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.

No. 23-910

IN THE

Supreme Court of the United States

_____________________________

IVAN ANTONYUK, ET AL.,

Petitioners,

v.

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

_____________________________

BRIEF OF AMICUS CURIAE FOUNDATION FOR

MORAL LAW IN SUPPORT OF PETITIONERS

_____________________________

John A. Eidsmoe*

*Counsel of Record

Roy S. Moore

Talmadge Butts

Katrinnah Darden

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

March 25, 2024

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

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

SUMMARY OF THE ARGUMENT......................... 1

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

I. The New York Concealed Carry Improvement

Act violates the Establishment and Free Exercise

Clauses of the First Amendment ....................... 3

II. Portions of the Concealed Carry Improvement

Act are vague and, given the hostility of many

New York officials toward firearms, subject to

arbitrary and discriminatory interpretation and

enforcement....................................................... 20

III.The right to keep and bear arms is a fundamental

right that cannot be conditioned on completing a

firearms safety course and passing an exam ... 23

CONCLUSION ....................................................... 26

ii

TABLE OF AUTHORITIES

Cases

Page

Brown v. Board of Education,

347 U.S. 483 (1954)........................................... 26

District of Columbia v. Heller,

554 U.S. 570 (2008)........................................1, 24

Employment Division v. Smith,

494 U.S. 872 (1990)......................................18–19

Everson v. Board of Education,

330 U.S. 1 (1947)..........................................16–17

Holy Trinity Church v. United States,

143 U.S. 457 (1892)......................................14–16

Hosanna-Tabor

Evangelical

Church and School v. EEOC,

Lutheran

565 U.S. 171 (2012)......................................17–19

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in North America,

344 U.S. 94 (1952)............................................. 18

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022)............................................. 5

Kolender v. Lawson,

461 U.S. 352 (1983)........................................... 23

McDonald v. City of Chicago,

561 U.S. 742 (2010)........................................1, 24

New York Rifle & Pistol Association, Inc. v.

Bruen,

597 U.S. 1 (2022)........................................1–2, 24

iii

Our Lady of Guadalupe School v. MorrisseyBerru,

140 S. Ct. 2049 (2020)....................................... 18

Reynolds v. United States,

98 U.S. 145 (1879)..............................5, 13–14, 16

United States v. Beckles,

137 U.S. 886 (2017)........................................... 22

Updegraph v. Commonwealth,

11 S. & R. 394 (Pa. 1824).................................. 15

Winters v. New York,

333 U.S. 507 (1948)........................................... 22

Codes, Constitutions,

Regulations & Statutes

Executive

Orders,

N.Y. Concealed Carry Improvement Act............. 2–3

N.Y. Penal Law § 400.00.......................20–21, 23–24

N.Y. Penal Law §§ 265.01–03 .............................. 4–5

U.S. Const. amend II................................................ 1

Other Authorities

I Sydney E. Ahlstrom, A Religious History of

the American People (1975) ..........................9–11

II The Papers of Thomas Jefferson (Julian P.

Boyd ed. 1950)..............................................13–14

III John Calvin, Institutes of the Christian

Religion (1536) .................................................. 10

Augustine of Hippo, Civitas Dei (AD 426) .............. 7

iv

Clairvaux, Book Four on

Consideration (1150), in From Irenaeus to

Bernard

of

Grotius: A Sourcebook in Christian

Political Thought 276 (Oliver O’Donovan

and Joan Lockwood O’Donovan eds.,

1999) ................................................................... 8

Catechism of the Catholic Church (2d ed.

2000) .................................................................. 11

Donald S. Lutz, The Relative Influence of

European Writers on Late Eighteenth

Century American Political Thought, 78

AM. POL. SCI. REV. 189 (1984)............................. 6

George Henry Boughton, Pilgrims Going to

Church, 1867, oil on canvas, 29 in × 52 in,

New

York

Historical

Society,

https://www.nyhistory.org/blogs/pilgrimsgoing-to-church-thanksgiving-and-thepilgrim-in-public-memory .................................. 3

Gertrude Himmelfarb, Lord Acton: A Study in

Conscience and Politics (1952) ........................... 7

Holy Bible, II Chronicles 2:19–23, Matthew

22:21, Luke 11:21 (King James) ................6–7, 19

James Madison, Memorial and Remonstrance

Against Religious Assessments (1785) ............ 12

James O’Donnell, ENCYC. BRITANNICA, The

City

of

God,

https://www.britannica.com/topic/TheCity-of-God ...................................................... 7–8

John Locke, The Second Treatise on Civil

Government (1689) ........................................... 25

v

The Swan Is Not Silent:

