Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.

No. 20-843

In The

Supreme Court of the United States

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., et al.,

Petitioners,

v.

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY

AS SUPERINTENDENT OF NEW YORK STATE

POLICE, et al.,

Respondents.

On Writ Of Certiorari To The United States Court

Of Appeals For The Second Circuit

BRIEF OF AMICI CURIAE BAY COLONY

WEAPONS COLLECTORS, INC.

IN SUPPORT OF PETITIONERS

Robert J. Cottrol

Geo. Wash. Univ.

Law School

2000 H St., N.W.

Washington, DC 20052

202-994-5023

bcottrol@law.gwu.edu

Robert Dowlut

Counsel of Record

Alice Marie Beard

9200 Bulls Run Pkwy.

Bethesda, MD 20817

301-493-5832

dowlut@aol.com

alicemariebeard@aol.com

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………ii

INTEREST OF THE AMCIUS CURIAE…………….1

SUMMARY OF ARGUMENT………………………….3

ARGUMENT……………………………………………...4

I. CONSTITUTION GUARANTEES BROADER

RIGHTS THAN ENGLISH LAW, COLONIAL LAW,

AND PRE-HELLER AND PRE-McDONALD

LAW………………………………………………………..4

A. American Constitution Guarantees

Broader Rights Than Rights Found in the English

System……………………………………………………..8

B. There is a National Consensus for

Carrying Arms Outside the Home…………………...12

II. RIGHT TO BEAR ARMS SHOULD NOT BE

TREATED AS A SECOND-CLASS RIGHT….…….15

CONCLUSION……………………………………….…19

ii

TABLE OF AUTHORITIES

CASES

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982)……19

Bridges v. California, 314 U.S. 252 (1941)…….….8-9

Bridgeville Rifle & Pistol Club v. Small, 176 A.3d

632 (Del. 2017)……………………………………….…18

Chardin v. Police Comm'r Boston, 465 Mass. 314,

989 N.E.2d 392 (2013), cert. denied sub nom.

Chardin v. Davis, 571 U.S. 990 (2013)………….……2

City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d

744 (1972) (en banc)……………………………………17

City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d

737 (Ct. App. 1971)…………………………………17-18

Commonwealth v. Gouse, 461 Mass. 787, 965 N.E.2d

774 (2012)…………………………………..………...…..2

District of Columbia v. Heller, 554 U.S. 570

(2008)……………………………………………….passim

Dupont v. Nashua Police Dep’t, 113 A.3d 239 (N.H.

2015), cert. denied, McDonough v. Dupont, 136 S.Ct.

533 (2015)………………………………………..………15

Ex parte Milligan, 71 U.S. 2 (1866)………………….19

Ferguson v. Perry, 292 Ga. 666, 740 S.E.2d 598

(2013)……………………………………………………..15

iii

Florida Carry, Inc. v. Univ. N. Florida, 133 So.3d

966 (Fla. App. 2013)………….………………………..15

Glasscock v. City of Chattanooga, 157 Tenn. 518, 11

S.W.2d 678 (1928)……………………….……………..18

Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018)……5-6

Grosjean v. American Press Co.,297 U.S. 233

(1936)…………………………………….………………..9

In re Brickey, 8 Ida. 597, 70 P. 609 (1902)………….18

INS v. Chadha, 462 U.S. 919 (1983)…………...……19

Johnson v. Dept. of State Police, 443 Ill. Dec. 37, 161

N.E.3d 161 (Ill. 2020)…………………………………..15

Kachalsky v. County of Westchester, 701 F.3d 81 (2d

Cir. 2012)…………….……………………………………5

Kellogg v. City of Gary, 562 N.E.2d 685 (Ind.

1990)………………………………………………..…….14

McDonald v. Chicago, 561 U.S. 742 (2010)…...passim

Memoirs v. Atty. Gen. of Com. of Mass., 383 U.S. 413

(1966)……………………………………..………….…….9

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)….....7

National Fed. Of Indep. Business v. Sebelius, 567

U.S. 519 (2012)………………………………………….15

iv

Nichols v. Chief of Police of Natick, 94 Mass.App.Ct.

