Many US States amended their laws prohibiting Blacks from Gun Ownership

Many US States Amended their Laws Prohibiting Blacks from Gun Ownership

On December 13, 2016, in the case no. 16-7165 titled Stephens vs Jerejian, et al, Plaintiff Marc Stephens Petition for Writ of Certiorari was received and docketed by the Supreme Court of the United States. The Attorney General of New Jersey has until January 12, 2017 to file an answer. Stephens is seeking to strike down New Jersey’s Firearm law as facially unconstitutional and in violation of the Second and Fourteenth Amendment of the United States Constitution.  

Marc Stephens' petition raises multiple arguments, one which includes that the State cannot enact gun control laws.

Marc also raised his legal argument in the United Stated Court of Appeals for the Third Circuit which reads as follow:

NJ Permit and Licensing Laws were created Only for Slaves, and Cannot Survive Strict Scrutiny

In order to convince the court to apply strict scrutiny, it is necessary to show that the state's action was “motivated by a discriminatory” purpose. "Legislative history," of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding.

The history of the permit and license scheme around the United States has always related to slaves and African Americans. “The Supreme Court recognizes race, national origin, religion and alienage as suspect classes; it therefore analyzes any government action that discriminates against these classes under strict scrutiny”. Hirabayashi v. United States, 320 U.S. 81 [5] and Korematsu v. United States, 323 U.S. 214 (1944); Adarand Constructors v. Peña, 515 U.S. 200 (1995); see United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).

“Strict scrutiny” was required because the classification created by the statute infringed upon a fundamental right, Zablocki v. Redhail, 434 US 374 – Supreme Court 1978 at 381.

Drake v Filko ruling does not supersede the United States Supreme court opinion that race discrimination is a violation of the 14th amendment of United States Constitution. Drake v. Filko argument was about “justifiable need” requirements in New Jersey license scheme. Appellant argument is about discrimination.

In addition, Drake v. Filko was incorrectly reviewed under intermediate scrutiny. The long presumptive history regarding the regulation of firearms and license is only traced to slaves and black African Americans. After the end of slavery and the ratification of the fourteenth amendment, in order to keep firearms out the hands of blacks, New Jersey, and many other states, basically turned all citizens, black and white, into slaves by requiring permits and licenses to obtain firearms.

“It is the duty of the courts to be watchful for constitutional rights of the citizen, against any stealthy encroachments thereon." Boyd v. U.S., 116 US 616, 635, (1885) at 635.

“A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) ("Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, & c."), District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at footnote 7. ("the late slaveholding States" had enacted laws "depriving persons of African descent of privileges which are essential to freemen," including "prohibit[ing] any negro or mulatto from having fire-arms"… to "[m]ake a colored man a citizen of the United States" would guarantee to him, inter alia, "a defined status . . . a right to defend himself and his wife and children; a right to bear arms"). McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3075.

In McDonald the City argued, “Article IV, § 2, prohibits only state discrimination with respect to those rights it covers, but does not deprive States of the power to deny those rights to all citizens equally”. Id at 3075.

The Supreme Court rejected this argument as “implausible”, Id at 3077.

“Many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well”. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3081. Many states such as Florida, Kentucky, Louisiana, Maryland, Mississippi, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, and Virginia took arms and firearms away from slaves and freedmen by enforcing a “Black Code”, (prohibiting slaves from using firearms unless they were authorized by their master to hunt within the boundaries of his plantation); Act of Dec. 18, 1819, 1819 S.C. Acts pp. 29, 31 (same); An Act Concerning Slaves, § 6, 1840 Tex. Laws pp. 42-43 (making it unlawful for "any slave to own firearms of any description"), McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at footnote 18.

“Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions”. District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2808.

The certain restrictions only applied to Blacks. Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2810.

“Shortly after Congress approved the Fourteenth Amendment — contained numerous examples of such abuses”. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3039.

In debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks, McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3042.

