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Government lawyers reluctantly cite historical laws that kept guns from Blacks, Native Americans and Catholics
From Today's WSJ."Historical, racist gun laws are taking on new relevance in legal battles over modern-day gun regulations, following a Supreme Court ruling that expanded the right to bear arms.
In the 1700s and 1800s, states across the country passed laws to keep guns out of the hands of slaves, free Black people, Native Americans and Catholics. Such discriminatory gun restrictions would be unconstitutional today, but they have entered the gun-rights debate as judges look to apply the Supreme Court’s decision last June that said gun restrictions must be anchored in historical traditions.
In recent months, federal and state government lawyers have cited the historical laws, garnering a mixed reception so far. They have argued that racist gun laws are evidence of a historical tradition of legislative bodies denying access to firearms for public safety.
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The Justice Department, which didn’t respond to a request for comment, made similar arguments in recent weeks in other criminal appeal cases involving gun bans imposed on accused and convicted felons.
It is a distasteful but unavoidable argument, legal scholars say, a consequence of the upheaval in Second Amendment litigation ushered in by the Supreme Court’s expansion of gun rights.
The 6-3 decision in New York State Rifle & Pistol Association Inc. v. Bruen, written by Justice Clarence Thomas, struck down New York’s strict handgun permitting rules and upended how courts are expected to review the constitutionality of gun regulations.
Before the ruling, the government could defend a gun law by citing the importance of preventing mass shootings and other gun violence. The Bruen decision stripped away that defense and substituted a test rooted in historical precedent.
Government defendants must show commonalities between a modern gun law and statutes that existed in the 1700s and 1800s when the Second Amendment and 14th Amendment, which made certain constitutional rights binding upon states, were ratified.
“It is almost inevitable that courts will have to confront the history of racist gun laws,” said UCLA constitutional law professor Adam Winkler, who wrote a recent Harvard Law Review article on the issue. “The Supreme Court says that gun laws today must be consistent with gun laws from the 17- and 1800s, and many gun laws from the 17- and 1800s were motivated by racism.”
In lawsuits challenging California’s gun laws, the state attorney general’s office submitted spreadsheets of historical gun statutes that it says are relevant to its case.
Among dozens of racist laws it cited is a 1792 Virginia statute—passed one year after the Second Amendment was adopted—dictating that “no negro or mulatto” except for housekeepers “shall keep or carry any gun, powder, shot, club, or other weapon whatsoever, offensive or defensive.”
The state also referred to an 1833 Florida law, enacted in the aftermath of Nat Turner’s bloody slave rebellion, that authorized white citizen patrols to “search negro houses” for firearms. Anyone found in possession could be summarily whipped.
“These laws are morally repugnant and would obviously be unconstitutional,” the office of California’s Democratic attorney general, Rob Bonta, said in a legal brief filed with U.S. District Judge Roger Benitez in San Diego. “But these laws are part of the history of the Second Amendment and may be relevant to determining the traditions that define its scope, even if they are inconsistent with other constitutional guarantees.”
Before Bruen, California had been mounting a largely successful defense of its gun laws, which are among the nation’s toughest.
The state is now confronting the Supreme Court’s requirements in a series of lawsuits, including cases challenging its ban on semiautomatic firearms classified as assault weapons, its prohibition on high-capacity gun magazines and its background-check requirements for ammunition buyers.
In December, Judge Benitez, a President George W. Bush appointee considering legal challenges to several state restrictions, ordered California to draw up a list of any “relevantly similar” historical laws.
In the ammunition background-check case, the state listed more than 100 laws from the 17th, 18th and 19th centuries. More than three-quarters of them explicitly targeted slaves, free Blacks, Native Americans and Catholics.
“I was kind of in shock when they first sent us the spreadsheets,” said Konstadinos Moros, a lawyer with Michel and Associates PC, which represents the California Rifle and Pistol Association, a plaintiff in several lawsuits against the state. “We found these racist laws they were citing that were clearly not relevant to the case.”
Lawyers for California disagree, saying their survey of statutes buttresses their assertion that the state’s background-check law is “rooted in the historical tradition—dating back to the founding—of disarming groups of people perceived to be dangerous or unvirtuous.”
Other courts have considered the applicability of discriminatory gun laws. At least two judges have cautioned the government against relying upon them. U.S. District Judge Alan Albright, a President Donald Trump appointee from Texas, ruled in January that a federal law banning those under felony indictment from obtaining guns is unconstitutional. He wrote that he was “skeptical of using historical laws that removed someone’s Second Amendment rights based on race, class, and religion to support doing the same today.”
In August, however, U.S. District Judge Irene Berger, a President Barack Obama appointee from West Virginia, upheld a federal law prohibiting people convicted of domestic violence misdemeanors from possessing guns, finding it relevant that states historically excluded minorities from the right to bear arms.
Judge Berger, noting that she herself is Black, wrote: “Common sense tells us that the public understanding of the Second Amendment at the time of its enactment, which allowed for disarmament of Blacks and Native Americans based on their perceived threat, would have accepted disarmament of people convicted of misdemeanor crimes of domestic violence.”
Write to Jacob Gershman at [email protected]
