Opinion
New York – -(AmmoLand.com)- In the March 2023 issue of the NRA publication, “America’s 1st Freedom,” the Arbalest Quarrel, in its daily review of publications, came across an article titled, “Shooting Straight with Sheriff Richard Giardino,” by Frank Miniter, Editor in Chief of the magazine.
The NRA published the article in the form of a straightforward question-answer interview.
The NRA contacted Sheriff Giardino to get his take on a pressing matter affecting law enforcement in New York: the impact of the Hochul Government’s amendments to New York’s Handgun Law, the deceptively named “Concealed Carry Improvement Act” (“CCIA”), and its impact on policing.
That was what NRA’s Frank Miniter wanted to know. That is what we wanted to know.
The NRA said this about Sheriff Giardino:
“As an elected official, Sheriff Giardino doesn’t mind being in front of the cameras. But I [the NRA Editor in Chief, Frank Miniter] also found him to be a serious and humble official. He listens. He thinks of the people first. He next thinks of his deputies and the other employees he manages. Finally, he responds based on his long experience. And he does have a lot of legal experience.
Sheriff Giardino graduated in 1984 from Albany Law School. While in college and law school, he served as a part-time police officer. After law school, he was hired as an assistant district attorney in Nassau County, N.Y. In 1986, he returned to Fulton County as an assistant district attorney and, in 1991, he was elected to be the second-youngest district attorney in the state. In 1996, he was appointed by New York’s governor to be a county court judge. In this role, he was a local licensing official for concealed-carry permits in what was then a ‘may-issue’ state, but he behaved as if he was in a “shall-issue” state. He served 18 years as a judge. In that time, he tried over 200 cases, including over 40 murder or attempted-murder cases.
Of course, as with anyone we interview, Sheriff Giardino’s opinions are his own. I [Frank Miniter] point this out because, as he is a county sheriff in a state run by a governor who sees the Second Amendment as a problem, Giardino does find himself in some uncomfortable legal positions. He has to abide by the state laws, but he also raised his right hand and swore to uphold the U.S. Constitution, and lately—again, thanks to officials such as Gov. Hochul—those two things have come into conflict. This conundrum puts him—as well as many other law-enforcement officials and citizens who simply want to exercise their rights in various states and jurisdictions around the country—in some legally problematic situations.”
The “Leader-Herald” newspaper, in a January 23, 2023 article, added this about Sheriff Giardino:
“Giardino, a 64-year-old Republican, first ran for countywide office in 1991. He is the only person in New York state history to have served as a county district attorney, county judge and county sheriff, having won eight consecutive countywide elections.”
These articles by the NRA and the Leader Herald newspaper whet our appetite to learn more about this intriguing and highly learned man. And so, we got in touch with Sheriff Giardino.
Sheriff Richard Giardino
New York’s Concealed Carry Improvement Act (CCIA) is the Hochul Government’s response to June 23, 2022, U.S. Supreme Court decision in NYSRPA vs. Bruen. The Hochul Government fabricated the CCIA to defy and defeat the High Court rulings in Bruen that reinforce the natural law right to armed self-defense.
How does a law enforcement officer square enforcement of the CCIA when that enforcement conflicts with the language of the Second Amendment and U.S. Supreme Court rulings?
This is what we wanted to obtain Sheriff Giardino’s thoughts on?
What we learned from the interview that NRA’s Editor in Chief conducted with Sheriff Giardino became the springboard for further explication of the Sheriff’s thoughts on the CCIA, the U.S. Constitution and Second Amendment, U.S. Supreme Court rulings, attacks on police, and violent crime in New York.
In his interview with Sheriff Giardino, NRA’s Frank Miniter asked the Sheriff point blank: “Will you enforce New York’s concealed carry restrictions?”
Without pause and in no uncertain terms, the Sheriff responded,
“I raised my right hand to uphold the constitution. Now the governor of New York wants me to break that oath. Law enforcement has been placed in an untenable position of enforcing laws that we might believe are unconstitutional. As a former judge and district attorney, I still have my law license. My legal experience tells me that many provisions of this new gun-control law are unconstitutional. So, given all of that, I see the law here in a state of flux and we have a tremendous amount of discretion as to what we enforce. So, we’re going to use our discretion. We’re not going to just arrest someone who carries concealed into a barbershop he has been going to his entire life. We’ll inform the person what the law [CCIA] now says, and then we’ll focus our resources on actual criminals.”
The issue of police “discretion” is something the NRA glossed over, perhaps given time constraints or publishing restrictions. Yet, to our mind, the point of “discretion” in light of the CCIA is of paramount importance to a consideration of the daily dilemma law enforcement officers are confronted with, especially when they must make a split-second decision.
The NRA interviewer did not pursue what Sheriff Giardino meant by “discretion” and Andrew Waite, a columnist for the Daily Gazette newspaper, whom Sheriff Giardino also spoke with, misconstrued what Sheriff Giardino meant by the term.
