Amicus Curiae Brief — Ivan Antonyuk, et al., Petitioners v. Steven G. James, In His Official Capacity as Acting Superintendent of New York State Police, et al.

Supreme Court briefMar 25, 2024

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No. 23-910

In the

Supreme Court of the United States

──────────────────────────

IVAN ANTONYUK, ET AL.,

Petitioners,

STEVEN G. JAMES,

IN HIS OFFICIAL CAPACITY AS ACTING SUPERINTENDENT

OF THE NEW YORK STATE POLICE, ET AL.,

Respondents.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

──────────────────────────

AMICUS CURIAE BRIEF OF PROJECT 21 IN

SUPPORT OF PETITIONERS

──────────────────────────

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

The Buckeye Institute

88 East Broad Street

Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

QUESTIONS PRESENTED

1. Whether the proper historical time period for

ascertaining the Second Amendment’s original

meaning is 1791, rather than 1868.

2. Whether “the people” must convince government

officials of their “good moral character” before

exercising their Second Amendment right to bear

arms in public.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................i

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

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

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

ARGUMENT ................................................................ 3

I. Racially tainted historical analogs cannot

justify current laws ............................................. 3

II. “All [firearms owners] are equal, but some

[owners] are more equal than others.” George

Owell, Animal Farm ............................................ 5

A. Firearms regulations have been used to

disarm and oppress minorities for

generations .................................................. 5

B. During Reconstruction (1865–1877),

black Americans’ right to bear arms

continued to be denied through passage

of the black codes ......................................... 8

C. During Jim Crow (1877–1964), states

used facially neutral laws and blatant

prohibitions to prevent black Americans

and Native Americans from exercising

their right to bear arms............................. 10

D. New York’s Race and Minority-Targeting

Sullivan Law .............................................. 14

III.Meet the new Hochul Law, worse than the old

Sullivan Law ...................................................... 15

iii

IV. The Hochul Law deprives minorities and

other disadvantaged people from protecting

themselves in the locations where they need

it the most .......................................................... 20

V. The Court should grant the petition to

reaffirm the proper standard for applying

history in Second Amendment cases ................ 24

CONCLUSION .......................................................... 25

TABLE OF AUTHORITIES

Cases

Arizona v. Gant,

556 12 U.S. 332 (2009) ........................................... 18

Cantwell v. Connecticut,

310 U.S. 296 (1940) .......................................... 15, 18

City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988) ................................... 17, 18, 24

Cooper v. Savannah,

4 Ga. 72 (1848).......................................................... 6

Cox v. State of Louisiana,

379 U.S. 536 (1965) ................................................ 18

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................ 5, 24

Harman v. Forssenius,

380 U.S. 528 (1965) ................................................ 20

Harper v. Virginia State Bd. of Elections,

383 U.S. 663 (1966) ................................................ 20

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ................................................ 18

McDonald v. City of Chicago Ill.,

561 U.S. 742 (2010) ............................................ 9, 10

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) .............................................. 2

Saia v. New York,

334 U.S. 558 (1948) ................................................ 18

State v. Newsom,

27 N.C. 250 (1844) ................................................ 6, 8

State v. Nieto,

130 N.E. 663 (1920) .................................................. 4

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .............................................. 4

United States v. Bullock, No. 3:18-CR-165-CWRFKB, 2023 WL 4232309 (S.D. Miss. June 28,

2023) .......................................................................24

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ................................................ 24

Watchtower Bible & Tract Soc’y of New York, Inc.

v. Village of Stratton,

536 U.S. 150 (2002) ................................................ 18

Watson v. Stone,

184 Fla. 516 (1941) ................................................. 13

Statutes

14 Stat. 173 (1866)..................................................... 10

14 Stat. 27 (1866)....................................................... 10

17 Stat. 457 (1873)..................................................... 13

1865 Fla. Laws 23 ........................................................ 8

1911 N.Y. Laws, ch. 195 ............................................ 14

1913 N.Y. Laws, ch. 608 ............................................ 14

2022 N.Y. Sess. Laws ch. 371.............................. 16, 17

Act of Dec. 17, 1792, reprinted in 1 The Statutes at

Large of Virginia (Shepherd ed. 1835) .................... 7

Act of Feb. 4, 1806, reprinted in 3 The Statutes at

Large of Virginia (Shepherd ed. 1836) .................... 7

Act of Jan. 6, 1639, reprinted in 1 The Statutes at

Large; Being a Collection of All the Laws of

Virginia, From the First Session of the

Legislature, in the Year 1619 (Hening ed. 1823) ..... 6

Act of June 7, 1712, reprinted in 7 Statutes at Large

of South Carolina (McCord ed. 1840) ...................... 7

Act of Oct. 1, 1804, reprinted in The Laws of the

Territory of Louisiana (Charles ed. 1808) ............... 7

N.Y. Penal Law § 265.01-e ........................................ 21

Other Authorities

Cong. Globe, 42d Cong., 1st Sess. app. (1871) .......... 11

Conor Friedersdorf, Thugs and Terrorists Have

Attacked Black Churches for Generations, The

Atlantic

(June

18,

2015),

https://tinyurl.com/AtlanticChurches. ................... 21

vii

David B. Kopel, The Second Amendment in the

Nineteenth Century, 1998 B.Y.U. L. Rev. 1359

(1998) ...................................................................... 11

David L. Sloss, The Right of State Governments to

Defy the Supreme Court, Markkula Center for

Applied Ethics at Santa Clara University (Jul. 6,

2022), https://www.scu.edu/ethics-spotlight/theethics-of-guns/the-right-of-state-governments-todefy-the-supreme-court/ ......................................... 25