739, 119 N.E.3d 333 (2019)….………………………....2

Norman v. State, 215 So.3d 18 (Fla. 2017)…………13

Parkland Hosiery Co., Inc. v. Shore, 439 U.S. 322

(1979)………………………………………………………9

People v. Aguilar, 377 Ill.Dec. 405, 2 N.E.3d 321

(Ill. 2013)……………………………………………..….18

People v. Chairez, 423 Ill.Dec. 69, 104 N.E.3d 1158

(Ill. 2018)…………………………………………………18

Schubert v. DeBard, 398 N.E.2d 1339 (Ind. App.

1980)………………………………...……………..…13-14

Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833)……...8

State ex rel. City of Princeton v. Buckner, 180 W.Va.

457, 377 S.E.2d 139 (1988)…………………………....17

State v. Blocker, 291 Or. 255, 630 P.2d 824

(1981)…………………..………………………….……..17

State v. Huntley, 25 N.C. 418 (1843)………………….5

State v. Kerner, 181 N.C. 574, 107 S.E. 222

(1921)……………………………….………………….…17

State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903)…..18

United States v. Brewster, 408 U.S. 501 (1972)……..8

v

Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304,

28 F.Cas. 1012 (C.C.D. Pa. 1795) (No. 16,857)………8

W. Va. State Bd. of Education v. Barnette, 319 U.S.

624 (1943)………………………………………………...3

Wilson v. State, 33 Ark. 557 (1878)………………….16

Wrenn v. District of Columbia, 864 F.3d 650 (D.C.

Cir. 2017)………………………………………………….7

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) ……..6

UNITED STATES CONSTITUTION

U.S. Const. Art. I, § 9, cl. 3………………………..……9

U.S. Const. Art. I, § 10, cl. 1………………………..…..9

U.S. Const. Amend. II……………………………passim

U.S. Const. Amend. V………………………………..….8

U.S. Const. Amend. XIV…………………………..14, 19

STATUTES

Cal. Penal Code §§ 26150, 26155…………………….12

Criminal Justice Act 2003, pt. 10, § 75 (Eng.)………8

Del. Code Title 11, § 1441(d)………………………….12

2 Edw. 3, Ch. 3 (1328)…………………………………...5

vi

Haw. Rev. Stat. § 134-9 (a)…………………………..12

Md. Code Pub. Safety § 5-306 (a)(6)(ii)……………...12

Mass. Gen. Laws Ch. 140, § 121……………………….2

Mass. Gen. Laws Ch.140, § 129B (6)………………….1

Mass. Gen. Laws Ch. 140, § 131…………………..2, 12

N.J. Stat. § 2C:58-4…………………………………….12

N. Y. Penal Law § 400.00 subd. 2 (f)……………12, 13

1 Wm. & Mary Ch. 2, § 7 (1689)…………………….…6

1 Wm. & Mary Ch.18 (1689)………………………..….9

OTHER AUTHORITIES

Alice Marie Beard, Gay Rights Strengthen Gun

Rights, 57 So. Tex. L. Rev. 215 (2016)………………16

4 W. Blackstone, COMMENTARIES *152 (1769)…..9

Stephen P. Halbrook, THE RIGHT TO BEAR ARMS:

A CONSTITUTIONAL RIGHT OF THE PEOPLE

OR A PRIVILEGE OF THE RULING CLASS?

(2021)………………………………………..……6, 13, 16

1 HISTORY OF THE SUPREME COURT OF THE

UNITED STATES (J. Goebel, Jr. ed. 1971)…….….11

THE ORIGIN OF THE SECOND AMENDMENT: A

DOCUMENTARY HISTORY OF THE BILL OF

vii

RIGHTS 1787-1792 (David E. Young ed., 2nd ed.

2001)……………………………………………………...11

2 Bernard. Schwartz, THE BILL OF RIGHTS: A

DOCUMENTARY HISTORY (1971)………………..11

Anders Walker, From Ballots to Bullets: District of

Columbia v. Heller and the New Civil Rights, 69 La.

L. Rev. 509 (2009)………………………………………15

1

INTEREST OF THE AMICUS CURIAE 1

Bay Colony Weapons Collectors, Inc., is a non-profit

membership association incorporated under the laws

of the Commonwealth of Massachusetts, located in

Boston, Massachusetts. Bay Colony Weapons

Collectors, Inc., was established in 1961 as an

association of collectors of weapons including

firearms, swords, knives, pole arms, armor, military

collectables, and related books and art. They hold

monthly meetings and twice a year hold educational

sessions. Presently there are about 60 members.

Some form of firearms license is required for

membership. Most have licenses to carry.

