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

No. 20-843

In the

Supreme Court of the United States

__________________

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., ET AL.,

Petitioners,

v.

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.,

Respondents.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

__________________

BRIEF OF AMICUS CURIAE GEORGE K.

YOUNG IN SUPPORT OF PETITIONERS

__________________

ALAN ALEXANDER BECK

Counsel of Record

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck@gmail.com

STEPHEN D. STAMBOULIEH

STAMBOULIEH LAW, PLLC

P.O. Box 428

Olive Branch, MS 38654

(601) 852-3440

Stephen@sdslaw.us

Counsel for Amicus Curiae

July 16, 2021

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

INTERESTS OF THE AMICUS CURIAE . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. Heller’s Dangerous and Unusual Language

Supports the Proposition that the

Second Amendment Right Extends Outside the

Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

TABLE OF AUTHORITIES

CASES

Baron Snigge v. Shirton,

79 E.R. 173 (1607). . . . . . . . . . . . . . . . . . . . . . . 8, 9

City of Allegheny v. Zimmerman,

95 Pa. 287 (1880). . . . . . . . . . . . . . . . . . . . . . . . . 18

Dist. of Columbia v. Heller,

554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . passim

English v. State,

35 Tex. 473 (1871). . . . . . . . . . . . . . . . . . . . . 19, 20

Hollis v. Lynch,

827 F.3d 436 (5th Cir. 2016). . . . . . . . . . . . . . . . . 4

Jackson v. City & Cty. of S.F.,

746 F.3d 953 (9th Cir. 2014). . . . . . . . . . . . . . 2, 23

Kolbe v. Hogan,

849 F.3d 114 (4th Cir. 2017). . . . . . . . . . . . . . . . . 4

Miller v. Bonta,

No. 19-cv-1537-BEN (JLB), 2021 U.S. Dist.

LEXIS 105640 (S.D. Cal. June 4, 2021) . . . . . . . . 8

Neilson & Sarrazin v. Dickenson,

1 Des. 133 (1785). . . . . . . . . . . . . . . . . . . . . . . . . 13

O’Neill v. State,

16 Ala. 65 (1849) . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Liscotti,

219 Cal. App. 4th Supp. 1 (2013) . . . . . . . . . . . . . 4

iii

People v. Zondorak,

220 Cal. App. 4th 829 (2013) . . . . . . . . . . . . . . . . 4

Rex v. Dewhurst,

1 State Trials, New Series 529 (1820) . . . . . . . . 14

Rex v. Knight,

90 Eng. Rep. 330 (K.B. 1686) . . . . . . . . . . . . . . . 14

Rex v. Rowland Phillips,

98 E.R. (1385) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Simpson v. State,

13 Tenn. Reports (5 Yerg.) 356 (1833) . . . . . 20, 21

State v. Dawson,

272 N.C. 535, 159 S.E.2d 1 (1968) . . . . . . . . . . . . 7

State v. Langford,

10 N.C. (3 Hawks) 381 (1824). . . . . . . . . . . . . . . 19

State v. Lanier,

71 N.C. 288 (1874) . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Norris,

2 N.C. 429 (1796) . . . . . . . . . . . . . . . . . . . . . . . . 13

The King v. Oneby,

92 E.R. 465 (Court of the King’s Bench

1727) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

U.S. v. Mitchel,

2 U.S. 348 (Pennsylvania circuit court 1795) . . 13

U.S. v. Vigol,

2 U.S. 346 (1795). . . . . . . . . . . . . . . . . . . . . . . . . 13

iv

United States v. Hare,

26 F. Cas. 148 (C.C.D. Md.1818) . . . . . . . . . . . . . 7

United States v. Henry,

688 F.3d (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 3

Warder v. Arell,

2 Va. 282 (1796) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Young v. Hawaii,

896 F.3d 1044 (9th Cir. 2018). . . . . . . . . . . . . . . . 1

Young v. Hawaii,

992 F.3d 765 (9th Cir. 2021). . . . . . . . . . . . . . . . . 1

Young v. Hawaii,

No. 20-1639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTION AND STATUTES

U.S. Const. amend. II. . . . . . . . . . . . . . . . . . . . passim

Statute of Northampton 2 Edw. 3, c. 3 (1328) . . . 4, 5

OTHER AUTHORITIES

An Universal Etymological Dictionary (R. Ware, W.

Innys and J. Richardson, J. Knapton (and twelve

others)) (1675) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4 William Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND (1769) . . . . . . . . . . . . . . . 14

4 Blackstone (1803) . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 Blackstone (1803) . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

v

David Caplan, The Right of the Individual to Bear

Arms: A Recent Judicial Trend, DET. L. C. REV.

