Antisubordinating the Second Amendment
abstract. After over a decade of silence, and fourteen years since its landmark decision in District of Columbia v. Heller, the Supreme Court has fundamentally expanded and reshaped Second Amendment protection once again in New York State Rifle & Pistol Ass’n v. Bruen. In light of the Court’s decision in Bruen—and the role of race-based arguments in its development—this Note tells a new story about the racialized development of the contemporary Second Amendment. It unearths the enduring role of racial-justice claims for gun rights in the social-movement and jurisprudential history of the modern Second Amendment. At each stage of the Second Amendment’s modern development, the same racial-justice claims have been raised again and again to justify an increasingly expansive account of the constitutional right to keep and bear arms. Now, in Bruen, the Court has endorsed these claims under the guise of reasoning from history and tradition.
The Note then argues that the Bruen Court’s Second Amendment, far from a source of liberation for the marginalized, reinforces relations of social inequality. The Court’s turn towards a purely historical Second Amendment erases the value of antisubordination from judicial decision-making and practically disempowers communities from securing equal public safety today. In response, the Note concludes, proponents of gun-violence prevention measures must develop a race-conscious constitutional politics for gun regulation that centers communities’ right to equal public safety while grappling with the reality of discriminatory policing.
author. J.D. 2022, Yale Law School; M.A., University College London; B.A. Columbia University. My deepest thanks to Joseph Blocher and Reva B. Siegel for their encouragement and guidance of this Note from start to finish. For invaluable comments and discussion, deep gratitude to Jake Charles, Liam Gennari, Pratheepan Gulasekaram, Grace Judge, Daniel Ki, Gregory Magarian, Darrell Miller, Eric Ruben, and participants of the Duke Firearms Law Workshop and Criminal Justice Symposium at UCLA. Finally, special thanks to Gabrielle Jackson and Varshini Parthasarathy for their patience and invaluable feedback throughout the editorial process. All errors are my own.
[I]t cannot be believed that the large slaveholding States regarded [“persons of the negro race”] as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, . . . it would give them the full liberty . . . to keep and carry arms wherever they went.1
—Chief Justice Taney in Dred Scott v. Sanford, 1857
“[E]ven Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.”2
—Justice Thomas in New York State Rifle & Pistol Ass’n v. Bruen, 2022
“There’s no Second Amendment on the South Side of Chicago.”3
—Chief Public Defender, Cook County, Illinois, 2021
After over a decade of silence and fourteen years since its landmark decision in District of Columbia v. Heller,4 the Supreme Court has once again reshaped Second Amendment protection in New York State Rifle & Pistol Ass’n v. Bruen.5 In Bruen, the Court invalidated a New York law that required “proper cause” to obtain a license to carry concealed firearms. Whereas Heller granted individuals the right to possess a gun at home for self-defense, Bruen now grants individuals the right to carry firearms in public.
The questions presented in Bruen have been festering among lower courts since Heller. And the briefing in Bruen largely reflected the popularity of the kinds of esoteric historical arguments that have become standard in disputes about the proper scope of Second Amendment protection. Noteworthy, however, was the number of briefs that urged the Court to invalidate New York’s licensing law on grounds that these gun regulations subjugate marginalized communities. More than one of every five briefs filed to invalidate New York’s law raised arguments about the disparate impact of gun-control laws on marginalized groups.6
The filers of these race-conscious briefs made for strange bedfellows.7 Twenty-three Republican state attorneys general filed a brief recounting the pre-Civil War enactment of laws restricting the carrying of firearms by free Black citizens.8 One hundred seventy-six Republican members of the House filed a brief arguing that gun-regulation laws like New York’s were “designed to exclude non-elite immigrants and disfavored minorities from gun ownership.”9 The libertarian Rutherford Institute compared New York’s licensing law to poll taxes and literacy tests.10 And then there was the public defenders’ brief.11 Filed by prominent New York public-defender organizations like the Bronx Defenders and Black criminal-defense lawyers, the public defenders’ brief argued that enforcement of criminal gun regulations like the New York licensing law had a disparate impact on communities of color by exacerbating punitive and discriminatory policing. Conservative gun-rights activists were ecstatic.12
In the end, the Bruen Court opted for a purportedly more “value-neutral” approach. In reaching its decision, the Court confined its method of Second Amendment interpretation to text, history, and tradition.13 That is, to determine whether a particular gun regulation passes muster under the Second Amendment, courts consider first whether the law regulates conduct that is covered by the plain text of the Second Amendment. If so, then courts are limited to the question of whether the regulation comports with history and tradition.14 In this case, the Court found that New York’s regulation was inconsistent with history and tradition—and thus constitutionally invalid.
