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

No. 20-843

In the Supreme Court of the United States

__________________

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., ET AL.,

Petitioners,

v.

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.,

Respondents.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

__________________

BRIEF OF AMICI CURIAE THE LIBERAL GUN

CLUB AND COMMONWEALTH SECOND

AMENDMENT IN SUPPORT OF PETITIONERS

__________________

DAVID D. JENSEN

Counsel of Record

DAVID JENSEN PLLC

33 Henry Street

Beacon, New York 12508

(212) 380-6615

david@djensenpllc.com

Counsel for Amici Curiae

July 20, 2021

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

i

TABLE OF CONTENTS

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

ii

TABLE OF AUTHORITIES

CASES

Commonwealth v. Cushard,

132 A.2d 366 (Pa. Super. Ct. 1957) . . . . . . . 16, 17

Commonwealth v. Kennedy,

64 Pa. D. & C.2d 771 (1973) . . . . . . . . . . . . . . . . 17

Commonwealth v. Miller,

305 A.2d 346 (Pa. 1973) . . . . . . . . . . . . . . . . . . . 17

Commonwealth v. Rice,

8 Pa. D. & C. 295 (1926) . . . . . . . . . . . . . . . . . . . 17

Evans v. Hughes,

56 Cr. App. R. 813 (1972) . . . . . . . . . . . . . . . . . . 22

R. v. Meade,

19 L. Times Repts. 540 (1903) . . . . . . . . . . . . . . 11

R. v. Sec’y of State for Transport ex parte

Factortame, Ltd. (No. 2),

[1991] 1 A.C. 603; [1990] 3 C.M.L.R. 375 (H.L.) . . 18

R. v. Jones,

1 Cr. App. R. 262 (1994) . . . . . . . . . . . . . . . . . . . 22

R. v. Sandbach ex parte Williams,

[1935] 2 K.B. 192 . . . . . . . . . . . . . . . . . . . . . . . . . 7

R. v. Smith,

2 Ir. Rep. 190 (1914) . . . . . . . . . . . . . . . . . . . . . 11

R. v. Soley,

[1703] 88 E.R. 935 (K.B.) . . . . . . . . . . . . . . . . . . 10

iii

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017). . . . . . . . . . . . . . . . 8

Young v. Hawaii,

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

STATUTES

1692 Mass. Acts ch. 18 . . . . . . . . . . . . . . . . . . . . 11, 12

1794 Mass. Acts ch. 26 . . . . . . . . . . . . . . . . . . . . . . . 14

Firearms Act, 1920 3Edw. VII c.18 . . . . . . . 20, 21, 22

Gun License Act, 1870 33 & 34 vict. c.57 . . 18, 19, 22

Haw. Rev. Stat. §134-9(c). . . . . . . . . . . . . . . . . . . . . . 4

Justices of the Peace Act 1361, 34 Edw. 3 c1 . . . . . . 6

N.Y. Penal L. §265.01 . . . . . . . . . . . . . . . . . . . . . . . . 4

Pa. Act of Mar. 31, 1860. . . . . . . . . . . . . . . . . . . . . . 16

Pistols Act, 1903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

REVISED STATUTES OF THE COMMONWEALTH OF

MASSACHUSETTS (1836). . . . . . . . . . . . . . . 4, 14, 15

Statute Law (Repeals) Act 1969, 1969 c. 52 . . . . . . 19

Statute of Northampton, 2 Edw. 3 (1328) . . . . . . . 5, 7

The Prevention of Crimes Act, 1953,

1 & 2 Eliz. II c. 14 . . . . . . . . . . . . . . . . . . . . . . . . 22

OTHER AUTHORITIES

1 W. HAWKINS, A TREATISE OF THE PLEAS OF THE

CROWN (1716) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

iv

2 W. HAWKINS, A TREATISE OF THE PLEAS OF THE

CROWN (7th ed. 1795) . . . . . . . . . . . . . . . . . . . . . 11

4 WILLIAM BLACKSTONE, COMMENTARIES . . 6, 7, 8, 17

Nathaniel J. Berry, Justice of the Peace Manuals in

Virginia Before 1800, 26 J. S. LEGAL HIST. 315

(2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

SIR ERNLEY BLACKWELL, REPORT OF THE

COMMITTEE ON THE CONTROL OF FIREARMS (Nov.

