Amicus Curiae Brief — Ivan Antonyuk, et al., Petitioners v. Steven G. James, In His Official Capacity as the Superintendent of the New York State Police, et al.
Supreme Court briefFeb 26, 2025
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No. 24-795
───────────────────────────
In the
Supreme Court of the United States
──────────────────────────
IVAN ANTONYUK, ET AL.,
Petitioners,
v.
STEVEN G. JAMES, in his official capacity as the
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
J. Simon Peter Mizner
THE BUCKEYE INSTITUTE
88 East Broad Street, Suite 1300
Columbus, OH 43215
(614) 224-4422
D.Tryon@BuckeyeInstitute.org
i
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.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
TABLE OF AUTHORITIES........................................ iv
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF THE 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
Orwell, 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 the
passage of the black codes .............................. 9
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 ................................ 11
D. New York’s Race and Minority-Targeting
Sullivan Law.................................................. 14
iii
III. Meet the new Hochul Law, worse than the
old Sullivan Law ................................................. 16
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
iv
TABLE OF AUTHORITIES
Cases
Cantwell v. Connecticut,
310 U.S. 296 (1940) ........................................... 16, 18
City of Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750 (1988) .................................... 18, 23
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
Dred Scott v. Sandford,
60 U.S. 393 (1857)...................................................... 6
Harman v. Forssenius,
380 U.S. 528 (1965) ................................................. 20
Harper v. Virginia State Bd. of Elections,
383 U.S. 663 (1966) ................................................. 20
McDonald v. City of Chicago Ill.,
561 U.S. 742 (2010) ....................................... 9, 10, 11
New York State Rifle & Pistol Ass’n, Inc.
v. Bruen, 597 U.S. 1 (2022) ...... 2, 3, 4, 14, 15, 16, 25
Saia v. New York,
334 U.S. 558 (1948) ................................................. 18
State v. Newsom,
27 N.C. 250 (1844) ................................................. 6, 9
State v. Nieto,
130 N.E. 663 (1920) ................................................... 4
v
United States v. Bullock,
679 F. Supp. 3d 501 (S.D. Miss. 2023) ................... 24
United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990) ................ 24
Watson v. Stone,
184 Fla. 516 (1941) .................................................. 13
Statutes
14 Stat. 173 (1866) ...................................................... 10
14 Stat. 27 (1866) ........................................................ 11
17 Stat. 457 (1873) ...................................................... 14
1865 Fla. Laws 23 ......................................................... 8
1911 N.Y. Laws, ch. 195 ............................................. 14
1913 N.Y. Laws, ch. 608 ............................................. 15
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) ........................................................................... 7
Act of June 7, 1712, reprinted in 7 Statutes at
Large of South Carolina (McCord ed. 1840)............ 8
Act of Oct. 1, 1804, reprinted in The Laws of
the Territory of Louisiana (Charles ed. 1808) ......... 8
vi
N.Y. Penal Law § 265.01-e ......................................... 21
N.Y. Penal Law § 400.00 ............................................ 17
Other Authorities
An Act for Preventing Suppressing and
Punishing the Conspiracy and Insurrection
of Negroes and Other Slaves, Duke Center
for Firearms Law ....................................................... 5
Black Code, Britannica ................................................. 9
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). ........... 21
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) .................... 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) ............................................... 23
Evan Simko-Bednarski et al., Hochul sends
750 National Guard troops to NYC subways
following spate of violence, Daily News (Mar.
6, 2024) ..................................................................... 23
vii
Fola Akinnibi, NYC’s Subway Police Surge
Fails to Dent Transit Crime, Bloomberg
(Nov. 4, 2022) ........................................................... 23
Frank Heinz, ‘Good Guy With a Gun’ Who
Stopped Church Gunman Receives Texas’
Highest Honor, NBCDFW (Jan. 14, 2020) ............ 22
Frederick Douglas, Address delivered in New
York City, May 10, 1865, in 4 The Frederick
Douglas Papers (1991) ............................................ 10
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) .............................. 9, 10
James Anderson & Lee Kennett, The Gun in
America: The Origins of a National Dilemma
(1975) ........................................................................ 15
Jason Crosby, Targeting Black Churches Isn’t
Stuff of Distant History, Courier Journal
(Nov. 1, 2018) ........................................................... 22
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) ......................................................................... 21
Myles Miller et al., Metal pipe beating adds to
growing list of violent NYC subway attacks,
NBC N.Y. (Feb. 19, 2024) ........................................ 23
viii
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) ................... 19
New York Urban League, The State of Black
New York (2020)................................................. 16, 19
Pratheepan Gulasekaram, The Second
Amendment’s “People” Problem, 76 Vand.
