Amicus Curiae Brief — Thomas Rogers, et al., Petitioners v. Gurbir Grewal, Attorney General of New Jersey, et al.

Supreme Court briefJan 31, 2019

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No. 18-824

In the Supreme Court of

the United States

THOMAS ROGERS, ET AL.,

Petitioners

GURBIR GREWAL, ATTORNEY GENERAL

OF NEW JERSEY, ET AL.,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR AMICUS CURIAE NATIONAL

AFRICAN AMERICAN GUN ASSOCIATION, INC.

IN SUPPORT OF PETITIONERS

STEPHEN P. HALBROOK*

3925 Chain Bridge Road

Suite 403

Fairfax, VA 22030

(703) 352-7276

protell@aol.com

*Counsel of Record

NEZIDA S. DAVIS

Davis Bakari Law LLC

2915 Pleasant Ridge Dr.

Decatur, GA 30034

(404) 771-1832

nsdavis@davisbakarilaw.com

Counsel for Amicus Curiae

QUESTIONS PRESENTED

1. Whether the Second Amendment protects the

right to carry a firearm outside the home for self

defense.

2. Whether the government may deny

categorically the exercise of the right to carry a firearm

outside the home to typical law-abiding citizens by

conditioning the exercise of the right on a showing of

a special need to carry a firearm.

TABLE OF CONTENTS

Page

QUESTION PRESENTED

................... i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST

OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2

ARGUMENT

............................. 3

I. THE SECOND AMENDMENT PROTECTS

THE RIGHT TO CARRY ARMS . . . . . . . . . . . . . . . 4

A. The Text Prohibits Infringement

of the Right of “the People” to “Bear Arms” . . . . . . 4

B. In Heller, this Court Recognized

the Right to Keep Arms and to Carry

Arms as Distinct Rights . . . . . . . . . . . . . . . . . . . . . 5

C. The Second Amendment as

Originally Understood Guaranteed

the Right to Carry Arms . . . . . . . . . . . . . . . . . . . . . 6

D. Prohibitions on the Bearing of

Arms by African Americans Reflected

Their Status as Slaves or Non-Citizens . . . . . . . . . 7

iii

II. THE FOURTEENTH AMENDMENT

PROHIBITS STATES FROM LIMITING

THE RIGHT OF “THE PEOPLE” TO

BEAR ARMS TO A SELECTED FEW . . . . . . . . . 12

A. McDonald Reaffirmed the Right

to Bear Arms for Self Defense . . . . . . . . . . . . . . . 12

B. The Fourteenth Amendment was

Understood to Guarantee the Right

to Carry Arms from State Violation

Through Discretionary Licensing Laws . . . . . . . . 12

C. Infringement on the Right to

Bear Arms is Actionable Under

the Civil Rights Act of 1871 . . . . . . . . . . . . . . . . . 20

D. Restrictive Licensing in

the Jim Crow Era . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TABLE OF AUTHORITIES

CASES

Page

Andrews v. State, 50 Tenn. 165 (1871) . . . . . . . . . 5

Cooper v. Savannah, 4 Ga. 72 (1848) . . . . . . . . . . 11

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . 2, 5, 12, 14, 15

Harman v. Forssenius,

380 U.S. 528 (1965) . . . . . . . . . . . . . . . . . . . . . . . . 24

Jones v. Helms, 452 U.S. 412 (1981) . . . . . . . . . . 16

McDonald v. City of Chicago,

561 U.S. 742 (2010) . . . . . 3, 6, 12, 13, 16, 17, 19, 20

Nunn v. State, 1 Ga. 243 (1846) . . . . . . . . . . . . . . . 5

Patsy v. Board of Regents,

457 U.S. 496 (1982) . . . . . . . . . . . . . . . . . . . . . 20, 21

Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . 16

Scott v. Sanford, 60 U.S.

(19 How.) 393 (1857) . . . . . . . . . . . . . . . . . . . . . . . 11

Shelby County, Ala. v. Holder,

570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Harris, 51 N.C.

