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Excerpted From: Adam Winkler, Racist Gun Laws and the Second Amendment, 135 Harvard Law Review Forum 537 (June 21, 2022) (59 Footnotes) (Full Document)


AdamWinklerFor a significant portion of American history, gun laws bore the ugly taint of racism. The founding generation that wrote the Second Amendment had racist gun laws, including prohibitions on the possession or carrying of firearms by Black people, whether free or enslaved. A Florida law in 1825 authorized white people to “enter into all Negro houses” and “lawfully seize and take away all such arms, weapons, and ammunition.” In Dred Scott v. Sandford, Chief Justice Roger Taney argued that one reason Black people could not be citizens under the Constitution was that it “would give to persons of the negro race” the right “to keep and carry arms wherever they went.” After the Civil War, the Black Codes enacted in the South made it a crime for a Black person to have a gun. Even facially neutral laws were used in a racially discriminatory fashion; Martin Luther King Jr. was denied a concealed carry permit even after his house was firebombed. For much of American history, gun rights did not extend to Black people and gun control was often enacted to limit access to guns by people of color.

What are the implications of this racist history of gun laws on how we understand and apply the Second Amendment? This Essay considers three. First, the history of racist gun laws will complicate the emergent Second Amendment test that looks to “text, history, and tradition” to determine the scope of the Second Amendment. That test seeks out historical precedents to identify whether current laws are permissible, but some of the antecedents courts will be required to consider were at least partially motivated by racism or reflected racist attitudes. Second, the history of racist gun laws might suggest that courts today should be inherently suspect of any gun laws. This argument, however, proves too much, and there are good reasons for courts to reject such skepticism. Third and finally, the history of racist guns calls for us to be attentive to the racially disproportionate impact of gun laws today. While constitutional doctrine does not empower judges to strike down laws solely for a racially disparate impact, legislators and activists should be aware of it in shaping legislation or reform to minimize the racial skew.

“History and tradition” is rising to prominence in Second Amendment jurisprudence as a way to determine the constitutionality of gun laws, but that approach is significantly complicated by the fact that many gun laws adopted over the course of American history were racially motivated.

Even as the federal circuit courts coalesced around a form of intermediate scrutiny in the immediate aftermath of District of Columbia v. Heller, Justices Kavanaugh and Barrett, when they were still circuit court judges, argued that courts should instead use a historically informed approach. In Heller v. District of Columbia (Heller II), for example, then-Judge Kavanaugh dissented from the D.C. Circuit's decision upholding mandatory gun registration and bans on assault weapons and high-capacity magazines. Then-Judge Kavanaugh disagreed not only with the outcome but also with the circuit court's application of intermediate scrutiny, writing: “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” He continued on to note that the problem with balancing tests is that they allow judges to “re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right.” Balancing tests give judges too much discretion, according to this view, allowing judges to impose their own personal views on the Constitution.

Then-Judge Kavanaugh argued that a more determinate approach is to look to the history of gun laws to determine the constitutionality of gun restrictions today. Laws that have longstanding historical precedents are presumptively constitutional, whereas novel laws without a tradition behind them are more likely to be unconstitutional. This historically grounded approach asks judges to put aside their personal views and allow the patterns and practices of the American people to shape constitutional meaning. “'[E]xamination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification,”’ Kavanaugh argued, “is a 'critical tool of constitutional interpretation.”’

There are several pitfalls with a history and tradition approach. The historical materials may be so vague or conflicting as to render a conclusive judgement about what history permits near impossible. For example, in New York State Rifle and Pistol Ass'n v. Bruen (NYSRPA), the currently pending Supreme Court case on the right to carry a gun in public, advocates marshalled extensive historical evidence on both sides of the dispute. A Justice inclined to believe there is no right to carry firearms in public has plenty to base their decision on, and the same can be said for a Justice inclined to view public carry as a constitutionally protected right. There is also the problem that many gun laws over the years were enacted without any consideration of the Second Amendment because the Supreme Court had not definitively established that the Second Amendment protected an individual right to bear arms until 2008. As a result, legislators did not always need to deliberate carefully over the scope and meaning of the right to keep and bear arms when enacting gun laws, and therefore those laws might tell us very little about the location of Second Amendment boundaries.

The history of racist gun laws presents a special dilemma for Second Amendment history and tradition analysis. Of course, the long history of racist gun laws does not suggest that governments today can limit guns in racially discriminatory ways. The Constitution's guarantee of equal protection prohibits racially discriminatory gun laws just as it bars other types of racially discriminatory laws. Yet there will arise situations in which even a racially discriminatory gun law of the past might provide some basis for recognizing that lawmakers have a degree of regulatory authority over guns.

