Replies

Part One: Table of Contents, Table of Authorities, Statement of Jurisdiction, Statement of the Issues, Statement of the Argument.

A recent status report from Brian Brunner

In the Court of the Town of Busti
County of Chautauqua
State of New York

BRIAN TIMOTHY BRUNNER
and
DEBRA LOUISE BRUNNER
v.
THE STATE OF NEW YORK.

MOTION TO VACATE

Motion to Vacate a Judgement of Guilty subsequent to the entry thereof (CPL § 440.10 ¶ 1) citing subsection (h) (The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.)

) the seriousness and circumstances of the offense; (there is no seriousness to an unconstitutional statute).
) the extent of harm caused by the offense; (there was no offense by defendants, but by the statute itself)
) ...
) ...
) ...
) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (conversion of a right into a crime is not in the interests of justice, no matter how slight the penalty)
) the impact of a dismissal on the safety or welfare of the community; (As this statute invades the public safety, dismissal on grounds of unconstitutionality, rendering the statute unenforceable upon any of the people of the State, increases the public safety)
) the impact of a dismissal upon the confidence of the public in the criminal justice system; (the people dispise this and similar laws. Ask them)
) ...
) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. (unconstitutional laws are ipso fact without useful purpose)
All of which are active in the prosecution of an unconstitutional statute. -->

Defendants Brian Timothy Brunner and Debra Louise Brunner prosecuted for the "crime" of Keeping and Bearing Arms (Penal Code §265.01 ¶ 1) enter a motion to vacate the judgement entered therefrom by reason of violation of rights secured to the defendants under the Constitution of the United States, Amendment 2.
Whereas this subject is currently in a maelstrom of politically motivated disinformation, vicious statutes upheld by defective reasonings, and clouded over with alarmist propaganda, Defendants have listed everything they can find pertinent to their Motion under the doctrine, that, if all of these things already are known by all, "God may know, but the record must show."

TABLE OF CONTENTS 1

TABLE OF AUTHORITIES 2

STATEMENT OF JURISDICTION 3

STATEMENT OF THE ISSUES 4

SUMMARY OF THE ARGUMENT 7

CITED AUTHORITIES 7

ARGUMENT 118

-->

CONCLUSION 113

BIBLIOGRAPHY 113

TABLE OF AUTHORITIES
1. Rights
  1. The Natural Right of Self Defense.
  2. The Common Law Right to Arms.
  3. The Right of Armed Resistance to Tyranny.
  4. The Several States and their Recognitions of the Right to Arms.
2. The Right to Arms under the United States Constitution
  1. U.S. Constitution and Bill of Rights: Ratification debates.
  2. U.S. Constitution, Language of Construction.
  3. U.S. Constitution, Construction, in general.
  4. U.S. Constitution, Preamble.
  5. U.S. Constitution, Art 1 § 8 cl 11.
  6. U.S. Constitution, Art 1 § 8 cl. 15 & 16.
  7. U.S. Constitution, Art 2 § 2 ¶ 1.
  8. U.S. Constitution, Amendment 2.
  9. U.S. Constitution, Amendment 9.
  10. Scorpions in a Bottle: Barron v. Baltimore
  11. Chains of Parchment: Dred Scott v. Sandford
  12. Slavery Renamed: The Black Codes.
  13. U.S. Constitution, Amendment 14 § 1.
3. Congress, the Second Amendment, and the Right of Arms.
  1. The Federal Militia Act (1792)
  2. The Freedmen’s Bureau Act of 1866
  3. The current Militia Law 10 USC 311 & 312.
  4. The National Firearms Act of 1934
  5. The Federal Firearms Act of 1938
  6. The 1941 Private Property Requisition Act The 1968 Gun Control Act
  7. The Consumer Product Safety Act of 1976-->
  8. The Report of the Subcommittee on the Constitution in 1982 The Firearms Owner Protection Act (FOPA) of 1986
  9. The Brady Law of 1993-->
  10. 18 USC 241 & 242.
  11. 42 USC 1983.
4. New York State and the Right of Arms
  1. Constitution of the State of New York, 1777, Art XL.
  2. New York State Bill of Rights.
  3. New York State Penal Code § 1.05.
  4. New York State Penal Code § 265.01 ¶ 1.
  5. New York State Penal Code § 265.01 ¶ 2.
  6. New York State Penal Code § 400.
5. Due Process
  1. The Right of Arms.
    A: Federal Cases
    1. Dred Scott v. Sandford (1858)
    2. U.S. v. Cruikshank (1875)
    3. Presser v. Illinois (1886)
    4. Beard v. U S (1895)
    5. Patsone v. Pennsylvania (1914)
    6. U.S. v. Miller (1939)
    7. Haynes v. U.S. (1968)
    8. Moore v. East Cleveland (1977)
    9. Lewis v. United States (1980)
    10. U.S. v. Verdugo-Urquidez (1990)
    B: State Court cases from other States.
    1. State v. Blocker, 291 Or. 255, -- -- -- P.2d -- -- -- (1981)
    2. State v. Kessler, 289 Or. 359, 614 P.2d 94, at 95, at 98 (1980).
    3. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980)
    4. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975)
    5. City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745 (en banc 1972)
    6. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738 (N.M. App. 1971)
    7. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952)
    8. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950)
    9. People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en banc 1936)
    10. Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d 678 (1928)
    11. People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)
    12. State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)
    13. State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903)
    14. In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902)
    15. Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)
    16. Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878)
    17. Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871)
    18. Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846)
    19. Simpson v. State, 13 Tenn. 356, at 359-60 (1833)
    20. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)
  2. Exhaustion Prior Restraint.-->
  3. Equality before the Law. Self Incrimination.-->
  4. Conversion of Rights into Crimes. The Presumption of Innocence and the Burden of Proof.-->
6. Defendants
  1. How much Infringement is too much?
  2. Judges of Fact and Law
  3. Usurpation, Contempt, and Hypocrisy
  4. Penny Wise and Pound Foolish
  5. The Fleas of the Camel
STATEMENT OF JURISDICTION

