Duke Center for Firearms Law
Duke Law logo

A Historian’s Assessment of the Anti-Immigrant Narrative in NYSRPA v. Bruen

By on August 4, 2021 Categories: , , ,

In the upcoming Supreme Court case New York State Rifle & Pistol Association v. Bruen (20-843), the petitioners and several accompanying amici are characterizing New York’s 1911 Sullivan Law as having deep anti-immigrant roots. In one section of petitioners’ brief it is alleged that “New York was at the forefront of this new wave of discrimination” with the law, “and it used discretion…to achieve its goal.”  In another section petitioners allege that the “[Sullivan Law] was passed with an avowed intent, supported by everybody from City Hall to the New York Times, to disarm newly arrived immigrants, particularly those with Italian surnames.” Similarly, in an amici curiae brief filed by Italo-American Jurists and Attorneys, it is alleged that “the historical record shows that much of the impetus for the law came from a reaction to crime many associated with first- and second-generation Italian immigrants.”

In an amicus curiae brief in support of neither party, I characterize this anti-immigrant historical narrative as “speculative at best.” The reason for my speculative assessment—although not fully outlined in the brief—is two-fold. First, there is nothing in the legislative record that even remotely suggests the Sullivan Law was enacted with anti-immigrant intent or aforethought. For any court, let alone the Supreme Court to declare a law as having what petitioners deem to be “avowed” discriminatory intent will require substantiated evidence showing as much. The legislative record is obviously the best evidence. The political and personal writings of any involved lawmakers can also prove persuasive. However, in the case of the Sullivan Law, this evidence is utterly lacking. The only evidence that petitioners and accompanying amici can point to are a handful historical newspaper opinion editorials and articles. But this provides little in the way of proving anti-immigrant legislative intent.

This brings us to the second reason why petitioners’ and accompanying amici’s anti-immigrant narrative is speculative; at the time New York adopted its discretionary armed carriage licensing law as part of the Sullivan Law, such laws were already prevalent throughout the United States. In New York alone, by 1911, 8 major municipalities had adopted discretionary armed carriage licensing laws. This included Albany, Buffalo, Brooklyn (passed standalone law but incorporated by New York City in 1898), Elmira, Lockport, New York City, Syracuse, and Troy. The historical point to be made is that for petitioners’ and accompanying amici’s anti-immigrant claims to ring historically true would require uncovering a nationwide anti-immigrant conspiracy. It would mean that most of the other discretionary armed carriage licensing laws adopted prior to the Sullivan Law, to include Massachusetts’ 1906 law, were insidiously adopted with anti-immigrant aforethought. Yet there is no substantiated evidence to support this claim. 

This begets the question: if there is nothing of historical substance that supports the anti-immigrant narrative of the Sullivan Law, how did it enter the public discourse and subsequently make its way before the Supreme Court? The answer is the anti-immigrant narrative is merely one of many anti-Sullivan Law narratives advanced by gun rights proponents dating back to the law’s enactment. The Sullivan Law was in fact the impetus and continued driving force behind the first gun rights movement. As I detail in Armed in America: The History of Gun Rights from Colonial Militias to Concealed Carry, it was not long after the Sullivan Law was enacted that the early gun rights movement assailed the law as everything from “anti-American,” to a “disgrace and shame to a liberty loving nation,” to “harmful to the interests of the community,” to “repulsive to the average thinking citizen.” Some within the gun rights community went so far to characterize anyone who supported the Sullivan Law as a “traitor to the country” and speculated that the growth of firearms regulations in general was part of a larger sinister scheme to disarm the entire United States. And when the National Rifle Association (NRA) commandeered the gun rights movement as its very own, the slippery slope to disarmament argument against the Sullivan Law was utilized frequently and remains a widely used talking point against firearms restrictions to this day.

It was not until the 1960s that gun rights proponents introduced into the public discourse the first history-based anti-Sullivan Law narrative. The history-based narrative being that the Sullivan Law was “rammed” through the New York Assembly by state senator Timothy D. Sullivan, whom the law is named after, to consolidate his political power and disarm his rivals. Additionally, to make it appear as if the law was the idea of a deranged madman, Sullivan’s having been later committed was mentioned frequently. Yet this new anti-Sullivan Law narrative completely missed the historical mark in several respects. For one, the Sullivan Law was not “rammed” through. Rather, it was properly considered after several hearings and adopted almost unanimously, with 194 of the 201 elected assemblymen and senators voting for it. Secondly, there is no historical evidence, either direct or circumstantial, to suggest that Sullivan intended on using the law to consolidate power and disarm his political enemies. The claim appears to have been created out of thin air. Third and lastly, the new anti-Sullivan Law narrative completely sidestepped the reams of historical evidence showing the law was primarily a response to an increase in firearms-related violence and homicides, particularly in New York City. (See Charles, Armed in America, pp. 173-82 and accompanying notes.)

