James Ostrowski on the 1689 Arms Clause, the NY SAFE Act Reversal, and Government Takes 80%

I Asked a Forty-Year Appellate Lawyer What a Court Is For. He Said It Is a Bureaucracy.

This is the Thursday conversation that closes week 11 of Self-Evident: The Road to 1776. Saturday traced the Glorious Revolution and the English Bill of Rights of 1689. Tuesday set a written bill of rights against an unwritten one. Both stopped short of the arms clause, because that argument belongs to somebody who has carried a written liberty into a courtroom and asked a judge to honor it.

James Ostrowski is a trial and appellate lawyer in Buffalo, New York, in his forty-second year of practice. He took a philosophy degree from the State University of New York at Buffalo and a law degree from Brooklyn Law School, and he sat in Murray Rothbard’s private seminar on the history of economic thought in New York City. He served as vice chairman of the law reform committee of the New York County Lawyers Association and as chair of the human rights committee of the Erie County Bar Association, and his Cato Institute study “Thinking about Drug Legalization” appeared in May 1989, before the issue was on the national map. He is the author of thirteen books. In April 2019 he won the reversal of the first conviction ever prosecuted under the New York SAFE Act, and in May 2026 he stood for chair of the Libertarian Party, led the first ballot, and lost on the third.

I asked him what the purpose of a court is, and he did not give the answer a constitutional series usually gets. Courts are a bureaucracy, he said. They act in their own interest and they are deeply ideological. Judges are politicians, and appointed judges are frequently more political than elected ones and less transparent about it, because when a handful of people put a judge on a bench nobody outside that handful can see the constituency being served. He has spent four decades in appellate courts and he describes himself as a cynic about them. That is a cold thing to hear at the end of a week spent admiring a constitutional settlement, and it is the most useful thing anyone said on this show all week.

He earned the right to say it. In 2013, days after the SAFE Act passed, Benjamin Wassell sold two of his own rifles to an undercover investigator and was convicted of criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree, the first conviction ever prosecuted under the statute. Jim took the appeal, wrote a fifty-page brief raising every Second Amendment argument he had, and won unanimously in April 2019 on a jurisdictional point buried at the front of it: the Attorney General had no authority to bring the case. The indictment was dismissed. His client walked.

Then I handed him the arms clause of 1689 cold and asked him to read it as a brief, and put the second question the men of that year never asked. Which of your clients’ liberties survive only because Albany has not gotten around to them yet? He did not reach for a gun case. He reached for compulsory government schooling, and then for the drug war, and made the point that both sit almost entirely at the state and local level, where the money and the enforcement and the prisons actually are. Decentralization is worth having and it does not end the fight, because a state can oppress and a town can oppress, and the only real advantage of the town is that you can leave it. We close on his new book, Government Takes 80%, which compares the cost of government in 1900 against 2026 and works to put a dollar figure on the costs that never appear on a bill.

Self-Evident: The Road to 1776 traces the intellectual origins of American liberty from ancient Greece to the Bill of Rights, across twenty-two weeks. Each week runs a written article on Sunday, the history on Saturday, its contemporary application on Tuesday, and where we can, a conversation on Thursday to close it out.

Every episode of this show asks the same question of whatever it examines: did this leave us more free, or more governed?

⏱️ CHA