(6 Jones) 448 (1859) . . . . . . . . . . . . . . . . . . . . 10, 11

State v. Lane, 30 N.C. 256 (1848) . . . . . . . . . . . . . 10

State v. Newsom, 27 N.C. 250 (1844) . . . . . . . . . . 10

State v. Post, 20 N.J.L. 368,

1845 WL 34581 (1845) . . . . . . . . . . . . . . . . . . . . . . 8

Sutherland v. Commonwealth,

109 Va. 834, 65 S.E. 15 (Va. 1909) . . . . . . . . . . . . 23

Watson v. Stone, 148 Fla. 516,

4 So. 2d 700 (Fla. 1941) . . . . . . . . . . . . . . . . . . . . . 23

CONSTITUTIONS

U.S. Const., Amend. II . . 1, 2, 3, 4, 5, 6, 7, 12, 13, 25

U.S. Const., Amend. III . . . . . . . . . . . . . . . . . . . . . . 4

U.S. Const., Amend. XIII . . . . . . . . . . . . . . . . . . . . 8

U.S. Const.,

Amend. XIV . . . . . . 2, 3, 11, 12, 13, 15, 16, 18, 19, 22

Mass. Dec. of Rights, XVII (1780) . . . . . . . . . . . . . 6

N.C. Dec. of Rights, Art. XVII (1776) . . . . . . . . . . . 6

Pa. Dec. of Rights, Art. XIII (1776) . . . . . . . . . . . . 6

Va. Const., Art. II, § 20 (1902) . . . . . . . . . . . . . . . 24

Vt. Const., Art. I, § 15 (1777) . . . . . . . . . . . . . . . . . 6

STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

§ 790.05, 1 Fla. Statutes, 1941 . . . . . . . . . . . . 22, 23

§ 790.06, 1 Fla. Statutes, 1941 . . . . . . . . . . . . . . . 23

Act of 1792, 12 Hening,

Statutes at Large 123 . . . . . . . . . . . . . . . . . . . . . . . 8

Act of 1840, ch. 30 (N.C.) . . . . . . . . . . . . . . . . . . . 10

An Act to prevent the Killing of Deer

out of Season, & against Carrying

of Guns and Hunting by Persons not

qualified, § 6, 2 Bush 293, 295 (N.J. 1722) . . . . . . . 8

Art. 66, § 73, 1 Maryland Code 464 (1860) . . . . . . . 9

Civil Rights Act of 1866 . . . . . . . . . . . . . . . . . . . . 13

Civil Rights Act of 1871,

17 Stat. 13 (1871) . . . . . . . . . . . . . . . . . . . . 3, 20, 22

vii

Certain Offenses of Freedmen,

1865 Miss. Laws p. 165, § 1 . . . . . . . . . . . . . . . . . 13

Ch. 176, § 1, 8 Laws of the

State of Delaware 208 (1841) . . . . . . . . . . . . . . . . . 9

Ch. 258, 1926 Va. Acts 285,

repealed, Ch. 296, 1936 Va. Acts 486 . . . . . . . . . . 24

Chap. 86, § I (1806), in 3 Laws

of Maryland 297 (1811) . . . . . . . . . . . . . . . . . . . . . . 9

Chap. 86, § II, in 3 Laws

of Maryland 298 (1811) . . . . . . . . . . . . . . . . . . . . . . 9

Chapter 111, §§ 7 & 8, 1

Code of Virginia 423 (1819) . . . . . . . . . . . . . . . . . . 8

Digest of the Laws of the

State of Georgia 424 (1802) . . . . . . . . . . . . . . . . . . 9

Freedmen’s Bureau Act,

14 Stat. 173, 176-77 (1866) . . . . . . . . . . . . . . . 13, 18

N.J. Stat. § 2C:39–5(b) . . . . . . . . . . . . . . . . . . . . . . 3

N.J. Stat. § 2C:43-6(a)(2) . . . . . . . . . . . . . . . . . . . . 3

N.J. Stat. § 2C:58–4(c) . . . . . . . . . . . . . . . . . . . . . . 4

N.J. Stat. § 2C:58–4(d) . . . . . . . . . . . . . . . . . . . . . . 4

viii

Public Laws of the State of

South Carolina 168 (1790) . . . . . . . . . . . . . . . . . . . 9

Statutes of the State of

North Carolina 93 (1791) . . . . . . . . . . . . . . . . . . . 10

LEGISLATIVE MATERIALS

Congressional Globe, 39th Cong.,

1st Sess. (1866) . . . . . . . . . . . . . 14, 15, 16, 18, 20, 21

Ex. Doc. No. 70, House of Representatives,

39th Cong., 1st Sess., 297 (1866) . . . . . . . . . . . . . 16

Ex. Doc. No. 118, House of Representatives,

39th Cong., 1st Sess., 20 (1866) . . . . . . . . . . . . . . 17

Ex. Doc. No. 268, 42nd Cong.,

2d Sess. 2 (1872) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fla. Sen. J. 13 (1866) . . . . . . . . . . . . . . . . . . . . . . . 17

Report of the Joint Committee on

Reconstruction, H.R. Rep. No. 30,

39th Cong., 1st Sess., pt. 2, at 21 (1866) . . . . . . . 14

Report of the Joint Select

Committee to Inquire into the

Condition of Affairs in the Late

Insurrectionary States, vol. 1, 261 (1872) . . . . . . 22

OTHER AUTHORITIES

“Carrying Concealed Weapons,”

15 Virginia Law Register 391 (1909) . . . . . . . . . . 24

Documentary History of Reconstruction

(W. Fleming ed.1950) . . . . . . . . . . . . . . . . . . . . . . 13

Documentary History of the

First Federal Congress (1995) . . . . . . . . . . . . . . . . 7

Documentary History of the Ratification

of the Constitution (1976-2000) . . . . . . . . . . . . . 6, 7

Gen. D. E. Sickles’ General Order No. 1 . . . . . . . 14

Halbrook, S., Freedmen, the Fourteenth

Amendment, and the Right to Bear Arms,

1866-1876 (1998) . . . . . . . . . . . . . . . . . . . . . . 12, 13

Halbrook, S., The Founders’

Second Amendment (2008) . . . . . . . . . . . . . . . . . . . 6

Harper’s Weekly, Jan. 13, 1866, at 3 . . . . . . . . . . 13

Loyal Georgian, Feb. 3, 1866, at 1 . . . . . . . . . . . . 15

New York Times, Oct. 26, 1866, at 2 . . . . . . . 17, 18

Perlman, P., Debates of the Maryland

Convention of 1867 (1867) . . . . . . . . . . . . . . . . . . 19

The Frederick Douglass Papers (1991) . . . . . . . . 13

Tucker, St. George, A Dissertation

on Slavery (1796) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tucker, St. George, Blackstone’s

Commentaries (1803) . . . . . . . . . . . . . . . . . . . . . . . 7

Withers, R., “Road Building by Prisoners,” in

Proceedings of the National Conference of

Charities and Correction (1908) . . . . . . . . . . . . . . . 24

STATEMENT OF INTEREST

OF AMICUS CURIAE

Amicus curiae National African American Gun

Association, Inc. (NAAGA) is a nonprofit association

with headquarters in Griffin, Georgia, and organized

under Internal Revenue Code § 501(c)(4).1 NAAGA

was founded in 2015 to preserve, protect and defend

the Second Amendment rights of members of the

African American community. NAAGA has seventy

chapters with approximately 30,000 members in thirty

States. Chapters in New Jersey include the Harriet

Tubman Gun Club and three other chapters.

