1425
BR UEN’S E N FO R C EM EN T P UZZ LE :
U NE A R THI NG A ND ADJ U DI C A TI NG THE
HIS TO RI C A L EN F OR C EM EN T RE C OR D I N
SE CO N D A ME ND ME N T C A SE S
Andrew Willinger *
The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v.
Bruen brings historical complexity to the fore by instituting a history-focused test for
the Second Amendment that demands analogues from the Founding or Reconstruction
eras to support modern gun regulations. The majority opinion in Bruen considers, in
multiple places, how certain historical gun regulations may have been enforced. In
each instance, the Court suggests that evidence of racially disparate enforcement of a
historical law is relevant to whether that law is part of the American historical tradition
and an appropriate analogue. Historical enforcement data appear to be part of a larger
inquiry into possible discriminatory taint, an issue the Court has previously addressed
in the historical context in cases dealing with criminal procedure, voting rights, and
equal protection. This Article seeks to identify lessons from these other areas of consti-
tutional law to inform the treatment of enforcement evidence in Second Amendment
cases after Bruen, where questions of historical enforcement can be especially nuanced.
© 2024 Andrew Willinger. Individuals and nonprofit institutions may reproduce and dis-
tribute copies of this Article in any format at or below cost, for educational purposes, so
long as each copy identifies the author, provides a citation to the Notre Dame Law Review,
and includes this provision in the copyright notice.
The Notre Dame Law Review has not independently reviewed the data and analyses de-
scribed in this Article.
* Lecturing Fellow and Executive Director, Center for Firearms Law, Duke University
School of Law. I would like to thank the participants at the Notre Dame Law Review’s No-
vember 2023 Symposium, History, Tradition, and Analogical Reasoning, as well as Jake
Charles, for insightful comments and suggestions. This project grew out of research funded
by the Duke Endowment, and I am grateful for its support of the Duke Center for Firearms
Law. Brennan Rivas’s work in Texas inspired this project, and she was a fantastic resource
throughout. I am tremendously indebted to Andrew Adler and Amir Ali for excellent legal
research and for taking charge of the archival review that informs Part II of the Article, and
to Connor Biswell, Talia Granick, Emmery Perkins, and Abdel Shehata for countless hours
reviewing old minute books at the State Archives in Raleigh, North Carolina (and for their
enthusiasm and good cheer throughout). Thank you also to Zeke Tobin, Sydney Colopy,
and Jennifer Behrens for invaluable research assistance, and to Jennifer Finlay at the New
Hanover County Library for help locating elusive primary source documents.
The Article makes three major contributions to the existing literature. It is the
first in-depth scholarly examination of how Bruen treats enforcement evidence within
its historical-tradition test, including by appearing to place the burden of proving non-
discrimination on the government. Second, the Article identifies Bruen’s focus on pos-
sible discriminatory enforcement as a subspecies of historical discriminatory “taint” or
legislative animus arguments and explores how Bruen may depart in important ways
from the Court’s past practice. Finally, the Article uses original archival research into
the local enforcement of North Carolina’s 1879 concealed-carry ban as a case study to
demonstrate how assessing possible discriminatory taint for facially neutral historical
laws presents unique challenges and to examine whether Bruen’s approach is well
suited to appreciate and address such complexity.
INTRODUCTION ................................................................................. 1427
I. DISCRIMINATORY ENFORCEMENT & DISCRIMINATORY “TAINT” ... 1430
A. Bruen’s Use of Historical Enforcement Data to Suggest
Discriminatory Taint ......................................................... 1430
B. The Court’s Approach to Discriminatory Taint Outside of
the Second Amendment ...................................................... 1434
II. POSTBELLUM SOUTHERN GUN REGULATION AS A CASE STUDY .. 1443
A. Background and Scholarly Debate ........................................ 1443
B. Legislative Complexity ......................................................... 1447
C. Enforcement Complexity: North Carolina’s 1879
Concealed-Carry Ban ......................................................... 1451
1. Historical Context ..................................................... 1451
2. Unearthing the Enforcement Record ...................... 1454
a. Methodology ........................................................ 1454
b. Results .................................................................. 1460
CONCLUSION ..................................................................................... 1463
INTRODUCTION
The Supreme Court’s 2022 decision in New York State Rifle & Pistol
Ass’n v. Bruen explains that, in the Second Amendment context, “his-
tory guide[s] our consideration of modern regulations[, including
those] that were unimaginable at the founding.”
1
To the Bruen major-
ity, the focus is not merely on historical legislative enactments but also
on traditions which necessarily ebb and flow over time.
2
In Bruen, the
Court emphasizes that historical enforcement data can be probative to
a court’s analogical inquiry, especially to the extent these data suggest
that certain facially neutral historical firearm regulations were rarely
enforced or enforced in a discriminatory manner.
3
Discriminatory en-
forcement or nonenforcement, the Court says, is “simply one addi-
tional reason to discount the[] relevance” of a statute under the his-
torical framework.
4
The Court provides little guidance, however, on how to implement
the enforcement inquiry within its larger historical-analogical test.
One might presume that enforcement evidence is only relevant when
one of the parties presents such evidence to the Court,
5
but how should
judges weigh this evidence? Who bears the burden of proving discrim-
inatory enforcement or nonenforcement, and by what standard must
it be proved? What exactly is the “payoff,” or outcome, if a judge de-
cides that a historical law was inappropriately enforced or rarely used
at some relevant historical point? In terms of disparate enforcement,
how much “discriminatory taint”
6
is too much? Is evidence of a law’s
1 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022).
2 See, e.g., Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen,
and Kennedy: The Role of History and Tradition, 118 NW. U. L. REV. 433 (2023); Marc O.
DeGirolami, Traditionalism Rising, 24 J. CONTEMP. LEGAL ISSUES 9 (2023); Sherif Girgis, Liv-
ing Traditionalism, 98 N.Y.U. L. REV. 1477 (2023); Michael P. O’Shea, The Concrete Second
Amendment: Traditionalist Interpretation and the Right to Keep and Bear Arms, 26 TEX. REV. L. &
POL. 103, 111 (2021).
3 Bruen, 142 S. Ct. at 2149 (citing Robert Leider, Constitutional Liquidation, Surety
Laws, and the Right to Bear Arms, in NEW HISTORIES OF GUN RIGHTS AND REGULATION 233,
254–57 (Joseph Blocher et al. eds., 2023)) (emphasizing that a review of historical newspa-
per records regarding nineteenth-century surety laws “found only a handful of [enforce-
ment] examples in Massachusetts and the District of Columbia, all involving black defend-
ants who may have been targeted for selective or pretextual enforcement”); see also id. at
2152 n.27 (citing research showing that “Southern prohibitions on concealed carry were
not always applied equally, even when under federal scrutiny”).
4 Id. at 2149 n.25.
5 Id. at 2131 n.6 (“Courts are thus entitled to decide a case based on the historical
record compiled by the parties.”).
6 All credit for this phrase goes to Professor Kerrel Murray, whose 2022 article in the
Harvard Law Review was a tremendous resource for this piece. W. Kerrel Murray, Discrimi-
natory Taint, 135 HARV. L. REV. 1190 (2022). It seems, at the least, a fair inference that
enforcement only relevant immediately after the law was enacted? If
not, how far after enactment is this evidence relevant? May the gov-
ernment also offer evidence of consistent, nondiscriminatory enforce-
ment as support for potential historical analogues? Is the government
required to do so whenever a law implicates the Second Amendment?
And what would such evidence look like? It is possible the Court may
clarify some broader questions regarding Bruen’s historical test that
have divided courts over the past year
7
in its next Second Amendment
case, United States v. Rahimi.
8
While Rahimi likely will not directly pre-
sent the question of how to weigh the historical enforcement of facially
neutral gun laws,
9
it is possible that the Court will have to confront that
issue to the extent any Justices find that the government’s potential
historical analogues may have been underenforced or disparately en-
forced around the time of enactment.
10
The Court has considered similar questions regarding discrimina-
tory enforcement in other areas of constitutional law—when evaluat-
ing challenges to jury verdict rules, voting restrictions, and redistrict-
ing, and in its equal protection jurisprudence. Often, the question
reduces to “whether the legislature that enacted a challenged statute
did so with a discriminatory or otherwise constitutionally forbidden in-
tent”;
11
enforcement evidence may be relevant both to whether a fa-
cially neutral law was enacted with improper intent, and to whether
that improper purpose persisted after enactment. While the Court’s
Bruen’s two references to enforcement data suggest an attempt to determine whether cer-
tain laws are fatally infected with discriminatory legislative taint.
7 See Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shack-
les of History, 73 DUKE L.J. 67, 71–72 (2023).
8 United States v. Rahimi, 143 S. Ct. 2688, 2688–89 (2023) (mem.) (granting certio-
rari). Oral arguments in the Rahimi case were held on November 7, 2023. Transcript of
Oral Argument, Rahimi, No. 22-915 (Nov. 7, 2023). This Article went to print before the
Court decided Rahimi.
9 Rather, the primary question in Rahimi (at least based on the briefing and oral ar-
gument) appears to be the level of generality courts should use when examining the histor-
ical record.
10 For example, the government argues that surety laws from the nineteenth century
“confirm that irresponsible individuals were subject to special restrictions that did not (in-
deed, could not) apply to ordinary, law-abiding citizens.” Brief for the United States at 24,
Rahimi, No. 22-915 (Aug. 14, 2023). The Fifth Circuit rejected that argument, emphasizing
the Supreme Court’s observation in Bruen that surety laws were rarely enforced. See United
States v. Rahimi, 61 F.4th 443, 459–60 (5th Cir. 2023) (quoting Bruen, 142 S. Ct. at 2149),
cert. granted, 143 S. Ct. 2688 (2023).
11 Richard H. Fallon, Jr., Constitutionally Forbidden Legislative Intent, 130 HARV L. REV.
523, 525 (2016). Many scholars have examined how courts should approach potentially
improper legislative motivations. See, e.g., id.; Aziz Z. Huq, What Is Discriminatory Intent?, 103
CORNELL L. REV. 1211, 1240–45 (2018); Joseph Landau, Process Scrutiny: Motivational Inquiry
and Constitutional Rights, 119 COLUM. L. REV. 2147 (2019).
equal protection jurisprudence sets an extraordinarily high bar for a
challenger seeking to strike down a law based on disparate impact,
12
certain Justices have appeared increasingly willing to credit circum-
stantial evidence of discriminatory intent and potential discriminatory
enforcement in recent years.
13
However, the discriminatory enforce-
ment inquiry may present unique issues when conducted through a
historical-analogical lens—in other words, when the enforcement at
issue is enforcement of a potential analogue to a modern law, rather
than the modern law itself or a lineal ancestor.
14
Thus, courts may
need to slightly alter approaches used in other areas of constitutional
law.
15
This Article presents the first comprehensive analysis of historical
enforcement inquiries under Bruen, exploring the pressing and unan-
swered questions the decision surfaces regarding the enforcement of
historical gun regulations. Part I summarizes Bruen’s approach to his-
torical enforcement, connects Bruen’s enforcement references to pos-
sible discriminatory legislative taint, and examines how similar issues
are handled in other areas of constitutional law. Part II summarizes
12 E.g., McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (“McCleskey would have to
prove that the Georgia Legislature enacted or maintained the death penalty statute because
of an anticipated racially discriminatory effect [demonstrated by an empirical study].”).
McCleskey further holds that a discriminatory purpose may never be presumed when “there
[a]re legitimate reasons” for legislative action. Id. at 298–99.
13 See, e.g., Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2273 (2020) (Alito,
J., concurring) (referencing the presumed application of Montana’s constitutional provi-
sion blocking state aid to religious schools when readopted in 1972, observing that “the
Montana Supreme Court had only ever applied the provision once—to a Catholic school”);
Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J., concurring in part) (“Alt-
hough Ramos does not bring an equal protection challenge, the history is worthy of this
Court’s attention.”).
14 For one, because the government may offer numerous potential analogues in any
individual case, an enforcement inquiry under Bruen will often be complex and multijuris-
dictional and thus more likely to result in disagreement over questions such as where to
look for enforcement evidence and what historical time period is most relevant. See, e.g.,
United States v. Jackson, 661 F. Supp. 3d 392, 407 (D. Md. 2023) (noting that “historians
continue to explore, discover, interpret, and disagree about . . . complex historical matters,”
including the enforcement of historical firearm laws), appeal docketed, No. 24-4114 (4th Cir.
Feb. 28, 2024).
15 The Court often “borrows” implementing rules from other areas of constitutional
law, and Bruen itself explicitly signals that its test is derived from “how we protect other
constitutional rights.” Bruen, 142 S. Ct. at 2130 (referencing the First Amendment as a
model for Second Amendment law); see also Jacob D. Charles, Constructing a Constitutional
Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. REV. 333 (2021) (chroni-
cling lower-court “borrowing” from other areas of constitutional law in Second Amendment
cases); Andrew Willinger, The Territories Under Text, History, and Tradition, 101 WASH. U. L.
REV. 1 (2023) (arguing that the Court should rely on non–Second Amendment precedent
to formulate a coherent theory of territorial relevance under Bruen).
perhaps the most important area where discriminatory enforcement
may arise in future Second Amendment challenges: facially neutral
post–Civil War Southern public carry regulations. This Part also un-
packs the complexity involved in determining how historical gun laws
were actually enforced by summarizing original archival research on
the enforcement of North Carolina’s 1879 concealed-carry ban in New
Hanover County from 1879 through 1908. The Article concludes by
comparing Bruen’s approach to the Court’s consideration of discrimi-
natory taint in other areas, arguing that Bruen’s treatment of discrimi-
natory taint may be ill-suited to the painstaking work of historical en-
forcement research in important ways and suggesting how doctrine
from outside of the Second Amendment might be harnessed to guide
courts tasked with examining the enforcement of potential historical
analogues under Bruen.
I. DISCRIMINATORY ENFORCEMENT & DISCRIMINATORY “TAINT”
A. Bruen’s Use of Historical Enforcement Data to Suggest
Discriminatory Taint
In Bruen, the Supreme Court rejected an approach to Second
Amendment challenges honed across more than 1,000 cases over
twelve years in the lower courts. That prior approach first asked
whether a legal challenge implicated the text of the Second Amend-
ment, and, if so, proceeded to apply some form of means-end scrutiny
asking whether a law was sufficiently tailored to accomplish the govern-
ment’s stated objective.
