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 16, 2021

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No. 20-843

In the Supreme Court of

the United States

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., ET AL.,

Petitioners

KEVIN J. BRUEN, ET AL.,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR AMICUS CURIAE NATIONAL

AFRICAN AMERICAN GUN ASSOCIATION, INC.

IN SUPPORT OF PETITIONERS

STEPHEN P. HALBROOK*

3925 Chain Bridge Road

Suite 403

Fairfax, VA 22030

(703) 352-7276

protell@aol.com

*Counsel of Record

NEZIDA S. DAVIS

Davis Bakari Law LLC

2915 Pleasant Ridge Dr.

Decatur, GA 30034

(404) 771-1832

nsdavis@davisbakarilaw.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the State’s denial of petitioners’

applications for concealed-carry licenses for

self-defense violated the Second Amendment.

TABLE OF CONTENTS

Page

QUESTION PRESENTED

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

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

STATEMENT OF INTEREST

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

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

ARGUMENT

............................. 4

I. The Historical Exclusion of African

Americans from Exercise of the Right

to Bear Arms by Total Bans or by

Discretionary Licensing Laws Reflected

Their Status as Slaves or Non-citizens . . . . . . . . . . 4

II. The Right to Bear Arms, Like that

of Other Bill of Rights Guarantees,

Is Inherent in “The People” . . . . . . . . . . . . . . . . . . . 11

III. The Fourteenth Amendment Was

Understood to Guarantee the Right to

Bear Arms from State Violation Through

Arbitrary Licensing Restrictions . . . . . . . . . . . . . . 18

iii

A. Protecting the Right of the People

at Large, Particularly the Freedmen,

to Carry Arms Was a Primary Objective

of the Fourteenth Amendment . . . . . . . . . . . . . . . . 18

B. The Right to Bear Arms Was Understood

as Protected by the Civil Rights Act of 1871 . . . . . 24

IV. Discretionary Licensing Facilitated

Jim Crow Restrictions . . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

TABLE OF AUTHORITIES

CASES

Page

Aldridge v. Commonwealth,

2 Va. 447 (Gen. Ct. 1824) . . . . . . . . . . . . . . . . . . . . . 5

Bliss v. Commonwealth,

2 Litt. 90 (Ky. 1822) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Cooper v. Savannah,

4 Ga. 72 (1848) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . 12, 13

Harman v. Forssenius,

380 U.S. 528 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . 30

Kachalsky v. County of Westchester,

701 F.3d 81 (2nd Cir. 2012),

cert. denied, 569 U.S. 918 (2013) . . . . . . . . . . . . . . 34

McDonald v. City of Chicago,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . . . 19, 24

Nunn v. State,

1 Ga. 243 (1846) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Patsy v. Board of Regents,

457 U.S. 496 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 25

Scott v. Sanford,

60 U.S. (19 How.) 393 (1857) . . . . . . . . . . . . . . 10, 17

Simpson v. State,

13 Tenn. 356 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State v. Allmond,

7 Del. 612 (1856) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Huntley,

25 N.C. (3 Ired.) 418 (1843) . . . . . . . . . . . . . . . . . . . 10

State v. Newsom,

27 N.C. 250 (1844) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Reid,

1 Ala. 612 (1840) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Sutherland v. Commonwealth,

109 Va. 834, 65 S.E. 15 (1909) . . . . . . . . . . . . . . . . 29

Waters v. State,

1 Gill 302 (Md. 1843) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Watson v. Stone,

148 Fla. 516, 4 So. 2d 700 (1941) . . . . . . . . . . . . . . 28

CONSTITUTIONS

U.S. Const., Amend. I . . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const., Amend. II . . . . . . . . . . . . . . . . . . passim

U.S. Const., Amend. IV . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const., Amend. XIII . . . . . . . . . . . . . . . . . . . . 11

U.S. Const., Amend. XIV . . . . . . . . . . . . . . . . passim

Ala. Const., Art. I, § 23 (1819) . . . . . . . . . . . . . . . . . 7

Ark. Const., Art. II, § 21 (1836) . . . . . . . . . . . . . . . . 8

Fla. Const., Art. I, § 21(1838) . . . . . . . . . . . . . . . . . . 8

Ky. Const., Art. XII, § 23 (1792) . . . . . . . . . . . . . . . . 6

Massachusetts Declaration of Rights,

Article 1 (1780) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Massachusetts Declaration of Rights,

Article 17 (1780) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

N.C. Dec. of Rights, Art. XVII (1776) . . . . . . . . . . . . 9

N.H. Bill of Rights, §§ I & II (1783) . . . . . . . . . . . . 15

vii

Pa. Declaration of Rights, Art. XIII (1776) . . . . . . 13

Tenn. Const., Art. XI, § 26 (1796) . . . . . . . . . . . . . . . 8

Tenn. Const., Art. I, § 26 (1834) . . . . . . . . . . . . . . . . 8

Va. Const., Art. II, § 20 (1902) . . . . . . . . . . . . . . . . 30

Vt. Constitution, Art. I, § 1 (1777) . . . . . . . . . . . . . 14

STATUTES

Civil Rights Act, 14 Stat. 27 (1866) . . . . . . . 3, 20, 23

Civil Rights Act, 17 Stat. 13 (1871) . . . . . . . 3, 24, 26

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Freedmen’s Bureau Act,

14 Stat. 173 (1866) . . . . . . . . . . . . . . . . . . . . 3, 20, 23

1833 Ga. Laws 226, 228 . . . . . . . . . . . . . . . . . . . . . . 9

1893 Fla. Laws 71-72 . . . . . . . . . . . . . . . . . . . . . . . 28

Acts 1741, c. 24, in 1 Statute Laws

of the State of Tennessee of a Public

& General Nature, 314 (1831) . . . . . . . . . . . . . . . . . 8

viii

Ala. Code 1975 § 13A-11-75(a)(1)a . . . . . . . . . . . . . 34

Ala. Code 1975 § 13A-11-75(a)(1)d . . . . . . . . . . . . . 34

An Act for the Gradual

Abolition of Slavery (Pa. 1780) . . . . . . . . . . . . . . . . 13

Certain Offenses of Freedmen,

1865 Miss. Laws p. 165, § 1 . . . . . . . . . . . . . . . . . . 19

Ch. 111, §§ 7 & 8, 1 Va. Code 423 (1819) . . . . . . . . . 5

Ch. 174, §§ 5& 6 (1798), in 2 Digest

of the Statute Law of Kentucky 1150 (1822) . . . . 6, 7

Ch. 176, § 1, 8 Laws of the

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

Ch. 258, 1926 Va. Acts 285 . . . . . . . . . . . . . . . . . . . 29

Ch. 86, § II (1806), in 3 Laws of Md. 297 (1811) . . . 7

Digest of the Laws of

the State of Ala. 391-92 (1833) . . . . . . . . . . . . . . . . . 8

S.C. Stat., No. 4730, § XIII, 250 (1865) . . . . . . . . . 19

Uniform Firearms Act, Acts 1936,

Ex. Sess., No. 82, § 5, at 51 . . . . . . . . . . . . . . . . . . . 33

Va. Code, tit. 54, ch. 196, § 7 (1849) . . . . . . . . . . . . . 6

1 W.&M., Sess. 1, c. 15 §4 (1689) . . . . . . . . . . . . . . 12

1 W. & M., Sess. 2, c.2, (1689) . . . . . . . . . . . . . . . . . 12

LEGISLATIVE MATERIALS

Cong. Globe, 39th Cong.,

1st Sess. (1866) . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Cong. Globe, 39th Cong., 2d Sess. (1866) . . . . . . . . 23

