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.

Supreme Court briefJul 15, 2021

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No. 20-843

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------NEW YORK STATE RIFLE &

PISTOL ASSOCIATION, INC., et al.,

Petitioners,

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

---------------------------------♦--------------------------------AMICI CURIAE BRIEF OF

ITALO-AMERICAN JURISTS AND ATTORNEYS

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------SARAH GERVASE

Counsel of Record

11250 Waples Mill Road

Fairfax, VA 22030

(703) 267-1256

gervasesarah@yahoo.com

ANDREW J. MAGGIO

408 East Boston Post Road

Mamaroneck, NY 10543

(914) 835-3404

Attorneys for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE .................

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

ARGUMENT ........................................................

A. Tammany Hall and Its Governance of New

York ............................................................

Rising Fears of Italian Criminality and

Types of “Italian Crime” ............................

Action Against Armed Italians, the 1911

Sullivan Law, and the Law’s Early Enforcement ................................................... 16

Issuance of Permits Rested Solely Within

the Discretion of the NYPD ....................... 29

CONCLUSION..................................................... 32

APPENDIX .......................................................... App. 1

TABLE OF AUTHORITIES

Page

CASES

New York Trust Co. v. Eisner, 256 U.S. 345

(1921) .........................................................................2

Patsone v. Commonwealth, 232 U.S. 138 (1913) ........15

STATUTES

An Act to amend the penal law, in relation to penalty for kidnapping, 1909 N.Y. Laws ch. 246 ..........14

An Act to amend the penal law, in relation to penalty for extortion and blackmail, 1909 N.Y.

Laws ch. 368 ............................................................14

An Act to amend the penal law, in relation to the

sale and carrying of dangerous weapons, 1911

N.Y. Laws ch. 195 ....................................................27

An Act to amend the penal law, in relation to the

crime of extortion, 1911 N.Y. Laws ch. 121 .............29

An act to amend the penal law, in relation to the

crime of extortion and the punishment therefor, 1911 N.Y. Laws ch. 602 .....................................29

An Act to amend the penal law, in relation to kidnapping, 1911 N.Y. Laws ch. 625 ............................29

PERIODICALS

A Search For Knives, BUFFALO DAILY COURIER,

Mar. 5, 1888 ...............................................................9

Angelo Carbone Insane, N.Y. TIMES, Nov. 18, 1898.......25

iii

TABLE OF AUTHORITIES – Continued

Page

Arrests Here Follow Petrosino Tragedy, BROOKLYN

EAGLE, Mar. 15, 1909 ...............................................17

Arthur Warner, Amputating the Black Hand,

THE SURVEY, vol. XXII (May 1909)..........................31

Bar Hidden Weapons On Sullivan’s Plea, N.Y.

TIMES, May 11, 1911 .......................................... 22, 25

Beats the Gun Law in His Test Case, N.Y. TIMES,

Nov. 4, 1911 .............................................................30

“Big Tim” Sullivan Gives His Record, N.Y.

TIMES, Nov. 7, 1910 ..................................................20

Bullets Fly Thick in a Hoboken Riot, N.Y. TIMES,

May 6, 1909 .............................................................19

City-Wide Raid on Concealed Weapons, N.Y.

TIMES, Feb. 14, 1911 ................................................19

Concealed Pistols, N.Y. TIMES, Jan. 27, 1905 .............16

Croker in Danger, N.Y. TRIBUNE, Sept. 19, 1901 ........31

Disarming the People – Licensing Sullivan’s

Plug-Uglies, DAILY PEOPLE, Oct. 3, 1911 .................23

First Conviction under Weapon Law, N.Y. TIMES,

Sept. 28, 1911 .................................................... 25, 26

Five Years for Gang Leader, N.Y. TIMES, Oct. 7,

1911 .........................................................................26

Fostering Foreign Criminals, HARPER’S WEEKLY,

May 8, 1909 ...............................................................8

How “Big Tim” Sullivan Will Put Down Lawlessness, N.Y. TIMES, Dec. 4, 1910 .................................20

TABLE OF AUTHORITIES – Continued

Page

How to Stop ‘Black Hand’, BROOKLYN EAGLE,

July 27, 1908 ..................................................... 14, 15

Italians Flocking Home, N.Y. SUN, Aug. 25, 1884 .........9

Italians Put Blame on the Sicilians, N.Y. TIMES,

Apr. 18, 1907 ............................................................14

Judge Foster’s Acts Now Under Review, N.Y.

TIMES, May 18, 1912 ................................................27

Lives of 10,000 in Peril by the Black Hand, N.Y.

EVENING WORLD, May 26, 1908 ...............................11

Luciano Iorizzo & Salvatore Mondello, Origins

of Italian-American Criminality: From New

Orleans Through Prohibition, ITALIAN AMERICANA,

Spring 1975, Vol. 1, No. 2 ..........................................6

Many Italian Arrests, N.Y. SUN, Apr. 4, 1909 .............18

Mayor Asks About Gun Law, N.Y. TIMES, Nov. 2,

1911 .........................................................................30

New Laws In Effect Curb Black Handers, N.Y.

TIMES, Sept. 1, 1911 .................................................29

New York City in Congress, N.Y. TIMES, Oct. 4,

1902 .........................................................................20

Petrosini [sic] Martyr to the Black Hand, BROOKLYN

DAILY EAGLE, Mar. 13, 1909.....................................18

Petrosino Prisoner Known, N.Y. SUN, Mar. 17,

1909 .........................................................................18

Pistol Law Amended, N.Y. TIMES, May 23, 1913 ........28

Plant Fake Bombs to Get Revolvers, N.Y. TIMES,

June 23, 1913 ..........................................................31

TABLE OF AUTHORITIES – Continued

Page

Praise for Mr. Rockefeller, N.Y. TIMES, Jan. 26,

1908 .........................................................................24

Rules For Gun Carriers, N.Y. TIMES, Sept. 30,

1911 .........................................................................30

Second Police Raid on Armed Italians, N.Y.

TIMES, Apr. 17, 1907 ................................................17

Seized With A Bomb As Black Hand Chief, N.Y.

TIMES, Sept. 6, 1911 .................................................28

The Rossi Pistol Case, N.Y. TIMES, Sept. 29,

1911 .....................................................................26

To Deprive Police of Clubs, N.Y. TIMES, Jan. 14,

1909 .........................................................................24

Tommaso Sassone, Italy’s Criminals in the

United States, CURRENT HISTORY, vol. 15, no. 1

(Oct. 1921) ...............................................................11

Twenty Thousand New Yorkers Go Armed, N.Y.