It was not until 1975 that the anti-immigrant narrative of the Sullivan Law first appeared in a book titled The Gun in America: The Origins of a National Dilemma. Written by Lee Kennett and James LaVerne Anderson, the book suggests that the modern growth of firearms restrictions from the late nineteenth through the early twentieth century was in part due to widespread anti-immigrant sentiment. What substantiated historical evidence did Kennett and Anderson provide to back their anti-immigrant claim? Not much. Just a few New York City based newspaper opinion editorials and articles, none of which proves that the Sullivan Law was indeed enacted with anti-immigrant intent or aforethought. Nevertheless, it did not take long before gun rights proponents began recycling Kennett’s and Andersons’s anti-immigrant narrative as verifiably true—the most notable being Don B. Kates, who in his 1979 book Restricting Handguns: The Liberal Skeptic Speaks Out was rather forthright in leveling the anti-immigrant charge. In Kates mind, it was no coincidence that the Sullivan Law and other modern firearms restrictions came about during “the most xenophobic period of American history.” Yet in leveling this divisive “xenophobic” historical charge, Kates provided nothing in the way of actual historical evidence—repeat, nothing.

In the more than four decades since the publication of Kennett’ and Anderson’s Guns and America and Kates’ Restricting Handguns, many gun rights writers have recycled the anti-immigrant Sullivan Law narrative as historically true. This includes the likes of David B. Kopel, Robert J. Cottrol, Raymond T. Diamond, T. Marks Funk, and Stefan B. Tahmassebi—all of whom are cited in the petitioners’ and accompanying amici’s briefs in Bruen to advance the anti-immigrant Sullivan Law narrative. And as historical support for each one of these gun rights writers’ anti-immigrant assessment of the Sullivan Law they cite the same two principal sources—Kennett’s and Anderson’s Guns and America and Kates’ Restricting Handguns.

Yes, the entire evidentiary basis for the anti-immigrant narrative of the Sullivan Law comes from unsubstantiated allegations made in two books. This type of circular citation gymnastics has been ongoing in gun rights literature since the mid-to-late 1970s. As historian Don Higginbotham acutely observed more than two decades ago, the tactic of “borrow[ing] very heavily from each other, recycling the same body of information,” is standard practice among many gun rights proponents. Why would anyone expect the anti-immigrant narrative of the Sullivan Law to be any different?

Circular citation gymnastics issue aside, there is an even greater historical accuracy problem with the anti-immigrant Sullivan Law narrative. This problem being the evidentiary basis for the narrative’s principal historical claim, i.e. that for the first three years of the Sullivan Law, 70% of those arrested had Italian surnames. Accepting the claim on its face suggests that the Sullivan Law was enforced with anti-immigrant aforethought. The petitioners and accompanying amici in Bruen cite David B. Kopel’s 1992 book The Samurai, the Mountie, and the Cowboy as the principal source for the 70% number. However, as Kopel’s footnotes show, the 70% number originated from a book published by the Second Amendment Foundation.

And it turns out that the 70% number is rather specious. For at no point does the author of the 70% number, Brendan F.J. Furnish, provide any data or citations to back it. Indeed, Furnish writes that he arrived at the 70% number after performing a “close perusal of New York Times articles” spanning from 1911 to 1913. However, no other information is provided. How many instances of enforcement did Furnish find? We don’t know. What were the Italian surnames? We don’t know. In which section(s) of the New York Times did Furnish look? We don’t know. In other words, Furnish did nothing in the way of providing follow-on researchers the information necessary to fact check his 70% number without doing their own full analysis of the New York Times from 1911 to 1913. But even assuming that Furnish had located every New York Times example of the Sullivan Law being enforced and the Italian surname number was 70%, that data only provides us with sample of all Sullivan Law enforcement in the state.

With that said, the 70% number piqued my historical curiosity about what could be gleamed from examining the Sullivan Law arrests reported in the New York Times from 1911 to 1913. In conducting my search, I first utilized the New York Times Index. I then performed a variety of digital newspaper searches. In doing so, I did not limit myself to merely searching the term “Sullivan Law,” for at times the Sullivan Law was referred to as the “Sullivan Act.” Additionally, at times the Sullivan Law was referred to as the “Sullivan weapons law,” “Sullivan weapons act,” “Sullivan anti-pistol law,” or some variation thereof. Thus, by conducting a broader, more expansive digital newspaper search I ensured that I was provided with a larger data set than that listed in the New York Times Index.

