Some Thoughts on Addressing Racist History in the Second Amendment Context

The claim that all gun control is inherently racist is relatively new. The claim grew to prominence in gun rights circles in the 1990s after Robert Cottrol and Raymond Diamond published their seminal 1991 article “The Second Amendment: Toward an Afro-Americanist Reconsideration.” That same year National Rifle Association (NRA) assistant counsel Stefan B. Tahmassebi proclaimed that the “history of gun control in the United States has been one of discrimination, oppression, and arbitrary enforcement” against people of color. Not long thereafter, gun rights advocate and writer Clayton E. Cramer boldly declared that “racism underlies [all] gun control laws…” The rest, as they say, is history and the claim that ‘all gun control is racist’ has latched itself onto our discourse for the foreseeable future.

While these gun rights writers would be correct in noting that gun control has at times been utilized in a way that discriminates against people of color, particularly from American colonization through Reconstruction, the historical claim that ‘all gun control is racist’ has shown itself to be completely unsupported. What these gun rights writers conveniently omit is that the legal concept of regulating access, ownership, and use of firearms is not something that was originally developed to discriminate or subdue people of color. What we today refer to as gun control predates the advent of firearms, has been around since the Norman Conquest, and has long applied to all segments of society. Still, the fact that people of color have at times been burdened with firearms related rules, regulations, and legal requirements far more severe and disproportionate than those imposed upon whites is historically indisputable.

The question that this essay seeks to answer is: How should the courts address this racist history in the Second Amendment context? This question is particularly relevant in the pending Supreme Court case New York State Rifle & Pistol Association Inc. v. Bruen, wherein the petitioners and accompanying amici—in the hopes of persuading the Court to adopt strict scrutiny—are constitutionally framing the history of all armed carriage laws as being inherently racist. Indeed, much of the racist history being advanced in Bruen is highly exaggerated and at times hypocritical. However, the fact remains that the history of gun control is at times intertwined with our country’s history of racism, and it is a history that the courts will have to wrestle with in future Second Amendment cases and controversies. But how should the courts go about it?

The way some gun rights writers see it, the best way to handle this racist history would be for the courts to jettison significant portions of the historical record when adjudicating the constitutionality of any gun control measure under a text, history, and tradition analysis, particularly any gun control measures enacted from the mid-nineteenth century through the early twentieth century. In other words, what gun rights writers are asking is for the courts to carve out a separate, exclusionary history-in-law exception for the Second Amendment. However, such an exclusionary approach to racist history—or any facet of history for that matter—is not only poorly conceived, but also ill-advised. There are at least three reasons for this.

First and foremost, the existence of racist history is not something that is unique in the Second Amendment context. Rather, racist history underlies many facets of American law, including other amendments within the Bill of Rights, such as the First Amendment and Fourth Amendment, as well as many other areas of government regulation, such as regulations pertaining to property, taxes, registrations, and licenses. Furthermore, as historian Carol Anderson has recently observed, racist history in the Second Amendment context is not a one-way street. Although I am on record taking serious issue with Anderson’s historical characterization of the Second Amendment being inherently racist at the time of ratification, Anderson is correct in noting that the Second Amendment has at times been invoked in a manner that is discriminatory towards people of color. Thus, if the courts are going to carve out a special, exclusionary history-in-law construct for the Second Amendment they will also have to consider any racist ‘gun rights’ history, which will ultimately result in the courts having to jettison even more historical events and periods. What’s worse is it would make any text, history, and tradition analysis in the Second Amendment context even more susceptible to historical cherry-picking than already exists.

Second, even if we are to assume that gun rights writers are correct in earmarking most gun control related history from the mid-nineteenth through the early twentieth century as inherently racist (and this is quite the assumption), jurisprudentially sidestepping a thorough and accurate examination of this history is ill-advised. If recent events have taught us anything, it is that society’s failure to properly acknowledge, address, and reconcile its racist past can have dire, contemporaneous consequences. The historiography of the Civil War is a principal case in point. While there is widespread academic consensus that slavery was far and away the war’s principal cause, few if any historians will dispute that when Southerners outlined their reasons for supporting the war, they often did so in states’ rights terms, and certainly many Southerners supported the war for non-slavery-based reasons. However, the historical record is replete with examples that the principal states’ right that Southerners were defending was state authority to maintain the institution of slavery without federal interference.

This view of the Civil War as a war over slavery was generally accepted throughout Reconstruction. And come our centennial, as can be seen in the above 1876 Harper’s Weekly political cartoon of Lady Liberty steering the Constitution towards ‘peace and prosperity,’ many believed that the days of ‘slavery’, ‘bigotry’, ‘prejudice’, ‘hatred’, and ‘malice’ were finally behind the country. Yet unfortunately, not long after Reconstruction Southerners successfully began reframing the Civil War as a revolutionary, ‘lost cause’ conflict over states’ rights, increasingly referred to it as the “war of Northern aggression,” and some even went so far as to defend slavery as a necessary and benevolent institution. To this day, due largely to this Southern historical reframing of the causes of the Civil War, the country has yet to fully heal and move on. The recent resurgence of white supremacist ideology, the debates over displaying the Confederate flag, and the debates over retaining Confederate monuments on government property are all cases in point.

The principal takeaway is simply this. No matter whether one sidesteps or whitewashes racist history—to include the courts—the potential for negative societal impacts is large. Conversely, at least in this author’s opinion, there is little, if any societal benefit to be gained by not addressing our racist history head-on. To assert otherwise—as some gun rights writers are doing—is to suggest that racist history does not really matter at all. 

This brings us to third and last reason why the courts should stay clear from adopting any separate, exclusionary approach to racist history in the Second Amendment context: Existing jurisprudence already provides the courts with two frameworks for acknowledging, addressing, and reconciling the racist history of laws—the 1) the Fourteenth Amendment’s equal protection framework and 2) the history-in-law constitutional rights framework recently canonized by the Supreme Court in Ramos v. Louisiana.