Whereas this matter
1. Involves the intersection of New York state statutes (New York State Consolidated Laws, Penal § 265.01 ¶ 1 "firearm" and § 400) and a Right protected under Constitutional provisions (U.S. Constitution articles 1, 2, and amendments 2, 9, and 14), and
2. Contravenes a prohibition upon the state restraining it from writing or enforcing such statutes as abridge the privileges and immunities (rights and liberties) belonging to a citizen of the United States under the Constitution and laws of the United States (U.S. Constitution Amendment 14 §1 sentence 2 cl 1), and
3. Involves statutory constructions of federal law whereupon Defendants may obtain sanctions, injunctions, and declaratory and other relief for the injuries caused by seizures of arms and enforcements invasive of the privileges and immunities of citizens of the United States arising under color of state law (18 USC § 241 and 42 USC §1983), and
4. Defies the states own "Bill of Rights" (Civil Rights Law § 4), such that the civil rights of defendants, both as citizens of the United States, and of the state of New York, are invaded by this prosecution,
Therefore this matter may be laid before Judges of the United States, or of the state of New York.

STATEMENT OF THE ISSUES

THE STATUTE

The criminal statute prosecuted against defendants (§ 265.01 Criminal Possession of a Weapon in the Fourth Degree ¶ 1) makes a class A misdemeanor of mere possession of a firearm, even is such Arm is kept peaceably in one's home, and there are no prior or surrounding issues. No action to harm, nor intent to harm the person, property, peace, or reputation of any persons, property, or institutions is required to levy this statute upon possessors of a handgun. Criminal Possession of a Weapon Fourth is a "Serious Offense" for state statutes that trigger upon such.
The applicable "Definitions" (§ 265.00 ¶ 3) declares that "firearm" as used in § 265.01 ¶ 1 shall mean any pistol or revolver. Since neither pistol nor revolver have any further definition, they take the common and Federal definition, in which case automatic (meaning semi-automatic) and single-shot break-action handguns and revolvers are pistols. -->
Class A misdemeanors are punishable by confinement up to one year in the County Jail, and a fine of up to $1,000.00. After conviction under this statute,
1. Some otherwise Misdemeanor offenses escalate to Felony (e.g. § 265.02 ¶ 1 simple possession of a handgun is Criminal Possession of a Weapon in the Third Degree),
2. Simple possession of any rifle or shotgun, completely legal before conviction, is the misdemeanor Criminal Possession of a Weapon in the Fourth Degree, ( § 265.01 ¶ 4 ).
By virtue of § 265.01 ¶ 4, § 265.01 ¶ 1 is a total disarmament statute: given a free person who possesses a handgun, and rifles and shotguns, who moves from another state to New York, upon entry into the state, becomes a criminal (§ 265.02 ¶ 1) awaiting discovery; upon conviction under ¶ 1 for possession of a handgun, immediately become guilty of another misdemeanor offense: (§ 265.01 ¶ 4) for possession of rifles and/or shotguns, (having by then been convicted of a felony or "serious offense"), and is then liable to loss of the rifles and shotguns, and new misdemeanor prosecution(s) and conviction(s). Therefore, before conviction under ¶ 1, while still technically innocent, all shootin irons (term used to avoid conflict with statutory use of "firearm" in this section) must be forsaken permanently.
