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To be argued by:

James Ostrowski

Time requested:
Ten minutes

Supreme Court of the State of New York

Appellate Division, Fourth Department


THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff-Respondent, No. KA 18-01593

vs.

BENJAMIN M. WASSELL,
Chautauqua Co. Ind. No. 13-373
Defendant-Appellant.

REPLY BRIEF OF APPELLANT

JAMES OSTROWSKI
Attorney for Appellant
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com
TABLE OF CONTENTS

CITATIONS 1

QUESTIONS PRESENTED 3

ARGUMENT 4

I. THE COURT ERRED IN INSTRUCTING THE JURY. 4

A. THE COURT FAILED TO ADEQUATELY RESPOND TO 4


JURY NOTE 2 CONCERNING THE SAFE ACT, RESULTING
IN JURY CONFUSION AND THE NEED FOR FURTHER
REQUESTS TO THE COURT.

B. THE COURT FAILED TO ADEQUATELY RESPOND TO 5


JURY NOTES 12 AND 13, RESULTING IN A QUICK
GUILTY VERDICT SHORTLY THEREAFTER.

C. THE COURT’S INSTRUCTIONS AMOUNTED TO A 6


DIRECTED VERDICT.

II. THE STATUTES THE DEFENDANT WAS CONVICTED OF 6


VIOLATE DUE PROCESS, ARE VOID FOR VAGUENESS AND
VIOLATE EQUAL PROTECTION OF THE LAWS.

III. THE CONVICTIONS WERE NOT SUPPORTED BY 7


SUFFICIENT EVIDENCE OR PROOF BEYOND A
REASONABLE DOUBT.

IV. THE DEFENDANT WAS DENIED THE EFFECTIVE 11


ASSISTANCE OF COUNSEL.

V. THE CONVICTIONS SHOULD BE REVERSED ON SECOND 12


AMENDMENT GROUNDS.

CONCLUSION 25

PRINTING SPECIFICATIONS STATEMENT 26


CITATIONS

STATUTES

Penal Law § 400.00 (16-a) 4, 10

CASES

District of Columbia v. Heller, 554 U.S. 570 (2008) 12, 14-17

Heller v. District of Columbia, 670 F3d 1244 (D. C. Cir. 2011) 24

Cir. 2005)

McDonald v. City of Chicago, 561 U.S. 742 (2010) 12, 18

New York State Rifle & Pistol Ass'n, Inc. v. Cuomo,

804 F.3d 242 (2d Cir. 2015) 15

Ostrowski v. Schlegel, 108 F.3d 1369 (2nd Cir. 1997). 13

People v. Gray, 151 AD3d 1470 (3rd Dept. 2017) 7-8

People v. Ramos, 19 NY3d 133 (2012) 10

Schultz v. State of New York, 134 A.D.3d 52 (3rd Dept. 2015) 14

1
TREATISES, BOOKS AND ARTICLES

D. Kopel, “The Costs and Consequences of Gun Control,” Cato Institute 24

Policy Analysis No. 784 (Dec. 1, 2015)

S. Kurutz, “The Age of the Mugger,” New York Times (Oct. 24, 2004). 21

Ryan McMaken, “5 Tricks Gun-Control Advocates Play,” Mises.org, 23

(Nov. 1, 2016).

Ryan McMaken, “With Few Gun Laws, New Hampshire Is Safer Than 22

Canada,” Mises.org (Dec. 15, 2015).

Ryan McMaken, “Pew: Homicide Rates Cut in Half Over Past 20 Years 23

(While New Gun Ownership Soared),” Mises.org, (Oct. 27, 2015).

F. Miniter, “Nearly One Million New Yorkers Didn’t Register Their 23

Assault Weapons,” Forbes.com (June 24, 2015)

Robert Nozick, Anarchy, State and Utopia (Basic Books, 1977), pp. 32-33. 20-21

R. J. Rummel, Death by Government: Genocide and Mass Murder 13-14

in the Twentieth Century, New Jersey: Transaction Publishers, 1994

hawaii.edu/powerkills. 13-14

R. Shepard, “Do Jokes About the Big Apple Cut to the Core?,” New York 22

Times (June 19, 1975).