Ellen Moynihan et al., MTA train conductor slashed

in random Brooklyn subway attack: ‘I was doing

my job,’ he tells News, Daily News (Feb. 29, 2024),

https://www.nydailynews.com/2024/02/29/mtatrain-conductor-slashed-in-neck-in-brooklynsubway-stop-random-attack/ ................................. 23

Evan Simko-Bednarski et al., Hochul sends 750

National Guard troops to NYC subways following

spate of violence, Daily News (Mar. 6, 2024),

https://www.nydailynews.com/2024/03/06/hochul

-to-dispatch-750-national-guard-troops-to-nycsubways-following-spate-of-violence/..................... 23

Fola Akinnibi, NYC’s Subway Police Surge Fails to

Dent Transit Crime, Bloomberg (Nov. 4, 2022),

https://tinyurl.com/SubwayCrime.......................... 23

Frank Heinz, ‘Good Guy With a Gun’ Who Stopped

Church Gunman Receives Texas’ Highest Honor,

NBCDFW

(Jan.

14,

2020),

https://tinyurl.com/GoodGuyChurch ..................... 22

viii

Frederick Douglas, Address delivered in New York

City, May 10, 1865, in 4 The Frederick Douglas

Papers (1991) ............................................................ 9

J. Baxter Stegall, The Curse of Ham: Disarmament

Through Discrimination - the Necessity of

Applying Strict Scrutiny to Second Amendment

Issues in Order to Prevent Racial Discrimination

by States and Localities Through Gun Control

Laws, 11 Liberty U.L. Rev. 271 (2016) .......... 8, 9, 10

James Anderson & Lee Kennett, The Gun in

America: The Origins of a National Dilemma

(1975) ...................................................................... 14

Jason Crosby, Targeting Black Churches Isn’t Stuff

of Distant History, Courier Journal (Nov. 1, 2018),

https://tinyurl.com/CourierChurches..................... 22

Kimmy Yam, Subway cellist says attack ‘hurt like

hell,’ and now wants more protection for

performers, NBC News (Feb. 21, 2024),

https://www.nbcnews.com/news/asianamerica/subway-cellist-attacked-34th-streetprotections-rcna139678 .......................................... 23

Marcia Kramer & Dick Brennan, Fresh off primary

win, Gov. Kathy Hochul dives right into guns-who can get them and where they can take them,

CBS

New

York

(June

29,

2022),

https://tinyurl.com/SomeNYStreets. ...................... 21

Myles Miller et al., Metal pipe beating adds to

growing list of violent NYC subway attacks, NBC

N.Y.

(Feb.

19,

2024),

https://www.nbcnewyork.com/news/local/metalpipe-beating-adds-to-growing-list-of-violent-nycsubway-attacks/5150631/ ....................................... 23

N.Y. Governor’s Press Office, Governor Hochul

Announces New Concealed Carry Laws Passed in

Response to Reckless Supreme Court Decision

Take Effect September 1, 2022, New York State

(Aug.

31,

2022),

https://www.governor.ny.gov/news/governorhochul-announces-new-concealed-carry-lawspassed-response-reckless-supreme-court .............. 19

Renee Lettow Lerner, The Second Amendment and

the Spirit of the People, 43 Harv. J. L. & Pub. Pol.

319 (2019) ................................................................. 5

Repository of Historical Gun Laws, Duke Center for

Firearms

Laws,

https://firearmslaw.duke.edu/repository-ofhistorical-gun-laws/advanced-search ...................... 2

Robert J. Cottrol & Raymond T. Diamond, “Never

Intended to Be Applied to the White Population”:

Firearms Regulation and Racial Disparity - the

Redeemed South’s Legacy to a National

Jurisprudence?, 70 Chi. Kent L. Rev. 1307

(1995) ................................................................ 15, 16

Sherri L. Burr, The Free Blacks of Virginia: A

Personal Narrative, A Legal Construct, 19 J. of

Gender, Race & Justice 1 (2016).............................. 6

Stefan B. Tahmassebi, Gun Control and Racism, 2

Geo. Mason U. C.R. L.J. 67 (1991) ....... 12, 13, 14, 20

Stephen P. Halbrook, Securing Civil Rights:

Freedmen, the Fourteenth Amendment, and the

Right to Bear Arms (2010) ....................................... 9

Stephen P. Halbrook, The Right to Bear Arms: A

Constitutional right of the People or a Privilege of

the Ruling Class (2021) ...... 4, 7, 9, 10, 11, 12, 14, 20

Stephen P. Halbrook, The Right to Bear Arms: For

Me, But Not For Thee?, 43 Harv. J. L. & Pub. Pol.

331 (2019) ............................................................... 11

The Colonial Laws Of New York From The Year

1664 To The Revolution, Duke Center for

Firearms

Law,

https://firearmslaw.duke.edu/laws/the-coloniallaws-of-new-york-from-the-year-1664-to-therevolution-including-the-charters-to-the-duke-ofyork-the-commissions-and-instructions-tocolonial-governors-the-dukes-laws-the-laws-ofthe ............................................................................. 5

The

Freedmen,

Library

Congress,

https://tinyurl.com/LoCFreedmen ........................... 6

The State of Black New York, New York Urban

League, https://tinyurl.com/BlackNY .................... 16

Transcript of Oral Argument, Bruen, 142 S. Ct. 211

(No. 20-843) ............................................................ 15

William Tonso, Gun Control: White Man’s Law,

Reason Magazine (1985) ........................................ 11

INTEREST OF AMICUS CURIAE1

Amicus curiae Project 21, the national network

of black political, civic, and business leaders, is an

initiative of the National Center for Public Policy

Research to promote the views of black Americans

whose entrepreneurial spirit, dedication to family, and

commitment to individual responsibility have not

traditionally been echoed by the nation’s civil-rights

establishment. The National Center for Public Policy

Research is a communications and research

foundation supportive of the view that the principles

of a free market, individual liberty, and personal

responsibility provide the greatest hope for meeting

the challenges facing America in the 21st century.