For example, some scholars have argued that modern laws that deny the right to keep and bear arms to people with felony convictions are constitutional in part because the Founding generation had laws disarming people thought to be unusually dangerous or unvirtuous, such as Black people, Native Americans, and enslaved persons. Although clear that legislatures no longer have the power to adopt racially discriminatory gun laws, these scholars argue that the racist gun laws nonetheless reflect a legitimate and constitutional power by legislatures to disarm people who are deemed either dangerous or lacking in virtue. That regulatory authority remains viable today, even if it can't be used for racist purposes, and these scholars suggest that it can justify at least some bans on firearms possession by felons and domestic abusers. In this analysis, the scope of the Second Amendment is in fact influenced by undeniably racist gun laws.

This example highlights another difficulty with history and tradition analysis: What level of generality should courts use in assessing historical gun laws? Courts could demand that any gun law today find very clear historical precedents that operated in precisely the same way. A felon-possession ban, for example, would be constitutional if there was a long practice of laws specifically barring felons from having guns. Using only exact historical matches may be a plausible way to conduct a history and tradition analysis, but it would effectively disable lawmakers today from regulating guns in the way current society demands. Many laws that judges across the political spectrum approve of--including bans on the possession of firearms by domestic abusers and those with mental disabilities no precise historical precedents prior to the mid-twentieth century. These are modern-day laws and a history and tradition analysis that requires a more or less exact historical match would require striking them all down.

The alternative is to frame the gun laws of the past at a higher level of generality, but this option undermines one of the primary rationales judges like Justice Kavanaugh use to justify history and tradition analysis. Framing historical gun laws at a higher level of generality is exactly what those who see the Founding-era laws as reflecting a legislative power to disarm dangerous or unvirtuous people do. Although the laws themselves did not explicitly ban gun possession by “dangerous” or “unvirtuous” people, we can arguably view the particular laws banning Black people, Native Americans, and other minorities as manifestations of a broader category of regulatory power. Yet resorting to such a broader category invites much of the same judicial discretion that a history and tradition test is supposed to avoid. It is judges today, not lawmakers of the past, who define the broader category, such as dangerousness or lack of virtue. And judges can easily manipulate the categories to reach their preferred outcomes. One could imagine that a liberal judge who believes informal armed militias are a threat to democracy might vote to uphold a ban on members possessing firearms. Or that a conservative judge who believes that undocumented immigrants lack virtue due to their violation of immigration laws might vote to uphold a ban on their possession of weapons. In either case, judges with the authority to cast past laws at a higher level of generality will be empowered with discretion to impose their own values on the Constitution. Once the level-of-generality problem is introduced, one of the primary justifications for a history and tradition analysis is severely diminished.

This level-of-generality problem is not unique to the Second Amendment but bedevils originalism more broadly. As Judge Easterbrook recognized three decades ago, “[m]ovements in the level of constitutional generality may be used to justify almost any outcome.” Originalists in the 1970s and 1980s promoted historical inquiry at a very specific level, arguing that constitutional terms should be applied to reach the same outcomes as would have been expected by the people who wrote and ratified the relevant provisions. This “original intent” version of originalism has been replaced by a newer originalism, “public meaning originalism,” that recognizes how many of the Constitution's rights guarantees are phrased at a high level of generality-- “freedom of speech,” “due process,” “equal protection”--and argues that judges should protect those rights at that more abstract level, even if it means arriving at different results from the original originalists. Yet this move up the ladder of generality “creat[es] the very problem that the old originalism was designed to address”--that is, “to prevent the unconstrained judicial creativity that can follow from seeking the original meaning ... at a high level of generality.” In the Second Amendment context, however, the problem is even worse, because instead of looking to a text to define the level of generality, judges are required to simply make up the categories, such as dangerous or unvirtuous, themselves.

A judge could eschew the level-of-generality problem by simply rejecting the historical relevance of any gun law with a racist motive or reflecting racist attitudes. This approach appears justifiable on a surface level but confronts serious dilemmas on closer inspection. First, it would likely lead judges to afford legislatures less regulatory authority than the original understanding and historical traditions of the Second Amendment would otherwise permit. Legislatures have always had a considerable sphere of authority to regulate guns. Although they employed that power to further racist motives, the basic sphere of authority to regulate--outside of racist laws in violation of equal protection--remains intact. Yet if judges ignore any law with a racist influence, the courts may not accurately identify the full scope of regulatory authority.

