Race, Ramos, and the Second Amendment Standard of Review

Essay — Volume 107

107 Va. L. Rev. Online 193
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*Justin Aimonetti, University of Virginia School of Law, J.D. 2020; University of Virginia, M.A. (History) 2020. Christian Talley, University of Virginia School of Law, J.D. 2020; Oxford University M.St., 2017. We wish to extend special thanks to Barrett Anderson and the Online editing team for their editorial assistance. We are solely responsible for any errors.Show More

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.


Imagine that a federal court must decide whether some challenged state action impermissibly burdens a constitutional right; say, the First-Amendment right to peacefully assemble. To discern how “fundamental” that right is, the court surveys the historical burdens past state legislatures have imposed upon it. It turns out that several states throughout the South enacted unlawful-assembly statutes from about 1870 to 1920. Relying on those historical restrictions, the court determines that it was then broadly agreed that states could curtail peaceful assembly. And that historical evidence, in the court’s view, shows that such a right must not be very “fundamental.” So on that basis, it upholds a modern law that likewise infringes the right to assemble.

But imagine, too, that the historical evidence the court relied upon was “tainted.” Further research reveals that Southern states enacted unlawful-assembly statutes in that period for racist reasons and enforced them disproportionately against racial minorities. Fearing newly freed slaves’ participation in political life, states passed facially neutral restrictions that they deployed in practice to bust up minority gatherings. The modern court invoking these laws apparently never discerned that critical context, taking them instead at face-value. Would anyone think the court wise to have relied on such tainted history in diluting modern assembly rights?

The answer, surely, is “no.” As the Supreme Court explained last year in Ramos v. Louisiana, laws enacted for racially discriminatory reasons that continue to burden constitutional rights deserve special scrutiny.1.140 S. Ct. 1390, 1410 (2020).Show More “[T]he racially discriminatory reasons” for which states originally adopted such laws cannot simply be “[l]ost in the accounting.”2.Id. at 1401.Show More To the contrary, laws’ “racially biased origins . . . uniquely matter,” especially when those laws continue to burden rights enshrined in the Constitution.3.Id. at 1408 (Sotomayor, J., concurring).Show More In Ramos itself, for instance, the Court deemed unconstitutional tainted state laws that denied criminal defendants their Sixth-Amendment right to be convicted only by a unanimous jury.4.Id. at 1394–95.Show More

But if it’s really so clear that courts must discount racially tainted laws in their calculus of how “fundamental” society considers a right, then something has gone seriously awry in our federal courts in the context of another constitutional guarantee: the Second Amendment. In its Heller decision, the Supreme Court recognized that the Second Amendment protects an individual right to keep arms.5.District of Columbia v. Heller, 554 U.S. 570, 592 (2008).Show More Two years later, the Court’s McDonald decision incorporated that right against the states.6.McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010). Uncertainty lingers over how the Second Amendment was incorporated against the states. In McDonald, four Justices opted to incorporate the Second Amendment via the Fourteenth Amendment’s Due Process Clause. Id. at 742. Justice Thomas wrote alone to suggest that the Fourteenth Amendment’s Privileges or Immunities Clause was the proper vehicle to accomplish incorporation. Id. at 838 (Thomas, J., concurring). Whether the right is incorporated under the Due Process Clause or the Privileges or Immunities Clause matters. The Due Process Clause protects persons, while the Privileges or Immunities Clause extends only to citizens. SeeU.S. Const. amend. XIV. Lower courts have largely ignored this distinction. SeeRyan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 833 (2017) (noting that “lower courts have given little outward sign of even recognizing McDonald as a case calling for analysis under the Marks framework”); see alsoMaxwell L. Stearns, Constitutional Law’s Conflicting Premises, 96 Notre Dame L. Rev. 447, 504 (2020) (discussing the significance of Justice Thomas’s separate concurrence in McDonald). We take the position that though five Justices agreed to the judgment that the Second Amendment applies to the states, whether it does so via the Due Process Clause or, instead, the Privileges or Immunities Clause remains an open question. We also note that the clauses’ distinct language may affect the outcome in certain cases. Consider, for instance, whether a non-citizen may challenge a state law that restricts public carriage of firearms.Show More And recently, the Court agreed to hear a challenge to New York’s concealed-carry restrictions in the case New York State Rifle & Pistol Association v. Corlett (“NYSRPA II”).7.N.Y. State Rifle & Pistol Ass’n v. Corlett, 804 F.3d 242 (2d Cir. 2015), cert. granted, (Apr. 26, 2021) (No. 20-843).Show More But for the last decade, the Court has said nothing further about the scope of the individual right. So the task of grappling with basic questions that remain in Heller’s wake, like the Second Amendment’s standard of review, has fallen to the lower courts. In that process, many courts have latched on to the sort of evidence that we just agreed was suspect: Southern gun restrictions enacted from about 1870 to 1920—the South’s race-relations “nadir.”8.Rayford W. Logan, The Negro in American Life and Thought: The Nadir, 1877–1901 (1954); see also Alton Hornsby, Jr., ed., A Companion to African American History 312, 381, 391 (2008).Show More Modern courts claim that those laws establish a historical consensus that states enjoy wide latitude to curtail the right to bear arms. And just as often, those courts have invoked such laws without a hint of appreciation that they might be marred by racial taint.

Though hardly unique, the Ninth Circuit’s decision in Young v. Hawaii provides the latest example of this trend.9.Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).Show More There, a majority of the en banc Ninth Circuit affirmed Hawaii’s functional ban on bearing arms outside the home. As part of its analysis, the majority presented a historical survey of state gun regulations, focusing in particular on the post-war American South, where such regulations were common. Its survey of Southern cases and statutes, the majority said, revealed that it was then “broadly agreed” that “firearms [ ] could be banned from the public square.”10 10.Id.at 801.Show More Indeed, the majority reasoned, the legislatures of states like Texas, Alabama, Georgia, and Louisiana evidently did not think those gun-control laws inconsistent with the right to bear arms. Since that historical conception apparently tolerated copious restrictions on the right, the plaintiffs had no firm historical basis to challenge Hawaii’s law.

Writing in dissent, Judge O’Scannlain urged caution about drawing too much from the “legislative scene following the Civil War.”11 11.Id.at 839 (O’Scannlain, J., dissenting).Show More He noted that the antebellum South had a long history of explicitly race-based bans on gun ownership, and he suggested that Southern states might have been up to something similar after the war, too. Post-war “Black Codes,” for example, sought to infringe “freedmen’s fundamental constitutional rights.”12 12.Id. at 840.Show More And he noted that the majority offered “no enforcement history” for the later, ostensibly race-neutral statutes that it invoked.13 13.Id. at 844.Show More

For the majority, though, Judge O’Scannlain’s warning was hardly a speedbump in its path to affirming Hawaii’s law. In its 113-page opinion, the majority devoted a solitary footnote to his concern about the racial motivations behind the Southern laws the majority relied upon. It “d[id] not disagree” that the Black Codes were a relevant part of “the post-Civil War history.”14 14.Id.at 822 n.43.Show More But it happily noted that soon after the Black Codes’ advent, the nation adopted the Fourteenth Amendment to facilitate anti-discrimination laws and to bolster freedmen’s rights. Thus, according to the majority, “it is not clear how th[e] history” of racially discriminatory Southern laws—supposedly snuffed out by the Fourteenth Amendment—“informs the issue before us.”15 15.Id.Show More

It is that remarkable statement this Essay seeks to correct. Southern race discrimination via gun-control statutes did not evaporate in 1868. Sadly, it persisted long after and even through facially neutral statutes. By missing that insight, the Young majority and like-minded courts have erred by uncritically invoking gun-control laws from the postbellum South as serious evidence that a broad historical consensus supported limiting gun rights. In response, this Essay employs original primary-source research to establish two key points. First, the desire to limit Black gun ownership often motivated Southern states’ enactment of gun-control laws from around 1870 to 1920. Indeed, white society considered Black gun ownership conducive to chaos and disorder. Second, these racially biased motivations led to disproportionate enforcement of gun-control measures against Black citizens. In other words, these laws do not necessarily show a Southern distaste for the right to bear arms. But they certainly show disdain for exercise of that right by Blacks. So it is ironic—indeed, perverse—that courts should deploy these same tainted laws 150 years later to once again dilute American citizens’ constitutional rights.