16
In Bruen, the Supreme Court found the sec-
ond, scrutiny-based step inconsistent with its prior jurisprudence and
set forth the following test: “When the Second Amendment’s plain text
covers an individual’s conduct, the Constitution presumptively pro-
tects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition
of firearm regulation.”
17
Bruen’s approach has created a great deal of uncertainty in the
lower courts,
18
and it has already led the Supreme Court to grant certi-
orari in a subsequent Second Amendment case where the Court may
clarify certain aspects of the methodology.
19
While legal scholars have
16 E.g., United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010), abrogated by Bruen,
142 S. Ct. 2111.
17 Bruen, 142 S. Ct. at 2129–30.
18 See generally Charles, supra note 7.
19 See United States v. Rahimi, 143 S. Ct. 2688, 2688–89 (2023) (mem.) (granting cer-
tiorari in case challenging federal prohibition on individuals subject to certain domestic-
violence restraining orders possessing firearms for the duration of the order).
only begun to unpack the historical-tradition test and its ramifications,
there is general consensus that the test permits, and perhaps requires,
careful presentation and consideration of historical nuance and evi-
dence outside of merely the text of enacted statutes.
20
In other words,
Bruen is not—as some lower-court judges appear to have approached
the decision
21
—a mandate to simply tabulate historical legislation at
the state level, trim that list according to the Supreme Court’s time and
geography limitations,
22
and then compare the remaining list of histor-
ical laws to the modern law at issue and judge relevant similarity. That
simply cannot be the gravamen of Bruen’s test. Bruen itself looked far
beyond a simple count of historical regulations and considered con-
textual evidence in numerous places.
23
These include two important
instances where the Court suggested that uneven or discriminatory en-
forcement of certain facially neutral
24
firearm laws in specific jurisdic-
tions may be relevant to the analogical inquiry.
25
First, the Court noted
that one legal scholar has found that nineteenth-century surety laws
were rarely enforced and may have been enforced discriminatorily
against Black individuals in certain instances.
26
Here, the Court cited
20 See Girgis, supra note 2, at 1488 (placing Bruen within a category of “living tradition-
alist” cases that “rely[] on post-ratification practices without an obvious originalist argu-
ment”); see also Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment
Adjudication, 133 YALE L.J. 99, 160 (2023) (“A narrow focus might lead to doctrine being
constructed on the basis of unrepresentative traditions . . . .”).
21 See, e.g., Antonyuk v. Hochul, 639 F. Supp. 3d 232, 316–43 (N.D.N.Y. 2022), aff’d in
part, vacated in part sub nom. Antonyuk v. Chiumento, 89 F.4th 271 (2d Cir. 2023), petition
for cert. filed sub nom. Antonyuk v. James, 92 U.S.L.W. 3217 (U.S. Feb. 20, 2024) (No. 23-
910); see also Minute Entry, Duncan v. Becerra, 366 F. Supp. 3d 1131 (S.D. Cal. 2019) (No.
17-cv-01017), ECF No. 134 (ordering the parties to “meet and confer regarding, a survey or
spreadsheet of relevant statutes, laws, or regulations in chronological order”).
22 The Court cautions in Bruen, for example, that twentieth-century historical evi-
dence is likely too new to shed light on the original understanding of the Second Amend-
ment and that laws enacted by territorial legislatures were too improvisational to be part of a
national tradition. Bruen, 142 S. Ct. at 2154 & n.28; see also Willinger, supra note 15 (de-
scribing the Court’s insistence that territorial laws do not matter).
23 See, e.g., Bruen, 142 S. Ct. at 2141–42 (emphasizing the importance of changing
societal attitudes toward the public carrying of handguns); id. at 2153–56 (rejecting territo-
rial public carry regulations as analogues).
24 This Article focuses on laws that did not facially discriminate, but where there is
some suggestion that the laws were underenforced or applied in a discriminatory manner.
For more discussion of facially discriminatory historical gun regulations, see infra notes 91–
92 and accompanying text.
25 Bruen, 142 S. Ct. at 2149 (citing a survey of historical newspapers by Professor Rob-
ert Leider to glean the scope of enforcement of surety laws in Massachusetts); id. at 2152
n.27 (citing statements from Reconstruction-era congressional hearings showing that
“Southern prohibitions on concealed carry were not always applied equally, even when un-
der federal scrutiny”).
26 Id. at 2149. While this Article focuses on the relevance of past discriminatory en-
forcement, Bruen’s treatment of surety laws also suggests some doctrinal role for
legal scholarship that examined historical newspapers to evaluate the
use of similar surety laws enacted in ten states and the District of Co-
lumbia.
27
Second, the Court observed that Southern concealed-carry
bans were often enforced discriminatorily against Black citizens in the
post–Civil War era.
28
The Court here did not cite any original research
for this proposition, but rather cited statements from congressional
debates in 1867 suggesting that Black citizens in certain states were tar-
geted for discriminatory enforcement of public carry laws at that
time.
29
Justice Breyer, in dissent, noted that the enforcement record of a
historical law “[is] often less than clear” and that lack of enforcement
“may just as well show that these laws were normally followed.”
30
In a
revealing exchange, Justice Thomas’s majority opinion responded to
this observation as follows: “[T]he burden rests with the government
to establish the relevant tradition of regulation . . . and . . . we consider
nonenforcement of historical laws, which presents similar methodological questions. See, e.g.,
Darrell A.H. Miller, Second Amendment Traditionalism and Desuetude, 14 GEO. J.L. & PUB.
POL’Y 223, 229 (2016) (inquiring into whether “desuetude [is] simply a device to trim his-
torical evidence to fit pre-conceived policy ends, or is . . . governed by neutral rules of ap-
plication”).
27 See Leider, supra note 3, at 249–57; see also Brief of Professor Robert Leider et al. as
Amici Curiae in Support of Petitioners at 32, Bruen, 142 S. Ct. 2111 (No. 20-843) (noting
that, while “[i]t is true that archival research in justice of the peace courts is difficult and
many records no longer exist[,] . . . [t]here are indirect ways to search for relevant evi-
dence[, including in] newspapers”). Professor Leider, while recognizing that the method
is an “indirect means to determine the scope of enforcement” “[u]ntil someone does ar-
chival research,” found that newspapers revealed “only one possible incident in Massachu-
setts of someone prosecuted for peacefully carrying weapons for self-defense” under the
state’s surety law. Leider, supra note 3, at 254. That case may represent a discriminatory
use of the law, according to Professor Leider’s research, because “the newspaper believed
the conviction resulted from the fact that the defendants were poor and African American.”
Id. at 255. There is substantial scholarly debate over the enforcement of historical surety
laws, including how to interpret the absence of decisional law regarding sureties. Professor
Saul Cornell, for example, argues that this “analysis relies largely on newspapers selected
by digital searches, a deeply flawed methodology that exacerbates confirmation bias.” Saul
Cornell, The Long Arc of Arms Regulation in Public: From Surety to Permitting, 1328–1928, 55
U.C. DAVIS L. REV. 2545, 2588 n.166 (2022); see also id. at 2586–88, 2587 n.159; Eric M.
Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case
Law in Context, 125 YALE L.J.F. 121, 130 n.53 (2015) (arguing that “the lack of Westlaw-
searchable case law” regarding sureties is not persuasive evidence of nonenforcement). In
any event, Professors Leider and Cornell appear to agree that archival research into con-
temporary court records, if available, provides the best available evidence of enforcement.
28 Bruen, 142 S. Ct. at 2152 n.27.
29 See id. (first citing H.R. Exec. Doc. No. 40-57, at 83 (2d Sess. 1867); and then citing
H.R. REP. NO. 39-16, at 427 (2d Sess. 1867)).
30 Id. at 2180, 2187 (Breyer, J., dissenting).
the barren record of enforcement to be simply one additional reason
to discount their relevance.”
31
In other words, to the majority, the burden is squarely on the gov-
ernment to refute evidence of nonenforcement (and, presumably, dis-
criminatory enforcement)
32
—meaning that the plaintiff’s decision to
merely offer the possibility of discriminatory enforcement establishes
a presumption of discriminatory taint.
33
Putting aside the critical ques-
tion of how the burden should be allocated within Second Amend-
ment cases, Bruen’s emphasis on enforcement makes some sense in the
abstract if—as scholars persuasively argue—Bruen is indeed a prime ex-
emplar of the Court’s recent embrace of traditionalism as a methodol-
ogy of constitutional adjudication.
34
As Professor Marc DeGirolami
notes, “patterns of enforcement” should be important evidence within
traditionalism because “[e]nacted regulations that are never enforced
seem . . . weaker as traditions than actively enforced laws.”
35
This
seems especially true with regard to discriminatory enforcement (as op-
posed to nonenforcement) because discriminatory enforcement more
powerfully suggests that a law was not squarely within the American
tradition of regulating firearms for public safety reasons—nonenforce-
ment, by contrast, could simply indicate widespread compliance.
36
Relying on the majority’s approach in Bruen, lower courts have
emphasized that it is the government’s burden to establish that a his-
torical law is both analogous and properly within the nation’s historical
regulatory tradition.
37
Four dissenting Eighth Circuit judges recently
observed that, otherwise, “[a]ll sorts of firearms regulations will now
be presumptively constitutional, with the burden falling on the
31 Id. at 2149 n.25 (majority opinion).
32 This Article largely assumes that Bruen is best read to suggest an identical approach
to evaluating both alleged nonenforcement and alleged discriminatory enforcement of po-
tential historical analogues. As both would be reasons to discount the value of the relevant
analogue within Bruen’s test, it seems fair to presume such claims are evaluated in the same
manner absent explicit contrary direction from the Court.
33 One potential explanation here is that this approach reflects the Court’s own belief
in the relative importance of the Second Amendment and desire to ensure that courts pro-
tect the right at the appropriate level. See Bruen, 142 S. Ct. at 2156 (explaining that “[t]he
constitutional right to bear arms in public for self-defense is not ‘a second-class right’”).
34 E.g., Girgis, supra note 2, at 1497–1501, 1501 n.141 (identifying Bruen within a list
of recent “[l]iving-traditionalist rulings,” id. at 1497); DeGirolami, supra note 2, at 2 n.3
(making a similar observation).
35 DeGirolami, supra note 2, at 37 n.125.
36 As Justice Breyer observed in his Bruen dissent, a lack of enforcement may simply
mean a law was widely followed because no one would have thought to violate it. Bruen, 142
S. Ct. at 2187 (Breyer, J., dissenting).
37 United States v. Jackson, 85 F.4th 468, 469 (8th Cir. 2023) (Stras, J., dissenting from
denial of rehearing en banc).
regulated, not the regulator, to establish they are not [constitu-
tional].”
38
As discussed in Section I.B below, this is precisely how the
Court has typically approached similar arguments about possible dis-
criminatory legislative motivation outside of the Second Amendment—
at least, in cases involving facially neutral laws where it is argued that
those laws were enacted for improper reasons. Lower courts have also
picked up on Bruen’s enforcement emphasis, although they struggle to
determine precisely when and how such evidence is relevant. For ex-
ample, in a recent order remanding a challenge to the federal felon
possession ban, judges of a Seventh Circuit panel observed that Bruen
“pa[id] close attention to the enforcement and impact of various reg-
ulations” but also left open crucial questions surrounding enforce-
ment evidence.
39
Similarly, a Maryland district judge interpreted
Bruen’s reference to possible discriminatory enforcement of surety laws
as instituting a rule that “two discriminatory statutes” (or, presumably,
two statutes where the challenger has even alleged discriminatory en-
forcement) are insufficient to constitute a historical tradition of regu-
lation.
40
By contrast, a district judge in Kentucky found that Bruen’s
rejection of surety statutes as a possible analogue for New York’s licens-
ing law “had little to do with enforcement evidence.”
41
Needless to say, Bruen leaves many open questions about how to
assess the possible discriminatory enforcement or nonenforcement of
historical analogues. These questions include how important such ev-
idence is within the larger analogical inquiry; whether the government
bears the burden of proving consistent enforcement for every histori-
cal law, or only once a prima facie claim of discriminatory or nonen-
forcement is raised; what the substantive standard is for showing either
consistent or problematic historical enforcement; and how parties
should even go about unearthing the enforcement record of a histori-
cal gun regulation.
B. The Court’s Approach to Discriminatory Taint Outside of the
38 Id. at 470.
39 Atkinson v. Garland, 70 F.4th 1018, 1022 (7th Cir. 2023); see also id. at 1029 (Wood,
J., dissenting) (observing that Bruen does not explain “what ratio between incidence of the
regulated action and prosecutions is enough to make enforcement ‘actual’”); United States
v. Daniels, 77 F.4th 337, 358–59 (5th Cir. 2023) (Higginson, J., concurring) (observing that
“courts, operating in good faith, are struggling at every stage of the Bruen inquiry,” includ-
ing the “issue of enforcement”), petition for cert. filed, 92 U.S.L.W. 3085 (U.S. Oct. 5, 2023)
(No. 23-376).
40 Kipke v. Moore, Civil Action No. GLR-23-1293, 2023 WL 6381503, at *13 (D. Md.
Sep. 29, 2023) (quoting Bruen, 142 S. Ct. at 2149).
41 United States v. Combs, 654 F. Supp. 3d 612, 627 (E.D. Ky. 2023), appeal dismissed,
No. 23-5153, 2023 WL 9785711 (6th Cir. Sept. 12, 2023).
Second Amendment
A natural place to look for guidance on how to operationalize dis-
criminatory-taint claims in Second Amendment cases is the Supreme
Court’s pronouncements in other areas of constitutional law. This Sec-
tion will summarize major cases outside the Second Amendment
where the Court has evaluated similar arguments about historical dis-
criminatory taint. The focus here will be on cases that, similar to Bruen,
consider whether and how discriminatory taint from enactment or
postenactment circumstances and enforcement impacts modern-day
constitutionality, often with a gap of many decades between enactment
and constitutional challenge. Cases dealing with claims that laws
passed during the late nineteenth and early twentieth centuries were
infected with racially discriminatory motivations, and that those moti-
vations cast doubt on the laws’ present-day constitutionality, are espe-
cially relevant.
