 6, 20233 Governor Hochul signed into law restrictions on the purchase, sale, exchange, and transfer of bullet-proof vests for citizens outside of people in selected professions.

• On July 1, 2022, Governor Hochul signed legislation that expanded the scope of these restrictions from applying only to body vests to applying more broadly to all “body armor; went into effect on July 6, 2022.

• The Challenged Regulations definition of body armor found in N.Y. Penal 270.20(2) defines “body armor” as any product that is personal protective body covering intended to protect against gunfire, regardless of whether such product is to be worn alone or is sold as a complement to another product or garment”.

• Select professions include Police officers, Peace officers, Persons in the Military or NY National Guard.  Additional Professions added include in the Challenged Regulations:
• • Armored car guard
  • Security guard
  • Firefighter
  • Emergency medical technician
  • Paramedic
  • Ambulance driver
  • Firearms dealer
  • Retailer/salesperson
  • Private investigator
  • Building safety inspector
  • Code enforcement officer
  • Firearms instructor
  • Professional journalist
  • Newscaster
  • Nuclear safety officer
  • Process server
  • Animal control officer
  • Federal firearms dealer
  • Range safety officer
  • Forensic science technician, ballistic examiner
  • School building administrator and school district administrator

• The first offense is a Class A misdemeanor, every subsequent offense is a Class E felony.

• The following categories are not “professions” within the meaning of the Challenged Regulations and are not eligible to acquire body armor and are also categorically ineligible for recognition as a class of persons possible of being designated as an “eligible profession”:
• • Member of the People within the meaning of the Second Amendment:
  • Law-Abiding American Citizen;
  • Taxpayer;
  • Stay-at-home parent;
  • Retired person;
  • Person whose professional career is inactive for reasons other than retirement;
  • Disabled person unable to maintain employment in a profession;
  • Purchaser of Body  Armor Products; And
  • Prospective purchaser of Body Armor Products

Summary of the Unconstitutionality of the Challenged Regulations

• The provisions of the Challenged Regulations that prohibit the acquisition of body armor by persons not engaged or employed in an eligible profession violate the Second Amendment because they prevent law-abiding American citizens from acquiring, and prevent the sale of arms based on their profession, a prohibition for which there is no historical analogue in this Nation’s traditions of arms regulations.

• The provisions of the Challenged Regulations that establish criteria and processes for determining “eligible professions” that may acquire body armor violate the Second Amendment because they expressly exclude from eligibility entire classes of persons from being able to acquire body armor or even to apply for eligibility, a prohibition for which there is no historical analogue in this Nation’s tradition of arms regulation.

• The provisions in the Challenged Regulations that require an in-person transfer of body armor violate the Second Amendment because they have the effect of eliminating the ability of law-abiding, responsible citizens to acquire body armor. 

• Federal law and the law of some states outlaws the possession of body armor by violent felons but provides exemptions for such felons who need body armor for their profession.  But the Challenged Regulations treat everyone as a violent felon and allow only certain privileged professions to acquire body armor based on the Secretary of State’s determination that those professions have a special need for it.  Like New York’s carry license regime that was invalidated in Bruen, the Challenged Regulations permit New Yorkers to acquire arms “only after demonstrating to government officials some special need.”  Therefore, like the regulations that were struck down in Bruen, the Challenged Regulations “violate” the Fourteenth Amendment in that they prevent law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.