The case against courts’ laundering of these racially tainted statutes proceeds in three parts. Part I details the present circuit split on the Second-Amendment standard of review and how various courts of appeals have deployed tainted historical statutes to dilute that standard. Part II presents the historical evidence that these Southern statutes were both racially motivated and unfairly enforced, even when neutral on their face. And Part III shows why continued reliance on such tainted statutes cannot be squared with the Supreme Court’s decision in Ramos. Put simply, when courts evaluate modern restrictions on the right to keep and bear arms, they should reject sullied statutes and rely instead on untainted historical evidence.

I. A Splintered Standard and a Tainted Record

Like its neighbors in the Bill of Rights, the Second Amendment anticipates that citizens may exercise in distinct ways the right that it protects. By the Amendment’s terms, individuals may “keep . . . Arms” for self-defense, but they may also “bear” them.16 16.U.S. Const. amend. II.Show More The Supreme Court’s last words on the subject focused on the former issue—whether states may ban the “keeping” of commonly used arms.17 17.District of Columbia v. Heller, 554 U.S. 570, 581–82 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010).Show More Though answering that question in the negative, the Court gave no definitive guidance about the validity of state bans on the bearing of guns via open or concealed carry. Lacking further direction, lower courts have intractably split on whether states may restrict the right to bear arms and on the standard of review that courts must apply to such restrictions.

Some courts have endorsed the view that states may not ban citizens from carrying handguns for self-defense outside the home. The Seventh and D.C. Circuits are notable examples.18 18.Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).Show More Both shunned reliance on the “tiers of scrutiny” framework familiar to other areas of constitutional law, instead extending Heller to protect the bearing of arms outside the home. In reaching that conclusion, the Seventh Circuit declined “another round of historical analysis” to determine the scope of the “bear” right.19 19.Moore, 702 F.3d at 942.Show More In its view, Heller had already “decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.”20 20.Id.Show More But other circuits have resisted that conclusion. The First, Second, Third, Ninth, and Tenth Circuits have all adopted an “intermediate scrutiny” standard, under which they have upheld laws severely restricting the right to bear arms.21 21.Gould v. Morgan, 907 F.3d 659, 673 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Peterson v. Martinez, 707 F.3d 1197, 1208 (10th Cir. 2013); Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012).Show More And critically, circuits in this camp—along with legion academic commentators—have all relied upon postbellum Southern gun control to bolster their rejection of that right.22 22.Many academics have relied on racially tainted postbellum Southern gun-control laws to reinforce their anti-gun-rights arguments. SeeEric J. Mogilnicki & Alexander Schultz, The Incomplete Record in New York State Rifle & Pistol Association v. City of New York, 73 SMU L. Rev. F. 1, 4–6 (2020); David T. Hardy, The Rise and Demise of the “Collective Right” Interpretation of the Second Amendment, 59 Clev. St. L. Rev. 315, 339 (2011) (referencing facially neutral Southern gun control laws passed after the Civil War as historical evidence of constitutional limitations on the Second Amendment); Joseph Blocher, Firearm Localism, 123 Yale L. J. 82, 119 n.193, 120 n.195 (2013) (citing postbellum Southern gun-control laws without acknowledging possible tainted motivation for their enactment); see also Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 Tex. A&M L. Rev. 95, 95 (2016) (fighting back against the “current state of scholarship on Second Amendment history [that] paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence.”); Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 L. & Contemp. Prob. 55, 62–64 nn.34–48 (2017) (listing a host of gun restrictions in different states).Show More

First to address the public-carry question was the Second Circuit in the 2012 case Kachalsky v. County of Westchester.23 23.Kachalsky, 701 F.3d at 81.Show More The dispute involved a New York law that requires citizens to show “proper cause” before obtaining a handgun-carry license—a requirement difficult to meet in practice.24 24.Id.at 84.Show More To analyze that restriction’s validity, the Second Circuit reviewed the “history and tradition of firearm regulation” to select the appropriate level of scrutiny.25 25.Id. at 101.Show More In so doing, the court detailed those historical laws that it thought supported “restrictions on the public carrying of weapons.”26 26.Id.at 90.Show More Among them were several postbellum Southern statutes that, in various ways, restricted gun ownership. Examples the Circuit cited included an 1870 law from Virginia, an 1871 law from Texas, an 1880 law from Kentucky, 1881 laws from Arkansas and North Carolina, and an 1885 law from Florida. That historical survey led the Circuit to conclude that “[i]n the nineteenth century, laws directly regulating concealable weapons for public safety became commonplace and far more expansive in scope.”27 27.Id.at 95.Show More Thus, in its view, “extensive state regulation of handguns has never been considered incompatible with the Second Amendment.” 28 28.Id.at 100.Show More And with that historical gloss, the Circuit settled on intermediate scrutiny to uphold New York’s “proper cause” requirement.29 29.Id.at 96.Show More

Likewise, in the 2013 case Drake v. Filko, the Third Circuit looked back to the South to judge a current law in the North.30 30.Drake v. Filko, 724 F.3d 426, 433 (3d Cir. 2013).Show More The New Jersey law at issue required handgun-license applicants to demonstrate their “‘justifiable need’ to publicly carry a handgun.”31 31.Id.at 429.Show More In response to the appellants’ contention that this requirement violated the Second Amendment, the Third Circuit claimed that “[i]t remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home.”32 32.Id.at 430.Show More To select the appropriate level of scrutiny, the Third Circuit followed Kachalsky and undertook a review of historical gun regulations. The Circuit cited Kachalsky several times for the proposition that “19th Century” history undermined the notion that self-defense outside the home belongs to “the core of the [Second] Amendment.”33 33.Id.at 436.Show More Thus, after settling on intermediate scrutiny, the Third Circuit upheld New Jersey’s “justifiable need” requirement.34 34.Id.at 440.Show More

Dissenting, Judge Hardiman objected to the majority’s repeated invocation of Kachalsky. In his view, the Southern statutes that Kachalsky marshaled were distinguishable from New Jersey’s “justifiable need” requirement.35 35.Id.at 451 (Hardiman, J., dissenting).Show More For instance, he argued, Southerners considered those historical bans permissible only because the weapons they targeted were not the sort of “arms” thought core to the right.36 36.Id.Show More And “[t]o the extent that th[ose] state laws prohibited the carry of weapons used in war”—in other words, “arms”—“they were struck down.”37 37.Id.Show More So Judge Hardiman thought the historical statutes had “little bearing” on modern laws regulating concealed carry.38 38.Id.Show More But he left his criticism there, mentioning no further concern about possible racial taint.

In their own respective treatments of the issue, the First and Tenth Circuits have also invoked Kachalsky to reject Second-Amendment claims. In the 2013 case Peterson v. Martinez, the Tenth Circuit parried a challenge to a Colorado concealed-weapons law after concluding “that the carrying of concealed firearms is not protected by the Second Amendment[.]”39 39.Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013).Show More Citing Kachalsky, the Circuit noted that “concealed carry bans have a lengthy history” and that “most states banned concealed carry in the nineteenth century.”40 40.Id.at 1211.Show More Thus, it concluded, “the Second Amendment does not confer a right to carry concealed weapons.”41 41.Id.Show More Likewise, the First Circuit relied on Kachalsky to conclude “that there is no national consensus, rooted in history, concerning the right to public carriage of firearms.”42 42.Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018).Show More Rather, the restrictions Kachalsky detailed led the Circuit to suggest that history “conflict[ed]” about the scope of the right to bear arms.43 43.Id.Show More And given that supposed conflict, the court upheld the targeted restriction under intermediate scrutiny.44 44.Id. at 676.Show More