789 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Timothy Cunningham, A new and complete lawdictionary, 1789 . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

John A. Dunlap, THE NEW-YORK JUSTICE

(1815). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hawkins, Pleas of the Crown, book 1, ch. 28,

sec. 4. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Charles Humphreys, A COMPENDIUM OF THE

COMMON LAW IN FORCE IN KENTUCKY

(1822). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Giles Jacob, The law-dictionary (P. Bryne 1811 first

American from the second London edition)

(1811). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Susan Jones, “Justice Scalia on 2nd Amendment

Limitations: ‘It Will Have to Be Decided,’”

CNSNews.com,

July

30,

2012,

http://cnsnews.com/news/article/justice-scalia2nd-amendment-limitations-it-will-have-bedecided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Kozinski & J.D. Williams, It Is a Constitution

We Are Expounding: A Debate, 1989 Utah L.

Rev. 978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Joyce Lee Malcolm, TO KEEP AND BEAR ARMS:

THE ORIGINS OF AN ANGLO-AMERICAN

RIGHT (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vi

George Neumann, The History of Weapons of

the American Revolution 150 Harper & Row

1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

William Oldnall Russell, A TREATISE ON

CRIMES AND INDICTABLE

MISDEMEANORS (1826) . . . . . . . . . . . . . . . . . 16

The American Law Book Company (1925) . . . . . . . 11

The Cyclopedia Law Dictionary (Walter A.

Shumaker and George Foster Longsdorf, ed.

Callaghan and Company 1922) (1901). . . . . . . . 11

The Collegiate Law Dictionary (James John Lewis

ed. (1925)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TREATISE ON THE PLEAS OF THE CROWN, ch.

63, § 9 (Leach ed., 6th ed. 1788) . . . . . . . . . . . . . 14

5 St. George Tucker, Blackstone’s Commentaries:

with Notes of Reference, to the Constitution and

the Laws, of the Federal Government of the

United States; and of the Commonwealth of

Virginia (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

F. Wharton, A Treatise on the Criminal

Law of the United States (1852) . . . 11, 16, 17, 18

2 Wilson (1804). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3 Wilson (1804). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

James Wilson, WORKS OF THE HONOURABLE

JAMES WILSON (Bird Wilson ed., 1804) . . . . . 15

1

INTERESTS OF THE AMICUS CURIAE1

George K. Young is a native of the State of Hawaii,

a United States citizen, and a Vietnam veteran2. In

2012, he filed a pro se lawsuit to challenge the

constitutionality of the denial of a permit to carry a

handgun in Hawaii either openly or concealed. After

being summarily dismissed in the district court, Mr.

Young obtained pro bono counsel and prevailed in the

Ninth Circuit in front of a three-judge panel. See Young

v. Hawaii, 896 F.3d 1044 (9th Cir. 2018). The Ninth

Circuit then reheard his case en banc. The Ninth

Circuit upheld the denial of his handgun carry permit

application. In doing so, it became the only circuit court

to find that the Second Amendment does not extend to

self-defense outside the home. See Young v. Hawaii,

992 F.3d 765 (9th Cir. 2021). Mr. Young has filed a writ

of certiorari with this court and is awaiting a decision

on whether this Court will grant certiorari. See Young

v. Hawaii, No. 20-1639.3 Therefore, Mr. Young has an

interest in this case because the outcome of this case

will likely impact the outcome of his case.

1

Pursuant to Supreme Court Rules 37.3 and 37.6, amicus curiae

states that all parties have consented in writing to the filing of this

brief, no counsel for a party authored this brief in whole or in part,

and no person or entity, other than amicus curiae and his counsel,

made a monetary contribution intended to fund the preparation

and submission of this brief.

2

See https://www.reuters.com/article/us-usa-guns-hawaii/unlikelypair-could-usher-gun-rights-case-to-u-s-supreme-courtidUSKBN1KT13B (last visited (6/20/2021).

3

See https://www.supremecourt.gov/search.aspx?filename=/docket

/DocketFiles/html/Public/20-1639.html.

2

SUMMARY OF THE ARGUMENT

This Court should find that the Second Amendment

right extends outside the home and find that the

Petitioners in this case were unconstitutionally denied

handgun carry permits. As shown below, the historical

tradition of prohibiting carrying “dangerous and

unusual” weapons supports the proposition that there

is a general right to carry protected arms. The

government may only prohibit carrying in “‘welldefined and narrowly limited’ category of prohibitions

‘that have been historically unprotected,’” Jackson v.

City & Cty. of S.F., 746 F.3d 953, 960 (9th Cir. 2014).

The lower courts have misinterpreted Heller’s

dangerous and unusual language. A true historical

analysis of this doctrine demonstrates that it supports

a finding that the Second Amendment applies outside

the home. This Court should correct the lower courts’

analyses of the dangerous and unusual doctrine, and

because the Second Amendment right to armed selfdefense extends outside the home, the Court should

find that the Plaintiffs in this case were

unconstitutionally denied handgun carry permits.

ARGUMENT

I. Heller’s Dangerous and Unusual Language

Supports the Proposition that the Second

Amendment Right Extends Outside the Home.