Cong. Globe, 42d Cong., 1st Sess. (1871) . . . . . . . . 25

2 Documentary History of the Ratification

of the Constitution (1976) . . . . . . . . . . . . . . . . . . . . 14

6 Documentary History of the

Ratification of the Constitution (2000) . . . . . . . . . . 15

18 Documentary History of the

Ratification of the Constitution (1995) . . . . . . . 15, 16

1 Elliot, Jonathon, ed., Debates in the Several

State Conventions (1836) . . . . . . . . . . . . . . . . . . . . 16

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

39th Cong., 1st Sess. 20 (1866) . . . . . . . . . . . . . . . . 22

Ex. Doc. No. 268, 42nd Cong., 2d Sess. 2 (1872) . . 26

Fla. Sen. J. 13 (1866) . . . . . . . . . . . . . . . . . . . . . . . . 22

Report of the Joint Committee on

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

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

1 Report of the Joint Select Committee to Inquire

into the Condition of Affairs in the Late

Insurrectionary States (1872) . . . . . . . . . . . . . . . . . 26

OTHER AUTHORITIES

Anderson, Carol, The Second: Race and Guns

in a Fatally Unequal America 32 (2021) . . . . . 11, 12

Bogus, Carl, “The Hidden History of the Second

Amendment,” 31 U.C. Davis L. Rev. 309 (1998) . . 11

“Carrying Concealed Weapons,”

15 Virginia Law Register 391 (1909) . . . . . . . . . . . 29

Cobb, Charles Jr., This Nonviolent Stuff’ll

Get You Killed: How Guns Made the

Civil Rights Movement Possible (2014) . . . . . . 30, 33

2 Douglass, Frederick,

Life and Writings 201 (1950) . . . . . . . . . . . . . . . . . 17

Ferron, Donald, Notes on MIA

Executive Board Meeting (Feb. 2, 1956) . . . . . . . . 32

“Frederick Douglass on the American Crisis,”

Newcastle Weekly Courant, May 26, 1865, at 6 . . 18

4 The Frederick Douglass Papers 84 (1991) . . . . . 18

Halbrook, Stephen, Freedmen, the

Fourteenth Amendment, and the

Right to Bear Arms (1998) . . . . . . . . . . . . . . . . . . . 24

Halbrook, Stephen, The Right to Bear Arms:

A Constitutional Right of the People or a

Privilege of the Ruling Class? (2021) . . . . . . . . . . . 4

Holmes, George,

Wages of Farm Labor (USDA 1912) . . . . . . . . . . . 28

Johnson, Nicholas, Negroes and the Gun:

The Black Tradition of Arms (2014) . . . . . . . . . 30, 31

Jones, Martha, Birthright Citizens:

A History Of Race and Rights in

Antebellum America (2018) . . . . . . . . . . . . . . . . . . . 7

Loyal Georgian, Feb. 3, 1866, at 1 . . . . . . . . . . . . . 20

xii

“Negro Leader Fails to Get Pistol Permit,”

Montgomery Advertiser, Feb. 4, 1956, at 3B . . 31, 32

New York Times, Oct. 26, 1866, at 2 . . . . . . . . . . . 23

Notes for Speech in Congress, June 8, 1789,

12 Papers of James Madison (1979) . . . . . . . . . . . . 12

2 Proceedings of the Black State

Conventions, 1840-1865 (1980) . . . . . . . . . . . . . . . . 19

Shofner, Jerrell, Nor Is It Over Yet:

Florida in the Era of Reconstruction,

1863-1877 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Spooner, Lysander,

The Unconstitutionality Of Slavery (1860) . . . . . . 17

tenBroek, Jacobus, Equal Under Law (1965) . . . . 17

Tiffany, Joel, A Treatise on the

Unconstitutionality of Slavery (1849) . . . . . . . . . . 17

Tucker, St. George,

Blackstone’s Commentaries (1803) . . . . . . . . . . . . . 6

Tucker, St. George, A Dissertation on

Slavery: With a Proposal for the Gradual

Abolition of It, in the State of Virginia (1796) . . . . . 5

xiii

Vandiver, Margaret,

Lethal Punishment: Lynchings &

Legal Executions in the South (2006) . . . . . . . . . . 27

Wallace, John,

Carpet Bag Rule in Florida (1885) . . . . . . . . . . . . 22

Wells, Ida, Southern Horrors:

Lynch Law in All its Phases (1892) . . . . . . . . . . . . 27

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

in Proceedings of the National Conference

of Charities and Correction (1908) . . . . . . . . . . . . 30

Wright, George, Racial Violence in Kentucky

1865-1940: Lynchings, Mob Rule & “Legal

Lynchings” (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Zilversmit, Arthur, The First

Emancipation: The Abolition of Slavery

in the North (1967) . . . . . . . . . . . . . . . . 13, 14, 15, 16

STATEMENT OF INTEREST

OF AMICUS CURIAE

Amicus curiae National African American Gun

Association, Inc. (NAAGA) is a nonprofit association

with headquarters in Griffin, Georgia, and organized

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

was founded in 2015 to defend the Second Amendment

rights of members of the African American community.

NAAGA has 127 chapters with over 39,000 members in

39 states and the District of Columbia.

NAAGA’s mission is to establish a fellowship by

educating on the rich legacy of gun ownership by

African Americans, offering training that supports safe

gun use for self defense and sportsmanship, and

advocating for the inalienable right to self defense for

African Americans. Its goal is to have every African

American introduced to firearm use for home

protection, competitive shooting, and outdoor

recreational activities. NAAGA welcomes people of all

religious, social, and racial perspectives, including

African American members of law enforcement and

active/retired military.

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

part nor did such counsel or any party make a monetary

contribution to fund the preparation or submission of this brief.