In Massachusetts a person needs to have a firearms

identification card (FID) to have a rifle or shotgun in

the home. The FID card will let a person own a

handgun, but it must be kept at a licensed range (a

private club) and cannot be kept in the home. Mass.

Gen. Laws Ch.140, § 129B (6).

To have a handgun in the home or on the street a

person must have the license to carry a handgun.

The statute requires that the applicant be a suitable

person and must show a proper purpose. The

licensing authority determines what is a proper

purpose and what restrictions to put on the license

1 Rule 37.6 Notice:

No counsel for a party authored the brief in

whole or in part and no such counsel or a party made a

monetary contribution intended to fund the preparation or

submission of this brief. Petitioners in this case gave blanket

consent to the filing of briefs amici curiae in support of

petitioners, respondents, or neither party. Respondents gave

written consent on June 3, 2021.

2

relative to possession, use, or carrying. Mass. Gen.

Laws Ch. 140, § 131. 2

As in New York, the issuance and renewal of a

license to carry a handgun in Massachusetts is left

to the discretion of the licensing authority.

Massachusetts courts have held the “suitable

person” standard gives the licensing authority

considerable latitude or broad discretion in making a

licensing decision. Chardin v. Police Comm'r Boston,

465 Mass. 314, 989 N.E.2d 392 (2013), cert. denied

sub nom. Chardin v. Davis, 571 U.S. 990 (2013);

Nichols v. Chief of Police of Natick, 94 Mass.App.Ct.

739, 119 N.E.3d 333 (2019). There is no recognized

constitutional right to “bear arms” in Massachusetts

outside the home. Commonwealth v. Gouse, 461

Mass. 787, 965 N.E.2d 774, 802 (2012) (“The case

before us does not implicate this [Second

Amendment] right: the defendant was charged with

and convicted of possessing a firearm in an

automobile, not his home…”). Thus, amicus curiae

Bay Colony Weapons Collectors, Inc., has a personal

stake in the outcome of the case before this Court.

2 Mass. Gen. Laws Ch. 140 § 121 defines “firearm” to include a

pistol or revolver (handgun). The definition of rifle and

definition of shotgun are separately found in Ch. 140 § 121.

3

SUMMARY OF ARGUMENT

Many inferior courts, including the U.S. Court of

Appeals for the Second Circuit, have relied on

English common law, English statutory law, colonial

law, and American law predating District of

Columbia v. Heller, 554 U.S. 570 (2008), and

McDonald v. Chicago, 561 U.S. 742 (2010), to justify

reducing the constitutional and enumerated right to

“bear arms” into a statutory privilege or even

holding that there is no right to “bear arms” outside

the home.

However, historical background serves as a reason

why a constitutional guarantee was adopted in a

more robust American version, and consequently

such historical background may not be invoked to

constrict or abrogate an enumerated constitutional

right. A guarantee is placed in the Bill of Rights

because a right is considered peculiarly important

and uniquely vulnerable to infringement. The Bill of

Rights is not a list of suggestions or guidelines for

social balancing. The very purpose of a Bill of Rights

is to enable the enjoyment of a fundamental right

that does not depend on the outcome of an election or

the reach of majorities and officials. 3 The law before

Heller and McDonald was flawed by its failure to

protect a constitutional right. That law is no longer

controlling, just as the separate but equal holding no

longer controls.

3 W. Va. State Bd. of Education v. Barnette, 319 U.S. 624

(1943).

4

There is a national consensus for carrying arms

outside the home. The right to “bear arms” should

not be treated as a second-class right. New York is

an outlier. It reserves the enjoyment of an

enumerated guarantee in the Bill of Rights only to

persons who show a need to the satisfaction of a

licensing official. A citizen’s right should not be

dependent on a zip code.

ARGUMENT

I. CONSTITUTION GUARANTEES BROADER

RIGHTS THAN ENGLISH LAW, COLONIAL LAW,

AND PRE-HELLER AND PRE-McDONALD LAW

The stakes involved in constitutional interpretation

are much higher than in other fields of legal

interpretation because the constitution is the

supreme law of the land, commanding even the

legislature. Despite these well-known principles of

law, some courts greatly constricted the plain word

“bear” in the Second Amendment or even judicially

repealed the word “bear.”

Many courts use English law, colonial law, and preHeller and pre-McDonald law to justify the reduction

of the right to “bear arms” into a statutory

discretionary privilege. In one recent case “bear

arms” was completely restricted to the home. Three

recent cases will be discussed as examples to support

this argument.