The text, history and tradition of the Second

Amendment, as well as Dist. of Columbia v. Heller, 554

U.S. 570 (2008), demonstrates the right to armed selfdefense applies outside the home. Writing for the Court

in Heller, Justice Scalia stated:

3

[w]e also recognize another important limitation

on the right to keep and carry arms. Miller said,

as we have explained, that the sorts of weapons

protected were those “in common use at the

time.” [U.S. v. Miller, 307 U.S. 174, 179 (1939)].

We think that limitation is fairly supported by

the historical tradition of prohibiting the

carrying of “dangerous and unusual weapons.”

Heller, 554 U.S. at 627.

The prohibition on carrying “dangerous and unusual

weapons” is a prohibition on certain manners of carry.

Historically, there was a presumption that people had

a general right to carry Arms that was restricted only

in certain circumstances. Almost every lower court to

interpret this phrase has failed to conduct a proper

historical analysis and therefore, have misapplied

Heller’s dangerous and unusual language.4 Instead,

the lower courts have almost universally held that this

phrase applies to certain types of bearable arms, and

then by judicial fiat, those courts finds them too deadly

for private citizen ownership. See e.g. United States v.

Henry, 688 F.3d 637 (9th Cir. 2012) (finding that an

automatic firearm not protected by the Second

4

“[I]n a very real sense, the Constitution is our compact with

history . . . [but] the Constitution can maintain that compact and

serve as the lodestar of our political system only if its terms are

binding on us. To the extent we depart from the document’s

language and rely instead on generalities that we see written

between the lines, we rob the Constitution of its binding force and

give free reign to the fashions and passions of the day.” A.

Kozinski & J.D. Williams, It Is a Constitution We Are Expounding:

A Debate, 1989 Utah L. Rev. 978, at 980.

4

Amendment because it is a dangerous and unusual

weapon); People v. Zondorak, 220 Cal. App. 4th 829

(2013) (applying the term to a semiautomatic firearm);

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (same as

to AR-15 semiautomatic rifles); Hollis v. Lynch, 827

F.3d 436, 446 (5th Cir. 2016) (finding machineguns

unprotected because “if a weapon is dangerous and

unusual, it is not in common use and not protected by

the Second Amendment.”).

The misuse of this historical term has even been

applied to baseball bats. People v. Liscotti, 219 Cal.

App. 4th Supp. 1 (2013). If the Second Amendment

does not apply to a baseball bat (which is essentially a

club) because it is too “dangerous,” then the Second

Amendment is a paper tiger, meaning nothing more

than what the third branch, and future judges, say it

means.

The prohibition on carrying dangerous and unusual

weapons is derived from the Statute of Northampton 2

Edw. 3, c. 3 (1328) which is a statute that banned

carrying in certain situations, such as affrays. It reads

as follows:

ITEM, it is enacted, That no Man great nor

small, of what Condition soever he be, except the

King’s Servants in his presence, and his

Ministers in executing of the King’s Precepts, or

of their Office, and such as be in their Company

assisting them, and also upon a Cry made for

Arms to keep the Peace, and the same in such

places where Acts happen, [footnote omitted] be

so hardy to come before the King’s Justices, or

other of the King’s Ministers doing their office,

5

with force and arms, nor bring no force in affray

of the peace, nor to go nor ride armed by night

nor by day, in Fairs, Markets, nor in the

presence of the Justices or other Ministers, nor

in no part elsewhere, upon pain to forfeit their

Armour to the King, and their Bodies to Prison

at the King’s pleasure.

2 Edw. 3 Stat. Northampt. c. 3 (1328). This law is cited

by several of the commentators on which Heller relies.

For example, Timothy Cunningham is cited by the

Heller Court (see 554 U.S. at 581). Timothy

Cunningham’s 1789 law dictionary defines “affray” as

follows:

Affray, Is derived from the French word effrayer,

to affright, and it formerly meant no more, as

where persons appeared with armour or

weapons not usually worn, to the terror of

others; and so is the word used in the statute of

Northampton []. It is now commonly taken for a

skirmish, or fighting between two or more. …

Yet, as it is there said, they differ in this, that

where an assault is but a wrong to the party, an

affray is wrong to the commonwealth, and

therefore both inquirable and punishable in a

leet. … Beside this signification, it may be taken

for a terror wrought in the subject by an

unlawful fight or violence, &c. as if a man shew

himself furnished with armour or weapons not

usually worn, it may strike a fear into others

unarmed; and so it is used in flat 2 Ed 3 c 3. But

altho’ no bare words, in the judgement of law,

carry in them so much terror as to amount to an

6

affray, yet it seems certain, than in some cases

there may be an affray, where there is no actual

violence, as where a man arms himself with

dangerous and unusual weapons in such a

manner as will naturally cause a terror to the

people; which is said to have been always an

offence at the Common law and is strictly

prohibited by Statute.