15, 1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

GEORGE BURN, THE JUSTICE OF THE PEACE, AND

PARISH OFFICER (18th ed. 1793). . . . . . . . . . . . . 10

WILLIAM WALLER HENING, THE NEW VIRGINIA

JUSTICE (1795) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

HOME OFFICE, GUIDANCE FROM HOME OFFICE ON

FIREARMS ACT (Oct. 5, 1920) . . . . . . . . . . . . . . . 21

HOME OFFICE, MEMORANDUM FOR THE GUIDANCE OF

THE POLICE, FIREARMS ACT 1937 . . . . . . . . . . . . 21

HOME OFFICE, MEMORANDUM FOR THE GUIDANCE OF

THE POLICE, 1964 . . . . . . . . . . . . . . . . . . . . . . . . 21

HOME OFFICE, MEMORANDUM FOR THE GUIDANCE OF

THE POLICE, September, 1969 . . . . . . . . . . . . . . 21

JOYCE LEE MALCOLM, GUNS AND VIOLENCE: THE

ENGLISH EXPERIENCE (2002) . . . . . . . . . . . . 19, 21

Derek Phillips, Wrongs and Rights: Britain’s

Firearms Control Legislation at Work, 15 J. ON

FIREARMS & PUB. POL’Y 123 (2003) . . . . . . . . . . 18

v

Peter Power, An Honour and Almost a Singular

One: A Review of the Justices’ Preventive

Jurisdiction, 8 MONASH U. L. REV. 69 (1981) . . . 7

THE LAW COMMISSION, BINDING OVER (Law Com.

No. 222) (Feb. 1994) . . . . . . . . . . . . . . . . . . . . . . . 6

GEORGE WEBB, THE OFFICE AND AUTHORITY OF A

JUSTICE OF PEACE (1736) . . . . . . . . . . . . . . . . . . . 9

1

INTEREST OF THE AMICI CURIAE1

The Liberal Gun Club provides a voice for gunowning liberals and moderates in the national

conversation on gun rights, gun legislation, firearms

safety and the shooting sports. The Club serves as a

national forum for all people, irrespective of their

personal political beliefs, to discuss firearms

ownership, firearms use and the enjoyment of firearmsrelated activities—free from the destructive elements

of political extremism that sometimes dominate this

subject on the national scale. The Club actively

develops and fosters a variety of programs for the

purpose of firearms training and firearms safety

education, for both gun owners and non-gun owners

alike.

While the Club’s membership is primarily left-ofcenter individuals who also enjoy owning and using

firearms, its members come from every political

ideology—including but not limited to Democrat,

Independent, Libertarian, Democratic Socialist,

Republican and Green. The national Club has three

focuses: education, outreach and speaking out on

Second Amendment-related issues when the Club’s

unique perspective can bring value to the conversation.

For example, Club members in Virginia recently met

with liberal elected officials to discuss their concerns

about a package of laws that would have broadly

1

No counsel for any party authored this brief in whole or in part,

nor did any counsel or party make any monetary contribution

intended to fund the preparation or submission of this brief. All

parties’ counsel of record received timely notice of the intended

filing of this brief, and all consented to its filing.

2

restricted semiautomatic firearms and magazines. The

Club was the only voice that both came from a liberal

perspective and also embraced the right of the people

to keep and bear arms. Likewise, club members in

Oregon have met with left-of-center elected officials to

discuss their concerns about a proposed firearmsstorage law. Again, the Club served as the only voice

that both came from a perspective that was both liberal

and that embraced the right of the people to keep and

bear arms.

One of the Club’s core missions is to educate the

public about the importance of root cause

mitigation—that is, addressing the root causes of crime

and social problems, rather than the symptoms of those

problems. While there is debate about whether and to

what extent various gun restrictions will impact the

number of crimes that ultimately take place in society,

what is sadly clear is that any such impacts are

universally very small when compared with the gains

that would attend achieving a more just society—one

that ensures that all of its citizens have access to the

basic necessities of healthcare, housing and meaningful

opportunities.

Commonwealth Second Amendment, Inc.

(“Comm2A”) is a Massachusetts nonprofit corporation

dedicated to preserving and expanding the Second

Amendment rights of individuals residing in

Massachusetts and New England. Comm2A works

locally and with national organizations to promote a

better understanding of the rights that the Second

Amendment guarantees. Comm2A has previously

submitted amicus curiae briefs to this Court and to

3

state supreme courts, and it has also sponsored

litigation to vindicate the rights of law-abiding

Massachusetts gun owners. Comm2A receives and

responds to many queries from the public regarding

firearms laws and licensing in Massachusetts, and

particularly, regarding the imposition of restrictions on

Massachusetts firearms licenses—an issue that is

highly analogous to that presented in the case at bar.

New York’s “proper cause” standard, and the

discretion it allows for, substantially impacts both

organizations. Both organizations have members who

live in New York, and as such, members of both

organizations hold pistol licenses that carry “Target &

Hunting” (and similar) restrictions, which preclude

them from bearing arms for the core Second

Amendment purpose of self-defense. Moreover,

Comm2A is uniquely interested in issues surrounding

Massachusetts law, and as will be seen, some lower

courts have relied on misinterpretations of historical

Massachusetts laws to uphold broad preclusions on the

ability to bear arms.