2
QUESTIONS PRESENTED

1. Did the trial court err in instructing the jury?

Answer of the court below: Issue not raised.

2. Are the statutes the defendant was convicted of violating contrary to due

process and equal protection of the laws?

Answer of the court below: Issue not raised.

3. Were the convictions supported by sufficient evidence and beyond a

reasonable doubt?

Answer of the court below: Yes.

4. Was the defendant denied the effective assistance of counsel?

Answer of the court below: Issue not raised.

5. Are the statutes the defendant was convicted of violating unconstitutional

under the Second Amendment?

Answer of the court below: No.

3
ARGUMENT

I. THE COURT ERRED IN INSTRUCTING THE JURY.

A. THE COURT FAILED TO ADEQUATELY


RESPOND TO JURY NOTE 2 CONCERNING
THE SAFE ACT, RESULTING IN JURY
CONFUSION AND THE NEED FOR
FURTHER REQUESTS TO THE COURT.

In its brief, the respondent cites no authority in support of the trial court’s

charge in response to Note 2. Likewise, the trial court did not cite any authorities

for its conclusion that Pennsylvania law is irrelevant, nevertheless, a perusal of the

relevant Penal Law sections indicates there does not appear to be any basis for the

court’s conclusion to that effect.

The SAFE Act, amending Penal Law Section 400.00(16-a)(a) to provide for

registration of weapons uses the term “possessed” and does not specify that such

possession can only be inside New York State. Thus, to the extent that the court

attempted to address the concerns of the jury concerning the legal validity of the

defendant’s defense, its instructions were erroneous and prejudicial to the defense.

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B. THE COURT FAILED TO ADEQUATELY
RESPOND TO JURY NOTES 12 AND 13,
RESULTING IN A GUILTY VERDICT
SHORTLY THEREAFTER.

The respondent fails to respond to our point that the trial court stated that the

statute was “confusing” and would be difficult to explain to the jury. See

Defendant’s Brief, p. 24. Yet, the defendant was somehow expected to understand

it. See also, Complaint against the SAFE Act, Record at 73, paragraph 73 (state

officials unable to explain the Act in clear terms.) As explained in our primary

brief, the court’s instructions were inadequate, confusing, favorable to the

prosecution and prejudicial to the defense. The court refused to give the requested

instruction; worse yet, the court, in so refusing, led the jury to believe that their

concerns were irrelevant to the case. Most catastrophically, the trial court led the

jury to credit the testimony of prosecution witnesses, who improperly instructed

the jury on the law in a manner directly prejudicial to the defendant. In sum, the

court refused to give legal instructions to the jury, allowed the prosecution to do

so, then virtually endorsed that improper testimony!

In his testimony, the defendant explicitly relied on the grandfather clause of

the SAFE Act, which he believed, allowed him to register a weapon by April.

[768:21-769:7; 776:11-14; 777:14-19; 808:5-809:1] Thus, the trial court, not even

knowing how the SAFE Act amended the law, told the jury, which also had no clue

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how the SAFE Act amended the law, that the SAFE Act, which was the basis for

the defendants’ theory of the case and his prime defense, was irrelevant to the case,

essentially instructing the jury to take it on faith alone, in the absence of any actual

explanation of the elements of the SAFE Act, to ignore the SAFE Act and thus,

inevitably, find the defendant guilty, which is exactly what they did, twelve

minutes later.

C. THE COURT’S INSTRUCTIONS


AMOUNTED TO A DIRECTED VERDICT.

The respondent failed to respond to this point and we therefore ask for a

reversal on that ground. See, Defendant’s Brief at Point II-D.

II. THE STATUTES THE DEFENDANT WAS CONVICTED OF


VIOLATING ARE VOID FOR VAGUENESS AND
VIOLATE DUE PROCESS AND EQUAL PROTECTION OF
THE LAWS.

The respondent argues that the statutory definition of an assault rifle can be

understood by ordinary citizens. The opposite is the case. I doubt one in a

hundred New Yorkers could look at a rifle and know whether it uses the energy

from an expended cartridge to load the next round for firing. No doubt many

experienced rifle owners could do so but that implicates the equal protection

argument made by the defendant.