See Timothy Cunningham, A new and complete lawdictionary, Affray, 1789. Cunningham defines riding

armed, with dangerous and unusual weapons as:

an offense at Common law. [citation omitted] By

the stat. 2 Ed. 3. Cap. 3. None shall ride armed

by day or night to the terror of the people; or

come with force and arms before the King?s

justices...but men may wear common arms

according to their quality and fashion, and have

attendants with them armed agreeable to their

characters; all persons may ride or go armed

take felons, suppress riots, execute the King’s

process…

Cunningham, supra, Riding.

As shown below, this is a prohibition against

carrying in a threatening manner which disturbs the

public, not simply carrying a weapon outside one’s

home, whereas carrying in an unusual manner was

generally not allowed. The lower courts

misinterpretation of this phrase might be

understandable if they were required to interpret 14th

Century case law. However, even a cursory search of

the phrase reveals that courts in the 20th century have

7

already analyzed this phrase correctly. The Supreme

Court of North Carolina correctly interpreted the

dangerous and unusual language in the historical

context as to how it was originally understood. See e.g.

State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).5

The term “dangerous weapon”, in the English

common law, is a legal term of art that usually

included weapons designed or able to kill human

beings. In this context, the Common Law’s definition of

“dangerous” was any item that could be used to take

human life through physical force. See United States v.

Hare, 26 F. Cas. 148, 163-64 (C.C.D. Md.1818)

(“[S]howing weapons calculated to take life, such as

pistols or dirks, putting [the victim] in fear of his life …

is … the use of dangerous weapons.”). See also The

King v. Oneby, 92 E.R. 465 (Court of the King’s Bench

5

“It has been remarked that a double-barrel gun, or any other gun,

cannot in this country come under the description of ‘unusual

weapons,’ for there is scarcely a man in the community who does

not own and occasionally use a gun of some sort. But we do not feel

the force of this criticism. A gun is an ‘unusual weapon,’ wherewith

to be armed and clad. No man amongst us carries it about with

him, as one of his everyday accoutrements -- as a part of his dress

-- and never, we trust, will the day come when any deadly weapon

will be worn or wielded in our peace-loving and law-abiding State,

as an appendage of manly equipment. But although a gun is an

‘unusual weapon,’ it is to be remembered that the carrying of a

gun, per se, constitutes no offense. For any lawful purpose -- either

of business or amusement -- the citizen is at perfect liberty to carry

his gun. It is the wicked purpose, and the mischievous result,

which essentially constitute the crime. He shall not carry about

this or any other weapon of death to terrify and alarm, and in such

manner as naturally will terrify and alarm a peaceful people.”

State v. Dawson, 272 N.C. 535, 544-45 (1968) (citation omitted).

8

1727) (“Any dangerous weapon, as a pistol, hammer,

large stone, &c. which in probability might kill B. or do

him some great bodily hurt.”). Therefore, as the Hon.

Roger T. Benitez of the Southern District of California

said, “[a]t bottom, guns are dangerous.” Miller v.

Bonta, No. 19-cv-1537-BEN (JLB), 2021 U.S. Dist.

LEXIS 105640, at *105 (S.D. Cal. June 4, 2021). This

is historically supported because common arms, such

as pistols, are “dangerous” arms and all arms are

“dangerous” within this context.

Timothy Cunningham’s 1789 law dictionary defined

an affray as “to affright, and it formerly meant no

more, as where persons appeared with armour or

weapons not usually worn, to the terror.” When

discussing forcible entry or detainer, Blackstone stated,

“so that the entry now allowed by law is a peaceable

one; that forbidden is such as is carried on and

maintained, with force, with violence, and unusual

weapons.” 5 Blackstone 148 (1803). It would make little

sense to think that the distinction was being drawn

between peaceable entry and entry with weapons that

are difficult to purchase or hard to find. Instead, the

term “unusual weapons” means weapons that are being

used in a threatening or shocking manner, or weapons

that are being used to facilitate an unlawful endeavor.

This position is supported by case law. In an

English case, Baron Snigge v. Shirton, a tenant was in

a dispute with his landlord, and “kept the possession

[of the house he rented] with drum, guns, and

halberts”. See generally Baron Snigge v. Shirton, 79

E.R. 173 (1607). “(The drum was only to give notice if

any came to enter, but no body offered to enter.)” Id.

9

This was considered keeping “his house with unusual

weapons against a purchaser”. Id.

In another English case, a sailor fired warning shots

with a “musqet and ball” across the bow of another ship

as a signal and killed a man. See generally Rex v.

Rowland Phillips, 98 E.R. (1385). The Court found

“[t]he firing was not done in an uncommon manner, or

with unusual weapons.” Id. And held “[i]t is impossible

upon this special verdict to say, that the defendant is

guilty of more than manslaughter. For it is expressly

found, that he fired in the usual manner to bring

vessels to, and to hit the hallyards.” Id. In both cases,

the weapons were in common use at the time. However,

in one case, the weapon was unusual, while in the

other case, it was not. The relevant difference between

the cases is whether the use of force was reasonable.