42
In such cases, the discriminatory taint inquiry is fun-
damentally distinct from how it arises under Bruen in one major way:
the Court is examining discriminatory intent and enforcement evi-
dence that pertains to the specific law being challenged, while in Bruen the
inquiry pertains to potentially analogous historical laws.
43
This Article
argues that the difference is largely superficial—although it may be
that a slightly different approach is warranted when dealing with his-
torical analogues.
44
The Court’s primary framework for evaluating discriminatory-
taint arguments comes from the equal protection context. The Court’s
precedents require proof that discriminatory intent was a “motivating”
42 While this is not identical to the way that discriminatory-taint arguments surfaced in
Bruen, because the law being challenged was not a surety statute enacted in the nineteenth
century or a Reconstruction-era Southern concealed carry regulation, the interpretive
method is highly analogous because the Court is asked to consider how past discriminatory
taint matters in a contemporary legal challenge.
43 See Bruen, 142 S. Ct. at 2149. The petitioners in Bruen did argue that New York’s
Sullivan Law itself was infected with anti-Italian discrimination and enforced disparately
against Italian Americans in the years after the law was enacted in 1911. See Brief for Peti-
tioners at 13–14, Bruen, 142 S. Ct. 2111 (No. 20-843). At least one scholar disputes the
accuracy of this evidence and has conducted his own archival survey suggesting a much
lower application against Italian American defendants. See Patrick J. Charles, A Historian’s
Assessment of the Anti-immigrant Narrative in NYSRPA v. Bruen, DUKE CTR. FOR FIREARMS L.:
SECOND THOUGHTS BLOG (Aug. 4, 2021), firearmslaw.duke.edu/2021/08/a-histo-
rians-assessment-of-the-anti-immigrant-narrative-in-nysrpa-v-bruen [https://perma.cc
/BKB8-8SZH]. The Court did not ultimately appear to place any significant weight on pos-
sible discrimination surrounding the Sullivan Law’s enactment.
44 Perhaps, for example, courts should adopt a higher standard of proof when a chal-
lenger alleges that the actual law being challenged was motivated by an improper discrimina-
tory purpose (since that alone may be a major factor in striking down the law) while allow-
ing discriminatory impact to be proven at a lower evidentiary threshold for analogues.
factor in enacting a law to shift the burden to the government to justify
its regulatory choices.
45
The Court has held that, “[s]tanding alone,
[evidence of disproportionate racial impact] does not trigger the rule
that racial classifications are to be subjected to the strictest scrutiny and
are justifiable only by the weightiest of considerations.”
46
Under this
standard, the Court has rejected statistical evidence of disparate impact
as insufficient to make out an equal protection claim and shift the bur-
den to the government when there is any “legitimate reason[]” for the
legislature’s choices.
47
While evidence of disparate enforcement is nor-
mally not sufficient on its own to make out a prima facie equal protec-
tion violation,
48
it might be enough to shift the burden to the govern-
ment if the data show such an overwhelming disparity that it is clear
the law was “applied so as invidiously to discriminate on the basis of
race.”
49
Two major recent decisions, however, illustrate how such discrim-
inatory-taint arguments have surfaced anew outside of the Second
Amendment context and how the Court is increasingly casting the net
wider and crediting even circumstantial evidence of discriminatory
45 Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66
(1977) (“When there is a proof that a discriminatory purpose has been a motivating factor
in the decision, this judicial deference is no longer justified.”); see also Washington v. Davis,
426 U.S. 229, 239 (1976).
46 Davis, 426 U.S. at 242 (citation omitted).
47 McCleskey v. Kemp, 481 U.S. 279, 299, 298–99 (1987). Scholars contend that this
standard is “virtually impossible to satisfy” and that “courts have been especially resistant to
statistical evidence of discriminatory purpose.” Joseph Blocher & Reva B. Siegel, Race and
Guns, Courts and Democracy, 135 HARV. L. REV. F. 449, 454–55 (2022).
48 See Davis, 426 U.S. at 242 (“Disproportionate impact is not irrelevant, but it is not
the sole touchstone of an invidious racial discrimination forbidden by the Constitution.”);
see also Pers. Adm’r v. Feeney, 442 U.S. 256, 279 n.25 (1979) (stating that evidence of dis-
parate enforcement might create “a strong inference that the adverse effects were desired”
but that the “inference is a working tool, not a synonym for proof”).
49 Davis, 426 U.S. at 241 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)); see also
Hunter v. Underwood, 471 U.S. 222, 227 (1985) (referring to evidence that an Alabama
moral-turpitude provision “disfranchised approximately ten times as many blacks as whites”
in the period immediately following its enactment); Hill v. Texas, 316 U.S. 400, 403 (1942)
(observing evidence that Texas poll taxes had been applied so as to functionally exclude
Black citizens from jury service over a period of decades); Norris v. Alabama, 294 U.S. 587,
596 (1935) (“We think that the evidence that for a generation or longer no negro had been
called for service on any jury in Jackson County [and] that there were negroes qualified for
jury service . . . established the discrimination which the Constitution forbids.”); Yick Wo,
118 U.S. at 374 (remarking that enforcement records indicated that all 200 Chinese appli-
cants for a laundry license in San Francisco were denied under a facially neutral law while
eighty non-Chinese applications were granted, and “[t]he fact of this discrimination is ad-
mitted”); cf. Davis, 426 U.S. at 242 (characterizing the jury exclusion cases as exceptional
situations where discrimination application “may for all practical purposes demonstrate un-
constitutionality because in various circumstances the discrimination is very difficult to ex-
plain on nonracial grounds”).
intent (which may include discriminatory enforcement evidence) not-
withstanding Washington v. Davis.
50
First, in Ramos v. Louisiana, the
Court held that a Louisiana law permitting conviction of criminal de-
fendants based on nonunanimous jury verdicts violated the Sixth
Amendment’s guarantee of a right to trial by jury.
51
The majority in
Ramos explained in detail how the outlier approach permitting non-
unanimous jury verdicts (which persisted in only Louisiana and Ore-
gon) was tied to racial discrimination in the post–Civil War and Jim
Crow eras.
52
Indeed, evidence before the Court strongly suggested that
Louisiana’s requirement was adopted at the state’s 1898 constitutional
convention—where the Chairman of the Judiciary Committee re-
marked that delegates were “here to establish the supremacy of the
white race”—out of prejudicial fear that Black jurors would be subject
to corruption and refuse to vote to convict any Black defendant (thus
allowing the defendant to walk free under a unanimous verdict ap-
proach).
53
The majority observed that “courts in both Louisiana and
Oregon have frankly acknowledged that race was a motivating factor
in the adoption of their States’ respective nonunanimity rules,” and
appeared to find this discriminatory taint relevant to its decision to
overrule Apodaca v. Oregon, which had upheld state nonunanimous ver-
dict rules.
54
Justice Alito’s dissenting opinion, by contrast, stridently
rejected the notion that discriminatory historical taint has any contem-
porary jurisprudential relevance.
55
Justice Alito would instead have
adopted the Davis and McCleskey v. Kemp
56
rule that any conceivable
legitimate legislative purpose is sufficient to defeat such an inference:
“If Louisiana and Oregon originally adopted their laws allowing non-
unanimous verdicts for these [discriminatory] reasons, that is deplora-
ble, but what does that have to do with the broad constitutional ques-
tion before us? The answer is: nothing.”
57
To Justice Alito, then, possible
discriminatory taint is simply not relevant at all to constitutionality so
long as there is any reason “why anyone might think that allowing non-
50 Davis, 426 U.S. 229. Scholars have asserted that the current Court is more suscep-
tible to closely scrutinizing claims of discrimination in certain cases. See Khiara M. Bridges,
The Supreme Court, 2021 Term—Foreword: Race in the Roberts Court, 136 HARV. L. REV. 23, 28–
30 (2022) (arguing that the Court’s equal protection jurisprudence has been uneven in its
approach to disparate impact arguments based on the race of the challenger).
51 140 S. Ct. 1390 (2020).
52 Id. at 1394–95.
53 See Kyle R. Satterfield, Comment, Circumventing Apodaca: An Equal Protection Chal-
lenge to Nonunanimous Jury Verdicts in Louisiana, 90 TUL. L. REV. 693, 696–98 (2016).
54 Ramos, 140 S. Ct. at 1394, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).
55 Ramos, 140 S. Ct. at 1426 (Alito, J., dissenting).
56 McCleskey v. Kemp, 481 U.S. 279 (1987).
57 Ramos, 140 S. Ct. at 1426 (Alito, J., dissenting) (emphasis added).
unanimous verdicts is good policy”—as the Court has stated repeatedly
in its equal protection jurisprudence.
58
Second, in a decision issued only days later in
Espinoza v. Montana
Department of Revenue,
59
the Court held that Montana’s restriction of
state scholarship funds to public-school students (and exclusion of
those attending religious schools) violated the First Amendment’s Free
Exercise Clause.
60
While the majority opinion makes no reference to
possible discriminatory taint, Justice Alito concurred to note Ramos’s
reliance on historical discrimination (which he had specifically argued
against considering in that case).
61
Justice Alito wrote that, under Ra-
mos, the discriminatory, anti-immigrant, and anti-Catholic background
of Montana’s no-aid provision, initially adopted at the state’s constitu-
tional convention in 1889, was an additional ground for striking down
that law.
62
Justice Alito’s concurrence is perhaps most charitably read
as a plea for consistency, arguing that, because “the no-aid provision’s
terms keep it ‘[t]ethered’ to its original ‘bias,’ and it is not clear at all
that the State ‘actually confront[ed]’ the provision’s ‘tawdry past in
reenacting it,’” the provision should fall.
63
A similar issue often arises in redistricting cases where state legis-
lative districts are challenged under the Voting Rights Act or other fed-
eral statutory or constitutional provisions. Abbott v. Perez, a 2018 deci-
sion in which the Court reversed in part a district court order enjoining
a Texas redistricting plan based on allegations that the plan violated
the Constitution and the Voting Rights Act, is one notable example.
64
The district court in Perez required the state to show that “discrimina-
tory taint” stemming from earlier voting maps that a court determined
were improperly motivated by race was removed when the state drew
new electoral maps.
65
Finding no such evidence and concluding that
58 Id. at 1427, 1426–27; see also McCleskey, 481 U.S. at 298. The dissent, in fact, levies
an even more sweeping broadside against discriminatory-taint arguments, labeling such
claims “ad hominem rhetoric” that “attempt[] to discredit an argument not by proving that
it is unsound but by attacking the character or motives of the argument’s proponents.”
Ramos, 140 S. Ct. at 1426 (Alito, J., dissenting). This is by no means a new perspective on
the issue. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 638–39 (1987) (Scalia, J., dissenting)
(arguing “that determining the subjective intent of legislators is a perilous enterprise” that
the Court should avoid, id. at 638).
59 140 S. Ct. 2246 (2020).
60 Id. at 2262–63.
61 Id. at 2267–68 (Alito, J., concurring).
62 Id. at 2268–72.
63 Id. at 2274 (alterations in original) (quoting Ramos, 140 S. Ct. at 1410 (Sotomayor,
J., concurring in part)).
64 138 S. Ct. 2305, 2313 (2018).
65 See Perez v. Abbott, 274 F. Supp. 3d 624, 649 (W.D. Tex. 2017) (“[T]he Legislature
did not engage in a deliberative process to ensure that the 2013 plans cured any taint from
the 2011 plans.”), rev’d, 138 S. Ct. 2305.
discriminatory aspects (and thus the discriminatory core purpose) of
the earlier redistricting plans continued, the district court enjoined
the new maps.
66
A majority of the Supreme Court, in an opinion by
Justice Alito, roundly rejected the district court’s decision to place the
burden on Texas to show that the discriminatory taint of earlier plans
had been removed—stating that “[w]henever a challenger claims that a
state law was enacted with discriminatory intent, the burden of proof
lies with the challenger, not the State.”
67
In addition to placing the
burden of proof on the plaintiff, Perez stressed the potentially disrup-
tive impact of judicial oversight of the redistricting process and empha-
sized that legislative action enjoys a presumption of “good faith.”
68
Pe-
rez goes further in its criticism of possible overemphasis of historical
discriminatory taint:
“[P]ast discrimination cannot, in the manner of original sin, con-
demn governmental action that is not itself unlawful.” . . . The “his-
torical background” of a legislative enactment is “one evidentiary
source” relevant to the question of intent. But we have never sug-
gested that past discrimination flips the evidentiary burden on its head.
69
Perez discussed the Court’s 1985 decision in Hunter v. Underwood,
70
which is especially relevant for present purposes. In Hunter, the Court
confronted an Alabama state constitutional provision disenfranchising
persons “convicted of crimes involving moral turpitude,” which was
66 Id. at 648–50, 686.
67 Perez, 138 S. Ct. at 2324 (emphasis added) (citing Reno v. Bossier Par. Sch. Bd., 520
U.S. 471, 481 (1997)). Reno similarly involved Voting Rights Act claims, where the Court
has long maintained that the challenger bears the burden of establishing a discriminatory
purpose or taint. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 66 (1980) (plurality opin-
ion); Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1309 (2016) (requiring
plaintiff to show “that it is more probable than not that illegitimate considerations were the
predominant motivation behind the plan’s deviations from mathematically equal district
populations”). For an analogous example outside of voting cases, see the line of cases be-
ginning with Batson v. Kentucky that generally requires a defendant challenging a peremp-
tory jury strike as impermissibly based on race to first make out a prima facie case of dis-
crimination before shifting the burden back to the state to show race-neutral reasons for
the strike. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986); Flowers v. Mississippi, 139 S.
Ct. 2228, 2243–44 (2019).
68 Perez, 138 S. Ct. at 2324–25. This is also a long-running theme in the Supreme
Court’s voting jurisprudence. See, e.g., Miller v. Johnson, 515 U.S. 900, 915 (1995) (citing
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318–19 (1978) (opinion of Powell, J.))
(“[U]ntil a claimant makes a showing sufficient to support that allegation the good faith of
a state legislature must be presumed.”).
69 Perez, 138 S. Ct. at 2324–25 (alteration in original) (emphasis added) (citations
omitted) (first quoting Bolden, 446 U.S. at 74 (plurality opinion); and then quoting Village
of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)).
70 Perez, 138 S. Ct. at 2325 (discussing Hunter v. Underwood, 471 U.S. 222 (1985)).
challenged under the Equal Protection Clause.