While most Circuits have been content to recycle Kachalsky, the Ninth Circuit offered a broader defense of why history undercuts the right to publicly bear arms. In its aforementioned Young decision, the en banc Ninth Circuit considered whether Hawaii’s functional ban on public carry violates the Second Amendment.45 45.Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).Show More Judge Bybee, writing for the majority, held that it does not. Much of the historical record he dissected—for instance, the Statute of Northampton, ancient English treatises, and early colonial restrictions—falls well outside this Essay’s scope.46 46.Id.at 788–805.Show More But after analyzing those sources, the majority, like its sister-circuits, discussed several postbellum Southern statutes. It noted that Tennessee enacted a law in 1870 banning “publicly or privately carry[ing] a dirk, swordcane, Spanish stiletto, belt or pocket pistol[,] or revolver.”47 47.Id.at 806.Show More Three years later, Texas restricted “the carrying of ‘any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife.”48 48.Id. at 800.Show More The Louisiana Constitution of 1879, likewise, “provided that the right to keep and bear arms did ‘not prevent the passage of laws to punish those who carr[ied] weapons concealed.’”49 49.Id. at 817.Show More And Alabama, for its part, not only “prohibited persons from carrying a ‘pistol concealed,’ but [ ] also made it ‘unlawful for any person to carry a pistol about his person on premises not his own or under his control.’”50 50.Id.at 811.Show More

The majority then offered “several observations” about these statutes.51 51.Id.at 801.Show More First, it said, this historical survey revealed that “states broadly agreed that small, concealable weapons, including firearms, could be banned from the public square.”52 52.Id.Show More And “[s]econd, although many of the states had constitutional provisions that guaranteed some kind of right to keep and bear arms, state legislatures evidently did not believe that the restrictions [ ] discussed here were inconsistent with their state constitutions.”53 53.Id.at 801–02.Show More All told, then, the relevant history supposedly undercut any “general right to carry arms into the public square for self-defense.”54 54.Id.at 813.Show More

Judge O’Scannlain’s dissent, as we mentioned, broached several important criticisms of the majority’s reasoning. First, it noted the lack of any “record of enforcement” for the statutes at issue.55 55.Id.at 847 (O’Scannlain, J., dissenting).Show More Merely symbolic gun laws that state governments never enforced presumably tell us little about the polity’s true thoughts on the right to bear arms. Next, Judge O’Scannlain observed that Southern states had long sought to regulate the possession of weapons by Blacks. In support of that point, he noted several sources from the 1860s that decried Southern attempts to strip freedmen of their right to keep and bear arms—a right those sources described as fundamental.56 56.Id.at 839–41, 847.Show More

The majority swept aside those points, however, with almost-blithe facility. It noted that soon after stories of the Black Codes emanated from the South, the nation ratified the Fourteenth Amendment.57 57.Id.at 822 n.43.Show More Its Privileges or Immunities and Equal Protection Clauses “guaranteed that all citizens would enjoy the same rights as ‘white citizens,’ including Second Amendment rights.”58 58.Id.Show More But, said the majority,

those provisions do not tell us anything about the substance of the Second Amendment, any more than an equal right to enter into contracts or inherit property tells us whether the state may alter the Statute of Frauds or the Rule Against Perpetuities, so long as it does so for all citizens.59 59.Id.Show More

And with that, in an opinion that purported to exhaustively survey the historical evidence, the majority dismissed concerns about how race and discrimination might have informed its analysis.

II. “Every Negro in the City a Walking Arsenal”: The Racial Motivations Underlying Postbellum Southern Gun Control

For about the first two-hundred years of American history, the colonies and early states enacted various racially explicit gun bans. By frustrating slaves’ ability to rebel, these laws preserved white supremacy and the slave-based American economy. As early as 1640, for example, Virginia prohibited Blacks, slave and free, from carrying weapons.60 60.T. Markus Funk, Comment, Gun Control and Economic Discrimination: The Melting-Point Case-in-Point, 85 J. Crim. L. & Criminology 764, 796 (1995) (“In 1640, Virginia set up the first recorded restrictive legislation which prevented blacks from owning a firearm”).Show More And it enacted a more extensive “act for preventing Negroes Insurrections” in 1680.61 61.Act X: An Act for Preventing Negroes Insurrections (June 1680), reprinted in 2 The Statutes at Large; Being a Collection of all the laws of Virginia, From the First Session of The Legislature in The Year 1619, 481 (William Waller Hening ed., n.d.), https://encyclopediavirginia.org/entries/an-act-for-preventing-negroes-insurrections-1680/. [https://perma.cc/X98X-PEP3]. Many of the historical sources we have quoted employ non-standard English. Rather than flagging each idiosyncrasy with a [sic] notation, we have chosen instead to present the source-language as it originally appeared.Show More The law forbade “any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence.”62 62.Id.Show More A slave could possess such arms only with “a certificate from his master, mistris or overseer” for “perticuler and necessary occasions.”63 63.Id.Show More Without a permit, a slave in possession of arms would be “sent to the next constable, who [was] hereby enjoyned and required to give the said negroe twenty lashes on his bare back.”64 64.Id.Show More Those lashes, the law specified, were to be “well layd on.”65 65.Id.Show More

Similar laws pervaded other jurisdictions. In 1740, for instance, South Carolina enacted a statute making it illegal “for any slave, unless in the presence of some white person, to carry or make use of fire-arms.”66 66.1741-32 S.C. Acts 168, § 23.Show More A slave could bear arms only with a “license in writing from his master, mistress or overseer.”67 67.Id.Show More Whites who discovered slaves in possession of unlicensed weapons could seize the arms on the spot. If the slave resisted and seriously injured the white person, the law subjected the slave to a mandatory penalty of death.68 68.Id. §§ 23–24.Show More In the same vein, Florida, Georgia, Texas, Louisiana, North Carolina, and Mississippi passed their own racially explicit gun bans from around 1800 to 1860.69 69.Black Code, ch. 33, sec. 19, Laws of La. 150, 160 (1806); Act of April 8, 1811, ch. 14, sec. 3, Laws of La. 50, 52–54 (1811); An Act to Govern Patrols, secs. 8–9, Acts of Fla. 52, 55 (1825); Act of Jan. 28, 1831, Fla. Laws 28, 30 (1831); Act of Dec. 23, 1833, sec. 7, 1833 Ga. Laws 226, 228 (1833); An Act Concerning Slaves, ch. 58, sec. 6, 1841 Laws of Tex. 171, 172 (1841); State v. Newsom, 27 N.C. 250 (1844) (upholding North Carolina’s race-based ban); Act of Jan 1, 1845, ch. 87, 1845 Acts of N.C. 124; Act of Mar. 15, 1852, ch 206, sec. 1, 1852 Laws of Miss. 328; Act of Dec. 19, 1860, no. 64, Sec. 1, 1860 Acts of Ga. 56; see alsoStephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev. 629, 653 (1989) (“On November 6, 1866, the Texas legislature passed its first gun control measure, which was also the closest Texas came to adopting a black code provision to disarm freedmen.”).Show More Louisiana forbade slaves from possessing weapons, while Florida authorized whites to enter Black persons’ homes to search for and seize any firearms.70 70.Black Code, ch. 33, sec. 19, Laws of La. 150, 160 (1806); Act of Dec. 17, 1861, ch. 1291, sec. 11, 1861 Fla. Laws 38, 40.Show More Mississippi, too, heavily restricted slaves’ and free Blacks’ possession of arms. As late as 1865, it barred any “freedman, free negro or mulatto” from possessing “fire-arms of any kind” without a license from “the board of police of his or her county.”71 71.Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, §1, reprinted in 1 Documentary History of Reconstruction 289 (Walter L. Fleming ed. 1950).Show More

Soon after, of course, Mississippi and the broader South lost the American Civil War. One consequence was the panoply of new laws the United States imposed upon that region that aimed to secure the fundamental rights of free Blacks. Those included several Civil Rights and Enforcement Acts, along with the Fourteenth Amendment. The latter’s ratification sought to ensure that freedmen might enjoy “the privileges or immunities of citizens of the United States,” along with “the equal protection of the laws.”72 72.U.S. Const. amend. XIV. Show More In the Young Court’s view, apparently, the advent of these guarantees heralded the end of invidious discrimination via Southern gun-control restrictions.73 73.Young v. Hawaii, 992 F.3d 765, 822 n.43 (9th Cir. 2021) (en banc).Show More

But as this Essay shows, that was unfortunately not the case. Rather, Judge O’Scannlain’s dissenting appraisal was nearer the mark in three respects. First, to the extent that Southern states enacted new gun bans after the Civil War, race appears to have often motivated their decision to do so.74 74.Robert J. Cottrol & Raymond T. Diamond, “Never Intended to be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?, 70 Chicago-Kent L. Rev. 1307, 1318 (1995) (“Free blacks were subject to a variety of measures meant to limit black access to firearms through licensure or to eliminate such access through outright prohibitions on firearms ownership.”).Show More Second, Southern states enforced these laws against their white populations only loosely. Third, to the extent that Southern states did enforce such laws, they enforced them disproportionately against their Black citizenry.75 75.F. Smith Fussner, That Every Man Be Armed, the Evolution of a Constitutional Right, 3 Const. Comment. 582, 585 (1986) (reviewing Stephen P. Halbrook, That Every Man Be Armed (1984)) (“After the Civil War the states of the old Confederacy tried to use pretexts of various kinds to keep blacks from acquiring and using arms.”); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1415–16 (1998) (noting that “gun control in the nineteenth century was almost exclusively a Southern phenomenon. In the post-Civil War period, the Southern gun laws were clearly aimed at controlling the Freedmen; although written in racially neutral terms, the laws were meant for, and applied almost exclusively to, blacks.”).Show More We examine these points in turn.