As Representative Thaddeus Stevens is reported to have said, "[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3081-3082.

Some States formally prohibited blacks from possessing firearms. Ante, at 3038-3039 (quoting 1865 Miss. Laws p. 165, § 1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites, McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3082.

All states around the country fully understood that the second amendment was a fundamental right to keep and bear arms at home and in public without a need for a permit or license.

"Keep arms" was simply a common way of referring to possessing arms, for militiamen and everyone else. District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2792.

The following states although they barred black Citizens from owning arms and firearms, did not infringe the right of the “white Citizens” to keep and bear arms at home, or in the public.

In Florida, advised by the Florida governor and attorney general as well as by the Freedmen's Bureau that it could not constitutionally revoke Black people's right to bear arms, the Florida legislature refused to repeal this part of the Black Codes. Florida made it the "duty" of white citizen "patrol[s] to search negro houses or other suspected places, for fire arms." Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found any firearms, the patrols were to take the offending slave or free black "to the nearest justice of the peace," whereupon he would be "severely punished" by "whipping on the bare back, not exceeding thirty-nine lashes," unless he could give a "plain and satisfactory" explanation of how he came to possess the gun. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3081.

In Kentucky, "[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. ... Their arms are taken from them by the civil authorities. ... Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2810. In Louisiana, the court in United States v. Cruikshank vacated the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2812.

In Maryland, Waters v. State, 1 Gill 302, 309 (Md.1843) (because free blacks were treated as a "dangerous population," "laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness"). District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2808.

In Mississippi, "In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country." 39th Cong. Globe 40 (1865). McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3039.

In Missouri, Dred Scott v. Sandford stated if African Americans were considered U.S. citizens, "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right...to keep and carry arms wherever they went…and endangering the peace and safety of the State”. Dred Scott v. Sandford, 60 US 393 - Supreme Court 1857 at 417. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010 at 3068.

In North Carolina, codified a right to bear arms in 1776: "That the people have a right to bear arms, for the defence of the State. District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2802. But North Carolina in State v. Newsom, 27 N. C. 250 (1844) stated "an act to prevent free persons of color from carrying fire arms," is not unconstitutional”.

In South Carolina, "in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that `the right of the people to keep and bear arms shall not be infringed.' District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2810. The "arming of the Negro militias met with especially fierce resistance in South Carolina .... The sight of organized, armed freedmen incensed opponents of Reconstruction and led to an intensified campaign of Klan terror. Leading members of the Negro militia were beaten or lynched and their weapons stolen." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2841.

In Virginia, “A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that "numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms." Aldridge v. Commonwealth, 4 Va. 447, 2 Va. Cas. 447, 449 (Gen.Ct.)”. District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2808. In any case, it is clear to us that Aldridge's allusion to the existing Virginia "restriction" upon the right of free blacks "to bear arms" could only have referred to "laws prohibiting blacks from keeping weapons," Siegel, supra, at 497-498. District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2808 at footnote 21.

In Tennessee, freedpeople had no legal status whatsoever, and local jurisdictions often filled the void with extremely harsh Black Codes. The legislature passed two laws on May 17, 1865; one to "Punish all Armed Prowlers, Guerilla, Brigands, and Highway Robbers"; the other to authorize capital punishment for thefts, burglary, and arson. These laws were targeted at Blacks and enforced disproportionately against Blacks.

In Texas, blacks were not allowed to vote, hold office, sit on juries, serve in local militia, or carry guns on plantations.