This definition of unusual is supported by

Blackstone’s discussion of forfeited recognizance. “A

recognizance for the good behavior may be forfeited …

by going armed with unusual attendance, to the terror

of the people.” 5 Blackstone 256 (1803). At Common

Law, just as people could legally own weapons, large

groups of people could legally gather, so long as their

purpose was lawful. It is when those groups of people

became threatening (or terrifying), that those groups

were labeled as unusual attendance to the terror of the

public and became unlawful. Similarly, when the

manner in which one carries a weapon becomes

threatening, it is labeled an unusual weapon.

When used to describe weapons, the word,

“unusual” is not being used in a different way than

when it is being used to describe attendance.

10

Blackstone states, “Any justice of the peace may… bind

all those… who make any affray; or threaten to kill or

beat another; or contend together with hot and angry

words; or go about with unusual weapons or

attendance, to the terror of the people” 5 Blackstone

254 (1803). Just as the common law is not outlawing

the assembly of unusual people, the common law is not

referring to the type of weapon involved when it

mentions unusual weapons. The historical phrase,

“dangerous and unusual weapons” does not refer to

classes of weapons as the lower courts have erroneously

held. Rather it describes a class of behavior when

carrying weapons.

Other, stricter laws outlawed specific types of

weapons for certain individuals. “The keeping or

carrying any gun-powder, shot, club, or other weapon,

whatsoever, offensive or defensive, by any negroe or

mulatto whatsoever (except in certain special cases) is

an offence, for which the gun or other weapon may be

seized, and the offender whipped, by order of a justice

of the peace.” 4 Blackstone 175 (1803). Similarly, King

George III issued a statute outlawing the possession of

“pistol, hanger, cutlass, bludgeon, or other offensive

weapon with intent feloniously”. 5 Blackstone 169

(1803). And declared, “such a person shall be deemed a

rogue and a vagabond”. Id. If the term dangerous and

unusual weapons meant a type of prohibited arm, then

the legislature would have used that phrase with these

laws. Rather the carrying of dangerous and unusual

weapons refers to a class of conduct with protected

arms.

11

Historically, this class of conduct was that which

caused terror. Terror in this context means carrying in

a threatening manner. A 1675 dictionary defines terror

as, “dread, great fear or fright”. An Universal

Etymological Dictionary (R. Ware, W. Innys and J.

Richardson, J. Knapton (and twelve others)) (1675). An

affray may not be committed in private because then,

the public would not be terrified. F. Wharton, A

Treatise on the Criminal Law of the United States 726

(1852). The Cyclopedia Law Dictionary from 1922

defined terror as:

That state of mind which arises from the event

or phenomenon that may serve as a prognostic of

some catastrophe; affright from apparent

danger. One of the constituents of the offense of

riot is that the acts of the persons engaged in it

should be to the terror of the people, as a show of

arms, threatening speeches, or turbulent

gestures; but it is not requisite, in order to

constitute this crime, that personal violence

should be committed.

The Cyclopedia Law Dictionary (Walter A. Shumaker

and George Foster Longsdorf, ed. Callaghan and

Company 1922) (1901).

The Collegiate Law Dictionary from 1925 defines

terror as “1. The state of mind which arises from the

event or phenomenon that may serve as a prognostic of

some catastrophe. 2. Affright from apparent danger.”

The Collegiate Law Dictionary (James John Lewis ed.

(1925), The American Law Book Company (1925)).

Historically, “terror” was an apprehension of harm to

come. In describing a mugging, James Wilson wrote, “If

12

one assault another with such circumstances of terror

as to put him in fear, and he, in consequence of his

fear, deliver his money; this is a sufficient degree of

violence”. 3 Wilson 59 (1804).

Later, Wilson described arson as “a crime of deep

malignity … The confusion and terror which attend

arson, and the continued apprehension which follows

it, are mischiefs frequently more distressing than even

the loss of the property.” Id. at 63. In describing an

ideal judge, Wilson writes, “He ought, indeed, to be a

terror to evil doers”. 2 Wilson 300 (1804). Wilson wrote,

in describing interrogation methods, “terror is

frequently added to fraud. The practice… is said… to

have been derived its origin from the customs of the

inquisition.” 3 Wilson 155 (1804).

Giles Jacob’s law dictionary states, when describing

a legal device known as a Surety of the Peace (which

appears to be a promise not to harm), “the demand of

the Surety of the Peace ought to be soon after the cause

of fear; for the suffering much time to pass before it is

demanded, shews that the party has been under no

great terror.” Giles Jacob, The law-dictionary 149 (P.

Bryne 1811 first American from the second London

edition) (1811). Jacob further described the difference

between mere fear and terror while defining the word,

“robbery”. Jacob wrote,

[a]nd when it is laid to be done by putting in

fear, this does not imply any great degree of

terror, or affright in the party robbed. It is

enough that so much force, or threatening by

word or gesture, be used, as might create an

13

apprehension of danger, or induce a man to part

with his property without or against his consent.

Id. at 546. From these sources, terror, is more than

mere apprehension of danger; it might more aptly be

described as the apprehension of an extreme danger, or

a catastrophe.