A. How Race Informed the South’s Perceived Need for Gun Control

Across both time and space in the Reconstruction and Jim Crow South, white society reflected antipathy for the newfound phenomenon of Black gun ownership. Southern whites understood the relationship between guns and power. Precisely because the keeping of arms undergirds security and autonomy,76 76.Noted constitutional commentator St. George Tucker described the Second Amendment as “the true palladium of liberty” and “[t]he right of self defense [a]s the first law of nature.” 1 St. George Tucker, Blackstone’s Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 300 (1803). Frederick Douglass likewise famously remarked “that the liberties of the American people were dependent upon the Ballot-box, the Jury-box, and the Cartridge-box[.]” The Life and Times of Frederick Douglass: From 1817–1882, 333 (John Lobb ed., 1882).Show More the antebellum South had denied that right to its Black population. So when, for instance, Black militias formed after the war’s end to protect voting freedmen and to repel lynch mobs, whites lamented Blacks’ nascent capacity for self-defense. That capacity engendered “[t]he white man’s fundamental enmity,” in other words, because it impugned his “position of authority.”77 77.Otis A. Singletary, The Negro Militia Movement During Radical Reconstruction, LSU Historical Dissertations and Theses, at vii (1954).Show More

In response, whites crafted narratives that reframed Black gun ownership not as a means of legitimate self-defense, but as a source of disorder and chaos. Already by 1866, a Norfolk periodical lamented “a mania which seems to exist among a portion of the negro population for carrying concealed weapons.”78 78.Virginia News, Alexandria Gazette and Virginia Advertiser, Dec. 6, 1866, at 1.Show More Likewise, a writer in Memphis, Tennessee complained in 1867 that “[n]early all the negroes in th[is] city carry concealed weapons.”79 79.Locals in Brief, Public Ledger, July 20, 1867, at 1.Show More “As a natural consequence,” the author wrote, “colored shooting affrays are becoming very frequent.”80 80.Id.Show More In 1871 South Carolina, Black gun ownership was said to have “brought the negroes into troubles, for without [arms], they would not have arrayed themselves in hostility to the white people.”81 81.The Fight at Carmel Hill, The Courier, Mar. 17, 1871, at 1.Show More And later writers in both South Carolina and Tennessee explicitly connected Black gun ownership to election fraud and voter intimidation. In 1879, for instance, a Democratic paper in South Carolina rued that the state’s Republican governor had, “in violation of every right of a free citizen, [disarmed] the whites . . . while the negro militia, in the midst of a heated political contest, [was] not only allowed to keep their rifles and muskets, but encouraged to use[ ] them, to menace the whites, and overawe and intimidate colored voters.”82 82.J.H. Evins, Unexampled Forbearance of the Whites, The Weekly Union Times, Apr. 4, 1879, at 1.Show More This show of force supposedly corrupted “the free choice of the voter,” thus rigging the system in favor of Republicans.83 83.Id.Show More In Mississippi too, alleged Republican encouragement for “negroes to carry pistols to the polls” had led to an “inexcusably brutal outrage” in 1881: when a white voter tried to cane a Black man at a polling place over a supposed insult, another Black man pulled a gun, shooting and killing the white assailant.84 84.Murder at Marion, The Memphis Daily Appeal, Nov. 11, 1881, at 1.Show More

These narratives on disorder and chaos persisted over time. In 1882, Kentucky’s Daily Evening Bulletin opined that “[t]his thing of negroes carrying concealed deadly weapons is a growing evil that should receive the strictest enforcement of the law.”85 85.The State of Lewis at Large, Daily Evening Bulletin, Nov. 22, 1882, at 1.Show More An 1883 column from Jacksonville, Florida likewise warned that “every negro in the city” had become “a walking arsenal.”86 86.Crimes in Jacksonville, The Savanah Morning News, Sept. 5, 1883, at 1.Show More Jacksonville police reported that “a large proportion of the negroes in this city are provided with a dirk knife, razor[,] or pistol”—a trend the column suggested should merit severe punishment.87 87.Id.Show More In Georgia too, the Lyons Morning News argued in 1893 for a new concealed-weapons law, since “[a]lmost every negro that one meets is armed.”88 88.The Concealed Weapon Evil, The Morning News, Sept. 8, 1893, at 6.Show More “Some of them,” according to the editor, even “carr[ied] two pistols and a Winchester rifle”—a behavior that “cursed” the population and merited “strictly enforced” legislative countermeasures.89 89.Id.Show More

One incident in North Carolina that drew on these narratives of chaos and disorder deserves special examination. Around the fall of 1898, white-supremacist Democrats, led in part by future North Carolina congressman John D. Bellamy, organized white resistance to the city of Wilmington’s biracial government. Bellamy and other prominent figures conspired to foment anger among white citizens about this so-called “Negro Rule” before the congressional elections of 1898.90 90.LeRae Umfleet, et al., 1898 Wilmington Race Riot Report, North Carolina Dep’t of Cultural Resources 59–60, 76, 78, 83–84, 125, 371 (May 31, 2006).Show More After several increasingly violent attacks on Wilmington’s Black citizens, Bellamy’s associate Alfred Waddell assembled a posse of about 2,000 whites.91 91.1898 Wilmington Race Riot Report supra note 90, at 129.Show More After equipping itself at Wilmington’s armory, the posse roamed the streets, killing the Black persons they could find and destroying Wilmington’s Black-owned businesses.92 92.Id. at 121, 133.Show More Perhaps 60 Black citizens perished, while thousands of others fled and took shelter in nearby swamps.93 93.Id. at 1.Show More

Yet when Bellamy was later sued for his role in the massacre, he reframed the event as a “race riot” that ensued only after “a negro mob” had armed itself in “utter disregard . . . for law and order.”94 94.Dockery v. Bellamy: The Taking of Depositions Resumed, The Semi-Weekly Messenger, Apr. 14, 1899, at 3.Show More Bellamy argued that this was to be expected: “[N]egroes constantly carry concealed weapons,” he testified, “and . . . the razor, the pistol, the slingshot[,] and the brass knuckle seem to be their inseparable accompaniments as a class.”95 95.Id.Show More “[A]lthough there are some very respectable law-abiding and property acquiring citizens of that race,” he conceded, “it is a very small portion of them.”96 96.Id.Show More So, in Bellamy’s view, the posse’s brutality did not stem from the violent white-supremacist movement that he had cultivated. The true culprit, he said, was Black citizens’ carriage of arms. Bellamy eventually prevailed in the litigation, allowing him to take his seat in Congress.97 97.1898 Wilmington Race Riot Report supra note 90, at 200–01.Show More But while his actions were especially horrific, his rhetoric was familiar—that Black citizens’ possession of arms had instigated violence and disorder.