71
The Supreme Court
found expert testimony regarding the immediate postratification en-
forcement of the provision (as well as the historical background of its
enactment) to indisputably establish racist intent, despite the statute’s
facial neutrality.
72
In Hunter, this evidence was sufficient because there
was no contrary evidence in the record and because “[t]he delegates
to [Alabama’s] all-white convention were not secretive about their pur-
pose.”
73
In both Hunter and Ramos, then, evidence of discriminatory
taint from the early Jim Crow era was ultimately relevant to a finding
that a modern law or framework initially adopted during that time was
unconstitutional today. However, in each case, the Court appeared to
require almost bulletproof circumstantial evidence of discriminatory
intent or enforcement.
74
As scholars have noted, discriminatory-taint arguments appear
across many areas of constitutional and statutory law.
75
Some cases,
like Ramos, Espinoza, and Hunter, involve arguments that long-ago
71 Hunter, 471 U.S. at 232. The provisions at issue were adopted at Alabama’s 1901
constitutional convention, part of a wave of Southern state conventions at that time spear-
headed by Democratic majorities and designed to consolidate power and disenfranchise
Black citizens. See J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE
RESTRICTION AND THE ESTABLISHMENT OF THE ONE-PARTY SOUTH, 1880–1910, at 140–81
(1974).
72 See Hunter, 471 U.S. at 227 (quoting Underwood v. Hunter, 730 F.2d 614, 620 (11th
Cir. 1984), aff’d, 471 U.S. 222) (citing expert testimony that “estimated that by January 1903
section 182 had disfranchised approximately ten times as many blacks as whites” and the
appellate court’s conclusion that “[t]his disparate effect persists today” (emphasis added)).
73 Id. at 229. Recognizing the difficulty of discerning discriminatory intent in in-
stances where legislators took greater care to conceal their real motivations, Hunter high-
lights that any discriminatory-taint framework should strive to avoid endorsing such legisla-
tive secrecy.
74 And, in each case, the Court found it relevant to the discriminatory-intent question
that the actual delegates or representatives who initially enacted the provision were all
white. See id. (“The delegates to the all-white convention were not secretive about their
purpose.”); Ramos v. Louisiana, 140 S. Ct. 1390, 1394 (2020) (noting that the “avowed pur-
pose of [the 1898 Louisiana constitutional] convention was to ‘establish the supremacy of
the white race’”); see also KOUSSER, supra note 71, at 140–81 (describing the road to Demo-
crat- and white-dominated constitutional conventions in various former Confederate states
in the late Reconstruction era).
75 E.g., Gabriel J. Chin, Rehabilitating Unconstitutional Statutes: An Analysis of Cotton v.
Fordice, 157 F.3d 388 (5th Cir. 1998), 71 U. CIN. L. REV. 421 (2002); Jessica A. Clarke, Explicit
Bias, 113 NW. U. L. REV. 505 (2018); Fallon, supra note 11; Brandon L. Garrett, Unconstitu-
tionally Illegitimate Discrimination, 104 VA. L. REV. 1471, 1473–74 (2018); Murray, supra note
6; Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban,
in POLITICAL LEGITIMACY 201, 219–23 (NOMOS LXI, Jack Knight & Melissa Schwartzberg
eds., 2019); see also Noam Biale, Elizabeth Hinton & Elizabeth Ross, The Discriminatory Pur-
pose of the 1994 Crime Bill, 16 HARV. L. & POL’Y REV. 115 (2021) (considering how discrimi-
natory-impact evidence related to the federal one-year mandatory minimum sentence for
drug crimes committed in the vicinity of a public housing project might be legally relevant).
discriminatory intent has modern-day consequences; others, like Perez,
involve instances of improper legislative motivations that are much
more recent. Any discriminatory-taint analysis will likely overlap con-
siderably with evidence of historical enforcement of the law at issue.
And, as in Hunter,
76
enforcement evidence is one way a plaintiff might
attempt to show a discriminatory motive behind a facially neutral law
(often combined with circumstantial historical evidence surrounding
the law’s adoption, as in Ramos and Espinoza). There is little dispute
across the cases
77
that this is a high bar not easily met.
78
Other examples abound. In recent litigation challenging the var-
ious national-origin travel bans enacted by former President Donald
Trump, courts wrestled with whether Trump’s own statements preced-
ing the ban imparted discriminatory taint relevant to an Establishment
Clause violation.
79
Dissenting from a decision upholding the ban, Jus-
tice Breyer would have focused on how it was enforced to determine
whether Muslims were disproportionately denied exemptions and
waivers.
80
Returning to the equal protection context, the Court has
held that race-neutral education policies may violate the Constitution’s
guarantee of equal protection when they perpetuate discriminatory
objectives traced to the organization of a state’s higher education
76 Hunter, 471 U.S. at 229–32 (citing evidence that Alabama’s moral-turpitude exclu-
sion disproportionally burdened Black citizens).
77 See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265
(1977) (noting that this burden-shifting approach is “a principle well established in a variety
of contexts”).
78 See, e.g., McCleskey v. Kemp, 481 U.S. 279, 298 n.20, 312–13 (1987) (rejecting
Eighth Amendment challenge to Georgia’s capital punishment sentencing framework be-
cause “[a]t most, [evidence of possible discriminatory enforcement] indicate[d] a discrep-
ancy that appears to correlate with race,” id. at 312, and dismissing historical arguments
that the framework was a lineal descendant of post–Civil War laws because “we cannot ac-
cept official actions taken long ago as evidence of current intent,” id. at 298 n.20); Wallace
v. Jaffree, 472 U.S. 38, 58 (1985) (relying on “unrebutted evidence of legislative intent” (em-
phasis added)).
79 See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 601 (4th Cir.) (“EO-2
cannot be divorced from the cohesive narrative linking it to the animus that inspired it.”),
vacated as moot sub nom. Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017).
80 Trump v. Hawaii, 138 S. Ct. 2392, 2429–31 (2018) (Breyer, J., dissenting). Justice
Breyer’s dissent also cited data regarding application of the waiver provisions in the ban.
See id. at 2431–32. The travel ban example illustrates a possible distinction between a law’s
enforcement and its application. While Bruen appears to contemplate an inquiry into enforce-
ment (i.e., affirmative government efforts to find and prosecute those who violate a law),
how a policy that contemplates inevitable interaction with government officials, such as in
the asylum context, is applied may present different considerations. That said, judicial as-
sessment of the travel ban’s application should be broadly instructional when thinking
about discriminatory enforcement in the firearms context.
system.
81
In United States v. Fordice, for example, evidence of vast his-
torical racial discrepancies in enrollment at state universities was the
primary basis for finding a present-day discriminatory impact.
82
Three general principles appear across these cases. First, the
Court
83
seems to largely treat arguments about the contemporary rele-
vance of past discriminatory taint with a high level of skepticism (even
scorn) and set a high bar of evidentiary proof.
84
When one considers
the difficulty of demonstrating any unitary intent on the part of a large,
multimember legislative body
85
and the almost impossibly strict test the
Court has set for the disparate-impact arguments in the equal
81 See United States v. Fordice, 505 U.S. 717, 729 (1992) (“If policies traceable to the
de jure system are still in force and have discriminatory effects, those policies too must be
reformed to the extent practicable and consistent with sound educational practices.”). No-
tably, in the desegregation context, “[t]he school district bears the burden of showing that
any current imbalance is not traceable, in a proximate way, to the prior violation.” Freeman
v. Pitts, 503 U.S. 467, 494 (1992).
82 See Fordice, 505 U.S. at 724–25. The Court in Fordice also emphasized evidence that
policies granting automatic admission to those who achieved a certain ACT score had a
racially disparate impact. Id. at 733–35.
83 Lower courts have generally followed the Supreme Court’s lead, in areas from equal
protection to the Eighth Amendment. For example, in an August 2023 decision that is now
vacated pending rehearing en banc, a panel of the Court of Appeals for the Fifth Circuit
struck down a Mississippi constitutional provision permanently disenfranchising those con-
victed of certain crimes—finding that the exclusion amounted to cruel and unusual pun-
ishment under the Eighth Amendment. Hopkins v. Hosemann, 76 F.4th 378, 411 (5th
Cir.), vacated pending reh’g en banc, 83 F.4th 312 (5th Cir. 2023) (mem.). The Hopkins panel
majority took pains to emphasize that the provision was adopted at an all-white constitu-
tional convention with white-supremacist objectives, that it was “designed to target as disen-
franchising offenses those that the white delegates thought were more often committed by
black men,” and that the provision “ha[d] been remarkably effective in achieving [its] orig-
inal, racially discriminatory aim” to the present day. Id. at 388–89. For this last point, the
opinion relied primarily on enforcement evidence showing that, “of the nearly 29,000 Mis-
sissippians who were convicted of disenfranchising offenses and have completed all terms
of their sentences between 1994 and 2017, 58%—or more than 17,000 individuals—were
black. Only 36% were white.” Id. at 390. The majority further found this discriminatory
taint constitutionally relevant, noting that “as the provision’s odious origins make clear, Sec-
tion 241’s infliction of disenfranchisement on only certain offenders has nothing to do with
their heightened culpability.” Id. at 409 (emphasis added). That a law was enacted by a
white-supremacist convention and has had a discriminatory impact lasting for over 130 years
more clearly suggests discriminatory taint than potential disparate enforcement over a short
period of time.
84 See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390, 1426–27 (2020) (Alito, J., dissenting);
McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987).
85 See Fallon, supra note 11, at 527 (“Individual legislators may have intentions and
purposes, but the legislature as a whole has no collective intent or purpose . . . .”); see also
John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 431 (2005) (“[A]
tortuous and largely opaque legislative process makes it difficult if not impossible for judges
to retrace all the steps that contributed to the final wording of the enacted text.”).
protection context,
86
perhaps this high standard and accompanying
skepticism are warranted.
87
Second, the Court consistently requires
the party making a claim of discriminatory taint (rather than the gov-
ernment) to shoulder the high initial burden of proving that the
“taint” exists by offering discriminatory enforcement and other con-
textual evidence.
88
This is consistent with the principle that govern-
ment actions normally enjoy a presumption of good faith and consti-
tutionality.
89
Finally, the Court often expects some connection or
through line from historical discriminatory intent or enforcement to
modern-day discrimination; rarely do the Justices conclude that dis-
criminatory taint in the abstract is fatal, without reference to a possible
continued negative impact on a disfavored group or government fail-
ure to disclaim past discrimination.
90
II. POSTBELLUM SOUTHERN GUN REGULATION AS A CASE STUDY
A. Background and Scholarly Debate
There is substantial scholarly disagreement over the extent to
which race motivated the legislators who enacted strict, and often
novel, forms of public carry gun regulation in the post–Civil War pe-
riod. There are two potentially problematic categories of historical
gun laws when it comes to discriminatory taint. First, facially
86 See supra notes 45–49 and accompanying text.
87 See, e.g., Richard L. Hasen, Bad Legislative Intent, 2006 WIS. L. REV. 843, 879–80 (ar-
guing that, because it is so difficult to discern any true, unitary legislative motive, judicial
overemphasis of potentially improper legislative motives “will leave room for arbitrary re-
sults and the wide imposition of value judgments,” id. at 879).
88 See, e.g., Abbott v. Perez, 138 S. Ct. 2305, 2324–25 (2018).
89 See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 436 (1827) (“It has been truly
said, that the presumption is in favour of every legislative act, and that the whole [burden]
of proof lies on him who denies its constitutionality.”); McCray v. United States, 195 U.S.
27, 56 (1904) (“The decisions of this court from the beginning lend no support whatever
to the assumption that the judiciary may restrain the exercise of lawful power on the as-
sumption that a wrongful purpose or motive has caused the power to be exerted.”); Miller
v. Johnson, 515 U.S. 900, 915 (1995).
90 This is clearest in Hunter and Ramos, where the Court found generally that discrim-
inatory intent is especially relevant when provisions continue to have a potential negative
impact on members of the disfavored group. See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390,
1410 (2020) (Sotomayor, J., concurring in part) (“[T]he States’ legislatures never truly
grappled with the laws’ sordid history in reenacting them.”); see also United States v. Ford-
ice, 505 U.S. 717, 729 (1992); McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987) (requiring
continuity between discriminatory Reconstruction-era statutes and Georgia’s modern-day
capital punishment framework); Hopkins v. Hosemann, 76 F.4th 378, 390 (5th Cir.) (noting
the continued discriminatory impact of Mississippi’s 1890 felon-disenfranchisement provi-
sion by citing a study of its application between 1994 and 2017), vacated pending reh’g en
banc, 83 F.4th 312 (5th Cir. 2023) (mem.).
discriminatory laws, enacted before, during, and shortly after the
Founding and including the initial wave of Black Codes passed in
Southern states immediately following the Civil War, banned African
Americans, Native Americans and Catholics from possessing or carry-
ing weapons.
91
One can expect that the enforcement record for such
laws is not especially illuminating—by their terms, the laws mandated
discrimination and could not have been applied to the white popula-
tion. There is much debate about these laws in post-Bruen litigation,
with the government generally arguing that they evince a broader tra-
dition of regulating based on perceived dangerousness, while some
judges reject them entirely for purposes of the analogical inquiry.
92
This Article, however, deals instead with a second category of laws:
facially neutral regulations that some argue were improperly motivated
by race and enforced in a disparate manner, and for which evidence
of enforcement may be crucial.
93
Public carry restrictions appeared
with increasing frequency in post–Civil War Southern states.
94
Some
suggest, however, that these facially neutral regulations—many of
which in fact mirrored laws in force before the Civil War—were pri-
marily motivated by racial animus and intended to disarm only the
91 See, e.g., An Act for Disarming Papists, and Reputed Papists, Refusing to Take the
Oaths to the Government, ch. 1, 1756 Va. Acts 331; Act of Feb. 8, 1798, ch. 54, § 5, 1798 Ky.
Acts 6th Gen. Assemb., 2d Sess. 105, 106 (“No negro, mulatto, or Indian whatsoever, shall
keep or carry any gun, powder, shot, club, or other weapon whatsoever . . . .”); Act of Jan.