Some American case law comports with the above

view. A 1795 case describes “a defence based upon the

ground of duress and terror”. U.S. v. Vigol, 2 U.S. 346

(1795). Another 1795 case stated, “raising a body of

men to …oppose and prevent by force and terror, the

execution of a law, is an act of levying war.” U.S. v.

Mitchel, 2 U.S. 348 (Pennsylvania circuit court 1795).

However, other old American cases treat the word,

“terror” as if it were synonymous with the word,

“threat”. One case mentions people “armed with all the

terrors of forfeiture” Warder v. Arell, 2 Va. 282 (1796).

Another case mentions “the terror of public censure”.

State v. Norris 2 N.C. 429 (1796). A third case mentions

“the terrors of a law-suit”. Neilson & Sarrazin v.

Dickenson, 1 Des. 133 (1785).

Either way, as historically understood, the

prohibition against carrying dangerous and unusual

weapons requires an arm to be carried in a threatening

manner. The longstanding prohibition on the carrying

of “dangerous and unusual weapons” thus refers to

types of conduct with weapons. “A man has a clear

right to protect himself when he is going singly or in a

small party upon the road where he is traveling or

going for the ordinary purposes of business. But I have

no difficulty in saying you have no right to carry arms

to a public meeting, if the number of arms which are so

14

carried are calculated to produce terror and alarm”.

Rex v. Dewhurst, 1 State Trials, New Series 529 (1820).

A necessary element of this common law crime of

affray, to which the “dangerous and unusual”

prohibition refers, had always required that the arms

be used or carried in such manner as to terrorize the

population, rather than in the manner suitable for

ordinary self-defense.

Heller’s first source on the topic, Blackstone, offered

that “[t]he offence of riding or going armed, with

dangerous or unusual weapons, is a crime against the

public peace, by terrifying the good people of the land.”

4 William Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND 148-49 (1769) (emphasis added).

Blackstone referenced the 1328 Statute of

Northampton, which, by the time of the American

Revolution, English courts had long limited to prohibit

the carrying of arms only with evil intent, “in order to

preserve the common law principle of allowing

‘Gentlemen to ride armed for their Security.’” David

Caplan, The Right of the Individual to Bear Arms: A

Recent Judicial Trend, DET. L. C. REV. 789, 795

(1982) (citing Rex v. Knight, 90 Eng. Rep. 330 (K.B.

1686)). “[N]o wearing of arms is within the meaning of

this statute, unless it be accompanied with such

circumstances as are apt to terrify the people,” by

causing “suspicion of an intention to commit an[] act of

violence or disturbance of the peace.” TREATISE ON

THE PLEAS OF THE CROWN, ch. 63, § 9 (Leach ed.,

6th ed. 1788); see Joyce Lee Malcolm, TO KEEP AND

BEAR ARMS: THE ORIGINS OF AN ANGLOAMERICAN RIGHT 104-05 (1994).

15

Heller’s additional citations regarding the

“dangerous and unusual” doctrine are in accord.

“[T]here may be an affray, where there is no actual

violence; as where a man arms himself with dangerous

and unusual weapons, in such a manner, as will

naturally diffuse a terrour among the people.” James

Wilson, WORKS OF THE HONOURABLE JAMES

WILSON (Bird Wilson ed., 1804) (footnote omitted)

(emphasis added). “It is likewise said to be an affray, at

common law, for a man to arm himself with dangerous

and unusual weapons, in such manner as will naturally

cause terror to the people.” John A. Dunlap, THE NEWYORK JUSTICE 8 (1815) (emphasis added).

Charles Humphreys stated, that:

[r]iding or going armed with dangerous or

unusual weapons, is a crime against the public

peace, by terrifying the people of the land … But

here it should be remembered, that in this

country the constitution guar[]anties to all

persons the right to bear arms; then it can only

be a crime to exercise this right in such a

manner, as to terrify the people unnecessarily.

Charles Humphreys, A COMPENDIUM OF THE

COMMON LAW IN FORCE IN KENTUCKY 482

(1822); see also Heller, at 588 n.10 (quoting same). It is

the manner of how the right is exercised, not the type

of weapon that is carried, that constitutes the crime.

Said another way, just because a firearm or other

weapon is in common usage at the time does not make

the manner in which the right is exercised excused or

excusable simply due to the type of firearm or weapon

carried.

16

“[T]here may be an affray … where persons arm

themselves with dangerous and unusual weapons, in

such manner as will naturally cause a terror to the

people.” William Oldnall Russell, A TREATISE ON

CRIMES AND INDICTABLE MISDEMEANORS 271

(1826). But:

it has been holden, that no wearing of arms is

within [meaning of Statute of Northampton]

unless it be accompanied with such

circumstances as are apt to terrify the people;

from whence it seems clearly to follow, that

persons of quality are in no danger of offending

against the statute by wearing common weapons

… in such places, and upon such occasions, in

which it is the common fashion to make use of

them, without causing the least suspicion of an

intention to commit any act of violence, or

disturbance of the peace.

