This term, the Supreme Court will consider New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment challenge to New York State’s concealed carry weapon licensing system. Bruen is the first major Second Amendment case that the Court will decide on the merits in more than a decade. Briefing by the plaintiffs and gun rights scholars has in large part focused on arguments that laws regulating the carrying of guns in public, as well as gun regulation more generally, were historically intended to discriminate against minority groups. This argument is consistent with a broader effort in the conservative legal movement to tie conservative goals—using public funds to support parochial schools, prohibiting abortion, and banning affirmative action—to racial justice or minority rights. The argument essentially goes: present day gun laws are unconstitutional because gun laws of the past were intended to discriminate.
But the plaintiffs and gun rights scholars cherry-pick this history of expressly racist laws primarily from the antebellum and early Reconstruction South. These states enacted broad restrictions on the rights of both enslaved persons and free people of color, including restrictions on the possession and carrying of firearms. In contrast, there is a long history of gun regulation across the country, including carry regulations, which has been applied to the general population without an intent to discriminate against minority groups. This tradition of gun regulation is the forebearer of modern gun laws, not historical laws targeted at minority groups. When assessing the historical scope of the Second Amendment, courts should look to this nonracist history, not cynical arguments about racist Southern laws.
This article will first lay out the overwhelming tradition of nonracist gun laws, which are the predecessors to modern gun regulation. The article will then discuss how the originalist analysis should address explicitly racist historical laws and why courts should look to the nonracist history of gun regulation when assessing the scope of the Second Amendment right.
Mark A. Frassetto, The Nonracist and Antiracist History of Firearms Public Carry Regulation, 74 SMU L. Rev. F. 169 (2021).