Defendants observe, this total disarmament is a bitterly severe "fine or amercement", in excess of the limitation given in Amendment 8 to the Constitution of the United States, and in the New York State Civil Rights Law § 11 ("Fines must be reasonable and imposed only for cause. No citizen of this state ought to be fined or amerced ((1) fined arbitrarily; (2) punished, generally) without reasonable cause, and such fine or amercement should always be proportioned to the nature of the offense.") above and beyond being, en toto, an invasion of U.S. Constitution Amendment 2 and an abridgment of immunities protected under U.S. Constitution Amendment 14 § 1.
Therefore, the statute at bar is making a crime of the possession of a handgun, but the matter before the Court is the entire destruction of the personal Right of Arms,
In addition to the criminal prohibition statutes in § 265, § 400 provides for license, permit, and registration, for firearms and firearms owners. The process is long, invasive, requires the applicant to prove worthiness and need, requires (inter alia) license holders to inform the Police of their every relocation (as if they were Registered Sex Offenders). Results of application for the license are not guaranteed even to persons concerning whom there are no reasons to deny. In sum, and as has been asserted repeatedly by state Courts,we have no right to the § 400 license. Therefore it is not a license (nor "reasonable regulation") upon a right. § 400, therefore, does not cure the invasion of the Right to Arms, providing as it does only uncertain, fragile, and limited, relief from prosecutions under § 265.01 ¶ 1 for mere possession of a handgun.
Other sections creating relief of disability for offenders against either ¶ 1 or ¶ 4 of § 265.01 are as discretionary as obtaining relief from disability for felony penalties (in fact it is the same section) and need no consideration here beyond noting that New York statutes treat these misdemeanors as other states treat felonies for the purpose of destroying the Right to Arms.
Because the matter at bar is the invasion and destruction of the Right of Arms, the statute at bar, § 265.01 ¶ 1 together with § 400 are, in this Motion, spoken of as though they were adjoining parts of the same section and paragraph, with language in this Motion addressing prohibition, penalty, crime, and like language indicating § 265.01 ¶ 1 "firearm", and registration, license, permit, apply, revoke, renew, permission, and the like language in this Motion referencing § 400. These sections will be referred to hereafter as "this statute" or words clearly of the same meaning except as necessary to avoid confusion.
§ 265.01 ¶ 1 places the same prohibition on several other weapons and devices as upon firearms. The prohibitions all lack discernible reason, and the entire paragraph is subject to challenge from several vantages, but challenge(s) against the other items is not before the Court in this matter. The statute at bar centers on the word "firearm" in § 265.01 ¶ 1. References to the other items prohibited will be made as necessary and proper in the labor of showing the hysterical nature of the statute at bar, and it's untenable invasion of the matter at bar.
§ 265.01 ¶ 2 lists a few items, in broad terms, and pronounces the same penalty as § 265.01 ¶ 1 with one crucial difference: Possession of the second set of items is a crime only when possessed "with intent to use the same harmfully upon another" (mens rea). References to § 265.01 ¶ 2 will be made as necessary and proper in the labor of showing the corrupt state of mind manifest in the statute at bar.
§ 1.05 of the penal codes declares the cause for the penal statutes, and inspection of § 1.05 reveals § 265.01 ¶ 1 "firearm" to be improper as a penal statute. § 1.05 will be inspected to the extent necessary and proper to show this.