Project 21 has regularly participated as amicus

curiae in cases before the U.S. Supreme Court

involving criminal justice and social policy issues that

particularly impact black Americans. This case raises

vital questions about the pernicious effects firearms

regulations have had on black Americans and

presents the opportunity to vindicate the U.S.

Constitution’s guarantee of equal protection of the

right to bear arms by eliminating restrictions with

race-based histories and current disproportionate

effects.

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae, made any monetary contribution toward

the preparation or submission of this brief. Counsel provided the

notice required by Rule 37.2.

SUMMARY OF ARGUMENT

The right to own and carry a firearm is a right

of all law-abiding citizens. Current restrictions on the

right to own and carry a firearm that rely on historical

regulations enacted with racial animus, however,

cannot stand.

For decades, black Americans and other racial

minorities were the target of firearms regulations that

prevented them from exercising their right to bear

arms. According to the Duke Center for Firearms Law,

from 1639 to 1901, at least 52 race and slavery-based

laws had been passed in the colonies and states. See

Repository of Historical Gun Laws, Duke Center for

Firearms Laws.2 This does not include the

contemporaneous and subsequent facially neutral—

but racially motivated—laws.

Arguably, laws targeting minorities continue

today, perhaps not explicitly, but effectively. Under

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142

S. Ct. 2111 (2022), laws restricting the right to bear

arms pass constitutional muster only if they are

consistent with legitimate historical firearms

regulations. Advocates of firearms regulations seek to

justify the imposition of these regulations by relying

on old laws born of racial animosity or distrust of

minorities and other disfavored groups. These

historical deprivations of constitutional rights were

gravely wrong and cannot justify current regulations.

New York’s new firearms carry laws are similar

2 https://firearmslaw.duke.edu/repository-of-historical-gun-

laws/advanced-search (last visited Mar. 1, 2024).

to the discriminatory laws of the past. Indeed, they

are little more than a continuation of the laws New

York passed at the turn of the 19th century to restrict

firearms possession or usage by another disfavored

minority group—immigrants. Like those past

discriminatory laws, New York’s new law facilitates

arbitrary denial of constitutional rights simply

because a state employee does not believe the

applicant has the “essential character” to be trusted

with a weapon. That was the hallmark of many

facially neutral—but discriminatory—Jim Crow era

laws. The Court has always been juberous of laws

restricting the exercise of constitutional rights with

arbitrary permissive schemes.

ARGUMENT

Racially tainted historical analogs cannot

justify current laws.

From Heller through Bruen, the Court has

relied heavily on historical practice to interpret the

Second Amendment. “Whether it came to defining the

character of the right (individual or militia

dependent), suggesting the outer limits of the right, or

assessing the constitutionality of a particular

regulation,” history has been vital to Second

Amendment analysis. Bruen, 142 S. Ct. at 2129. In

keeping with this requirement, the Court has held

“that when the Second Amendment’s plain text covers

individual’s

conduct,

the

Constitution

presumptively protects that conduct.” Id. at 2126.

“And because many people face a serious risk of lethal

violence when they venture outside their homes, the

Second Amendment was understood at the time of

adoption to apply under those circumstances.” Id. at

2157 (Alito, J., concurring). As such, for a regulation

on the carrying of a firearm outside of the home to be

upheld, “the government must demonstrate that the

regulation is consistent with this Nation’s historical

tradition of firearm regulation.” Id. at 2126.

Because carrying firearms outside of the home

is presumptively protected, courts must give

“unqualified deference” to citizens’ right to bear arms.

Id. at 2131. Despite the policy preferences of the

legislature for passing firearms regulations, “the

government may not simply posit that the regulation

promotes an important interest,” but must

affirmatively prove that the regulation is consistent

with the historical regulations. Id. at 2126.

But mere consistency with historical practice is

not enough. The historical firearms regulations reliedon must also be legitimate ones. Historical regulations

designed to oppress racial minorities or show distrust

or animus towards “disfavored” groups cannot be the

basis for infringing on the right to bear arms. Cases

affirming laws where race “has extremely intensified

a decisive purpose to entirely disarm” a disfavored

class have no precedential value. Stephen P.

Halbrook, The Right to Bear Arms: A Constitutional

right of the People or a Privilege of the Ruling Class

299 (2021) (“Privilege of the Ruling Class”) (quoting

State v. Nieto, 130 N.E. 663, 667 (1920) (Wanamaker,

J., dissenting)). See also Trump v. Hawaii, 138 S. Ct.

2392, 2448 (2018) (Breyer, J., dissenting) (“By blindly

accepting the Government’s misguided invitation to

sanction a discriminatory policy motivated by

animosity toward a disfavored group, … the Court

redeploys the same dangerous logic underlying

Korematsu and merely replaces one ‘gravely wrong’

decision with another.”).

II.

“All [firearms owners] are equal, but some

[owners] are more equal than others.”

George Orwell, Animal Farm.

A. Firearms regulations have been used to

disarm and oppress minorities for

generations.

As long as firearms restrictions have existed,

they have been used to disarm and oppress

“disfavored” groups. In 1689, the English Bill of Rights

limited the right to arms to upper-class Protestants.

Renee Lettow Lerner, The Second Amendment and the

Spirit of the People, 43 Harv. J. L. & Pub. Pol. 319, 324

(2019). This allowed the English to disarm and

oppress Catholics—a suspect and disfavored group—

and other servants and laborers. Id. at 324–325. To

protect citizens from such oppression, the United

States ratified the Second Amendment. District of

Columbia v. Heller, 554 U.S. 570, 593–595 (2008).