Kachalsky v. County of Westchester, 701 F.3d 81 (2d

Cir. 2012), reviewed a 1785 law on use of firearms

and storage of gun powder, North Carolina’s early

5

version of the Statute of Northampton, 4 and early

twentieth century New York law requiring a license

to possess and carry a handgun. The court agreed

that history and tradition do not speak with one

voice on the scope of the right to bear arms. It also

agreed that the right to bear arms was not limited to

the home. It acknowledged that applicants for a

license to carry a handgun underwent a rigorous

background investigation that included the

submission of fingerprints. Nonetheless, the court

applied intermediate scrutiny and upheld the

requirement that an applicant demonstrate need for

self-protection distinguishable from that of the

general community or of persons engaged in the

same profession. It concluded that such a required

demonstration of proper cause is not a complete ban

on possession of handguns in public.

Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018), held

that the Second Amendment core right is restricted

to the home. However, it agreed that the right is not

limited to the home. The court admitted that an

historical inquiry does not dictate an answer of the

scope of the right to bear arms outside the home. It

noted that demonstrating good cause to obtain a

handgun carrying license goes back to an 1836 law

in Massachusetts that required showing of

reasonable cause to justify carrying a handgun

outside the home. However, the 1836 law was a

4 2 Edw. 3, Ch. 3 (1328). That statute is an affirmance of the

common law. Carrying a gun, per se, constitutes no offense.

The wicked purpose to terrify and alarm constitute the crime.

State v. Huntley, 25 N.C. 418 (1843).

6

peace bond law and not a licensing law. 5 Gould

noted that a diligent search revealed there is no

national consensus rooted in history concerning the

right to public carriage of firearms. After admitting

considerable hesitancy to extend the right beyond

the home, the court employed intermediate scrutiny,

and upheld the good cause requirement in

Massachusetts law to obtain a handgun carrying

license.

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en

banc), cert. pet. filed May 11, 2021, No. 20-1639,

involved a challenge to a Hawaii statute requiring

an applicant to demonstrate urgency or need in

order to obtain a license to carry a handgun openly.

The court reviewed history going back to Hawaii’s

pre-territorial law, English royal decree of 1299,

English tradition, Statute of Northampton, English

Bill of Rights, 6 colonial era restrictions, post Second

Amendment restrictions, nineteenth century

restrictions, and twentieth century restrictions. The

majority concluded that the Second Amendment

guarantees no right whatsoever to bear arms for selfdefense outside the home, neither openly nor

concealed. Judge O’Scannlain, joined by three other

5 Failure to show “reasonable cause to fear an assault or other

injury, or violence to his person, or to his family or property”

exposed the person under that law to the posting of a peace

bond for up to six months. Stephen P. Halbrook, THE RIGHT

TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE

PEOPLE OR A PRIVILEGE OF THE RULING CLASS? 226

(2021).

6 1 Wm. & Mary Ch. 2, § 7, 3 Eng. Stat. at Large 441 (1689).

7

judges, dissented. Hawaii’s restriction is so severe

as to extinguish the core right in armed self-defense.

These courts overlooked case law holding that the

U.S. Constitution guarantees broader rights than

English common law, statutory law, or tradition.

The guarantee to keep and bear arms in the Second

Amendment is broader than what is found in the

English Bill of Rights, which narrowly stated that

Protestants may have arms for their defence suitable

to their conditions and as allowed by law.

Since the plain meaning of “bear arms” and history

require a finding that carrying is not limited to the

home, some federal courts have held that the Second

Amendment right to bear arms extends beyond the

home, and that laws preventing the exercise of this

right are unconstitutional. Wrenn v. District of

Columbia, 864 F.3d 650 (D.C. Cir. 2017); Moore v.

Madigan, 702 F.3d 933 (7th Cir. 2012). Both

decisions discussed relevant history. These decisions

are faithful to this Court’s decisions in Heller and

McDonald. They also demonstrate that the right to

“bear arms” applies to urban centers like

Washington, D.C., and Chicago, Illinois.

