30
Stanford Law Review Online
Volume 76 August 2023
ESSAY
On Sordid Sources in Second Amendment
Litigation
Jacob D. Charles*
Introduction
The landscape of American history is littered with facially racist,
misogynistic, homophobic, xenophobic, and other demeaning, marginalizing,
and subordinating laws. Many more facially neutral laws have been applied in
ways that subjugate disfavored groups. The history books teem with tales of
these heinous American legacies.
1
But legacies they are. And constitutional
rules that privilege history and tradition should have some principled standard
for dealing with such sordid sources in a consistent fashion.
2
Yet the Supreme
Court’s current jurisprudence falls short.
Second Amendment litigation provides a fruitful context for clarifying
possible pathways to greater consistency in the doctrinal treatment of our
checkered past. That is particularly true given the Supreme Court’s recent
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mandate to use a novel history-and-tradition-only legal test, and because race,
guns, and the law have been inescapably bound together in American society
since its inception.
Within the Anglo-American legal tradition there have been laws expressly
disarming specific marginalized groups, like African-Americans, Native
Americans, and religious minorities.
3
Legal rules have long been used to keep
disfavored groups from accessing instruments of power and self-defense. These
laws have been legally dead for more than a century, but recent Second
Amendment litigation has resurrected them to relevance.
4
In this context, the
question of what courts, counsel, and commentators should do with these
moribund laws takes on heightened importance.
This Essay describes why this question matters, explains the options
available to legal actors in dealing with these laws, and argues in favor of an
approach that abstracts past principles while condemning past judgments. The
Court’s recent revolution in Second Amendment method forces reliance on
historical tradition alone to judge public safety today. Without a full picture of
past laws—the prosaic and prejudiced alike—courts risk impermissibly
narrowing the range of legislative options the ratifiers understood to be
consistent with the right to keep and bear arms. Constricting that authority
too tightly would be to usurp the people’s power to rule themselves.
I. The Dilemma in Bruen’s History & Tradition Test
In New York State Rifle & Pistol Association v. Bruen, the Supreme Court
announced a new legal test for reviewing Second Amendment claims.
5
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Grounded in history, that test requires the government defending
contemporary gun laws to point to similar precedent in “this nation’s historical
tradition of firearm regulation.”
6
If the government cannot find an analogous
past regulation, the modern law falls. A significant complication from this
test—one the Court does not adequately justify or explain—is how it magnifies
historical silence.
7
Because the test requires past precedent for modern
regulations, it renders novel laws invalid and thus puts enormous pressure on
the search for any comparable analogue in the country’s historical tradition.
One controversial way that public officials have responded to this test is by
reanimating the sordid skeletons in our less equal past.
8
Citing such laws today
places questions about their present legal relevance front and center. In some
cases, officials face a dilemma of Bruen’s own making: rely on relevant but
undeniably heinous laws or allow gun regulations supported by empirical
evidence to be felled.
9
By dint of its own historical method, Bruen sanctifies
appeal to the statutes of an unequal society. That method can practically force
officials defending contemporary gun laws aimed at addressing the
disproportionate harm in communities of color to cite historical laws
discriminating against those very same communities.
10
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True, not every case will present so stark a choice. But the question will
often arise when the government must defend current laws that restrict gun
possession for dangerous individuals—like domestic abusers, violent felons, or
intoxicated gun owners—where history supplies no precise replicas and the
constitutional question thus turns on analogies.
For many contemporary gun laws, there are a number of analogous
historical precedents that span a wide spectrum of similarity.
11
And historical
gun regulations have a similarly wide spectrum of intersections with race and
inequality. There are, of course, bigoted laws that bear facially invidious
discrimination.
12
Another set of laws were written in neutral terms but were
passed for discriminatory reasons.
13
And many non-malign gun regulations—
like nearly all laws, really—have been enforced in discriminatory ways at some
point or another.
14
At the same time, there are scores of gun restrictions passed
to protect and defend racial minorities.
15
And, just as there are discriminatory
regulations, there were surely discriminatory failures to regulate, because the
harms to marginalized groups were minimized or ignored by those who wrote
the laws.