Sovereign Joy in the Life and Thought of

St. Augustine, Bethlehem Conference for

John Piper,

Pastors (Feb. 3, 1998) ..................................... 7–8

Kirk Johnson, “Colorado: Gunman Killed

Himself,” The New York Times (Dec. 12,

2007) .............................................................19–20

Leo Bernabei, Taking Aim at New York’s

Concealed Carry Improvement Act, 92

FORDHAM L. REV. 103 (2023) .................21–22, 24

Letter from Isaack de Rasieres to Herr

Samuel Blommaert (circa 1628), in John

Brown, The Pilgrim Fathers of New

England and Their Puritan Successors

252–53 (1895) .................................................. 3–4

Letter from Pope Gelasius I to Emperor

Anastasius (496), in From Irenaeus to

Grotius: A Sourcebook in Christian

Political Thought 179 (Oliver O’Donovan

and Joan Lockwood O’Donovan eds.,

1999) ................................................................... 8

Letter from Thomas Jefferson to the Danbury

Baptist Association (Jan. 1, 1802)...........5, 12–13

Letter from Thomas Jefferson to Samuel

Miller (Jan. 23, 1808), https://presspubs.uchicago.edu/founders/documents/a

mendI_religions60.html ................................... 13

Lord Acton, The History of Freedom in

Antiquity (1877) .................................................. 7

vi

Lynn R. Buzzard & Samuel Ericsson, The

Battle for Religious Liberty (1982) .............10–11

“Man who shot church gunman gets highest

Texas civilian honor,” Athens Daily

Review (Jan. 16, 2020).................................19–20

Martin Luther, Secular Authority: To What

Extent It Should Be Obeyed (1523), in III

Works of Martin Luther 237 (1982) ................. 10

M.E. Bradford, A Worthy Company: Brief

Lives of the Framers of the United States

Constitution (1982) ............................................. 9

Natalie O’Neill, “Usher hailed for preventing

massacre: Deadly church gunfire,” The

New York Post (Sept. 25, 2017)...................19–20

Pope Boniface VIII, Unuum Sanctum (1304),

in Select Historical Documents of the

Middle Ages 436 (Ernest F. Henderson ed.,

1965) .................................................................... 8

Roger Williams, The Bloody Tenent of

Persecution (1644) .......................................10–11

Thomas Hobbes, Leviathan XIV (1651) ................ 25

Thomas Jefferson, A Bill for Establishing

Religious Freedom (June 18, 1779) .............13–14

1

INTEREST OF AMICUS CURIAE1

Amicus Curiae Foundation for Moral Law is an

Alabama-based nonprofit corporation dedicated to

the strict interpretation of the Constitution intended

by its Framers, to the defense of religious liberty as

protected by the First Amendment, and to the

defense of the right to keep and bear arms as

protected by the Second Amendment. Amicus

believes the New York law at issue in this case

directly violates both Amendments.

SUMMARY OF THE ARGUMENT

The Second Amendment is clear on its face:

A well regulated Militia, being necessary to

the security of a free State, the right of the

people to keep and bear Arms, shall not be

infringed.

U.S. Const. amend II.

This Court made clear in District of Columbia v.

Heller, 554 U.S. 570 (2008), that the right to keep

and bear arms applies to individual citizens; in

McDonald v. City of Chicago, 561 U.S. 742 (2010),

that the right to keep and bear arms is incorporated

and applies to the States; and most recently in New

1 Pursuant to Rule 37.2, all parties received notice at least ten

days prior to the deadline of Amicus Curiae’s intent to file this

brief. Pursuant to Rule 37.6, Amicus Curiae certifies that no

party or party’s counsel authored this brief in whole or in part,

or contributed money that was intended to fund its preparation

or submission; and no person other than the Amicus Curiae, its

members, or its counsel, contributed money that was intended

to fund the preparation or submission of this brief.

2

York Rifle & Pistol Association, Inc., v. Bruen, 597

U.S. 1 (2022), that the right to keep and bear arms

is a highly protected right that includes the right to

bear arms in public.

The ink was barely dry on the Bruen decision

when New York’s anti-gun leaders shouted their

defiance. Governor Kathy Hochul used Twitter to

call this Court’s decision “reckless” and

“outrageous,” and within a week of the decision, the

New York Legislature passed the so-called

Concealed Carry Improvement Act (the “CCIA”) that

is every bit as unconstitutional as the law this Court

struck down in Bruen.

Because New York failed to heed this Court’s

determination, Amicus believes this Court should

grant this Petition for Certiorari and uphold the

right of New York citizens to keep and bear arms.

Rather than reiterating the excellent arguments

made by Petitioners, Amicus will focus on the

violation of the Establishment and Free Exercise

Clauses of the First Amendment imposed by the

prohibition of firearms in churches, the

unconstitutional vagueness of the CCIA law, and the

unconstitutionality of requiring completion of a

course and passage of a test for exercising a

fundamental constitutional right.

3

ARGUMENT

I. The New York Concealed Carry Improvement

Act violates the Establishment and Free Exercise

Clauses of the First Amendment.