11, 1841, ch. 30, 1840–41 N.C. Laws 61; Act of Jan. 16, 1854, § 1, 1853 Or. Stat. 257, 257
(setting forth penalties for “any white citizen . . . [who] shall sell, barter, or give to any In-
dian in this territory any gun, rifle, pistol or other kind of firearms”).
92 See, e.g., United States v. Harrison, 654 F. Supp. 3d 1191, 1216 (W.D. Okla. 2023)
(“[H]istorical restrictions on slaves and Indians provide no insight into the constitutionality
of [modern gun regulations].”), appeal docketed, No. 23-6028 (10th Cir. Mar. 3, 2023); Jacob
Gershman, Old Racist Gun Laws Enter Modern-Day Legal Battles, WALL ST. J. (Feb. 27, 2023,
8:00 AM), www.wsj.com/articles/old-racist-gun-laws-enter-modern-day-legal-bat-
tles-ed7a0206 [https://perma.cc/NJG6-9PC9]; cf. United States v. Daniels, 77 F.4th 337,
354 (5th Cir. 2023) (“[E]ven if we consider the racially discriminatory laws at the Founding,
Daniels is not like the minorities who the Founders thought threatened violent revolt.”),
petition for cert. filed, 92 U.S.L.W. 3085 (U.S. Oct. 5, 2023) (No. 23-376). For articles address-
ing how such laws can or should fit into a text, history, and tradition approach, see Adam
Winkler, Racist Gun Laws and the Second Amendment, 135 HARV. L. REV. F. 537 (2022); and
Jacob D. Charles, On Sordid Sources in Second Amendment Litigation, 76 STAN. L. REV. ONLINE
30 (2023) (arguing that Bruen’s method suggests abstracting higher-level regulatory princi-
ples from such laws).
93 In fact, this subset of historical laws is where evidence of on-the-ground enforce-
ment most clearly overlaps with the concept of discriminatory taint: since many such laws
were presumably intended to be presented as nondiscriminatory regulations complying
with the Reconstruction amendments, the best (and perhaps only) evidence of a latent dis-
criminatory intent will be enforcement in the years after enactment.
94 See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 935–38 (2010) (Breyer, J., dis-
senting) (describing state and local regulations during this period).
Black population and facilitate white supremacy. Prominent gun-
rights scholars have argued that “Jim Crow laws [were] the foundation
of gun control in America.”
95
In this telling, Southern states that could
no longer explicitly discriminate against Black citizens enacted facially
neutral laws that they often justified by reference to public safety goals,
while actually intending that the laws have the effect of disarming
Black citizens or thwarting Black gun carrying or ownership.
96
As Clay-
ton Cramer argues, “[t]he apparent goal of the gun control and va-
grancy laws [in the post-Reconstruction South] was to intimidate the
freedmen into an economically subservient position.”
97
These scholars
often rely heavily on a handful of frank judicial assessments of the pur-
pose of certain Southern gun regulations—for example, the following
portion of a concurring opinion in the 1941 Florida Supreme Court
case Watson v. Stone describing Florida’s permit requirement for cer-
tain handguns and rifles: “The statute was never intended to be ap-
plied to the white population and in practice has never been so ap-
plied.”
98
Some level these claims even without any proof that is specific
to the underlying law (or even state) at issue. Rather, the argument is
that the entire region was so infected with racism that any gun-related
regulation (or, perhaps, any regulation at all) is inherently suspect.
99
Historians such as Brennan Rivas, however, have shown that the
rapid expansion of gun regulation in the South during and immedi-
ately following Reconstruction “speaks to the urgency of gun violence
in the postbellum South, not a secret white supremacist plot to disarm
Black residents.”
100
Based on original archival enforcement research
95 David B. Kopel, The Racist Roots of Gun Control, ENCOUNTER BOOKS (Feb. 23, 2018)
www.encounterbooks.com/features/racist-roots-gun-control/ [https://perma.cc
/SQ65-LLFT].
96 David B. Kopel & Clayton Cramer, State Court Standards of Review for the Right to Keep
and Bear Arms, 50 SANTA CLARA L. REV. 1113, 1123 (2010) (“The mere declaration that a
statute is enacted for the purpose of public safety is hardly proof that there was no invidious
motive.”). Notably, this specific framing appears to assume an improper motive and place
the burden of proof on the party claiming nondiscriminatory intent—an issue discussed in
Section I.B.
97 Clayton E. Cramer, The Racist Roots of Gun Control, KAN. J.L. & PUB. POL’Y, Winter
1995, at 17, 21.
98 4 So. 2d 700, 703 (Fla. 1941) (Buford, J., concurring specially).
99 See, e.g., Cramer, supra note 97, at 21 (noting the “shortage of . . . forthright state-
ments of racist intent”); Nicholas Gallo, Comment, Misfire: How the North Carolina Pistol Pur-
chase Permit System Misses the Mark of Constitutional Muster and Effectiveness, 99 N.C. L. REV.
529, 534–36 (2021) (arguing that North Carolina’s permitting system for handguns was ra-
cially motivated and “inten[ded] . . . to keep minorities from possessing handguns,” id. at
536, based solely on the presence of the Ku Klux Klan in North Carolina at the time and
judicial statements about a Florida permit law enacted nearly thirty years prior).
100 Brennan Gardner Rivas, The Problem with Assumptions: Reassessing the Historical Gun
Policies of Arkansas and Tennessee, DUKE CTR. FOR FIREARMS L.: SECOND THOUGHTS BLOG
in Texas, Rivas asserts that “racially biased enforcement of the deadly
weapon law [Texas’s 1871 public carry statute] evolved over time and
manifested itself during the 1890s . . . [and was] directly related to the
collapse of Black voting rights in Texas during that decade.”
101
Rivas
urges attention to the complexity and nuance of the historical record
in the Reconstruction era and contends that “the method most used
by gun rights advocates is that of freezing the story at its most conven-
ient time, or flattening the complexities to suit their argument.”
102
Similarly, Patrick Charles asserts that broad claims that most or all gun
control in the immediate post–Civil War era was racially motivated are
incorrect and that “[t]his is particularly true regarding the law of
armed carriage, where all persons, not just people of color, were often
restricted from carrying dangerous weapons within the public con-
course.”
103
It makes little sense to treat post–Civil War Southern gun regula-
tion as a monolith because Southern states varied widely in the degree
of Black participation in politics during and immediately after Recon-
struction; melding this history together also erases crucial distinctions
between the initial Reconstruction period, and its promise of a more
equal society, and the latter collapse of such efforts during so-called
Southern redemption. One common narrative is that gun control
measures “appeared” at the same time that white Southern Democrats
began to win large majorities in former Confederate states near the
end of Federal Reconstruction.
104
As historian Eric Foner notes, how-
ever, “Reconstruction was part of the ongoing evolution of Southern
society rather than a passing phenomenon.”
105
Moreover, treating
Black citizens as “passive victims of the actions of others” ignores their
role as “active agents in the making of Reconstruction, whose quest for
individual and community autonomy did much to establish
(Jan. 20, 2022), firearmslaw.duke.edu/2022/01/the-problem-with-assumptions-re-
assessing-the-historical-gun-policies-of-arkansas-and-tennessee [https://perma.cc/QCL5-
93YU].
101 Brennan Gardner Rivas, Enforcement of Public Carry Restrictions: Texas as a Case Study,
55 U.C. DAVIS L. REV. 2603, 2619 (2022).
102 Id. at 2622.
103 Patrick J. Charles, Racist History and the Second Amendment: A Critical Commentary, 43
CARDOZO L. REV. 1343, 1362 (2022). Charles also argues that the “racist gun control” ar-
gument is in substantial tension with “the argument that Southern compulsory arms bear-
ing laws—laws intended to help suppress and subdue slave revolts—were indicative that the
Second Amendment protected broad carry rights.” Id. at 1367 n.119.
104 See, e.g., David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms
Before 1900, 50 J. LEGIS. 223, 323–24 (2024) (observing that in 1874 Arkansas “elected Dem-
ocratic majorities and ended Reconstruction,” id. at 323, and that a concealed carry ban
followed the next year).
105 Eric Foner, The Continuing Evolution of Reconstruction History, OAH MAG. HIST., Win-
ter 1989, at 11, 13.
Reconstruction’s political and economic agenda.”
106
At times, Black
legislators who served after the formal end of Reconstruction were in-
volved in enacting gun regulation, including concealed-carry and loca-
tional restrictions.
107
The immediate post-Reconstruction period resulted, for a short
period of time, in highly integrated state governments in Southern
states, Black participation in the political process, and the election of
Black representatives and senators. As Foner notes, “[b]lack office-
holding was unknown in the slave South and virtually unheard of in
the free states as well,” such that the Reconstruction-era inclusion of
Black citizens within the political community (and subsequent election
of Black politicians at the local, state, and federal levels) was perhaps
the most “dramatic . . . break with the nation’s traditions” that fol-
lowed the Civil War.
108
Foner is careful to observe that “[n]owhere in
the South did Blacks control the workings of state government, and
nowhere did they hold office in numbers commensurate with their
proportion of the total population.”
109
Yet “over 1,500 blacks occupied
positions of political authority in the South,” many were “men of un-
common backgrounds and abilities,” and “Southern black officehold-
ing did not end immediately with the overthrow of Reconstruction.”
110
B. Legislative Complexity
During this fleeting period of Black participation in Southern-
state politics, legislators—including Black representatives and (mostly
Republican) whites elected by Black voters—enacted sweeping and, in
some cases, unprecedented public carry regulations in certain states.
It is important to note here that, as of 1870, the vast majority of Black
citizens lived in states of the former Confederacy; thus, the most in-
structive states for an examination of Black policy preferences during
this time period, to the extent such an examination is possible, are
106 Id. To return to Arkansas as a case study, see supra note 104, Democratic victories
in 1874 certainly transformed the political landscape but Black participation in state politics
did not immediately end. Some Black leaders broke with the Republican party to form
Fusionist coalitions, and the number of Black legislators rose and fell over the following two
decades, reaching twelve legislators in 1891. See Blake J. Wintory, African-American Legisla-
tors in the Arkansas General Assembly, 1868-1893, 65 ARK. HIST. Q. 385, 388–92 (2006); see also
Carl H. Moneyhon, Black Politics in Arkansas During the Gilded Age, 1876-1900, 44 ARK. HIST.
Q. 222 (1985).
107 For example, nine Black legislators served in Arkansas in 1875 when the State en-
acted its concealed carry ban. See Wintory, supra note 106, at 389.
108 ERIC FONER, FREEDOM’S LAWMAKERS: A DIRECTORY OF BLACK OFFICEHOLDERS
DURING RECONSTRUCTION, at xi (rev. ed. 1996).
109 Id. at xiv.
110 Id. at xiv, xvi, xxix.
former Confederate and border states with sizable Black popula-
tions.
111
In a number of these states, firearm regulations were enacted
in the post–Civil War period with the support of Black legislators spe-
cifically to protect the Black population from racist violence perpe-
trated with firearms.
For example, in 1870, Louisiana passed a law banning the public
carry of firearms within a half-mile radius around any voter registration
site during election day.
112
The provision was part of a larger bill to
“regulate the conduct and to maintain the freedom and purity of elec-
tions” and to “prevent fraud, violence, intimidation, riot, tumult, brib-
ery or corruption at elections.”
113
Black state representatives in the
Louisiana legislature voted 28–0 in favor of the bill, and Black senators
voted 5–0 in favor.
114
The bill did not pass with unanimous or near-
unanimous support; rather, twenty-six representatives and twelve sen-
ators (all white) voted against it. P.B.S. Pinchback, a Black Louisianan
who would go on to serve briefly as the state’s Lieutenant Governor
and acting Governor, was among those voting in favor. This law—and
unified Black support for it—is hardly surprising in light of the racial-
ized violence that racked Louisiana in the immediate post–Civil War
period.
115
Of note here is the fact that racialized violence was often
closely connected to voting as white Democrats used intimidation,
threats, and acts of violence (at times, including firearms) to deter
Black citizens from running for office and voting in state and federal
elections.
116
111 According to the 1870 census, there were 4.88 million Black individuals in the
United States. Of that number, almost 3.96 million, or 81.1%, lived in states of the former
Confederacy. An additional 500,000-plus Black individuals lived in border states such as
Kentucky, Maryland, and Missouri. See 1 FRANCIS A. WALKER, NINTH CENSUS 5 tbl.1 (Wash-
ington, Gov’t Printing Off. 1872). The Black population in the North and West at the time
was, for the most part, too small to have any meaningful impact on the political process in
those states.
112 Act of Mar. 16, 1870, no. 100, § 73, 1870 La. Acts 145, 159–60.
113 Id. at 145.
114 See DAVID R. POYNTER LEGIS. RSCH. LIBR., MEMBERSHIP IN THE LOUISIANA HOUSE
OF REPRESENTATIVES, 1812–2028 (rev. 2024); OFFICIAL JOURNAL OF THE PROCEEDINGS OF
THE HOUSE OF REPRESENTATIVES OF THE STATE OF LOUISIANA 235–36 (1870); OFFICIAL
JOURNAL OF THE PROCEEDINGS OF THE SENATE OF THE STATE OF LOUISIANA 110 (1870).
115 E.g., Michael J. Pfeifer, The Origins of Postbellum Lynching: Collective Violence in Recon-
struction Louisiana, 50 LA. HIST.: J. LA. HIST. ASS’N 189, 197 (2009) (describing how the elec-
tion of 1868 “precipitated a wide-scale ‘Counter Reconstruction’ across the state as con-
servative white Louisianians mobilized against the Radical Republicans by forming
paramilitary organizations . . . [and] unleashed a vast wave of violence against African
Americans and white Republican Unionists”).
116 See id. See generally Lou Falkner Williams, Federal Enforcement of African American
Voting Rights in the Post-Redemption South: Louisiana and the Election of 1878, 55 LA. HIST.: J.
LA. HIST. ASS’N 313 (2014) (explaining the numerous instances of violence committed by
As Brennan Rivas has shown, Texas was at the forefront of public
carry regulation in the early 1870s and also had many counties dispar-
ately “affected by lynching, electoral fraud, and vicious behavior to-
ward Black citizens.”
117
At the time, Texas had the highest murder rate
in the country, and Black citizens bore the brunt of this violence, which
was rarely prosecuted.