But in the American Colonies—including New

York—black Americans’ right to bear arms was

determined by their social status. The Colonial Laws

Of New York From The Year 1664 To The Revolution,

Duke Center for Firearms Law3 (making it unlawful

for a slave “to have or use any gun, pistol … or any

other kind of weapon whatsoever, but in the presence

3 https://firearmslaw.duke.edu/laws/the-colonial-laws-of-new-

york-from-the-year-1664-to-the-revolution-including-the-chartersto-the-duke-of-york-the-commissions-and-instructions-to-colonialgovernors-the-dukes-laws-the-laws-of-the (last visited Mar. 1,

2024).

or by the direction of his … Master … and in their own

ground …”). Slaves were forbidden to own or possess

firearms—unless

there

were

exceptional

circumstances and local authorities granted a license.

Later, some freedmen4 were allowed to possess

firearms but only with a license approved by the state.

In other states, even freedmen were denied the right

to bear arms. Many times—though free—the courts

denied the freedmen their rights as they did not

consider them to be citizens. State v. Newsom, 27 N.C.

250, 207 (1844); Cooper v. Savannah, 4 Ga. 72 (1848).

The unfortunate history in Colonial America of

denying firearm possession to disfavored minorities

began in the 1600s. The first colonial law prohibiting

black Americans from being “provided with arms and

am[m]unition” was passed in Virginia in 1640. Act of

Jan. 6, 1639, § 10, reprinted in 1 The Statutes at Large;

Being a Collection of All the Laws of Virginia, From

the First Session of the Legislature, in the Year 1619

224–226 (Hening ed. 1823). In 1792, Virginia made

clear that “[n]o negro or mulatto whatsoever shall

keep or carry any gun, powder, shot, club, or other

weapon whatsoever, offensive or defensive.” Act of

Dec. 17, 1792, ch. 41, §§ 8 and 9, reprinted in 1 The

Statutes at Large of Virginia 122–123 (Shepherd ed.

4 Freedmen is generally used to refer to former slaves who gained

their freedom after the Emancipation Proclamation or—for most—

after the Thirteenth Amendment. The Freedmen, Library of

Congress, https://tinyurl.com/LoCFreedmen (last visited Feb. 24,

2023). In contrast, “free negroes” or “free blacks” were black

Americans who were not enslaved prior to the Civil War. Sherri L.

Burr, The Free Blacks of Virginia: A Personal Narrative, A Legal

Construct, 19 J. of Gender, Race & Justice 1, 3 (2016).

1835). In 1806, Virginia amended the law to allow

firearm ownership by freedmen; however, Virginia

restricted ownership by requiring freedmen to obtain

a permit issued by state authorities. Act of Feb. 4,

1806, ch. 94, § 1, reprinted in 3 The Statutes at Large

of Virginia 274–275 (Shepherd ed. 1836). After Nat

Turner’s slave revolt in 1831, Virginia repealed the

law—once again preventing freedmen from owning or

possessing firearms. Privilege of the Ruling Class,

supra, at 257.

In Louisiana, “no slave or mulatto whatsoever,

[could] keep or carry any gun, powder, shot, club, or

other weapon whatsoever, offensive or defensive; but

all and every gun, weapon and ammunition found in

the possession or custody of any negro or mulatto,

[could] be seized by any person ….” Act of Oct. 1, 1804,

§ 4, reprinted in The Laws of the Territory of Louisiana

13–14 (Charles ed. 1808).

In South Carolina it was the same: “[N]o negro

or slave shall carry out of the limits of his master’s

plantation any sort of gun or firearms, without his

master, or some other white person by his order, is

present with him, or without a certificate from his

master, mistress or overseer, for the same.” Act of

June 7, 1712, § 5, reprinted in 7 Statutes at Large of

South Carolina 353–354 (McCord ed. 1840) (emphasis

added).

At least twelve other states or territories—

Alabama, Arkansas, Delaware, Florida, Georgia,

Indiana, Kentucky, Maryland, Mississippi, New

Mexico, North Carolina, and Tennessee—had similar

pre-civil war oppressive laws preventing “negro[s]

mulato[s] or Indian[s]” from keeping or carrying guns

unless given specific permission. See Duke Center for

Firearms Laws, supra. In Florida, a “negro, mulatto,

or other person of color” was only given permission

“upon the recommendation of two respectable citizens

of the county.” 1865 Fla. Laws 23. Like the modern day

justifications for firearms licensing, courts upheld the

restrictions on freedmen because the laws did “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 [sic], or

whether any shall.” Newsom, 27 N.C. at 254.

B. During

Reconstruction

(1865–1877),

black Americans’ right to bear arms

continued to be denied through passage

of the black codes.

Even after the end of the Civil War and the

passage of the Thirteenth Amendment in 1865,

Southern States continued to treat freedmen as

second-class citizens. J. Baxter Stegall, The Curse of

Ham: Disarmament Through Discrimination - the

Necessity of Applying Strict Scrutiny to Second

Amendment Issues in Order to Prevent Racial

Discrimination by States and Localities Through Gun

Control Laws, 11 Liberty U.L. Rev. 271, 283 (2016).

The States—and some localities—passed black codes,5

5 The black codes were laws “designed to replace the social controls

of slavery that had been removed by the Emancipation

Proclamation and the Thirteenth Amendment to the

Constitution.”

Black

Code,

Britannica,

https://www.britannica.com/topic/black-code (last visited Feb. 24,

2023). The black codes, though varying between states, “were all

which explicitly targeted freedmen by preventing

them from owning or carrying firearms. Id. at 284–

287; McDonald v. City of Chicago Ill., 561 U.S. 742,

771–772 (2010). The black codes were not just words

on paper. Because the black codes were reenactments

of the slave codes, “the black man [ ] never had the

right either to keep or bear arms.” Privilege of the

Ruling Class, supra, at 264 (quoting Frederick

Douglas, Address delivered in New York City, May 10,

1865, in 4 The Frederick Douglas Papers 84 (1991)).