The scene above, depicted by George Henry

Boughton in his 1867 painting Pilgrims Going to

Church, is perhaps the best-known and best-loved of

all art depicting the Pilgrims of Plymouth,

Massachusetts, in the 1620s. 2 It is based in part

upon the letter by Isaack de Rasieres, Secretary to

the Director-General of the New Netherlands colony

in Manhattan, written circa 1628, describing his

visit to the Plymouth colony:

Upon the hill they have a large square

house, with a flat roof, made of thick sawn

plank, stayed with oak beams, upon the top

Pilgrims Going to Church, 1867, oil

on canvas, 29 in × 52 in, New York Historical Society,

https://www.nyhistory.org/blogs/pilgrims-going-to-churchthanksgiving-and-the-pilgrim-in-public-memory.

2 George Henry Boughton,

4

of which they have six cannon, which shoot

iron balls of four and five pounds, and

command the surrounding country. The

lower part they use for their church, where

they preach on Sundays and the usual

holidays. They assemble by beat of drum,

each with his musket or firelock, in front of

the captain’s door; they have their cloaks on,

and place themselves in order, three abreast,

and are lead by a sergeant without beat of

drum. Behind comes the governor, in a long

robe; beside him, on the right hand, comes

the preacher with his cloak on, and on the

left hand the captain with his side-arms, and

cloak on, and with a small cane in his hand;

and so they march in good order, and each

sets his arms down near him. Thus they are

constantly on their guard night and day.3

The practice of carrying firearms to church thus

goes back to the days of the Pilgrims, who thought it

necessary to keep and bear arms to ensure their

safety and that of their loved ones before, during,

and after church services.

But now, the State of New York has enacted the

CCIA, which prohibits the possession of firearms

within a church or, in some instances, within a

parsonage. 4 This violates both the Establishment

3 Letter from Isaack de Rasieres to Herr Samuel Blommaert

(circa 1628), in John Brown, The Pilgrim Fathers of New

England and Their Puritan Successors 252–53 (1895).

4 See N.Y. Penal Law §§ 265.01–03. Petitioner Mann submitted

an affidavit that he is a pastor and that he keeps a firearm in

his parsonage, which is part of the same structure that

5

and the Free Exercise Clauses of the First

Amendment.

It violates the Establishment Clause by

dictating to churches what their policy toward

firearms must be. This is an internal policy of the

church, and the Establishment Clause reserves to

the churches the responsibility and right to make

that decision.

This Court has instructed that Establishment

Clause claims must be reviewed on the basis of the

Founders’ original understanding. Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 510 (2022).

However, because of the decades of jurisprudence

that has strayed from the Founders’ intent, this is

not an easy task for the lower courts, and the court

below got it egregiously wrong.

The Founders viewed Church and State as

separate institutions with separate jurisdictions.

When Jefferson spoke of a “wall of separation

between church and State,” he meant a

jurisdictional separation. 5 The Founders inherited

this jurisdictional understanding of Church and

State from a lineage as long as the institutions of

Church and State themselves—from ancient times,

through the medieval period, and through and

beyond the Reformation.

includes his church, and that he frequently holds Bible studies,

meetings of elders, and other church gatherings in the

parsonage.

5 Reynolds v. United States, 98 U.S. 145, 164 (1879) (quoting

Letter from Thomas Jefferson to the Danbury Baptist

Association (Jan. 1, 1802)).

6

The Framers did not view Church and State

simply as man-made institutions. They did not

accept Rousseau’s enlightenment notion that the

State is above the Church and all other institutions.6

Instead, the Founders were well versed in ancient,

medieval, and reformation theology, and, like the

people of their time and those of preceding

generations, they understood Church and State as

divinely established institutions, each with

distinctive authority and distinctive limitations.

This institutional separation goes back to the

ancient Hebrews, as can be seen in the Old

Testament, in which Israel’s kings were of the Tribe

of Judah while Israel’s priests were of the Tribe of

Levi; these were separate offices and separate

jurisdictions, but both were subject to the will of God

and the Law of God. On several occasions, God

disciplined kings severely for usurping the functions

of the priesthood. For example, when King Saul

offered sacrifices instead of waiting for Samuel the

priest, God cut off his descendants from the kingship

forever. And when King Uzziah tried to usurp the

functions of the priesthood by burning incense on the

altar in the Temple, God smote him with leprosy,

and he remained a leper all the days of his life. II

Chronicles 2:19–23 (King James).

In The Relative Influence of European Writers on Late

Eighteenth Century American Political Thought , 78 AM. POL.

6

SCI. REV. 189 (1984), Donald S. Lutz studied citations of

European thinkers by American writers 1760-1805 and

demonstrated that American writers most frequently cited the

Bible (34%), Montesquieu (8.3%), Blackstone (7.9%), and Locke

(2.9%), and cited Roussseau much less frequently (0.9%).

7

This institutional separation continued in the

New Testament. When the Pharisees asked Jesus

about paying taxes to the Roman government, He

pointed to Caesar’s image on a coin and answered,

“Render therefore unto Caesar the things which are

Caesar’s; and unto God the things that are God’s.”