Beginning with the Fourteenth Amendment’s equal protection framework, it was formulated to provide the courts with a flexible, two-pronged approach to correct the wrongs of any racially discriminatory laws. The first prong involves the courts examining whether a law is racially discriminatory on its face. If it is, strict scrutiny applies. Today, however, most race-based equal protection challenges are adjudicated under the second prong, which requires the courts to examine whether a law was adopted with a racially discriminatory motive and the law imposes racially disparate impacts. And if a litigant meets the required evidentiary burden under this second tier, strict scrutiny also applies. Now, in practice, meeting the required evidentiary burden has proven exceedingly difficult for litigants, particularly at the Supreme Court. In theory, however—that is, if we are to take the Supreme Court’s pronouncements at face value—the second prong affords litigants great historical flexibility in proving discrimination before the courts. As the Court noted in the 1976 case Washington v. Davis, “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it be true, that the law bears more heavily on one race than another.” A year later, in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., the Supreme Court reiterated that the “totality” of the evidence showing racial animus was controlling. And the Court did not bind litigants to solely relying on historical evidence at the time of the law’s enactment. Rather, litigants can show the law’s discriminatory purpose through official actions taken either some time prior to or after the law’s enactment, whether that be through “direct” historical evidence or aggregated “circumstantial” historical evidence.

Of course, the Fourteenth Amendment’s equal protection framework is not perfect. This is especially true of the framework’s second prong given that the Supreme Court has yet to strike down any law as having an invidious discriminatory purpose. But the problems associated with the Fourteenth Amendment’s equal protection framework, at least in this author’s opinion, have nothing to do with litigants’ ability to present historical evidence of racism before the courts, especially given that the courts have never limited litigants’ ability to present different types of historical evidence. Rather, the problems stem from the courts’ inability to properly digest, weigh, and adjudicate historical evidence in an objective and equitable manner, which is a history-in-law problem that cuts across many, if not most jurisprudential frameworks.

In addition to the Fourteenth Amendment’s equal protection framework as a way for the courts to acknowledge, address, and reconcile the history of any express or inherent racism within our current legal system, the Supreme Court’s recent opinion in Ramos v. Louisiana provides another. In Ramos, the Court determined that history and tradition strongly weigh in favor of holding that the Sixth Amendment requires unanimous verdicts in all criminal trials, state and federal. At issue in Ramos were laws in Louisiana and Oregon, both of which allowed juries to return criminal convictions on 10-to-2 verdicts. The Court found that these two laws not only ran in sharp contrast to the laws of the other 48 states and federal courts where jury unanimity is required, but also contradicted nearly 400 years of English and American history and tradition. As part of its history and tradition analysis, the Court highlighted how the Louisiana and Oregon laws were originally adopted with racist aforethought. The extent to which the racist origins of the Louisiana and Oregon laws impacted the outcome in Ramos is difficult to ascertain. What is certain is the laws’ racial animus was partially persuasive. What is also certain is that Ramos provides another jurisprudential framework for litigants to remedy any express or inherent racism within our legal system.

Now, a close reading of the majority opinion in Ramos suggests that not all racist history is created equal. While the Fourteenth Amendment’s equal protection framework is deferential to admitting both direct and aggregated circumstantial evidence of racism, the Ramos majority opinion only relies on direct historical evidence. Yet even when the courts are faced with direct historical evidence of racial animus, as Justice Sonia Sotomayor’s concurrence notes, a law may still overcome additional judicial scrutiny if the “legislature actually confronts [it’s] tawdry past in reenacting it…” Sotomayor’s remarks on the jurisprudential impact that racist history may have on the constitutionality of laws are particularly relevant for New York State Rifle & Pistol Association Inc. v. Bruen. For what Sotomayor appears to be messaging is that the historical context of individual laws matters. It is not enough for litigants to claim that a law is racially tainted by pointing to a similar racist law of years past or to some generalized racist history. Instead, there needs to be something more tangible effectively proving that the law at issue is indeed racist or racially tainted.

The reason this is relevant in Bruen is that the petitioners and accompanying amici are arguing that because some of the first armed carriage licensing laws appeared in the Slave Codes, all armed carriage licensing laws are therefore tainted with racism and should be subject to strict scrutiny analysis. But this line of legal argument is a historical bridge too far. This is because there is no historical evidence—at least not that this author is aware of—to suggest that the advent and proliferation of armed carriage licensing laws in the mid-to-late nineteenth century were racially motivated, not even in the least bit. Rather, said laws were widely viewed as the best means available to balance the health, safety, and welfare of the municipalities that adopted them with the Second Amendment and self-defense needs of law-abiding residents. It does not help the petitioners and accompanying amici in Bruen that not one Justice lent it credibility during oral argument. The only Justice to bring up the matter was Sotomayor, who expressed great skepticism and pointed to the Fourteenth Amendment as the proper remedy for dealing with any racial discriminatory effects that may arise from New York’s “may issue” concealed carry law.

The fact that no other Justice brought up racism in the context of armed carriage licensing laws is not to say that one or several Justices will not give petitioners’ and accompanying amici’s racist line of argument any consideration or accept it wholesale. If past is prologue, Justice Clarence Thomas will surely give the argument some thought. The same may be said of Justice Brett Kavanaugh. For in Ramos, it was Kavanaugh, writing in concurrence with the majority, who noted the importance of purging “racial prejudice,” as well as laws with “racist origins” and “racially discriminatory effects” from our system of government.  But naturally this is all just speculation, and we should know more in the coming months.

Click here to view a PDF of this essay. 

Cite as: Patrick J. Charles, Some Thoughts on Addressing Racist History in the Second Amendment Context,  Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 14, 2022), https://firearmslaw.duke.edu/2022/01/some-thoughts-on-addressing-racist-history-in-the-second-amendment-context.  