SUMMARY OF ARGUMENT

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

the majority of an en banc panel of the Court of

Appeals for the Ninth Circuit concluded that laws in

place at the time of the founding were tantamount to

broad preclusions on carrying firearms in public such

that the Second Amendment’s guarantee of “the right

of the people to keep and bear arms” did not protect the

bearing of arms in public. The Hawaii law at issue in

Young, like the New York law at issue in the case at

bar, broadly precluded the ability to bear arms in

4

public. See Haw. Rev. Stat. §134-9(c) (prohibiting

“carry concealed or unconcealed” in the absence of a

license); N.Y. Penal L. §265.01-B (prohibiting

“possess[ion of] any firearm”). This amici curiae brief

shows that the Young court’s conclusion is unsupported

and untenable. Contrary to the panel’s conclusion, the

historical laws it discussed did not stand as general

prohibitions on the peaceful carry of arms. Rather,

these laws specifically did not apply to law-abiding

citizens who did not create a threat to others.

Moreover, and setting this aside, the restrictions that

the United Kingdom placed on carrying firearms and

other weapons during the Twentieth Century bely any

claim that laws from the Fourteenth Century already

stood as broad preclusions on the bearing of arms.

ARGUMENT

In Young, the panel majority concluded that an

1836 Massachusetts law was tantamount to “a goodcause restriction” on carrying guns that “permitted

public carry, but limited it to persons who could

demonstrate their need to carry for the protection of

themselves, their families, or their property.” See

Young, 992 F.3d at 799 (citing REVISED STATUTES OF

THE COMMONWEALTH OF MASSACHUSETTS ch. 134, § 16

(1836)). The panel went on to reason that “[a] number

of states followed Massachusetts and adopted some

version of” this Massachusetts law, thereby also

adopting broad preclusions on carry. See id. at 799-800;

see also id. at 819. The Ninth Circuit

reasoned—without any citation—that the

Massachusetts law “did not require proof that the

person carrying was a threat to the complainant; it was

5

sufficient for the complainant to show that there was a

threat to the peace. . . .” Id. According to the panel,

“surety laws” like this one from Massachusetts

“show[ed] that carrying arms in public was not treated

as a fundamental right” during the country’s early

days. See id.

Similarly, the Ninth Circuit panel described the

Statute of Northampton, 2 Edw. 3, c. 3 (1328), and its

colonial and stateside equivalents, as “broad

prohibitions on the public carriage of firearms,” Young,

992 F.3d at 796. The panel’s reasoning was that early

Americans “brought with them the English

acquiescence to firearm limitations outlined in the

Statute of Northampton,” and that “restrictions on

firearms in public were prevalent in colonial law.” Id.

An examination of the historical record shows that

these conclusions are untenable. The colonial laws that

Young considered were not plucked from thin air, as

some sort of newly derived “Massachusetts model,” but

were instead enactments that codified established

parameters of English law in place at the time of the

founding. Specifically, these laws codified the

established parameters of the Statute of Northampton,

which—at least as it had developed—prohibited the

bearing of arms in terrorem populi as affray, as well as

the established parameters of “binding over”

individuals to prevent breaches of the peace and to

ensure their good behavior. Contrary to the conclusions

of the Young majority, neither the Statute of

Northampton nor the practice of “binding over” stood as

general prohibitions on bearing arms by the peaceful.

6

To the contrary, both acted to restrain only those who

were not peaceful.

Begin with the historical power to “bind over”

individuals in order to prevent breaches of the peace.

At common law, a justice of the peace had authority to

“bind all those to keep the peace, who in his presence

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; and all such as he knows to be common

barretors.” 4 WILLIAM BLACKSTONE, COMMENTARIES

*251-52 (citing 1 W. HAWKINS, A TREATISE OF THE

PLEAS OF THE CROWN 126 (1716)). The Justices of the

Peace Act 1361, 34 Edw. 3 c. 1, expanded this power by

directing justices of the peace “to take of all them that

be not of good fame, where they shall be found,

sufficient surety and mainprise of their good behaviour

towards the King and his people,” id.

The Justices of the Peace Act and its statutory

power to “bind over” for good behavior—that is, to

require that individuals post surety to ensure their

good conduct—remains in force today, and is an area of

English law that “has been heavily influenced by

Blackstone.” THE LAW COMMISSION, BINDING OVER

(Law Com. No. 222) ¶ 2.4 (Feb. 1994). Blackstone

explained that magistrates could require good behavior

sureties “for causes of scandal, contra bonos mores

[against good morals], as well as contra pacem [against

the peace].” 4 WILLIAM BLACKSTONE, COMMENTARIES

*253. Accordingly, magistrates could:

bind over all night-walkers, eves-droppers; such

as keep suspicious company, or are reported to

7

be pilferers or robbers; such as sleep in the day,

and wake on the night; common drunkards;

whoremasters; the putative fathers of bastards;

cheats; idle vagabonds; and other persons, whose

misbehaviour may reasonably bring them within

the general words of the statute, as person not of

good fame[.]