Matthew 22:21 (King James). Lord Acton said of

Christ’s statement,

It was left for Christianity . . . to

animate old truths, to make real the

metaphysical barrier which philosophy

had

erected

in

the

way

of

absolutism. . . . [Christ’s statement]

gave to the State a legitimacy it had

never before enjoyed, and set bounds to

it that it had never yet been

acknowledged. And he not only

delivered the precept, but he also

forged the instruments to execute it. To

limit the power of the State ceased to

be the hope of patient, ineffectual

philosophers and became the perpetual

charge of a universal Church.7

From the beginning, Church scholars understood

that Church and State were distinct kingdoms.

Augustine of Hippo (AD 356–430), who many

consider the greatest influence on the Church

between Paul and Martin Luther, wrote of the City

of God and the City of Man in his Civitas Dei.8 The

Himmelfarb, Lord Acton: A Study in Conscience

and Politics (1952) (citing Lord Acton, The History of Freedom

in Antiquity (1877)).

8 John Piper, The Swan Is Not Silent: Sovereign Joy in the Life

7 Gertrude

8

understanding that Church and State were separate

and distinct kingdoms was universal; the only

question was the nature of the precise relationship

between them. Pope Gelasius I (died AD 496),

Bernard of Clairvaux (circa AD 1150), and Pope

Boniface (circa AD 1302) all wrote of the two swords

of the two kingdoms of Church and State.9

In ancient and medieval thought, then, Church

and State were separate kingdoms, and neither

and Thought of St. Augustine, Bethlehem Conference for

Pastors (Feb. 3, 1998). The Encyclopedia Britannica describes

The City of God as “one of the most influential works of the

Middle Ages” and says it

would be read in various ways, at some points virtually

as a founding document for a political order of kings

and popes that Augustine could hardly have imagined.

Indeed, his famous theory that people need

government because they are sinful served as a model

for church-state relations in medieval times. He also

influenced the work of St. Thomas Aquinas and John

Calvin and many other theologians throughout the

centuries.

James O’Donnell, ENCYC. BRITANNICA, The City of God,

https://www.britannica.com/topic/The-City-of-God.

9 Letter from Pope Gelasius I to Emperor Anastasius (496);

Bernard of Clairvaux, Book Four on Consideration (1150), in

From Irenaeus to Grotius: A Sourcebook in Christian Political

Thought 179, 276 (Oliver O’Donovan and Joan Lockwood

O’Donovan eds., 1999). Using very similar language, in AD

1302, Pope Boniface spoke of “two swords,—a spiritual,

namely, and a temporal.” Pope Boniface VIII, Unuum Sanctum

(1304), in Select Historical Documents of the Middle Ages 436

(Ernest F. Henderson ed., 1965). He wrote, “[f]or when the

apostle said ‘Behold, here are two swords’—when, namely, the

apostles were speaking in the church—the Lord did not reply

that this was too much, but enough.” Id.

9

controlled the other. The Church often influenced

temporal rulers by admonition, reprimand,

discipline, excommunication, and interdiction. 10

Kings sometimes insisted they had the power to

approve appointments to ecclesiastical offices within

their realms, although church officials often

disputed this. But in the West, as a rule, kings and

princes did not become popes and bishops, and popes

and bishops did not become kings and princes. Of

course, a noted exception to this rule occurred in AD

1534 when King Henry VIII of England separated

the Church of England from the Roman Catholic

Church and proclaimed himself as the head of the

Church. The Framers’ belief in the separation of

Church and State was in part a reaction against this

union of Church and State in England.

The Protestant Reformation took force in

Northern Europe in the 1500s, a century before the

settlement of the English colonies in North America.

The Reformers’ understanding of the Two Kingdoms

of Church and State is therefore key to

understanding the views of the Founders. Being

largely children of the Reformation, 11 they

10 A decree of interdiction, exercised in varying degrees, could

have the effect of prohibiting the Mass or the Sacraments

within a certain realm because of the perceived wickedness of

that realm or its ruler.

11 As Dr. M.E. Bradford established in A Worthy Company:

Brief Lives of the Framers of the United States Constitution

iv–v (1982), the fifty-five delegates to the Constitutional

Convention included 28 Episcopalians, 8 Presbyterians, 2

Lutherans, 2 Dutch Reformed, 2 Methodists, 2 Roman

Catholics, one uncertain, and 3 who might be Deists. Yale

History Professor Sydney E. Ahlstrom concluded: “If one were

to compute such a percentage on the basis of all the German,

10

understood that God had established two kingdoms,

Church and State, each with distinctive authority.

As Luther said, these

two kingdoms must be sharply

distinguished, and both be permitted to

remain; the one to produce piety, the

other to bring about external peace and

prevent evil deeds; neither is sufficient

in the world without the other.12

And as John Calvin stated in his Institutes of the

Christian Religion,

let us observe that in man government

is twofold: the one spiritual, by which

the conscience is trained to piety and

divine worship; the other civil, by

which the individual is instructed in

those duties which, as men and

citizens, we are bold to perform. . . . For

there exists in man a kind of two

worlds, over which different kings and

different laws can preside.13

Long before Jefferson would speak of the “wall of

separation between church and state,” Rhode Island

founder Roger Williams wrote of a “gap in the hedge

Swiss, French, Dutch, and Scottish people whose forebears

bore the 'stamp of Geneva' in some broader sense, 85 or 90

percent would not be an extravagant estimate." I Sydney E.