16
This complexity should not be surprising. After all, “[l]ike any
will necessarily reveal episodes that are shameful but nonetheless relevant, as the Bruen
opinion teaches us”).
11. Daniel Harawa, The Racial Justice Gambit, DUKE CTR. FOR FIREARMS L.: SECOND
THOUGHTS BLOG (Jan. 5, 2022), perma.cc/3CD8-D2UN (“[T]here is a long
history of gun regulation in America that seemingly had nothing to do with race.”).
12. See supra note 3.
13. See, e.g., Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 354-55 (1991) (adducing examples of
statutes that had the purpose of disarming Black people).
14. See, e.g., Brief of the Black Attorneys of Legal Aid, et al. as Amici Curiae Supporting
Petitioners, N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843)
(describing the disparate impact of New York’s concealed carry licensing law); Brennan
Gardner Rivas, The Problem with Assumptions: Reassessing the Historical Gun Policies of
Arkansas and Tennessee, DUKE CTR. FOR FIREARMS L.: SECOND THOUGHTS BLOG (Jan. 20,
2022), perma.cc/A68N-482F (complicating the single-minded narrative that all
gun control is racist).
15. See Li, supra note 9, at 1870 (describing how “supporters of gun-control measures in the
late twentieth century frequently marshaled racial-justice arguments to support gun
control”); Mark Anthony Frassetto, The Nonracist and Antiracist History of Firearms
Public Carry Regulation, 74 SMU L. REV. F. 169, 175-76 (2021) (showing gun laws
designed to protect freedmen in the aftermath of the Civil War); Saul Cornell, Race,
Regulation, and Reconstruction: Setting the Historical Record Straight, DUKE CTR. FOR
FIREARMS L.: SECOND THOUGHTS BLOG (Sept. 24, 2021), perma.cc/258X-MKPR
(describing the complexity of gun regulations and race in the Reconstruction era).
16. Charles, supra note 7, at 38 (describing the Founders’ failure to disarm domestic
abusers); Jacob Charles, Opinion, The Founders Didn’t Disarm Domestic Abusers: Does That
Mean We Can’t?, THE HILL (Feb. 15, 2023, 2:00 PM ET), perma.cc/J5TD-CCH2
(same). And there was surely discriminatory under-protection of gun rights for people
of color, even from the Supreme Court itself. See Franita Tolson, Parchment Rights, 135
footnote continued on next page
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instruments of power, guns and their regulation can be employed for
domination or freedom, along lines of race, gender, and class.”
17
Recognizing this mixed history does not answer the question of its
relevance. Instead, it only raises the stakes of the key dilemma: How should
conscientious public officials respond?
II. Renounce, Abstract, Embrace
Lawyers and judges have several options when faced with this Bruen
dilemma, which will arise most often when the government seeks to defend a
contemporary law prohibiting someone from possessing guns.
18
The options
may include taking different approaches to different types of historical gun
regulations. An approach to facially neutral laws motivated by bigotry might
be different from an approach to neutral laws with no ill-intent that were later
applied partially. Here, I focus mainly on how to deal with the hardest case of
facially biased laws, but the options outlined below are likely similar for any
type of historical law that gives modern lawyers or judges pause.
One option is to renounce reliance on discriminatory laws altogether.
19
Legal actors might do so on the grounds that these laws are egregiously
immoral and would now violate the Equal Protection Clause.
20
They could add
that for a government or court today to rely on such laws would cause further
HARV. L. REV. F. 525, 527-32 (2022) (detailing the use of guns to perpetuate the Colfax
Massacre and the Supreme Court’s subsequent disregard for Black Americans’ right to
bear arms).
17. Joseph Blocher & Reva B. Siegel, Race and Guns, Courts and Democracy, 135 HARV. L.
REV. F. 449, 450 (2022).
18. The Supreme Court will consider such a law in its upcoming term: the firearms bar for
people under domestic violence restraining orders. 18 U.S.C. § 922(g)(8); United States v.