The use of discretion in policing does not give carte blank authority to law enforcement. And Sheriff Giardino is not saying here or implying that he can do whatever he wants.
The columnist for the Daily Gazette, Andrew Waite, incorrectly interpreted Sheriff Giardino as inferring, erroneously, that,
“The sheriff is absolutely entitled to choose how to enforce just about any rule.”
No! Sheriff Giardino is not saying or suggesting that. Rather, he is pointing to a confounding box the CCIA places him in and the way—the only way—he can extricate himself from it without offending the U.S. Constitution. Sheriff Giardino took an oath to enforce the U.S. Constitution. He did not take an oath to enforce the CCIA.
The CCIA is codified in State Statute, Section 400. That is the State’s handgun law. It is therefore a component of the Consolidated Laws of New York.
A State Statute is not in any manner to be construed as part of the U.S. Constitution. In fact, a State Statute doesn’t stand on the same footing as a State Constitution.
The New York State Constitution stands above State Statute in prominence and authority. And the U.S. Constitution stands above both State Statute and State Constitution, except where the doctrine of Federalism gives the States complementary power or powers that reside exclusively with the States that the Federal Government is not permitted to intrude upon.
Sheriff Giardino is told to enforce New York law, but he must also enforce the Constitution of the United States, consistent with his oath. And where the two collide, the U.S. Constitution dictates his actions. That is an unalterable, inescapable Truth.
Where the CCIA conflicts with the U.S. Constitution, Sheriff Giardino says he must adhere to the Constitution.
Where the CCIA doesn’t make clear his duties or where there doesn’t seem to be a clear conflict with the Constitution, then he will use his discretion to chart a proper course, guided, all the while, by the Second Amendment guarantee.
That is the import of Sheriff Giardino’s assertion, that——
“I see the law [the CCIA] here in a state of flux and we have a tremendous amount of discretion as to what we enforce.”
The CCIA is a logical, legal, and logistical mess, a quagmire manufactured by the Hochul Government to serve an agenda, one antagonistic to the right of the people to keep and bear arms, a right that shall not be infringed. And, since all or part of the CCIA will, at some point in time, be overturned either by the U.S. Court of Appeals for the Second Circuit or by the U.S. Supreme Court, as litigation is ongoing at this time, that is, the “state of flux” that Sheriff Giardino is referring to.
Law enforcement officials, like Sheriff Giardino, cannot extricate themselves easily from this morass but must contend with it.
The application of “broad discretion” to deal effectively with a multiplicity of contingencies and complexities is necessitated by the inherent illegality of the salient portions of the CCIA.
Further, the inscrutability of some of its sections, and internal inconsistencies along with inconsistencies with other portions of New York law and inconsistencies with the First, Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution, apart from the CCIA’s inherent inconsistency with the Second, abound. That is why we call the CCIA a mess.
Sheriff Giardino’s actions must therefore be nuanced. But, where conflict is clear, i.e., where illegal constraints on the exercise of armed self-defense are acute and blatant, then he will enforce the U.S. Constitution, not the CCIA.
As Sheriff Giardino says,
“The fact that there are currently more than a dozen State and Federal Lawsuits at various stages in the litigation process in New York, over the new CCIA, can be very confusing, especially to those people who presently hold valid concealed handgun carry licenses.
And this confusion will continue to exist until, ultimately, the US Supreme Court decides, supports, and defends my decision to exercise broad discretion in favor of law-abiding citizens.”*
Adding to this awful burden there is a bitter irony.
Sheriff Giardino points out that “on any given weekend, criminals, who can’t lawfully possess firearms, use firearms and, especially handguns, to commit dozens of robberies, murders, and attempted murders. Bear in mind that the chances that a holder of a valid concealed handgun carry license will use that handgun or any firearm in a crime is less than 1/6 of 1%, based on national studies.” So, ask yourself: ‘how many criminals will be adhering to Hochul’s new CCIA?”
And to add insult to injury, Sheriff Giardino exclaims,
“‘The Concealed Carry Improvement Act’ criminalizes conduct that, under the original New York handgun law, the law in place prior to September 1, 2022, the day the CCIA took effect, was legal.”
The CCIA is simply a clever ruse——
- The CCIA is a scheme designed to further the Government agenda while giving lip service to the U.S. Supreme Court rulings in Bruen.
- The CCIA further constrains the average law-abiding, responsible, rational citizen, who happens to reside and/or work in the State, from exercising his natural law right to armed self-defense.
- The CCIA does nothing to curb the misuse of firearms by the psychopathic criminal element running amok throughout the State, most noticeably in New York City.
It is apparent that Sheriff Giardino understands that the duty of a law-enforcement officer is to “uphold the constitution.” That is the oath law enforcement officers swear to. That is and must be the predicate basis for and guiding principle for all his conduct in the field.
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