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

A Historian’s Assessment of the Anti-Immigrant Narrative in NYSRPA v. Bruen

In the upcoming Supreme Court case New York State Rifle & Pistol Association v. Bruen (20-843), the petitioners and several accompanying amici are characterizing New York’s 1911 Sullivan Law as having deep anti-immigrant roots. In one section of petitioners’ brief it is alleged that “New York was at the forefront of this new wave of discrimination” with the law, “and it used discretion…to achieve its goal.”  In another section petitioners allege that the “[Sullivan Law] was passed with an avowed intent, supported by everybody from City Hall to the New York Times, to disarm newly arrived immigrants, particularly those with Italian surnames.” Similarly, in an amici curiae brief filed by Italo-American Jurists and Attorneys, it is alleged that “the historical record shows that much of the impetus for the law came from a reaction to crime many associated with first- and second-generation Italian immigrants.”

In an amicus curiae brief in support of neither party, I characterize this anti-immigrant historical narrative as “speculative at best.” The reason for my speculative assessment—although not fully outlined in the brief—is two-fold. First, there is nothing in the legislative record that even remotely suggests the Sullivan Law was enacted with anti-immigrant intent or aforethought. For any court, let alone the Supreme Court to declare a law as having what petitioners deem to be “avowed” discriminatory intent will require substantiated evidence showing as much. The legislative record is obviously the best evidence. The political and personal writings of any involved lawmakers can also prove persuasive. However, in the case of the Sullivan Law, this evidence is utterly lacking. The only evidence that petitioners and accompanying amici can point to are a handful historical newspaper opinion editorials and articles. But this provides little in the way of proving anti-immigrant legislative intent.

This brings us to the second reason why petitioners’ and accompanying amici’s anti-immigrant narrative is speculative; at the time New York adopted its discretionary armed carriage licensing law as part of the Sullivan Law, such laws were already prevalent throughout the United States. In New York alone, by 1911, 8 major municipalities had adopted discretionary armed carriage licensing laws. This included Albany, Buffalo, Brooklyn (passed standalone law but incorporated by New York City in 1898), Elmira, Lockport, New York City, Syracuse, and Troy. The historical point to be made is that for petitioners’ and accompanying amici’s anti-immigrant claims to ring historically true would require uncovering a nationwide anti-immigrant conspiracy. It would mean that most of the other discretionary armed carriage licensing laws adopted prior to the Sullivan Law, to include Massachusetts’ 1906 law, were insidiously adopted with anti-immigrant aforethought. Yet there is no substantiated evidence to support this claim. 

This begets the question: if there is nothing of historical substance that supports the anti-immigrant narrative of the Sullivan Law, how did it enter the public discourse and subsequently make its way before the Supreme Court? The answer is the anti-immigrant narrative is merely one of many anti-Sullivan Law narratives advanced by gun rights proponents dating back to the law’s enactment. The Sullivan Law was in fact the impetus and continued driving force behind the first gun rights movement. As I detail in Armed in America: The History of Gun Rights from Colonial Militias to Concealed Carry, it was not long after the Sullivan Law was enacted that the early gun rights movement assailed the law as everything from “anti-American,” to a “disgrace and shame to a liberty loving nation,” to “harmful to the interests of the community,” to “repulsive to the average thinking citizen.” Some within the gun rights community went so far to characterize anyone who supported the Sullivan Law as a “traitor to the country” and speculated that the growth of firearms regulations in general was part of a larger sinister scheme to disarm the entire United States. And when the National Rifle Association (NRA) commandeered the gun rights movement as its very own, the slippery slope to disarmament argument against the Sullivan Law was utilized frequently and remains a widely used talking point against firearms restrictions to this day.

It was not until the 1960s that gun rights proponents introduced into the public discourse the first history-based anti-Sullivan Law narrative. The history-based narrative being that the Sullivan Law was “rammed” through the New York Assembly by state senator Timothy D. Sullivan, whom the law is named after, to consolidate his political power and disarm his rivals. Additionally, to make it appear as if the law was the idea of a deranged madman, Sullivan’s having been later committed was mentioned frequently. Yet this new anti-Sullivan Law narrative completely missed the historical mark in several respects. For one, the Sullivan Law was not “rammed” through. Rather, it was properly considered after several hearings and adopted almost unanimously, with 194 of the 201 elected assemblymen and senators voting for it. Secondly, there is no historical evidence, either direct or circumstantial, to suggest that Sullivan intended on using the law to consolidate power and disarm his political enemies. The claim appears to have been created out of thin air. Third and lastly, the new anti-Sullivan Law narrative completely sidestepped the reams of historical evidence showing the law was primarily a response to an increase in firearms-related violence and homicides, particularly in New York City. (See Charles, Armed in America, pp. 173-82 and accompanying notes.)

It was not until 1975 that the anti-immigrant narrative of the Sullivan Law first appeared in a book titled The Gun in America: The Origins of a National Dilemma. Written by Lee Kennett and James LaVerne Anderson, the book suggests that the modern growth of firearms restrictions from the late nineteenth through the early twentieth century was in part due to widespread anti-immigrant sentiment. What substantiated historical evidence did Kennett and Anderson provide to back their anti-immigrant claim? Not much. Just a few New York City based newspaper opinion editorials and articles, none of which proves that the Sullivan Law was indeed enacted with anti-immigrant intent or aforethought. Nevertheless, it did not take long before gun rights proponents began recycling Kennett’s and Andersons’s anti-immigrant narrative as verifiably true—the most notable being Don B. Kates, who in his 1979 book Restricting Handguns: The Liberal Skeptic Speaks Out was rather forthright in leveling the anti-immigrant charge. In Kates mind, it was no coincidence that the Sullivan Law and other modern firearms restrictions came about during “the most xenophobic period of American history.” Yet in leveling this divisive “xenophobic” historical charge, Kates provided nothing in the way of actual historical evidence—repeat, nothing.