Rahimi, No. 22-915, slip op. at 1 (June 30, 2023) (granting certiorari); see also United
States v. Rahimi, 61 F.4th 443, 457 (5th Cir. 2023) (“Laws that disarmed slaves, Native
Americans, and disloyal people may well have been targeted at groups excluded from
the political community—i.e., written out of ‘the people’ altogether—as much as they
were about curtailing violence or ensuring the security of the state. Their utility as
historical analogues is therefore dubious, at best.”).
19. See, e.g., United States v. Guthery, No. 2:22-cr-00173, 2023 WL 2696824, at *8 (E.D. Cal.
Mar. 29, 2023) (questioning whether or not these types of laws can be used at all because
“impermissible bias is intertwined with the historical record,” which “raises questions
about how properly to interpret that record in drawing conclusions for the present”).
20. See Chris Chambers Goodman & Natalie Antounian, Dismantling the Master’s House:
Establishing a New Compelling Interest in Remedying Systemic Discrimination, 73 HASTINGS
L.J. 437, 443 (2022) (noting that “race-based classifications almost always fail the [Equal
Protection Clause’s implementing] test and are struck down as a result”).
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harm, stigma, and alienation to marginalized groups.
21
Call this the
Renunciation Approach.
22
Another approach could be called the Abstraction Approach. Using this
approach, the lawyer or judge would condemn the historical application of
these laws, but abstract from their specific application a broader principle that
might be applied consistently with contemporary values and understandings.
23
A third possible approach, which nobody advocates for, would be to
neither renounce nor abstract, but to embrace these laws.
24
Those critical of
using sordid statutes at all often conflate the Abstraction Approach with an
embracing one. They see any reliance on these laws as tantamount to an
endorsement of discrimination. But the abstract and embrace pathways are
importantly different.
Consider what the Abstraction Approach looks like in practice. In a
dissenting opinion pre-dating Bruen, but consistent with its method, then-
Judge Amy Coney Barrett argued that history shows the Second Amendment
permits disarming dangerous people.
25
She cataloged historical laws expressly
targeting disfavored groups for disarmament: Catholics, enslaved Black people,
and Native Americans.
26
She noted that, throughout English and early
American history, lawmakers passed legislation “adapted to the fears and
threats of that time and place.”
27
From that list, Judge Barrett distilled the
principle that “founding-era legislatures categorically disarmed groups whom
they judged to be a threat to the public safety.”
28
In other words, she abstracted
from the particulars of specific racist and bigoted legislation a non-
discriminatory rationale that could underwrite contemporary laws. That
historical principle, she said, meant that legislatures were not stuck with the
specific applications of past laws to the groups whom earlier generations feared.
Instead, today’s lawmakers could enact group-based prohibitions “based on
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present-day judgments about categories of people whose possession of guns
would endanger the public safety . . . .”
29
And for Judge Barrett, those modern
judgments presumably should be based on statistics about danger, not mere
stereotypes about threat.
From this implementation, one can see how different the Abstraction
Approach is from one that would embrace or defend these laws as written. And
for good measure, Judge Barrett included a disclaimer after compiling the laws
she relied on: “It should go without saying that such race-based exclusions
would be unconstitutional today.”
30
But their unconstitutionality, to say
nothing of their stereotyping and subjugating nature, did not render these laws
useless for historical archeology. If the past is to be a clue to the
constitutionality of gun laws today, Judge Barrett’s Abstraction Approach
suggests that these laws can provide hints about earlier generations’
understanding of legislative power divorced from their concrete application to
specific groups. Put another way, judges and lawyers can use the principle
without embracing the application. The real-world choice thus comes down to
whether lawyers and judges ought to deploy this kind of Abstraction Approach
or instead reject the continuing relevance of these laws altogether with a
Renunciation Approach.
III. To Renounce or to Abstract?
There are massive stakes involved in choosing among alternative
approaches. Of course, there are ethical and structural stakes for attorneys.
Lawyers have ethical obligations to zealously defend their clients, and those
can sometimes require making arguments with which one personally
disagrees.