THE GROUNDS FOR DISMISSAL

As currently constituted and enforced against Defendants, this statute invades and destroys the Right of Arms.
Furthermore, this statute defies several points whereupon the State is restrained. Specifically, this Statute invades:
1. The powers of Congress relative to providing for the arming of the citizenry under U.S.Constitution, Art 1;
2. The power of the President to call us to arms, and Defendant's ability to answer a Call to Arms under U.S. Const. Art 2 § 2;
3. The Defendant's Right to be Armed and able to answer a Call to Arms under U.S. Const. Amendment 2; The Defendant's ability to answer a Call to Arms under 10 USC 311 & 312;-->
4. The right of citizens of the United States to personal security, personal liberty, and private property, in violation of U.S. Constitution, Amendments 2, 9, & 14;
5. The right of Equal Protection under the Law under U.S. Constitution, Amendment 14 § 1 sentence 2 cl 3;
  Furthermore, this Statute
6. Makes a crime of being armed for one's self defense, even in one's home where one's self-defense is nearly unquestionable, thereby making a crime of the unquestionable.
7. Erodes the Public Safety by reducing the ability of the Defendants to contribute thereunto;
8. Erodes the Political Security of the people of this state and of the nation at large by reducing the ability of the Defendants to contribute thereunto;
9. Exercises Police Powers in excess of the limits set thereon in the common law, in U.S. Constitution Amendments 2, 5, 9, & 14 § 1, and in NYSPC § 1.05;
10. Defies the case law of the Supreme Court of the United States touching upon the Right of Arms, Due Process, and more; and
11. Makes a crime of what is declared (in this state) both a Right and a Duty under the Constitution and statutes;
and for any and all reasons listed above, is unconstitutional and unenforceable.

RELIEF SOUGHT

Defendants seek
1. the recovery of their handgun,
2. the restoration of THEIR RIGHT TO KEEP AND BEAR THE SAME.
by an order from the Court declaring, more or less, "[T]he Right of the People of this state to keep and bear Arms, including handguns, shall not be infringed".
This will both
- provide relief from future prosecution under this unconstitutional statute, relieving fear of invasion of this right under color of authority consequent to Defendants, or any other of the peaceable people of this state, peaceably keeping and bearing their private Arms, including handguns, and
- relieve the taxpayers and citizens of this state from bearing the burden of supplying remedy available to Defendants through the state and federal Courts for the wrongful invasion of the right to keep and bear arms being levied against the Defendants by the officers of the state.
SUMMARY OF THE ARGUMENT

Defendants will show the following:
1. that there is a broad, fundamental Right to Arms, which the Second Amendment to the Constitution of the United States declares uninfringeable and preserves to the people as an right belonging to each citizen of the United States; (but which Right the Second Amendment itself neither creates nor limits (which Right New York States Civil Rights Law § 4 echoes without either enlarging or diminishing));
2. that the states are forbidden, by the Constitution of the United States, articles 1 and 2, and Amendment 2, from infringing the Right to Arms of the people generally, and by Amendment Fourteen § 1 sentence 2 clause 1, from invading the rights of citizens of the United States specifically (noting immunities and rights are more identical than distinct);
3. that being Armed as a Right, including being armed with handguns, is (historically) recognized by the state of New York;
4. that handguns are Arms preserved to the people under the Constitution of the United States, Amendments 2 and 14 § 1 sentence 2 clause 1;
5. that this statute violates the Right to Arms as above made inviolable by the state; and
6. that this statute is therefore unconstitutional, null, and void.

TABLE OF CONTENTS 1

TABLE OF AUTHORITIES 2

STATEMENT OF JURISDICTION 3

STATEMENT OF THE ISSUES 4

SUMMARY OF THE ARGUMENT 7

CITED AUTHORITIES 7

CONCLUSION 113

BIBLIOGRAPHY 113

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF THE ISSUES

THE STATUTE

THE GROUNDS FOR DISMISSAL

RELIEF SOUGHT

SUMMARY OF THE ARGUMENT