Id. While this power was (and is) broad, it is not

unlimited, but instead requires “a probable ground to

suspect of future misbehaviour.” R. v. Sandbach ex

parte Williams, [1935] 2 K.B. 192, 196 (quoting 4

WILLIAM BLACKSTONE, COMMENTARIES *248). In this

connection, one commenter attempted to derive “five

partially overlapping categories of conduct considered

reprehensible enough to attract the jurisdiction.” See

Peter Power, An Honour and Almost a Singular One: A

Review of the Justices’ Preventive Jurisdiction, 8

MONASH U. L. REV. 69, 89-90 (1981). These ranged from

“causes for which a man may also be bound to keep the

peace” to “those who are of evil name or evil behavior

generally.” See id. And significantly, once bound over,

a person could forfeit their recognizance by,

pertinently, “going armed with unusual attendance, to

the terror of the people,” as well as “by speaking words

tending to sedition; or, by committing any of those acts

of misbehaviour, which the recognizance was intended

to prevent.” 4 WILLIAM BLACKSTONE, COMMENTARIES

*254.

Operating at the same time was the Statute of

Northampton, 2 Edw. 3, c. 3 (1328), which provided:

that no man great nor small, of what condition

soever he be, except the king’s servants in his

8

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 such acts happen,] be

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

other of the King’s ministers doing their office,

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.

Id.; see also Wrenn v. District of Columbia, 864 F.3d

650, 659 (D.C. Cir. 2017). Blackstone explained that

“[t]he offense 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; and is

particularly prohibited by the Statute of Northampton.”

4 WILLIAM BLACKSTONE, COMMENTARIES *148-49. A

related crime was that of affray, which was “the

fighting of two or more persons in some public place, to

the terror of his majesty’s subjects.” Id. at *145. Riots,

routs and unlawful assemblies, in contrast, required at

least three individuals. See id. at *146.

Given that both the Justices of the Peace Act and

the Statute of Northampton date to the Fourteenth

Century, when language was somewhat different,

justice of the peace manuals from the time of our

country’s founding are particularly instructive on their

meaning. These shed light on the actual nature of these

9

laws, and particularly, on the actions they both

proscribed and left open. George Webb’s manual,

published in 1736, was the first manual that attempted

to integrate colonial laws with those of those of

England. See Nathaniel J. Berry, Justice of the Peace

Manuals in Virginia Before 1800, 26 J. S. LEGAL HIST.

315, 323 (2018). Webb explained that justices of the

peace “may apprehend any Person who shall go or ride

with unusual and offensive Weapons, in an Affray, or

among any great Concourte of the People, or who shall

appear, so armed, before the King’s Justices sitting in

Court, and may bind such Offender to the Peace, or

Good-behaviour; and if he refuses to be bound, may

commit him.” GEORGE WEBB, THE OFFICE AND

AUTHORITY OF A JUSTICE OF PEACE 13 (1736). Thus, as

it related to weapons, the power to bind over arose

when one engaged not in ordinary behavior, but in

extraordinary behavior—by riding “with unusual and

offensive Weapons,” or “among any great Concourte of

the People,” or “before the King’s Justices sitting in

Court.”

William Hening’s manual, published just after the

Revolution, similarly advised “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, in such a manner as will naturally

cause a terror to the people.” WILLIAM WALLER HENING,

THE NEW VIRGINIA JUSTICE 17 (1795). Hening

explained that this conduct “is said always to have

been an offence at the common law, and is strictly

prohibited by statute,” after which he quoted the

Statute of Northampton. See id. at 17-18. Yet, Hening

cautioned that “no person is within the intention of the

10

law” if they sought to suppress rioters and disturbers

of the peace, and as well:

Nor unless such wearing be accompanied with

such circumstances as are apt to terrify the

people; from whence it seems dearly to follow,

that the wearing of common weapons, or having

the usual number of attendants, merely for

ornament or defence, where it is customarv to

make use of them, will not subject a person to

the penalties of this act.

Id. at 18 (citing 1 W. HAWKINS, A TREATISE OF THE

PLEAS OF THE CROWN 136 (1716)). However, if someone

ran afoul of the Statute of Northampton, then they

could not “excuse the wearing . . . by alledging that

such a one threatened him.” Id. (citing 1 W. HAWKINS,

A TREATISE OF THE PLEAS OF THE CROWN 136 (1716)).

Notably, George Burn’s manual, published in England

around the same time, described the Statute of

Northampton using similar, and often verbatim,

language. See GEORGE BURN, THE JUSTICE OF THE

PEACE, AND PARISH OFFICER 18 (18th ed. 1793)

(“persons of quality are in no danger of offending

against this statute, by wearing common weapons”).