31
As a structural matter, at the federal level, and in many state
governmental arrangements, executive branch officials are generally thought
to have a duty to defend legislative enactments when reasonable arguments
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can be made for doing so.
32
These twin arguments suggest it might sometimes
be incumbent on government lawyers to invoke these laws if doing so gives
them the best chance of successfully defending challenged laws.
The choice between these approaches will also have broader and deeper
effects among other stakeholders. Lives and community well-being might
literally hang in the balance. The choice of approach could be the difference
between the states’ ability to enact and defend reasonable gun regulations that
further public peace and safety and their powerlessness in the face of deep
harm.
Choosing an approach is no doubt a difficult and complicated decision.
Reasonable arguments can be made for either path. But at least in the Second
Amendment context, and so long as Bruen remains the reigning methodology,
there are more persuasive reasons to adopt the Abstraction Approach than the
alternative. Though the horrific bases for, and applications of, discriminatory
historical laws should be condemned,
33
these relics need not be blotted out of
the historical record altogether. Unless and until the Supreme Court cabins the
overriding importance of historical tradition to constitutional law, these laws
paint an important historical context that their omission would distort.
34
Consider two arguments in favor of the Abstraction Approach.
First, Bruen already strips states of many of the ordinary tools of
constitutional argument used to defend challenged laws, like those asserting
the compelling interest in regulation, the narrowness of the chosen means, and
the effectiveness of the law in serving those public interests.
35
The decision
even circumscribes the historical inquiry itself, requiring the government to
produce past positive law to support modern regulations.
36
If all
discriminatory laws are off-limits, the universe grows smaller still, given the
entrenched racism saturating American history.
37
And taking that track would
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provide an incomplete picture of historical understandings about the scope of
legislative power.
38
In other words, under a test that demands sole reliance on
history and tradition, “it is hard to justify ignoring these unseemly laws, which
after all help demonstrate the ‘principles’ the Framers thought relevant.”
39
Though the best of all possible worlds is one in which contemporary laws are
evaluated using contemporary evidence, the best history-bound constitutional
universe may well be one in which all relevant historical evidence is used to
assess today’s laws.
That approach provides a symmetry with how the historical exercise of
gun rights are viewed in the courts. If—as seems the case—judges will not
interrogate how the Second Amendment itself,
40
as well as the use of guns and
gun rights throughout U.S. history,
41
have been used to further White
supremacist ends, then it would be especially incongruous to use the racist
history of gun regulations to pretermit legislation today.
42
That move is all the
more troubling when one considers that the very communities of color who
experience the most concentrated impact of gun violence are often the most
supportive of modern gun regulations.
43
It would be a sad irony if the fact that
REV. 291, 295 (2021) (“A rule that requires we abandon useful precedent on the grounds
that it is contaminated with racism would leave us with precious little of the public
good left.”).
38. Winkler, supra note 4, at 540-42 (arguing that an approach that renounces reliance on
these laws “would likely lead judges to afford legislatures less regulatory authority than
the original understanding and historical traditions of the Second Amendment would
otherwise permit”); Patrick J. Charles, Some Thoughts on Addressing Racist History in the
Second Amendment Context, DUKE CTR. FOR FIREARMS L.: SECOND THOUGHTS BLOG (Jan.
14, 2022), perma.cc/65NT-93JQ (arguing against an approach like the
Renunciation Approach because it would discard relevant portions of history).
39. Blocher & Carberry, supra note 3, at 12; id. at 13 (“[T]o fully understand the scope of the
regulatory authority the Framers thought they had, one must actually consider the gun
laws that they did pass, even if we would reject those laws (perhaps for other
constitutional reasons) today.”).
40. See CARL T. BOGUS, MADISON’S MILITIA: THE HIDDEN HISTORY OF THE SECOND
AMENDMENT 11-12 (2023) (arguing that the Second Amendment was designed to
protect militias so they could suppress slaves).
41. See ANDERSON, supra note 1, at 102-03 (recounting incidents of guns furthering white
supremacist purposes).
