By James D. Tresmond, Esq., Buffalo

It is time to put a final nail in the coffin of New York’s so-called “Sullivan Act”.

The Sullivan Act affixed enormous criminal punishments for possession of a handgun without permission of New York state officials. If you own a handgun, and keep that handgun in your home for selfdefense, you are guilty of a “Class A” misdemeanor if you did not obtain a license from your county licensing officer before obtaining that firearm.

The United States Supreme Court ruled that handgun possession within the home, independent of military service, is a fundamental. District of Columbia v. Heller, 554 U.S. 570 (2008). This right is incorporated against the states through the Due Process clause of the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742 (2010). In other words, states may not prohibit law-abiding American citizens from keeping handguns in their homes for self-defense.

Why then does New York require that you obtain a license to keep a gun in your home? Moreover, why does your handgun license expressly state that your right “is revocable at any time?” Something is seriously wrong with this picture. After all, rights are not rights if some bureaucrat can revoke your right “at any time.” What’s going on here, and what is being done to protect your constitutional rights?

BACKGROUND

Most people may not realize that the Sullivan Act was not passed for any legitimate state objective such as public safety. Rather, Timothy Sullivan sponsored the act as a way of intimidating and penalizing Italian immigrants to New York who, like many Americans to this day, often carried revolvers. Sullivan was a notoriously corrupt politician associated with the infamous graft machine known as Tammany Hall.

The law was passed such that licensing agencies had the capability to grant or deny pistol permits on an arbitrary, case-by-case basis as so many residents throughout New York are familiar with today. Those chosen as political favorites would obtain a carry license, while the immigrants would be denied the same right.

The same licensing scheme established under the Sullivan Act remains in effect today. Egregiously, the Sullivan Act is more than bad legislation; it is unconstitutional legislation. It is unconstitutional because it converts your constitutional right to keep a handgun in your home into a privilege “revocable at any time.”

This despicable denial of citizens’ fundamental rights has exploded out of control. All Americans living under the current New York regime must ask state permission to exercise their fundamental constitutional rights.

FUNDAMENTAL RIGHTS EXPLAINED

The elevation of handgun ownership in the home to a “fundamental right” has particularly important conseq uences in la w. T he ter m “fundamental right” is a special term within federal and state law used to describe a particular right necessary to preserve a free and open democratic society.

Fundamental rights are those rights “essential to a scheme or ordered liberty (Duncan v. Louisiana, 391 U.S. 145 [1968]) and “deeply rooted in this Nation’s history and tradition (Washington v. Glucksberg, 521 U.S. 702 [1997]).

The Supreme Court has consistently held that fundamental rights are not up for debate; your fundamental rights belong to you regardless of what any transient political majority decides. Writing for the Supreme Court majority, Western New York’s own Justice Jackson wrote: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Plainly stated, fundamental rights are afforded the highest degree of protection under our system of laws and are not easily encumbered. “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution” that “requires courts to exercise reasoned judgment in identifying interests of the persons so fundamental that the State must accord them its respect.” Obergfell v. Hodges, 576 U.S. ____ (2015). Those rights enshrined within the Bill of Rights are fundamental. To that end, Heller and McDonald have settled the issue that your right to keep a handgun in your home is a fundamental right.

THE SECOND AMENDMENT’S IMPORTANCE IN HISTORICAL CONTEXT

The importance of the Second Amendment as a basic human right is as old as our nation. Federalists and anti-federalists alike unanimously agreed that the right to keep and bear arms worked as a prophylactic against the creation of a despotic regime. In the days following the Civil War, self-defense was the central focus of the Second Amendment’s scope. White supremacist groups terrorized freed slaves and their families.

The clear and present danger posed to freed slaves prompted the 30th Congress to pass legislation guaranteeing equal rights to all people. The Freedman’s Bureau Act of 1866 protected “The right to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all citizens without respect to race or color, or previous condition of slavery” (emphasis added).

New York, once a beacon of freedom and progress, has paradoxically made the wrongful choice to side with the position of former slavery-supporting governments. New York thereby converts its residents’ constitutional rights into mere privileges, revocable at the mere whim and caprice of unelected bureaucrats. In the coming days, we are going to take affirmative steps to bring a swift death to the Sullivan Act.

THE TIME TO ACT IS NOW

I urge each and every one of you to contact your state assembly members and senators and demand a full repeal of both the Sullivan Act and the SAFE Act. Explain to your friends and family members that, while they may not own guns, carve-outs and exceptions to one area of the Bill of Rights expose other rights, such as freedom of speech, religion, protections against warrantless searches, to the same acts of casuistry and tortured reasoning that will make all of us less free. It is the only practical approach to save our republic.

We will continue to pursue legal challenges in the courts. You may remember my client David Lewis, whose pistol permit was wrongfully suspended after the New York State Police targeted him, despite his never having done anything wrong. David’s experience gave him the deep understanding between what happens when a government treats rights like privileges.

The damage to David far exceeded the denial of his Second Amendment right. David was subjected to public embarrassment, his privacy rights were violated, defamed as danger to society — again, something that was never the case. That is why David retained me to represent him in mounting a constitutional challenge to the Sullivan Act.

Like many of you, David understands that the Bill of Rights has to be respected and enforced as a whole. The erosion of one fundamental right necessarily triggers the erosion of other fundamental rights. The protection against warrantless searches and seizures is abrogated when the Second Amendment is not respected. Likewise, wrongful exceptions carve-outs in one area of constitutional law may be applied to others. Your government rarely violates a single right at a time. History and experience tell us that once our rights are eroded, governments violate entire categories of them en masse.

The time to act is now. In the words of Winston Churchill, we shall never surrender. It is a pleasure, and an honor, to defend your rights.