These themes continued to reverberate throughout the South during and after the turn of the twentieth century. In 1899, for instance, Cheneyville, Louisiana passed an ordinance that aimed to restrain the “custom among a certain class of worthless negroes to carry concealed weapons upon their persons[.]”98 98.To Restrain Worthless Negroes, New York Tribune, Aug. 14, 1900, at 1.Show More Similar rhetoric surfaced soon after in Georgia. In a 1901 lecture delivered at a Valdosta prison, Judge Estes of the Valdosta superior court opined that it was hard to believe the “worthless[ ],” “pistol toting negroes of the present generation are the descendants of the . . . good old negroes of the former days.”99 99.The Good Old Negroes: Judge Estes’ Lecture to Prisoners at Valdosta, The Morning News, Nov. 24, 1901, at 9.Show More A 1907 Mississippi paper, likewise, bemoaned “negro . . . pistol toting” and suggested “that there is needed extreme legislation for suppression of pistol toting; especially for protection of lives of the peace officers who are called on almost daily to arrest turbulent and recklessly murderous negroes.”100 100.The Pistol Toting Negro in Evidence, The Greenville Times, Dec. 28, 1907, at 1.Show More

Other contemporary sources were just as frank about the racial bias that had motivated Southern gun-control measures. While debating a 1901 South Carolina proposal, State Senator Stanwix Mayfield introduced an amendment requiring applicants for a concealed-carry permit to pay the princely sum of $50.101 101.Synopsis of the Daily Proceedings of the House and Senate, The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More “If a man thinks he ought to go armed let him pay a license,” Mayfield argued.102 102.Id.Show More Moreover, “[n]egroes will not take out a license and one-half of the population will thus be eliminated.”103 103.Id.Show More And that was the problematic half, in Mayfield’s view, since “[t]here is little trouble” arising from concealed carry “among white people.”104 104.Id.Show More In a similar vein, Charles R. Tarter of Brevard County, Florida suggested in 1907 to Virginia’s Clinch Valley News some lessons that Virginia might take from Florida’s treatment of “the race problem.”105 105.Charles R. Tarter, The Race Problem in Florida, Clinch Valley News, June 28, 1907, at 2.Show More In Florida, Tarter opined, “[w]e have no race problem [ ] in Brevard [C]ounty.”106 106.Id.Show More Rather, “[t]he ‘n——r’ is held in humble submission here.”107 107.Id. (racial slur censored).Show More One aspect of that “submission” was Brevard County’s law requiring that whoever wished to carry a long gun have a bond guaranteed by “two good men.”108 108.Id.Show More As Tarter explained, “[i]t’s purpose was to keep fire arms out of the nigroes hands[,] and it did all it was intended for. No nigro can get a bond accepted,” and “few ever try.”109 109.Id.Show More In Tarter’s view, such a restriction bolstered law and order. “There has never been an assault, or an insult offered a white woman by a n——r in this county,” he claimed, and “in fact, there’s practically but few cases of criminal assault ever in the state.”110 110.Id. (racial slur censored).Show More

Sources in Alabama, too, connected Black gun ownership to themes of disorder and the status of white supremacy. In 1907, Alabama State Senator Evans Hinson warned that “black belt negroes are better armed than whites.”111 111.Evans Hinson, Black Belt Negroes are Better Armed Than Whites, The Age-Herald, May 1, 1907, at 9.Show More Thus, he thought, Alabama needed a “new law regarding carrying weapons.”112 112.Id.Show More Though laws on the books regulated possession of pistols, he thought the law should also cover long guns. Otherwise, he worried that “negroes would have on hand for immediate use incomparably more improved firearms than would the whites.”113 113.Id.Show More Thus, he feared that whites might be outgunned in the event of a future “race riot.”114 114.Id.Show More Alabama newspaperman Edward Ware Barrett, owner of Birmingham’s Age-Herald,115 115.George M. Cruikshank, 2 A History of Birmingham and Its Environs: A Narrative Account of Their Historical Progress, Their People, and Their Principal Interests, 180 (1920).Show More likewise suggested that Black citizens’ gun ownership placed respectable whites under siege. “A man with a home and family,” Barrett remarked, “feels that he cannot go out of town without employing an armed squadron to protect his home against pistol toting negroes[.]”116 116.Edward Ware Barrett, Ned Brace Talks About Things At Home and Makes A Few Suggestions, The Age-Herald, Jan. 7, 1912, at 28.Show More Otherwise, he feared, they might “go out to shoot up his servants and endanger[ ] the lives of his wife and children.”117 117.Id.Show More

So what has this historical survey told us? A couple of things, we think. First, it shows that racist attitudes about Black gun ownership pervaded the post-war American South. White society, or at least those portions of it captured in the cited periodicals, thought Black gun ownership a particularly dangerous reality; one conducive to disorder and corrosive to the Southern social fabric. It was a problem, the sources tell us, in need of novel restrictions and “extreme legislation.”118 118.The Pistol Toting Negro in Evidence, The Greenville Times, Dec. 28, 1907, at 1.Show More Second, and concomitantly, it reveals that courts today should hesitate to invoke Southern gun restrictions as evidence about Southern society’s views on the right to bear arms generally. To the contrary, this evidence reflects Southern society’s specific desire to counter a particular “problem”: its disdain for Black citizens’ keeping and bearing of arms. Parts II.B and II.C, in turn, present the evidence for that observation’s logical corollaries: that Southern states did not enforce these restrictions rigorously against whites, but enforced them with alacrity against Blacks.

B. Southern States’ Under-Enforcement of Gun Control Laws
Against White Society

As noted above, Judge O’Scannlain also criticized the Young majority’s statutory survey for omitting a serious discussion of the laws’ “enforcement history.”119 119.Young v. Hawaii, 992 F.3d 765, 844 (9th Cir. 2021) (en banc) (O’Scannlain, J., dissenting).Show More The majority conceded that the question of enforcement was “a fair one.”120 120.Id.at 823.Show More Unenforced statutes may eventually fall “into desuetude,” the majority noted, rendering such legislative proscriptions “merely symbolic.”121 121.Id.Show More But after admitting that enforcement questions were “beyond the materials that [it] ha[d] seen,” the majority incongruously argued that the Southern statutes it cited were “not merely symbolic.”122 122.Id. (emphasis added).Show More Instead, it suggested that the statutes’ commonality across the South was somehow self-proving evidence of their enforcement. And the majority noted that it had assembled a few Southern cases involving weapons prosecutions, which it claimed “proves that the statutes were enforced.”123 123.Id. (first emphasis added).Show More

The majority’s leap from confessing that it had no evidence of enforcement history to its conclusion that it had “prove[n]” the statutes’ enforcement was sophistical.124 124.Id.Show More A few instances of enforcement in reported cases do not show that such laws were enforced broadly or that Southerners considered them an enforcement priority. Indeed, one scholar has labeled reasoning like the majority’s the “lonely fact” fallacy.125 125.Ilan Wurmin, Law Historians’ Fallacies, 91 N.D. L. Rev. 161, 203 (2015). Show More Having identified a few discrete historical examples, the majority then assumed without support that those data points represented general trends.

But they did not, at least according to the evidence we have uncovered. To the contrary, contemporary Southern sources consistently noted two important points. First, the carrying of concealed weapons throughout the postwar South was extremely common. And second, Southern states rarely enforced their laws against that practice. (Save for those occasions when the unfortunate defendant belonged to a racial minority; a trend we discuss in Part II.C.) So Judge O’Scannlain’s dissent was nearer the mark yet again. For the laws the majority cited often were “merely symbolic.”126 126.Young, 992 F.3d at 823.Show More

Already in 1880, for example, a Mississippi periodical observed that the state’s concealed-weapons law “[wa]s not enforced anywhere in the State.”127 127.Concealed Weapons, St. Landry Democrat, Feb. 7, 1880, at 4.Show More And it pointed out the likelihood that “the concealed weapon law will never be strictly enforced in this or any other State, unless the law should go further and give officers the right to search every man to ascertain whether he had concealed weapons on his person or not.”128 128.Id.Show More Such a law, it said, would be both “unconstitutional,” given its imposition on liberty, and “absurd,” given the resources required to enforce it.129 129.Id.Show More Likewise, Louisiana’s Meridional noted in 1878 that the state had “an act prohibiting persons from carrying concealed weapons,” but that it was “not enforced[.]”130 130.The Lafayette Advertiser, Mar. 30, 1878, at 2.Show More The author suggested that some enforcement might be wise, since “one cannot travel fifty yards from the parish seat” without meeting persons armed with concealed pistols.131 131.Id.Show More South Carolina’s Weekly Union Times sounded similar themes in 1880. It noted that while “[t]he law against carrying concealed weapons may be enforced in the towns and cities where special ordinances are passed . . . the State laws on this subject are not worth the paper they are written on, from the fact that they will never be enforced.”132 132.Sins Which the Law Cannot Reach, The Weekly Union Times, Nov. 12, 1880, at 1.Show More Predictably, “nobody [was ever] tried for the offence.”133 133.Id. Likewise, Richmond, Virginia’s Daily State Journal reported a concealed-weapons prosecution in 1872. But it noted that this was “the first case of the kind for some time.” Carrying Concealed Deadly Weapons, The Daily State Journal, Jan. 10, 1872, at 1.Show More

