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New York Case Spotlights Gun Laws, Race History: Explained (1)

Nov. 3, 2021, 8:46 AMUpdated: Nov. 3, 2021, 4:55 PM

Groups supporting firearms rights for Black people put a spotlight on the history of racist gun-law enforcement in briefs filed in the biggest Second Amendment case at the Supreme Court in more than a decade.

Though it was mentioned briefly at Wednesday’s argument, race isn’t directly at issue in the dispute over New York’s strict concealed-carry regime. But the groups want to bring attention to the history and parallels that they see to the present.

1. What’s the New York Case About?

The state requires an applicant to show a special need for a concealed-carry license. Challengers say that violates the Second Amendment.

In contentious 2008 and 2010 decisions, the high court said the amendment allows gun possession at home for self-defense, regardless of militia service. The amendment says, “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.”

Wednesday’s argument in New York State Rifle & Pistol Association v. Bruen prompted the justices to consider how the right applies outside the home.

New York officials observe that it’s not an unlimited right, and that the challengers’ “claim of an entitlement to carry concealed handguns anywhere (or virtually anywhere) in public thus defies both the historical record and this Court’s precedents.”

2. How Does Race Factor In?

Amicus briefs from the National African American Gun Association and Black Guns Matter describe the history of racism in gun laws and enforcement.

The right to bear arms, NAAGA’s brief said, “was denied to African Americans under the antebellum Slave Codes, the post-Civil War Black Codes, and the Jim Crow laws that persisted into the twentieth century.” These laws’ arbitrary prohibitions on carrying guns parallel New York’s, it said.

“Restrictive laws, and laws that are inequitably enforced among African Americans, have been the history of this country,” said Philip Smith, NAAGA’s founder and president. “We need to be honest about that and to make sure that doesn’t happen anymore,” Smith said. He noted an increase in gun ownership by Black people in recent years, which he called “an awakening.”

The ownership increase “signals a realization by African Americans that reliance upon the government is inadequate to address the challenges they face in their own communities and shows the current, modern importance of armed self-defense to the African American community,” the Black Guns Matter brief said.

Justice Samuel Alito referenced arguments about the discriminatory history of New York’s law on Wednesday. “There are those who argue, and they cite support for, this interpretation 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,” Alito said.

3. How Are Prosecutions Relevant?

George Washington University law professor Robert Cottrol, a Second Amendment scholar who has written about race and guns, pointed to another amicus brief filed in Bruen, by Black public defenders in New York. They said they filed the brief “because we have first-hand experience representing hundreds of indigent people each year who are arrested, jailed, and prosecuted for exercising their constitutional rights to keep and bear arms.”

For their clients, “New York’s licensing regime renders the Second Amendment a legal fiction,” the filing said. “Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”

Cottrol called the public-defender brief powerful and said he’d be surprised if it isn’t cited in the court’s eventual opinion in Bruen.

“It raises the question,” Cottrol said: “Are we criminalizing and victimizing ordinary citizens who simply seek to defend themselves? Are we criminalizing them and doing so in violation of the Second Amendment?”

The challengers’ lawyer, Paul Clement, cited the brief during Wednesday’s argument.

“The discretion here has real-world costs,” Clement told the justices. “Look at the amicus brief in our support by the Bronx public defenders and other public defenders. The cost of this kind of discretion is that people are charged with violent crimes even though they have no prior record just because they are trying to exercise their constitutional right to self-defense.”

4. Is There Another Side?

Defending their system, New York officials said history doesn’t support the challengers’ “attempt to conflate all public-carry laws with the ‘Black Codes’ that certain Southern States enacted after the Civil War to ban Black Americans from possessing firearms.” Carry restrictions “were critical for protecting freedmen from violence and intimidation perpetrated by whites,” officials said.

The NAACP Legal Defense and Educational Fund and the National Urban League likewise tell the justices in their brief that restrictions limit violence especially “in the nation’s most populous urban areas, where Black people and other people of color—and especially young Black men—disproportionally suffer from injury or death due to gun violence.”

LDF Associate Director-Counsel Janai Nelson said “sensible gun regulations can curb gun violence, and nothing in the text or history of the Second Amendment prohibits states from adopting such regulations.” She said racial discrimination in enforcement “is flatly inconsistent with the Fourteenth Amendment’s promise of equal protection. The Supreme Court should therefore reject the Second Amendment challenge to New York’s gun licensing law currently before it but make clear that any racial discrimination in the enforcement of that law is unconstitutional.”

The Constitution, Nelson said, “does not require Black people in this country to choose between accepting the proliferation of guns, on one hand, or consenting to the racially discriminatory enforcement of gun regulations, on the other.”

Everytown for Gun Safety, which advocates for universal background checks and gun-safety measures, is backed by Michael Bloomberg, founder and majority owner of Bloomberg News parent company Bloomberg LP. The group filed a brief at the Supreme Court supporting the New York restrictions.

(Adds argument story link and argument quotes from Alito and Clement. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com