NAAGA’s mission is to establish a fellowship by

educating on the rich legacy of gun ownership by

African Americans, offering training that supports safe

gun use for self defense and sportsmanship, and

advocating for the inalienable right to self defense for

African Americans. Its goal is to have every African

American introduced to firearm use for home

protection, competitive shooting, and outdoor

recreational activities. NAAGA welcomes people of all

religious, social, and racial perspectives, including

African American members of law enforcement and

No counsel for a party authored this brief in whole or in

part nor did such counsel or any party make a monetary

contribution to fund this brief. Preparation and submission of this

brief was funded in part by the NRA Civil Rights Defense Fund.

Counsel of record for all parties received notice of amicus’ intent

to file at least ten days prior to this brief’s due date and have

given written consent.

active/retired military.

NAAGA’s interest in this case stems from the

fact that the Second Amendment right to keep and

bear arms was denied to African Americans under the

antebellum Slave Codes, the post-Civil War Black

Codes, and the Jim Crow laws that persisted into the

twentieth century.

Such laws often included

discretionary gun licensing statutes with parallels to

New Jersey’s current law. Such laws invariably

discriminate against the poor and minorities. NAAGA

will bring before the Court matter not brought to its

attention by the parties.

SUMMARY OF ARGUMENT

This Court should decide whether the Second

Amendment “right of the people” to “bear arms” really

extends to the people or only to an elite approved by

state authorities, and to resolve the circuit conflict on

this issue.

The Second Amendment guarantees the right to

carry arms. The text prohibits infringement of the

right to “bear arms,” and does not limit that right to

one’s house. District of Columbia v. Heller, 554 U.S.

570 (2008), recognized the separate rights to keep and

to bear arms. From the Founding and onward, bearing

arms was a right of the citizen, while denial of the

right was an incident of slavery. Free blacks were

subjected to discretionary licensing laws because they

were not considered citizens.

The Fourteenth Amendment prohibits states

from banning the carrying of firearms by the people at

large. McDonald v. City of Chicago, 561 U.S. 742

(2010), reaffirmed the fundamental character of the

right to bear arms for self defense. The Fourteenth

Amendment was understood to guarantee the right to

carry arms free from state infringement, such as

through laws that delegate discretion to officials to

deny licenses based on subjective need. Infringement

on the right to bear arms is actionable under the civil

rights act of 1871. Violation of the right extended into

the Jim Crow era. This Court should decide whether

allowing discretion to officials to decide whether a lawabiding person “needs” to exercise the right to bear

arms is consistent with the constitutional right.

ARGUMENT

Introduction

The Second Amendment provides that “the right

of the people to . . . bear arms, shall not be infringed.”

New Jersey’s version may as well read that “the right

of a few people who officials decide have a justifiable

need may bear arms, but the people at large have no

such right.”

Possession of a handgun without a permit is a

crime of the second degree. N.J. Stat. § 2C:39–5(b).

Conviction subjects a person to imprisonment that

“shall be between five years and 10 years . . . .” N.J.

Stat. 2C:43-6(a)(2).

A permit to carry a handgun may be issued by

the chief police officer in one’s municipality or by the

superintendent of the state police if the applicant “has

a justifiable need to carry a handgun.”

Id. §

2C:58–4(c). The application must show “the urgent

necessity for self-protection, as evidenced by specific

threats or previous attacks which demonstrate a

special danger to the applicant’s life that cannot be

avoided by means other than by issuance of a permit

to carry a handgun.” Id. Justifiable need must be

found by the police official and then by a superior court

judge. Id. § 2C:58–4(d).

I. THE SECOND AMENDMENT PROTECTS

THE RIGHT TO CARRY ARMS

A. The Text Prohibits Infringement of the

Right of “the People” to “Bear Arms”

The Second Amendment provides in part that

“the right of the people to keep and bear arms, shall

not be infringed.” This guarantees not only the right

to “keep” arms, such as in one’s house, but also to

“bear arms,” i.e., to carry arms without reference to a

specific place. If nothing more is meant than keeping

arms in the home, there would be no point in including

a right to bear arms. When a provision of the Bill of

Rights is restricted to a house, it says so.2

U.S. Const., Amend. III (“No soldier shall, in time of

peace be quartered in any house, without the consent of the

owner, nor in time of war, but in a manner to be prescribed by

law.”).

B. Heller Recognized the Right to Keep Arms

and to Carry Arms as Distinct Rights

“At the time of the founding, as now, to ‘bear’

meant to ‘carry.’ . . . When used with ‘arms,’ however,

the term has a meaning that refers to carrying for a

particular purpose – confrontation.” Heller, 554 U.S.

at 584. The term includes to “wear, bear, or carry . . .

upon the person or in the clothing or in a pocket, for

the purpose . . . of being armed . . . .” Id. (citation

omitted).

Both now and in the 18th century, “‘bear arms’

was unambiguously used to refer to the carrying of

weapons outside of an organized militia.” Id. Exercise

of Second Amendment rights is not limited to the

home, in that “preserving the militia was [not] the only

reason Americans valued the ancient right; most

undoubtedly thought it even more important for

self-defense and hunting.” Id. at 599.