A. American Constitution Guarantees

Broader Rights Than Rights Found in the English

System

It is well-settled that, unlike the nation against

which we revolted, it is our constitution that is

8

supreme, not the enactments of a legislative body. 7

Our constitution is interpreted in the context of our

American constitutional scheme of government

rather than English parliamentary system. United

States v. Brewster, 408 U.S. 501, 508 (1972). Unlike

the United Kingdom, we cannot, for example,

legislatively repeal the protection against double

jeopardy and against ex post facto laws. The United

Kingdom repealed double jeopardy in 2003 for

serious offenses and essentially repealed the ex post

facto principle when it provided, "This part applies

whether acquittal was before or after the passing of

this Act." Criminal Justice Act 2003, pt. 10, § 75

(Eng.). In the United States, the Fifth Amendment

protects an individual against double jeopardy.

Unlike the United Kingdom, the United States

Constitution explicitly prohibits both federal and

state legislatures from passing any ex post facto law.

U.S. Const. Art. I, § 9, cl. 3; U.S. Const. Art. I, § 10,

cl. 1.

This Court has held that the common law serves

only as an historical background and may not be

invoked to abrogate constitutional rights. "At the

Revolution we separated ourselves from the mother

country, and we have established a republican form

of government, securing to the citizens of this

country other and greater personal rights, than those

Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308, 28

F.Cas. 1012 (C.C.D. Pa. 1795) (No. 16,857). Justice William

Paterson of New Jersey, a signer of the U.S. Constitution,

authored the Vanhorne opinion. Simpson v. State, 13 Tenn. (5

Yer.) 356, 359-60 (1833), held that state right to bear arms

abrogates English law.

7

9

enjoyed under the British monarchy." Bridges v.

California, 314 U.S. 252, 264 n.7 (1941) (emphasis

added). Construction of a constitutional provision

phrased in terms of the common law is not

determined by rules of the common law which have

been rejected in this country as unsuited to local civil

or political conditions. Grosjean v. American Press

Co., 297 U.S. 233, 248-49 (1936). The English Bill of

Rights contained no provision for freedom of the

press. The British press was subject to licensing. 4

W. Blackstone, Commentaries *152 (1769).

Consequently, an interpretation of the constitution

is not rigidly bound by the common law as it existed

in 1791. Parkland Hosiery Company, Inc. v. Shore,

439 U.S. 322 (1979).

Although the legal history of the English right is

important background to the Second Amendment, it

does not set the limits of the American right. Similar

issues arise in regard to the First Amendment.

Justice Douglas wrote: “[T]o assume that English

common law in this field became ours is to deny the

generally accepted historical belief that ‘one of the

objects of the Revolution was to get rid of the

English common law on liberty of speech and of the

press.’” A Book Named “John Cleland’s Memoirs of a

Woman of Pleasure” v. Attorney General of Com. of

Mass., 383 U.S. 413, 429 (1966) (Douglas, J.,

concurring).

Freedom of religion is another example of why the

Framers departed from the English system and

adopted a broad freedom of religion. The Toleration

Act 1688 (1 Wm. & Mary Ch.18), also referred to as

the Act of Toleration, was an Act of Parliament

10

passed in the aftermath of the Glorious Revolution.

It received royal assent on May 24, 1689.

The Act allowed for freedom of worship to

nonconformists who had pledged to the oaths of

Allegiance and Supremacy and rejected

transubstantiation, i.e., to Protestants who dissented

from the Church of England such as Baptists,

Congregationalists or English Presbyterians, but not

to Roman Catholics. Nonconformists were allowed

their own places of worship and their own

schoolteachers, so long as they accepted certain

oaths of allegiance. The Act intentionally did not

apply to Roman Catholics, nontrinitarians, and

atheists. It continued the existing social and political

disabilities for dissenters, including their exclusion

from holding political offices. Dissenters were

required to register their meeting houses and were

forbidden from meeting in private homes. Any

preachers who dissented had to be licensed.

In adopting the Second Amendment, the narrow

provision on arms in the English Bill of Rights was

known but was rejected. James Madison himself

wanted the Second Amendment to be stronger than

its English predecessor. In 1789 in the First

Congress, James Madison introduced a set of

constitutional amendments that would become

known as the Bill of Rights. Although speeches in

the First Congress were not transcribed, Madison’s

notes for his speech introducing the amendments

showed that he viewed the English Bill of Rights as

a good start, but too weak. He wrote that his

amendments “relate 1st. to private rights.” A Bill of

Rights was “useful — not essential.” There was a

11

“fallacy on both sides — especy as to English Decln.

of Rts.” First, the English Bill of Rights was a “mere

act of parlt.” In other words, because it was a

statute, it could be overridden, explicitly or

implicitly, by any future Parliament. Thus, the

English Bill of Rights constrained the king but not

future Parliaments. Second, according to Madison,

the scope of the English Bill of Rights was too small;

it omitted certain rights and protected others too

narrowly. In particular, there was “no freedom of

press — Conscience.” There was no prohibition on

“Gl. Warrants” and no protection for “Habs. corpus.”