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In People v. Gray, 151 AD3d 1470 (3rd Dept. 2017), the court required expert

testimony from two firearms experts to even prove the elements of the crime:

“From Zell's and D'Allaird's testimony, it is clear that defendant's rifle


"utilize[d] a portion of the energy of [the] firing cartridge . . . to
extract the fired cartridge case . . . and chamber the next round" and,
further, "require[d] a separate pull of the trigger to fire each cartridge"
(Penal Law § 265.00 [21]), which places such rifle squarely within the
definition of a semiautomatic/repeating rifle.”

The court described Zell as “the lead firearms instructor for the Kingston Police

Department and D’Allaird as “a firearms expert employed by the State Police.”

The issue before the Court then is simply this: does due process allow the

state to criminalize conduct that only an expert witness could even understand?

The answer is clearly no.

III. THE CONVICTIONS WERE NOT SUPPORTED BY


LEGALLY SUFFICIENT EVIDENCE BEYOND A
REASONABLE DOUBT AND ARE AGAINST THE
WEIGHT OF THE EVIDENCE.

The defendant concedes that this issue was unpreserved, yet the Court can

reach this issue in the interest of justice or as a basis for finding that defense

counsel was ineffective. See Appellant's Brief at IV and V-C.

The Respondent argues that no proof of the elements of a semiautomatic

rifle is necessary since several witnesses stated it was “semi-automatic.” The

several instances of this conclusory term, in the absence of any evidence in the
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case or even instructions to the jury about the statutory meaning of the term, is

inadequate. The witnesses did not explain what they meant by the term; there is no

dispute that the jury was not informed of the meaning of the term and there is no

dispute that the elements of that definition were not proven to exist. We also

complain elsewhere in the brief that defense counsel allowed this testimony as

improper legal opinions. Further, the defendant’s references to the term “semi-

automatic” were likewise conclusory, provided no details, and would not have

been necessary if defense counsel had made a proper motion to dismiss at the end

of the People’s case.

The Defendant’s use of the term semiautomatic, without reference to the

statutory elements, and with the jury having no clue as to what he meant by the

term, and especially since the term was never properly defined by the jury, does

not constitute an admission and any jury reliance would be purely speculative on

their part and not based on evidence.

The Respondent mischaracterizes the holding of People v. Gray, 151 AD3d

1470 (3rd Dept. 2017). The Third Department did not reject a claim that the trial

court should define “semiautomatic.” Respondent’s Brief at page 18. Rather, the

court stated that the issue was not preserved for review and declined to reach the

issue in the interest of justice. That latter decision was presumably based on the

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fact that the record in that case did establish the specific elements of the definition

of semiautomatic. As the court stated:

“As to the precise manner in which each round was advanced, Zell
explained, "[A]s the trigger is pulled and the projectile goes down
through the barrel, the gases will then lock the bolt to the rear forcing .
. . the spent casing to eject through the ejection port, which then locks
the bolt[] to the rear, which then the magazine with a spring in it
allows pressure for the bolt to go forward and inject another round
into the weapon." From Zell's and D'Allaird's testimony, it is clear that
defendant's rifle "utilize[d] a portion of the energy of [the] firing
cartridge . . . to extract the fired cartridge case . . . and chamber the
next round" and, further, "require[d] a separate pull of the trigger to
fire each cartridge" (Penal Law § 265.00 [21]), which places such rifle
squarely within the definition of a semiautomatic/repeating rifle. Such
proof, coupled with the testimony from various witnesses as to the
manner in which defendant pointed and discharged his rifle and the
spent 9 millimeter casing recovered from the scene, which was
scientifically linked to the casings recovered when defendant's rifle
was successfully test-fired, established – beyond a reasonable doubt –
each of the elements of criminal possession of a weapon in the second
degree and reckless endangerment in the second degree. As the jury's
verdict is in accord with the weight of the evidence, we discern no
basis upon which to disturb it.”

Apparently, the court reasoned that, since there was actual evidence that the

statutory definition had been established, it was pointless to reverse the conviction

for want of a proper jury instruction. In this case, however, not only were the

terms “semiautomatic” and “rifle” not explained to the jury, but there was no

evidence presented to the jury that the weapon the defendant was charged with

possessing was either a semiautomatic or even a rifle as defined by the statute.