In the more than four decades since the publication of Kennett’ and Anderson’s Guns and America and Kates’ Restricting Handguns, many gun rights writers have recycled the anti-immigrant Sullivan Law narrative as historically true. This includes the likes of David B. Kopel, Robert J. Cottrol, Raymond T. Diamond, T. Marks Funk, and Stefan B. Tahmassebi—all of whom are cited in the petitioners’ and accompanying amici’s briefs in Bruen to advance the anti-immigrant Sullivan Law narrative. And as historical support for each one of these gun rights writers’ anti-immigrant assessment of the Sullivan Law they cite the same two principal sources—Kennett’s and Anderson’s Guns and America and Kates’ Restricting Handguns.

Yes, the entire evidentiary basis for the anti-immigrant narrative of the Sullivan Law comes from unsubstantiated allegations made in two books. This type of circular citation gymnastics has been ongoing in gun rights literature since the mid-to-late 1970s. As historian Don Higginbotham acutely observed more than two decades ago, the tactic of “borrow[ing] very heavily from each other, recycling the same body of information,” is standard practice among many gun rights proponents. Why would anyone expect the anti-immigrant narrative of the Sullivan Law to be any different?

Circular citation gymnastics issue aside, there is an even greater historical accuracy problem with the anti-immigrant Sullivan Law narrative. This problem being the evidentiary basis for the narrative’s principal historical claim, i.e. that for the first three years of the Sullivan Law, 70% of those arrested had Italian surnames. Accepting the claim on its face suggests that the Sullivan Law was enforced with anti-immigrant aforethought. The petitioners and accompanying amici in Bruen cite David B. Kopel’s 1992 book The Samurai, the Mountie, and the Cowboy as the principal source for the 70% number. However, as Kopel’s footnotes show, the 70% number originated from a book published by the Second Amendment Foundation.

And it turns out that the 70% number is rather specious. For at no point does the author of the 70% number, Brendan F.J. Furnish, provide any data or citations to back it. Indeed, Furnish writes that he arrived at the 70% number after performing a “close perusal of New York Times articles” spanning from 1911 to 1913. However, no other information is provided. How many instances of enforcement did Furnish find? We don’t know. What were the Italian surnames? We don’t know. In which section(s) of the New York Times did Furnish look? We don’t know. In other words, Furnish did nothing in the way of providing follow-on researchers the information necessary to fact check his 70% number without doing their own full analysis of the New York Times from 1911 to 1913. But even assuming that Furnish had located every New York Times example of the Sullivan Law being enforced and the Italian surname number was 70%, that data only provides us with sample of all Sullivan Law enforcement in the state.

With that said, the 70% number piqued my historical curiosity about what could be gleamed from examining the Sullivan Law arrests reported in the New York Times from 1911 to 1913. In conducting my search, I first utilized the New York Times Index. I then performed a variety of digital newspaper searches. In doing so, I did not limit myself to merely searching the term “Sullivan Law,” for at times the Sullivan Law was referred to as the “Sullivan Act.” Additionally, at times the Sullivan Law was referred to as the “Sullivan weapons law,” “Sullivan weapons act,” “Sullivan anti-pistol law,” or some variation thereof. Thus, by conducting a broader, more expansive digital newspaper search I ensured that I was provided with a larger data set than that listed in the New York Times Index.

Ultimately my search for Sullivan Law arrests reported in the New York Times from 1911 to 1913 produced 89 named defendants and 43 unnamed defendants. Out of the 89 named defendants, the New York Times reported the final outcome for only 13. Meanwhile, out of the 43 unnamed defendants, the New York Times reported that 41 received prison sentences ranging from 9 to 21 months and a monetary fine averaging $500. For these 41 unnamed defendants to receive prison sentences and fines, nothing in the way of the defendants’ gender, race, socio economic status, or background was provided.  As for what can be gleamed from the totality of the Sullivan Law arrests reported in the New York Times, here are four historical takeaways:

  • During the first week of enforcement, there was confusion as to whether the Sullivan Law’s restriction on carrying a concealable firearm without a license applied to shotguns, as can be seen in the examples of Dominic Corborez and Henry Becker, who were both carrying their shotguns in cases.
  • If one accepts the reporting of the New York Times at face value, the overwhelmingly majority of reported Sullivan Law arrests appears justified. There are, of course, exceptions. Take for example the Sullivan Law arrest of Samuel Teraina, a janitor, who discharged his pistol to quickly alert surrounding neighbors and the authorities that a building was on fire. The fire was quickly put out and the building was saved, yet Teraina was arrested as violating the Sullivan Law. Another example is Frank Grekorverk, a German traveler, who upon learning about the Sullivan Law tried to turnover his handgun to the police in good faith. However, Grekorverk was immediately arrested and held to stand trial. Then there is the example of Ricardo Petrovitch, a newly arrived Italian opera manager, who was carrying a prop “stage pistol” in his belt upon arriving to New York City by ship. Petrovich was arrested under the Sullivan Law upon undocking. While one would hope that the facts of each of these three cases resulted in either the charges being dropped or the case dismissed, the reporting of the New York Times does not provide an answer.
  • Those arrested in violation of the Sullivan Law were not a monolith—males and females, citizens and immigrants, young and old, rich and poor were all arrested. However, if one accepts the reporting of the New York Times at face value, roughly half of all arrests came by luck or happenstance, such as a person reporting to nearby police they spotted an individual carrying a firearm and police finding a firearm, a person carelessly leaving out a pistol holster in their vehicle during a police stop which led to a vehicular search locating the unlawful weapon, a spouse threatening to kill or hurt the other spouse with a handgun and the police subsequently learning the handgun was not licensed, etc.
  • The anti-immigrant Sullivan Law narrative in Bruen, as advanced by petitioners and accompanying amici’s is false. For one, the claim that 70% of those arrested under the Sullivan Law had Italian surnames is unsubstantiated. For out of the 89 named Sullivan Law defendants reported by the New York Times, only 27 or 30% had Italian surnames. Indeed, 30% is a high number. However, when one considers that roughly half of the 27 Sullivan Law arrests involved persons with a prior criminal record or a known association with an Italian gang, and that the 1910 Census shows that roughly 17% of New York City residents identified as Italian and 40% of New York City residents were foreign-born, the 30% number is not all that alarming. This is not to say that Italians living in New York City did not face discrimination or mistreatment. They most certainly did, sometimes at the hands of the New York City Police Department. Take for instance the early May 1912 deaths of New York City police officers William Heaney and Charles J. Teare. Both died at the hands of Italian gunman, who was targeting known Italian gangster John Rizzo. Heaney and Teare appear to have been caught in the gunfire. But their deaths prompted the New York City deputy police commissioner to order the “police throughout the city [to be] on the lookout for Italians carrying revolvers and other concealed weapons…” It was an order that resulted in many Italians being stopped and searched for unlawful weapons, and ultimately the May 11th Sullivan Law arrests of Anthony Ferrara, Ignasto La Cavora, Calegero Salema, Antonio Consigilio, and Samuel Vanicori. It is worth noting, however, the fact that the New York City Police Department at times expressly targeted Italians when enforcing the Sullivan Law does nothing in the way of proving that the law was enacted with anti-immigrant intent or aforethought.