These themes persisted throughout the South for decades. Mississippi’s Magnolia Gazette noted in 1883 that a new weapons law might be desirable. But the column’s author doubted that “it can or will be done,” given the practical difficulties of enforcing such a statute.134 134.An Alarming State of Affairs, Magnolia Gazette, Aug. 30, 1883, at 1.Show More “The law as it exists,” the author noted, “is almost inoperative.”135 135.Id.Show More Five years later, South Carolina’s Laurens Advertiser observed that “the law in regard to carrying concealed weapons[ ] [wa]s never enforced,” given that citizens lacked any “sense of duty” to obey it.136 136.Dials, The Laurens Advertiser, May 2, 1888, at 3.Show More And in Kentucky, similar laws’ enforcement fared no better. In 1891, for instance, Kentucky Governor John Y. Brown simply stopped enforcing the state’s concealed-weapons law for several years.137 137.W.P. Walton, Semi-Weekly Interior Journal, Nov. 20, 1891, at 2.Show More

Again, it must be said, the rarity of prosecutions did not stem from the rarity of concealed carry. To the contrary, a Missouri periodical noted in 1897 that “[t]housands of the so called ‘best men’ of every community in many of the southern states carry daily the faithful revolver in the pistol pocket.”138 138.Concealed Weapons, The Age Herald, Oct. 10, 1897, at 4.Show More It was despite that fact that only “at rare intervals . . . men are prosecuted for carrying concealed weapons.”139 139.Id.Show More Indeed, prosecutions were rare not because carrying was rare, but because there was so “much looseness in the enforcement of the statutes[.]”140 140.Id.Show More

Turn-of-the-century South Carolina was no more enthusiastic about enforcing its own concealed-weapons law. The Union Times wondered in 1900 why the “law against carrying concealed weapons is not more rigidly enforced.”141 141.Carrying Concealed Weapons, The Union Times, Oct. 26, 1900, at 1.Show More It noted that there were “few convictions for violations” and that no one seemed willing to report fellow citizens for concealed carrying.142 142.Id.Show More Perhaps members of South Carolina’s legislature took heed. For a year later, The Yorkville Enquirer reported the passage of a new concealed-weapons law. But it predicted that the new law, like its predecessors, would have little practical consequence. “Other concealed weapon laws,” the paper noted, “have been indifferently enforced.”143 143.The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More Thus, “there is reason to fear this one will not fare any better.”144 144.Id.Show More That prediction proved accurate. As South Carolina’s Anderson Intelligencer noted in 1905, while the “statute books” had a new law “against the carrying of concealed weapons . . . the enforcement of it is a regular farce.”145 145.Editorial Bull’s Eyes, The Yorkville Enquirer, Oct. 10, 1905, at 1.Show More “Occasionally some poor, unfortunate fellow” was fined,146 146.Id.Contemporary court records from South Carolina also seem to confirm that the state’s concealed-weapons law was not an enforcement priority. The Watchman and Southron reported in 1903 that one South Carolina police court processed 448 arrests throughout 1902. Doings of the Police Force for 1902, The Watchman and Southron, Feb. 25, 1903, at 1. But only a paltry three of those were for carrying concealed weapons. Id.Show More but the law did little overall to deter Southerners’ prolific carriage of arms.

Enforcement also lagged in Arkansas and Alabama. Birmingham’s Age-Herald reported in 1912 that “there seems to be practically no enforcement” of “[t]he law against carrying concealed deadly weapons.”147 147.The Grand Jury’s Report, The Age-Herald, Oct. 28, 1912, at 1.Show More And Arkansas’s Daily Picayune noted in 1921 that “[t]he law against carrying concealed weapons is not enforced, as witness the courts.”148 148.A Celebration, The Daily Picayune, Jan. 8, 1921, at 1.Show More Yet, that journal remarked, there was apparently “no inclination for repeal.”149 149.Id.Show More So the law was indeed symbolic, rather than a robust proscription.150 150.Id.Show More

Indeed, this Part has shown that much the same could be said for concealed-weapons laws across the South. As the cited sources reflect, contemporary Southerners considered the laws “inoperative” and their enforcement impractical.151 151.An Alarming State of Affairs, Magnolia Gazette, Aug. 30, 1883, at 1.Show More “[I]ndifferent[ ]” enforcement had rendered the statutes “not worth the paper they [were] written on” and “a regular farce.”152 152.Sins Which the Law Cannot Reach, The Weekly Union Times, Nov. 12, 1880, at 1; The Yorkville Enquirer, Feb. 16, 1901, at 1; Editorial Bull’s Eyes, Yorkville Enquirer, Oct. 10, 1905, at 1.Show More As a result, convictions came only at “rare intervals.”153 153.Concealed Weapons, The Age-Herald, Oct. 10, 1897, at 4.Show More And those convicted appear to have been the “unfortunate fellow[s]” who simply happened to stand out from the rest of their gun-toting countrymen.154 154.Editorial Bull’s Eyes, The Yorkville Enquirer, Oct. 10, 1905, at 1.Show More

Given these sources’ depiction of the South’s spotty gun-control regime, one might wonder whether those laws were ever seriously enforced against any segment of Southern society. The answer to that question, it turns out, is “yes.” For contemporary evidence also suggests that despite the laws’ “indifferent[ ]” enforcement as to the South’s alleged best men—its whites—the same laws quite often ensnared its Black citizens.155 155.The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More Of course, we uncovered no evidence that Blacks carried guns at a higher rate than whites in this period. Instead, sources remarked that the pistol was the Southern gentleman’s constant companion. But as Part II.C now reveals, Blacks almost certainly were punished at a much higher rate for concealed carry.

C. How Southern States Disproportionately Enforced Their Gun-Control Laws Against Racial Minorities

We now turn to the third way that the historical sources we uncovered vindicate Judge O’Scannlain. Recall how he admonished the majority to temper its enthusiasm for “the legislative scene following the Civil War” given his suspicion that such laws, though facially neutral, “sought to suppress the ability of freedmen to own guns.”156 156.Young v. Hawaii, 992 F.3d 765, 839, 847 (9th Cir. 2021) (en banc) (O’Scannlain, J., dissenting).Show More His intuition was correct, but his critique—much like the majority opinion—lacked a key piece of evidence: the laws’ enforcement history. Without it, the majority brushed aside Judge O’Scannlain’s concerns and appointed the statutes it cited as serious evidence of Southerners’ appetite for gun control.

That was a mistake. As this Part reveals, contemporaneous evidence suggests that the Reconstruction and Jim Crow South enforced these laws “almost exclusively” against Blacks.157 157.Elections a Farce: The Republicans of South Carolina Issue a Strong Address to Congress, The Indianapolis Journal, Jan. 18, 1889, at 7.Show More That is perhaps unsurprising, given our background knowledge about that period in Southern history and the evidence of the laws’ racial motivations detailed in Part II.A. At the same time, though, it guts the Young majority’s view that racially disparate enforcement ceased after the Fourteenth Amendment’s ratification. Precisely because these laws were not equally applied to all citizens, singling out Black citizens instead, they may tell us something about a tool the postwar South used to preserve white supremacy. But they tell us almost nothing about a broad Southern consensus in favor of diluting the right to keep and bear arms.