No person other than this amicus curiae, its members, or its

counsel made such a monetary contribution. Petitioners gave

blanket consent for the filing of amicus curiae briefs in this case,

and Respondents gave consent for the filing of this brief.

NAAGA activities include individual and group

instruction in firearm safety and marksmanship,

target shooting at various ranges, and participation in

firearm training for sport and lawful self-defense. As

a result of the types of laws at issue in this case,

members who are residents of New York or of other

states with similar restrictions are deprived of the

exercise of their Second Amendment rights to bear

arms and would be subject to draconian criminal

penalties should they do so.

NAAGA’s interest in this case stems in part

from the fact that the Second Amendment right to bear

arms was denied to African Americans under the

antebellum Slave Codes, the post-Civil War Black

Codes, and the Jim Crow laws that persisted into the

twentieth century. Such laws often included arbitrary

prohibitions on the carrying of firearms with parallels

to New York’s current law. Such laws invariably

discriminate against the poor and minorities. NAAGA

will bring before the Court matter not brought to its

attention by the parties.

SUMMARY OF ARGUMENT

New York’s prohibition on carrying a handgun,

and its refusal to make carry licenses available to all

law-abiding citizens, violates the right of the people to

bear arms protected by the Second Amendment.

During the colonial, founding, and early republic

periods, slaves and even free blacks, particularly in the

southern states, were either barred from carrying a

firearm at all or were required to obtain a license to do

so, which was subject to the discretion of a government

official. African Americans were not considered as

among “the people” with the “right” to “bear arms.”

Exclusion of African Americans from the rights

of “the people” in the Second Amendment and other

Bill of Rights guarantees was in conflict with the

explicit text. The argument has been made that the

Second Amendment was adopted to protect slavery.

But the defect was not in recognizing the rights of

white Americans, but was in not recognizing the rights

of black Americans. The impetus for recognition of the

right to bear arms came from the Northern states,

which had abolished or were in the process of

abolishing slavery.

After the Civil War, the southern states enacted

the Black Codes, which prohibited African Americans

from bearing arms unless they obtained a license,

which an official had the discretion to grant or

withhold. No such requirement existed for a citizen to

bear arms.

Congress sought to rectify this by protecting the

right of all persons to bear arms in the Civil Rights Act

and Freedmen’s Bureau Act of 1866. The Fourteenth

Amendment was understood to guarantee the right to

carry arms from state violation through arbitrary

licensing restrictions. The right to bear arms was

further protected by the Civil Rights Act of 1871. But

restrictive licensing continued in the Jim Crow era.

Rev. Martin Luther King, Jr., was himself denied a

carry license under a discretionary issuance law.

New York’s discretionary licensing scheme is

within a similar legacy as the Black Codes and Jim

Crow regimes that prohibited the carrying of firearms

by African Americans without a license subject to the

discretion of the licensing authority. The difference is

that, instead of discriminating only against black

people, it deprives the people at large of the right to

bear arms and bestows the privilege on a tiny subset of

“the people.”

ARGUMENT

I. The Historical Exclusion of African Americans from

Exercise of the Right to Bear Arms by Total Bans or

by Discretionary Licensing Laws Reflected Their

Status as Slaves or Non-citizens

In the colonial, founding, and early republic

periods, Americans were recognized as having the

right peaceably to bear or carry arms in public. The

only exception was the slave codes that prohibited

slaves and, in some states, free blacks from bearing

arms without a license that government authorities

had discretion to grant or deny. See Stephen P.

Halbrook, The Right to Bear Arms: A Constitutional

Right of the People or a Privilege of the Ruling Class?

204-63 (2021).

Slaves were deprived of all of the rights that

would be set forth in the Bill of Rights. The Second

Amendment was not unique in that regard. St. George

Tucker summarized their plight thus:

To go abroad without a written

permission; to keep or carry a gun, or

other weapon; to utter any seditious

speech; to be present at any unlawful

assembly of slaves; to lift the hand in

opposition to a white person, unless

wantonly assaulted, are all offences

punishable by whipping.

St. George Tucker, A Dissertation on Slavery: With a

Proposal for the Gradual Abolition of It, in the State of

Virginia 65 (1796).

Virginia law provided: “No free negro or

mulatto, shall be suffered to keep or carry any firelock

of any kind, any military weapon, or any powder or

lead, without first obtaining a license from the court of

the county or corporation in which he resides . . . .” Ch.

111, §§ 7 & 8, 1 Va. Code 423 (1819).

As a Virginia court held, among the “numerous

restrictions imposed on this class of people [free

blacks] in our Statute Book, many of which are

inconsistent with the letter and spirit of the

Constitution, both of this State and of the United

States,” was the restriction “upon their right to bear

arms.” Aldridge v. Commonwealth, 2 Va. 447, 449

(Gen. Ct. 1824).

The contrast with free citizens was stark.

Calling the Second Amendment “the true palladium of

liberty,” St. George Tucker wrote: “The right of self

defence is the first law of nature . . . . Wherever . . . the

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

colour or pretext whatsoever, prohibited, liberty, if not

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

St. George Tucker, Blackstone’s Commentaries, App.,

300 (1803).

Virginia’s only restriction on free citizens was

not enacted until 1838, and it related just to the

manner of bearing arms: “If a free person, habitually,

carry about his person hid from common observation,

any pistol, . . . he shall be fined fifty dollars.” Va.

Code, tit. 54, ch. 196, § 7 (1849).

Other southern states recognized the right to

carry arms by free citizens subject to restrictions on

concealed carry, and either banned carry by African

Americans or subjected it to discretionary licensing.

The Kentucky Constitution provided: “That the right

of the citizens to bear arms in defense of themselves

and the State shall not be questioned.” Ky. Const.,

Art. XII, § 23 (1792). Its restriction on concealed carry

was declared violative of that right. Bliss v.

Commonwealth, 2 Litt. 90, 92 (Ky. 1822).

However, Kentucky law provided that “[n]o

negro, mulatto, or Indian, whatsoever, shall keep or

carry any gun,” except that “every free negro, mulatto

or Indian, being a house-keeper, may be permitted to

keep one gun,” and “all negroes, mulattoes and

Indians, bond or free, living at any frontier plantation,

may be permitted to keep and use guns . . . by license

from a justice of the peace . . . .” Ch. 174, §§ 5& 6

(1798), in 2 Digest of the Statute Law of Kentucky

1150 (1822).

Maryland made it unlawful “for any free negro

or mulatto to go at large with any gun, or other

offensive weapon . . . .” Ch. 86, § II (1806), in 3 Laws

of Md. 297 (1811). However, this did not “prevent any

free negro or mulatto from carrying a gun” if he had “a

certificate from a justice of the peace, that he is an

orderly and peaceable person . . . .” Id.