118
In 1871, the Republican-dominated Texas
state legislature passed a broad ban on the open and concealed carry-
ing of firearms in public by those without “reasonable grounds for fear-
ing an unlawful attack on [the] person.”
119
The law also contained
prohibitions on the public carry of firearms at schools, churches, elec-
tion precincts, shows and other public exhibitions, social gatherings,
and other places of public assembly.
120
The law was, arguably, the
broadest restriction on public carry up to that point in American his-
tory, and it was discussed at length in Bruen and has been invoked in a
number of post-Bruen Second Amendment cases.
121
At the time the
law was passed, twelve of the seventy-five representatives in the state
legislature were Black (as were two of the twenty-six senators).
122
These
fourteen Black legislators voted unanimously in favor of the bill.
123
In
both Louisiana and Texas, then, the first Black elected representatives
uniformly saw the need for and utility of gun regulations to promote
whites during the 1878 election in Louisiana, many of which involved the shooting of Black
voters, candidates, and political leaders).
117 Rivas, supra note 100, at 2616; see also WILLIAM D. CARRIGAN, THE MAKING OF A
LYNCHING CULTURE: VIOLENCE AND VIGILANTISM IN CENTRAL TEXAS, 1836–1916, at 3
(2004). See generally STILL THE ARENA OF CIVIL WAR: VIOLENCE AND TURMOIL IN
RECONSTRUCTION TEXAS, 1865–1874 (Kenneth W. Howell ed., 2012).
118 See Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruc-
tion Texas, 4 TEX. A&M L. REV. 95, 98–100 (2016) (noting that “the murder rate in Texas
during the period from 1860 to 1868 was forty-five times that in New York,” id. at 98, and
that “between 1865 and 1867, for every white person murdered by a black person, thirty-
seven black people were murdered by whites,” id. at 100).
119 Act of Apr. 12, 1871, ch. 34, § 1, 1871 Tex. Gen. Laws 1st Sess. 25, 25.
120 Id. § 3, at 25–26.
121 See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2153 (2022); see also
Koons v. Platkin, 673 F. Supp. 3d 515, 632 (D.N.J. 2023) (considering the law and conclud-
ing it was not representative under Bruen), appeals docketed sub nom. Koons v. Att’y Gen. N.J.,
Nos. 23-1900, 23-2043 (3d Cir. argued Oct. 25, 2023); Brennan Gardner Rivas, An Unequal
Right to Bear Arms: State Weapons Laws and White Supremacy in Texas, 1836–1900, 121 SW.
HIST. Q. 284, 295 (2018) (explaining how the 1871 law was a “complete[] overhaul[]” of
existing gun laws and forbade carrying firearms in public, with only a few exceptions).
122 See Texas Legislators: Past & Present, LEGIS. REFERENCE LIBR. OF TEX.,
lrl.texas.gov/legeleaders/members/lrlhome.cfm (in “Legislature” field select
“12th (1871)”).
123 See Frassetto, supra note 118, at 106; see also JOURNAL OF THE HOUSE OF
REPRESENTATIVES OF THE TWELFTH LEGISLATURE 523–32 (Tex. 1871); SENATE JOURNAL OF
THE TWELFTH LEGISLATURE OF THE STATE OF TEXAS 552–54 (1871).
public safety, protect Black lives, and safeguard Black political partici-
pation.
In 1868, just three years after the end of the Civil War, Florida
enacted a ban on manufacturing or selling slungshots and carrying cer-
tain concealed weapons, including dirks and pistols.
124
Slungshots
were restricted in a number of states in the mid-to-late 1800s—while
most states restricted the concealed carry of slungshots, Florida’s ban
was broader in that it targeted manufacturing and sale.
125
This provi-
sion was part of a wide-ranging bill addressing crime, punishment, and
criminal procedure.
126
Florida was no exception to the general trend
of intense, racialized violence throughout the South during the early
years of Reconstruction—and, often, that violence was intimately con-
nected to firearms and other deadly weapons.
127
The Florida slungshot
and concealed-carry restrictions passed with the overwhelming support
of the eighteen Black representatives and senators then serving in the
state legislature: fifteen Black representatives voted in favor with only
one opposed, and both Black senators supported the law.
128
In each
instance, then, firearms regulation strongly supported by Black repre-
sentatives and senators was passed during a prolonged wave of racial-
ized violence that included the use of firearms to terrorize and intimi-
date the state’s Black population. Just these three examples
demonstrate that stringent gun regulations were passed with over-
whelming support from Black legislators serving in the early Recon-
struction era. It would be exceedingly strange, then, if these laws were
motivated by discriminatory intent or designed to apply in a racist man-
ner.
To be sure, certain gun regulations enacted during this time in
Southern states bear the clear hallmarks of discriminatory, racist taint,
perhaps meeting even the exacting standard the Court has utilized in
124 Act of Aug. 6, 1868, ch. 1,637 (no. 13), ch. VII, §§ 11, 14, 1868 Fla. Acts 61, 95.
125 A slungshot is “a rope looped on both ends, with a lead weight or other small,
dense item at one end.” David Kopel, Bowie Knife Statutes 1837-1899, REASON: VOLOKH
CONSPIRACY (Nov. 20, 2022, 12:53 PM), reason.com/volokh/2022/11/20/bowie-
knife-statutes-1837-1899/ [https://perma.cc/69PY-TSTQ].
126 Act of Aug. 6, 1868.
127 See DANIEL R. WEINFELD, THE JACKSON COUNTY WAR: RECONSTRUCTION AND
RESISTANCE IN POST–CIVIL WAR FLORIDA, at xi–xii (2012) (detailing the early Reconstruc-
tion-era period of violence in Florida known as the Jackson County War, during which at
least 100 murders of mostly Black citizens took place); Ralph L. Peek, Aftermath of Military
Reconstruction, 1868-1869, 43 FLA. HIST. Q. 123, 132, 139 (1964) (describing the period of
intense racial and political violence in Florida in 1868 and 1869, which involved the use of
firearms to murder several Black citizens). See generally PAUL ORTIZ, EMANCIPATION
BETRAYED: THE HIDDEN HISTORY OF BLACK ORGANIZING AND WHITE VIOLENCE IN FLORIDA
FROM RECONSTRUCTION TO THE BLOODY ELECTION OF 1920 (2005).
128 A JOURNAL OF THE PROCEEDINGS OF THE ASSEMBLY OF THE STATE OF FLORIDA, 1st
Sess., at 174 (1868); JOURNAL OF THE SENATE, 1st Sess., at 171 (Fla. 1868).
cases such as Davis, McCleskey, and their progeny.
129
One commonly
cited authority on this point is a 1920 Ohio Supreme Court decision
where, dissenting from the court’s decision to uphold a concealed-
carry ban, a judge noted that Southern decisions endorsing concealed-
carry laws were suspect because “the race issue there has extremely in-
tensified a decisive purpose to entirely disarm the negro, and this pol-
icy is evident upon reading the opinions.”
130
Yet many scholars focus
narrowly on such statements while missing the overpowering evidence
that other post–Civil War firearms regulation in the South was moti-
vated by a desire to protect Black lives and political freedom.
C. Enforcement Complexity: North Carolina’s 1879 Concealed-Carry Ban
1. Historical Context
North Carolina, like many former Confederate states, strongly re-
sisted Black suffrage in the immediate post–Civil War years.
131
The
state’s white government enacted a series of “Black Codes” in 1865 and
1866, including a ban on interracial marriage, strict vagrancy laws, and
rules restricting the right of Black citizens to testify in court.
132
James
Browning observes that the intent of such laws was that “[t]he Negro
was to be . . . restricted to such an extent that he would be reduced
almost to peonage.”
133
These laws, which at times maintained facially
discriminatory elements even while representing a general move to-
ward facial neutrality with intended discriminatory impact, included
laws restricting the unlicensed possession of certain firearms by Black
citizens.
134
After North Carolina—along with other former Confederate
states—ratified the Fourteenth Amendment in 1868,
135
Black
129 See supra Section I.B; see also Robert J. Cottrol & Raymond T. Diamond, “Never In-
tended to Be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Re-
deemed South’s Legacy to a National Jurisprudence, 70 CHI.-KENT L. REV. 1307 (1995).
130 State v. Nieto, 130 N.E. 663, 669 (Ohio 1920) (Wanamaker, J., dissenting).
131 WILLIAM ALEXANDER MABRY, THE NEGRO IN NORTH CAROLINA POLITICS SINCE
RECONSTRUCTION 10–11 (1940).
132 James B. Browning, The North Carolina Black Code, 15 J. NEGRO HIST. 461, 465, 467
(1930); see also Act of Mar. 10, 1866, ch. 40, 1866 N.C. Pub. Laws Spec. Sess. 99.
133 Browning, supra note 132, at 471.
134 See John Thomas Warlick, IV, “What’s Past Is Prologue”: North Carolina’s Forgot-
ten Black Code 29–30 (2020) (M.A. thesis, University of North Carolina at Charlotte)
(ProQuest). See generally Robert J. Cottrol & Raymond T. Diamond, The Second Amendment:
Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 333–42 (1991).
135 The state legislature initially “overwhelmingly rejected” the amendment in 1866,
and then passed it two years later—likely under the belief that the amendment’s guarantee
of substantive rights to free Black citizens would be highly limited. See James E. Bond, Rat-
ification of the Fourteenth Amendment in North Carolina, 20 WAKE FOREST L. REV. 89, 90, 112–
legislators continuously made up a small minority of the state legisla-
ture during the early Reconstruction period and even after the formal
end of Federal Reconstruction in 1876.
136
North Carolina continued
to elect Black state legislators well into the 1880s, with seventeen Black
representatives elected to statewide office in 1886, for example.
137
Even up to 1894, “when Republicans and Populists united to defeat the
Democrats and take over the General Assembly,” Black voters contin-
ued to exercise substantial political influence in certain areas of the
state.
138
Black legislators were represented in state politics until the
state passed a literacy test requirement in 1900 that effectively disen-
franchised the state’s entire Black population—not one Black individ-
ual would serve in the North Carolina state legislature from 1900 to
1968.
139
One specific example of the Reconstruction-era influence of
Black voters is the city of Wilmington in New Hanover County. In
1860, Wilmington was North Carolina’s most populous city and the
thirteenth largest city in what would become the Confederacy.
140
The
city was, at times during the Reconstruction era, significantly more in-
tegrated than the state as whole and “an exceptional case” in North
Carolina.
141
William Alexander Mabry notes that, while under
13 (1984) (“The second amendment guarantees the right to bear arms. If the conservatives
had suspected that section 1 guaranteed blacks that right, they would have protested angrily
because armed blacks terrified them. The silence of conservative opponents about the due
process clause proves that no one believed that it protected any substantive rights . . . .”).
136 See Benjamin R. Justesen, “The Class of ’83”: Black Watershed in the North Carolina
General Assembly, 86 N.C. HIST. REV. 282, 282 (2009) (“By the autumn of 1882, the presence
of African American legislators had become commonplace in the General Assembly.”).
137 Id. at 283.
138 Id.; see also William Alexander Mabry, Negro Suffrage and Fusion Rule in North Caro-
lina, 12 N.C. HIST. REV. 79, 85 (1935) (“Though the Negro vote did not contribute very
materially to the Fusion victory [of 1894], the overthrow of the Democratic majority in the
Legislature soon brought the Negro actively into the political arena.”); id. at 88 (observing
that Fusionist changes to election rules increase Black voting and that “Negro office-hold-
ing, exceptional during the years of Democratic rule, became quite common in the Black
Belt after” 1895). While Mabry was squarely within the so-called “Dunning School” of his-
torians criticizing Southern Republican Reconstruction governments for corruption and
inefficiency, he also allows that “Republican rule in North Carolina . . . [is] not as open to
condemnation as that in certain other Southern states.” MABRY, supra note 131, at 11.
139 Brenda Sullivan, Even at the Turning of the Tide: An Analysis of the North Carolina Leg-
islative Black Caucus, 30 J. BLACK STUD. 815, 818 (2000); Milton C. Jordan, Black Legislators:
From Political Novelty to Political Force, N.C. INSIGHT, Dec. 1989, at 40.
140 See N.C. Div. of State Historic Sites & Props., Blockade Running 4 (Dec. 13, 2022),
historicsites.nc.gov/blockade-runner-activitydocxpdf/open [https://perma.cc
/UC42-W5K8].
141 MABRY, supra note 131, at 39; see also DAVID ZUCCHINO, WILMINGTON’S LIE: THE
MURDEROUS COUP OF 1898 AND THE RISE OF WHITE SUPREMACY 67 (2020) (“Nowhere else
in the South during post-Reconstruction did whites and blacks so successfully unite in a
multiracial political partnership.”).
Fusionist control, “the Negro soon came into his own in local and state
politics [and i]n New Hanover County forty Negro magistrates were
appointed during the years 1895-1899.”
142
North Carolina was among the Southern states to prohibit the
concealed carry of certain weapons during the Reconstruction era.
143
Bans on concealed carry were common throughout the 1800s, and
“[t]he mainstream approach . . . was to ban concealed carry, to forbid
sales to minors, or to impose extra punishment for criminal misuse.”
144
The state also regulated guns in other ways during the time period
when a small group of Black legislators continued to serve and some
Black suffrage was permitted. For example, the North Carolina state
legislature passed a law criminalizing the pointing of firearms and a
statute banning the sale of certain weapons, including pistols, to mi-
nors during this period.
145
The state’s 1879 concealed-carry law passed with substantial sup-
port in the state legislature, which included nine Black representa-
tives.
146
Of the nine Black representatives listed in the official compen-
dium of the state legislature, five voted in favor of the concealed-carry
ban and four voted against.
147
Both Black state senators voted against
advancing earlier versions of the bill, although no voting record is
available of the Senate’s final roll-call vote on the bill at the end of
February 1879.
148
Notable Black representatives voted in favor of the
bill, including Stewart Ellison of Wake County, a freed slave and
142 MABRY, supra note 131, at 39.
143 The law banned concealed carry of “any pistol, bowie-knife, dirk, dagger, slung-
shot, loaded cane, brass, iron or metallic knuckles, or other deadly weapon.” Act of Mar.