Id. at 272. The Supreme Court then referred to

F. Wharton’s A Treatise on the Criminal Law of the

United States:

An affray, as has been noticed, is the fighting of

two or more persons in some public place, to the

terror of the citizens. (footnote omitted) There is

a difference between a sudden affray and a

sudden attack. An affray means something like

a mutual contest, suddenly excited, without any

apparent intention to do any great bodily harm.

(footnote omitted). … yet it seems certain that in

some cases there may be an affray where there

is no actual violence; as where a man arms

himself with dangerous and unusual weapons,

17

in such a manner as will naturally cause a

terror to the people, which is said to have been

always an offence at common law, and is strictly

prohibited by the statute. For by statute 2 Edw.

3., s. 3, in force in several of the United States,

it is enacted….

F. Wharton, A Treatise on the Criminal Law of the

United States 726 (1852).

Wharton also includes a manner requirement to the

rule against dangerous and unusual weapons. If a man

armed himself with a dangerous and unusual weapon

in such a manner that did not naturally cause a terror

to the people, he would not be guilty of an affray. After

discussing the King’s statute, Wharton stated:

It has been said generally, that the public and

open exhibition of dangerous weapons by an

armed man, to the terror of good citizens, is a

misdemeanor at common law. (State v. Huntley,

3 Iredell, 418; but see State v. Simpson, 5 Yerger

356). On the same general reasoning, it has been

held indictable to drive a carriage through a

crowded street, in such a way as to endanger the

lives of the passers-by ; (footnote omitted) to

disturb a congregation when at religious

worship; (footnote omitted) to beset a house,

with intent to wound, tar and feather; (footnote

omitted) to raise a liberty-pole,6 in the year

6

“Liberty poles originated as large wooden columns—often

fashioned out of ship masts--erected in public squares as part of

the ‘rites of resistance’ to British authority during the American

Revolution… After the revolution, they were used as symbols of

18

1794, as a notorious and riotous expression of illwill to the government; (footnote omitted) to tear

down forcibly and contemptuously an

advertisement set up by the commissioners of a

sale of land for county taxes; (footnote omitted)

to break into a house in the day-time, and

disturb its inhabitants; (footnote omitted) and to

violently disturb a town-meeting, though the

parties engaged were not sufficient in number to

amount to a riot.

F. Wharton, A Treatise on the Criminal Law of the

United States 726 (1852).

All of Wharton’s examples compare the reasoning

behind outlawing riding with dangerous weapons to

the terror of the public with behavior that caused a

disruption to the public peace by engaging in behavior

that disrupts others’ peace. This supports the

proposition that carrying dangerous and unusual

weapons to the terror of the people is a manner of carry

which disturbs others rather than a particular type of

weapon. Notably, Wharton referenced rioting. In order

resistance during the Whiskey Rebellion … They were also

adopted by Jeffersonian Republicans as ‘prominent and easily

recognizable symbols of liberty, equality, and republicanism,’ and

as symbols of opposition to the Federalist government and to the

Sedition Act. [] By the middle of the nineteenth century, the

erection of liberty poles ‘on highways and public squares’ by ‘each

political party of the country to express its greater devotion to the

rights of the people’ had come to be viewed as ‘a custom sanctioned

by a hundred years and interwoven with the traditions, memories

and conceded rights of a free people.’” City of Allegheny v.

Zimmerman, 95 Pa. 287, 294 (1880).

19

to be charged with rioting, a certain number of people

must be involved. Blackstone defined a riot as follows:

[r]iots, routs, and unlawful assemblies, must

have three persons at least to constitute them

(footnote omitted) … A riot is where three or

more actually do an unlawful act of violence,

either with or without a common cause or

quarrel (footnote omitted): as if they beat a man;

or hunt and kill game in another’s park, chase,

warren, or liberty; or do any other unlawful act

with force and violence; or even do a lawful act,

as removing a nuisance, in a violent and

tumultuous manner.

5 St. George Tucker, Blackstone’s Commentaries: with

Notes of Reference, to the Constitution and the Laws,

of the Federal Government of the United States; and of

the Commonwealth of Virginia 146 (1803). The rule

against riots is meant to help preserve the public peace

and to avoid unruly mobs. Similarly, to preserve the

peace, the common law has outlawed reckless displays

of firearms in public.

The other sources Heller cites in support of the

“dangerous and unusual” doctrine are in accord, as are

the cases Heller cites. See O’Neill v. State, 16 Ala. 65,

67 (1849) (affray “probable” “if persons arm themselves

with deadly or unusual weapons for the purpose of an

affray, and in such manner as to strike terror to the

people”) (emphasis added); State v. Langford, 10 N.C.

(3 Hawks) 381, 383-384 (1824) (affray “when a man

arms himself with dangerous and unusual weapons, in

such a manner as will naturally cause a terror to the

people”) (emphasis added); English v. State, 35 Tex.