State officials used the black codes as justification for

abusive conduct, including robbery, searching of

freedmen’s homes and person, and seizure of their

firearms. Stegall, supra, at 284–287. The black codes

allowed outlaws to “make brutal attacks and raids

upon the freedmen, who are defenseless, for the civil

law-officers disarm the colored man and hand him

over to armed marauders.” Stephen P. Halbrook,

Securing Civil Rights: Freedmen, the Fourteenth

Amendment, and the Right to Bear Arms 31 (2010)

(“Securing Civil Rights”). See also McDonald, 561 U.S.

at 845–846 (Thomas, J., concurring) (gathering

sources).

After hearing from officials at the Freedmen’s

Bureaus of the abuse being committed in the Southern

States, Congress passed the Second Freedman’s

Bureau Act with the explicit intent of negating the

intended to secure a steady supply of cheap labour, and all

continued to assume the inferiority of the freed slaves.” Id.

black codes. Stegall, supra, at 289. The Act stated that

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 Stat. 173, 176 (1866) (emphasis added). At the

same time, Congress passed the Civil Rights Act of

1866—guaranteeing “full and equal benefit of all laws

and proceedings for the security of person and

property, as is enjoyed by white citizens.” 14 Stat. 27

(1866). However, Southern states continued to deny

black American’s the right to bear arms by holding the

Civil Rights Act to be unconstitutional. McDonald,

561 U.S. at 775 n.24. One court did so “in the course of

upholding the conviction of an African–American man

for violating Mississippi’s law against firearm

possession by freedmen” without the required license.

Id.; see also Privilege of the Ruling Class, supra, at

269.

C. During Jim Crow (1877–1964), states

used facially neutral laws and blatant

prohibitions to prevent black Americans

and Native Americans from exercising

their right to bear arms.

Immediately following the Civil War, “most

Northern states did not restrict an individual’s right

or ability to carry a firearm in public, whether it be

concealed or openly, as long as they carried the

weapon peaceably.” Privilege of the Ruling Class,

supra, at 273. In 1868 the United States ratified the

Fourteenth Amendment, which “incorporated the first

eight amendments against states, so a citizen ‘had

secured to him the right to keep and bear arms in his

defense.’” David B. Kopel, The Second Amendment in

the Nineteenth Century, 1998 B.Y.U. L. Rev. 1359,

1453 (1998) (quoting Cong. Globe, 42d Cong., 1st Sess.

app. 475 (1871)). “[T]he Fourteenth Amendment was

intended to invalidate [ ] the Mississippi Black Code

from 1865, which provided that no African American,

no freeman, no freed slave could carry a firearm

without some kind of permit from the authorities.”

Stephen P. Halbrook, The Right to Bear Arms: For Me,

But Not For Thee?, 43 Harv. J. L. & Pub. Pol. 331, 333

(2019).

Southern states, however, continued their

efforts to disarm black Americans. Small pistols

selling for as little as 50 or 60 cents became available

in the 1870’s and 1880’s. William Tonso, Gun Control:

White Man’s Law, Reason Magazine (1985). Because

black Americans and poor whites could afford these

cheap arms, several states passed what are today

called “Saturday Night Special” laws banning these

small, inexpensive handguns. Id. Instead of formal

legislation, states like Mississippi and Florida “simply

continued to enforce the pre-emancipation statutes

forbidding Blacks to possess arms, in violation of the

Fourteenth Amendment.” Stefan B. Tahmassebi, Gun

Control and Racism, 2 Geo. Mason U. C.R. L.J. 67, 74

(1991).

Further, during the Jim Crow era, “exorbitant

business or transaction taxes were imposed in order to

price handguns out of the reach of blacks and poor

[w]hites.” Id. at 74–75. These laws—while facially

neutral—were passed “to ensure that African

Americans could not carry firearms, effectively in the

same way that poll taxes were instituted to deny them

the right to vote.” Privilege of the Ruling Class, supra,

at 287. For example, in 1893, Florida made it a crime

for a person “to carry around with him, or

to have in his manual possession” a

“Winchester rifle or other repeating rifle”

without a license, which “may” be

granted after posting a $100 bond. That

would be equivalent to $2,922 in 2021.

The average monthly wage for [a black]

farm labor[er] in Florida in 1890 was

$19.35. In 1901, the law was amended to

add pistols to the list.

Id. at 298. The Florida Supreme Court noted that the

law

“was passed when there was a great

influx of negro laborers in th[e] State,”

and it was “for the purpose of disarming

the negro laborers. … The statute was

never intended to be applied to the white

population. … 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 th[e] statute as to white

people, because it has been generally

conceded to be in contravention of the

Constitution and non-enforceable if

contested.”

Tahmassebi, supra, at 74 (quoting Watson v. Stone,

184 Fla. 516, 524 (1941) (Buford, J., concurring)).

Similarly, Mississippi in 1906 enacted the first

registration law for retailers, requiring retailers to

maintain records of all pistol and pistol ammunition

sales, and to make such available for inspection on

demand. Id. at 75. In other Southern States, retailers

would often report to local authorities whenever black

Americans purchased firearms or ammunition. Id.

“The sheriff would then arrest the purchaser and

confiscate the firearm which would either be destroyed

or turned over to the local Klan or a white militia.” Id.

But even as the U.S. government and the states

pretended to remedy their past oppression of former

slaves, they increased their oppression against other

disfavored minority groups, such as Native

Americans. In 1873, the federal government enacted a

law that “prohibited the sale of arms and munitions to

‘hostile’ Indians.” Id. at 79 (citing 17 Stat. 457 (1873)).

“Usually the disarmament of Indians was quickly

followed by the imposition of oppressive measures or

even murder and wholesale massacres.” Id.