English caselaw from the time is also consistent

with the understanding that bearing arms, alone, is not

an offense in the absence of circumstances that cause

terror to others. For example, in 1703 King’s Bench

reversed the rioting convictions of two men because the

indictment had not alleged that the men had acted “in

terrorem populi.” See R. v. Soley, [1703] 88 E.R. 935,

937 (K.B.). The court explained that “[i]f a number of

men assemble with arms, in terrorem populi, though no

11

act is done, it is a riot.” Id. at 936-37. For, “[t]hough a

man may ride with arms, yet he cannot take two

[others] with him to defend himself, even though his

life is threatened.” Id. at 937 (citing 2 W. HAWKINS, A

TREATISE OF THE PLEAS OF THE CROWN 20-21 (7th ed.

1795)). This understanding—that the peaceful bearing

of arms, without more, is not unlawful—continued into

the twentieth century. One particular example is R. v.

Smith, [1914] 2 Ir. Rep. 190, 204 (K.B.), where King’s

Bench reversed a conviction for carrying a loaded

revolver on a public road because there had been no

proof that the defendant had acted “in terrorem populi”.

The court explained that “[t]he words ‘in affray of the

peace’ in the statute, being read forward into the ‘going

armed,’ render the former words part of the description

of the statutable offence” and accordingly mandate “two

essential elements of the offence—(1) That the going

armed was without lawful occasion; and (2) that the act

was in terrorem populi.” Id. at 204; see also R. v.

Meade, 19 L. Times Repts. 540, 541 (1903) (statute

covered one who made himself “a public nuisance by

firing a revolver in a public place, with the result that

the public were frightened or terrorized”).

In this light, the actual import of the Massachusetts

laws that the Ninth Circuit panel relied upon is clear.

Shortly after its organization, in 1692, the Province of

Massachusetts Bay enacted a chapter of criminal laws.

See 1692 Mass. Acts ch. 18. That chapter included a

section that provided, in full:

That every justice of the peace in the county

where the offence is committed, may cause to be

staid and arrested all affrayers, rioters,

12

disturbers or breakers of the peace, and such as

shall ride, or go armed offensively before any of

their majesties’ justices or other their officers or

ministers doing their office or elsewhere by night

or by day, in fear or affray of their majesties’

liege people, and such others as shall utter any

menaces or threatening speeches ; and upon

view of such justice or justices, confession of the

party or other legal conviction of any such

offence, shall commit the offender to prison until

he find sureties for the peace and good

behaviour, and seize and take away his armour

or weapons, and shall cause them to be apprized

and answered to the king as forfeited; and may

further punish the breach of the peace in any

person that shall smite or strike another, by fine

to the king not exceeding twenty shillings, and

require bond with sureties for the peace, or bind

the offender over to answer it at the next

sessions of the peace, as the nature or

circumstance of the offence may be ; and may

make enquiry of forcible entry and detainer, and

cause the same to be removed, and make out hue

and crys after runaway servants, thiefs and

other criminals.

1692 Mass. Acts ch. 18, § 6. Viewed in the light of

actual history, this section served to codify three

related legal principles that would have been familiar

to colonial jurists—rather than cutting from whole

cloth to create new prohibitions. Specifically, the

section combined the common law power to bind over

in order to prevent breaches of the peace with the

statutory power, derived from the Justices of the Peace

13

Act, to bind over for good behavior. Then, the section

identified the essential conduct that the Statute of

Northampton prohibited—“rid[ing], or go[ing] armed

offensively before any of their majesties’ justices or

other their officers or ministers doing their office or

elsewhere by night or by day, in fear or affray of their

majesties’ liege people”—as a specific ground for

arresting and binding over offenders.

This continued to hold true when, shortly after the

Revolution in 1794, the Commonwealth of

Massachusetts repealed its 1692 law in favor of a new

enactment, which similarly provided:

that every Justice of the peace, within the

County for which he may be commissioned, may

cause to be staid and arrested all affrayers,

rioters, disturbers or breakers of the peace, and

such as shall ride or go armed offensively, to the

fear or terror of the good citizens of this

Commonwealth, or such others as may utter any

menaces or threatening speeches, and upon view

of such Justice, confession of the delinquent, or

other legal conviction of any such offence, shall

require of the offender to find sureties for his

keeping the peace, and being of the good

behaviour; & in want thereof to commit him to

prison, untill he shall comply with such

requisition: And may further punish the breach

of the peace in any person that shall assault or

strike another, by fine to the Commonwealth not

exceeding twenty shillings, and require sureties

as aforesaid, or bind the offender to appear and

answer for his offence, at the next Court of

14

General Sessions of the Peace, as the nature or

circumstances of the case may require.