20

473, 476 (1871) (affray “by terrifying the good people of

the land”). In fact, one does not even need to be armed

with a firearm to commit the crime of affray under the

dangerous and unusual doctrine. See State v. Lanier,

71 N.C. 288, 290 (1874) (riding horse through

courthouse, unarmed, is “very bad behavior” but “may

be criminal or innocent” depending on whether people

alarmed).

And in Simpson v. State (1833), the Supreme Court

of Errors and Appeals of Tennessee dismissed an

indictment alleging that “William Simpson, laborer,

with force and arms being arrayed in a warlike

manner, in a certain public street or highway situate,

unlawfully, and to the great terror and disturbance of

divers good citizens, did make an affray . . . .” Simpson

v. State, 13 Tenn. Reports (5 Yerg.) 356, 361 (1833).

The Attorney General sought to rely on Hawkins’ claim

that “there may be an affray . . .where a man arms

himself with dangerous and unusual weapons, in such

a manner as will naturally cause terror to the people,

which is said always to have been an offence at

common law, and is strictly prohibited by many

statutes.” Id. at 358.

The court held that the indictment was insufficient

as it failed to allege the elements of an affray of

fighting between two or more persons. The Simpson

court repeated Hawkins’ comment about the Statute of

Northampton that “persons of quality are in no danger

of offending against this statute by wearing their

common weapons, or having their usual number of

attendants with them, for their ornament or defence, in

such places and upon occasions in which it is the

21

common fashion to make use of them without causing

the least suspicion of an intention to commit any act of

violence or disturbance of the peace.” Id. at 358-59

citing Hawkins, Pleas of the Crown, book 1, ch. 28, sec.

4. 40.

The traditional right to arms “was not a right to

keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” Heller at 626.

It was a right to keep and carry weapons for usual

purposes such as self-defense. This Court should find

that the Second Amendment applies outside the home

because there is a historical right to carry arms. It

should do because the prohibitions on carrying

dangerous and unusual weapons demonstrates that

there was a right to carry for usual purposes. If there

were not, then the prohibition on the carry of

dangerous and unusual weapons would not have been

required. There simply would have been prohibitions

on carrying weapons.

Heller’s reliance on this phrase means that it holds

that the Second Amendment right extends to armed

self-defense outside the home. This Court should do the

same here. Correctly interpretating Heller’s dangerous

and unusual language makes sense of its statement

that “laws forbidding the carrying of firearms in

sensitive places such as schools and government

buildings” were constitutional. See Heller, 554 U.S. at

626. As shown above, historically it was permissible to

prohibit carrying in places where it would be unusual

to do so. Those places are what Heller refers to when is

discusses sensitive places. It might be unusual to carry

an arm in one location but not another. People used to

22

wear ornamental and defensive weapons as part of

their everyday dress. George Neumann, The History of

Weapons of the American Revolution 150 Harper &

Row 1967. (“It was considered normal for civilians to

carry pocket pistols for protection while traveling.”).

This also makes sense considering Justice Scalia’s

comments on this issue. “[T]here was a tort called

affrighting, which if you carried around a really

horrible weapon just to scare people, like a head ax or

something, that was, I believe, a misdemeanor”. See

Susan Jones, “Justice Scalia on 2nd

Amendment Limitations: ‘It Will Have to Be

Decided,’” CNSNews.com, July 30, 2012,

http://cnsnews.com/news/article/justice-scalia-2ndamendment-limitations-it-will-have-be-decided (last

visited 7/14/2021).

Historically, it was normal (usual) for a person to

carry an English short sword or dagger to the market

and that carry would not be prohibited. Whereas

carrying a head axe dressed in full plate mail would be

unusual at an English market and could be prohibited

because that would likely cause a terror to the people.

Similarly, it is constitutionally protected to carry a

handgun in most areas. However, in some of those

areas it may be permissible to prohibit carrying a long

arm while wearing tactical armor even though the

government cannot prohibit the carry of handguns.

At Common Law, one had a right to carry protected

arms. The government cannot strip the right to carry

protected arms without demonstrating that carrying

within an area with that specific arm is unusual. This

Court should find that the Second Amendment right

23

extends to armed self-defense outside the home based

on the fact the tradition of prohibiting carrying

dangerous and unusual weapons directly supports a

historical right to carry weapons for usual purpose

such as self-defense. The government may only

prohibit carrying in “‘well-defined and narrowly

limited’ category of prohibitions ‘that have been

historically unprotected’” Jackson v. City & Cty. of S.F.,

746 F.3d 953, 960 (9th Cir. 2014).

CONCLUSION

This Court should reverse the Second Circuit and

find that the denial of Petitioners’ handgun carry

applications violated the Second Amendment.

Respectfully submitted,

ALAN ALEXANDER BECK

Counsel of Record

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck@gmail.com

STEPHEN D. STAMBOULIEH

STAMBOULIEH LAW, PLLC

P.O. Box 428

Olive Branch, MS 38654

(601) 852-3440

Stephen@sdslaw.us

Counsel for Amicus Curiae

July 16, 2021