In New Jersey, in October 1694, "An Act concerning Slaves” was enacted; [§1] WHEREAS complaint is made by the inhabitants of this Province, that they are greatly injured by slaves having liberty to carry guns and dogs, into the woods and plantations, under pretence of guning, do kill swine. Be it enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by the authority of the same, that no slave or slaves within this Province after publication hereof, be permitted to carry any gun or pistol, or take any dog with him or them into the woods, or plantations, upon any pretence whatsoever; unless his or their owner or owners, or a white man, by the order of his or their owner or owners, be with the said slave or slaves; [§4] And be it further enacted by the authority aforesaid, that if any person or persons shall lend, give or hire out to any slave, or slaves, pistol, gun or guns, the said person or persons so lending, giving, or hiring, shall forfeit the said pistol, gun or guns, or twenty shillings to the owner of the said slave or slaves, to be recovered as an action of debt as aforesaid. East New Jersey Laws, October 1694, ch.II, "An Act concerning Slaves, &c.," L&S 340-342.

As mentioned in the complaint the fear of slaves with guns was a “Public Safety” Concern.

"An Act to prevent the Killing of Deer out of Season, and against Carrying of Guns and Hunting by Persons not qualified," [“And be it further Enacted by the Authority aforesaid, That this Act nor any part thereof, shall be construed to extend to Negro, Indian or Mullato Slaves, so as to commit them to prison, during the Time in this Act limitted, in case they should be Guilty of any of the Offences in this Act prohibited, but that and in such case such Indian, Negro or Mullato Slave killing and destroying any Deer as aforesaid, or carrying or Hunting with any Gun, without Lisence from his Master, shall, at the Publick Whipping post, on the bare Back, be Whipt, not exceeding twenty Lashes for every such Offence, for which Whipping the Master shall pay to the Whipper the Sum of Three Shillings..”]. May 5, 1722, 2 Bush 293, 295; 1 Nevill [8 Geo. I] ch.XXXV, §6, p.102. http://njlegallib.rutgers.edu/slavery/acts/A15.html

In 1751, in New Jersey “An Act …to prevent Negroes and Molatto Slaves,…from meeting in large Companies,…and from hunting or carrying a Gun on the Lord's Day was enacted. This act is similar to N.J.S.A 2C:39-14b. “[§2] AND BE IT FURTHER ENACTED, by the Authority aforesaid, that if any Negro or Molatto Slaves shall at any Time hereafter Meet and Assemble together, more than to the Number of Five, unless being on his, her or their Masters or Mistresses Business and Employment; the Constable or Constables on Information or Knowledge thereof, shall, and are hereby required to apprehend the Negro and Molatto Slaves that shall so meet, and carry them before the next Justice of the Peace, who is hereby required and directed to order him, her or them to be whipped on their bare Backs at his Discretion “[§3] AND BE IT FURTHER ENACTED, by the Authority aforesaid, That if any Negro or Molatto Slave or Slaves, shall be seen or found from his or their Masters House, after the Hour of Nine at Night, except on their Masters or Mistresses particular Business, or shall be seen to hunt, or carrying a Gun on the Lord's Day; the Constable or Constables of such Town or Precinct, on Information or Knowledge thereof, shall and are hereby required and directed, to apprehend and carry such Negro and Molatto Slaves before the next Justice of the Peace, who shall order such Negro or Molatto Slave or Slaves, if found Guilty, to be whipped as by the preceding Clause of this Act is directed”. Oct. 25, 1751, 3 Bush 180-181; 1 Nevill [25 Geo. II] ch.CXI, p.443-444; Allinson ch. CCXLI, p.191-192. Note: Allinson gives date as Oct.23,1751. http://njlegallib.rutgers.edu/slavery/acts/A18.html

“Today, no less than 50 years ago, the solution to the problems growing out of race relations "cannot be promoted by depriving citizens of their constitutional rights and privileges," Buchanan v. Warley, supra, 245 U. S., at 80-81, Watson v. Memphis, 373 US 526 - Supreme Court 1963 at 539.

As proven herein, NJ permit and licensing laws are derived from racism and discrimination, and are facially unconstitutional and violates 1st, 2nd, 4th, 5th, 8th, 9th, 10th, and 14th amendment of the United States Constitution and must be struck down. A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

Copy of Marc Stephens' Petition for Writ of Certiorari to the Supreme Court of the United States - A must read!


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