TRIBUNE, June 21, 1903 ...........................................16

Viola Roseboro, The Italians of New York, THE

COSMOPOLITAN (Jan. 1888) ........................................7

OTHER AUTHORITIES

Tyler Anbinder, City of Dreams: The 400Year Epic History of Immigrant New York

(2017) .................................................. 4, 6, 7, 11, 13

TABLE OF AUTHORITIES – Continued

Page

Tyler Anbinder, Five Points: The 19th-Century

New York City Neighborhood That Invented

Tap Dance, Stole Elections, and Became the

World’s Most Notorious Slum (2010) ........................7

Herbert Asbury, The Gangs of New York: An Informal History of the Underworld (2008)...............32

John Foster Carr, Guide to the United States for

the Immigrant Italian (1911)..................................28

Francis L. Corrao, Shall Brooklyn Have Four

Years More of Injustice, and Unchecked Crime?

Part of the Record of the District Attorney’s

Office of Kings County (Brooklyn: 1911) ................10

Robert Cottrol & Raymond Diamond, Never Intended to be Applied to the White Population:

Firearms Regulation and Racial Disparity –

The Redeemed South’s Legacy to a National

Jurisprudence?, 70 CHI.-KENT L. REV. 1307

(1995) .........................................................................2

Richard Gambino, Blood of My Blood: The Dilemma of the Italian-Americans (2000) .............. 6, 19

Terry Golway, Machine Made: Tammany Hall

and the Creation of Modern American Politics

(2014) .........................................................................7

Alvin F. Harlow, Old Bowery Days (1931) ..................20

Lee Kennett & James LaVerne Anderson, The

Gun in America: The Origins of a National

Dilemma (1975) ................................................... 2, 24

vii

TABLE OF AUTHORITIES – Continued

Page

Edward P. Kohn, Heir to the Empire City: New

York and the Making of Theodore Roosevelt

(2014) ..................................................................... 4, 5

George P. LeBrun, It’s Time To Tell (1962)........... 21, 24

Eliot Lord et al., The Italian in America (1905) ..........9

Paul Moses, An Unlikely Union: The Love-Hate

Story of New York’s Irish and Italians (2015) ..... 10, 19

Thomas Monroe Pitkin & Francesco Cordasco,

The Black Hand: A Chapter in Ethnic

Crime .............................................13, 14, 15, 18, 28

George E. Pozzetta, The Italians of New York

City, 1890-1914 (1971) ..............................................7

Reports of the Immigr. Comm’n, vol. 36, Immigr.

and Crime (61st Congress, 3rd sess., document no. 750) ...........................................................13

Stephen Talty, The Black Hand: The Epic War

Between a Brilliant Detective and the Deadliest Secret Society in American History

(2017) ............................................................... passim

Richard F. Welch, King of the Bowery: Big Tim

Sullivan, Tammany Hall, and New York City

from the Gilded Age to the Progressive Era

(2008) ................................................................. 21, 32

M.R. Werner, Tammany Hall (1928) ............ 4, 5, 22, 23

Richard Zacks, Island of Vice: Theodore Roosevelt’s Doomed Quest to Clean Up Sin-Loving

New York (2012) ........................................................5

INTEREST OF THE AMICI CURIAE1

Amici Curiae, listed in the Appendix, are a group

of mostly Italo-American jurists and attorneys in the

New York City area who believe in the fundamental

right of the people to keep and bear arms. Amici have

spent decades working in the New York State court

systems and have seen firsthand how New York’s law

has relegated this foundational right to a privilege

available to only some in the state.

The case now before the Court challenges a law

founded on a biased suspicion of Italian immigrants

new to this country. To this day, it remains an insurmountable burden for many law-abiding citizens in

New York State who wish to exercise their right to bear

arms. Amici submit this brief in hope that it helps restore the right of self-defense to all New Yorkers that

was lost 110 years ago.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Amici wish to provide the Court some of the historical context behind the passage of New York’s

Counsel of Record is an Assistant General Counsel at the

National Rifle Association (the “NRA”) and wrote this brief in full.

The New York State Rifle & Pistol Association, Inc. is a state affiliate of the NRA. No person or organization other than the amici

or their counsel made a monetary contribution for the preparation

or submission of the brief. Both parties were timely notified and

consented to the filing of this brief.

Sullivan Law in 1911.2 Much of this history has been

lost or discussed only briefly as more than a century

has passed. Nonetheless, the original justifications for

the law remain important as this Court weighs the

constitutionality of New York’s law that restricts lawful firearms carry to only a select group. As Justice

Holmes once stated, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S.

345, 349 (1921).

The Sullivan Law was passed, in good part, as an

effort to disarm Italian immigrants, whom many believed were predominately responsible for violent crime

in New York City in the early 20th century.3 There are

always several reasons for legislation, but the historical record shows that much of the impetus for the law

came from a reaction to crime many associated with

first- and second-generation Italian immigrants. The

unlawful possession and carrying of firearms, in addition to extortion, blackmail, kidnapping, and bomb

The Sullivan Law is what is largely in place today and that

requires those who wish to carry a concealed firearm to show

“proper cause” when applying for a license.

Other resources mentioning the connection between the

Sullivan Law and the fear of Southern European immigrants include Robert Cottrol & Raymond Diamond, Never Intended to be

Applied to the White Population: Firearms Regulation and Racial

Disparity – The Redeemed South’s Legacy to a National Jurisprudence?, 70 CHI.-KENT L. REV. 1307, 1134 (1995) (“Of statewide

dimension, the Sullivan Law was aimed at New York City, where

the large foreign born population was deemed peculiarly susceptible and perhaps inclined to vice and crime.”); and Lee Kennett

& James LaVerne Anderson, The Gun in America: The Origins of

a National Dilemma 167 (1975).

throwing, were crimes the public in New York State

then linked most closely with those immigrating from

Italy.

Italian immigration and the fear of Italian crime

had the potential to disrupt the vast political machine

that controlled New York City at the time. It was the

Tammany Hall political machine in New York that ensured passage of the law and enforced it through its

control of all levels of state and New York City government. Among those areas of control was the N.Y.P.D.,

then a bailiwick of Tammany Hall, and the New York

State Legislature through the influence of the machine’s spokesman, Senator and “King of the Bowery”

Big Tim Sullivan.

This history is important not because the conditions that existed over a century ago are still present,

but because it illustrates the ineluctable danger when

the exercise of a fundamental right rests upon the discretion of a few. Disfavored groups and individuals who

are told they cannot meet New York’s “proper cause”

requirement are divested of a right others take for

granted.

---------------------------------♦---------------------------------

ARGUMENT

A. Tammany Hall and Its Governance of New

York

The Society of St. Tammany or Columbian Order

was founded in New York City in 1788 as a fraternal

organization. Over the next half century, it became the

dominant faction of the Democratic Party in the City.

The arrival of hundreds of thousands of Irish immigrants in the 1840s and 1850s transformed Tammany

into the City’s political powerhouse through the early

20th century.

