Scholarship Highlight: First Amendment and Racial Dimensions of Bruen

This is the fifth entry in our ongoing series summarizing new legal scholarship regarding the Bruen decision (see the earlier highlights here, here, here, and here).

In a paper recently published in the Pepperdine Law Review, Michael Smith and Alexander Hiland draw a connection between Justice Clarence Thomas’ call to revisit the Supreme Court’s 1964 decision in N.Y. Times Co. v. Sullivan and his majority opinion in Bruen.  Sullivan held that statements concerning a public figure are defamatory only if made with actual knowledge of falsity or reckless disregard of the truth.  Smith and Hiland describe how Bruen may provide a template for arguing “that Sullivan is not based in the original meaning of the First or Fourteenth Amendments and . . . that the Court [should] revisit its earlier case law on defamation in light of this failure to consider historic meaning.”  Smith and Hiland also analyze a recent partial concurrence by Eleventh Circuit Judge Kevin Newsom in a First Amendment case which cites Bruen, decries First Amendment “doctrinal bloat,” and urges “a return to first principles.”

Second, in an essay in the Ohio State Journal of Criminal Law, Daniel Harawa argues that Bruen continued a trend of the Court “appropriat[ing] a racial justice angle in its efforts to reshape the scope of Second Amendment rights.”  Harawa notes the Bruen majority’s approving citation to Dred Scott and argues that the Court’s Second Amendment jurisprudence “aligns itself with a historical time where Black people were denied rights to suggest it would have been nice if those Black people could have armed themselves in the face of racist white southerners’ intent on violently relegating them back to the status of slave.”  Harawa also examines how Bruen will interact with current Fourth Amendment doctrine and argues that “Black people lawfully carrying guns in public increases the chance that they will be stopped and searched” and that those encounters may turn violent.

Michael L. Smith and Alexander S. Hiland, Using Bruen to Overturn New York Times v. Sullivan, 50 Pepp. L. Rev. 80 (2023)

Abstract:

While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials.

This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. While Bruen involved a Second Amendment challenge to a law restricting the concealed carry of handguns, the Court’s “historical tradition” approach to constitutional rights— which is premised on proof of historic restrictions on certain behavior—is readily adaptable to the First Amendment context. Justice Thomas’s arguments for the existence of historical restrictions and penalties for libeling public figures and officials are tailormade for the historical tradition approach he sets forth in Bruen.

While Sullivan is a longstanding precedent, the Court’s recent overruling of Roe v. Wade suggests that this does not guarantee its safety. But other Justices may balk at taking a truly originalist or historical approach to the First Amendment, as this could undo most existing First Amendment doctrine. Still, at least one federal appellate judge has already cited Bruen in support of restructuring First Amendment law. As time goes on and Bruen’s historical tradition approach continues to be applied, Justice Thomas or others could use it to support the growing judicial campaign against New York Times Co. v. Sullivan.

Daniel Harawa, NYSRPA v. Bruen: Weaponizing Race, 20 Ohio St. J. Crim. L. 163 (2022)

From the Introduction:

While the Court has weaponized race—particularly America’s history of anti-Black racism—to expand the reach of the Second Amendment, it has not sought to ensure Black people have equal access to the right to bear arms now that the right is broader than ever before. More pointedly, the Court has not seemed keen on revisiting its Fourth Amendment policing doctrines that make public carry for Black people particularly precarious. For instance, the Supreme Court has not curbed police officers’ practically boundless ability to stop and frisk people on the street. Nor has the Court rethought the standard governing police use of force, even though it largely inoculates police violence from any meaningful scrutiny. And the public carry of firearms, particularly by Black people, will likely both exacerbate the number of stop-and-frisks they face, and increase the risk that police will use deadly force against them. In short, while expanding the scope of the Second Amendment right to bear arms, the Court has shown no appetite to address related jurisprudence that makes the bearing of arms more dangerous for Black people.

Moreover, while the Court cherry-picked from America’s racist history of disarming Black people as one reason to refashion Second Amendment rights, the Court has never acknowledged that gun control was also historically used to disarm white people prone to racial violence. It would have been nice for the Court to at least give a head nod to this history in light of the recent mass-killings of people of color by white supremacists, showing that the threat of racialized violence is not just historical, it’s evergreen. And besides providing an incomplete historical picture, the Court has also refused to grapple with what expanding Second Amendment rights portends for Black people today.

As this essay explains, itinerant invocations of racial justice are inadequate and potentially harmful. While, as some argued, the total elimination of gun licensing regimes may result in the reduced prosecution of Black people for simple handgun possession (although it’s important to note that Black people are disproportionately prosecuted for violating other gun laws), it also creates a whole new racial justice threat from law enforcement. Without serious revisions to Fourth Amendment policing doctrines, along with a real reckoning with the anti-Blackness endemic to America (but not only to America), Black people will never bear arms the same as white people. Or put differently, if a Black person does decide to carry a gun as freely as a white person, it will be at their peril. Bruen invokes racial justice without considering the full picture of America’s racial injustice.