42. See Khiara M. Bridges, Race in the Roberts Court, 136 HARV. L. REV. 23, 72 (2022) (“The
racial injury exacted by an interpretation of the Second Amendment that would
permit the proliferation of guns is not cognizable as such within the racial common
sense that the Roberts Court has adopted.”); see also Kami Chavis, The Dangerous
Expansion of Stand-Your-Ground Laws and its Racial Implications, DUKE CTR. FOR
FIREARMS L.: SECOND THOUGHTS BLOG (Jan. 18, 2022), perma.cc/34PZ-JZMN
(explaining that “the role of race and guns in America cannot be disentangled”).
43. Winkler, supra note 4, at 544 (“Polling data show that minorities and communities of
color are among the nation’s strongest supporters of gun control; elected officials who
footnote continued on next page
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our forebears were so explicitly racist in regulating guns meant that
contemporary Americans, including Black Americans who favor stricter gun
regulation, were prevented from regulating guns today for their own safety.
44
In sum, one reason to favor the Abstraction Approach is that it takes the Court
at its word: the existence of historical tradition is the only factor that matters
in Second Amendment litigation.
Second, the Abstraction Approach is consistent with a kind of public-
meaning originalism to which justices in the Bruen majority have often
proclaimed adherence. On one explication of that theory, constitutional
meaning is fixed at the time of ratification, but applications to specific disputes
are not frozen in time.
45
For example, Professor Larry Solum, a prominent
originalist scholar, has argued that “[f]ixed original public meaning can give
rise to different outcomes given changing beliefs about facts.”
46
Adhering to
fixed meaning “does not require constitutional actors to adhere to false factual
beliefs held by the drafters, Framers, ratifiers, or the public.”
47
A central tenet
of originalist families of constitutional theory, he writes, holds that meaning
remains fixed but “the facts to which the text can be applied change over
time.”
48
As applied to the set of laws Judge Barrett relied on in her circuit court
opinion, we might say that early legislatures’ beliefs about the inherent
dangerousness of Black or Indigenous people were false. Thus, those
applications of a public understanding about the Second Amendment’s scope
can be readily discarded;
49
but we need not also jettison the underlying
represent them are among the most vocal about the need for more gun laws.” (footnote
omitted)).
44. The law struck down in Heller, for example, was itself backed in the 1970s by a Black-
led coalition that was especially concerned about the toll gun violence was taking on
Black lives. See JAMES FORMAN, JR., LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN
BLACK AMERICA 71-76 (2017).
45. Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning,
91 NOTRE DAME L. REV. 1, 21 (2015) [hereinafter Fixation Thesis]; cf. Lawrence B. Solum,
The Interpretation-Construction Distinction, 27 CONST. COMMENT. 95, 96 (2010)
(distinguishing between stages of constitutional explication, including a construction
stage where a court “gives a text legal effect (either [b]y translating the linguistic
meaning into legal doctrine or by applying or implementing the text)”).
46. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure
of the Great Debate, 113 NW. U. L. REV. 1243, 1269 (2019).
47. Id.
48. Fixation Thesis, supra note 45, at 21 (emphasis omitted).
49. Even though these beliefs are false and pernicious, that does not mean they do not
affect views today, as studies on implicit bias and threat perception reveal. See Joseph
Blocher, Samuel W. Buell, Jacob D. Charles & Darrell A.H. Miller, Pointing Guns, 99
TEX. L. REV. 1173, 1180-81 (2021) (describing these biases, particularly as they apply in
the firearms context).
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dangerousness-disarmament principle itself.
50
Applications can change as
beliefs about facts change.
51
Of course, these are not foolproof arguments. There are some good reasons
for thinking these laws should be renounced and confined to everlasting
censure—and there are also some cynical ones. Start with the good reasons.
Such laws are a terrible reminder of de jure discrimination, and their
invocation by courts and government today could lead to psychic and
dignitary injury to the groups singled out for historical mistreatment. That is
no small concern. For members of minoritized groups to see their government
citing these laws today could surely be harmful. Public officials could
mistakenly be seen as endorsing the underlying judgments if they are not
careful to distance themselves from those flawed assumptions.