Tammany leadership recognized both the potential electoral power and the hardships the new immigrants faced. Unskilled Irish immigrants often found

office work in Tammany-patronage positions and day

laborer jobs on construction projects awarded and administered by Tammany officials. Tyler Anbinder, City

of Dreams: The 400-Year Epic History of Immigrant

New York 158 (2017). Most importantly to the ongoing

needs of Tammany, young Irishmen who had proven

their loyalty by working to elect Tammany candidates

were often granted positions on the police force. Id. at

193. Some years, 85%-90% of all appointments, transfers, and promotions in the police force were recommendations by Tammany district leaders. M.R. Werner,

Tammany Hall 356-57 (1928).

The Lexow Committee, which met, ironically, at

the Tweed Courthouse, described the breadth of the

police department’s alliance with Tammany Hall. The

Committee’s 1895 report included testimony that almost all members of the force had joined Tammany

clubs and paid into Tammany coffers. The funds for

this patronage came largely from the protection money

paid to the police department from lawbreakers and

honest tradesmen alike. Edward Kohn, Heir to the

Empire City: New York and the Making of Theodore

Roosevelt 150-51 (2014). Payoffs to police, portions of

which were forwarded to Tammany, were simply the

cost of doing business in the City. Although graft had

existed for decades under Tammany, the system

reached its pinnacle under the leadership of Richard

“Boss” Croker and “Big Tim” Sullivan.

Four years later, the Mazet Investigation probing

the City’s governance found little had changed despite

the best efforts of police reformers. The investigation

detailed Big Tim Sullivan’s graft-filled relationship

with Police Chief William Devery, a former gambling

house partner of Senator Sullivan’s whom Sullivan

had elevated to Chief after Devery’s predecessor began

investigating Sullivan’s gambling hall syndicate. Werner, at 416. Although he later wrote proudly of his reform initiatives as Police Commissioner from 1895 to

1897, at the end of his term Theodore Roosevelt was

more realistic about what he had accomplished in the

face of Tammany obstructionism: “I do not object to

any amount of work and worry where I have a fair

chance to win or lose on my merits; but here at the

last, I was playing against stacked cards.”4 Letter from

Theodore Roosevelt to Henry White (Apr. 16, 1897), in

Roosevelt recognized early what he was up against. In the

1895 elections, Tammany’s candidates won every seat on the

Court of General Sessions and the State Supreme Court, thirty of

thirty-five seats in the State Assembly, and ten of twelve seats

in the State Senate. Richard Zacks, Island of Vice: Theodore

Roosevelt’s Doomed Quest to Clean Up Sin-Loving New York 179

(2012).

The Letters of Theodore Roosevelt, vol. I, 593 (Elting

Morison & John Blum eds., 1951).

Italian immigrants in New York City, mostly from

Northern Italy, numbered only about 12,000 in 1880.

By 1900, over a quarter of a million lived within the

City’s boundaries, overtaking some neighborhoods previously dominated by the Irish. By 1910, that number

had more than doubled again. Anbinder, City, at 390.

Up to 90% of Italian immigrants after 1875 came from

the abjectly poor and overwhelmingly illiterate regions

of Southern Italy and Sicily. Richard Gambino, Blood

of My Blood: The Dilemma of the Italian-Americans 3

(2d ed. 2000). And as with most immigrant groups,

more difficult years were to come. In 1910, immigrant

men from Southern Italy performing unskilled labor

worked for lower wages than did black men at the lowest levels of the economy in the City.5 Id. at 77-78.

Tammany never had the same success integrating Italian immigrants into its power structure as it

had with the Irish. For the Italians, “years of oppression and gross neglect had left the peasantry with an

almost pathological distrust of government, or more

See also Luciano Iorizzo & Salvatore Mondello, Origins of

Italian-American Criminality: From New Orleans Through Prohibition, ITALIAN AMERICANA, Spring 1975, Vol. 1, No. 2, at 230

(“Before masses of Negros began leaving the South in the twentieth century, the Italian was the black man of the North, to be

tolerated because needed, to be shunned socially, to be kept at the

bottom of the economic ladder.”)

accurately, of all power above them,”6 that led one observer to believe that Italians had “a certain temperamental indifference to the diversions of politics.”7 And

unlike the Irish, Italian immigrants were slow to naturalize and become voters. By 1910, less than 50% of

Italian immigrants had naturalized. Terry Golway,

Machine Made: Tammany Hall and the Creation of

Modern American Politics 161 (2014). One reason was

that federal law had made it more difficult to naturalize. But as of 1911, immigrants from Southern Italy

were still half as likely to naturalize as German immigrants and 25% as likely as Irish immigrants.

Anbinder, City, at 447-48.

Even worse for Tammany, when Italian newcomers did vote, they tended to defy Tammany leaders in

their districts and voted Republican. Tyler Anbinder,

Five Points: The 19th-Century New York City Neighborhood That Invented Tap Dance, Stole Elections, and Became the World’s Most Notorious Slum 438 (2010). At

least one historian has attributed this tendency for

Italians to vote Republican as Italian refusal to be

dominated by the Irish in the Tammany hierarchy as

they were in the City’s Catholic hierarchy. Id.

Italians’ reluctance to vote for Tammany candidates, or even to vote in large numbers, made them less

useful to city leaders. And while at the turn of the

George E. Pozzetta, The Italians of New York City, 18901914, at 27 (1971).

Viola Roseboro, The Italians of New York, THE COSMOPOLITAN 4 (Jan. 1888), at 402.

century Tammany began to support candidates who

were not of Irish extraction, none were Italian candidates from heavily Italian districts.8 Despite the vast

numbers of Italian immigrants in New York City at the

time, “[i]n Tammany’s cosmos, the Italians were residents of a distant planet.” Stephen Talty, The Black

Hand: The Epic War Between a Brilliant Detective and

the Deadliest Secret Society in American History 39

(2017).

B. Rising Fears of Italian Criminality and Types

of “Italian Crime”

One area that did bring Italian immigrants to the

attention of Tammany Hall was violent crime. By the

early 20th century, one national magazine based in

New York City estimated that as many as 40,000 Italian criminals had immigrated to the U.S. and had

“piled up a record of crime here during the last ten

years that is unparalleled in the history of a civilized

country in time of peace.” Fostering Foreign Criminals,

HARPER’S WEEKLY, May 8, 1909, at 7. Such an estimate

was exaggerated even though some criminals had in

fact emigrated from Italy. Nonetheless, the narrative

that Italians were predisposed to violent crime only

grew despite studies showing that the vast majority

Big Tim Sullivan’s 1909 resolution to make Columbus Day

a state holiday was a relatively low-effort exercise to win Italian

voters.

of Italian immigrants were law-abiding and no more

prone to crime than the native-born.9

Fear of Italian immigrants carrying weapons

spread the most quickly. As early as 1888, a Police Captain in Buffalo “sent consternation into the Italian colony last night in the persons of forty-two stalwart

bluecoats who were ordered to bring in all the male

Dagos that looked as if they carried knives.” Even

though 325 “swarthy-looking, jabbering foreigners”

were arrested that night, only two lawful knives were

confiscated. A Search For Knives, BUFFALO DAILY COURIER, Mar. 5, 1888, at 4. That meager harvest was

enough to make headlines, though, for as one New York

City officer had noted a few years earlier, “[w]hen an

Italian does anything it is printed in big type.” Italians

Flocking Home, N.Y. SUN, Aug. 25, 1884, at 1.

