78 Alb. L. Rev. 789 (2014-2015)
New York's Not So SAFE Act: The Second Amendment in an Alice-in-Wonderland World Where Words Have No Meaning

handle is hein.journals/albany78 and id is 801 raw text is: 










         NEW   YORK'S   NOT   SO  SAFE   ACT:  THE   SECOND
     AMENDMENT IN AN ALICE-IN-WONDERLAND WORLD
               WHERE WORDS HAVE NO MEANING


                         Stephen  P. Halbrook*

                           I. INTRODUCTION

   Use  and manipulation of   the  pejorative term  assault weapon   is
a  classic case of an Alice-in-Wonderland world where words have
no  meaning.'   The  Second  Amendment provides that the right of
the  people to keep  and  bear  Arms,  shall not be  infringed.2 Arms,
such  as rifles, pistols, and shotguns, do not lose their constitutional
protection  because  the legislature describes  them  with  a derogatory
term. Indeed, no pronouncement of a legislature can forestall
attack  upon  the constitutionality  of the prohibition which   it enacts
by  applying opprobrious   epithets to the prohibited act ....
   The  term  assault weapon   generically  means   a weapon   used  in
an   assault.4   Military  usage   refers  to  certain  fully automatic
machine   guns  as assault  rifles.5 Military forces  worldwide   issue



  * Counsel for plaintiffs-appellants in New York State Rifle & Pistol Ass'n v. Cuomo, 990 F.
Supp. 2d 349 (W.D.N.Y. 2013), appeal filed, No. 14-0036(L) (2d Cir. Jan. 3, 2014). J.D.,
Georgetown University Law Center; Ph.D., Philosophy, Florida State University. Books
include The Founders' Second Amendment; Freedmen, the Fourteenth Amendment & the Right
to Bear Arms (reissued as Securing Civil Rights: Freedmen, the Fourteenth Amendment & the
Right to Bear Arms); Firearms Law Deskbook; That Every Man be Armed: The Evolution of a
Constitutional Right; and Gun Control in the Third Reich: Disarming the Jews and Enemies
of the State. Argued Printz v. United States, 521 U.S. 898 (1997), and other Supreme Court
cases, and represented a majority of members of Congress as amici curiae in District of
Columbia v. Heller, 554 U.S. 570 (2008). Former assistant professor of philosophy at
Tuskegee Institute, Howard University, and George Mason University; Research Fellow,
Independent Institute; in law practice since 1978 in Fairfax, Virginia. For more information
about the author and his works, see STEPHEN P. HALBROOK, PH.D.: ATTORNEY AT LAW,
www.stephenhalbrook.com (last visited Feb. 23, 2015).
  1 Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring).
  2 U.S. CONST. amend. II (emphasis added).
  I United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938).
  4 See People v. Alexander, 595 N.Y.S.2d 279, 282 (App. Div. 1993) (describing a tire iron
used in an assault as the assault weapon).
  5 U.S. ARMY, ST-HB-07-03-74, SMALL ARMS IDENTIFICATION AND OPERATION GUIDE-
EURASIAN COMMUNIST COUNTRIES 105 (1973) (Assault rifles are short, compact, selective-fire
weapons that fire a cartridge intermediate in power between submachinegun and rifle


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