Similar arguments have been made for sloughing off scurrilous historical
case law, as the Court did in Trump v. Hawaii when it declared that the “court of
history” had overruled the “gravely wrong” decision in Korematsu.
52
But
decisional law and historical legislation are different. Because a case’s holding is
binding, it would be exceedingly hard to discard appalling applications but
keep a case’s underlying rationale. As long as the rationale survived, so too
would the risk of its abuse. For that reason, some scholars argue that the Court
often should overrule its past “decisions now widely regarded as morally
irredeemable.”
53
In contrast to court decisions, it is easier to abstract the
principles that justified past legislation from the particular applications to
specific groups, because the principles do not carry the same risk of ongoing
abuse.
Now consider some of the cynical explanations for adopting the
Renunciation Approach. Perhaps most prominently: it is a quick way to
expand Second Amendment rights.
54
And race is often used by judges and gun-
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rights advocates as a one-way ratchet to broaden Second Amendment rights,
but it is not used to question the many ways expansive gun rights have been
used to harm and subordinate racial minorities.
55
Indeed, many conservatives
who seem quite unconcerned about discriminatory impact in other areas of
law invoke racial justice themes when it comes to gun rights.
56
For example,
some of the same legislators advocating for bans on critical race theory,
restricting voting rights in ways that disadvantage minority groups, and
vocally vilifying immigrants are the same ones who most loudly proclaim gun
laws must be discarded because they have been disproportionately enforced
against disfavored groups.
57
As Professor Darrell Miller writes, “[t]hese right-
wing leaders have suddenly discovered the merits of concepts like White
privilege, anti-Blackness and structural racism—but only when it applies to
gun rights, it seems.”
58
Some judges and advocates are also selectively
concerned about bias in the past.
59
As Professor Daniel Harawa remarks about
some of the selectively concerned speakers, these “are white people pointing to
underlying intention of those laws “it doesn’t change the fact that they are citing those
historical travesties to support taking someone’s Second Amendment rights today”). Of
course, despite what that court says, if the laws did accurately convey the original
understanding of the scope of legislative power under the Second Amendment, then
the federal law under its review would not take away anyone’s Second Amendment
right.
55. See Daniel S. Harawa, NYSRPA v. Bruen: Weaponizing Race, 20 OHIO ST. J. CRIM. L. 163,
163-64 (2023). There is a parallel here with how race is selectively invoked in the
abortion context. See, e.g., Melissa Murray, Race-ing Roe: Reproductive Justice, Racial
Justice, and the Battle for Roe v. Wade, 134 HARV. L. REV. 2025, 2029 (2021) (“[R]ather than
surfacing race as a means of promoting greater reproductive autonomy and access in
service of Roe v. Wade, as the reproductive justice movement does, the Box concurrence
integrates racial injustice into the history of abortion for the purpose of destabilizing
abortion rights.”).
56. Blocher & Siegel, supra note 17, at 455 (“We would be amazed if these same Justices
[who were receptive to race-based claims in Second Amendment law] attacked
doctrines that protect prosecutorial discretion in cases alleging selective prosecution
on the basis of race or political viewpoint.”).
57. Darrell A. H. Miller, Conservatives Sound Like Anti-racists—When the Cause Is Gun Rights,
WASH. POST (Oct. 27, 2021, 6:00 AM EDT), perma.cc/2WHK-A3B3.
58. Id.; see also Gregory S. Parks, When CRT Meets 2A, DUKE CTR. FOR FIREARMS L.: SECOND
THOUGHTS BLOG (Jan. 11, 2022), perma.cc/S2WQ-2WJQ (noting the same
dynamic and leveraging Derrick Bell’s concept of interest convergence to explore the
phenomenon).
59. Siegel, supra note 2, at 910-11 (“Because their commitment to originalism and to history
and tradition is selective . . . we can see how the conservative Justices’ claims on the past
express value and identity.”); see also Blocher & Siegel, supra note 17, at 460-61 (“The
Court is ready to denounce racism of the past, but when it comes to the forms of
inequality afflicting minority communities in the present, the Court too often
interprets the Constitution to license inequality and to obstruct efforts to dismantle it.”