5, 1879, ch. 127, §§ 1, 2, 4, 1879 N.C. Laws 231, 231. The statute also provided that any
individual found with such a weapon outside of his or her home would, in the eyes of the
law, have presumptively concealed that weapon. The law was ultimately repealed and re-
placed by a shall-issue permitting system in 1995, which remains in place today. See Con-
cealed Handguns Reciprocity, N.C. DEP’T OF JUST., ncdoj.gov/law-enforcement-train-
ing/law-enforcement-liason/concealed-weapon-reciprocity [https://perma.cc/YG6Z-
TDE7].
144 Kopel & Greenlee, supra note 104, at 227.
145 Act of Mar. 11, 1889, ch. 527, § 1, 1889 N.C. Laws 502, 502 (statewide law prohibit-
ing pointing of firearms); Act of Mar. 6, 1893, ch. 514, 1893 N.C. Pub. Laws 468 (statewide
ban on the sale of certain weapons, including pistols, to minors).
146 See J.S. TOMLINSON, TAR HEEL SKETCH-BOOK: A BRIEF BIOGRAPHICAL SKETCH OF
THE LIFE AND PUBLIC ACTS OF THE MEMBERS OF THE GENERAL ASSEMBLY OF NORTH
CAROLINA (Raleigh, Raleigh News Steam Book & Job Print 1879) (listing nine Black repre-
sentatives and two Black senators); see also MABRY, supra note 131, at 24 (stating that the
1879 General Assembly included nine Black representatives).
147 See JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE GENERAL ASSEMBLY OF THE
STATE OF NORTH CAROLINA 481–82 (1879) [hereinafter N.C. H.R. JOURNAL].
148 See JOURNAL OF THE SENATE OF THE GENERAL ASSEMBLY OF THE STATE OF NORTH
CAROLINA 227–29 (1879).
educated businessman residing in Raleigh who “built schools, hospi-
tals and offices for the Freedmen’s Bureau and other agencies.”
149
Representative John Steele Henderson of Rowan County,
150
a Demo-
crat who ultimately voted against the bill, first proposed an amendment
to insert a complete ban on “manufactur[ing] any of said arms in the
State,” which was rejected.
151
a. Methodology
With the assistance of a group of student research assistants, I con-
ducted a review of enforcement records for the 1879 North Carolina
concealed-carry ban in New Hanover County from 1879 (when the law
was enacted) through 1908. The records are housed at the North Car-
olina State Archives in Raleigh, where they are organized by county
149 See Catherine W. Bishir & Elizabeth Reid Murray, Ellison, Stewart (1834-1899), N.C.
ARCHITECTS & BUILDERS: A BIOGRAPHICAL DICTIONARY (2009), ncarchi-
tects.lib.ncsu.edu/people/P000337 [https://perma.cc/PWR6-M864].
150 TOMLINSON, supra note 146, at 34–35. Henderson’s profile notes, “Mr. Henderson
is a strong Democrat, but strange as it may seem, received every colored vote cast at the
Salisbury and Mocksville precincts.” Id. at 35.
151 N.C. H.R. JOURNAL, supra note 147, at 481–82.
152 E.g., Gallo, supra note 99, at 535–36 (“[W]hen taken in context with the actions of
surrounding states and the attitudes regarding minorities at the time of enactment, [North
Carolina’s 1919 permit-to-purchase law was intended] to keep minorities from possessing
handguns.”).
153 See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2152 n.27 (2022) (sug-
gesting that discriminatory enforcement of some “Southern prohibitions on concealed
carry” may mean that all such laws are suspect as potential historical analogues).
154 This work has been done in certain instances already, see, e.g., Rivas, supra note 101,
and has clear advantages over an approach that uses only more easily accessible sources
such as historical newspaper databases—as scholars who have used newspaper databases
recognize, see Leider, supra note 3, at 254. Compared to newspaper research, reviewing
contemporary court records is more likely to provide a full picture of enforcement over
time and avoid various latent biases.
and court and can be viewed by any member of the public.
155
The pro-
ject focused initially on court minute books, which generally recorded
developments in misdemeanor criminal cases over time: arraignments,
pleas, trials, and so on. The minute books typically list the defendant’s
name, the offense(s) charged, the case disposition, and the adjudica-
tion and sentence imposed (if any). There are multiple entries for
each case, representing each time the court acted with regard to a par-
ticular defendant. The records are likely not a comprehensive record
of enforcement—for one, certain years within the 1879–1908
timeframe are missing.
156
Research assistants reviewed all enforcement
records regardless of outcome—in other words, instances where the
defendant received a criminal sentence (after either pleading guilty or
a guilty verdict at trial), instances where the defendant was acquitted,
and instances where the State ultimately chose not to pursue the case.
The court records do not list the race of the defendant.
Race was determined by cross-referencing the available infor-
mation from these records with other historical materials. This was
first done using the genealogical website Ancestry.com, which hosts a
database of historical demographic information (race, age, occupa-
tion, and so on)
157
that can be searched by name, location, and date.
158
The data were then vetted by cross-referencing with contemporary
newspaper accounts, specifically accounts of criminal proceedings
published regularly in the Wilmington Morning Star, The Wilmington
Messenger, and The Semi-weekly Messenger during the relevant period.
These newspaper reports frequently noted the race of defendants in
various criminal proceedings.
The initial racial classifications obtained through Ancestry.com
yielded a concealed-carry prosecution data set that mirrored the
155 See Guide to Research Materials in the North Carolina State Archives: New Hanover County,
STATE ARCHIVES OF N.C., archives.ncdcr.gov/guide-research-materials-north-caro-
lina-state-archives-new-hanover-county-0 [https://perma.cc/M7Q6-X35T].
156 The project reviewed the following court records: New Hanover County Criminal
Court Minutes, 1877–1880 (C.R. 070.331.2); New Hanover County Criminal Court Minutes,
1880–1884 (C.R. 070.331.3); New Hanover County Criminal Court Minutes, 1888–1895
(C.R. 070.331.4); New Hanover County Criminal Circuit Court Minutes, 1895–1901 (C.R.
070.331.5); New Hanover Superior County Court Minutes, 1902–1910 (C.R. 070.311.19
through C.R. 070.311.22).
157 ANCESTRY, www.ancestry.com [https://perma.cc/3E94-WJYH]. At times
race is indicated as “Mulatto” (or a variant spelling) or “Colored.” The results consider
these notations to indicate that the individual in question was Black. “Irish” is also used on
occasion, and the results consider that notation to indicate that the individual in question
was white.
158 Research assistants consulted Ancestry.com records for the census date closest to
each arrest and used additional information in the Ancestry.com database to narrow the
search; for example, they generally assumed that only those above the age of fifteen and
below the age of sixty-five would have been prosecuted for concealed-carry violations.
demographic makeup of New Hanover County during the relevant
time period almost exactly: within the set of prosecutions where race
was determined through Ancestry.com, 53.9% of prosecutions were
marked as Black individuals and the remaining 46.0% were marked as
white.
159
After the secondary review of newspaper accounts, those
numbers changed substantially as summarized below. The final num-
bers reflect a level of discriminatory enforcement against the county’s
Black population. It is difficult to pinpoint the exact reasons for this
shift. Many of the defendant names were both difficult to decipher
and relatively common. Some surnames, for example, were names that
both Black and white county residents had but, for various reasons, the
white residents may have been more likely to be accurately recorded
in contemporary census data (or, at least, the data that was eventually
uploaded to Ancestry.com).
It is worth emphasizing the complexity of the project and the time
it took to complete. The project required individual review of thou-
sands of pages of court minute books which have not been digitized.
It took a team of six student research assistants, managed by the exec-
utive director of the Duke Center for Firearms Law, approximately 500
total hours over the course of a full academic year to review and record
the relevant entries, cross-reference them with ancestry databases and
other contemporary sources to find the race of the defendant, and
then enter the data into a spreadsheet. The secondary newspaper re-
view took an additional 20 hours or more to complete. This work cov-
ered approximately thirty years of enforcement of the concealed-carry
law in a single North Carolina county; the state had approximately
eighty to ninety counties during the relevant time period.
160
A spread-
sheet containing the full data set and links to the underlying images of
the court records is available at firearmslaw.duke.edu/assets
/nc-concealed-carry-enforcement-data-1879-1908-(final).xlsx [https://
perma.cc/MZ3A-DSUV].
The initial work of even locating the relevant enforcement rec-
ords was particularly challenging. It appears that misdemeanor viola-
tions of the concealed-carry law may have been prosecuted in a variety
of different fora depending on the year, location of the offense, and
criminal history of the defendant. This review focused on court rec-
ords—records from the county criminal and superior courts—many of
159 For these initial results and more background, see Andrew Willinger, The History of
North Carolina’s 1879 Concealed Carry Ban: Part II, DUKE CTR. FOR FIREARMS L.: SECOND
THOUGHTS BLOG (May 26, 2023), firearmslaw.duke.edu/2023/05/the-history-of-
north-carolinas-1879-concealed-carry-ban-part-ii [https://perma.cc/DCU2-WL8H].
160 See NC County Formation, STATE LIBR. OF N.C., statelibrary.ncdcr.gov/gene-
alogy-and-family-history/family-records/nc-county-formation [https://perma.cc/RJ3J-
PQUF].
which are preserved and stored at the State Archives. However, con-
cealed-carry cases were also brought in the less formal Wilmington
“Mayor’s Court,” where the city’s mayor sat as judge and sentencing
authority, and such jurisdiction sharing was not unusual at the time.
161
Based on this author’s investigation, it appears highly unlikely that any
Mayor’s Court records from the relevant time period were preserved
and exist today; the only relevant information about proceedings be-
fore the Mayor’s Court comes in the form of newspaper articles report-
ing on proceedings and convictions,
162
although there is no way to ver-
ify how thorough local newspaper coverage was, and it is almost certain
that some proceedings were not reported in the papers. From the con-
temporary newspaper accounts, it seems that a substantial number of
concealed-carry cases were referred from the Mayor’s Court to the
county criminal court (or vice versa)—meaning that it is often not pos-
sible to follow a single case that was brought in the criminal court from
start to finish solely from surviving judicial records.
163
The handwriting
of the court minute books was often difficult to read, meaning that
some number of prosecutions had to be left out of the analysis due to
the inability to accurately identify the defendant’s name.
164
This is
likely a major reason for the divergence between the initial and final
161 One noted historian of the North Carolina state courts informed the author that
“[i]t was notorious that the NC court system—if it was a system at all—was a mess until its
rationalization in the 1960s.” Email from John V. Orth, William Rand Kenan Jr. Professor
of Law Emeritus, Univ. of North Carolina at Chapel Hill, to author (Feb. 21, 2023) (on file
with author).
162 See, e.g., Mayor’s Court, MORNING STAR (Wilmington), Feb. 11, 1885 (stating that a
case involving a “colored” man who had carried a concealed knife was brought before the
Mayor’s Court, but that the defendant was released).
163 See, e.g., Local Dots, MORNING STAR (Wilmington), May 26, 1903 (noting that a de-
fendant arrested with “a deadly weapon on his person . . . was bound over to the higher
court by Mayor Springer”).
164 In fact, at times even contemporary reporters may have struggled to decipher the
handwriting of the court reporters. For example, the Wilmington Morning Star reported in
1882 that a man named “Tom Chavis” was prosecuted for and convicted of violating the
concealed carry law. Criminal Court, MORNING STAR (Wilmington), Oct. 5, 1882. “Chavis,”
however, appears to be a mistranscription of “Chavers” due to the handwriting used in the
court reports; a story in the same newspaper two weeks later listed the defendant’s name
correctly as “Chavers” and reported the race of Mr. Chavers and his codefendant James
Cowan. Convicts of the Criminal Court, MORNING STAR (Wilmington), Oct. 17, 1882.
racial classification numbers. As just one example, consider the follow-
ing entry from the 1896 county criminal court records:
A survey of crime blotters in Wilmington newspapers at the time
ultimately revealed this defendant’s name (Cato Littleton) and race
(white)
165
:
Another example of nearly indecipherable handwriting is below:
A review of contemporaneous newspapers determined that this entry
referred to a Black man named Owen Dove.
166
165 Criminal Circuit Court, MORNING STAR (Wilmington), Jan. 8, 1896.
166 As with many other defendants, verifying race through newspapers reports was a
multistep process. Several papers reported on Dove’s concealed-carry case but without ref-
erencing his race. See, e.g., Criminal Court, MORNING STAR (Wilmington), Apr. 27, 1897; The
Criminal Court, WILMINGTON MESSENGER, Apr. 27, 1897; The Criminal Court, THE SEMI-
WEEKLY MESSENGER (Wilmington), Apr. 30, 1897, at 6. Further research then revealed news-
paper coverage identifying Dove as “colored,” along with additional background about the
facts of the case. Was He the Shooter?, WILMINGTON MESSENGER, Apr. 18, 1897, at 4.
While contemporary newspaper accounts were useful for match-
ing defendant names and determining race, they presented several ad-
ditional challenges and drawbacks. Primarily, the newspaper accounts
were not consistent in providing the race of the defendants—perhaps
in part because they reported this information only when readily avail-
able. And the various Wilmington newspapers sometimes reported
this information differently. For example, a Black man—Neal Mur-
phy—was charged under the concealed-carry law in 1906 or 1907, pled
guilty, and received a sentence of hard labor. One Wilmington paper
reported on this development without any reference to Murphy’s race,
while noting that another defendant (George Davis) was “colored.”
167
An earlier report on the same case in a different newspaper, however,
identified Murphy as “colored.”
168
While thorough review of the news-
paper reports can identify certain trends (such as a tendency to refer
to Black defendants by their first and last names and white defendants
by their first initial, middle initial, and last name), it is difficult to draw
definite conclusions on this basis and we did not attempt to do so. The
inconsistent notation of race in newspapers, moreover, might skew the
results in important ways. For example, the reports appeared to most
frequently identify the race of Black defendants, and op-eds indicate
only slightly veiled desire to see the law applied to the Black population
specifically.
169
In other words, the Wilmington newspapers may have
had a vested interest in the appearance of discriminatory enforcement
because that is what their readers expected to see.
In sum, the records reviewed are not a comprehensive picture of
enforcement of the concealed-carry ban in New Hanover County, and
it is unlikely that such a survey could ever be performed due to jurisdic-
tional complexity, the potential destruction of relevant records, and
the difficulties of relying on inconsistent newspaper reports.