Ahlstrom, A Religious History of the American People 169

(1975).

12 Martin Luther, Secular Authority: To What Extent It Should

Be Obeyed (1523), in III Works of Martin Luther 237 (1982).

13 III John Calvin, Institutes of the Christian Religion ch. 19

(1536).

11

or wall of separation between the garden of the

church and the wilderness of the world.”14 This “Two

Kingdoms” approach to Church and State relations

was not limited to Protestantism post-Reformation.

The Catechism of the Catholic Church recognizes

distinct jurisdictions between Church and State as

well.15

This understanding of Church and State as two

separate kingdoms, both established by God but

with separate spheres of authority, shaped the

Founders on a foundational level. As Yale History

Professor Sydney E. Ahlstrom has noted,

No factor in the “Revolution of 1607–

1760” was more significant to the ideals

and thought of colonial Americans than

the Reformed and Puritan character of

their Protestantism; and no institution

played a more prominent role in the

molding of colonial culture than the

church. 16

The Founders were thus well acquainted with

the history of the preceding generations and carried

this understanding of jurisdictional separation

between Church and State with them both as they

wrote and ratified the First Amendment. This

understanding is best reflected in the Founders’ own

Lynn R. Buzzard & Samuel Ericsson, The Battle for

Religious Liberty 51 (1982) (quoting Roger Williams, The

Bloody Tenent of Persecution (1644)).

15 Catechism of the Catholic Church §§ 2245–46 (2d ed. 2000).

16 Ahlstrom, supra note 11, at 423.

14

12

actions concerning religious liberty leading up to

ratification and after.

Throughout his Memorial and Remonstrance

Against Religious Assessments (1785), James

Madison emphasized the distinct jurisdictional

separation between Church and State, writing that

“in matters of Religion, no man’s right is abridged by

the institution of Civil Society and that Religion is

wholly exempt from its cognizance.” He further

revealed his jurisdictional view of church/state

relations by saying Christianity is "the Religion

which we believe to be of divine origin" and enjoys

the "patronage of its Author" and therefore does not

need the aid of the State. And, as discussed supra,

Madison’s definition of religion within his Memorial

and Remonstrance was the primary definition the

Founders were familiar with when Madison

introduced the First Amendment on the floor of

Congress in June 1789.

Thomas Jefferson’s “wall of separation” must

also be viewed in this context: as a jurisdictional

separation between the two kingdoms, Church and

State. Jefferson’s statement was a reassurance to

the Danbury Baptists concerned with government

overreach over the Church:

Believing with you that religion is a

matter which lies solely between man

[and] his God, that he owes account to

none other for his faith or his worship,

that the legitimate powers of

government reach actions only, [and]

not opinions, I contemplate with

sovereign reverence that act of the

13

whole American people which declared

that their legislature should “make no

law respecting an establishment of

religion, or prohibiting the free exercise

thereof,” thus building a wall of

separation between Church [and]

State.17

Jefferson’s understanding that the “wall of

separation” was meant to protect the Church from

State intrusion is apparent from his later writing:

I consider the government of the

[United States] as interdicted by the

Constitution from intermeddling in

religious institutions, their doctrines,

discipline, or exercises. . . . Certainly no

power to prescribe any religious

exercise, or to assume authority in

religious discipline, has been delegated

to the general government.18

He described the jurisdictional separation of Church

and State as he described them in the Virginia Bill

for Religious Freedom in 1777. This Court quoted

that bill in 1878:

“that to suffer the civil magistrate to

intrude his powers into the field of

opinion, and to restrain the profession

or propagation of principles on

Letter from Thomas Jefferson to the Danbury Baptist

Association (Jan. 1, 1802).

18 Letter from Thomas Jefferson to Samuel Miller (Jan. 23,

1808), https://press-pubs.uchicago.edu/founders/documents/a

mendI_religions60.html.

17

14

supposition of their ill tendency, is a

dangerous fallacy which at once

destroys all religious liberty,” it is

declared “that it is time enough for the

rightful purposes of civil government

for its officers to interfere when

principles break out into overt acts

against peace and good order.”19

This Court followed Jefferson’s words by stating: “In

these two sentences is found the true distinction

between what properly belongs to the church and

what to the State.”20

Rather than an amorphous and subjective “test,”

the Founders’ true instruction for the Religion

Clauses of the First Amendment based on their

understanding and definition of religion is this:

Congress shall make no law respecting an

establishment of the duties which we owe to our

Creator, and the manner of discharging those duties,

or prohibiting the free exercise of the duties which

we owe to our Creator, and the manner of

discharging those duties unless those duties break

out into overt acts against peace and good order.

After Reynolds, this Court continued to apply the

Founders’

understanding

of

jurisdictional

separation of Church and State under the Religion

Clauses. In 1892, the Court overturned the

Reynolds v. United States, 98 U.S. 145, 163 (1879) (quoting

Thomas Jefferson, A Bill for Establishing Religious Freedom

(June 18, 1779)); see II The Papers of Thomas Jefferson 545–

553 (Julian P. Boyd ed. 1950).