Three years later, the New York Sun featured an

article entitled “Weapons Italians Carry” illustrated

with pictures of revolvers, blackjacks, and knives. According to a police source in the article, “ninety-nine

out of every one hundred Italians arrested are armed

with some sort of deadly weapon.” Furthermore, the officer added: “The Italians that we get wouldn’t give a

cuss for an average-size revolver. They must have

something big and imposing.” An official at the Barge

Office that received new immigrants reported that

A 1903 study of official arrest records from cities with large

numbers of Italian-Americans indicated that the rate of crime

among Italian immigrants crime was similar to the rates for other

foreign-born groups and the native-born. Eliot Lord et al., The

Italian in America 209-10 (1905).

two-thirds of all male immigrants from Italy arrived

with deadly weapons. The article then spread the

alarm further, declaring that Italians were committing

a daily average of at least two shootings or stabbings

in the New York area that year. N.Y. SUN, June 28,

1891, at 27. The Sun failed to consider that many of the

“deadly weapons” Italians carried were ordinary tools

of their trades or were borne only in self-defense.

Italian immigrants and law enforcement alike

believed that authorities failed to take crime against

Italians immigrants seriously. Francis Corrao, an Assistant District Attorney in the City, had vowed to take

on the Black Hand, convinced that many Italian immigrants were leaving Brooklyn because the law was indifferent to protecting them from violence. A few years

after taking office, Carrao flared: “Murder, assault, and

robbery of Italians are looked upon by the District Attorney’s office with the most cynical indifference. . . .

Every avenue and every door was shut to me that I

might not, even in the smallest degree, aid in putting

down an Italian criminality that has outraged the people of my race.”10 With scanty police protection, immigrant Italians had no choice but to defend themselves

and to restore the good name of Italian immigrants,

forming crime-fighting organizations like the White

Hand and the Catholic Protective Society in cities

across the country. Talty, at 146-48.

Francis L. Corrao, Shall Brooklyn Have Four Years More

of Injustice, and Unchecked Crime? Part of the Record of the District Attorney’s Office of Kings County n.p. (Brooklyn: 1911), as

quoted in Moses, at 138 and Talty, at 162.

Association with organized criminal organizations

came early as well, especially with la Mano Nera, the

“Black Hand” from Sicily. The New York Times mentioned the Black Hand in more than 600 articles from

1907 to 1909. Anbinder, City, at 448. It soon became

commonplace for the press to label every crime committed by an Italian an act of the Black Hand. Furthermore, amateurs and non-Italian criminals were known

to use Black Hand symbols on written extortion attempts so that recipients would take the threats more

seriously. While some newspapers denied the presence

of any formal criminal organization, other newspapers

warned of the “ignorant, dirty, low-browned aliens”

who terrified the City as a group. Lives of 10,000 in

Peril by the Black Hand, N.Y. EVENING WORLD, May 26,

1908, at 16. But regardless of whether any large-scale

organization existed, fear of the Black Hand persisted,

even among Italian immigrants who were the most frequent victims of crimes attributed to the Black Hand.

It was the Black Hand or those claiming affiliation

with the group that to the public linked the crimes of

extortion, blackmail, kidnapping, and bombing with

Italian immigrants. One researcher made the same observations as did others across the country: “Assaults,

burglary, robbery, blackmail, extortion, carrying dangerous weapons, and other such offenses were common grounds for convictions of Italians . . . How does

it happen that the Italian nationality has become so

conspicuously identified in America with blackmail,

kidnapping, murder and bomb outrages?” Tommaso

Sassone, Italy’s Criminals in the United States, CURRENT HISTORY, vol. 15, no. 1, at 25 (Oct. 1921).

The same litany of crimes associated with Italian

immigrants was noted by the United States Immigration Commission (the Dillingham Commission), a joint

Congressional committee formed in 1907 to address

concerns over immigration. Much of the Commission’s

report was devoted to the study of criminality among

immigrant communities. Published in 1911, the highly

influential report examined data from courts in New

York and singled out Italian immigrants and the

crimes to which they appeared most prone:

Certain specific crimes of personal violence

also belong distinctively to Italian criminality.

Abduction and kidnapping in the figures from

the New York City magistrates’ courts and the

county and supreme courts of New York State

form a larger percentage of the crimes of Italians than of those of any other groups of offenders.

Of blackmail and extortion the Italians also

have the highest percentage in the four sets of

data having a sufficient number of cases to

make comparison possible . . . In all five sets

of data the Italians have the highest percentage of homicide.11

The Dillingham Commission report concluded that immigration from Southern and Eastern Europe was an unmitigated

threat to the American way of life and should be curtailed. That

curtailment started in 1917 with a federal law requiring that immigrants pass a literacy test. The Emergency Quota Act of 1921

Reports of the Immigr. Comm’n, vol. 36, Immigr. and

Crime (61st Congress, 3rd sess., document no. 750), at

19.

Bombings in particular surged in 1908, many of

which were attributed to Black Hand extortion attempts whether they were committed by Italian immigrants or not.12 Explosions were an almost daily

occurrence in Manhattan. The Italian quarter was

rocked so hard that the NYPD’s Italian Squad named

it “the Bomb Zone.” Talty, at 152. Officers inside NYPD

headquarters at 300 Mulberry Street regularly felt the

blasts as building after building around headquarters

were demolished. Id. Lloyds of London began insuring

businesses and individuals against Black Hand attacks in July of 1908. Id. at 159.

To counter the threat, Detective Joseph Petrosino

of the Italian Squad established the NYPD Bomb

Squad later that year. By the early 20th century, Italians comprised over three-quarters of all laborers on

construction sites around the City where dynamite

was used for excavation (Anbinder, City, at 396), and it

was alleged that laborers stole sticks of dynamite

(dubbed “Italian sausages”) and sold them to blackmail

gangs. Even after strict laws were passed regulating

the use and sale of dynamite, the police commissioner

and the National Origins Act of 1924 decreased immigration from

Italy and Eastern Europe by over 95% while leaving immigration

from northern Europe nearly unchanged. Anbinder, City, at 446,

465, 467.