L. Rev. 1437 (2023) ............................................ 4, 6, 7
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..................................... 2, 8
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, 15, 20
Stephen P. Halbrook, Securing Civil Rights:
Freedmen, the Fourteenth Amendment, and
the Right to Bear Arms (2010) ................................ 10
ix
Stephen P. Halbrook, The Right to Bear
Arms: A Constitutional right of the People or
a Privilege of the Ruling Class (2021) ..... 4, 7, 10, 11,
12, 13, 14, 20
Stephen P. Halbrook, The Right to Bear Arms:
For Me, But Not For Thee?, 43 Harv. J. L. &
Pub. Pol. 331 (2019)................................................. 12
The Freedmen, Library of Congress ............................ 6
Transcript of Oral Argument, Bruen, 597 U.S.
1 (No. 20-843) ........................................................... 15
William Tonso, Gun Control: White Man’s
Law, Reason Magazine (1985) ................................ 12
1
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 timely
provided the notice required by Rule 37.2.
2
SUMMARY OF THE 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 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
1694 to 1901, at least 75 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, 597 U.S. 1
(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. These
historical deprivations of constitutional rights were
gravely wrong and cannot justify current regulations.
New York’s new firearms carry laws are
discriminatory and a continuation of the laws New
York passed at the turn of the 19th century to restrict
2 https://tinyurl.com/2fd9vmr7 (last visited Feb. 18, 2025).
3
firearms possession or usage by another disfavored
minority group—immigrants. Like those past
discriminatory laws, New York’s new law arbitrarily
denies 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
I. 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, 597 U.S. at 22. The
Court has held that “when the Second Amendment’s
plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.”
Id. at 17. “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 71 (Alito, J., concurring). As such, for a
regulation on carrying a firearm outside of the home
to be upheld, “the government must demonstrate that
4
the regulation is consistent with this Nation’s
historical tradition of firearm regulation.” Id. at 17.
Since carrying firearms outside of the home is
presumptively
protected,
courts
must
give
“unqualified deference” to citizens’ right to bear arms.
Id. at 26. 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 17.
But mere consistency with historical practice is not
enough. The historical firearms regulations relied on
must also be legitimate. Historical regulations
designed to oppress racial minorities or “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 (Ohio
1920) (Wanamaker, J., dissenting)). Most importantly,
these historical gun laws were not about the guns, but
the people deemed “threatening.” Pratheepan
Gulasekaram, The Second Amendment’s “People”
Problem, 76 Vand. L. Rev. 1437, 1479 (2023).
5
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. An Act for
Preventing Suppressing and Punishing the Conspiracy
and Insurrection of Negroes and Other Slaves, Duke
Center for Firearms Law3 (1712 New York law making
it unlawful for a slave “to have or use any Gun or
Pistoll [sic] but in his Master’s or Mistresse’s presence
or by their direction . . . .”). Slaves were forbidden to
own or possess firearms—unless there were
exceptional circumstances and local authorities
3 https://tinyurl.com/bdzd2uj2 (last visited Feb. 18, 2025).
6
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.
See, e.g., State v. Newsom, 27 N.C. 250, 207 (1844);
Cooper v. Savannah, 4 Ga. 72 (1848).
Such restrictions did not speak to the courts’ or
legislatures’ views that firearms were dangerous, but
that disfavored groups were not even considered
people. Gulasekaram, supra, at 1480–81. The
infamous Dread Scott case epitomizes that view.
The words ‘people of the United States’
and ‘citizens’ are synonymous terms, and
mean the same thing. They both describe
the political body who, according to our
republican
institutions,
form
the
sovereignty, and who hold the power and
conduct the Government through their
representatives. They are what we
familiarly call the ‘sovereign people,’ and
every citizen is one of this people.
Dred Scott v. Sandford, 60 U.S. 393, 404 (1857). These
courts considered restrictions on blacks and other
Freedmen generally refers 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. 18, 2025). In
contrast, “free blacks” were black Americans who were not
enslaved before 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).
4
7
minorities as not being restrictions on the “people” at
all. Old laws that restricted gun ownership based on a
group’s “disfavored” status fail as historical analogues
because at the time those laws were passed, the laws
were not regulating the “people.” Gulasekaram, supra,
at 1481.
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.
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 (citation omitted).