A year after the Civil War’s end, for instance, the city of Norfolk, Virginia deployed a recently passed concealed-weapons law to disarm free Blacks. Indeed, “[u]nder a recent law of the city of Norfolk, . . . the police arrested a large number of negroes for carrying concealed weapons.”158 158.Miscellaneous News Items, Bedford Inquirer, Dec. 21, 1866, at 1.Show More The seizure was especially significant, since it was alleged “that a negro rising was planned for Christmas week[,] in which the authorities were to be overturned.”159 159.Id.Show More Later in 1904, Virginia authorities similarly suggested that they had defused a “race riot” with concealed-weapons arrests.160 160.Another Race Riot is Feared in Norfolk, The Evening Journal, Oct. 26, 1904, at 1.Show More Fearing an “outbreak by the blacks” after a lynching, authorities arrested “[m]any negroes” for weapons possession.161 161.Id.Show More These “culprits” were then “severely dealt with . . . under the Virginia law covering concealed weapons.”162 162.Id.Show More So, much like Virginia’s 1680 “negroes insurrections” law sought to suppress slave revolts with a racially explicit weapons ban, Virginia’s later, facially neutral laws were apparently thought to serve a similar purpose.163 163.Id.; see supranotes 61–65 and accompanying text.Show More

South Carolina, too, enforced its concealed-weapons law along racial lines. South Carolina Republican Ellery M. Brayton complained to the federal Congress in 1887 about how disparate enforcement infected the statute. “[T]he law against carrying concealed weapons,” he noted, “is enforced almost exclusively against negroes.”164 164.Elections a Farce: The Republicans of South Carolina Issue a Strong Address to Congress, The Indianapolis Journal, Jan. 18, 1889, at 7. Contemporary arrest records from South Carolina reflect the racial enforcement disparity. In 1905, for instance, one South Carolina court handled thirty-four concealed weapons arrests; thirty offenders were Black and just four were white. The Sinners’ Record: Annual Summary of Arrests—Charges, Convictions and Acquittals in Recorder’s Court, The Watchman and Southron, Feb. 1, 1905, at 1.Show More And even when the law was enforced against whites, their sentences vis-à-vis Black offenders were radically disparate. An 1883 periodical noted that two South Carolina offenders—one Black, one white—were both tried during the same term of court for the offense of carrying concealed weapons.165 165.Sentences of Court, The Anderson Intelligencer, Nov. 15, 1883 (quoting the Abbeville Press and Banner).Show More The white offender received the opportunity to pay a fine. But the Black offender got six months’ time at the penitentiary.166 166.Id.Show More How, the periodical wondered, could one possibly distinguish those cases?167 167.Id. After noting this race-based sentencing disparity, the original column in the Abbeville Press and Banner lamented, “Does not such discriminations [sic] against the brother in black offend our sense of justice?” Id. Yet when the same column was reprinted in The Anderson Intelligencer, the Intelligencer defended judges’ discretion to impose disparate sentences.Show More

The situation in South Carolina apparently did not improve with time. In 1891, a South Carolina judge recommended that “the law against carrying concealed weapons . . . be more rigidly enforced.”168 168.“The Easter Egg,” The Newberry Herald and News, Mar. 19, 1891, at 1.Show More The paper agreed: “[a]s it is the law is a dead letter, and only an occasional negro is brought to trial for the offense.”169 169.Id.Show More Another source, this time in 1893, also pointed out South Carolina’s enforcement disparity. Twelve Black inmates, it noted, languished “in the South Carolina penitentiary for the simple offense of carrying concealed weapons, a thing that about every white man in the state does.”170 170.Outrages on the Negro: Rev. Dr. Seaton Says that They Must be Stopped, What Prison Records Show, The Evening Star, Aug. 14, 1893, at 7.Show More But while whites did so freely, Black offenders faced hard labor in the convict-lease system.171 171.Id.Show More

Famed journalist and early civil-rights activist Ida B. Wells similarly criticized the South for its obvious enforcement hypocrisy regarding concealed weapons. In a 1900 address, she noted that “[t]here is a law in the south against carrying concealed weapons.”172 172.Ida B. Wells, Negro Lynching: Deprecated by Speakers and a Remedy Suggested, Topeka State Journal, Feb. 17, 1900, at 5. The Anti-Lynching Crusaders, Republican and Herald, Feb. 19, 1900, at 2.Show More “White men carry them with impunity,” she pointed out.173 173.Id.Show More “[B]ut if the negro is caught with a gun[,] he is fined $50 and put in the chain gang for 60 days.”174 174.Id.Show More She was incorrect only insofar as a mere 60 days’ imprisonment was apparently a light sentence for a Black offender.175 175.For instance, one 1893 survey of the rolls of a South Carolina penitentiary revealed that twelve Black prisoners were serving ten-year sentences “for the simple offense of carrying concealed weapons.” Outrages on the Negro: Rev. Dr. Seaton Says that They Must be Stopped, What Prison Records Show, The Evening Star, Aug. 14, 1893, at 7. The prisoners had been given such lengthy sentences, the source suggested, so that they could be impressed into the “lease system of convict labor” then prevalent in the South. Id.Show More

Much like Wells, periodicals across the South noted the enforcement disparity between white “Southern gentlemen” and Black offenders. As the Houston Daily Post remarked in 1902, “[t]here is one law for the ‘n——r and the Chinaman’ who tote pistols . . . and there is another law for the gentleman who arms himself[.]”176 176.The Gentleman Outlaw, Houston Daily Post, Aug., 14, 1902, at 4 (racial slur censored).Show More In other words, minorities risked severe punishment if caught with weapons. Yet “[g]entlemen of high social and commercial standing” could “walk the streets or ride the roads” while armed without question.177 177.Id.Show More Similarly, a South Carolina paper noted in 1911 that while “[t]here are laws upon the statute books against the carrying of concealed weapons, and occasionally some insignificent ‘n——r’ is haled before the courts and fined . . . but it is very rare that a white man is made to pay the penalty.”178 178.The People Alone Responsible, The Manning Times, Nov. 1, 1911, at 8 (racial slur censored).Show More A Missouri periodical, too, noted in 1903 that both Blacks and whites often carried concealed weapons. But it was Black offenders, not whites, that police made the enforcement priority. Indeed, East St. Louis had begun a “roundup of [the] lawless negro class” with “concealed weapons in their possession.”179 179.Police Start on Roundup of Lawless Negro Class, The Republic, May 11, 1903, at 5.Show More Believing that most crimes were “committed by negroes” whose concealed weapons “enabl[ed them] to commit crime quicker,” the police had arrested “a score of negroes” in recent days.180 180.Id.Show More And in Kentucky, too, there was one law for the white “gentleman” but another for the Black offender. As one writer noted in 1908, “[w]hen old Kentucky tries to convict a white lawbreaker[,] she has an awful job.”181 181.Public Ledger, October 15, 1908, at 2.Show More When a white lawyer shot at someone else, for example, “[h]e got off with a light fine for the offense.”182 182.Id.Show More “[A]nd a jury refused to fine him for carrying a pistol.”183 183.Id.Show More But “a N——r,” he noted, “would have been given the limit in half an hour.”184 184.Id. (racial slur censored).Show More

Likewise, South Carolina openly celebrated the use of its weapon laws to disarm Black citizens. In 1911, two South Carolina periodicals commended the efforts of a particular magistrate, William M. Dorroh, to seize Blacks’ firearms. The Herald and News noted that Magistrate Dorroh had “achieved State-wide mention for his fine record in disarming negroes of their concealed weapons.”185 185.Various and All About, The Herald and News, Aug. 29, 1911, at 8.Show More And The Yorkville Enquirer, too, praised Dorroh for his “fine record in the enforcement of the concealed weapons law since he has been in office.”186 186.South Carolina News, The Yorkville Enquirer, July 7, 1911, at 2.Show More But it was a “fine record” precisely because it was so biased against Blacks.187 187.Id.Show More “Thirty-eight is the number of pistols he has taken from negroes in sixty days,” the Enquirer observed.188 188.Id.Show More While it was “a large number of pistols secured at a good rate per day,” even still, “it would take Magistrate Dorroh a considerable time to disarm all the negroes” in his township.189 189.Id.Show More In the meantime, though, “he [was] being generally commended for his efforts.”190 190.Id.Show More