Shockingly, those restrictions were not abolished until

1979. Id.

D. New York’s Race and Minority-Targeting

Sullivan Law.

Though a Northern state, in 1911 New York

enacted the Sullivan law, a firearms restriction

targeting “undesirables,” such as black Americans and

foreign-born residents. It was “the first law in any

state (other than the black codes) to require a permit

for keeping a pistol or other concealable firearm in the

home.” Privilege of the Ruling Class, supra, at 303

(emphasis added); 1911 N.Y. Laws, ch. 195, § 1. The

Sullivan law “expanded the State’s criminal

prohibition to the possession of all handguns—

concealed or otherwise—without a government-issued

license.” Bruen, 142 S. Ct. at 2122.

Violation of the law—even in one’s own

residence—was a felony. And the licensing procedure

was totally discretionary; the applicant had to prove

to a licensing agent who had absolute discretion to

determine if the applicant had “good moral character”

and “proper cause.” 1913 N.Y. Laws, ch. 608, § 1897.

It was even harder for “aliens” and “noncitizens” to get

a license—they needed a judicial order supported by

“persons certifying the good moral character” of the

person. Id. Scholars have concluded that “[t]he

Sullivan law was designed to ‘strike hardest at the

foreign-born element.’” Tahmassebi, supra, at 77

(quoting James Anderson & Lee Kennett, The Gun in

America: The Origins of a National Dilemma 177–178

(1975)). “[T]here are those who argue … that a major

reason for the enactment of the Sullivan Law was the

belief that certain disfavored groups, members of labor

unions, Blacks and Italians, were carrying guns and

they were dangerous people and they wanted them

disarmed.” Transcript of Oral Argument at 103–104,

Bruen, 142 S. Ct. 211 (No. 20-843).6

So, the very people targeted by this law were

required to disprove the apparent presumption that

they did not have good moral character. Robert J.

Cottrol & Raymond T. Diamond, “Never Intended to Be

Applied to the White Population”: Firearms Regulation

and Racial Disparity - the Redeemed South’s Legacy to

a National Jurisprudence?, 70 Chi. Kent L. Rev. 1307,

1334 (1995).

In Bruen, the Court struck down the Sullivan

law. 142 S. Ct. at 2122. In addressing the “may-issue”

aspects of the Sullivan law, the Court looked askance

at how the law required the “appraisal of facts, the

exercise of judgment, and the formation of an opinion,”

to determine if an applicant would be given a license.

Id. at 2138 n.9 (citing Cantwell v. Connecticut, 310

U.S. 296, 305 (1940)). Indeed, the constitutional right

to bear arms deserves as much protection from

arbitrary restrictions as other fundamental rights. “A

statute authorizing previous restraint upon the

exercise of the guaranteed freedom,” such as the

Sullivan law, is “obnoxious to the Constitution ….”

Cantwell, 310 U.S. at 306.

III. Meet the new Hochul Law, worse than the

old Sullivan Law.

New York learned nothing from Bruen. New

York Governor Hochul doubled down on the State’s

6https://www.supremecourt.gov/oral_arguments/argument_transc

ripts/2021/20-843_f2q3.pdf.

discriminatory history by enacting a “new” gun control

law. Of course, the law was framed to address the

societal goal of public safety. But “[i]f safety concerns

must be conceded, it should be recognized as well that

local governments have sought to ban firearms from

what is frequently considered one of today’s

untrustworthy and suspect classes, the urban poor.”

Cottrol & Diamond, supra, at 1334–335. And the

urban poor are often minorities. The State of Black

New York 9, New York Urban League.7 New York’s

new law turns a constitutionally guaranteed right for

all into a privilege enjoyed only by a select few—not

the urban poor. Under the Hochul Law, to obtain a

concealed carry permit in New York, an applicant

must prove his or her moral character by:



providing at least four character references;



submitting a list of former and current social

media accounts for the last three years;



disclosing the applicant’s spouse or domestic

partner and any other adults residing in the

applicant’s home;



providing any additional information

licensing officers deem appropriate; and



submitting to an in-person interview with the

licensing officer or designee.

the

2022 N.Y. Sess. Laws ch. 371, § 400.

Like the old “may issue” regime, licensing

officers seem to have complete discretion to determine

if the applicant’s character references are adequate, if

7 https://tinyurl.com/BlackNY (last visited Feb. 24, 2023).

the social media accounts disqualify the applicant, if

the applicant’s associates disqualify the applicant,

what is asked in the interview, and what other

information is requested. The licensing officer then—

apparently unilaterally—determines if the applicant

is “of good moral character.” Id.

The Court should reject any regime which

purports to “license” constitutionally protected

activity but relies on discretionary authority to

determine who may engage in that activity. If this case

were not about firearms, there would be no doubt that

New York could not treat constitutional rights this

way. Surely New York could not require a resident to

prove with references and pre-speech interviews that

he or she had the proper “moral character” before

being allowed to speak in public. Nor could a state

require a license before an individual could travel

outside of his or her home, subject always to a

licensing agent’s approval of the applicant’s moral

character. Yet that is what has happened to the right

to bear arms in New York.

The Court has been rightly skeptical of allowing

broad discretion to governmental officials to regulate

individual constitutional rights. For example, in City

of Lakewood v. Plain Dealer Publishing Co., 486 U.S.

750 (1988), the Court held unconstitutional a city

ordinance giving a government official broad authority

to grant or deny applications for permits for

publishers to place their news racks on public

property. The Court emphasized that a law or policy

protecting the rights “for some but not for others”

raises the specter of unconstitutional censorship and

viewpoint discrimination. Id. at 763. Indeed, the Court

found that the danger of unconstitutionality “is at its

zenith when the determination of who may speak and

who may not is left to the unbridled discretion of a

government official.” Id. (emphasis added).