1794 Mass. Acts ch. 26. Again, this statute combined

the common law power to bind over to prevent breaches

of the peace with the statutory power to bind over for

good behavior. And, the statute identified the conduct

that Northampton proscribed—“rid[ing] or go[ing]

armed offensively, to the fear or terror of the good

citizens of this Commonwealth”—as a specific ground

that would justify arresting and binding over offenders.

If anything, the legislature’s elimination of references

to “their majesties’ justices” and other “officers or

ministers” makes the section’s meaning clearer. The

conduct prohibited was being “armed offensively,” and

doing so “to the fear or terror of the good citizens.”

The Ninth Circuit panel in Young placed the bulk of

its reliance on a provision in a statutory compilation

that the legislature published in 1836, which had

sought to consolidate and revise the existing laws of

Massachusetts. See REVISED STATUTES OF THE

COMMONWEALTH OF MASSACHUSETTS v-vi (1836); see

also Young, 992 F.3d at 799-800, 819-20.2 Chapter 134

of these Revised Statutes addressed “proceedings to

prevent the commission of crimes,” and included

section 16, which provided:

If any person shall go armed with a dirk, dagger,

sword, pistol, or other offensive and dangerous

weapon, without reasonable cause to fear an

2

The court in Young erroneously cited the 1836 Revised Statutes

as “1836 Mass. Acts 750, ch. 134,” a reference to a nonexistent act

of the legislature. See Young, 992 F.3d at 799-800, 820.

15

assualt or other injury, or violence to his person,

or to his family or property, he may, on

complaint of any person having reasonable cause

to fear an injury, or breach of the peace, be

required to find sureties for keeping the peace,

for a term not exceeding six months, with the

right of appealing as before provided.

REVISED STATUTES OF THE COMMONWEALTH OF

MASSACHUSETTS, ch. 134, § 16. Notably, this section

identified Chapter 26 of the 1794 Acts, discussed above,

as its genesis. See id. But notwithstanding the

language quoted above, requiring “reasonable cause to

fear an injury, or breach of the peace,” the Young court

reasoned that the statute “did not require proof that

the person carrying was a threat to the complainant; it

was sufficient for the complainant to show that there

was a threat to the peace.” Young, 992 F.3d at 820

(emphasis added). Incredibly, the court provided no

citation for this conclusion, aside from averring that it

was “a standard that harkened to the Statute of

Northampton,” see id.—a proposition that is untenable,

based on the “in terrorem populi” requirement that

attended a violation of that law.

Counsel and amici are not aware of any legal

authorities that construed this provision of the 1836

Revised Statutes. However, it is significant that courts

construing an analogous provision in Pennsylvania did

indeed conclude that a complaining party needed to

show a threat that resulted in fear in order to invoke

the statute. The Pennsylvania law, enacted in 1860,

provided:

16

If any person shall threaten the person of

another to wound, kill or destroy him, or do him

any harm in person or estate, and the person

threatened shall appear before a justice of the

peace, and attest, on oath or affirmation, that he

believes that by such threatening he is in danger

of being hurt in body or estate, such person so

threatening as aforesaid shall be bound over,

with one sufficient surety, to appear at the next

sessions, according to law, and in the meantime

to be of his good behavior, and keep the peace

towards all citizens of this commonwealth. If

any person, not being an officer on duty in the

military or naval service of the state or of the

United States, shall go armed with a dirk,

dagger, sword or pistol, or other offensive or

dangerous weapon, without reasonable cause to

fear an assault or other injury or violence to his

family, person or property, he may, on complaint

of any person having reasonable cause to fear a

breach of the peace therefrom, be required to

find surety of the peace as aforesaid.

Pa. Act of Mar. 31, 1860, P.L. 427, § 6, quoted in

Commonwealth v. Cushard, 132 A.2d 366, 368 (Pa.

Super. Ct. 1957). Thus, the 1860 Pennsylvania law

required a “complaint of any person having reasonable

cause to fear a breach of the peace therefrom,” while

the 1836 Massachusetts law required a “complaint of

any person having reasonable cause to fear an injury,

or breach of the peace”—which was essentially the

same, but for the inclusion of “injury” along with

“breach of the peace.”

17

And significantly, courts construing the

Pennsylvania provision were uniform in their

conclusion that a complainant needed to face a real

threat that placed them in fear. In 1926, for example,

a lower court quashed an indictment because the

prosecutor, rather than “the persons against whom the

threats are alleged to have been made,” was the one

pursuing the action. See Commonwealth v. Rice, 8 Pa.

