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The Breadth of Judge Barrett’s “Dangerousness” Principle

By and on October 2, 2020 Categories: , , , ,

Judge Amy Coney Barrett opened her dissent in Kanter v. Barr by identifying a historical principle underlying modern gun regulation: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” She went on to suggest that dangerousness is the Second Amendment’s exclusive limiting principle, such that “legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

This is a historically contestable position—many scholars and judges conclude that dangerousness was not the exclusive basis for disarmament, and that the Founding generation also denied guns to those thought to be unvirtuous, disloyal, incompetent, and so on. But if “dangerousness” is the operative principle for historically-informed Second Amendment interpretation, how broadly does it sweep? In Barrett’s terms, what do “history and tradition” tell us about the “scope of the legislature’s power to take [the right to keep and bear arms] away?”

Answering that question means considering, in her words, “a category simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” In her Kanter dissent (which argued that the federal felon prohibitor was unconstitutional as applied to a non-violent felon), Judge Barrett focused on the latter—felons who might not be dangerous. But it is also important to consider the former: non-felon groups disarmed because they were thought to be dangerous.

Through that frame, the historical evidence demonstrates that the “scope of the legislature’s power” was quite broad, notwithstanding the fact that the founding generations applied that power to very different groups than law does today—both more narrowly (for example, by not disarming domestic abusers) and more broadly.

In a forthcoming essay, we analyze two sets of historical gun laws that seem historically distant, but which the “dangerousness” approach makes relevant: laws regulating Native Americans and laws regulating those “disaffected to the cause of America.” These groups—much more so than felons, drug users, domestic abusers, and other groups targeted by contemporary restrictions—were subject to gun regulation by the Founding generations, apparently based on the perceived threat they posed. Relying largely on the Center’s Repository of Historical Gun Laws, the first part of the essay provides a historical overview of these laws, which have not received the same level of scholarly attention as some other historical prohibitions, such as those involving public carry or certain classes of arms.

Comparing these historical laws to contemporary gun restrictions inevitably means reasoning by analogy—as the test of “text, history, and tradition” favored by some originalist judges requires. The key step in analogical reasoning is identifying whether two things are relevantly similar, a process that is hard—and perhaps even impossible—to fully articulate given the invisible abstractions and generalizations that underlie it. Many scholars, including those sympathetic to broad gun rights, have noted some of the difficulties that arise when one looks for historical equivalents of modern laws. But at the very least, a “dangerousness” approach to text, history, and tradition must mean identifying the groups that were disarmed on that basis either in the Founding era or during Reconstruction.

The second part of the essay grapples with a question such regulations raise: What is to be done with the many historical laws that lack modern equivalents? Second Amendment historicism sometimes directs us to the family tree of gun laws in order to identify “lineal descendants” of particular guns or gun laws. But what about the lines of regulation that died out for one reason or another? Should embarrassing ancestors be cropped out of the historical picture entirely, or might they still have something to teach, in roughly the same way as Dred Scott v. Sandford has been invoked to support the “individual right” reading of the Second Amendment?

In some form or another, history is and will remain relevant to the question of whose access to guns can constitutionally be limited. Whether the answer to that question turns on a group’s dangerousness, virtuousness, or some other principle is beyond the scope of our essay. We assume that dangerousness was at least one reason why certain groups were disarmed. But whatever approach one takes, it is important to be clear about the historical record, and the breadth of the government’s power to regulate.

To be clear, the lessons of history can be instructive in a cautionary way—not only with regard to the groups that were wrongly subject to disarmament in the past, but also the potential malleability of a “dangerousness” principle. In particular, the historical record shows an inclination to disarm those who were considered threats to public safety and the political order. Whether and how history can provide guidance with regard to the targets of contemporary prohibition—felons and domestic abusers, for example—is a broader question of constitutional interpretation. Understanding the full historical record, and the breadth of the government’s historical power, is a crucial first step.