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Finally, there was no evidence that the weapon was not lawful under the SAFE

Act’s grandfather clause. See, Penal Law §400.00 (16-a); Point V-C, below;

People v. Ramos, 19 NY3d 133 (2012). It is difficult to conceive of a more

appropriate case for invocation of interest of justice review than a case where a

man was convicted of felony charges without proof of several elements of such

felonies.

Finally, the Respondent’s discussion of the grandfather clause is pure ipse

dixit. No authority is cited. No argument to the effect that the grandfather clause

is some sort of affirmative defense is made. No mention is made of the fact that

the deadline for registering under the grandfather clause had not yet expired when

the defendant was charged. Finally, the Respondent, for legal authority regarding

the applicability of the grandfather clause, relies on the unqualified legal opinion

stated by the defendant himself.

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IV. THE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL.

The respondent argues that the objections to counsel’s performance are

based on matters outside the record, however, as our primary brief shows, this is

not the case. All errors are clear from the record and the failure to raise them on

direct appeal would surely be seen as a waiver if the same issues were later raised

in a 440.10 motion. Nor do any of the errors constitute a reasonable strategy or

tactic. Rather, none of these errors contributed in any way to the defense and all of

them prejudiced that defense as was made clear, for example, when the legal

opinions of hostile witnesses were credited by the jury and by the court itself

during deliberations. See, Defendant’s Brief, pp. 26-27

Respondent’s contention that the defendant was indisputably guilty is belied

by the numerous failures of proof and prejudicial errors involving jury instructions

as noted in Defendant’s Brief at Points II and IV. Respondent’s argument that

defense counsel ably argued on the basis of defendant’s “intent” is unavailing as

lack of intent is not a defense to possession of an assault weapon.

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V. THE CONVICTIONS SHOULD BE REVERSED ON
SECOND AMENDMENT GROUNDS.

The respondent’s response to the defendant’s Second Amendment

arguments typifies the casual attitude of most state and federal appellate courts

towards the right to bear arms since the revolutionary and controversial Heller and

McDonald decisions were issued: that is, they basically ignore them. The

predominant opinion in the legal community for many years had been that the

Second Amendment was a dead letter that had some vague relationship to the

militia and colonial times and that militias having passed from the scene, the

Amendment was essentially a meaningless vestige of primitive times and primitive

minds. As pointed out in detail in defendant’s brief, New York courts and all too

often the Second Circuit have essentially ignored Heller.

Specifically:

1. the respondent completely ignores the primary purpose of the

Second Amendment, to allow the people to defense themselves

against government tyranny;

2. the respondent uses an intermediate scrutiny balancing test rejected

by Heller and McDonald.

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3. The respondent relies on biased and tendentious academic studies

which are flawed for many reasons.

Initially, it needs to be understood that the trial judge did rule on the

defendant's Second Amendment motion. The trial judge stated, “Therefore, the

defendant’s motions are denied in all respects.” That the judge refused to discuss

the Second Amendment motion does not mean the motion was not denied. In any

event, the motion was at least denied sub silentio. See, by way of illustration,

Ostrowski v. Schlegel, 108 F.3d 1369 (2nd Cir. 1997).

As for why opponents of the right to bear arms ignore the actual purpose

behind the right—protection against government tyranny—I submit it is because

they simply have no rebuttal to it! The historical and textual evidence for this

proposition is undeniable. The United States was born in a revolutionary war

precipitated by a British gun control mission at Lexington and Concord.

The right has worked exactly as intended. While the United States

government has badly mistreated or tolerated the mistreatment of a variety of

persons not considered to be citizens at the time including African slaves and

Native Americans, while aggressively making efforts to ensure that both were

disarmed, that same government has not done what at least twenty other modern

regimes and an infinite number of early modern, pre-modern and ancient regimes

have done: engaged in the mass killing of its own citizens. See, R. J. Rummel,
13
Death by Government: Genocide and Mass Murder in the Twentieth Century, New

Jersey: Transaction Publishers, 1994; hawaii.edu/powerkills. Nor has the United

States government yet installed a totalitarian police state or cancelled elections or

had coups d’etat or other political instability commonly seen in other countries

where the right to bear arms does not exist. The fact is that the Second Amendment

has worked and those who have an ideological urge to disarm Americans have no

rebuttal to that undeniable fact. Hence, they pretend that this line of argument does

not even exist, thereby declaring their intellectual bankruptcy.