Second, judges determined to discount any law with a racist motive will have to decide how much racism is too much. Many, perhaps most, gun laws enacted between 1789 and 1940 were influenced at least in part by racism. The concealed carry law at issue in NYSRPA traces back to the Sullivan Law, which was at least partially influenced by anti-immigrant sentiment. However, that motivation is not the entire story; there were public-safety concerns that were part of the inspiration for the law too. How is a judge to weigh the competing motives? Is a little bit of racism totally disqualifying? If so, then discretionary granting of permits for concealed carry is unconstitutional. At the same time, however, similar laws were enacted in other states, like Montana and South Dakota, without any obvious racist motive--suggesting that the laws were within the historical power of states to adopt. So is discretionary licensing justified by history and tradition or not? The answers are not easy, and judges trying to make sense of history and tradition in a country with a legacy of racist gun laws have little guidance in this wilderness.

One potential implication of the history of racist gun laws is that they could provide a reason for judges to be skeptical of all gun laws. Yet there are reasons, both practical and constitutional, to be skeptical of such skepticism.

Courts do sometimes treat laws skeptically because such laws have been used in the past for purposes of racial exclusion. Courts today approach laws that employ racial categories this way. Because race has so often been used by lawmakers to buttress white supremacy and oppress racial minorities, any explicit use of race today-- even in laws designed to open up equal opportunities for people of color--triggers strict scrutiny. Only after applying strict scrutiny, the Supreme Court has told us, can we know whether a racial classification in a law is benign or invidious.

While the racism of past gun laws does and should give one pause, we might nonetheless recognize that many areas of law have historically been used to perpetuate racial discrimination but that courts don't approach every law in those areas as inherently suspect. Property laws were used to enforce racially restrictive covenants, but that doesn't mean that all laws regulating property should be presumptively unconstitutional. Zoning laws were used to create and maintain racial segregation, but courts do not automatically review zoning laws with strict scrutiny. Marriage laws were explicitly racially discriminatory, as were criminal laws and laws regulating voting. Yet in all of these areas we still recognize that some forms of regulation are necessary and lawmakers are given wide leeway, more or less, to devise regulatory reforms absent the explicit use of race.

Skeptical judicial scrutiny of all gun laws would also appear to be in tension with the text of the Second Amendment, which recognizes the legitimacy--even necessity--of some regulation. The prefatory clause refers to a “well regulated Militia, being necessary to the security of a free State.” If we assume, as Heller suggested, that the “Militia” is shorthand for the common citizenry capable of bearing arms in defense of the state, then the Second Amendment envisions that guns and gun owners are subject to at least some measure of government regulation. Heller also suggested that this language permits only “discipline and training,” rather than recognizing a government authority of any breadth. This constrained definition, however, runs counter to other textual provisions of the Constitution adopted around the same time that use “regulate” or “regulation” to suggest broader government authority that includes controlling, directing, or prohibiting activity.

The Second Amendment not only imagines government regulation but also calls for states to do it qualitatively “well”--not haphazardly, poorly, or partially. This explicit embrace of governmental authority would be undermined by a standard or test that presumed the unconstitutionality of every gun law. Contrast the Second Amendment to the First Amendment, which says that “Congress shall make no law” and makes no mention of the government's regulatory authority. The Second Amendment is more like the Fourth Amendment, which prohibits “unreasonable searches and seizures” and requires probable cause for warrants. The Fourth Amendment assumes that government has authority to conduct investigations and imposes certain boundaries on that power. Similarly, the Second Amendment both acknowledges and imposes a limit on the regulatory authority of the state; the militia must be well regulated but the government cannot go so far as to infringe the right of the people to have arms. It bears noting that, while strict scrutiny applies in some First Amendment cases, the courts do not use strict scrutiny in Fourth Amendment cases.

There is also reason to doubt the claim that gun laws enacted today are motivated by racial animus. Polling data show that minorities and communities of color are among the nation's strongest supporters of gun control; elected officials who represent them are among the most vocal about the need for more gun laws. Gun violence is disproportionately felt by these communities and their support for gun control reflects not racism, but rather their desire to live in safer neighborhoods and reduce gun violence. It defies common sense and Americans' lived experience to suggest that all or even most gun laws are enacted or maintained today because they harm racial minorities.

[. . .]

As the courts increasingly look to history and tradition to determine the scope of the right to keep and bear arms, they will have to decide how to deal with the history of racist gun laws. It is tempting for jurists worried about unelected judges imposing their own values on the Constitution to seek answers in past practices, which might seem determinate and objectively verifiable. Yet the legislation of the past is hardly neutral; the racism embedded in so many gun laws reminds us that such legislation was enacted not out of a solemn attempt to police the boundaries of the Second Amendment but in an effort to abuse the law to protect racial privilege and hierarchy. That does not mean that all gun laws ought to be immediately suspect, however, due to the text of the Second Amendment and the tradition of other gun laws that promoted public safety without racist taint. Yet the history of racist gun laws also must not be forgotten, and if nothing else, it should inspire gun reform advocates and lawmakers to craft efforts to reduce gun violence without a racially disproportionate impact.

Connell Professor of Law, UCLA School of Law.

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