There are indeed other historical observations that can be drawn from the Sullivan Law arrests reported in the New York Times from 1911 to 1913, as well as other criticisms I could levy at petitioners’ and accompanying amici’s anti-immigrant Sullivan Law narrative in Bruen. But for the sake of brevity, those criticisms are better levied elsewhere.

Judging the Ninth Circuit’s Use of History in Young v. Hawaii

Since the Ninth Circuit Court of Appeals issued its en banc decision in the much-anticipated Second Amendment outside the home case Young v. Hawaii, there has been a parade of critical commentary from gun rights circles. Gun Owners of America Senior Vice President Erich Pratt described the decision as both embodying a hypocritical “‘guns for me, but not for thee’ double-standard” and ignoring the plain text of the Second Amendment—that is the right to “bear arms…shall not be infringed.” Similarly, Firearms Policy Center Director of Constitutional Studies Joseph Greenlee criticized the Ninth Circuit for “effectively eliminat[ing] the word ‘bear’ from the Constitution” and undermining “half a millennium of Anglo American legal history….” Meanwhile, gun rights scholars David B. Kopel and George Moscary have taken to criticizing the Ninth Circuit for allegedly committing several textual and historical errors of omission.

While I agree that the Ninth Circuit engaged in a few historical missteps or omissions, the majority opinion’s use of historical evidence, sources, and reasoning—and doing so in a way that was jurisprudentially transparent—makes it thus far the gold standard in utilizing history-in-law to adjudicate a Second Amendment question. What I mean by history-in-law is the study of how the law has evolved in a particular area, what events and factors cause the law to evolve, and how—if at all—this history is important when adjudicating constitutional questions. History-in-law should not be confused with originalism. The latter is primarily a textually based inquiry into the past, which is often ignorant of perils of historical inference. Meanwhile, the former—history-in-law—requires being honest about what the historical record does and does not clarify. Additionally, under history-in-law, the practice of historical inference or historical conjecture is strongly discouraged.

The use of historical inference or historical conjecture has been a staple in Second Amendment scholarship since the mid-1970s. Since that time, gun rights advocates have repeatedly claimed that the 1328 Statute of Northampton prohibition on carrying dangerous weapons in public places was almost never enforced and when it was it only applied in those instances when someone carried the weapons in a terrifying manner. Both historical claims have turned out to be patently false, for both were principally built upon 1) an inability to conduct intensive historical research; 2) the parsing of historical texts and subsequently explaining away their meaning; and 3) a failure to adequately test their chief historical claim—that the Statute of Northampton was only violated when individuals carried weapons in a terrifying manner.

Thankfully, for the sake of history, the Young majority cast aside these false historical claims and did so with intellectual humility. Throughout its discussion on the Statute of Northampton, the Young majority made a valiant effort to fully weigh and consider the competing historical claims of the appellees, appellants, and their accompanying amici. And in those instances where the Young majority felt it was unqualified to decide between the litigants’ competing and conflicting historical claims, the Young majority resorted to relying on those broader, undisputed facets of the historical record. I have referred to this is jurisprudential approach as the historical consensus approach to history-in-law. The Young majority particularly resorted to relying on historical consensus in its analysis of  Sir John Knight’s Case and I applaud them for their approach. For by relying on the broader, undisputed facets of the historical record, the Young majority was able to sidestep the potential long-term constitutional consequences of having to choose between competing and conflicting historical accounts, especially how competing and conflicting accounts often create poor constitutional constructs and facilitate historical mythmaking.

Some in gun rights circles have taken issue with the Young majority’s resort to consensus history. The way they see it, getting Sir John Knight’s Case ‘right’ is critical to properly adjudicating the Second Amendment outside the home. This is because, according to gun rights scholarship dating back to the mid-1970s, Sir John Knight’s Case was unequivocally understood by the Founding Fathers to be the leading case on the Statute of Northampton—and it was a case that from then on jurisprudentially decided that said statute applied only to carriers who caused a breach of the peace that terrorized the public.

There are several problems this longstanding gun rights centric take on Sir John Knight’s Case, and I strongly recommend Tim Harris’s piece within A Right to Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment. Still, for argument’s sake, even assuming the longstanding gun rights centric take of Sir John Knight’s Case is indeed historically accurate (and that is quite a large assumption), there is not a shred of historical evidence to suggest that the Founding Fathers understood it to be the leading case on the Statute of Northampton. In fact, the first ever citation to Sir John Knight’s Case in any American case, legal commentary, newspaper, or personal correspondence does not appear until 1843. Stop and think about that for a moment. How can anyone claim the Founding Fathers understood a case to be authoritative if it was never mentioned or appeared in American discourse from the time it was decided in 1686 to 1843? The answer—at least to historians—is the claim is a complete fabrication. And fabricated history is quite simply not history at all. It is fiction.