In Louisiana, “no slave or mulatto whatsoever,
[could] keep or carry any gun, powder, shot, club, or
other weapon whatsoever, offensive or defensive; but
8
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, Repository of
Historical Gun 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
9
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 the 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 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
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. 18,
2025). The black codes, though varying between states, “all
continued to assume the inferiority of the freed slaves.” Id.
10
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
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
11
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 Americans the right to bear arms by holding the
Civil Rights Act to be unconstitutional. See 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, 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
12
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 1870s
and 1880s. 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
13
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 (citation omitted). 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
14
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, 597 U.S. at 11.
15
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, 597 U.S. 1 (No. 20-843).6
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.
597 U.S. at 11. Addressing the “may-issue” aspects of
6 https://tinyurl.com/2s3ucb2w.
16
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 38 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 Kathleen Hochul doubled down on the
State’s 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. New York Urban
League, The State of Black New York 9 (2020).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.
7 https://tinyurl.com/BlackNY.
17
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 the
licensing officers deem appropriate; and
•
submitting to an in-person interview with the
licensing officer or designee.
N.Y. Penal Law § 400.00.
Like the old “may issue” regime, licensing officers
have complete discretion over who has a Second
Amendment right and who does not. The officers
determine: if the applicant’s character references are
adequate, if 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—unilaterally—determines if the applicant is “of
good moral character.” Id.
The Court should reject any regime that 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
18
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 permit applications 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 constitutionally
suspect. E.g., Cox v. State of Louisiana, 379 U.S. 536,
558 (1965) (“allowing unfettered discretion in local
officials” is an abridgment 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
19
308 (ordinance requiring persons to obtain a license
before soliciting door-to-door was invalid because the
“executive and judicial branches [had] too wide a
discretion in its application”).
The same constitutional infirmity is apparent here.
New York’s discrimination against individuals
attempting to exercise 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 necessities, and nearly one in four black adults
in New York City live in poverty. New York Urban
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://tinyurl.com/3zuk8v3x.
Indeed, the entire process is designed to discourage anyone from
even applying, let alone completing the entire application process.
20
League, supra, at 9. Hence, the law lands squarely on
New York’s low-income black Americans. The Hochul
law 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 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
consolation
to
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;
21
•
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, 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 N.Y. (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
9 https://tinyurl.com/SomeNYStreets.
10 https://tinyurl.com/AtlanticChurches.
22
Isn’t Stuff of Distant History, Courier Journal (Nov. 1,
2018)11. And there is no question that a good guy with
a gun can stop a bad guy with a gun and 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 in urban areas, which are often
filled with minorities and other low-income 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 Hochul 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
11 https://tinyurl.com/CourierChurches.
12 https://tinyurl.com/GoodGuyChurch.
23
Subway Police Surge Fails to Dent Transit Crime,
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; 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)15. 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)16 (“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—are likely to
prowl.
The Bill of Rights exists to protect individual 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
13 https://tinyurl.com/SubwayCrime.
14 https://tinyurl.com/4amzhjh2.
15 https://tinyurl.com/2rdf7ecb.
16 https://tinyurl.com/8usae27a.
24
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. Verdugo-Urquidez, 494 U.S. 259
(1990). The Second Amendment is not limited to the
wealthy or well-connected, or those who demonstrate
the “essential character” to bear arms, or to any other
category that the state deems fit.
V. 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,
679 F. Supp. 3d 501, 508 (S.D. Miss. 2023) (“After
reviewing the briefs and Bruen, this Court grew
concerned. Judges are not historians.”), rev’d and
remanded, No. 23-60408, 2024 WL 4879467 (5th Cir.
Nov. 25, 2024). One commentator even advocated that
“state legislatures and state attorney generals [sic]
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
25
at Santa Clara University (Jul. 6, 2022).17 In any
event, it is important that this Court reiterate that it
means what it says.
Plus, this case is an effective vehicle to clarify that
courts should disregard historical laws that prevented
disfavored individuals from exercising their right to
keep and bear arms not because the firearms were
dangerous, but because the targeted minorities were
not considered citizens. Courts should disregard any
such discriminatory laws from any era in their Second
Amendment analysis.
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
effectively prevents its law-abiding residents from
carrying a gun . . . .”597 U.S. at 71–72 (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.
17 https://tinyurl.com/3dsn9ay9.
26
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
J. Simon Peter Mizner
THE BUCKEYE INSTITUTE
88 East Broad Street, Suite 1300
Columbus, OH 43215
(614) 224-4422
D.Tryon@BuckeyeInstitute.org
February 26, 2025
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.