The rash of bombings attributed to anarchists would start

a few years later. Pitkin, at 196.

reported that workmen at one construction site stole

two or three sticks of dynamite daily. Thomas Monroe

Pitkin & Francesco Cordasco, The Black Hand: A

Chapter in Ethnic Crime 33 (1977). Members of the

Bomb Squad were taught to detect explosives hidden

inside olive oil cans. Talty, at 153.

Law enforcement’s inability to stop the terror

added to the pressure for additional penalties for possessing a bomb. A group of two hundred women from

Northern Italy sent a petition to the Manhattan Coroner denouncing all Sicilians as blackmailers and dynamiters and urged immigration restrictions. Italians

Put Blame on the Sicilians, N.Y. TIMES, Apr. 18, 1907 at

8. The Brooklyn Eagle called for a life sentence for anyone convicted of possessing an explosive device of any

kind and the electric chair if that device exploded. How

to Stop “Black Hand,” BROOKLYN EAGLE, July 27, 1908,

at 2.

While the state declined to take up the Eagle’s call,

in 1909 New York began looking at all the types of

crimes it considered to be those committed most frequently by Italians. The Legislature passed laws increasing the penalties for kidnapping, extortion, and

blackmail.13 Additional laws governing those crimes

would come two years later at the same time the Legislature took up the Sullivan Law requiring a license

to possess and carry weapons capable of being concealed.

1909 N.Y. Laws ch. 246, at 435; 1909 N.Y. Laws ch. 368,

at 753-54.

For now, though, fear of Italian crime continued to

spread throughout the United States, particularly in

the Pennsylvania mining towns where thousands of

Italian immigrants had arrived as contract laborers. In

1905, overwhelmed local officials called on state police

forces to arrest 140 alleged Black Hand members believed responsible for twenty-one murders within the

past year. Pitkin, at 76. The following year, police conducted operations in half a dozen counties. Id. at 77. A

May 1907 study conducted by state officials found alleged agents of the Black Hand in almost every mining

settlement. Talty, at 94.

Pennsylvania also mobilized against what it

deemed threats to wildlife created by Italian immigrants who, in the eyes of some, brought their lax hunting discipline with them from Italy. Promoted as a

model for other states, Pennsylvania’s Immigrant Firearms Act of 1909 made it illegal for unnaturalized foreign-born residents to hunt any wildlife and, “to that

end,” made it unlawful for any alien to own or possess

a shotgun or rifle. The U.S. Supreme Court upheld the

Act against a Fourteenth Amendment discrimination

challenge brought by an unnaturalized Italian. Patsone v. Commonwealth, 232 U.S. 138 (1913). Here, the

Court wrote that generally, “a State may classify with

reference to the evil to be prevented.” Id. at 144. Nor

was the law a violation of an 1871 treaty with Italy

that guaranteed Italian citizens in the U.S. the same

rights and privileges as natives. In this case, Pennsylvania had every power to preserve wild game for its

own citizens. Id. at 146.

C. Action Against Armed Italians, the 1911 Sullivan Law, and the Law’s Early Enforcement

As of April 1902, according to a New York Tribune

expose, the vast majority of gun permits in New York

City were held by Manhattanites, and “of these the

great majority were Italians.” The number of permits

issued by the captain of the Mulberry Street station

with its large Italian immigrant population exceeded

the number of permits issued in all of Brooklyn. The

article quoted one police officer as saying “[t]here is not

one unarmed Italian in fifty.” Twenty Thousand New

Yorkers Go Armed, N.Y. TRIBUNE, June 21, 1903, at 16.

That would change the following year. In May

1903 alone, the Twenty-Ninth precinct that encompassed Little Italy cancelled half the gun permits it

had issued. Id. Permits issued by the Mulberry Street

station dropped from 175 to 35. Permits were cancelled

throughout Manhattan, though at lower rates than

were those in what were considered Italian colonies.

Moreover, fewer new permits were issued under a revised system that required a written explanation of

why the applicant wanted a permit and interviews

with both the borough’s police inspector and the Police

Commissioner who could deny applications as they

wished. Id. at 15. The New York Times endorsed further

gun laws that “would prove corrective and salutary in

a city filled with immigrants and evil communications,

floating from the shores of Italy and Austria-Hungary.”

Concealed Pistols, N.Y. TIMES, Jan. 27, 1905, at 6.

The first of several round-ups of weapons-carrying

Italians in the City took place in 1907 after two plainclothes officers were killed by a recent immigrant from

Palermo. The raids were so thorough that the City

Magistrates and police “believed that the habit now so

prevalent among the Italians of New York of carrying

revolvers, dirks, knives, and stilettos will soon be

wiped out.” Second Police Raid on Armed Italians, N.Y.

TIMES, Apr. 17, 1907, at 1.

One notorious incident amplified New Yorkers’

concerns about the criminality and undesirability of

Italian immigrants. In March 1909, Detective Joseph

Petrosino, one of the City’s first Italian-American detectives and the famed leader of Manhattan’s Italian

Squad, was shot to death on a street in Palermo while

researching the criminal backgrounds of Sicilian convicts who had recently emigrated to the United States.

According to two historians, “[t]he killing, more than

any other single happening, convinced the American

people that organized crime in America was a major

import from Italy.” Iorizzo & Mondello, supra note 5, at

219-20.

Three days after Petrosino’s assassination, the

Brooklyn Eagle declared that “the fight against the

Black Hand in the city will now be undertaken in earnest.” Arrests Here Follow Petrosino Tragedy, Brooklyn

Eagle, Mar. 15, 1909, at 2. Mass police raids of Italian

populations in many of the nation’s largest cities followed. Inspector McCafferty of the New York Police

Department sent telegrams to the leaders of law enforcement agencies across the country urging a general

roundup of Black Hand suspects. Officers in New York

City were ordered to arrest as many Sicilian suspects

in the City as possible. Petrosini [sic] Martyr to the

Black Hand, BROOKLYN DAILY EAGLE, Mar. 13, 1909, at

Only five days after Petrosino’s death, the City’s

Board of Aldermen led by “Little Tim” Sullivan, the

Tammany representative from the Bowery and a

cousin of “Big Tim” Sullivan, passed a resolution expressing its hope that Petrosino’s killers would soon

face justice. Petrosino Prisoner Known, N.Y. SUN, Mar.

17, 1909, at 5. That same day, the Board further reacted with a new ordinance requiring all weapons

sellers to record the names, addresses, and physical descriptions of those who purchased firearms or knives.

Talty, at 204-05.

The NYPD’s Italian Squad raided businesses

throughout Italian neighborhoods, arresting Italian

immigrants night after night in pool halls, dance halls,

and barbershops, and charging them generically with

disorderly conduct. Id. at 205. According to one newspaper, “[t]he raids were said to be a part of the plan to

discourage the meeting of large numbers of Italians.”