And this is not the only problem with following the longstanding gun right centric take on interpreting the Statute of Northampton post-Sir John Knight’s Case. There remains an abundance of methodological problems that persist to this day despite historians correcting them. Perhaps the most notable is how both gun rights scholars and advocates often omit those pieces of historical evidence that show the Statute of Northampton prohibited both bringing force affray and the act of carrying dangerous weapons in public. As prominent sixteenth century English legal writer William Lambarde wrote in his highly influential 1582 treatise Eirenarcha:

Yet may an affray be without worde or blow given as if a man shall sh[o]w himself furnished with armour or weapon, which is not usually worne and borne, it will strike a feare to others that be not armed as he is: and therefore both the Statute of Northampton . . . made against the wearing of Armour and weapon and the Writte thereupon grounded, doe speake of it, by the words, effrey del pays, an, in terrorem populi.

Lambarde also wrote about the Statute of Northampton in the treatise The Duties of Constables, in which he made sure to reference a recent proclamation made by Queen Elizabeth I on the matter:

[I]f any person whatsoever (except the Queenes servants and ministers in her presence, or in executing her precepts, or other offices, or such as shall assist them: and except it be upon Hue and Crie made to keep the peace, and that in places where acts against the Peace do happen) shall be so bold, as to go, or ride armed, by night, or by day, in Faires, Markets, or any other places: then any Constable, or any other of the saide Officers, may take such Armour from him, for the Queenes use, & may also commit him to the Gaole. And therefore, it shall be good in this behalf, for the Officers to stay and arrest all such persons as they shall find to carry Dags or Pistols, or to be appareled with privie coates, or doublets: as by the proclamation [of Queen Elizabeth I]…

Lambarde’s restatements are important for understanding the scope of the Statute of Northampton in the centuries that followed. For it was Lambarde’s treatises that other prominent legal commentators understood, restated, and paraphrased the scope and meaning of the Statute of Northampton. These prominent legal commentators include Abraham Fraunce, Michael Dalton, Edward Coke, and William Hawkins to name a few.

As irony would have it, gun rights scholars and advocates are not alone in omitting Lambarde’s writings on the Statute of Northampton. So too did the Young majority. Yet despite this omission, the Young majority did pull from other, later-in-time legal commentators—some who were influenced by Lambarde’s writings—to come to the right conclusion that English treatises by and large show that the Statute of Northampton prohibited the act of carrying dangerous weapons in public places, not some particularized intent to terrify as gun rights scholars have falsely claimed for decades.

Criticizing how the Young majority restated the Statute of Northampton is of course only one historically based criticism from within gun rights circles. There are indeed several others and each stem from a desire to elevate one-sided conflict history over consensus history. In other words, the historically based criticisms within gun rights circle seek to minimize—and hopefully mute—those facets of the historical record that show a wide array of regulation pertaining to public carry, whether openly or concealed.  At the same time, the same criticisms seek to elevate those facets of the historical record that seemingly support a broad right to carry firearms in public places.

The problem with the Ninth Circuit, or any court for that matter, accepting one-sided conflict history over consensus history is essentially two-fold. First, such an approach to constitutional adjudication would send the wrong message that historical subjectivity and inferences can trump historical objectivity and facts. While there is certainly no requirement that litigants in constitutional cases be historically objective and honest, the judges overseeing the cases—at least in my humble opinion—should make a valiant attempt to get history right, or at the very minimum minimize historical errors. Second, although the legal profession, to quote Judge Richard Posner, is the “most backward looking” of the professions, the courts should refrain from declaring what does and does not qualify as history. The Young dissent appears to have ignored these problems, all in the name of precedent requiring it. Fortunately, for the sake of history, the Young majority disagreed, noting:

We acknowledged from the very beginning that the historical record was mixed and that we were going to have to work through it—all of it—to discern the long-term trends. The dissent has picked its friends and come to a fore-ordained conclusion that its friends have spoken with a “single American voice”…We do not believe that Heller has decided the issue presented to us in this case, nor do we believe that Heller has foreclosed our examination of the historical record. But we, and the dissent, should be clear: If Heller has answered these questions then there is no reason to review the historical record. In the end the dissent’s view is not that our understanding of the history is wrong, but that history is now beside the point because Heller has reached a different conclusion. But that is an argument based on Heller, not an argument based on the historical evidence, and we ought not to pretend that selective citation of historical sources is itself good history.

Historical Hallelujah.

The Black Panthers, NRA, Ronald Reagan, Armed Extremists, and the Second Amendment

In 1967, California codified into law A.B 1591, otherwise known at the Mulford Act.  Sponsored by Oakland assemblyman Don Mulford, A.B. 1591 made it a felony to publicly carry any firearm—either openly or concealed—in public places without a governmental license to do so.  The law came about after the events of May 2, 1967, when a group of thirty Black Panthers appeared visibly armed at the California State Capitol building to protest an earlier version of A.B. 1591.  At that time, there was nothing in California law that expressly prohibited the open carriage of firearms, either in public or private.  A.B. 1591 effectively closed this loophole.

Today, given that A.B. 1591 is seen as a reaction to the actions of the Black Panther Party, it is not uncommon to hear from scholars that A.B. 1591 is, at least in part, racist.  For instance, on this blog, Jake Charles categorized A.B. 1591 as one of several firearms laws with an “ugly past.”  While it is understandable why someone might view A.B. 1591 as being tainted by racism, the legal rationale behind A.B. 1591 is not.  The legal rationale for A.B. 1591 was about opposing armed vigilantism by anyone, not just vigilantism threatened by African Americans.