Nineteenth-century courts upheld the right to

carry handguns openly. Id. at 612-13, citing Nunn v.

State, 1 Ga. 243, 251 (1846). “Few laws in the history

of our Nation have come close to the severe restriction

of the District’s handgun ban.” Id. at 629, citing

Andrews v. State, 50 Tenn. 165, 187 (1871)

(invalidating “a statute that forbade openly carrying a

pistol ‘publicly or privately, without regard to time or

place, or circumstances’”). While “laws forbidding the

carrying of firearms in sensitive places such as schools

and government buildings” are presumptively valid, id.

at 626-27, by implication they may be carried in non-

sensitive places.

C. The Second Amendment as Originally

Understood Guaranteed the Right to Carry Arms

“The right to keep and bear arms was

considered . . . fundamental by those who drafted and

ratified the Bill of Rights.” McDonald v. City of

Chicago, 561 U.S. 742, 768 (2010), citing, inter alia, S.

Halbrook, The Founders’ Second Amendment 171-278

(2008). In the Founding period, no laws restricted the

peaceable carrying of arms. Militia laws required

adult males to provide themselves with firearms. The

great exception was the Slave Codes which prohibited

the carrying or possession of firearms by African

Americans. See id.

Two state constitutions at the founding

provided: “That the people have a right to bear arms

for the defense of themselves, and the state . . . .” Pa.

Dec. of Rights, Art. XIII (1776); Vt. Const., Art. I, § 15

(1777). See also N.C. Dec. of Rights, Art. XVII (1776)

(“That the people have a right to bear arms for the

defense of the state”; Mass. Dec. of Rights, XVII (1780)

(“The people have a right to keep and bear arms for

the common defence.”).

When the Constitution was proposed, the

Pennsylvania Dissent of Minority demanded a bill of

rights, including: “That the people have a right to bear

arms for the defense of themselves and their own

state, or the United States, or for the purpose of killing

game . . . .” 2 Documentary History of the Ratification

of the Constitution 623-24 (1976). Samuel Adams

proposed in the Massachusetts convention “that the

said Constitution be never construed . . . to prevent

the people of the United States, who are peaceable

citizens, from keeping their own arms . . . .” Id., vol. 6,

at 1453 (2000). New Hampshire proposed that

“Congress shall never disarm any citizen, unless such

as are or have been in actual rebellion. Id., vol. 18, at

188 (1995).

The Second Amendment would combine these

and other proposals. Rep. Roger Sherman expressed

the common view in 1791 that it was “the privilege of

every citizen, and one of his most essential rights, to

bear arms, and to resist every attack upon his liberty

or property, by whomsoever made.” 14 Documentary

History of the First Federal Congress 92-93 (1995).

St. George Tucker wrote that “wherever “the

right of the people to keep and bear arms is, under any

colour or pretext whatsoever, prohibited, liberty, if not

already annihilated, is on the brink of destruction.” 1

Tucker, Blackstone’s Commentaries, App., 300 (1803).

He noted: “In many parts of the United States, a man

no more thinks, of going out of his house on any

occasion, without his rifle or musket in his hand, than

an European fine gentleman without his sword by his

side.” Id., vol. 5, App., Note B, at 19. Only slaves

could not “keep or carry a gun,” one of the many

disabilities they suffered. Tucker, A Dissertation on

Slavery 65 (1796).

D. Prohibitions on the Bearing of Arms

by African Americans Reflected Their

Status as Slaves or Non-Citizens

From colonial times until adoption of the

Thirteenth Amendment, slaves were prohibited from

keeping and bearing arms in most circumstances or

altogether, and free blacks were prohibited from

carrying arms unless they obtained a license, which

was subject to an official’s discretion. Such laws

reflected that African Americans were not recognized

as part of “the people” with the rights of a citizen.

The antebellum New Jersey Supreme Court

found slavery to be lawful in the state, before and after

independence, as shown by numerous laws, such as

“the act of 1694, prohibiting slaves from carrying fire

arms . . . .” State v. Post, 20 N.J.L. 368, 370, 1845 WL

34581 (1845). Another New Jersey law provided that

any “Indian, Negro or Mullato Slave . . . carrying or

Hunting with any Gun, without License from his

Master” was subject to being whipped. An Act to

prevent the Killing of Deer out of Season, & against

Carrying of Guns and Hunting by Persons not

qualified, § 6, 2 Bush 293, 295 (N.J. 1722).

Virginia law provided that “no negro or mulatto

shall keep or carry any gun,” except a free negro or

mulatto housekeeper may “keep one gun,” and a bond

or free negro may “keep and use” a gun by license at

frontier plantations. Act of 1792, 12 Hening, Statutes

at Large 123. A later enactment added: “No free

negro or mulatto, shall be suffered to keep or carry any

firelock of any kind, any military weapon, or any

powder or lead, without first obtaining a license from

the court of the county or corporation in which he

resides . . . .” Chapter 111, §§ 7 & 8, 1 Code of Virginia

423 (1819).

South Carolina made it unlawful for a slave “to

carry or make use of fire-arms,” unless “in the

presence of some white person” or with a license from

the master. Public Laws of the State of South

Carolina 168 (1790). In Georgia, it was unlawful “for

any slave, unless in the presence of some white person,

to carry and make use of fire arms,” unless the slave

had a license from his master to hunt. Digest of the

Laws of the State of Georgia 424 (1802).