Under a proper understanding of the Second Amendment, any proposal to

ban or restrict law-abiding, competent adults from owning weapons useful for

every kind of self-defense and that have been in common use in America would be

presumptively unconstitutional. Yet, this is an academic point as no proponent of

any gun control law has even constructed an argument for how their proposal does

not violate the Second Amendment’s core purpose.

Dealing then with the utterly disingenuous line of argument advanced by

proponents of gun control—that the right to bear arms relates only to self-defense

against street crime--the first problem is that their argument for a very lenient

interest balancing test contradicts the holdings of Heller and McDonald. The

Respondent relies on the intermediate scrutiny test adopted by Schultz v. State of

New York, 134 A.D.3d 52 (3rd Dept. 2015) ("[l]egislative enactments enjoy a
14
strong presumption of constitutionality . . . “) and New York State Rifle & Pistol

Ass'n, Inc. v. Cuomo, 804 F.3d 242, 252 (2d Cir. 2015):

“In making this determination, we afford "substantial deference to the


predictive judgments of the legislature."[109] We remain mindful
that, "[i]n the context of firearm regulation, the legislature is `far
better equipped than the judiciary' to make sensitive public policy
judgments (within constitutional limits) concerning the dangers in
carrying firearms and the manner to combat those risks."[110] Our
role, therefore, is only to assure ourselves that, in formulating their
respective laws, New York and Connecticut have "drawn reasonable
inferences based on substantial 262*262 evidence."[111]”

In his dissent in Heller, Justice Breyer proposed a balancing test very much

like the one subsequently and inexplicably adopted by New York courts and the

Second Circuit.

“Indeed, adoption of a true strict-scrutiny standard for evaluating gun


regulations would be impossible. That is because almost every gun-
control regulation will seek to advance (as the one here does) a
“primary concern of every government—a concern for the safety and
indeed the lives of its citizens.” United States v. Salerno, 481 U. S.
739, 755 (1987) . The Court has deemed that interest, as well as “the
Government’s general interest in preventing crime,” to be
“compelling,” see id., at 750, 754, and the Court has in a wide variety
of constitutional contexts found such public-safety concerns
sufficiently forceful to justify restrictions on individual liberties, see
e.g., Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (
First Amendment free speech rights); Sherbert v. Verner, 374 U. S.
398, 403 (1963) ( First Amendment religious rights); Brigham City v.
Stuart, 547 U. S. 398, 403–404 (2006) ( Fourth Amendment
protection of the home); New York v. Quarles, 467 U. S. 649, 655
(1984) ( Fifth Amendment rights under Miranda v. Arizona, 384 U. S.
436 (1966) ); Salerno, supra, at755 ( Eighth Amendment bail rights).
Thus, any attempt in theory to apply strict scrutiny to gun regulations
will in practice turn into an interest-balancing inquiry, with the
15
interests protected by the Second Amendment on one side and the
governmental public-safety concerns on the other, the only question
being whether the regulation at issue impermissibly burdens the
former in the course of advancing the latter.

“I would simply adopt such an interest-balancing inquiry explicitly.


The fact that important interests lie on both sides of the constitutional
equation suggests that review of gun-control regulation is not a
context in which a court should effectively presume either
constitutionality (as in rational-basis review) or unconstitutionality (as
in strict scrutiny). Rather, “where a law significantly implicates
competing constitutionally protected interests in complex ways,” the
Court generally asks whether the statute burdens a protected interest
in a way or to an extent that is out of proportion to the statute’s
salutary effects upon other important governmental interests. See
Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402
(2000) (Breyer, J., concurring). Any answer would take account both
of the statute’s effects upon the competing interests and the existence
of any clearly superior less restrictive alternative. See ibid. Contrary
to the majority’s unsupported suggestion that this sort of
“proportionality” approach is unprecedented, see ante, at 62, the Court
has applied it in various constitutional contexts, including election-
law cases, speech cases, and due process cases. See 528 U. S., at 403
(citing examples where the Court has taken such an approach); see
also, e.g., Thompson v. Western States Medical Center, 535 U. S. 357,
388 (2002) (Breyer, J., dissenting) (commercial speech); Burdick v.
Takushi, 504 U. S. 428, 433 (1992) (election regulation); Mathews v.
Eldridge, 424 U. S. 319, 339–349 (1976) (procedural due process);
Pickering v. Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U. S. 563, 568 (1968) (government employee speech).