170
The
complexity inherent in this project suggests the limits of what we can
ever know to a certainty about historical enforcement of laws such as
North Carolina’s 1879 concealed-carry ban. Moreover, the process for
investigating historical enforcement will likely vary substantially by lo-
cation—for example, Brennan Rivas’s similar efforts to unearth the en-
forcement record of public carry regulations in Reconstruction Texas
167 Superior Court in Session, WILMINGTON MESSENGER, Jan. 25, 1907, at 3.
168 Pithy Locals, WILMINGTON MESSENGER, Jan. 3, 1907, at 4.
169 See, e.g., State Press, WILMINGTON MESSENGER, Sept. 20, 1904, at 6 (“There are times
when it is probably necessary for some folks to carry a pistol, but the habit in some sections,
especially among the boys, is becoming alarming.” (emphasis added)).
170 Cf. Ruben & Cornell, supra note 27, at 130–31 n.53 (“[T]raditional case law re-
search is not especially probative of the application of [surety laws] . . . . [I]n many cases
those records did not survive the passage of time, and those that did are not well indexed
or digitally searchable.”).
could not draw on newspaper accounts as a backstop because the con-
temporaneous Texas newspapers almost never reported on such devel-
opments or mentioned the race of criminal defendants.
171
b. Results
Demographic data for New Hanover County helps provide con-
text for the results. The racial makeup of the county changed dramat-
ically during the period of our study—the percentage of Black county
residents declined from 62% to 48% from 1880 to 1910, while the white
population correspondingly increased.
172
This decline was due in no
small part to the 1898 white supremacist insurrection and massacre
that overthrew Wilmington’s integrated Fusionist government, perma-
nently banished many prominent Black leaders from the city, and re-
sulted in the deaths of hundreds of Black citizens.
FIGURE 1: DEMOGRAPHIC MAKEUP OF NEW HANOVER COUNTY OVER
TIME (PERCENTAGE OF TOTAL POPULATION)
The city of Wilmington itself had a similar demographic makeup
in the years leading up to 1900. According to an official City report on
the 1898 “race riot,” published in 2006, Wilmington itself was 60.3%
Black and 39.7% white in 1880 and 56.5% Black and 43.5% white in
171 By contrast, Rivas encountered fewer common surnames in Texas and thus was able
to rely more heavily on ancestry databases. See Email from Brennan Gardner Rivas to author
(Jan. 9, 2024) (on file with author). See generally Rivas, supra note 101.
172 See Willinger, supra note 159. A fire in 1921 destroyed a substantial portion of the
1890 census records, and the numbers for that census may be incomplete or based on pop-
ulation trends. See Kellee Blake, “First in the Path of the Firemen”: The Fate of the 1890 Popula-
tion Census, 28 PROLOGUE 64, 67 (1996).
0
10
20
30
40
50
60
70
187518801885189018951900190519101915
BlackWhite
Our review uncovered 264 total unique prosecutions under the
statewide concealed-carry law. We were unable to determine the race
of the defendant with confidence for some of these prosecutions—ei-
ther because the name was not listed in one of the databases we con-
sulted or because the name was common and associated with both
Black and white county residents at the time. Of the 264 total unique
prosecutions, we were able to identify the race of the defendant with a
high level of certainty for 195 prosecutions. As noted above, this was
done first through Ancestry.com and then cross-referenced against
contemporary newspaper reports.
TABLE: PROSECUTIONS UNDER CONCEALED-CARRY LAW IN NEW
HANOVER COUNTY (1879–1908)
That 80% of concealed-carry defendants were Black indicates a
strong level of discriminatory enforcement of the concealed-carry law,
even in a county (and city) that was over 60% Black in the initial years
surveyed. The simmering racial tensions in Wilmington and the sur-
rounding area leading up to the 1898 coup likely contributed to these
statistics, although there were a substantial number of Black citizens in
leadership and authority positions in the Wilmington city government
during the 1890s, all the way up to 1898.
175
Two potentially fruitful
avenues of future research that might help provide additional context
173 See 1898 WILMINGTON RACE RIOT COMM’N, 1898 WILMINGTON RACE RIOT REPORT
33 (2006).
174 Because a few reports did mention that the defendants had merely been passing
through the area, it seems likely that those reports that omitted such references generally
related to Wilmington residents. See, e.g., Criminal Court, WILMINGTON MESSENGER, Sept.
27, 1905, at 8 (describing concealed-carry charges brought against “two Croatans [members
of a Native American tribe] who came here on an excursion and when arrested for disor-
derly conduct were found to have concealed weapons on their person”).
175 See, e.g., Wilmington’s Fusion Rule, SEMI-WEEKLY MESSENGER (Wilmington), Sept. 13,
1898, at 3 (newspaper report, laced with racist vitriol, detailing the number of African-
American government officials and leaders in Wilmington, identifying “eighty-six negro
office-holders” including three aldermen, thirteen policemen, and forty magistrates).
Number of Prosecutions Percentage
Black 156 80.0%
White 39 20.0%
Total 195 100.0%
for these numbers are (1) research into how the law was enforced at
the same time in other North Carolina counties with a substantial
Black population, and (2) research into how similar public safety laws
and regulations were enforced in Wilmington at the same time.
176
Interestingly, the enforcement picture with regard to the 1879 law
in New Hanover County remained relatively stable over time. This is
true even when using the 1898 Wilmington insurrection as an inflec-
tion point. One might initially suspect that the coup—which was
driven in part by white fear that Black citizens were stockpiling fire-
arms
177
—produced a government much more willing to enforce fire-
arm restrictions in a discriminatory manner by targeting the Black pop-
ulation. We reviewed a subset of 164 prosecutions (56 prior to and
including 1898 and 108 after that year) in which we could confidently
identify the defendant’s race and the year of the charge.
178
From 1879
to 1898, 80.3% of prosecutions were of Black defendants and 19.6% of
prosecutions were of white defendants. From 1899 to 1908, 79.6% of
prosecutions were of Black defendants and 20.4% of prosecutions were
of white defendants.
FIGURE 2: SAMPLE OF CONCEALED-CARRY PROSECUTIONS BY YEAR
Sentences imposed for concealed-carry violations varied widely.
Of the 39 white prosecutions in the data set, only 5 (or 12.8%) resulted
176 See, e.g., City Court, DAILY REV. (Wilmington), July 31, 1880 (describing the prose-
cutions of two “colored” men each charged with selling certain products—vegetables or
fresh meat—without an appropriate license).
177 See, e.g., Negroes Buying Guns, NEWS & OBSERVER (Raleigh), Nov. 1, 1898, at 1.
178 The exact date of each prosecution was sometimes unclear because some minute
book entries were undated and the volumes themselves spanned multiple years.
0
10
20
30
40
50
60
70
80
90
100
1897–18981899–1908
Black defendantsWhite defendants
in a prison sentence or hard labor. By contrast, 39 out of the 156 Black
prosecutions resulted in a sentence of prison time or hard labor, or
25%. This disparity, although based on a relatively small sample size,
suggests some level of discriminatory sentencing for concealed-carry
violations and warrants further research.
179
If one is to take Bruen’s references to enforcement history as a
serious directive to examine historical nuance and follow where it
leads, even painstaking archival research into historical gun law en-
forcement may leave more questions than answers. In Wilmington and
New Hanover County, for example, it seems quite clear that there was
some level of discriminatory enforcement of the concealed-carry law
against the Black population from 1879 to 1909. But determining the
exact level of discrimination is nearly impossible due to the difficulty
of unearthing a complete record—which makes sweeping conclusions
about enforcement of the type that would likely be needed for use in
judicial proceedings a perilous undertaking.
CONCLUSION
In Bruen, the Court frames its holding as merely leveling the play-
ing field: the historical test the Court adopts, it says, “accords with how
we protect other constitutional rights.”
180
That statement is almost cer-
tainly inaccurate at face value, as most other areas of constitutional law
do not currently employ a strictly historical-analogical implementing
test.
181
However, to the extent the Court is serious about placing the
Second Amendment on an equal playing field and limiting judicial dis-
cretion, its underarticulated approach to historical enforcement evi-
dence and discriminatory taint within the historical-analogical test
should take lessons from other areas of constitutional law.
Bruen appears to place the burden on the government to refute
any suggestion that historical gun regulations were motivated by dis-
criminatory intent or enforced in a discriminatory manner after enact-
ment. The majority opinion, in a footnote observing scholarly re-
search suggesting that surety laws may have been rarely or
discriminatorily enforced, responded to concerns raised in Justice
Breyer’s dissent by noting that “the burden rests with the government to
179 This may reflect other discriminatory aspects of the state criminal system at the time
which may have made it far more likely for Black citizens to have criminal history relevant
to sentencing, or broad judicial discretion in sentencing that gave expression to judicial
(rather than legislative) bias.
180 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022).
181 See, e.g., Blocher & Ruben, supra note 20, at 133; see also Timothy Zick, Second Amend-
ment Exceptionalism: Public Expression and Public Carry, 102 TEX. L. REV. 65, 68 (2023) (“In
general terms, Bruen’s methodology does not comport or accord with how First Amend-
ment rights are interpreted.”).
establish the relevant tradition of regulation . . . [and a] barren record
of enforcement [is] simply one additional reason to discount [a histor-
ical law’s] relevance.”
182
Allocating the burden of proof in this way—a
principle Bruen appears to embrace for both discriminatory enforce-
ment and nonenforcement—is inconsistent with the Court’s past deci-
sions outside of the Second Amendment and in substantial tension
with the Court’s normal approach of considering any conceivably
proper legislative purpose as conclusively refuting discriminatory taint
arguments.
The conventional rule placing the burden of proving a discrimi-
natory legislative motive on the challenger appears to be a recognition
of the fact that government action—including passing legislation—is
normally entitled to an initial presumption of good faith.
183
This is a
long-standing and well-established concept in the law, one that extends
not just to legislatures but generally to all government actors.
184
It is
also a very difficult presumption to refute, in part because the Court
has explained that “[i]nquiries into congressional motives or purposes
are a hazardous matter” and that any legislative act which could have
been enacted for a proper purpose will not be voided due to state-
ments from some legislators suggesting an improper personal motiva-
tion.
185
As one commentator notes, “[o]vercoming the shield of good
faith is no easy task.”
186
While it is beyond the scope of this Article to propose specific doc-
trinal rules for future Second Amendment cases, it may be especially
important in the Second Amendment context to adopt an approach
that is more skeptical than a default presumption of discrimination,
once raised. For one, the Second Amendment is an area where the
182 Bruen, 142 S. Ct. at 2149 n.25 (emphasis added).
183 E.g., Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018).
184 See, e.g., United States v. Chem. Found., 272 U.S. 1, 14–15 (1926) (“The presump-
tion of regularity supports the official acts of public officers and, in the absence of clear
evidence to the contrary, courts presume that they have properly discharged their official
duties.”).
185 United States v. O’Brien, 391 U.S. 367, 383, 383–84 (1968); see also Ramos v. Loui-
siana, 140 S. Ct. 1390, 1426–27 (2020) (Alito, J., dissenting) (arguing that discriminatory
taint should not matter if there is any legitimate justification for a law). This is especially
relevant in the Second Amendment context, where one would assume that the historical
statutes themselves are widely accepted to be facially constitutional. There is no argument,
for example, that surety laws enacted shortly after 1791 were themselves unconstitutional
or that they could not be supported by any proper purpose—indeed, a desire to protect
public safety will always be a permissible legislative motivation. See, e.g., District of Columbia
v. Heller, 554 U.S. 570, 689 (2008) (Breyer, J., dissenting) (“[T]he Court has in a wide
variety of constitutional contexts found such public-safety concerns sufficiently forceful to
justify restrictions on individual liberties.” (citation omitted)).
186 Aaron J. Horner, Note, How Difficult Is It to Challenge Lines on a Map?: Understanding
the Boundaries of Good Faith in Abbott v. Perez, 72 BAYLOR L. REV. 370, 380 (2020).
Supreme Court has been especially attentive to the possibility of judi-
cial subjectivity influencing case outcomes,
187
and this is similarly a par-
ticular concern with discriminatory-taint claims.
188
Moreover, the tre-
mendous complexity of unearthing historical enforcement records for
gun regulations enacted in the 1700s and 1800s,
189
not to mention the
fact that those records that do exist may reflect only a piece of the full
historical record, counsels in favor of treating discriminatory taint
claims cautiously. Such records are difficult to locate and the find-
ings—while they may defy expectations in certain ways—are often un-
likely to provide a complete or satisfying picture of how a gun regula-
tion was enforced throughout the relevant historical period.
An approach that sanctions freewheeling reliance on discrimina-
tory-taint claims based on cursory historical research, whenever the ev-
idence aligns with the judge’s substantive constitutional analysis, is
likely to produce inconsistency, magnify discretion, and lead to judicial
decisions that ignore important wrinkles in the historical record. The
Court’s consideration of legislative discriminatory-taint allegations in
other areas of constitutional law holds important lessons that should
be used to inform post-Bruen judicial analysis.
187 See, e.g., Bruen, 142 S. Ct. at 2131 (decrying “judicial deference to legislative interest
balancing”); see also Duncan v. Bonta, 19 F.4th 1087, 1159 (9th Cir. 2021) (VanDyke, J.,
dissenting) (“The majority of our court distrusts gun owners and thinks the Second Amend-
ment is a vestigial organ of their living constitution. Those views drive this circuit’s caselaw
ignoring the original meaning of the Second Amendment and fully exploiting the discre-
tion inherent in the Supreme Court’s cases . . . .”), vacated, 142 S. Ct. 2895 (2022) (mem.).
188 Judges may inquire into possible discriminatory taint only when it produces an out-
come consistent with their views on the substantive issues. For example, in Ramos, Justice
Alito took a staunch stand against the relevance of any discriminatory-taint evidence in dis-
sent while also believing that Louisiana’s law was substantively constitutional. Ramos, 140 S.
Ct. at 1425–27 (Alito, J., dissenting). In Espinoza, decided just days later, Justice Alito de-
voted seven pages to chronicling the sordid history of improper legislative motives for Mon-
tana’s no-aid-to-religious-students provision and arguing that this discriminatory taint was
relevant to the case—where the analysis cast doubt on a law he separately believed to be
unconstitutional. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2267–74 (2020)
(Alito, J., concurring).
189 See supra subsection II.C.2.