Scholarship Highlight: New Work on Who the Second Amendment Protects

  • Date:
  • September 22, 2021

The past few weeks have led to a host of new scholarship, including ones that centrally focus on issues of who the Second Amendment protects.


Once mentally ill does not mean always mentally ill. This underlying premise is not only scientifically accepted, but has been long recognized in the history and tradition of our common law. However, rather enigmatically, two circuit courts have deviated from this long understanding to find that once an individual has been classified as mentally ill, that classification is permanent. This flawed understanding has not only created a rupture in our Second Amendment jurisprudence, but it has also produced a significant circuit split between three circuits, in which neither the conclusions nor analyses are uniform. Notwithstanding the judicial disarray, federal law historically—and currently— poorly addresses this issue as well.

Federal law categorically prohibits the possession of a firearm from an individual who has been “adjudicated as a mental defective or who has been committed to a mental institution.” The United States deems this class of individuals worthy of a lifetime Second Amendment ban with only two avenues for relief: one that is nullified; and the other that is non-uniform and arbitrary. While this statute is imposing, it certainly does not lack justification. There is without a question a governmental interest and objective in protecting the citizens through crime reduction and suicide prevention. This objective, however, cannot be reached by categorically denying a constitutional right to a classification of individuals without due process.

This article uses an originalist approach to demonstrate that the classification of “mentally ill” is not a permanent and static one; rather that it is fluid and subject to transformation and development. With this main premise in mind, this article critiques the insufficient statutory response to this issue and offers an originalist judicial approach to resolving the circuit split. In the end, this article analyzes recent circuit court decisions on this issue from the Third, Sixth, and Ninth Circuits and offers a solution that safeguards the constitutional rights of an individual, ensures that due process rights are feasible, and preserves the governmental interest of reducing crime and preventing suicides.


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.


Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We argue that courts’ reliance on these restrictions is illegitimate. Drawing on original research, we reveal how the post-war South restricted gun-ownership for racist reasons, deployed its new laws to disarm free Blacks, yet allowed whites to bear arms with near impunity. We then show how modern reliance on these laws contravenes the Supreme Court’s decision in Ramos v. Louisiana, which deemed similarly tainted statutes unconstitutional. Since the Court will soon consider the validity of modern limits on concealed carry, placing Southern gun restrictions in their proper historical context matters today more than ever. While Southern gun control after the Civil War might tell us something about how the South sought to preserve white supremacy, it tells us almost nothing about the true scope of the Second Amendment.