D. & C. 295, 297 (1926). In 1957, a superior court

upheld a lower court’s order binding a defendant over

because the defendant’s threat had reflected “a

malicious intent to do harm,” and it had “put [the

complainant] in fear of her safety.” Cushard, 132 A.2d

at 368. Finally, in 1973 the Supreme Court of

Pennsylvania upheld the Pennsylvania statute,

notwithstanding the argument that it violated the right

to a trial by jury. See Commonwealth v. Miller, 305

A.2d 346, 348-49 (Pa. 1973). Notably, three justices

concurred by analogizing to Blackstone’s discussion of

sureties, discussed above. See id. at 351 (Nix, J.,

concurring) (quoting 4 WILLIAM BLACKSTONE,

COMMENTARIES *252-53); see also Commonwealth v.

Kennedy, 64 Pa. D. & C.2d 771, 773-74 (1973) (quoting

4 WILLIAM BLACKSTONE, COMMENTARIES *252-53).

Thus, the authorities that construed analogous

language in the Pennsylvania statute found that this

language did not mark a substantial change from the

prior practice of requiring a complaint by someone who

had been threatened and feared an injury. And, there

is no authority that counsels a different reading of the

Massachusetts statute. The irreducible conclusion is

that, contrary to the Young court’s conclusion, the

Massachusetts statute did not stand as a general

18

prohibition on carrying guns, but instead, on doing so

in a manner that amounted to a threat that caused

others to fear injury.

Beyond all this, the history of firearms regulation in

the United Kingdom itself belies the claim that

historical laws like the Statute of Northampton and the

Justices of the Peace Act stood as general prohibitions

on bearing arms, or as requirements that individuals

have sufficient “reason” or “cause” for doing so. At the

outset, we note that English law protects

“constitutional” rights in a different manner than does

the law of the United States, for in England,

Parliament is free to repeal and take away rights, even

though they may be deemed “constitutional.” See

generally R. v. Sec’y of State for Transport ex parte

Factortame, Ltd. (No. 2), [1991] 1 A.C. 603; [1990] 3

C.M.L.R. 375 (H.L.) (appeal taken from Eng.). At

present, there is general consensus that the United

Kingdom has effectively repealed the arms guarantee

contained in Declaration of Rights 1689. See, e.g.,

Derek Phillips, Wrongs and Rights: Britain’s Firearms

Control Legislation at Work, 15 J. ON FIREARMS & PUB.

POL’Y 123, 123, (2003). What is significant, for present

purposes, is that it was legislative developments during

the Twentieth Century, not the Fourteenth Century,

that brought about this repeal.

Parliament’s first action that regulated the general

act of carrying of guns was its enactment of the Gun

License Act, 1870, which required “[e]very person who

shall use or carry a gun elsewhere than in a dwellinghouse or the curtilage thereof” to obtain a license. See

Gun License Act, 1870, 33 & 34 Vict. c. 57, ¶ 7. The

19

Gun License Act did not require an individual seeking

a license to meet any particular qualifications,

although it did provide that a license would become

null and void upon a conviction for certain offenses. See

id. at ¶ 11. Moreover, the Act’s requirements did not

apply to licensed hunters and to individuals on their

own occupied lands, meaning that it was the act of

carrying guns—in public, and for reasons other than

hunting—that gave rise to the requirement of a license.

See id. at ¶ 7(2)-(4). Suffice it to say that no one had

the understanding that either the Statute of

Northampton3 or the Justices of the Peace Act already

prohibited the act of carrying a gun. To the contrary, on

the floor of Parliament the bill’s sponsor had expressed

his desire to limit the carrying of revolvers, while

opponents of the bill had objected that it was

“‘unconstitutional,’ since it would disarm the country to

a great extent.” See JOYCE LEE MALCOLM, GUNS AND

VIOLENCE: THE ENGLISH EXPERIENCE 117-18 (2002).

3

The Statute of Northampton remained in force until 1969. See

Statute Law (Repeals) Act 1969, 1969 c. 52.

20

The next significant action4 was Parliament’s

enactment of Firearms Act, 1920, 3 Edw. VII c. 18,

which significantly expanded the scope of firearms

regulation by mandating that no one “purchase, have

in his possession, use, or carry any firearm or

ammunition” unless they held a valid firearms

certificate, see id. at ¶ 1(1). Notably, before adopting

this legislation Parliament had, in 1918, established a

committee to “consider[] the question of the control

which it is desirable to exercise over the possession,

manufacture, sale, import and export of firearms and

ammunition in the United Kingdom after the war.” SIR

ERNLEY BLACKWELL, REPORT OF THE COMMITTEE ON

THE CONTROL OF FIREARMS (Nov. 15, 1918) (hereinafter,

the “BLACKWELL REPORT”). At its outset, the

committee’s report had observed that “[t]he Gun

License Act of 1870 only makes it necessary for [one] to

obtain an Excise License before he can legally use or

carry a gun outside the curtilage of his dwelling-house,

but a license can be obtained by the simple formality of

buying one at a Post Office for the sum of 10s.” Id. at

¶ 1(1). So again, there was no contention that historical

4

Parliament had enacted Pistols Act, 1903, 3 Edw. VII c. 18, but

this only regulated the sale of handguns by generally requiring

purchasers to have obtained licenses under the Gun License Act,

albeit with a number of exceptions, see id. at ¶ 3. For example,

exceptions were provided for householders who “propose[d] to use

such a pistol only in his own house or the curtilage thereof” and to

individuals who averred that they were “about to proceed abroad

for a period of not less than six months.” See id. Aside from setting

a presumptive minimum age of 18 years for handgun possession

(with an exception for licensed individuals), see id. at ¶ 4, Pistols

Act, 1903 did not regulate the carry or use of handguns.