Still, under the guise of “neutral” reasoning from text, history, and tradition, the Bruen Court vindicated race-conscious claims throughout its decision. Justice Thomas’s majority opinion recounted the history of Black disarmament and the necessity of Black arms bearing to defend against white terror.15 It also referenced Chief Justice Taney’s oft-quoted passage in Dred Scott, cited above, ridiculing the idea of extending the right to bear arms—a privilege of citizenship—to Black people. This was proof in Thomas’s eyes that the Second Amendment has long been understood to protect carrying in public.16 And in a concurring opinion, Justice Alito directly cited the public defenders’ brief to suggest that Second Amendment protection serves the public-safety interests of communities of color.17
These racial-justice claims are not some odd blips in the history of the modern Second Amendment’s development—indeed, as this Note argues, they are central to it. Nor are these claims inventions of the Roberts Court. Rather, race-conscious arguments for gun rights have been present from the very beginning of the modern Second Amendment’s social-movement and jurisprudential evolution. As early as the late 1960s, conservative gun-rights advocates began to link gun control with racial subordination. These arguments became a consistent theme among gun-rights organizers and grew in sophistication over time as legal academics—and then federal judges—took notice.
As gun-rights advocates turned to courts to enforce new, more expansive readings of the Second Amendment, they brought these racial-justice claims with them. Indeed, at each stage of the Second Amendment’s modern development, the same racial-justice claims have been raised again and again to justify an increasingly expansive account of the constitutional right to keep and bear arms. The race-conscious arguments asserted by gun-rights activists in public fora in the late twentieth century were transformed and made legible in formal jurisprudential settings in the twenty-first century—first, to justify the individual-rights theory of the Second Amendment; then, Second Amendment incorporation; and now, Second Amendment protection outside the home.
The invocation of race in the modern Second Amendment debate has been asymmetric. Whereas pro-gun conservative legal academics have amassed a war chest of scholarship advancing variations of the claim that gun regulation has racist origins and effects,18 progressive legal scholars have—with rare exceptions19—largely remained silent. With the recent and unexpected boon from the public defenders’ brief, conservative gun-rights activists have successfully popularized the claim that gun control is racist after half a century of social-movement mobilization without comparable resistance from progressive gun-regulation advocates.
Proponents of gun regulation cannot afford to cede this ground any longer. In that spirit, this Note has two goals. The Note’s first contribution is in unearthing the enduring role of racial-justice claims in the social-movement and jurisprudential history of the modern Second Amendment. In bringing this history to light, this Note follows the example set by recent works that recover the ways in which histories of slavery and racial domination are essential to understanding the evolution of American law in an effort to complicate prevailing legal canons.20 In the Second Amendment context, uncovering these histories in parallel highlights an important case of conservative “demosprudence.” Coined by Professors Lani Guinier and Gerald Torres, demosprudence describes “the process of making and interpreting law from an external—not just internal—perspective,” which “emphasizes the role of informal democratic mobilizations and wide-ranging social movements that serve to make formal institutions,” such as courts, more responsive to popular accounts of legal meaning.21 The social-movement and jurisprudential histories this Note uncovers demonstrate that when it comes to race-conscious understandings of the Second Amendment, movement actors and courts have always been in conversation with one another. In Bruen, the Court expressly aligned itself with a social movement that has, over decades, mobilized to change Second Amendment understandings on race-based reasonings.
The Note’s second contribution is in offering a counterdemosprudence in the form of a competing normative framework that defends gun regulation as essential to addressing forms of racial subordination—a project I call “antisubordinating” the Second Amendment.22 This framework views an absolutist and historical account of the right to bear arms—exemplified by the Bruen decision—as incompatible with the demands of racial antisubordination. Antisubordinating the Second Amendment, I argue, requires making room for communities’ interest in enacting gun regulation to attain conditions of equal public safety. Such a vision of the Second Amendment has historical roots in the civil-rights mobilization against gun violence that spanned the 1990s. As Black communities faced devastating rates of gun homicide, civil-rights organizations made combating gun violence a national priority on racial-equality grounds. They recognized that just as guns can be tools of self-defense, they can also serve as means of domination and sources of communal subordination. They viewed conditions of equal public safety as a civil right—necessary for communities of color to flourish and self-govern as free and equal members of the polity.