The Court of Appeals of Maryland described

“free negroes” as being treated as “a vicious or

dangerous population,” as exemplified by laws “to

prevent their migration to this State; to make it

unlawful for them to bear arms; to guard even their

religious assemblages with peculiar watchfulness.”

Waters v. State, 1 Gill 302, 309 (Md. 1843).

Some free blacks obtained both permits to travel

and gun licenses. “As they traveled with a permit or

carried a licensed gun, they were that much closer to

citizenship.” Martha S. Jones, Birthright Citizens: A

History Of Race and Rights in Antebellum America

106-07 (2018).

Alabama’s bill of rights declared: “Every citizen

has a right to bear arms, in defence of himself and the

State.” Ala. Const., Art. I, § 23 (1819). A concealed

weapon ban was upheld because open carry was

allowed, and the court cautioned: “A statute which,

under the pretence of regulating, amounts to a

destruction of the right, or which requires arms to be

so borne as to render them wholly useless for the

purpose of defence, would be clearly unconstitutional.”

State v. Reid, 1 Ala. 612, 616-17 (1840).

Alabama provided that “no slave shall keep or

carry any gun,” but added that “any justice of the

peace may grant . . . permission in writing to any

slave, on application of his master or overseer, to carry

or use a gun and ammunition within the limits of said

master’s or owner’s plantation . . . .” Digest of the

Laws of the State of Ala. 391-92 (1833).

Tennessee’s first constitution declared: “That

the freemen of this State have a right to keep and to

bear arms for their common defence.” Tenn. Const.,

Art. XI, § 26 (1796). “[S]o solemn an instrument hath

said the people may carry arms . . . .” Simpson v.

State, 13 Tenn. 356, 360 (1833).

By contrast, Tennessee law provided that “[n]o

slave shall go armed with gun, sword, club or other

weapon” without a certificate from the county court.

Acts 1741, c. 24, in 1 Statute Laws of the State of

Tennessee of a Public & General Nature, 314 (1831).

Reflecting the above, Tennessee amended its

constitutional guarantee, which Arkansas and Florida

copied, to state: “That the free white men of this State

shall have a right to keep and to bear arms for their

common defence.” Tenn. Const., Art. I, § 26 (1834);

Ark. Const., Art. II, § 21 (1836); Fla. Const., Art. I, §

21(1838).

The Georgia Supreme Court held that the right

to bear arms expressed in the Second Amendment is

an inalienable right that applies to the states. Nunn

v. State, 1 Ga. 243, 250 (1846).The court invalidated a

ban on open carry of pistols based on “[t]he right of the

whole people, old and young, men, women and boys,

and not militia only, to keep and bear arms of every

description . . . .” Id. at 251.

In Georgia, it was unlawful “for any free person

of colour in this state, to own, use, or carry fire arms of

any description whatever . . . .” § 7, 1833 Ga. Laws 226,

228. Georgia’s high court held: “Free persons of color

have never been recognized here as citizens; they are

not entitled to bear arms, vote for members of the

legislature, or to hold any civil office.” Cooper v.

Savannah, 4 Ga. 72 (1848).

Delaware had no restrictions on the peaceable

carrying of arms by white persons. However, it

forbade “free negroes and free mulattoes to have, own,

keep, or possess any gun [or] pistol,” except that such

persons could apply to a justice of the peace for a

permit to possess a gun, which could be granted with

a finding “that the circumstances of his case justify his

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

the State of Del. 208 (1841). The police power was said

to justify restrictions such as “the prohibition of free

negroes to own or have in possession fire arms . . . .”

State v. Allmond, 7 Del. 612, 641 (1856).

North Carolina declared: “That the people have

a right to bear arms for the defense of the state . . . .”

N.C. Dec. of Rights, Art. XVII (1776). Thus, “[f]or any

lawful purpose — either of business or amusement —

the citizen is at perfect liberty to carry his gun.” State

v. Huntley, 25 N.C. (3 Ired.) 418, 422-23 (1843).

But North Carolina made it unlawful “if any free

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

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

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

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

obtained a licence therefor from the Court of Pleas and

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

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

The provision was upheld partly on the ground that

“the free people of color cannot be considered as

citizens . . . .” Id. at 254.

The court further averred: “It does not deprive

the free man of color of the right to carry arms about

his person, but subjects it to the control of the County

Court, giving them the power to say, in the exercise of

a sound discretion, who, of this class of persons, shall

have a right to the licence, or whether any shall.” Id.

at 253. This is reminiscent of the New York’s

argument today that the right of the people to bear

arms is not infringed by laws granting officials

discretion to deny them that very right.

Scott v. Sanford, 60 U.S. (19 How.) 393, 417

(1857), argued against recognition of the citizenship of

African Americans because it “would give to persons of

the negro race, who were recognized as citizens in any

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

State whenever they pleased . . .; and it would give

them the full liberty of speech . . ., and to keep and

carry arms wherever they went.” Neither do New

York residents today have a right to carry arms

“wherever they went,” or indeed anywhere they go.

In sum, having no arms right was an incident of

slavery. Even free blacks were required to obtain a

license to possess or carry a firearm, and the license

could limit possession to one’s premises. Such laws

were based on the denial of the rights of citizenship to

African Americans.

II. The Right to Bear Arms, Like that of Other Bill of

Rights Guarantees, Is Inherent in “The People”

Exclusion of African Americans from the rights

of “the people” in the Second Amendment and other

Bill of Rights guarantees was in conflict with the

explicit text. It would remain for the Thirteenth

Amendment to abolish slavery and the Fourteenth

Amendment to guarantee fundamental rights to all to

rectify the injustice.

The argument has been made that the Second

Amendment was adopted to protect slavery.2 But the

That theory was first proposed in Carl T. Bogus, “The

Hidden History of the Second Amendment,” 31 U.C. Davis L. Rev.

309 (1998). However, Professor Bogus conceded: “The evidence

that the Second Amendment was written to assure the South that

the federal government would not disarm its militia . . . is almost

entirely circumstantial. Madison never expressly stated that he

wrote the Second Amendment for that purpose.” Id. at 372.

More recently, it has been argued that the Second

Amendment was a “bribe paid . . . with Black bodies.” Carol

defect was not in recognizing the rights of white

Americans, but was in not recognizing the rights of

black Americans. Besides Second Amendment rights,

African Americans also were denied rights under the

First and Fourth Amendments. None of these

amendments were adopted to protect slavery.

“[T]he Second Amendment, like the First and

Fourth Amendments, codified a pre-existing right.”