Maryland made it unlawful “for any negro or

mulatto . . . to keep any . . . gun, except he be a free

negro or mulatto . . . .” Chap. 86, § I (1806), in 3 Laws

of Maryland 297 (1811). It was unlawful “for any free

negro or mulatto to go at large with any gun . . . .” § II,

id. at 298. However, this did not “prevent any free

negro or mulatto from carrying a gun . . . who shall . .

. have a certificate from a justice of the peace, that he

is an orderly and peaceable person . . . .” Id.

That was made stricter to provide: “No free

negro shall be suffered to keep or carry a firelock of

any kind, any military weapon, or any powder or lead,

without first obtaining a license from the court of the

county or corporation in which he resides . . . .” Art.

66, § 73, 1 Maryland Code 464 (1860).

Delaware forbade “free negroes and free

mulattoes to have, own, keep, or possess any gun [or]

pistol,” except that such persons could apply to a

justice of the peace for a permit to possess a gun or

fowling piece, which could be granted with a finding

“that the circumstances of his case justify his keeping

and using a gun . . . .” Ch. 176, § 1, 8 Laws of the

State of Delaware 208 (1841).

North Carolina provided that “no slave shall go

armed with Gun,” unless he had a certificate to carry

a gun to hunt, issued with the owner’s permission.

Statutes of the State of North Carolina 93 (1791).

North Carolina also make it unlawful “if any

free negro, mulatto, or free person of color, shall wear

or carry about his or her person, or keep in his or her

house, any shot gun, musket, rifle, pistol, sword,

dagger or bowie-knife, unless he or she shall have

obtained a licence therefor from the Court of Pleas and

Quarter Sessions of his or her county . . . .” State v.

Newsom, 27 N.C. 250, 207 (1844) (Act of 1840, ch. 30).

The provision was upheld as constitutional partly on

the ground that “the free people of color cannot be

considered as citizens . . . .” Id. at 254.

Adding that having weapons by “this class of

persons” was “dangerous to the peace of the

community,” State v. Lane, 30 N.C. 256, 257 (1848),

continued:

Degraded as are these individuals, as a

class, by their social position, it is

certain, that among them are many,

worthy of all confidence, and into whose

hands these weapons can be safely

trusted, either for their own protection,

or for the protection of the property of

others confided to them. The County

Court is, therefore, authorised to grant a

licence to any individual they think

proper, to possess and use these

weapons.

The court could not only deny a license outright,

but also to limit a license to carry only in certain

places. In State v. Harris, 51 N.C. (6 Jones) 448

(1859), a free person of color had a license to carry a

gun on his own land, but he was hunting with a

shotgun elsewhere with white companions, and was

indicted for doing so. The trial court held that “the

County Court had no power to limit the license, and

therefore, that the defendant was not guilty.” Id. at

449.

The state Supreme Court reversed, holding that

“the county court might think it a very prudent

precaution to limit the carrying of arms to the lands of

the free negro” and that the act did not “prevent the

restriction from being imposed.” Id.

Free blacks were not entitled to bear arms,

which was a privilege that could be granted or denied

by the authorities, based on their status as lacking

citizenship. “Free persons of color have never been

recognized here as citizens; they are not entitled to

bear arms, vote for members of the legislature, or to

hold any civil office.” Cooper v. Savannah, 4 Ga. 72

(1848).

Scott v. Sanford, 60 U.S. (19 How.) 393 (1857),

notoriously held that African Americans had no rights

that must be respected. It argued against recognition

of their citizenship because it “would give to persons of

the negro race, who were recognized as citizens in any

one State of the Union, the right to enter every other

State whenever they pleased, singly or in companies .

. .; and it would give them the full liberty of speech . .

., and to keep and carry arms wherever they went.”

Id. at 417. Overturning Dred Scott would be a primary

objective of the Fourteenth Amendment.

II. THE FOURTEENTH AMENDMENT

PROHIBITS STATES FROM LIMITING THE

RIGHT OF “THE PEOPLE” TO BEAR

ARMS TO A SELECTED FEW

A. McDonald Reaffirmed the Right

to Bear Arms for Self Defense

Heller “held that the Second Amendment

protects the right to keep and bear arms for the

purpose of self-defense . . . .” McDonald, 561 U.S. at

791. “Self-defense is a basic right, . . . and in Heller,

we held that individual self-defense is ‘the central

component’ of the Second Amendment right.” Id. at

767 (citation omitted). While the right exists “most

notably for self-defense within the home,” id. at 780,

the need for self-defense also exists outside the home.

B. The Fourteenth Amendment was Understood to

Guarantee the Right to Carry Arms from State

Violation Through Discretionary Licensing Laws

The Fourteenth Amendment was understood to

guarantee the right to carry arms from State

infringement. State laws that delegated discretionary

power to officials to determine who may carry arms

were deemed to be infringements.

“In the aftermath of the Civil War, there was an

outpouring of discussion of the Second Amendment in

Congress and in public discourse, as people debated

whether and how to secure constitutional rights for

newly free slaves.” Heller, 554 U.S. at 614, citing S.

Halbrook, Freedmen, the Fourteenth Amendment, and

the Right to Bear Arms, 1866-1876 (1998) (republished

as Securing Civil Rights). The Slave Codes were

reenacted as the Black Codes, including prohibitions

on both the keeping and the carrying of firearms by

African Americans. As Frederick Douglass explained

in 1865, “the black man has never had the right either

to keep or bear arms.” 4 The Frederick Douglass

Papers 84 (1991), quoted in McDonald, 561 U.S. at 850

(Thomas, J., concurring).