Over many decades the Court has repeatedly

found broad governmental discretion to be

constitutionally suspect. E.g., Watchtower Bible &

Tract Soc’y of New York, Inc. v. Village of Stratton, 536

U.S. 150, 162–164 (2002) (discussing cases

challenging speech permits); Cox v. State of Louisiana,

379 U.S. 536, 558 (1965) (“allowing unfettered

discretion in local officials” is an abridgement of First

Amendment rights); Saia v. New York, 334 U.S. 558,

562 (1948) (holding an ordinance unconstitutional

where it gave broad licensing discretion to a

government official, and concluding such a regime

“sanctions a device for suppression” of people’s rights);

Cantwell, 310 U.S. at 308 (ordinance requiring

persons to obtain a license before soliciting door-todoor was invalid because the “executive and judicial

branches [had] too wide a discretion in its

application”); Arizona v. Gant, 556 12 U.S. 332, 345

(2009) (“central concern underlying the Fourth

Amendment” is that law enforcement officers would

otherwise have “unbridled discretion” to perform

searches); Marshall v. Barlow’s, Inc., 436 U.S. 307,

323 (1978) (holding a portion of the Occupational

Safety and Health Act unconstitutional where the

statute gave “almost unbridled discretion [to]

executive and administrative officers” to perform

warrantless searches).

The same constitutional infirmity is apparent

here. New York’s discrimination against individuals

in the enjoyment of their Second Amendment right to

carry is a feature—not a glitch—of the challenged law.

New York’s law was designed to treat certain persons

differently, depriving them of rights guaranteed to

“the whole people.”

Even if an applicant has the means and

patience to navigate the maze of procedural steps and

persuade an unnamed, unelected—and likely

unreceptive8—bureaucrat to issue a permit, that

permit must be renewed or recertified every three to

five years. And, if a permit holder does not renew or

recertify the permit, any future application will be

denied.

The cost in time and money could easily exceed

one-thousand dollars, a cost which would be a struggle

for many low-income minorities. In New York, 66% of

black adults experienced material hardship for at

least one year because they could not afford basic

necessities, and nearly one in four black adults in New

York City live in poverty. The State of Black New York,

supra, at 9. Hence, the law lands squarely on New

York’s low income black-Americans. The Hochul law

8 It is apparent from Governor Hochul’s press conference that she

and her administration are highly skeptical of allowing anyone to

carry firearms. N.Y. Governor’s Press Office, Governor Hochul

Announces New Concealed Carry Laws Passed in Response to

Reckless Supreme Court Decision Take Effect September 1, 2022,

New

York

State

(Aug.

31,

2022),

https://www.governor.ny.gov/news/governor-hochul-announcesnew-concealed-carry-laws-passed-response-reckless-supremecourt. Indeed, the entire process is manifestly designed to

discourage anyone from even applying, let alone completing the

entire application process.

is eerily similar to an 1893 Florida Jim Crow law,

enacted “for the purpose of disarming the negro

laborers” by requiring those persons to post a $100

bond in order to possess a firearm. Tahmassebi, supra,

at 74; see also Privilege of the Ruling Class, supra, at

298. And it carries echoes of the now-illegal poll taxes

which were also designed to repress black-American

voters. See Harper v. Virginia State Bd. of Elections,

383 U.S. 663, 666 (1966); Harman v. Forssenius, 380

U.S. 528, 543 (1965).

That the politicians who passed the Hochul Law

presumably would deny any racist intent is of little

moment

those

individuals—including

disproportionately minority individuals—whose right

to bear arms for self-defense is violated by the Hochul

Law.

IV. The Hochul Law deprives minorities and

other

disadvantaged

people

from

protecting themselves in the locations

where they need it the most.

Finally, even if a permit is granted, the law

drastically restricts the places where a firearm can be

carried. The law prohibits even a licensed individual

from carrying a firearm in “sensitive places,” which is

pretty much anywhere. These “sensitive places”

include—to mention only a few,



places of worship or religious observation;



libraries, public playgrounds, public parks, and

zoos;



homeless shelters, family shelters, shelters for

adults, and domestic violence shelters;



any building or grounds, owned or leased, of any

educational institutions;



public transportation;



theaters, stadiums, racetracks, museums,

amusement parks, conference centers, banquet

halls;



any gathering of individuals to collectively

express their constitutional rights to protest or

assemble; and



Times Square.

N.Y. Penal Law § 265.01-e. When asked in what public

places a permit holder could carry a firearm, New

York Governor Hochul replied, “probably some

streets.” Marcia Kramer & Dick Brennan, Fresh off

primary win, Gov. Kathy Hochul dives right into guns-who can get them and where they can take them, CBS

New York (June 29, 2022).9

Many of these “sensitive places” are precisely

the places where people may be most concerned about

protecting themselves from lawless armed criminals.

For example, black American churches have

historically been—and shockingly still are—targeted

by those seeking to harm black Americans. Conor

Friedersdorf, Thugs and Terrorists Have Attacked

Black Churches for Generations, The Atlantic (June

18, 2015)10; Jason Crosby, Targeting Black Churches

Isn’t Stuff of Distant History, Courier Journal (Nov. 1,

9 https://tinyurl.com/SomeNYStreets.

10 https://tinyurl.com/AtlanticChurches.

2018)11. And there is no question that a good guy with

a firearm in a church can prevent a tragedy. Frank

Heinz, ‘Good Guy With a Gun’ Who Stopped Church

Gunman Receives Texas’ Highest Honor, NBCDFW

(Jan. 14, 2020).12

Indeed, those who attend church services have

both First Amendment rights to the “free exercise of

religion” and the right to bear arms for their protection

during that worship. People who are most targeted at

church have the greatest need to protect themselves

by bearing arms. The Hochul law takes away that

ability for self-protection.