District of Columbia v. Heller, 554 U.S. 570, 592

(2008). The English Declaration of Rights recognized

thirteen “true, ancient and indubitable rights,”

including the following: “That the Subjects which are

Protestants, may have Arms for their Defence . . . .” 1

W. & M., Sess. 2, c.2, (1689).

The Declaration was plainly not grounded in the

need to suppress a domestic slave population —

England had none. However, limitation of the right to

the majority Protestant population made possible laws

disarming the minority Catholic population, 1 W.&M.,

Sess. 1, c. 15 §4 (1689), similar to southern laws

disarming African Americans. In drafting the Second

Amendment, James Madison recognized the fallacy of

limiting arms to Protestants. Madison, Notes for

Speech in Congress, June 8, 1789, 12 Papers of James

Madison, 193-94 (1979). But the fallacy in the

Anderson, The Second: Race and Guns in a Fatally Unequal

America 32 (2021). Much of Professor Anderson’s evidence relates

to the unjust and unequal enforcement of laws relating to firearms

discussed in this brief.

southern states would be not recognizing African

Americans as part of “the people.”

“By the time of the founding, the right to have

arms had become fundamental for English subjects.”

Heller, 554 U.S. at 593. “Americans valued the ancient

right . . . even more important for self-defense and

hunting” than for militia. Id. at 599.

From the American Revolution through the

adoption of the Second Amendment, the impetus for

recognition of the right to bear arms came more from

the northern states, where slavery was abolished or

dying, than from the southern states. In no way was

the Second Amendment a devil’s bargain extracted by

the slave states from a reluctant North. The history of

how this occurred further demonstrates the

fundamental right to carry arms for self-defense.

Pennsylvania was the first state to adopt an

arms guarantee, which provided: “That the people have

a right to bear arms for the defense of themselves, and

the state . . . .” Pa. Declaration of Rights, Art. XIII

(1776). It passed the first state abolition act. An Act

for the Gradual Abolition of Slavery (Pa. 1780). See

Arthur Zilversmit, The First Emancipation: The

Abolition of Slavery in the North 124-37 (1967)

(hereafter “Zilversmit”).

When the Constitution was proposed in 1789

without a bill of rights, the Pennsylvania Dissent of

Minority demanded one, including: “That the people

have a right to bear arms for the defense of themselves

and their own state, or the United States, or for the

purpose of killing game . . . .” 2 Documentary History

of the Ratification of the Constitution 623-24 (1976).

This was not an attempt to protect slavery.

Vermont’s Declaration of Rights of 1777 set

forth the following fundamental rights and abolished

slavery:

That all men are born equally free

and independent, and have certain

natural, inherent, and unalienable rights,

amongst which are the enjoying and

defending life and liberty; acquiring,

possessing, and protecting property, and

pursuing and obtaining happiness and

safety. Therefore, no male person, born in

this country, or brought from over sea,

ought to be holden by law, to serve any

person, as a servant, slave, or apprentice,

after he arrives to the age of twenty-one

years; nor female, in like manner, after

she arrives to the age of eighteen years .

...

Vt. Constitution, Art. I, § 1 (1777). See Zilversmit at

116.

The Vermont Declaration also provided: “That

the people have a right to bear arms for the defence of

themselves and the State . . . .” Id., § 15.

The Massachusetts Declaration of Rights,

Article 1 (1780), stated that “[a]ll men are born free

and equal, and have certain natural, essential, and

unalienable rights,” including “the right of enjoying

and defending their lives and liberties . . . .” And it

provided in Article 17: “The people have a right to keep

and to bear arms for the common defence.”

Court decisions in 1781-83 declared slavery

unconstitutional under Article I. Zilversmit at 113-15.

The Chief Justice of the Massachusetts Supreme Court

declared that “slavery is . . . as effectively abolished as

it can be by the granting of rights and privileges

wholly incompatible and repugnant to its existence.”

Id. at 114.

Samuel Adams proposed in the Massachusetts

ratification convention “that the said Constitution be

never construed . . . to prevent the people of the

United States, who are peaceable citizens, from

keeping their own arms . . . .” 6 Documentary History

of the Ratification of the Constitution 1453 (2000).

New Hampshire similarly provided that “[a]ll

men are born equally free and independent” and “have

certain natural, essential, and inherent rights; among

which are the enjoying and defending life and liberty

. . . .” N.H. Bill of Rights §§ I & II (1783). New

Hampshire courts read that language as abolishing

slavery. Zilversmit at 117.

When the federal Constitution was proposed,

New Hampshire demanded a guarantee that “Congress

shall never disarm any citizen, unless such as are or

have been in actual rebellion.” 18 Documentary

History of the Ratification of the Constitution 188

(1995).

In the Virginia convention, George Mason

recalled that “when the resolution of enslaving

America was formed in Great Britain, the British

Parliament was advised . . . to disarm the people; that

it was the best and most effectual way to enslave

them.” 3 Jonathon Elliot ed., The Debates in the

Several State Conventions on the Adoption of the

Federal Constitution 380 (1836).

The ensuing debate concerned defense against

tyranny and invasion; slavery was never mentioned in

reference to the right to bear arms. The Virginia

convention demanded that the federal Constitution

provide: “That the people have a right to keep and bear

arms . . . .” Id. at 658-59.

A proposal to abolish slavery in New York’s 1777

constitutional convention did not succeed. The state

later took various measures to end slavery and finally

enacted abolition in 1799. Zilversmit at 139-40, 14752, 181-82.

Rhode Island abolished slavery in 1784.

Zilversmit at 119-21.

New York and Rhode Island, along with North

Carolina, demanded that the federal Constitution

declare that “the people have a right to keep and bear

arms . . . .” 18 Documentary History of the Ratification

of the Constitution, 298 (1995) (N.Y.); id. at 316 (N.C.);

1 Elliot, Debates in the Several State Conventions, 335

(R.I.).

In short, the drive for what became the Second

Amendment came more from the northern states,

several of which had their own state guarantee of the

right to bear arms. And these were the same states

that had abolished or were in the process of abolishing

slavery. The defect in the American polity was the

failure of the southern states to extend recognition of

all fundamental rights to African Americans.

The constitutional guarantees accorded to “the

people” led to the abolitionist argument that slavery

was unconstitutional. The abolitionists saw the denial

of rights to African Americans as a violation of the first

eight amendments, and their arguments influenced the

framers of the Fourteenth Amendment. Jacobus

tenBroek, Equal Under Law 110-13, 126 (1965).

Abolitionist Lysander Spooner wrote that the

Second Amendment “recognize[s] the natural right of

all men ‘to keep and bear arms’ for their personal

defence,” which was “a right palpably inconsistent with

the idea of his being a slave.” Lysander Spooner, The

Unconstitutionality Of Slavery 98 (1860). According to

Joel Tiffany, the Second Amendment “is absolutely

inconsistent with permitting a portion of our citizens

to be enslaved.” Joel Tiffany, A Treatise on the

Unconstitutionality of Slavery 117—18 (1849).