The first state law noted in McDonald as typical

of what the Fourteenth Amendment would invalidate

required a license to carry a firearm that an official

had discretion to deny. Mississippi provided that “no

freedman, free negro or mulatto, not in the military

service of the United States government, and not

licensed so to do by the board of police of his or her

county, shall keep or carry fire-arms of any kind . . . .”

Certain Offenses of Freedmen, 1865 Miss. Laws p. 165,

§ 1, in 1 Documentary History of Reconstruction 289

(W. Fleming ed.1950), quoted in McDonald, 561 U.S. at

771.

The above was reflected in a press report as

follows: “The militia of this country have seized every

gun and pistol found in the hands of the (so called)

freedmen of this section of the country. They claim

that the statute laws of Mississippi do not recognize

the negro as having any right to carry arms.” Harper’s

Weekly, Jan. 13, 1866, at 3, col. 2.

Such Second Amendment deprivations were

prominently debated in bills leading to enactment of

the Freedmen’s Bureau Act and the Civil Rights Act of

1866. Rep. Thomas Eliot, sponsor of the former,

explained that the bill would render void laws like that

of Opelousas, Louisiana, providing that no freedman

“shall be allowed to carry fire-arms” without

permission of his employer and as approved by the

board of police. Cong. Globe, 39th Cong., 1st Sess. 517

(1866). He further quoted from a Freedmen’s Bureau

report about Kentucky: “The civil law prohibits the

colored man from bearing arms . . . .”3 Id. at 657.

Accordingly, the Freedmen’s Bureau bill guaranteed

the right “to have full and equal benefit of all laws and

proceedings for the security of person and estate,

including the constitutional right to bear arms.” Id. at

654.

Opponents of the bill did not disagree with

recognition of such rights. Senator Davis said that the

Founding Fathers “were for every man bearing his

arms about him and keeping them in his house, his

castle, for his own defense.” Id. at 371. Yet

prohibitions continued to be enforced. A witness

testified that “attempts were made in that city

[Alexandria, Va.] to enforce the old law against them

in respect to whipping and carrying fire-arms, nearly

or quite up to the time of the establishment of the

Freedmen’s Bureau in that city.” Report of the Joint

Committee on Reconstruction, H.R. Rep. No. 30, 39th

Cong., 1st Sess., pt. 2, at 21 (1866).

Through Gen. D. E. Sickles’ General Order No.

1, the Freedmen’s Bureau nullified South Carolina’s

gun ban as follows:

See Heller, 554 U.S. at 614-15.

The constitutional rights of all

loyal and well disposed inhabitants to

bear arms, will not be infringed;

nevertheless this shall not be construed

to sanction the unlawful practice of

carrying concealed weapons; nor to

authorize any person to enter with arms

on the premises of another without his

consent.

Cong. Globe, 39th Cong., 1st Sess. , 908-09 (1866).

This order was repeatedly printed in the Loyal

Georgian, a black newspaper, beginning with the issue

of Feb. 3, 1866, at 1. That issue also included the

following:

Have colored persons a right to own and

carry fire arms?

A Colored Citizen

Almost every day we are asked

questions similar to the above. We

answer certainly you have the same right

to own and carry arms that other citizens

have. . . .

Article II, of the amendments to

the Constitution of the United States,

gives the people the right to bear arms,

and states that this right shall not be

infringed. . . . All men, without

distinction of color, have the right to keep

and bear arms to defend their homes,

families or themselves.

Id. at 3. See also Heller, 554 U.S. at 615.

“In debating the Fourteenth Amendment, the

39th Congress referred to the right to keep and bear

arms as a fundamental right deserving of protection.”

McDonald, 561 U.S. at 775. Senator Samuel Pomeroy

noted that the “safeguards of liberty under our form of

Government” included the following: “He should have

the right to bear arms for the defense of himself and

family and his homestead.” Id., citing Cong. Globe,

39th Cong., 1st Sess., 1182 (1866). Similarly, a

Freedmen’s Bureau report stated: “There must be ‘no

distinction of color’ in the right to carry arms, any

more than in any other right.” Ex. Doc. No. 70, House

of Representatives, 39th Cong., 1st Sess., at 297

(1866).

Introducing the Fourteenth Amendment in the

Senate, Jacob Howard referred to “the personal rights

guaranteed and secured by the first eight amendments

of the Constitution; such as . . . the right to keep and

bear arms . . . .” Cong. Globe, 39th Cong., 1st Sess.

2765 (1866). He averred: “The great object of the first

section of this amendment is, therefore, to restrain the

power of the States and compel them at all times to

respect these great fundamental guarantees.” Id. at

2766.4

The Fourteenth Amendment passed both houses

by the necessary two-thirds and was proposed to the

States. In support of a bill which required the

Southern States to ratify the Amendment, Rep. George

W. Julian argued:

Although the civil rights bill is now the

law, . . . [it] is pronounced void by the

Howard’s speech was cited as authority in Jones v.

Helms, 452 U.S. 412, 424 n.23 (1981); Plyler v. Doe, 457 U.S. 202,

214-15 (1982).

jurists and courts of the South. Florida

makes it a misdemeanor for colored men

to carry weapons without a license to do

so from a probate judge, and the

punishment of the offense is whipping

and the pillory. South Carolina has the

same enactments; and a black man

convicted of an offense who fails

immediately to pay his fine is whipped. .

. . Cunning legislative devices are being

invented in most of the States to restore

slavery in fact.5

Id. at 3210.