Under this framework, the Bruen decision is subordinating. Its new methodological reliance on history and tradition calls into question virtually everything about our current gun-regulation schemes. That, coupled with its extension of Second Amendment protection outside the home, renders Black communities less safe. The result is a Second Amendment jurisprudence that further deprives Black communities of the capacity to secure for themselves the conditions of equal public safety—all in the name of Founding Era history and tradition.
The Note proceeds in three Parts. Part I begins by tracing the evolution of racial-justice claims in the social-movement history of gun-rights activism. In tracing this history, we see that race-conscious arguments for gun rights have been present from the very beginning of contemporary Second Amendment organizing in the late twentieth century. Part I shows how these claims were embraced and invoked strategically by gun-rights organizers at a time when gun-regulation legislation was becoming increasingly common. Over time, these claims were articulated at higher levels of sophistication in a constitutional register.
To show how these claims informed constitutional understandings, Part II of this Note documents how these arguments became a central component of gun-rights advocates’ legal strategy for reinventing and expanding the meaning of the Second Amendment. At every stage of the development of the modern Second Amendment, advocates marshaled race-conscious arguments to justify more and more expansive accounts of the constitutional right to keep and bear arms. Part II ends with an account of Bruen. A high watermark in the expression and deployment of racial-justice claims in the Second Amendment debate, Bruen shows just how much these claims have forever altered the terms of the gun debate inside and outside the courts. I argue that the Court’s decision in Bruen, more than any previous Second Amendment decision, lends support to the “gun control is racist” narrative developed and marshaled for decades by gun-rights activists—under the guise of reasoning from history and tradition.
With these histories in tow, Part III offers a rejoinder by presenting the Note’s normative framework for antisubordinating the Second Amendment. It begins with a competing history of the forceful efforts of civil-rights organizations in the 1990s to combat gun violence ravaging Black communities. These organizations viewed gun violence as a matter of civil rights, and they justified gun regulation through the lens of antisubordination. Drawing on this history, Part III articulates a theory of public safety as a social condition for democratic equality: when Black communities are denied access to equal and adequate conditions of public safety, they are deprived of the opportunity to participate in the polity as equal citizens. In other words, the disparate harm that gun violence inflicts on Black communities is a form of racial subordination—and gun regulation is a necessary antisubordination strategy.
Nevertheless, using Bruen as an exemplar, Part III also takes seriously and confronts the central premise of the public defenders’ brief—that methods of gun control relying on punitive policing can themselves have subordinating consequences. It responds that Second Amendment expansionism is not an antisubordinating doctrinal solution. Part III offers two challenges to Bruen from a racial-justice perspective. Substantively, it argues that—as civil-rights groups have long understood—expansive Second Amendment protection hampers communities’ capacities to combat gun violence that exacerbates forms of social inequality. And methodologically, it argues that by embracing a purely historical interpretative method, the Court’s doctrinal reasoning in Bruen is totally untethered to the value of antisubordination. Indeed, traditionalist methodologies reinforce the exact social hierarchies rooted in tradition that antisubordination seeks to abolish. They are an impoverished form of justification that disrespects Black Americans’ status as equal members of the polity.
Part III concludes with a turn toward constitutional politics. Unencumbered by formal constitutional law, it suggests that advocates can build an antisubordinating Second Amendment in public fora—asserting the value of gun regulation to racial justice in the hope that future lawyers and courts are listening.
Before proceeding, it is worth foreshadowing the Note’s methodology. This Note toggles back and forth between what courts say about the Second Amendment and what the “people” say about the Second Amendment (and gun rights more broadly). At times, particularly when the Note discusses debates surrounding gun-regulation policy, the reader may rightfully ask, what does this have to do with the Second Amendment? As a practice in demosprudence, this Note takes both an internal and external perspective on the law to understand the interplay between popular mobilizations and formal legal meanings. In other words, to understand what courts say about the meaning of the Second Amendment today, we must also understand how ordinary people have asserted and justified their right to bear arms in the past. I preview this methodological point because the antisubordinating framework presented in Part III largely lies outside the courts—after all, the framework is not reflected in today’s prevailing Second Amendment jurisprudence. Instead, it must be built over time through popular mobilization over the proper role of guns in an egalitarian democracy.