Many Italian Arrests, N.Y. SUN, Apr. 4, 1909, at 6. Dozens

of Italian immigrants were arrested in the days immediately after the assassination, though all charges

were later dropped. Raids in Brooklyn netted only a

handful of suspected Black Handers for unlawfully

carrying weapons. Pitkin, at 121. Almost 200 ItalianAmericans were arrested in Chicago during a raid in

Little Italy looking to corner anyone who looked

suspicious. As in New York City, all were soon released.

Gambino, at 286.

The mass raids and arrests further deepened hostility between Italian immigrants and law enforcement. In May 1909, two months after Petrosino’s

murder and the ongoing arrests, two Irish-American

policemen were called to an accident scene in an Italian section of Hoboken. They were met by Italian men

firing from the windows of tenements and a mob of

Italian immigrants frustrated with the months of raids

and arrests. Talty, at 206, Bullets Fly Thick in a Hoboken Riot, N.Y. TIMES, May 6, 1909, at 18. The distrust

Italians had for Irish cops that City Magistrates and

Detective Petrosino had noted earlier continued to

worsen. Paul Moses, An Unlikely Union: The Love-Hate

Story of New York’s Irish and Italians 121-22 (2015).

More raids for concealed firearms and knives in Italian

sections of the City followed in early 1911. City-Wide

Raid on Concealed Weapons, N.Y. TIMES, Feb. 14, 1911,

at 6.

The turning point came late in 1911 when State

Senator Big Tim Sullivan, known as “the political ruler

of down-town New York” made the decision to support

firearms restrictions. Sullivan had grown up just south

of Five Points and risen to power under the old rules of

Tammany Hall and its connection between vice and

City Hall. As Boss Tweed had done decades before,

Sullivan dispensed jobs, bribes, and charity to ensure

a reliable voting base. One historian concluded that

Sullivan “made politics and crime more comprehensively synonymous than even such a master such as

Tweed had been able to do.” Alvin F. Harlow, Old

Bowery Days 492 (1931). Sullivan’s corruption was so

notorious that when Sullivan ran for Congress in 1902,

the New York Times editorialized that Sullivan was

“simply not fit to be at large in a civilized community”

and that “anywhere outside a Tammany barroom it

would be supposed that Sullivan could be elected to

Congress only in a district inhabited by the very scum

of the earth.” New York City in Congress, N.Y. TIMES,

Oct. 4, 1902, at 8.

Big Tim Sullivan announced his intention to limit

gun carrying in a November 1910 campaign speech. In

the first part of his speech, Sullivan touted a law he

had passed the previous legislative session regulating

small, private banks, many of which were “operated by

men who were foreign born,” and singling out those

from Italy. “Big Tim” Sullivan Gives His Record, N.Y.

TIMES, Nov. 7, 1910, at 4. Sullivan then introduced his

plan on carrying concealed weapons in the second part

of his speech.

Sullivan promised to introduce a bill in the next

legislature to “clip the claws of the gun toter and

tough.” How “Big Tim” Sullivan Will Put Down Lawlessness, N.Y. TIMES, Dec. 4, 1910, at 3. According to

Sullivan, the current paltry fines imposed for carrying

concealed weapons were no deterrent for those below

the “Dead Line” of Fourteenth Street. The Times

agreed, editorializing that not even “the most hardened gang man, with half a dozen prison terms to his

record, would be willing to take a chance of going back

to prison simply for carrying a concealed weapon.” Id.

Others involved in the law’s passage had their

own motives. According to his autobiography, George

LeBrun, New York’s Medical Examiner, wrote the Sullivan bill and shepherded it through the Legislature.

For LeBrun, it was the murder of David Graham

Philips, a well-born novelist and muckraking journalist in January 1911 that inspired LeBrun to become

“the father of the Sullivan law.” George P. LeBrun, It’s

Time To Tell 102 (1962). LeBrun was appalled that

Philips’ killer, an accomplished musician with clear

mental illness, was able to purchase the revolver from

a pawnshop only a few hours before the shooting. Id.

at 104.

LeBrun recognized that “Sullivan’s personal reasons for wanting the law did not exactly coincide with

mine.” Id. at 106. In fact, there is no record that Sullivan ever made much mention of the Philips’ murder,

the attempted assassination of Mayor Gaynor in the

summer of 1910, or even the assassination of President

McKinley by an anarchist a decade earlier.14 Rather,

while Sullivan did on occasion mention the fate of innocent victims of gun crime, he nearly always focused

on the “thugs” in his district. And at times, his motivations were blatantly self-interested, as when he complained to LeBrun that he was often approached for

bail money or burial expenses when gangsters killed

each other. Id. at 107.

Sullivan rarely gave lengthy speeches and left no diaries

or other private papers. Welch, at 77, 93.

Sullivan continued to make his case in the Tammanycontrolled New York Legislature that his proposal

would save lives. Limiting gun carrying would, in

Sullivan’s estimation, “save more souls than all the

preachers in the city talking for the next ten years.”

Sullivan’s stated goal was to “make it so that the young

thugs in my district will get three years for carrying

dangerous weapons instead of getting a sentence in the

electric chair a year from now.” Bar Hidden Weapons

On Sullivan’s Plea, N.Y. TIMES, May 11, 1911, at 3.

Despite Sullivan’s words of beneficence, some contemporaries familiar with the workings of Tammany

Hall and Sullivan’s opportunism ascribed him far less

charitable motives. As Big Tim noted, a conviction for

carrying a weapon under the new law would result in

a long stint in state prison. One prominent journalist

and long-time student of how Tammany operated

acknowledged that same potential consequence:

Whenever a gangster who led repeaters, or an

influential brothel keeper, grew obstreperous

enough to prove inconvenient to the plans

that were made in Tammany Hall, he could

usually be found with a gun, or a gun could be

planted upon his person, and he could be sent

to the State prison under the Sullivan law for

a long enough time to keep him from being annoying.

Werner, at 506. Criminals recognized that danger soon

after the Sullivan Law was passed. Some gangsters

who had fallen out of favor with Tammany sewed their

pockets closed so guns could not be planted on them.

Associates would carry whatever guns might be

needed. Id. at 506-07.

Other contemporaries saw a similar motivation

for Sullivan’s sponsorship of the law. To Daniel De

Leon, co-founder of the Industrial Workers of the World

and the leading figure of the Labor Party of America,

the law as “engineered through the Tammany-ite Sullivan”:

[I]s a dark lantern move to place the citizens

and residents at the mercy of Sullivanic rioters, who filled to the muzzle with physical

whiskey, or with the worse inebriant of politician-and-prelate preachments, may, with the

consciousness of safety to their own hides, be

used, at a desirable juncture, to mob any “undesirable” citizen or gathering of citizens, or

institution.

Disarming the People – Licensing Sullivan’s PlugUglies, DAILY PEOPLE, Oct. 3, 1911.