20 Reynolds, 98 U.S. at 163.

19

15

application of national immigration law to an alien

pastor from England who had been contracted to

work with a church in New York. Holy Trinity

Church v. United States, 143 U.S. 457 (1892). After

finding that the statute’s language could not be

construed to include more than manual laborers, the

Court found that “beyond all these matters, no

purpose of action against religion can be imputed to

any legislation, state or national, because this is a

religious people.” Id. at 465. This Court found that

the colonial records, state constitutions, and the

Declaration of Independence show “a constant

recognition of religious obligations.” Id. at 465–71.

Comparing these recognitions of God to the

Establishment and Free Exercise Clauses of the

First Amendment to the Constitution, this Court

went on to say:

There is no dissonance in these declarations.

There is a universal language pervading them

all, having one meaning. They affirm and

reaffirm that this is a religious nation. These

are not individual sayings, declarations of

private persons. They are organic utterances.

They speak the voice of the entire people.

While, because of a general recognition of this

truth, the question has seldom been

presented to the courts, yet we find that in

Updegraph v. Commonwealth, 11 S. & R. 394,

400 [(Pa. 1824)], it was decided that

“Christianity, general Christianity, is, and

always has been, a part of the common law of

Pennsylvania; . . . not Christianity with an

established church and tithes and spiritual

16

courts, but Christianity with liberty of

conscience to all men.”

Id. at 470. This Court then applied the Founders’

understanding of jurisdictional separation to hold

that a valid immigration law could not be applied to

the Church where “the general language thus

employed is broad enough to reach cases and acts

which the whole history and life of the country

affirm could not have been intentionally legislated

against.” Id. at 472. The state could not dictate to the

church whom the church could or could not call as a

pastor.

The first Supreme Court Establishment Clause

decision (as noted by Justice Rutledge in his

dissent), Everson v. Board of Education, 330 U.S. 1

(1947), is also consistent with the Founders’

understanding of a jurisdictional separation of

Church and State. Justice Hugo Black, alluding to

Jefferson, concluded the Court’s majority opinion

with the famous statement: “The First Amendment

has erected a wall between church and state. That

wall must be kept high and impregnable. We could

not approve the slightest breach.” Id. at 18; See id.

at 16 (citing Reynolds, 98 U.S. at 164).

The Court had explained the “wall” earlier in its

opinion:

The “establishment of religion” clause

of the First Amendment means at least

this: neither a state nor the Federal

Government can set up a church.

Neither can pass laws which aid one

religion, aid all religions, or prefer one

17

religion over another. Neither can force

nor influence a person to go to or to

remain away from church against his

will or force him to profess a belief or

disbelief in any religion. No person can

be punished for entertaining or

professing

religious

beliefs

or

disbeliefs, for church attendance or

non-attendance.

Id. at 15–16 (emphasis added). Everson did not

address any subjective tests, nor did the Court

discuss specific types of state regulation of churches.

Rather, the Court stated as an absolute that

“[n]either a state nor the Federal Government” can

“force nor influence a person to go to or to remain

away from church against his will or force him to

profess a belief or disbelief in any religion.” Id.

The Everson Court made the straightforward

conclusion that simple church assembly is not an

“overt act against peace and good order” and

recognized that it is a matter of Church jurisdiction

that the State cannot breach. Id. However, this truth

has been clouded by confusing and tangled

precedent which has blurred the complementary

nature of the Establishment and Free Exercise

Clauses.

As recently as 2012, this Court has recognized

the jurisdictional separation of Church and State

enshrined in the Religion Clauses. In Hosanna-

Tabor Evangelical Lutheran Church and School v.

EEOC, the Court held that there is a “ministerial

exception” that precludes the application of

employment discrimination laws to the Church. 565

18

U.S. 171, 187–88 (2012). The Court held that the

Religion Clauses require that “the authority to select

and control who will minister to the faithful—a

matter ‘strictly ecclesiastical,’ [Kedroff v. St.

Nicholas Cathedral of Russian Orthodox Church in

North America, 344 U.S. 94, 119 (1952)]—is the

church’s alone.” Id. The Hosanna-Tabor Court’s

“ministerial exception” is simply what the Founders

would have considered a necessary and obvious

result of the jurisdictional separation of Church and

State. Hosanna-Tabor illustrates how this

jurisdictional separation is inherent in both the

Establishment and Free Exercise Clauses:

By imposing an unwanted minister, the state

infringes the Free Exercise Clause, which

protects a religious group's right to shape its

own faith and mission through its

appointments. According the state the power

to determine which individuals will minister

to the faithful also violates the Establishment

Clause,

which

prohibits

government

involvement in such ecclesiastical decisions.

Id. at 188–89; accord Our Lady of Guadalupe School

v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

The Court distinguished its decision in HosannaTabor from Employment Division v. Smith, 494 U.S.