A Mississippi court declared the Civil Rights Act

void in upholding the conviction of a freedman for

carrying a musket without a license. New York Times,

Oct. 26, 1866, at 2; see McDonald, 561 U.S. at 775

n.24. Another Mississippi court found the ban on

freedmen carrying arms void:

The citizen has the right to bear arms in

defense of himself, secured by the

constitution. . . . Should not then, the

freedmen have and enjoy the same

constitutional right to bear arms in

defence of themselves, that is enjoyed by

Florida’s 1865 law made it “unlawful for any Negro,

mulatto, or person of color to own, use, or keep in possession or

under control any . . . firearms or ammunition of any kind, unless

by license of the county judge . . . .” Ex. Doc. No. 118, House of

Representatives, 39th Cong., 1st Sess. 20 (1866). Florida

Governor Walker stated that the law “in regard to freedmen

carrying firearms does not accord with our Constitution, has not

been enforced and should be repealed.” Fla. Sen. J. 13 (1866).

the citizen? . . . While, therefore, the

citizens of the State and other white

persons are allowed to carry arms, the

freedmen can have no adequate

protection against acts of violence unless

they are allowed the same privilege.

New York Times, Oct. 26, 1866, at 2.

These decisions were taken notice of in a report

from General U.S. Grant stating: “The statute

prohibiting the colored people from bearing arms,

without a special license, is unjust, oppressive, and

unconstitutional.” Cong. Globe, 39th Cong., 2d Sess.,

33 (1866).

After the Freedmen’s Bureau bill was passed

and vetoed, it would be passed in override votes by the

same two-thirds-plus members of Congress who voted

for the Fourteenth Amendment. Halbrook, Freedmen,

41-43 (roll-call votes). Section 14 of the Freedmen’s

Bureau Act declared that where ordinary judicial

proceedings were not restored, and until such time as

such States were restored to the Union:

the right . . . to have full and equal

benefit of all laws and proceedings

concerning personal liberty, personal

security, and the acquisition, enjoyment,

and disposition of estate, real and

personal, including the constitutional

right to bear arms, shall be secured to

and enjoyed by all the citizens of such

State or district without respect to race

or color or previous condition of slavery.

14 Stat. 173, 176-77 (1866).

“Section 14 thus explicitly guaranteed that ‘all

the citizens,’ black and white, would have ‘the

constitutional right to bear arms.’” McDonald, 561 U.S.

at 773. The term “bear arms” was used, and “[i]t

would have been nonsensical for Congress to guarantee

the full and equal benefit of a constitutional right that

does not exist.” Id. at 779. Further, the Act sought to

achieve more than just a non-discrimination rule, for

it referred to the “full and equal benefit,” not just

“equal benefit.” Id.

That the right to “bear” arms meant to carry

them in public was again starkly illustrated in the

Maryland constitutional convention of 1867, where a

delegate proposed adding to the state bill of rights that

“every citizen has the right to bear arms in defence of

himself and the State.” P. Perlman, Debates of the

Maryland Convention of 1867 at 150-51 (1867).

Another delegate moved to weaken that to refer only to

“every white citizen,” while still another chimed in,

“Every citizen of the State means every white citizen,

and none other.” Id. Given the opposition to

recognizing a right of non-whites to bear arms, it was

proposed that “the citizen shall not be deprived of the

right to keep arms on his premises.” Id. That too was

rejected.

“In sum, it is clear that the Framers and

ratifiers of the Fourteenth Amendment counted the

right to keep and bear arms among those fundamental

rights necessary to our system of ordered liberty.”

McDonald, 561 U.S. at 777. As such, the right of a

law-abiding person to carry a firearm could not be

dependent on the discretion of an official.

C. Infringement on the Right to Bear Arms is

Actionable Under the Civil Rights Act of 1871

“[I]n debating the Civil Rights Act of 1871,

Congress routinely referred to the right to keep and

bear arms and decried the continued disarmament of

blacks in the South.” McDonald, 561 U.S. at 776,

citing Halbrook, Freedmen 120-131. Today’s 42 U.S.C.

§ 1983, the Act provides that any person who, under

color of State law, subjects a person “to the deprivation

of any rights, privileges, or immunities secured by the

Constitution” is civilly liable. 17 Stat. 13 (1871).

“[I]n passing § 1, Congress assigned to the

federal courts a paramount role in protecting

constitutional rights.” Patsy v. Board of Regents, 457

U.S. 496, 503 (1982). Patsy then quoted Rep. Henry

Dawes’ explanation of how the federal courts would

protect “these rights, privileges, and immunities . . . .”

Id., citing Cong. Globe, 42d Cong., 1st Sess., 476

(1871). Dawes had just explained that the citizen “has

secured to him the right to keep and bear arms in his

defense.”

Cong. Globe, supra, at 475-76.

See

McDonald, 561 U.S. at 835 (Thomas, J., concurring).

Patsy also cited the remarks of Rep. John

Coburn, 457 U.S. at 504, who on the same page

observed: “A State may by positive enactment cut off

from some the right . . . to bear arms . . . . How much

more oppressive is the passage of a law that they shall

not bear arms than the practical seizure of all arms

from the hands of the colored men?” Cong. Globe at

459.

“Opponents of the bill also recognized this

purpose . . . .” Patsy, 457 U.S. at 504 n.6 (citing

remarks of Rep. Washington Whitthorne). On the

same page of his speech, Whitthorne objected that “if

a police officer of the city of Richmond or New York

should find a drunken negro or white man upon the

streets with a loaded pistol flourishing it, & c., and by

virtue of any ordinance, law, or usage, either of city or

State, he takes it away, the officer may be sued,

because the right to bear arms is secured by the

Constitution . . . .” Cong. Globe at 337. To the

contrary, supporters of the bill were concerned that

police would arrest a law-abiding African American on

the street who was carrying a pistol for self defense,

and they wished to provide a legal remedy for such

deprivation.

