Scholarship Roundup: Guns & Race, Public Carry, and More
Several more articles and works in progress have been published or posted publicly in the last few weeks. They all raise thought-provoking arguments, and I was especially interested to see Patrick Charles's article (again, no relation to me) on guns and race--it adds new texture to the competing paradigms that characterize either all gun control as racist or the Second Amendment itself as racist.
- Patrick J. Charles, Racist History and the Second Amendment: A Critical Commentary, 43 Cardozo L. Rev., Issue 4 (2022, Forthcoming)
To say that the moral stain of racism pervades American history would be an understatement. One does not have to look hard to find examples where people of color were treated disparagingly or disparately. Thus, it should come as no surprise that throughout much of American history there are examples where race played a role in lawmakers deciding who may and may not acquire, own, and use firearms for lawful purposes, or where race was the principal factor in orchestrating state and non-state sponsored armed violence against people of color. The painful and often tragic historical intersection between race and firearms is indeed a complex and multi-faceted narrative worthy of examination and reflection, including in the area of history-in-law —that is the study of how the law has evolved in a particular area, what events and factors caused the law to evolve, and how, if at all, this history is important when adjudicating legal questions.
Yet in the ongoing discourse over the purpose, meaning, and protective scope of the Second Amendment, the historical narrative of race and firearms is becoming increasingly misappropriated and hyperbolized. There are indeed numerous examples, but two are particularly concerning and exist at the extreme opposites of the Second Amendment political spectrum. The first—often stated by gun rights proponents—is history shows that gun control is inherently racist. The second—sometimes stated by gun control proponents—is that the Second Amendment itself is inherently racist, with some going so far to claim the right to “keep and bear arms” is on historically on par with the Constitution’s morally “indefensible” three-fifths clause—the clause that provided slaves would account for three-fifths a person for the purpose of congressional apportionment.
This article seeks to examine and unpack these extreme historical opposites and explain why their ‘racist’ claims ultimately do more societal harm than good. This article is broken into three parts. Part I critically examines how and why the ‘gun control is racist’ narrative came to be. Part II then critically examines how (and the elusive why) the ‘Second Amendment is racist’ narrative came to be. Lastly, Part III outlines why accepting either of these ‘racist’ narratives do more harm than good, particularly in the confines of history-in-law.
- Mark W. Smith and Dan M. Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation
Some scholars, judges, and advocates have recently urged that legal corpus linguistics, a methodology that uses computerized searches of large volumes of texts known as “corpora,” can determine the original meaning of constitutional provisions. More particularly, certain of these advocates have argued that corpus linguistics searches of Founding era corpora prove that the Second Amendment right to keep and bear arms protects only a collective, militia right and not an individual, private right to arms, contrary to the Supreme Court’s interpretation of that amendment in District of Columbia v. Heller, 554 U.S 570 (2008).
In this article, we argue that relying on corpus linguistics to determine the meaning of the Second Amendment suffers from severe conceptual and practical difficulties. One of the most fundamental flaws concerns the central methodological assumption of corpus linguistics—the “frequency hypothesis”—which posits that the most frequent meaning of a word or phrase returned by a corpus search should be the meaning adopted for purposes of constitutional interpretation. Even if the phrase “bear arms” most frequently appears in a military context, that does not mean that the constitutional language excludes an individual right to bear arms for self-defense and other private purposes. Military and militia references were more likely to appear in public discussions of the right to bear arms simply because they were more “newsworthy” than the mundane acts of ordinary people carrying a firearm for hunting or defense, which would rarely be recorded. Contemporary examples, including references by the Founders themselves, show that the right to “bear arms” included protection of an individual right as well as furthering a well-regulated militia.
In addition, corpus linguistics suffers from serious problems concerning the composition of the corpora, which are biased in favor of elite language usage and are critically incomplete, missing some of the key texts that historians and legal scholars have long relied upon in discerning the Second Amendment’s meaning. Use of legal corpus linguistics also raises serious practical difficulties in actual constitutional litigation, including the absence of the usual safeguards applicable to expert or “scientific” evidence.
In the end, the counting of words resulting from a corpus search cannot overcome the history and traditions at the time of the Founding that allowed free carry and use of firearms, and the core conception by the Founders that self-protection with arms is a pre-existing right that cannot be taken away from the individual by any act of civil society.
- Richard Gardiner, The Meaning of 'Going Armed' in the 1328 English Statute of Northampton
Virtually all writers on the subject of the right to bear arms, both pro and con, simply assume, without any evidence, that the term “going armed” in the 1328 English Statute of Northampton meant carrying weapons. A review of the royal decrees and statutes contemporaneously issued and enacted demonstrates, however, that “going armed” did not equate to carrying weapons and certainly did not refer to firearms -- rather, “going armed” was a medieval term of art which referred to wearing body-protecting armour.