It must be remembered that the events of May 2, 1967 came a day after the NRA published the American Rifleman editorial “Who Guards America’s Homes.”  The editorial was interpreted by many in the news media—fairly or not—as promoting armed vigilantism and extremism.

Certainly, extremists, like the militantly anti-communist Minutemen, used American Rifleman editorials like “Who Guards America’s Homes” to spread their ideology.  This despite the fact that the NRA rightfully rejected any intentional association with the Minutemen.  Since 1940, after news of several NRA members being linked to the anti-Semitic Christian Front and the German Bund, opposing extremism had been a requirement to even join the NRA.  And, while it was rare within the pages of American Rifleman to see anyone pictured who was not white or Caucasian, at no point did the NRA ever take the position of excluding anyone from the organization on the basis of race, color, or creed.

Conversely, at least one newspaper columnist read the American Rifleman editorial as promoting the Black Panthers’ creed of going publicly armed anywhere and everywhere. A Black Panther document titled “What We Want Now! What We Believe,” included the following:

“We believe we can end policy brutality in our black community by organizing black self-defense groups that are dedicated to defending our black community from racist police oppression and brutality.  The Second Amendment of the Constitution of the United States gives us a right to bear arms.  We therefore believe that all black people should arm themselves for self-defense.”

However, to link any of the NRA’s literature with the Black Panthers’ belief on the necessity of going publicly armed was more nominal than real. What undermines this link between the NRA and support of armed protest by the Panthers was the fact that the NRA not only helped Mulford in drafting A.B. 1591, but also supported its passage.  The actions of the Black Panthers on May 2, 1967 utterly shocked California lawmakers and all but ensured A.B. 1591’s passage. But that does not mean that A.B. 1591 was motivated by racial animus.  The fact remains that it is was the NRA that aided in A.B. 1591’s passage.  The NRA did so in part because the organization had recently published several press releases denouncing armed extremism in all its forms.  The editorials came about due to the public backlash to the editorial “Who Guards America’s Homes.”  One of the NRA press releases recited the organization’s anti-extremist organization policy, and read as follows: “The NRA does not approve or support any group activities that properly belong to the national defense or police.  The NRA does not approve or support any group that by force, violence, or subversion seeks to overthrow the Government and take the law into its hands, or that endorses or espouses doctrines of operation in an extralegal manner.”

The NRA’s anti-extremist policy undoubtedly applied to the Black Panther Party, but that was not the only reason the NRA, Mulford, and an overwhelming majority of California lawmakers supported A.B. 1591.  What few histories on A.B. 1591 mention is that it was not just the Black Panthers that California lawmakers were concerned about.  Governor Ronald Reagan’s office had been warned on several occasions that white suburban communities were forming armed patrols in contravention to the requests of local law enforcement. As Mulford noted in a letter defending A.B. 1591, “Let me assure you…that there are no racial overtones in this measure.  There are many groups that have been active in Californian with loaded weapons in public places and this bill is directed against all of them.”   In another letter defending A.B. 1591, Mulford wrote: “This legislation was specifically designed with the help of the National Rifle Association to protect our constitutional right to bear arms and yet to assist the law enforcement people who asked for this bill do to something about the armed bands of citizens who are walking our public streets and in public places with loaded weapons.”

In addition to opposing armed extremism, A.B. 1591 was in line with how the NRA and other sportsmen groups viewed the Second Amendment outside the home circa 1967—as a limited right to transport firearms for lawful purposes, such as for recreational shooting, hunting, and to and from residences.  Throughout most of the twentieth century, the NRA had supported a policy of having more armed citizens to deter crime. This policy preference was frequently conveyed within the pages of American Rifleman. Up to 1985, however, the NRA made sure to hedge its preference of having more publicly armed citizens on the conditions that the person be law-abiding, properly trained in the use and handling of firearms, and have a justifiable reason for doing so.  This limited Second Amendment right to transport firearms was echoed by governor Reagan, who signed A.B. 1591 into law.  In 1966, Reagan had in part run his gubernatorial election on a gun rights platform.  Yet, as it pertained to the Second Amendment outside the home, Reagan’s view was in line with the NRA’s.  “I don’t know of any sportsman who leaves his home with a gun to go out into the field to hunt or for target shooting who carries that guns loaded,” stated Reagan in support of A.B. 1591, adding, “The first thing any real sportsman learns is to carry an empty gun until he gets to the place where he’s going to do the shooting.”

The 90th Anniversary of NRA’s First Guiding Legislative Policies and the Implications for NYSRPA v. City of New York


When “Merry Christmas—And Gun Laws” was published, the NRA had been involved in the political fight against restrictive firearms legislation for just two years.  And over those two years, while the NRA indeed published several editorials that were critical of restrictive firearms legislation, the NRA had yet to publish anything usefully constructive.  For this reason alone, “Merry Christmas—And Gun Laws” is historically significant.

, i.e. that state and local governments maintained broad police powers to both permit and restrict the carrying of firearms in public places?  Should the Court give any weight or consideration to the modern, living constitutionalist conception of the Second Amendment, i.e. that state and local governments must afford individuals some outlet to carry firearms in public places? 

, such as from one’s home to business, and vice-versa, for repairs, from and to the firearm’s point of sale or purchase, and for shooting activities such as hunting and target shooting.  Such a right in fact comports with the NRA’s 1929 “guiding policies.” While the NRA did not object to permitting and restricting armed carriage in public places, the NRA outright opposed the idea of prohibiting the transportation of firearms for lawful purposes, particularly the transport of firearms “to and from the target range” and on “hunting trips.

The Untold, Somewhat Embarrassing Story Behind the NRA’s Laudatory Messages from President’s Roosevelt, Truman, and Eisenhower

To say the history of gun rights is full of hyperboles, misnomers, and myths would be an understatement.  Time and time again, when historians examine the history of gun rights, it turns out that what is long claimed to be settled history is more nominal than real.  There is an abundance of examples of this, several of which are outlined in my book Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry.

