"I draw your attention to People vs. Nivar a court case challenging the Administrative Code of City of NY § 10-131 (b). “Defendant also argues that New York City’s ban on the possession of air pistols violates the Second Amendment…"
A New York State Supreme Court is not the United States Supreme Court. Until the issue is addressed by SCOTUS, lower courts can rule how they want; however, that does not mean the lower court is correct. It just means that SCOTUS has not ruled on the issue or otherwise corrected the lower court.
The Nivar ruling makes the argument that an airgun cannot be adequate for self defense because the owners manual says it is for recreation and pest control and it is non-lethal to humans. A taser is non lethal. Mace and paper spray are non lethal. You may need a permit for taser, mace, or paper spray, but they are legal. I wonder if the defendant I Nivar had made his case by requesting he be able to demonstrate to the judges how effective an airgun could be for self defense? "Your Honor. Give me my air pistol. You run toward me with a baseball bat or knife. I will shoot you in the face, eye, or groin and you can then tell me the air pistol is not a good defensive weapon." I doubt he would have had any takers.
The 1773 edition of Samuel Johnson's dictionary defined "Arms" as "weapons of offense, or armour of defense." Timothy Cunningham's Important 1771 Legal dictionary defined "arms" as "any thing that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another."
The Second Amendment uses the term "Arms". It does not read "firearms". The term "Arms", in the late 1700s, could have just as easily meant a sword, bayonet, tomahawk, or yes, an airgun.
Nivar - "Nor do defendant's citations to the Journals of the Lewis and Clark Expedition of 1803-06 to establish that air guns were "an integral part of the American arsenal at the time of the Framers" (Wasserman Br. at 5) carry the day. All these historical references illustrate is that Capt. Merriwether Lewis used an air rifle "for hunting and to astonish" native Americans (id. at 6). Conspicuously missing from the excerpts that defendant selected is any reference to the use of air guns in the early 19th century for self-defense. "
The Girardoni air rifle was used by Lewis and Clark to kill Mule Deer, not just rabbits and squirrels. The Girardoni air rifle was used in military service by the Austrian army from 1780 to around 1815. The Lewis and Clark expedition began in 1804. Many references to the Girardoni air rifles mention lethal combat ranges of 125 to 150 yards and some extend that range considerably. An army does not use a weapon to "astonish" people, though the .46 or .51 caliber round ball going through your forehead would have probably had that effect. An army employs a weapon because it has been deemed an efficient tool to kill the enemy.
Did the state of New York have the right to make legislation that made air pistols illegal. I really doubt they did. License or restrict? Maybe. Prohibit? No. The Second Amendment is fairly clear in the meaning of infringement on the right to keep and bear arms. States do not have the right to create laws that are contrary to the Constitution, though they often do.
merriam-webster
Regulate : to bring order, method, or uniformity to
free-dictionary
Regulate: verb transitive - to bring into conformity with a rule, principle, or usage
1755 Classic dictionary by Samuel Johnson
Regulate : to adjust by rule or method. to direct.
In the 1700s, the term "Regulate" meant "to make regular" or "to conform to the same standard"; not to make laws regarding something. The enlisted, non-militia soldiers of the 1700s were referred to as "Regulars". A "well regulated militia" meant a militia that is trained, equipped, and acts the same way as a regular army unit; not one controlled by regulations.
The Nivar ruling is disingenuous at best; wrong at worst, and should have been argued in front of SCOTUS. Then it would be settled law.