Frederick Douglass agreed with the above

arguments. 2 Frederick Douglass, Life and Writings

201 (1950). The constitutionality of slavery upheld in

Dred Scott disregarded “the plain and commonsense

reading of the instrument itself; by showing that the

Constitution does not mean what it says, and says

what it does not mean . . . .” Id. at 420.

Frederick Douglass explained in 1865 that “the

black man has never had the right either to keep or

bear arms.” 4 The Frederick Douglass Papers 84

(1991). With slavery ending, he stated that the freed

people “must have the cartridge box, the jury box, and

the ballot box, to protect them.” “Frederick Douglass

on the American Crisis,” Newcastle Weekly Courant,

May 26, 1865, at 6.

The truism that “the people” in the Second

Amendment and other Bill of Rights guarantees really

means all of the people would be realized in the

Reconstruction Amendments. Today, it is not New

York’s prerogative to say who may and who may not

exercise liberties in the Bill of Rights.

III. The Fourteenth Amendment Was Understood to

Guarantee the Right to Bear Arms from State

Violation Through Arbitrary Licensing Restrictions

A. Protecting the Right of the People at Large,

Particularly the Freedmen, to Carry Arms Was a

Primary Objective of the Fourteenth Amendment

The Fourteenth Amendment was understood to

guarantee the right to keep and bear arms from state

infringement. Under the Black Codes, officials had

discretion on whether to issue licenses to allow

freedmen to keep arms and, if so, whether they could

carry arms out of their homes. Such laws were

considered to be in violation of the Second Amendment.

The first state law noted in McDonald as typical

of what the Fourteenth Amendment would invalidate

provided that “no freedman, free negro or mulatto, not

in the military service of the United States

government, and not licensed so to do by the board of

police of his or her county, shall keep or carry fire-arms

of any kind . . . .” Certain Offenses of Freedmen, 1865

Miss. Laws p. 165, § 1, quoted in McDonald v. City of

Chicago, 561 U.S. 742, 771 (2010). The official had

discretion to grant or deny the license.

South Carolina law provided that no person of

color “shall, without permission in writing from the

District Judge or Magistrate, be allowed to keep a fire

arm . . . .” S.C. Stat., No. 4730, § XIII, 250 (1865). An

African American convention resolved that “the late

efforts of the Legislature of this State to pass an act to

deprive us of arms be forbidden, as a plain violation of

the Constitution . . . .” 2 Proceedings of the Black

State Conventions, 1840-1865, 302 (1980). Senator

Charles Sumner summarized the petition, noting “that

they should have the constitutional protection in

keeping arms, in holding public assemblies, and in

complete liberty of speech and of the press.” Cong.

Globe, 39th Cong., 1st Sess. 337 (1866).

Rep. William Lawrence quoted Order No. 1

(1866) for the Department of South Carolina, which

declared:

The constitutional rights of all

loyal and well disposed inhabitants to

bear arms, will not be infringed;

nevertheless this shall not be construed

to sanction the unlawful practice of

carrying concealed weapons; nor to

authorize any person to enter with arms

on the premises of another without his

consent.

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

This order was repeatedly printed in the Loyal

Georgian, a black newspaper, beginning with the issue

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

following:

Have colored persons a right to own and

carry fire arms?

A Colored Citizen

Almost every day we are asked

questions similar to the above. . . .

Article II, of the amendments to

the Constitution of the United States,

gives the people the right to bear arms,

and states that this right shall not be

infringed. . . . All men, without

distinction of color, have the right to keep

and bear arms to defend their homes,

families or themselves.

Id. at 3.

Deprivation of the right to bear arms was

debated in bills leading to enactment of the

Freedmen’s Bureau Act and the Civil Rights Act of

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

explained that the bill would render void laws like that

of Opelousas, Louisiana, providing that no freedman

“shall be allowed to carry fire-arms” without

permission of his employer and as approved by the

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

(1866). He quoted from a report that in Kentucky

“[t]he civil law prohibits the colored man from bearing

arms . . . .” Id. at 657.

Senator Garret Davis said that the Founding

Fathers “were for every man bearing his arms about

him . . . for his own defense.” Id. at 371. Yet places

like Alexandria, Virginia “enforce[d] the old law

against them in respect to whipping and carrying firearms . . . .” Report of the Joint Committee on

Reconstruction, H.R. Rep. No. 30, 39th Cong., 1st

Sess., pt. 2, at 21 (1866).

Senator Samuel Pomeroy noted that the

“safeguards of liberty under our form of Government”

included the following: “He should have the right to

bear arms for the defense of himself and family and his

homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182

(1866).

Introducing the Fourteenth Amendment in the

Senate, Jacob Howard referred to “the personal rights

guaranteed and secured by the first eight amendments

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

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

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

section of this amendment is, therefore, to restrain the

power of the States and compel them at all times to

respect these great fundamental guarantees.” Id. at

2766.

In support of a bill which required the Southern

States to ratify the Fourteenth Amendment, Rep.

George W. Julian argued:

Although the civil rights bill is now the

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

jurists and courts of the South. Florida

makes it a misdemeanor for colored men

to carry weapons without a license to do

so from a probate judge, and the

punishment of the offense is whipping

and the pillory. South Carolina has the

same enactments . . . Cunning legislative

devices are being invented in most of the

States to restore slavery in fact.3

Id. at 3210.

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

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

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

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

Rep., 39th Cong., 1st Sess. 20 (1866). Florida Governor David S.

Walker stated that the law “in regard to freedmen carrying

firearms does not accord with our Constitution, has not been

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

Wallace, a black politician, commented that, except for those

hunting on other person’s properties, “[t]he law prohibiting

colored people handling arms of any kind without a license, was

a dead letter,” adding: “We have often passed through the streets

of Tallahassee with our gun upon our shoulder, without a license,

and were never disturbed by any one during the time this law was

in force.” John Wallace, Carpet Bag Rule in Florida 35 (1885).

But the law was enforced in some counties. Jerrell H. Shofner,

Nor Is It Over Yet: Florida in the Era of Reconstruction, 18631877, at 84 (1974).

A Mississippi court declared the Civil Rights Act

void in upholding the conviction, under the 1865

Mississippi law quoted above, of a freedman for

carrying a musket without a license while hunting. It

held that the state arms guarantee protected only

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

Another Mississippi court found the ban on

freedmen having arms without a license void:

The citizen has the right to bear arms in

defense of himself, secured by the

constitution. . . . Should not then, the

freedmen have and enjoy the same

constitutional right to bear arms in

defence of themselves, that is enjoyed by

the citizen? . . . While, therefore, the

citizens of the State and other white

persons are allowed to carry arms, the

freedmen can have no adequate

protection against acts of violence unless

they are allowed the same privilege.