(footnote omitted)).
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the history of white people discriminating against Black people to further their
own white interests. It’s perverse.”
60
While there is a mix of good and decidedly bad reasons for preferring the
Renunciation Approach, the Abstraction Approach is better suited to the
historically bound test Bruen demands.
61
If the past determines the scope of
legislative authority to regulate guns today, slicing off portions of that history
diminishes the regulatory power the founding generation understood the state
to possess.
62
Still, if public officials take the Abstraction Approach, they should
emphasize that these abhorrent laws are not entitled to respect today. They
should include clear and unmistakable normative disavowal when citing these
laws—not simply neutral abstraction of a broader principle, but abstraction
paired with condemnation for past applications.
63
This may be the best way to
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minimize the broad and diffuse dignitary harms that can occur when the
government cites to these laws.
For example, when a Third Circuit panel abstracted from discriminatory
laws in a challenge to the felon-in-possession law post-Bruen, it footnoted
multiple paragraphs with disclaimers that varied on the same theme:
The status-based regulations of this period are repugnant (not to mention
unconstitutional), and we categorically reject the notion that distinctions based
on race, class, and religion correlate with disrespect for the law or dangerousness.
We cite these statutes only to demonstrate legislatures had the power and
discretion to use status as a basis for disarmament, and to show that status-based
bans did not historically distinguish between violent and non-violent members of
disarmed groups.
64
That explicitly normative approach is preferable to Judge Barrett’s simple
descriptive disclaimer that “such race-based exclusions would be
unconstitutional today.”
65
If Bruen forces reliance on regulations passed in the days when the law
protected race-based chattel slavery, some of those regulations will surely be
infected with America’s original sin. But that is the test the Court has
demanded. Public officials who adopt the Abstraction Approach and extract
neutral principles from these sordid laws owe a duty to clearly and frequently
denounce the judgments that led to the appalling application of those
principles.
Conclusion
In several areas of constitutional law, the Supreme Court now gives pride
of place to history and tradition.
66
Methods grounded in the past confront
numerous problems of historical translation and generate heated disputes over
constitutional memory.
67
The Second Amendment context makes this clear: In
Rather, it can confirm the existence of the doctrine and corresponding limitation on the
Second Amendment right.
Defendants’ Brief in Response to the Court’s Order Entered on December 15, 2022, at 17
n.17, Miller v. Bonta, No. 19-CV-01537 (S.D. Cal. Feb. 10, 2023) (citation omitted).
64. Range v. Att’y Gen. United States, 53 F.4th 262, 276 n.18 (3d Cir. 2022), rev’d en banc, 69
F.4th 96 (3d Cir. 2023).
65. Kanter v. Barr, 919 F.3d 437, 458 n.7 (7th Cir. 2019) (Barrett, J., dissenting).
66. See generally Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen,
and Kennedy: The Role of History and Tradition, 118 NW. U. L. REV. (forthcoming 2023),
perma.cc/XT6Y-QG7E (grappling with how this method comports with
originalism).
67. Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living
Constitutionalism—and Some Pathways for Resistance, 101 TEX. L. REV. 1127, 1131 (2023)
(arguing that “it is now urgent that we attend to the many kinds of arguments from
constitutional memory in our constitutional tradition, inside and outside of courts”).
Sordid Sources
76 STAN. L. REV. ONLINE 30 (2023)
44
demanding that current gun laws be justified by reference to historical
tradition alone, the Court intensifies the search for ancient antecedents. It
makes past regulations decisive, “requiring courts to strike down gun
regulations” without such historical foundation “even when they might be
narrowly tailored to accomplish the most compelling of governmental
interests.”
68
That test is a problematic one, but it would be more problematic still for
courts and counsel to artificially excise what are indisputable traditions of
historical gun regulations because they, like so much of American history, are
grounded in bigotry. An Abstraction Approach better balances the need for
forceful condemnation of past prejudice with proper deference to the modern
exercise of legislative power blessed by history and tradition.