Excerpted From: Lydia Davenport, Would Justice Scalia Think Black Guns Matter?, 47 New York University Review of Law and Social Change 1 (2023) (312 Footnotes) (Full Document)

LydiaDavenportTwo cowboys ride into the scene. John Wayne stops his horse and says, “You wanted to learn to shoot?” He swings off his horse and strides a few paces, pointing into the horizon. “Right out there.” The second cowboy follows him, taking out his gun from the holster and aiming it unsteadily in the same direction. John Wayne quickly swats the gun out of his hands and sighs, “Ah, hold it, Mississippi, that's no way to use a handgun.” He adds, “You gotta draw and fire, and you better be quicker than somebody else that's doing the same thing.” In one motion, he whips the pistol up himself and shoots past the cacti into the distance. End scene.

Open to a new scene in 2020 in Minneapolis. Protests are erupting in the wake of George Floyd's murder by the police. Maj Toure has flown into the city to teach firearm lessons, and he now stands on the street, introducing himself to a crowd gathered around him, “My name is Maj, and my organization is called Black Guns Matter.” He asks the crowd, “Who has not touched a firearm before--you?” and points at a man in the circle. He hands the man a replica handgun, and the man takes it in both hands. He lifts it, arms outstretched in front of him, face scrunched in concentration. Maj stands calmly next to him and asks the crowd, “Is he going to be looking at the bad guy who's trying to get him? No, he's going to focus completely on that front sight,” testing the man's grip, “Good. Good.”

John Wayne, a white cowboy, is the quintessential picture of the American gun owner. Maj Toure, a Black man, is not--but he should be. This Article considers the way Black gun holders compare to white gun holders in the Second Amendment doctrine and polity--in particular, how the District of Columbia v. Heller opinion, which lays the foundation of the modern Second Amendment, informs gun rights and race. The Heller opinion elevates white gun holders while excluding Black gun holders in two ways. First, Justice Scalia, who authors the majority opinion, weaves a narrative of three identities that are rooted in an almost mythical cultural conception of a white American gun holder: the colonial revolutionary, the frontiersman, and the hunter. Second, Justice Scalia legitimizes the exclusion of Black gun holders through the opinion's analysis. The opinion repeatedly cites laws and cases that deny Black Americans the same gun rights extended to white Americans. It also creates categories presumptively excluded from Second Amendment protection that disproportionately limit the gun rights of Black Americans--all without acknowledging the racial implications of these aspects of the opinion. Heller's imbalanced construction should encourage reconsideration of both Heller itself and of the Second Amendment more broadly.

When we then take stock of Black Americans' practical ability to own and use guns in our society, we find that Black Americans do not have access to the same scope of gun rights that white Americans do. This inequality is also reflected in Second Amendment culture. Many white proponents of the Second Amendment seem to reject Black gun owners from their conception of who is entitled to bear arms. For example, the National Rifle Association (“NRA”), one of the most outspoken and influential pro-gun rights organizations in the country, has remained conspicuously silent on cases involving legal Black gun owners arrested or killed by the police, like Philando Castile or Breonna Taylor's boyfriend, Kenneth Walker, among many others.

Black Guns Matter, founded by Maj Toure, provides Black Americans with education and training about how to responsibly use firearms. For Toure, firearms guarantee self-defense where the state has failed. In the past few years, activists and the media have emphasized and increased visibility of recurring violence against Black Americans. Exposure to this violence reinforces Black Americans' distrust of the state's willingness to protect them from harm and has prompted “growing interest among African Americans in arming themselves.” To the crowd in Minnesota, Toure says, “We are here because a man's life was taken, and we are not allowing that to happen again .... I believe that more Black people would be alive if they were armed .... People somehow forgot that we have the right to defend our lives with firearms.” Toure sees Black Guns Matter as an important civil rights organization and guns as a means for Black Americans to protect a fundamentally American sense of safety and freedom. He is not alone. For many Black Americans and activists, guns are tools of self-protection and equal rights, and safeguards of civil liberties.

Furthermore, reconsideration of gun rights and race is important because Heller's constitutionally enshrined “individual right to keep and bear arms” appears to be here to stay. The Supreme Court itself has connected this right to race and Black civil rights in interpreting and expanding the Second Amendment's scope. Following Heller, in McDonald v. Chicago and again more recently in New York State Rifle & Pistol Ass'n v. Bruen, the Court explicitly leveraged Black civil rights to justify expanding the Second Amendment's individual right guarantee. For all of these reasons, we must recognize the inequitable treatment of Black gun owners in our culture and legal doctrine as a problem, and now is a good time to do so.

This Article proceeds as follows. Part I considers the history of armed Black activism from slavery to the Civil Rights Movement through today. Part II examines District of Columbia v. Heller and its racial implications. Part III demonstrates how Heller's application informs and limits Black gun owners' rights, using felon in possession statutes as one significant example. Part IV proposes ways to reconsider both the doctrine and the culture. I argue that the Court should factor race into its analysis of gun regulations through some form of equal protection analysis, or leave the Second Amendment to legislatures, who I argue are better equipped to account for minority interests and to evaluate gun regulations. Finally, I urge that we, as a culture and a legal community, correctly place modern Black gun holders within the long American tradition of Black gun ownership and activism.

[. . .]

The Second Amendment doctrine as it exists now does not work. The foundation for the Second Amendment in Heller promotes racial inequality by elevating white gun owners while legitimizing the exclusion of Black gun owners. In practice, Black Americans have fewer gun rights than white Americans do. Heller contributes to this picture by allowing lower courts to readily dismiss Second Amendment claims by Black Americans, and by leaving many Black gun holders with limited recourse because the doctrine “presumptively” excludes them.

The law should account for this discrimination. One answer lies in changing the role the Supreme Court plays in the Second Amendment--either by changing its doctrine or by limiting the power the Court holds to define the scope of the Second Amendment. At the very least, advocates should argue for, and the Court should adopt, a formal framework to address the racial discrimination and stigmatization in the current application of the Second Amendment. But if the Court cannot reconceive of the Second Amendment, gun regulation is better left to legislatures. If the Second Amendment framework is to be consistent with its own design and is to accommodate--even prioritize--the interests of minority rights holders, then the political process is almost certainly the better channel, as it allows minorities to represent their own interests through voting, holding office, and democratically deciding to pass legislation.

In addition, as we account for this disparity in the law, we must also reconsider how we think of Black gun owners in our culture. Black gun ownership and activism have long been important dimensions of civil rights activism and of the Second Amendment. If the Second Amendment is to mean what Justice Scalia says it does, it must mean that Black Guns Matter.

Lydia Davenport is a graduate of Georgetown University Law Center, cum laude, and of Brown University.