872 (1990), by stating that, while the discrimination

law was a valid and neutral law of general

applicability, “a church’s selection of its ministers is

unlike an individual’s ingestion of peyote. Smith

involved government regulation of only outward

physical acts. The present case, in contrast, concerns

government’s interference with an internal church

19

decision that affects the faith and mission of the

church itself.” Id. at 190.

Decisions as to how to protect worshippers

during a worship service inside a church are left by

the Establishment Clause to churches. If a church

chooses to prohibit its attendees from bringing

firearms into the church building, it may prohibit

them. If a church chooses to allow its attendees to

bring firearms into the church, it may allow them.

This decision may involve Biblical, theological,

moral, and practical considerations, but the church

and the church alone has the authority to make that

decision. The church may decide, based on Luke

11:21, that “When a strong man armed keepeth his

palace, his goods are in peace,” and therefore that

the Biblically and theologically correct position is to

allow or require firearms in church to ensure the

safety of worshippers. (King James). Or the church

may decide, based on practical considerations, that

its worshippers are more likely to be safe if armed

worshippers are present. 21 The Establishment

21 The District Court in this case observed the following:

Unless the Court is mistaken, there have been at least

three instances of handguns being effectively used in

self-defense in churches in the United States since the

turn of the 21st century: (1) at the Colorado Springs

New Life Church on December 9, 2007; (2) at the

Antioch (Tennessee) Burnette Chapel Church of Christ

on September 24, 2017; and (3) at the West Freeway

Church of Christ in Texas on December 29, 2019. See

Kirk Johnson, “Colorado: Gunman Killed Himself,”

The New York Times (Dec. 12, 2007); Natalie O’Neill,

“Usher hailed for preventing massacre: Deadly church

gunfire,” The New York Post (Sept. 25, 2017); “Man

20

Clause protects the church’s right to make this

determination.

Likewise, a worshipper may decide he has a

religious duty to protect himself and his fellow

worshippers by carrying a firearm to church during

the worship service based upon the same or other

considerations. The Free Exercise Clause protects

the worshipper’s right to make this determination.22

II. Portions of the Concealed Carry Improvement

Act are vague and, given the hostility of many

New York officials toward firearms, subject to

arbitrary and discriminatory interpretation and

enforcement.

In many places in New York, firearms are

prohibited. In the areas where firearms are

permitted, applicants for permits must meet certain

ambiguous

requirements.

Among

these

requirements are that the applicant for a permit

prove his or her good moral character,23 disclose his

who shot church gunman gets highest Texas civilian

honor,” Athens Daily Review (Jan. 16, 2020).

App.369 n.103.

22 The rare situation in which a church determines that it

should prohibit people from carrying arms while a worshipper

believes he should carry arms, is not relevant to this case.

Amicus believes the right of the church to exclude those who do

not conform to its rules takes precedence, while a dissenting

worshipper has the right to choose a different church.

23 N.Y. Penal Law § 400.00(1)(o)(y) (defining good moral

character as “having the essential character, temperament,

and judgement necessary to be entrusted with a weapon and to

use it only in a manner that does not endanger oneself or

others.”).

21

or her social media accounts over the last three years

for government scrutiny, 24 list any cohabitants,

including children, 25 provide four references, 26 and

meet with a licensing official for an in-person

interview.27

These requirements are vague and subject to

arbitrary and discriminatory enforcement. For

example, the burden is on the applicant to prove

good moral character, and as Leo Bernabei

observes in the Fordham Law Review, New York

has considered this requirement in other contexts

to require the disclosure of

[any] arrest (even without a conviction), a

poor driving history, termination from

employment, a history of lost or stolen

firearms, failure to pay debts, and [even]

catchalls [like] “a lack of candor towards

lawful authorities” and “a lack of concern for

the safety of oneself and/or other persons.” 28

Under this amorphous standard,

[t]he New York City Police Department has

denied applications based on an applicant’s

post-nasal drip making him appear nervous

in an interview; the fact that an applicant’s

son had an altercation with the police,

24 N.Y. Penal Law § 400.00(1)(o)(iv).

25 N.Y. Penal Law § 400.00(1)((o)(i).

26 N.Y. Penal Law § 400.00(1)(o)(ii).

27 N.Y. Penal Law § 400.00(1)(o).

Taking Aim at New York’s Concealed Carry

Improvement Act, 92 FORDHAM L. REV. 103, 116 (2023)

28 Leo Bernabei,

(citations omitted).

22

despite the applicant himself carrying an

unblemished record; an applicant neglecting

to inform licensing officials of a license

revocation in another jurisdiction; an

applicant failing to disclose a sealed

nineteen-year-old arrest in which the

applicant was found not guilty; and an

applicant submitting misleading letters to

licensing officials regarding the applicant’s

employment. In Westchester County, just

north of New York City, licensing

authorities once denied an application

because the applicant’s psoriasis prevented

his fingerprints from being recorded. From

that case and its progeny was born the glib

phrase that still permeates both state and

federal court cases surrounding the denial of

a New York handgun license: “Possession of

a handgun license is a privilege, not a

right.”29

In Winters v. New York, 333 U.S. 507 (1948),

this Court stated that “there must be ascertainable

standards of guilt. Men of common intelligence

cannot be required to guess at the meaning of the

enactment.” New York’s CCIA lacks ascertainable

standards of guilt. As the Supreme Court said in

United States v. Beckles, 137 U.S. 886, 892 (2017),

the void-for-vagueness doctrine applies with special

rigor to criminal statutes and statutes prescribing

penalties for criminal violations.