A year after passage, the Civil Rights Act was

the subject of a report from President Grant which

stated that parts of the South were under the control

of Ku Klux Klans, the objects of which were “to deprive

colored citizens of the right to bear arms and of the

right to a free ballot . . . .” Ex. Doc. No. 268, 42nd

Cong., 2d Sess. 2 (1872). In debate on a bill to expand

civil rights protection, Senator John Scott explained

how Klansmen seized the firearms of their victims

before lynching them. Cong. Globe, 42nd Cong., 2d

Sess., 3584 (1872). Senator Pratt observed that the

Klansman “fears the gun” of a man in his “humble

fortress.” Id. at 3587. The Klan targeted the black

who would “tell his fellow blacks of their legal rights,

as for instance their right to carry arms and defend

their persons and homes.” Id. at 3589.

It was thus commonplace to equate “bear

arms”with “carry arms.” While at this point in history

the disarming of blacks was taking place more by the

Klan rather than by state action, a report recalled the

state laws of 1865-66 under which “a free person of

color was only a little lower than a slave. . . . [and

hence] forbidden to carry or have arms.” 1 Report of

the Joint Select Committee to Inquire into the

Condition of Affairs in the Late Insurrectionary States

261-62 (1872).

In sum, the Civil Rights Act of 1871 was

understood to provide a remedy to persons who were

deprived of the right to carry firearms for self defense,

including by discretionary licensing laws. This is such

a case.

D. Restrictive Licensing in the Jim Crow Era

The Fourteenth Amendment did away with

actually naming African Americans in laws prohibiting

the right to bear arms. Instead, in the Jim Crow era

seemingly-neutral laws imposed prohibitive fees on the

poor and were selectively enforced in ways to deny the

right of black citizens to carry arms.6 The following

examples from enactments in Florida and Virginia

exemplify such goals.

Florida made it a crime for a person “to carry

around with him, or to have in his manual possession”

a pistol or repeating rifle, without a license. § 790.05,

See Shelby County, Ala. v. Holder, 570 U.S. 529, 552

(2013) (“the reign of Jim Crow denied African-Americans the most

basic freedoms”).

1 Fla. Statutes, 1941. The law provided that county

commissioners “may” grant such license and required

the posting of a $100 bond with approved sureties. §

790.06, id. Licenses were obviously beyond the means

of poor persons, not to mention the unlikelihood of

them being issued to African Americans.

The above law “was passed when there was a

great influx of negro laborers in this State” in 1893 “for

the purpose of disarming the negro laborers . . . . The

statute was never intended to be applied to the white

population . . . .” Watson v. Stone, 148 Fla. 516, 524,

4 So. 2d 700 (Fla. 1941) (Buford, J., concurring). He

added that “it has been generally conceded to be in

contravention of the Constitution and non-enforceable

if contested.” Id.

In Virginia, it was held not unlawful to carry a

concealed handgun if it was not readily accessible,

such as in saddlebags. Sutherland v. Commonwealth,

109 Va. 834, 65 S.E. 15 (Va. 1909). The editors of the

Virginia Law Register criticized the decision with

racist rhetoric as follows:

It is a matter of common

knowledge that in this state and in

several others, the more especially in the

Southern states where the negro

population is so large, that this cowardly

practice of “toting” guns has always been

one of the most fruitful sources of crime .

. . . There would be a very decided falling

off of killings “in the heat of passion” if a

prohibitive tax were laid on the privilege

of handling and disposing of revolvers

and other small arms, or else that every

person purchasing such deadly weapons

should be required to register . . . . Let a

negro board a railroad train with a quart

of mean whiskey and a pistol in his grip

and the chances are that there will be a

murder, or at least a row, before he

alights.

“Carrying Concealed Weapons,” 15 Virginia Law

Registration and an annual tax of one dollar for

each pistol or revolver would be enacted in Virginia.

Ch. 258, 1926 Va. Acts 285, repealed, Ch. 296, 1936

Va. Acts 486. The intimidating process and paperwork

and the expense, similar to paying the $1.50 poll tax

for voting,7 would have made it difficult or impossible

for the poor, including African Americans, to obtain or

possess handguns.

Possession of an unregistered handgun was

punishable with a fine of $25-50 and sentencing to the

State convict road force for 30-60 days. 1926 Va. Acts

at 286. See R. Withers, “Road Building by Prisoners,”

in Proceedings of the National Conference of Charities

and Correction 209 (1908) (“three-fourths of the convict

road force are negroes”).

The above illuminates the perils of discretionary

licence issuance laws. Historically, they have been

applied to deny to African Americans and other groups

the Second Amendment right to bear arms. In their

Va. Const., Art. II, § 20 (1902). “The Virginia poll tax was

born of a desire to disenfranchise the Negro.” Harman v.

Forssenius, 380 U.S. 528, 543 (1965).

most extreme form, such as today’s New Jersey law,

allowing such discretion to officials violates the right

to bear arms of “the people” at large and creates a

privileged elite of license holders. This Court should

not let that stand.

CONCLUSION

This Court should grant the petition for a writ

of certiorari.

Respectfully submitted,

NATIONAL AFRICAN AMERICAN GUN ASSOCIATION,

INC.

AMICUS CURIAE