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

The above judicial decisions were noted in a

report from General Ulysses S. Grant stating: “The

statute prohibiting the colored people from bearing

arms, without a special license, is unjust, oppressive,

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

Sess., 33 (1866).

As passed, the Freedmen’s Bureau Act explicitly

recognized the right to bear arms, which clearly

included the right peaceably to carry arms in public:

the right . . . to have full and equal

benefit of all laws and proceedings

concerning personal liberty, personal

security, and the acquisition, enjoyment,

and disposition of estate, real and

personal, including the constitutional

right to bear arms, shall be secured to

and enjoyed by all the citizens of such

State or district without respect to race

or color or previous condition of slavery.

§ 14, 14 Stat. 173, 176-77 (1866).

“In sum, it is clear that the Framers and

ratifiers of the Fourteenth Amendment counted the

right to keep and bear arms among those fundamental

rights necessary to our system of ordered liberty.”

McDonald, 561 U.S. at 777. As such, the right of a lawabiding person to carry a firearm could not be

dependent on the discretion of an official.

B. The Right to Bear Arms Was Understood as

Protected by the Civil Rights Act of 1871

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

Congress routinely referred to the right to keep and

bear arms and decried the continued disarmament of

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

citing Stephen P. Halbrook, Freedmen, the Fourteenth

Amendment, and the Right to Bear Arms 12031(1998). Today’s 42 U.S.C. § 1983, the Act provides

that any person who, under color of State law, subjects

a person “to the deprivation of any rights, privileges, or

immunities secured by the Constitution” is civilly

liable. 17 Stat. 13 (1871).

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

federal courts a paramount role in protecting

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

U.S. 496, 503 (1982). Rep. Henry Dawes explained

how the federal courts would protect “these rights,

privileges, and immunities . . . .” Id., quoting Cong.

Globe, 42d Cong., 1st Sess., 476 (1871). Dawes had

just noted that the citizen “has secured to him the

right to keep and bear arms in his defense.” Cong.

Globe, supra, at 475-76.

Patsy also cited the remarks of Rep. John

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

observed: “A State may by positive enactment cut off

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

more oppressive is the passage of a law that they shall

not bear arms than the practical seizure of all arms

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

459.

“Opponents of the bill also recognized this

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

remarks of Rep. Washington Whitthorne). On the

same page of his speech, Whitthorne objected that “if

a police officer . . . should find a drunken negro or

white man upon the streets with a loaded pistol

flourishing it, & c., and by virtue of any ordinance, law,

or usage, either of city or State, he takes it away, the

officer may be sued, because the right to bear arms is

secured by the Constitution . . . .” Cong. Globe at 337.

To the contrary, supporters of the bill were concerned

that police would arrest a law-abiding African

American who was peaceably carrying a pistol, and

they wished to provide a legal remedy for such

deprivation.

A year after passage of the Civil Rights Act,

President Grant reported that in parts of the South Ku

Klux Klan groups continued to seek “to deprive colored

citizens of the right to bear arms and of the right to a

free ballot . . . .” Ex. Doc. No. 268, 42nd Cong., 2d Sess.

2 (1872).

In debate on a bill to expand civil rights

protection, Senator Daniel Pratt observed that the

Klan targeted the black who would “tell his fellow

blacks of their legal rights, as for instance their right

to carry arms and defend their persons and homes.”

Cong. Globe, 42nd Cong., 2d Sess., 3589 (1872).

While at this point in history the disarming of

blacks was taking place more by the Klan rather than

by state action, a report recalled the state laws of

1865-66 under which “a free person of color was only a

little lower than a slave. . . . [and hence] forbidden to

carry or have arms.” 1 Report of the Joint Select

Committee to Inquire into the Condition of Affairs in

the Late Insurrectionary States 261-62 (1872).

In sum, the Civil Rights Act of 1871 was

understood to provide a remedy to persons who were

deprived of the right to bear firearms. No one

suggested that the right was limited to one’s house or

that the state could limit licenses to carry arms only to

persons it subjectively deemed to have a “proper cause”

to do so. The laws that subjected the African

Americans to such a discretionary licensing system

were among the deprivations that prompted Congress

to act.

IV. Discretionary Licensing Facilitated Jim Crow

Restrictions

The Fourteenth Amendment did away with

actually naming African Americans in laws prohibiting

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

facially-neutral laws imposed prohibitive fees and

restrictions on the poor and were selectively enforced

in ways to deny the right of black citizens to possess

and carry arms.

In 1892, Ida B. Wells wrote that a “Winchester

rifle should have a place of honor in every black home,

and it should be used for that protection which the law

refuses to give.” Ida B. Wells, Southern Horrors: Lynch

Law in All its Phases 16 (1892). She had in mind

recent events in Jacksonville, Florida, and Paducah,

Kentucky, where well-armed blacks had thwarted

lynch mobs.4

Perhaps not coincidently, a year later Florida

made it a crime for a person “to carry around with him,

or to have in his manual possession” a “Winchester

See Margaret Vandiver, Lethal Punishment: Lynchings

& Legal Executions in the South 179 (New Brunswick, N.J.:

Rutgers University Press, 2006); George C. Wright, Racial

Violence in Kentucky 1865-1940: Lynchings, Mob Rule & “Legal

Lynchings” 169-170 (Baton Rouge: LSU Press, 1990).

rifle or other repeating rifle” without a license, which

“may” be granted after posting a $100 bond with

approved sureties. 1893 Fla. Laws 71-72. (In 1901,

the law was amended to add pistols to the list.) That

would be equivalent to $2,859 today.5 The average

monthly wage for farm labor in Florida in 1890 was

$19.35.6 Licenses were obviously beyond the means of

poor persons, not to mention the unlikelihood of them

being issued to African Americans.

This law “was passed when there was a great

influx of negro laborers in this State,” and it was “for

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

statute was never intended to be applied to the white

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

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

it was estimated that “80% of the white men living in

the rural sections of Florida have violated this

statute,” “not more than 5% of the men in Florida who

own pistols and repeating rifles have ever applied” for

a license, and that “there had never been . . . any effort

to enforce the provisions of this statute as to white

people, because it has been generally conceded to be in

contravention of the Constitution and non-enforceable

if contested.” Id.

“Why a dollar today is worth only 3% of a dollar in 1893,”

Mar. 12, 2021. https://www.in2013dollars.com/us/inflation/1893.

1912).

George K. Holmes, Wages of Farm Labor 29 (USDA

In Virginia, it was held lawful to carry a

concealed handgun if it was not readily accessible.