Further, many minorities and other low-income

inner-city residents rely on places like public

playgrounds and city parks for recreational activities

for their children. These places are sadly not immune

from urban violence, but the Hochul law prohibits

parent-permit holders from carrying firearms in these

areas—even though they would have been fully vetted

through the extensive and discriminatory—

permitting process.

The law bans the possession of a firearm on

public transportation. For many urban poor living in

New

York

City—often

minorities—public

transportation is the only option. Despite rampant

crime on New York City public transportation, these

individuals are unable to exercise their constitutional

right to defend themselves. See Fola Akinnibi, NYC’s

Subway Police Surge Fails to Dent Transit Crime,

11 https://tinyurl.com/CourierChurches.

12 https://tinyurl.com/GoodGuyChurch.

Bloomberg (Nov. 4, 2022).13 And violent crime on the

New York City subway continues despite the Second

Circuit upholding the Hochul law. Myles Miller et al.,

Metal pipe beating adds to growing list of violent NYC

subway attacks, NBC N.Y. (Feb. 19, 2024)14; Kimmy

Yam, Subway cellist says attack ‘hurt like hell,’ and

now wants more protection for performers, NBC News

(Feb. 21, 2024)15; Ellen Moynihan et al., MTA train

conductor slashed in random Brooklyn subway attack:

‘I was doing my job,’ he tells News, Daily News (Feb.

29, 2024)16. The violence on the New York City subway

has become so bad that Governor Hochul has deployed

the national guard. Evan Simko-Bednarski et al.,

Hochul sends 750 National Guard troops to NYC

subways following spate of violence, Daily News (Mar.

6, 2024)17 (“The NYPD is fighting a 15.5% jump in

felony assaults at city subway stops and trains.”).

These are the very scenarios that the Bruen decision

anticipates: protecting oneself in a public setting

where armed criminals—who ignore the Hochul Law’s

prohibitions—are likely to prowl.

The Bill of Rights exists to protect individual

13 https://tinyurl.com/SubwayCrime.

14 https://www.nbcnewyork.com/news/local/metal-pipe-beating-

adds-to-growing-list-of-violent-nyc-subway-attacks/5150631/.

15 https://www.nbcnews.com/news/asian-america/subway-cellist-

attacked-34th-street-protections-rcna139678.

16 https://www.nydailynews.com/2024/02/29/mta-train-conductor-

slashed-in-neck-in-brooklyn-subway-stop-random-attack/.

17 https://www.nydailynews.com/2024/03/06/hochul-to-dispatch-

750-national-guard-troops-to-nyc-subways-following-spate-ofviolence/.

rights against government interference. It cannot be

left to the discretion of a government official to

determine who may enjoy those rights—who may

defend him or herself and who may not. See Plain

Dealer Publishing Co., 486 U.S. at 763. The

Constitution does not abide such selective application

of fundamental rights. The Court was clear in Heller

that when the Constitution protects the rights of “the

people,” it “unambiguously refers to all members of the

political community, not an unspecified subset.” 554

U.S. at 580; see also United States v. VerdugoUrquidez, 494 U.S. 259 (1990). The Second

Amendment is not limited to the wealthy or wellconnected, or those who demonstrate the “essential

character” to bear arms, or to any other category that

the state deems fit.

The Court should grant the petition to

reaffirm the proper standard for applying

history in Second Amendment cases.

Governments and lower courts are either

reluctant to follow the Court’s Bruen historical

analysis

requirement

or—perhaps—they

are

confused. Almost immediately after the Court

announced Bruen, New York passed a new law just as

egregious as the one Bruen struck down. The Second

Circuit found a way to justify the new law, relying—in

part—on racist analogs from the reconstruction era.

And despite history playing a role in Second

Amendment analysis as far back as Heller, some lower

courts have claimed that Bruen’s historical analysis

requirement is too confusing to apply. See, e.g., United

States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023

WL 4232309, at *4 (S.D. Miss. June 28, 2023) (“After

reviewing the briefs and Bruen, this Court grew

concerned. Judges are not historians.”). One

commentator even advocated that “state legislatures

and state attorney generals should defy the Court’s

decision in Bruen ….” David L. Sloss, The Right of

State Governments to Defy the Supreme Court,

Markkula Center for Applied Ethics at Santa Clara

University (Jul. 6, 2022).18 In any event, it is

important that this Court reiterate that it means what

it says.

Further, this case is a good vehicle to clarify

that courts should disregard historical laws “from

Reconstruction regarding the scope of the right to bear

arms,” Pet. App. at 68 n.27, at least as far as those

laws were designed to prevent certain disfavored

individuals from exercising their right to keep and

bear arms. Indeed, courts should disregard any such

discriminatory laws from any era in their analysis of

the Second Amendment.

Finally, this case is a clean vehicle to admonish

governments that individuals do not need to prove

“good moral character” before they may exercise their

constitutional rights. The Court has rejected attempts

by the government to condition a constitutional right

on the discretion of an enforcing officer, and it should

grant the petition to do so here as well.

CONCLUSION

In Bruen, the Court held “that a State may not

enforce a law, like New York’s Sullivan Law, that

18 https://www.scu.edu/ethics-spotlight/the-ethics-of-guns/the-

right-of-state-governments-to-defy-the-supreme-court/.

effectively prevents its law-abiding residents from

carrying a gun ….” 142 S. Ct. at 2157 (Alito, J.,

concurring). As with the history of firearms

regulations, the Hochul Law restricts the

fundamental right to keep and bear arms for the

urban poor and facilitates discriminatory enforcement

by state officials. For the reasons stated in this amicus

brief, the Court should grant the petition for writ of

certiorari and reverse the Second Circuit Court of

Appeals.

Respectfully submitted,

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

The Buckeye Institute

88 East Broad Street

Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

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