“In applying this kind of standard the Court normally defers to a


legislature’s empirical judgment in matters where a legislature is
likely to have greater expertise and greater institutional factfinding
capacity. See Turner Broadcasting System, Inc. v. FCC, 520 U. S.
180, 195–196 (1997) ; see also Nixon, supra, at 403(Breyer, J.,
concurring). Nonetheless, a court, not a legislature, must make the
ultimate constitutional conclusion, exercising its “independent judicial
judgment” in light of the whole record to determine whether a law
16
exceeds constitutional boundaries. Randall v. Sorrell, 548 U. S. 230,
249 (2006) (opinion of Breyer, J.) (citing Bose Corp. v. Consumers
Union of United States, Inc., 466 U. S. 485, 499 (1984) ).”

Justice Scalia ingeniously responded that the Second Amendment had

already done all the interest balancing the right to bear arms needed:

“Justice Breyer moves on to make a broad jurisprudential point: He


criticizes us for declining to establish a level of scrutiny for
evaluating Second Amendment restrictions. He proposes, explicitly at
least, none of the traditionally expressed levels (strict scrutiny,
intermediate scrutiny, rational basis), but rather a judge-empowering
“interest-balancing inquiry” that “asks whether the statute burdens a
protected interest in a way or to an extent that is out of proportion to
the statute’s salutary effects upon other important governmental
interests.” Post, at 10. After an exhaustive discussion of the arguments
for and against gun control, Justice Breyer arrives at his interest-
balanced answer: because handgun violence is a problem, because the
law is limited to an urban area, and because there were somewhat
similar restrictions in the founding period (a false proposition that we
have already discussed), the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.

“We know of no other enumerated constitutional right whose core


protection has been subjected to a freestanding “interest-balancing”
approach. The very enumeration of the right takes out of the hands of
government—even the Third Branch of Government—the power to
decide on a case-by-case basis whether the right is really
worth insisting upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional guarantee at
all. Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them, whether or not
future legislatures or (yes) even future judges think that scope too
broad. We would not apply an “interest-balancing” approach to the
prohibition of a peaceful neo-Nazi march through Skokie.
See National Socialist Party of America v. Skokie,432 U. S.
43 (1977) (per curiam). The First Amendment contains the freedom-
of-speech guarantee that the people ratified, which included
17
exceptions for obscenity, libel, and disclosure of state secrets, but not
for the expression of extremely unpopular and wrong-headed views.
The Second Amendment is no different. Like the First, it is the
very product of an interest-balancing by the people—which Justice
Breyer would now conduct for them anew. And whatever else it
leaves to future evaluation, it surely elevates above all other interests
the right of law-abiding, responsible citizens to use arms in defense of
hearth and home.”

The Supreme Court in McDonald reiterated its rejection of the balancing of

interests approach proposed by the Respondent:

“Municipal respondents assert that, although most state constitutions


protect firearms rights, state courts have held that these rights are
subject to "interest-balancing" and have sustained a variety of
restrictions. Brief for Municipal Respondents 23-31. In Heller,
however, we expressly rejected the argument that the scope of the
Second Amendment right should be determined by judicial interest
balancing, 554 U.S., at ___ - ___, 128 S.Ct., at 2820-2821, and this
Court decades ago abandoned "the notion that the Fourteenth
Amendment applies to the States only a watered-down, subjective
version of the individual guarantees of the Bill of Rights," Malloy,
supra, at 10-11, 84 S. Ct. 1489 (internal quotation marks omitted).”

Since the respondent relies on an analytical approach explicitly rejected by

the Supreme Court in its only two relevant Second Amendment cases, its entire

line of argument must be rejected by this Court.