Nor was there a guarantee of “jury in Civil Causes”

or a ban on “criml. attainders.” Lastly, the

Declaration protected only “arms to Protestts.”

James Madison, Notes for Speech in Congress

Supporting Amendments, June 8,1789, in THE

ORIGIN OF THE SECOND AMENDMENT: A

DOCUMENTARY HISTORY OF THE BILL OF

RIGHTS 1787-1792 645 (David E. Young ed., 2nd ed.

2001).

The Senate rejected a proposal to insert the phrase

"for the common defence" after the words "bear

arms," thereby emphasizing that the purpose of the

Second Amendment was not merely to provide for

the common defense but also to protect the

individual's right to keep and bear arms for his own

self-defense. 1 HISTORY OF THE SUPREME

COURT OF THE UNITED STATES 450 (J. Goebel,

Jr. ed. 1971). See also 2 Bernard Schwartz, THE

BILL OF RIGHTS: A DOCUMENTARY HISTORY

1153-54 (1971).

12

B. There is a National Consensus for

Carrying Arms Outside the Home

There is a national consensus that there is a right to

carry firearms outside the home based on the

issuance of a permit or license according to an

objective statutory paradigm. Only seven states are

outliers. In the outlier states the right to bear arms

outside the home has been reduced to a discretionary

administrative privilege. New York is among the

seven. 8 The other states are California, 9 Delaware, 10

Hawaii, 11 Maryland, 12 Massachusetts, 13 and New

Jersey. 14

Legislatures and courts have a sworn obligation to

protect constitutional rights, including the right to

bear arms. In Heller this Court held that bearing

arms for self-defense is a protected right. Therefore,

self-defense is constitutionally a good, justifiable, or

8 N.Y. Penal Law § 400.00 subd. 2 (f) (“proper cause exists”).

9 Cal. Penal Code §§ 26150, 26155 (“good cause” must be shown

by an applicant).

10 Del. Code Title 11, § 1441(d) (“may or may not, in its

discretion, approve any application”).

11 Haw. Rev. Stat. §

134-9 (a) (“in an exceptional case … shows

reason to fear injury … may grant a license”).

12 Md. Code Pub. Safety § 5-306 (a)(6)(ii) (“good and substantial

reason”).

13 Mass. Gen. Laws Ch. 140, § 131 (“may issue if it appears that

the applicant … has good reason”).

14 N.J. Stat. § 2C:58-4 (“justifiable need”).

13

proper reason for obtaining a permit or license to

carry a firearm in a manner best determined by the

legislature. 15 “The settlers had the liberty to carry

their privately-owned arms openly or concealed in a

peaceful manner.” Stephen P. Halbrook, THE

RIGHT TO BEAR ARMS: A CONSTITUTIONAL

RIGHT OF THE PEOPLE OR A PRIVILEGE OF

THE RULING CLASS? 123 (2021).

N. Y. Penal Law § 400.00 subd. 2 (f) provides that a

pistol license may be issued to "have and carry

concealed, without regard to employment or place of

possession, by any person when proper cause exists

for the issuance thereof..." However, in New York

the constitutional right to bear arms for self-defense

does not constitute proper cause. Thus, the statute is

an infringement of the Second Amendment

guarantee to “bear arms” and should be struck down.

The legislature then has the option of rewriting the

statute in conformity with such a ruling, or it may

amend the statute by simply holding that selfdefense is a constitutionally proper cause.

There is a helpful case on point. In Schubert v.

DeBard, 398 N.E.2d 1339 (Ind. App. 1980), the

applicant was denied a license to carry a handgun

15 Florida law leaves no discretion to the licensing

authority, provided the applicant meets objective, statutory

criteria. Hence open carrying may be limited because under

"the breadth of Florida's 'shall issue' licensing scheme, the right

of Floridians to bear arms for self-defense outside of the home

is not illusory...." Norman v. State, 215 So.3d 18, 21-22 (Fla.

2017).