29

Id.

23

Another reason the Due Process Clause of the

Fourteenth Amendment forbids vague statutes is

that they lead to arbitrary and discriminatory

enforcement. Kolender v. Lawson, 461 U.S. 352, 357

(1983). An interviewing officer, consciously or

subconsciously, may decide that an applicant is or is

not deserving of a permit based upon his or her

personal beliefs, tastes, and prejudices. An officer

may decide, based on careful reasoning or simply a

gut reaction, that an applicant is or is not of good

moral character and can or cannot be entrusted with

a firearms permit, because the officer does or does

not agree with the applicant’s religion, political

party, or ideology, or because he does or does not

empathize the with the applicant’s race, sex, gender

preference, gender identification, personality, style

of speaking, manner of dress, or any of an infinite

number of factors.

The danger of arbitrary and discriminatory

enforcement is even greater considering that the

interviewer may have a basic prejudice against guns

and people who want to carry them or may report to

supervisors and political figures who have such

prejudices, as may be the case in New York.

III. The right to keep and bear arms is a

fundamental right that cannot be conditioned on

completing a firearms safety course and passing

an exam.

The CCIA also requires that applicants for a

permit to carry a weapon complete a sixteen-hour

state-certified training course 30 and score a

30 N.Y. Penal Law § 400.00(19)(a).

24

minimum of 80 percent on a written exam. 31

Bernabei notes that “[e]arly indications suggest that

this course can cost upward of $500. The law gives a

licensing official six months to approve or deny an

application but allows a delay for good cause.”32

The State of New York appears to have

unfettered discretion to refuse to certify any but the

most restrictive and anti-gun training courses, to

make the course so expensive that few could afford

it, and make the exam so difficult that almost no one

could pass it.

The right to keep and bear arms is a highly

protected right, as this Court established in Heller,

McDonald, and Bruen. Amicus questions whether

the Second Amendment allows New York to require

a permit to exercise such a basic human right, or to

condition the right on taking a course or passing an

exam.

Suppose New York were to require a public

speaking course as a condition for exercising the

right of free speech, or a theology exam as a

condition for exercising the right to free exercise of

religion, or a journalism course as a condition for

exercising the right to freedom of the press. Such

requirements would be struck down in a heartbeat.

The right to keep and bear arms is inextricably

related to the most basic of all human rights—the

right to life—and the concomitant right to defend

31 N.Y. Penal Law § 400.00 (19)(b).

32 Bernabei,

supra note 28, at 115 (citations omitted).

25

one’s life. This right would be meaningless if one

were denied the right to carry arms in one’s defense.

The Framers developed their understanding of

unalienable human rights largely through the

writings of Thomas Hobbes and John Locke. For

both Hobbes and Locke, all rights stem from the

fundamental human motivation to preserve one’s

own life. Hobbes asserted this as the first right of

nature: “the Liberty each man hath, to use his own

power, as he will himselfe, for the preservation of his

own Nature; that is to say, of his own life.” Thomas

Hobbes, Leviathan XIV (1651). Similarly, Locke

posited that everyone “is bound to preserve himself,

and not to quit his station wilfully.” John Locke, The

Second Treatise on Civil Government § 6 (1689).

Consequently, “Men, being once born, have a right

to their Preservation.” Id. at § 25.

If humanity’s most basic purpose is to live,

natural reason dictates that they must have the

freedom to do what is necessary to preserve their

lives. The basic right to life necessarily implies a

right to defend oneself against enemies or otherwise

hostile forces. Locke epitomized this sentiment by

arguing that one has the right to kill even a petty

thief in self-defense, since it is impossible to know

his full intentions at the time. Denying a person the

right to keep and bear arms is tantamount to

denying him the right to self-defense, which is

essential to the right to life itself.

The exercise of a right that is this fundamental

cannot be conditioned on taking a sixteen-hour

course or scoring 80% on an exam.

26

CONCLUSION

Never since Brown v. Board of Education, 347

U.S. 483 (1954), have lower courts and state officials

so defiantly resisted a Supreme Court ruling that is

so squarely based on the plain wording of the

Constitution, as New York and the lower courts have

done here.

This Court should accept the present Petition

and rule once again in clear and unmistakable terms

that the Second Amendment guarantee of the “right

of the people to keep and bear arms” means exactly

what it says.

Respectfully submitted,

John A. Eidsmoe*

*Counsel of Record

Roy S. Moore

Talmadge Butts

Katrinnah Darden

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

Counsel for Amicus Curiae

March 25, 2024