At this point in the continuing evolution of Second Amendment doctrine,

with the Supreme Court having recently accepted only its third case involving the

right to bear arms (New York State Rifle & Pistol Association, Inc., et al.,

Petitioners v. City of New York, New York, et al., 18-280) and reviewing New York
18
law, this fact must be clearly understood by all: the intermediate scrutiny,

balancing of interests test, is a completely disingenuous means invented by virulent

opponents of the Second Amendment to destroy the right to bear arms in actual

practice! The test was essentially the creation of Justice Breyer in Heller as a fall-

back position to his initial opposition to any individual right to bear arms.

Justice Breyer endorsed Justice Stevens’ dissent, in which he set forth the

legal establishment’s view that the right to bear arms is a dead letter as it only

protects collective rights related to the now defunct militia. As a fallback position,

Justice Breyer set forth an interest-balancing test that was designed to allow judges

hostile to the right to bear arms to provide a constitutional gloss to the pro forma

endorsement of any and all gun control legislation.

The actual, historical purpose of the Second Amendment was to protect the

natural, pre-existing right of the people to self-defense in the broadest possible

sense, meaning, primarily, self-defense against government tyranny but also self-

defense against possible foreign invasion, terrorism, domestic unrest and

secondarily against run of the mill street crime. However, the test developed by

those who don’t agree in the slightest with the right to bear arms, naturally fails to

incorporate in its contrived balancing test any room for “weighing” the “interests”

protected by the right! ("Timeo Danaos et dona ferentes" from Aeneid (II, 49),

"Beware of Greeks bearing gifts".)


19
Rather, as explained in respondent’s brief, “courts will uphold a challenged

regulation where it bears a substantial relationship to the achievement of an

important governmental objective.” Thus, in that test, zero weight is given to the

values protected by the right and near absolute weight is given to the interest of the

government. Yet, the purpose of the right is either to allow the people to protect

themselves against the government or protect themselves when the government

fails to do so. Thus, we have shown that the intermediate scrutiny test is a

disingenuous test invented by opponents of the right to bear arms whose main

purpose is to negate the right to bear arms.

Contrary to respondent’s contentions, there is no definitive proof that the

federal or New York’s assault weapons ban has accomplished a net good for

society, even if social net good was a scientifically valid category. That is, since it

is undisputed that guns are used in self-defense many thousands of times each year,

reducing their availability no doubt increases the criminal victimization of law-

abiding individuals and there does not appear to be any scientific way to prove that

the costs of that increased crime are somehow outweighed by any speculative

crime reduction legislation restricting gun use might cause in the future. Robert

Nozick explains:

“[T]here is no social entity with a good that undergoes some sacrifice


for its own good. There are only individual people, different
individual people, with their own individual lives. Using one of these
20
people for the benefit of others, uses him and benefits the others.
Nothing more. What happens is that something is done to him for the
sake of others. Talk of an overall social good covers this up.
(Intentionally?) To use a person this way does not sufficiently respect
and take account of the fact that he is a separate person, that his life is
the only life he has. He does not get some overbalancing good from
his sacrifice, and no one is entitled to force this upon him-least of all a
state or government that claims his allegiance (as other individuals do
not) and that therefore scrupulously must be neutral between its
citizens.” Anarchy, State and Utopia (Basic Books, 1977), pp. 32-33.

New York City through the decades was a laboratory experiment in what

happens when the government makes it extremely difficult for citizens to obtain a

pistol permit. Muggings became a cultural institution in the mid-60’s as described

by the New York Times:

"’It was so easy to get mugged in those days,’ said Mr. Buggy [an
undercover officer], now retired and living in Middle Village, Queens.
‘I couldn't stagger down the street and not have 10 muggers come
after me.’ . . .
“As vast parts of the city -- Times Square, Central Park, Upper
Broadway -- became danger zones, normally intrepid New Yorkers
reacted with paranoia and fear. Restaurant business fell off. Errands
were made in the light of day. If people did venture out at night, they
walked in the middle of the street so nobody could jump them from
behind a building. Even children carried ‘mugger's money,’ and
sharing mugging stories became fodder for dinner party
conversation.” S. Kurutz, “The Age of the Mugger,” New York Times
(Oct. 24, 2004).