14

because the Superintendent of State Police decided

that the statutory reference to “proper reason”

vested in him the power to subjectively decide what

was a proper reason. The court noted that Indiana’s

constitution guarantees simply and plainly that “The

people shall have a right to bear arms, for the

defense of themselves and the State.” The court held

that the superintendent’s approach contravenes the

essential nature of the constitutional guarantee. It

would supplant a right with a mere administrative

privilege which might be withheld simply on the

basis that such matters as the use of firearms are

better left to the organized military and police forces

even where defense of the individual citizen is

involved. The court held that Schubert's assigned

reason of self-defense was constitutionally a "proper

reason.” Subsequently in Kellogg v. City of Gary,

562 N.E.2d 685, 694 (Ind. 1990), the Indiana

Supreme Court upheld Schubert: “We agree with

the Court of Appeals' analysis in Schubert, and now

find that this right of Indiana citizens to bear arms

for their own self-defense and for the defense of the

state is an interest in both liberty and property

which is protected by the Fourteenth

Amendment….” The court noted that the Second

Amendment did not apply to the states. That

principle of law is outdated because this Court in

McDonald held that the Second Amendment applies

to the states.

The approach in Kellogg satisfies the public safety

needs of the state by requiring a background

15

investigation, and it also protects the civil right to

bear arms. 16

II. RIGHT TO BEAR ARMS SHOULD NOT BE

TREATED AS A SECOND-CLASS RIGHT

Past and present history on the right to bear arms

reveals that this is not a second-class right. It is a

component of personal autonomy. It is valued to this

day.

Pennsylvania was the first state to include a right to

bear arms for self-defense in its Declaration of

Rights of 1776: “That the people have a right to bear

arms for the defense of themselves, and the state

16 National Fed. Of Indep. Business v. Sebelius, 567 U.S. 519,

132 S.Ct. 2566, 2600 (2012) (“protected civil rights, such as the

right to bear arms or vote in elections"); Johnson v. Dept. of

State Police, 443 Ill. Dec. 37, 46, 161 N.E.3d 161, 170 (Ill. 2020)

(“right to keep and bear arms is a ‘civil right’….”); Dupont v.

Nashua Police Dep’t, 113 A.3d 239, 247 (N.H. 2015), cert.

denied, McDonough v. Dupont, 136 S.Ct. 533 (2015) (“Second

Amendment right to keep and bear arms is a civil right”);

Ferguson v. Perry, 292 Ga. 666, 740 S.E.2d 598, 604 (2013)

(“this Court and other courts have said that the right to possess

firearms is indeed a ‘civil right’”); Florida Carry, Inc. v. Univ.

N. Florida, 133 So.3d 966, 983 (Fla. App. 2013) (en banc)

(Makar, J., concurring) (“It [right to keep and bear arms] is a

personal, individual liberty, entitled to protection like other

constitutional rights. Like any civil right established in the

state or federal constitutions, the legislative branch may choose

to pass laws designed to facilitate its exercise or protect against

its infringement”). See also Anders Walker, From Ballots to

Bullets: District of Columbia v. Heller and the New Civil

Rights, 69 La. L. Rev. 509, 510 (2009).

16

….” 17 Subsequently the right to bear arms for selfdefense found its way into a proposal by the

Antifederalists in the Pennsylvania ratification

convention: “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 ….” 18 Initially the Antifederalists were

unsuccessful, but their demand for a Bill of Rights

succeeded in the end. This history supports this

Court’s holding in Heller that the operative clause in

what became the Second Amendment includes the

right to bear arms for self-defense and hunting.

These purposes are now guaranteed in several state

guarantees to bear arms.

Presently the constitutions of forty-four states

guarantee a right to bear arms. Alice Marie Beard,

Gay Rights Strengthen Gun Rights, 57 So. Tex. L.

Rev. 215, 240-47 (2016). From the nineteenth to the

twenty-first century, state courts have not confined

the right to bear arms to the home. This occurred in

the pre-Heller era as well as post Heller. There are

numerous examples.

The guarantee to bear arms in Arkansas is for the

common defense, a restriction that was rejected by

the Framers of the Second Amendment. Wilson v.

State, 33 Ark. 557, 560 (1878), held that to prohibit

the citizen from wearing or carrying a war arm,

except upon his own premises or when on a journey

17 Stephen P. Halbrook, THE RIGHT TO BEAR ARMS: A

CONSTITUTIONAL RIGHT OF THE PEOPLE OR A

PRIVILEGE OF THE RULING CLASS? 169 (2021).

