Laws with an Ugly Past

  • Date:
  • February 07, 2020

A few weeks ago, the Supreme Court heard arguments in Espinoza v. Montana Dep’t of Revenue, which concerns the use of public funds for religious schools. Part of the issue in that case is what to make of Montana’s Blaine Amendment, a type of state constitutional provision that prohibits appropriating funds to religious sects or institutions. Although innocuous enough on their face, Blaine Amendments have a sordid history in virulent anti-immigrant and anti-Catholic bigotry. They raise the question about the relevance of legislative purpose to the constitutionality of governmental decrees. A similar issue often arises when talking about laws regulating guns. Just what role does an ugly past play in the constitutional calculus?

Of course, in some areas of law, an improper government motive is directly relevant. Laws targeting racial minorities violate anti-discrimination law and the equal protection guarantee. So too for religious groups. The Court just recently reaffirmed that the government has a “duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” Even in these areas, though, there is some tension with other methodological commitments (some members of) the Court has embraced. As Mike Dorf writes in a recent post, “modern textualists typically say that the subjective intentions of the legislature are ultimately unknowable and in any event unimportant for discerning what a statute means, but those same jurists, in evaluating a law’s constitutionality, are confident that they can discern the legislature’s motive in order to strike down a law as illicitly motivated.” So there might be some inconsistency in how courts treat the search for motive or purpose. But its use is fairly established in several areas of law.

When it comes to guns, one often hears the arguments from gun-rights advocates that “Gun Control is Racist.” And, in fact, it’s true that many gun laws were motivated by invidious discrimination. In the late 1960s, even normally gun-friendly Republican legislators (including Ronald Reagan) and the National Rifle Association itself advocated for a ban on open carry in California after “30 members of the Black Panthers protested on the steps of the California statehouse armed with .357 Magnums, 12-gauge shotguns and .45-caliber pistols and announced, ‘The time has come for black people to arm themselves.’” For centuries, white governmental authorities have used gun laws to keep firearms from indigenous populations, immigrants, and African-Americans. But does acknowledging this history mean that regulations of firearms today are suspect because those laws, or ones like them, were motivated by racism and bigotry?

An answer to that question depends, at least in part, on the substantive merits of the legislation. Take an example from the Espinoza case. Suppose we knew nothing about the history of the Blaine Amendments and were presented just with the provision barring state funding for religious activities. In that case, it’s hard to find issue with a provision that simply “preserve[s] existing separation of government and religion — a value that [goes] back to James Madison and the First Amendment.” So too we might look at a law banning open carry and find nothing inconsistent with historical regulations on where and how individuals could lug around their loaded firearms. But the purpose for the law might matter in an area where we require government neutrality or equal treatment; there, we typically ought to consider the motive dispositive, like with religious beliefs, race, ethnicity, sexual orientation, and other immutable characteristics. We don’t have a similar constitutional principle with respect to firearms. Unlike religious or racial minorities, there’s no history of treating firearms or firearms owners as second-class citizens or as entitled to less governmental respect. The real question to ask, then, is whether the laws can be justified apart from the improper motive. Plenty of proponents of more restrictive gun regulations, including large numbers of African-Americans, harbor no illicit motives for supporting such legislation; and it’s hard to argue that support for a ban on open carry requires invidious discrimination.

Guns are not like race or religion. They have been respected, protected, and regulated throughout American history. To be sure, racially neutral laws of all stripes have long been used to target and harass minority groups. But that history doesn’t forever tar efforts at reasonable regulation that can be and are justified apart from bigotry. After all, no one thinks San Francisco today can’t control the building materials used for laundromats in the city.