Sutherland v. Commonwealth, 109 Va. 834, 65 S.E. 15

(1909). The editors of the Virginia Law Register

criticized the decision with unabashed racist rhetoric

as follows:

It is a matter of common

knowledge that in this state and in

several others, the more especially in the

Southern states where the negro

population is so large, that this cowardly

practice of “toting” guns has always been

one of the most fruitful sources of crime .

. . . There would be a very decided falling

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

prohibitive tax were laid on the privilege

of handling and disposing of revolvers

and other small arms, or else that every

person purchasing such deadly weapons

should be required to register . . . . Let a

negro board a railroad train with a quart

of mean whiskey and a pistol in his grip

and the chances are that there will be a

murder, or at least a row, before he

alights.

“Carrying Concealed Weapons,” 15 Virginia Law

Registration and an annual tax of one dollar for

each pistol or revolver would be enacted in Virginia.

Ch. 258, 1926 Va. Acts 285. The intimidating process,

the paperwork, and the expense, similar to paying the

$1.50 poll tax for voting,7 would have made it difficult

or impossible for the poor, including African

Americans, to obtain or possess handguns.

Possession of an unregistered handgun was

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

State convict road force for 30-60 days. Id. at 286. See

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

Proceedings of the National Conference of Charities

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

road force are negroes”). The law functioned to

prevent African Americans from carrying handguns

and to conscript those who exercised their right to bear

arms for forced road work.

The Jim Crow era, with its regime of legal

discrimination based on race, ended with the

enactment of federal civil rights legislation in the

1960s. Exercise of the right to bear arms for selfdefense was essential to protect members of the civil

rights movement. African Americans, including civil

rights icons, had a long tradition of carrying firearms

to protect themselves and their communities. See

Nicholas Johnson, Negroes and the Gun: The Black

Tradition of Arms (2014); Charles E. Cobb, Jr., This

Nonviolent Stuff’ll Get You Killed: How Guns Made

the Civil Rights Movement Possible (2014).

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

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

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

Laws that subjected the right to bear arms to

discretionary licence issuance played a role in the

history of the civil rights movement. Perhaps the most

stark illustration was the denial of a carry license to

Martin Luther King, Jr.

Rev. King became nationally prominent as a

result of the bus boycott in Montgomery, Alabama,

which was triggered by Rosa Parks’ disobedience to the

segregated seating rules. King became the leader of the

boycott movement. In January 1956, King’s house was

bombed, and armed black men scrambled to protect

him, Coretta, and their young daughter. Johnson,

Negroes and the Gun, 261-62. Professor Johnson

relates:

King even sought a permit to carry

a concealed gun in his car. But local

authorities determined that he had not

shown “good cause” for needing a permit

to carry a firearm. A generation later,

protests against the caprice and cronyism

that pervaded these types of

discretionary permit systems would

spark a movement toward

nondiscretionary, “shall issue”

concealed-carry permits that would

become the American norm.

Id. at 262.

The denial of King’s application made the

Montgomery Advertiser, which reported:

A Negro boycott leader whose

home was bombed earlier this week has

been denied a pistol permit, the sheriff’s

department said yesterday.

The Rev. M. L. King and two other

Negro clergymen requested the permit

Wednesday, Sheriff Mac Sim Butler said.

Sheriff Butler said he declined to

issue a pistol permit which King said he

wanted for a night watchman at his

home.

He said threats against him have

been received “continuously” and he felt

the need for a watchman.

“Negro Leader Fails to Get Pistol Permit,” Montgomery

Advertiser, Feb. 4, 1956, at 3B.

At a meeting of movement organizers to discuss

how to protect mass meetings and the leaders, the

minutes reflected Rev. King to have stated: “I went to

the sheriff to get a permit for those people who are

guarding me. ‘Couldn’t get one’. In substance he was

saying ‘you are at the disposal of the hoodlums.’”

Donald T. Ferron, Notes on MIA Executive Board

Meeting (Feb. 2, 1956).8

At that time, Alabama law provided: “No person

shall carry a pistol in any vehicle or concealed on or

about his person, except in his place of abode or fixed

https://kinginstitute.stanford.edu/king-papers/documen

ts/notes-mia-executive-board-meeting-donald-t-ferron-1.

place of business, without a license therefor . . . .”

Uniform Firearms Act, Acts 1936, Ex. Sess., No. 82, §

5, at 51, 52. A probate judge, police chief, or sheriff

“may . . . issue a license . . . to carry a pistol in a

vehicle or concealed on or about his person . . ., if it

appears that the applicant has good reason to fear

injury to his person or property, or has any other

proper reason for carrying a pistol . . . .” Id. § 7

(emphasis added).

While the Act did not prohibit open carry of a

pistol, its ban on carrying in a vehicle without a license

surely hampered the ability of civil rights workers to

protect themselves. The Act had no exemption from

licensing for armed guards, so those guarding King

and other leaders were subject to arrest.

But the instinct for survival was far stronger

than the threat of arrest, and many in the civil rights

movement carried firearms for that reason. As

Professor Cobb relates, “there were few black leaders

who did not seek and receive armed protection from

within the black community. They needed it because

both local law enforcement and the federal government

refused to provide it.” Cobb, This Nonviolent Stuff’ll

Get You Killed, 7-8.

Martin Luther King would have had no problem

getting a pistol carry permit today in Alabama or in

the forty-one other “shall issue” states. Alabama law

now requires that a sheriff “shall issue” a permit to

carry a pistol concealed “unless the sheriff determines

that the person is prohibited from the possession of a

pistol or firearm pursuant to state or federal law, or

has a reasonable suspicion that the person may use a

weapon unlawfully or in such other manner that would

endanger the person's self or others.” Ala. Code 1975 §

13A-11-75(a)(1)a. Unless otherwise provided, “a sheriff

may not place conditions or requirements on the

issuance of a pistol permit or limit its scope or

applicability.” Id., § 13A-11-75(a)(1)d.

Would Rev. King have been able to get a carry

license under New York’s discretionary “proper cause”

law? Would he have been able to “demonstrate a

special need for self-protection distinguishable from

that of the general community or of persons engaged in

the same profession,” per Kachalsky v. County of

Westchester, 701 F.3d 81, 86 (2nd Cir. 2012)? Wasn’t

King in a similar threatened situation as many others

in the civil rights movement?

In historical perspective, New York’s law is heir

to the Black Codes and Jim Crow regimes except that,

instead of discriminating only against black people, it

deprives the people at large of the right to bear arms,

which is reserved to members of a privileged class

determined by government officials to have “good

cause.”

CONCLUSION

This Court should reverse the judgment of the

court below and hold that New York’s limitation of

carry licenses to persons that officials decide have a

“proper cause” violates the Second Amendment.

Respectfully submitted,

NATIONAL AFRICAN AMERICAN GUN ASSOCIATION,

INC. AMICUS CURIAE