18 Id. at 182-83.

17

traveling through the country with baggage, or when

acting as or in aid of an officer, is an unwarranted

restriction upon his constitutional right to keep and

bear arms. Chancy Wilson was carrying a large

revolving six-shooter to kill wild hogs. The court

concluded: “If cowardly and dishonorable men

sometimes shoot unarmed men with army pistols or

guns, the evil must be prevented by the penitentiary

and gallows, and not by a general deprivation of a

constitutional privilege.”

North Carolina’s guarantee to bear arms tracks the

wording of the Second Amendment. State v. Kerner,

181 N.C. 574, 107 S.E. 222 (1921), struck down as an

infringement of the right to bear arms a local law

that prohibited the carrying of a pistol unconcealed

off one's own premises without a permit for which a

fee of $5 and a bond in the sum of $500 was

required.

In the twentieth century state courts held the right

to bear arms extends beyond the home. A West

Virginia law requiring a license and posting a bond

to carry a handgun was struck down as an

encroachment of the state guarantee to bear arms.

State ex rel. City of Princeton v. Buckner, 180 W.Va.

457, 377 S.E.2d 139 (1988). A law banning the

carrying of a club was voided as being violative of

the state guarantee to bear arms. State v. Blocker,

291 Or. 255, 630 P.2d 824 (1981). A local law on

carrying a firearm was struck down as too broad and

thus an infringement of the state guarantee to bear

arms. City of Lakewood v. Pillow, 180 Colo. 20, 501

P.2d 744 (1972) (en banc). A local law banning

carrying a firearm was struck down as violative of

18

state guarantee to bear arms. City of Las Vegas v.

Moberg, 82 N.M. 626, 485 P.2d 737 (Ct. App. 1971).

A city ordinance made it unlawful to carry a pistol

on or about the person, that is, any sort of pistol in

any sort of manner. The provision of this ordinance

as to the carry of a pistol was held to be invalid

under the state guarantee to bear arms for the

common defense. Glasscock v. City of Chattanooga,

157 Tenn. 518, 11 S.W.2d 678 (1928). A Rutland

ordinance forbade the carrying of a pistol without

the written permission of the mayor or chief of

police. The court held so far as the ordinance relates

to the carrying of pistol it is repugnant to the state

guarantee to bear arms and the laws of the state,

and it is therefore void. State v. Rosenthal, 75 Vt.

295, 55 A. 610 (1903). An 1889 territorial law

prohibited carrying a deadly weapon within limits or

confines of any city, town, or village. The court held

this law contravenes the guarantees of the Second

Amendment and Idaho’s right to bear arms. In re

Brickey, 8 Ida. 597, 70 P. 609 (1902).

In the twenty-first century, state courts held the

right to bear arms extends beyond the home. A

statute forbidding carrying or possession of a firearm

within 1,000 feet of a public park abridges the

Second Amendment right to bear arms. The law is

subject to elevated intermediate scrutiny. People v.

Chairez, 423 Ill.Dec. 69, 104 N.E.3d 1158 (Ill. 2018).

Delaware’s guarantee to keep and bear arms

"protects the right to bear arms outside the home.”

Bridgeville Rifle & Pistol Club v. Small, 176 A.3d

632 (Del. 2017). A ban on carrying firearms outside

home violates the Second Amendment. People v.

Aguilar, 377 Ill.Dec. 405, 2 N.E.3d 321 (Ill. 2013).

19

These decisions demonstrate that New York’s

discretionary licensing statute infringes upon the

Second Amendment right to “bear arms” as made

applicable to the states through the Fourteenth

Amendment. Self-defense is a constitutionally

“proper cause” for obtaining a license.

CONCLUSION

This Court has held that whether something is

convenient or not to modern government does not

affect the constitutionality of a law. 19 The right to

“bear arms” is an enumerated essential right. 20 It

was placed in the Bill of Rights to prevent

encroachment by majorities and the perceived needs

of the moment. 21 The judgment below should be

reversed.

Respectfully submitted,

Robert Dowlut

Counsel of Record

Alice Marie Beard

Robert J. Cottrol

Counsel for Amicus Curiae

19 INS v. Chadha, 462 U.S. 919 (1983).

One federal court boldly proclaimed that "there is no

constitutional right to be protected by the state against being

murdered by criminals or madmen." Bowers v. DeVito, 686

F.2d 616, 618 (7th Cir. 1982).

20

Constitution is binding at all times and under all

circumstances. Ex parte Milligan, 71 U.S. 2 (1866).

21