Though the Plug Uglies were long gone by 1911,

Sullivan had risen to power through his connection

with the Whyos gang and still had groups of young

men who could be summoned to provide muscle at election time. Leaders of disfavored groups like De Leon’s

quickly recognized the potential of having a Tammanyled police force in charge of enforcing the new weapons

law.

There is further reason to doubt Sullivan’s magnanimity in pushing his bill. Two years earlier, Sullivan

had proposed disarming police in the City of their

nightsticks, an idea that the Times implied was an effort to make police less able to defend themselves

against the criminals Sullivan himself employed. According to the Times, “Senator Sullivan was asked

whether it was not already a felony to carry concealed

weapons. ‘Yes,’ said the Senator, but not for officers. It

is those fellows I am after.” To Deprive Police of Clubs,

N.Y. TIMES, Jan. 14, 1909, at 1.

Regardless of Sullivan’s motivations, the Sullivan

Law easily passed the Senate and Assembly with opposition from only a handful of upstate Republicans. It

helped that LeBrun had assembled a list of noteworthy

citizens in the New York City area who supported the

Law. LeBrun, at 107. Most prominent was John D.

Rockefeller, whom Sullivan introduced to the Senate as

a “social acquaintance” and who in 1908 was cheered

for dismissing all the Italians working at his Westchester County estate and hiring non-Italian locals. Praise

for Mr. Rockefeller, N.Y. TIMES, Jan. 26, 1908. That the

law “would strike hardest at the foreign-born element”

was appealing across the state. Kennett & Anderson,

at 177.

It may not have been coincidental that an Italian

was the first man convicted of violating the Sullivan

Act. Sentenced only three weeks after the Sullivan

Law went into effect, Marino Rossi was arrested for

carrying a .38 revolver while in New York City on his

way to New Haven for work. At sentencing before the

Court of General Sessions, Rossi explained that he was

carrying the gun in fear of the Black Hand and that his

friends had advised him to carry the gun in New York

City. Rossi pled that “[h]e had no intention of using it

wrongfully, and he was an honest working man and desired to know why it was that Black Handers were not

arrested for carrying guns as well as law-abiding people.” First Conviction under Weapon Law, N.Y. TIMES,

Sep. 28, 1911, at 5.

During sentencing, Judge Warren Foster, one of

the most noteworthy proponents of the Sullivan Law15

and President of the Wyandot Club 24th District Tammany Headquarters, lectured Rossi on the nature and

proclivities of his countrymen.16 The New York Times

chose to quote Judge Foster’s remarks extensively:

You say you have had this gun for two years,

and that it was the custom of yourself as well

as your countrymen to carry guns. You say you

did not realize that you were breaking the law

in so doing.

It is unfortunate that this is the custom with

you and your kind, and that fact, combined

Judge Foster was one of the prominent citizens Sullivan

had touted as supporting the bill when it was introduced. Bar

Hidden Weapons On Sullivan’s Plea, N.Y. TIMES, May 11, 1911,

at 3.

Judge Foster was not the first judge to lecture Italian immigrants on their purported propensity for crime. In 1898, a State

Supreme Court Justice who also served as the Grand Sachem of

Tammany Hall told Angelo Carbone that his conviction for murder “should be a warning to many of [Carbone’s] countrymen who

were too prone to commit crimes of that sort.” Carbone spent

months on Sing Sing’s death row even after he was proven innocent. Angelo Carbone Insane, N.Y. TIMES, Nov. 18, 1898, at 5.

with your irascible nature, furnishes much of

the criminal business in this country. . . .

I and my colleagues on the bench intend to

stamp out this habit, and with this end in

view it is our object to let the community know

that the violators of the Sullivan law are going to be severely punished.

Id. Judge Foster sentenced Rossi to a year in Sing Sing

despite Rossi’s good record. The New York Times applauded the sentence and admonition to the “hotheaded” Italians, noting that “[t]he Judge’s warning to

the Italian community was timely and exemplary.” The

Rossi Pistol Case, N.Y. TIMES, Sept. 29, 1911, at 8.

Not all defendants needed a warning. Also up for

sentencing that same day by Judge Foster for carrying

a gun without a permit was night watchman Gustav

Kessler. Kessler explained that he, like Rossi, carried

a revolver “for protection against gangsters” because

he worked late in a dangerous part of the City, but “did

not get a permit because he did not feel that he could

spare $10 of his small wages to carry a $5 revolver.” Id.

While noting that Kessler should receive severe punishment, Judge Foster gave no lecture about Kessler’s

countrymen and any bad habits of those of his nationality. And a few days later, Judge Foster gave Kessler

a suspended sentence because of Kessler’s “good record.”17 Five Years for Gang Leader, N.Y. TIMES, Oct. 7,

1911, at 22

Judge Foster was investigated the following year by the

Commissioner of Accounts and the Grievance Committee of the

Another key provision of the new Sullivan Law

made it a felony for any alien to have a firearm or

other dangerous or deadly weapon in public.18 Gino

Speranza, legal counsel to the Italian Consulate General in New York and an attorney for the Protection of

Italian Immigrants, quickly flagged that provision

as discriminatory against Italians and a violation

of the Italo-American Treaty of Commerce’s nondiscrimination provision. Nonetheless, Speranza advised that objecting would hurt relations with American authorities: “Public opinion has been shocked by

the number of shootings by Italians in this City and

State and by the number of deadly weapons unlawfully

carried by Italians.” Therefore, “any judicial proceedings that might be brought to nullify the law” would

reflect that sentiment. Gino C. Speranza to Royal Consul

General of Italy, New York (Aug. 29, 1911), Speranza

Papers.

Four days after the Sullivan Law went into effect, a “shrewd, narrow-eyed Italian” named Guiseppe

Costabile was arrested for carrying a bomb under his

Bar Association for giving an unreasonably light sentence to a

bank executive convicted of forgery. Key evidence was a letter

written by Sullivan asking that Judge Foster give the banker leniency because Sullivan was “deeply interested” in him. Judge

Foster’s Acts Now Under Review, N.Y. TIMES, May 18, 1912, at 24.

Although Sullivan had no known connection with Rossi, Kessler,

or other defendants in Sullivan Law cases, Sullivan knew who he

could contact and had exchanged views with Judge Foster on the

goals of the Sullivan Law.

1911 N.Y. Laws ch. 195, § 2, at 443. A 1905 law had criminalized the same conduct but was silent on its punishment. 1905

N.Y. Laws ch. 92, § 410, at 129.

coat. Seized With A Bomb As Black Hand Chief; Costabile Made Blackmail and Explosions as Paying Business, the Police Believe; Held Under New Gun Law, N.Y.