Ultimately my search for Sullivan Law arrests reported in the New York Times from 1911 to 1913 produced 89 named defendants and 43 unnamed defendants. Out of the 89 named defendants, the New York Times reported the final outcome for only 13. Meanwhile, out of the 43 unnamed defendants, the New York Times reported that 41 received prison sentences ranging from 9 to 21 months and a monetary fine averaging $500. For these 41 unnamed defendants to receive prison sentences and fines, nothing in the way of the defendants’ gender, race, socio economic status, or background was provided.  As for what can be gleamed from the totality of the Sullivan Law arrests reported in the New York Times, here are four historical takeaways:

  • During the first week of enforcement, there was confusion as to whether the Sullivan Law’s restriction on carrying a concealable firearm without a license applied to shotguns, as can be seen in the examples of Dominic Corborez and Henry Becker, who were both carrying their shotguns in cases.
  • If one accepts the reporting of the New York Times at face value, the overwhelmingly majority of reported Sullivan Law arrests appears justified. There are, of course, exceptions. Take for example the Sullivan Law arrest of Samuel Teraina, a janitor, who discharged his pistol to quickly alert surrounding neighbors and the authorities that a building was on fire. The fire was quickly put out and the building was saved, yet Teraina was arrested as violating the Sullivan Law. Another example is Frank Grekorverk, a German traveler, who upon learning about the Sullivan Law tried to turnover his handgun to the police in good faith. However, Grekorverk was immediately arrested and held to stand trial. Then there is the example of Ricardo Petrovitch, a newly arrived Italian opera manager, who was carrying a prop “stage pistol” in his belt upon arriving to New York City by ship. Petrovich was arrested under the Sullivan Law upon undocking. While one would hope that the facts of each of these three cases resulted in either the charges being dropped or the case dismissed, the reporting of the New York Times does not provide an answer.
  • Those arrested in violation of the Sullivan Law were not a monolith—males and females, citizens and immigrants, young and old, rich and poor were all arrested. However, if one accepts the reporting of the New York Times at face value, roughly half of all arrests came by luck or happenstance, such as a person reporting to nearby police they spotted an individual carrying a firearm and police finding a firearm, a person carelessly leaving out a pistol holster in their vehicle during a police stop which led to a vehicular search locating the unlawful weapon, a spouse threatening to kill or hurt the other spouse with a handgun and the police subsequently learning the handgun was not licensed, etc.
  • The anti-immigrant Sullivan Law narrative in Bruen, as advanced by petitioners and accompanying amici’s is false. For one, the claim that 70% of those arrested under the Sullivan Law had Italian surnames is unsubstantiated. For out of the 89 named Sullivan Law defendants reported by the New York Times, only 27 or 30% had Italian surnames. Indeed, 30% is a high number. However, when one considers that roughly half of the 27 Sullivan Law arrests involved persons with a prior criminal record or a known association with an Italian gang, and that the 1910 Census shows that roughly 17% of New York City residents identified as Italian and 40% of New York City residents were foreign-born, the 30% number is not all that alarming. This is not to say that Italians living in New York City did not face discrimination or mistreatment. They most certainly did, sometimes at the hands of the New York City Police Department. Take for instance the early May 1912 deaths of New York City police officers William Heaney and Charles J. Teare. Both died at the hands of Italian gunman, who was targeting known Italian gangster John Rizzo. Heaney and Teare appear to have been caught in the gunfire. But their deaths prompted the New York City deputy police commissioner to order the “police throughout the city [to be] on the lookout for Italians carrying revolvers and other concealed weapons…” It was an order that resulted in many Italians being stopped and searched for unlawful weapons, and ultimately the May 11th Sullivan Law arrests of Anthony Ferrara, Ignasto La Cavora, Calegero Salema, Antonio Consigilio, and Samuel Vanicori. It is worth noting, however, the fact that the New York City Police Department at times expressly targeted Italians when enforcing the Sullivan Law does nothing in the way of proving that the law was enacted with anti-immigrant intent or aforethought.

There are indeed other historical observations that can be drawn from the Sullivan Law arrests reported in the New York Times from 1911 to 1913, as well as other criticisms I could levy at petitioners’ and accompanying amici’s anti-immigrant Sullivan Law narrative in Bruen. But for the sake of brevity, those criticisms are better levied elsewhere.