21

laws already stood as general prohibitions on using or

carrying guns.

Firearms Act, 1920 changed the status quo by

directing police officials to issue firearms certificates

only if they were “satisfied that the applicant is a

person who has a good reason for requiring such a

certificate.” Firearms Act, 1920, 3 Edw. VII c. 18, at

¶ 1(2). Initially, Home Office issued directions that

indicated that self-defense could be a sufficient “good

reason.” See MALCOLM, GUNS AND VIOLENCE, supra, at

149 (quoting HOME OFFICE, GUIDANCE FROM HOME

OFFICE ON FIREARMS ACT, 1920 p. 3 (Oct. 5, 1920)). But

over time, this waned. In 1937, Home Office’s

directions provided that “applications to possess

firearms for house or personal protection should be

discouraged on the grounds that firearms cannot be

regarded as a suitable means of protection and may be

a source of danger.” Id. at 156 (quoting HOME OFFICE,

MEMORANDUM FOR THE GUIDANCE OF THE POLICE,

FIREARMS ACT 1937). And by 1964, the instruction was

that “[i]t should hardly ever be necessary to anyone to

possess a firearm for the protection of his house or

person,” and “only in very exceptional cases.” Id. at 171

(quoting HOME OFFICE, MEMORANDUM FOR THE

GUIDANCE OF THE POLICE, 1964, p. 7). Finally, in 1969,

it would “never be necessary for anyone to possess a

firearm for the protection of his house or person.” Id.

(quoting HOME OFFICE, MEMORANDUM FOR THE

GUIDANCE OF THE POLICE, September, 1969, p. 22).

While later acts of Parliament would further

restrict the keeping and bearing of arms—ultimately,

among other things, banning handguns to the general

22

public—it was Firearms Act, 1920 that instituted a

license requirement that was tied to a “good reason”

requirement. As Parliament itself recognized in the

Blackwell Report, before 1920 nothing but the Gun

License Act, 1870 stood to prevent one from “legally

us[ing] or carry[ing] a gun outside the curtilage of his

dwelling-house,” and the Gun License Act required

nothing more than the payment of a nominal 10shilling license fee. BLACKWELL REPORT, supra, at

¶ 1(1). Plainly, Parliament understood that laws dating

back to and before the Fourteenth Century did not

stand as a bar.

Indeed, one other act of Parliament bears this out.

The Prevention of Crimes Act, 1953, 1 & 2 Eliz. II c. 14,

made it illegal to “ha[ve] . . . in any public place any

offensive weapon” unless one had “lawful authority or

reasonable excuse, the proof whereof shall lie on him,”

id. at s. 1(1). An “offensive weapon” was “any article

made or adapted for use for causing injury to the

person, or intended by the person having it with him

for such use by him.” Id. at s. 1(4). While self-defense

could potentially be a “reasonable excuse,” this was

only the case when there was “an imminent particular

threat affecting the particular circumstances in which

the weapon was carried,” rather than a threat that was

“constant or enduring.” See Evans v. Hughes, 56 Cr.

App. R. 813, 817 (1972). Moreover, a firearms

certificate did not amount to “lawful authority or

reasonable excuse.” See R. v. Jones, 1 Cr. App. R. 262,

266 (1994). Again, the fact that Parliament found it

necessary to enact this law in 1953 means that other

preexisting laws, such as the Statute of Northampton

and the Justices of the Peace Act, did not already stand

23

as bars on having weapons in public without a

“reasonable excuse.”

CONCLUSION

The Statute of Northampton, Justices of the Peace

Act and the common law power to bind over individuals

to prevent breaches of the peace were not general bans

on the peaceful carry of arms. Rather, broad

preclusions on bearing arms arose in the Twentieth

Century, both in England, as well as in the United

States. The existence of these historical laws is no

justification for rewriting the Second Amendment to

effectively exclude the right to bear arms today.

Respectfully submitted,

DAVID D. JENSEN

Counsel of Record

DAVID JENSEN PLLC

33 Henry Street

Beacon, New York 12508

(212) 380-6615

david@djensenpllc.com

Counsel for Amici Curiae