TIMES, Sept. 6, 1911, at 3. Rather than arguing the discrimination angle of the alien provision, Costabile’s

counsel disputed that the bomb met the law’s definition of a “dangerous or deadly weapon.” Pitkin, at 170.

It did, of course, and Costabile was convicted and sentenced to a maximum of seven years. New York State’s

law would be amended in 1913 to clarify that it was a

felony to possess a bomb. Pistol Law Amended, N.Y.

TIMES, May 23, 1913, at 9.

Word of the new Sullivan Law got out quickly to

Italians arriving to the United States. Soon after the

law was passed, influential lecturer and promoter of

the Americanization of immigrants John Foster Carr

published a pamphlet for distribution to those arriving

at Ellis Island. The pamphlet contained information

useful to immigrants from all countries, including tips

on travelling, using the mail, and finding work. John

Foster Carr, Guide to the United States for the Immigrant Italian (1911).

Perhaps most importantly for some newcomers

from Italy, Carr’s pamphlet included a summary of the

Sullivan Law’s weapons provisions and the laws prohibiting blackmail and threatening letters. Id. at 3435. Carr urged the newcomers: “Italians are too ready

to have recourse to violence in quarrels. If this habit

could be given up, Italian immigrants would at once

find themselves more welcome in America; for this is

the one thing that that makes them distrusted.” Id. at

71. And to make sure they didn’t miss it, Carr advised

Italian immigrants in bold, large font: “Throw away all

weapons you may have.” Id.

Carr was referring to not only the Sullivan Law’s

weapons restrictions, but to the new laws governing

extortion and kidnapping that the Legislature had

passed during the same session and that went into

effect on the same day as the weapons law. New York

broadened its extortion law to include both oral and

written threats and further increased the crime’s punishment.19 One month later, the Legislature expanded

the definition of kidnapping and increased its penalty.20

The New York Times linked all three new statutes –

the Sullivan Law and the extortion and kidnapping

statutes – as part of a single legislative effort against

the crimes the Times had spent years associating with

Italian immigrants. New Laws In Effect Curb Black

Handers; Penalties Raised for Kidnapping and Extortion, and Carrying a Weapon is a Crime, N.Y. TIMES,

Sept. 1, 1911, at 5.

D. Issuance of Permits Rested Solely Within the

Discretion of the NYPD

The first question that arose under the new law

was what procedure would be used to assess gun permit applications. The statute itself was silent on the

application procedure and the criteria for receiving a

1911 N.Y. Laws ch. 121, at 183; 1911 N.Y. Laws ch. 602,

at 1368-69.

1911 N.Y. Laws ch. 625, at 1420-21.

license. Weeks after the Sullivan Law went into effect,

the Board of Magistrates decided that applicants for

carry permits would be required to furnish three character references and an affidavit giving their reasons

for wanting to carry a gun. The Magistrates agreed not

to issue permits until the references were investigated

and the magistrates were convinced that a carry permit was “necessary to the applicant’s wellbeing.” Rules

For Gun Carriers, N.Y. TIMES, Sept. 30, 1911, at 7.

Regardless of the procedure used, however, the

even more important question of who had permitting

authority quickly arose. In late October 1911, Mayor

Gaynor filed a former inquiry with the City’s Corporation Counsel asking for clarification on whether the

City’s Charter and a local ordinance reserved to the

Police Commissioner sole discretion on whether to issue permits. Mayor Gaynor, the two Chief Magistrates

in the City, and the Police Commissioner had raised

concerns that the twenty-five city magistrates “may

have various degrees of discretion or indiscretion,” and

“may be of wrongdoing in the issuing of such permits.”

Mayor Asks About Gun Law; Can’t Understand Why

Magistrates Issue So Many Permits, N.Y. TIMES, Nov. 2,

1911, at 7.

The decision of Corporation Counsel was clear

that in New York City, only the Police Commissioner

had the power to issue permits. Beats the Gun Law in

His Test Case, N.Y. TIMES, Nov. 4, 1911, at 8. Under the

Counsel’s view, Police Magistrates in the City who had

granted most of the permits until then had no jurisdiction to do so. Going forward, it would be the Police

Commissioner who had a monopoly on issuing permits.

In a time when “Sullivan’s word is law at Police Headquarters,” Croker in Danger, N.Y. TRIBUNE, Sept. 19,

1901, at 1, those not in favor with Tammany would

have no recourse if denied permits.

This plenary discretion given the Police Commissioner likely dissuaded many Italian immigrants from

even applying for carry permits.21 Not only had the

NYPD cancelled the permits of law-abiding Italian residents and conducted mass raids of Italian neighborhoods in the recent past, but many Italian immigrants

saw the entire system – police, judges, and juries – as

biased, indifferent to the crimes committed against

them, and instituted to favor those with Tammany connections. Such thoughts were not unreasonable given

that as late as 1909, there were only about 50 officers

of Italian heritage out of a police force numbering

10,000. Arthur Warner, Amputating the Black Hand,

THE SURVEY, vol. XXII, at 166 (May 1909).

Fear that that law would be selectively enforced

were soon realized when Jack Zelig, head of the Eastman Gang that dominated illegal activity in the Jewish quarter of the Lower East Side, was charged with

That is not to say that some didn’t try. In 1913, after a

series of loud explosions outside a tenement house on Elizabeth

Street, a rush of Italians came into the police station asking for

carry permits because of fears of the Black Hand. Police determined that the explosions were caused by fireworks thrown by

gang members trying to create sufficient reason to be granted permits. Plant Fake Bombs to Get Revolvers; Gangsters Use Giant

Firecrackers in an Effort to Obtain Permits to Carry Arms, N.Y.

TIMES, June 23, 1913, at 4.

robbery and carrying a concealed weapon in late 1911.

The robbery charge collapsed, “and the gangster’s political connections quickly procured the dismissal of

the charge of carrying concealed weapons.” Asbury, at

308. Italians of the Lower East Side must have questioned whether they would be as fortunate if similarly

charged. It was well known at the time that, like police

positions, judgeships in the City were reserved for

those with Tammany connections and those who had

made sizeable contributions to Tammany’s coffers.

Welch, at 105-06.

---------------------------------♦---------------------------------

CONCLUSION

Amici are thankful that times have changed, and

we are deeply grateful that our grandparents and

great-grandparents came to a nation whose Founding

Fathers guaranteed the right to keep and bear arms in

our national Constitution. We ask that the Court find

New York’s discretionary permitting law in violation of

the Second Amendment so that all law-abiding Americans, whatever their last names and circumstances,

may exercise this fundamental right.

Respectfully submitted,

SARAH GERVASE

Counsel of Record

11250 Waples Mill Road

Fairfax, VA 22030

(703) 267-1256

gervasesarah@yahoo.com

ANDREW J. MAGGIO

408 East Boston Post Road

Mamaroneck, NY 10543

(914) 835-3404

Attorneys for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.