Henny Youngman joked about it: “Guy walks up to a fellow and says, ‘Do you

know where Central Park is?’ Fellow says no, guy says, ‘Then I'll mug you right

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here.’” R. Shepard, “Do Jokes About the Big Apple Cut to the Core?,” New York

Times (June 19, 1975).

In any event, there are no studies that scientifically prove that the benefits of

assault weapons bans and other gun control measures outweigh all the numerous

costs since those costs are never fully delineated by the result-oriented producers

of such studies.

Nevertheless, the following general facts about guns, crime and gun

control can be stated with confidence:

1. Many high crime cities have strict gun control laws.

2. In many of those high-crime cities, the rate of gun ownership is

low compared to national rates.

3. While law-abiding citizens do generally comply with gun

control laws, criminals do not.

4. Many states with lax gun laws and heavy gun ownership have

low crime rates. Ryan McMaken, “With Few Gun Laws, New

Hampshire Is Safer Than Canada,” Mises.org (Dec. 15, 2015).

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5. From 1995 through 2012, the murder rate declined while gun

ownership increased. Ryan McMaken, “Pew: Homicide Rates

Cut in Half Over Past 20 Years (While New Gun Ownership

Soared),” Mises.org, (Oct. 27, 2015).

6. Gun control advocates misuse statistics to make the case for

gun control stronger than it is. For example, they speak of “gun

homicides” as opposed to overall homicides. Ryan McMaken,

“5 Tricks Gun-Control Advocates Play,” Mises.org, (Nov. 1,

2016).

7. The crime problem in the United States is often exaggerated by

arbitrary and unscientific comparisons with other countries

entirely dissimilar to the United States. Id.

Thus, even if logic would allow the rights of vast numbers of law-abiding

citizens to be sacrificed with a resulting increased rate of criminal victimization as

a consequence if it was proven that gun control would be a net benefit to society,

the proponents of gun control have failed to make that case.

The respondent argues that the weapons banned by the SAFE Act were not

in common use, however, estimates indicate that close to one million such rifles

have not been registered. F. Miniter, “Nearly One Million New Yorkers Didn’t

Register Their Assault Weapons,” Forbes.com (June 24, 2015). Evidently, such
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weapons were in common use before the SAFE Act was enacted in the middle of

the night without hearings. The respondent’s argument justifying the banning of

various features of the rifles begs the question and misconceives of the purpose of

the right to bear arms. Firearms researcher David Kopel writes:

“The bans on guns with grips, folding stocks, barrel covers, or threads
focus exclusively on the relatively minor ways in which a feature
might help a criminal and ignore the feature’s utility for sports and
self-defense. The reason that manufacturers include those features on
firearms is because millions of law-abiding gun owners want them for
entirely legitimate purposes.” D. Kopel, “The Costs and
Consequences of Gun Control,” Cato Institute Policy Analysis No.
784 (Dec. 1, 2015)

The various features banned such as pistol grips or adjustable stocks merely

make the rifles more efficient for lawful purposes and allow persons who are

smaller in frame or disabled to use these weapons for self-defense against

criminals who would in any event disregard the gun laws. As Justice Kavanaugh

wrote in his dissent in Heller v. District of Columbia, 670 F3d 1244 (D. C. Cir.

2011):

“If a gun is employed by criminals on the offense who are willing to


violate laws and invade homes, for example, their potential victims
will presumably want to be armed with similarly effective weapons
for their defense. Cf. Heller, 554 U.S. at 711 (Breyer, J., dissenting)
(“the very attributes that make handguns particularly useful for self-
defense are also what make them particularly dangerous”). There is no
reason to think that semi-automatic rifles are not effective for self-
defense in the home, which Heller explained is a core purpose of the
Second Amendment right. The offense/defense distinction thus doesn't
advance the analysis here, at least in part because it is the person, not
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the gun, who determines whether use of the gun is offensive or
defensive.”

CONCLUSION

The judgment of conviction should be reversed and vacated and the

indictment dismissed with prejudice. See Defendant’s Brief, Points I, III, IV, and

VI. Alternatively, the case should be remanded for a new trial. See, Defendant’s

Brief, Points II and V.

Respectfully submitted,

January 28, 2019

______________________
James Ostrowski
Attorney for Defendant
BENJAMIN WASSELL
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com

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