My recent research trip at the Dwight D. Eisenhower Presidential Library shed much light on another historical hyperbole—that Presidents Franklin D. Roosevelt, Harry S. Truman, and Eisenhower each, on their own volition, sent the National Rifle Association (NRA) laudatory messages of support.

From the late 1930s through the early 1960s, the NRA used these laudatory messages to help promote the organization as one of America’s most patriotic and beloved.  According to the NRA’s view of history, it was only following the assassination of President John F. Kennedy that the biased, liberal-media began reporting on the NRA’s opposition to gun control—improperly calling the organization’s good standing into question.

There are several factual problems with this historical narrative, but none more so than the fact that—despite the NRA’s public testimonials stating otherwise—from the late 1930s through the early 1960s the NRA was principally behind the defeat of most proposed gun controls, whether it be at the federal, state, or local level.  Moreover, although the NRA often lauded itself for the passage of the first federal firearms controls—the 1934 National Firearms Act (NFA) and 1938 Federal Firearms Act (FFA) respectively—the NRA did everything within its power to prevent their passage. This included going so far as to offer a provision in the 1938 FFA that would have repealed the 1934 NFA in its entirety. Needless to say, from the 1930s through the early 1960s, the NRA was not so much a supporter of gun control as it was supporter of its own interests.

The point to be made is that when it comes to the history of gun rights, what many have long stated to be true is anything but. The reality is that the history of gun rights is often complex, multi-faceted, and its context often changes when historians peek behind the proverbial curtain. Such is the case for the laudatory messages of presidents Roosevelt, Truman, and Eisenhower’s to the NRA.  If one were to solely examine NRA literature, the historical takeaway is that the NRA was time and time again recognized by presidents as the nation’s preeminent patriotic organization.  However, a closer look reveals that neither Roosevelt, Truman, nor Eisenhower were responsible for said laudatory messages. It was the NRA.

For all three presidents, not only did the NRA leverage its contacts within the Department of War and Department of Navy to make the laudatory messages possible, but the NRA even drafted them.  Yes, you read that right—the NRA has historically celebrated laudatory messages from three presidents that the NRA principally authored.

In 1938, in the case of Roosevelt, it was NRA Executive Vice President Milton A. Reckord that submitted a request through Colonel James Roosevelt. The request eventually reached White House assistant William D. Hassett, who then reached out to the War Department to inquire whether “such a message is justified.”  Within a matter of days, the War Department sent a note to Roosevelt recommending that the president oblige the request.  Included within the War Department’s note were minor edits to the NRA’s self-written laudatory message. Days later, Roosevelt signed it and in the March 1938 edition of the American Rifleman read the headline, “President Commends Association at Annual Meeting.”

In 1945, in the case of Truman, it was Jim Berryman, editor of the American Rifleman, who reached out to the White House.  Berryman requested that the White House do the NRA a “favor” by drafting a letter of commendation and having Truman personally sign it, or what Berryman otherwise referred to as a “brief ‘pat-on-the-back.”  Ultimately, it was not anyone in the White House that drafted the letter of commendation, but rather the NRA.  The final letter of commendation signed by Truman, except for a few deletions, was virtually one and the same as the NRA’s.

The same can almost be said of Truman’s statement regarding the formation of the National War Trophy Safety Program (NWTSP).  The statement came about following the NRA having defeated the Truman administration’s attempt to pass legislation expanding federal firearms registration. At that time, the country was being flooded with surplus foreign firearms and explosives from World War II.  These weapons subsequently turned up at crime scenes, and were attributing to thousands of accidental deaths across the country. The Truman administration initially wanted to expand firearms registration as the solution—that is until the NRA handily killed it in Congress and convinced the War Department to accept an education over legislative approach with the formation of the NWTSP.

Therein, the NRA assisted in drafting a statement for Truman to sign endorsing the NWSTP. Truman agreed with most of what was in the draft except for one notable deletion. The draft proposed Truman state, “In my opinion, legislation cannot eliminate or reduce the existing hazard. The problem is one of education.” Truman’s staff deleted the first sentence entirely and modified the statement to read, “The problem is one primarily of education.”

Perhaps no president—that is until after the politicization of gun rights in the late 1970s—signed more laudatory messages to the NRA than Eisenhower. From 1953 through 1960, except for 1959, Eisenhower sent a laudatory message to the NRA for every annual convention.  Given this fact, one would assume that Eisenhower was a true-blue NRA supporter. Hereto though, it turns out that Eisenhower’s praise of the NRA was not so much his personal thoughts, but what the NRA wanted to project.  For one, the NRA, not Eisenhower, initiated and drafted each of the laudatory messages. Indeed, for several of the laudatory messages, Eisenhower’s staff edited the NRA’s drafts substantially, but the NRA initiated and drafted each of them, nonetheless.

Second, although it is true that Eisenhower became an NRA life member in 1956, much like John R. Kennedy and Richard Nixon, Eisenhower’s NRA life membership was not of his own volition. Rather, it was bestowed upon him for being the president, and it was one of hundreds of honorary memberships bestowed upon Eisenhower during his time in office.  Other memberships include the Sapsscam Amateur Chefs Club and the American Society of Mechanical Engineers, to name a few.  But what is particularly telling as to why Eisenhower was an NRA member in name only, was an edit to the NRA’s 1960 draft laudatory message. In it, the NRA asked Eisenhower to state, “I am proud to be a Life Member of the NRA,” but the sentence was deleted, with no mention of Eisenhower’s honorary membership included anywhere.

Why is this history important? Two reasons come to mind. First, as outlined earlier, it reinforces that there is much in the category of gun rights history that is left to be fleshed out by historians. Second, and more importantly, it highlights that the NRA was the primary driving force, and embarrassingly the ghost writer, behind most of its high-profile laudatory messages.