Perhaps a final quotation in the Atlanta Constitution, from a column penned in 1910, best captures the themes we have developed in this Part: “It has not as yet been shown that the Afro-American is more addicted to the habit of pistol-toting than his white brother, but it is evident that he is much more liable to arrest. For centuries, all over the world, it has been regarded as the prerogative of a gentleman to carry arms and a Southern gentleman knows that, in such case, no peace officer is apt to interfere with him. Indeed, one of the class, when challenged for violating the law against carrying concealed weapons remarked, very truthfully, ‘That law was made for n——rs.’”191 191.The Pistol-Toters, The Appeal, July 2, 1910, at 2 (racial slur censored).Show More

III. Why The Racially Biased Origins of Southern Gun Control Uniquely Matter After Ramos

While Part II dealt largely in original research, scholars have long made the broader point that gun control in the United States has racist origins. What has been less clear, though, is why those origins matter today. Some who support a narrow view of the Second Amendment appear to understand these laws’ biased origins yet draw no broader implications from that fact.192 192.See Spitzer, supra note 22, at 78–79.Show More Others have sought to dismiss the relevance of past racism to the present dialogue.193 193.See Frassetto, supra note 22 at 95–97 (arguing that, in Texas, it was pro-freedman, pro-civil-rights Radical Republicans who supported restrictions on the right to carry firearms).Show More In response, we argue that scholars must grapple with gun control’s racist origins—origins that “uniquely matter” since they continue to burden constitutional rights.194 194.Ramos v. Louisiana, 140 S. Ct. 1390, 1408 (2020) (Sotomayor, J., concurring); see alsoBrief of Italo-American Jurists and Attorneys, as Amici Curiae Supporting Petitioners, New York State Rifle & Pistol Association Inc. v. Corlett (No. 20-843) (arguing that the Court in Corlett should consider New York’s restrictive gun law in light of historical evidence reflecting the state’s efforts to single out and disarm Italians).Show More Indeed, the Supreme Court’s recent decision in Ramos v. Louisiana obliges them to do so.

In Ramos, the Court considered the validity of two state statutes—one from Oregon; the other from Louisiana—that permitted conviction by non-unanimous juries in felony trials.195 195.Ramos, 140 S. Ct. at 1394.Show More While non-unanimity would cause a mistrial anywhere else, in these states, it could support a sentence of life without parole. In a majority opinion by Justice Gorsuch, the Court noted as an initial matter that both states’ laws were “facially race-neutral.”196 196.Id.Show More Nothing about the allowance of a 10-to-2 verdict inherently suggested invidious discrimination. And the reasons for these states’ modern adherence to the non-unanimity rule seemed obscure.

Upon further reflection, though, the Court explained that the “origins” of those laws “are clear.”197 197.Id. (emphasis added).Show More “Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898,” where all the talk had concerned preserving “the supremacy of the white race.”198 198.Id.Show More Its delegates were well-aware that “overt discrimination against African-American jurors [would] violat[e] the Fourteenth Amendment.”199 199.Id.Show More So, instead, they adopted a facially neutral rule that permitted non-unanimous verdicts. But the real point was “to ensure that African-American juror service would be meaningless.”200 200.Id.Show More Even when a Black person managed to get on the jury, his vote could be overridden by his white peers. Oregon’s rule, too, could “be similarly traced to the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’”201 201.Id.Show More None of Ramos’s litigants even disputed those points, and courts in both states had “frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.”202 202.Id.Show More

So what? Previous parties, amici, and scholars had all urged the Court to treat certain other laws and precedents as “tainted” or “poisoned” for their infection with bias or bigotry.203 203.See, e.g., Charles L. Barzun, Impeaching Precedent, 80 U. Chi. L. Rev. 1625, 1626–30 (2013) (detailing such attempts).Show More But the Court had demurred on those past occasions. Such “extralegal” concerns, as Chief Justice Rehnquist once called them, were “not the usual stuff of Supreme Court debate,” and considering them would be a “disservice to the Court’s traditional method of adjudication.”204 204.Id. (quoting John C. Jeffries & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 280 (2001); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 68–69 (1996)).Show More

It was surprising, then, that the Ramos Court seemed to place such import on “the racist origins of Louisiana’s and Oregon’s laws.”205 205.Ramos, 140 S. Ct. at 1405.Show More And it did so despite these states arguably having “purged” the laws’ earlier taint through subsequent reenactments. Indeed, the majority explained that given the laws’ modern implications for a fundamental right, it could not leave “an uncomfortable past unexamined.”206 206.Id. at 1401 n.44.Show More The majority’s tactic also engendered two concurrences that further endorsed its analytical move. Justice Kavanaugh was left wondering why the Court should sanction a law “that is thoroughly racist in its origins,”207 207.Id. at 1419 (Kavanaugh, J., concurring in part).Show More while Justice Sotomayor believed that “the racially biased origins of the Louisiana and Oregon laws uniquely matter here.”208 208.Id.at 1408 (Sotomayor, J., concurring in part).Show More

Scholars noticed the import of Ramos’s novel approach soon after. “It is not often that the Supreme Court ratifies an entirely new form of judicial argument,” noted Professor Charles Barzun.209 209.Charles Barzun, The Constitution and Genealogy, Balkinization (July 6, 2020), https://balkin.blogspot.com/2020/07/the-constitution-and-genealogy.html. [https://perma.cc/EH4M-B3TZ].Show More “But that may be what happened this past term.”210 210.Id.Show More The Ramos Court had elevated laws’ genealogy from an anti-modality to a new and apparently “legitimate modality.”211 211.Id.; see alsoBarzun, supra note 203, at 1631 (“My claim, in short, is that the effort to historicize or impeach a past decision is a legitimate and potentially useful means of evaluating a decision’s authority as a matter of precedent.”).Show More Still, Professor Barzun struggled to explain precisely why the Court thought genealogy relevant. Though laws may be invalid if conceived with animus, Oregon’s and Louisiana’s later reenactments seemed to have purged it. And genealogical arguments may often be logically fallacious. Indeed, logicians call it the “genetic fallacy” to “assume[ ] that a statement, position, or idea must be flawed” simply because its source happens to be flawed.212 212.Jacob E. Van Vleet, Informal Logical Fallacies 19 (2011).Show More

We think, though, that Ramos was not flawed or fallacious or, as the dissent charged, dealing in “ad hominem rhetoric.”213 213.140 S. Ct. at 1426 (Alito, J., dissenting). Justice Alito, joined by Chief Justice Roberts and Justice Kagan, argued that the tainted “origins of the Louisiana and Oregon rules have no bearing on the broad constitutional question that the Court decides.” Id. But having “lost” in Ramos, Justice Alito switched gears two months later when the Court in Espinoza considered whether the Montana Supreme Court had violated the Free Exercise Clause when it applied the “no-aid provision” of the Montana Constitution to bar religious schools from benefiting from a state program that provided tuition assistance. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2268 (2020) (Alito, J., concurring). In his concurring opinion, Justice Alito argued that Ramos established that the Court may examine the motivation behind the passage of a statute or a state constitutional provision to smoke out illicit bigotry. Justice Alito, quoting Ramos, concluded that Montana’s no-aid provision remained “‘[t]ethered’ to its original ‘bias”’ against Catholics because the state had not “‘actually confront[ed]’ the provision’s ‘tawdry past in reenacting it.”’ Id. at 2274 (quoting 140 S. Ct. at 1410) (Sotomayor, J., concurring in part). Combining the opinions of Ramos and of Espinoza, six Justices—all but Justices Kagan and Barrett and Chief Justice Roberts—have endorsed and applied the genealogical taint principle.Show More Rather, it told us something important about how future courts and scholars should approach historical analysis and, ultimately, originalism. As many scholars have persuasively argued, we can think of constitutional exegesis as having a pair of key stages: interpretation and then construction.214 214.Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 65–66 (2011); Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 455–56 (2013).Show More When we interpret a text, we seek to discover its communicative content—what the words meant at the time of their ratification.215 215.Solum, supra note 214, at 457.Show More When we then construe the text, we determine what legal effect we should give to that meaning.216 216.Id.Show More The clearer the text, the smaller the “construction zone.” But sometimes constitutional provisions are “general, abstract, [or] vague,” so we must resort to other heuristics of meaning when applying them “to concrete constitutional cases.”217 217.Id. at 458.Show More

One of those heuristics of meaning, of course, is historical practice.218 218.We are primarily referring here to liquidation. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 1961); see also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 11–12 (2001); William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More To discern how fundamental a right really is, we might look to how people in the past viewed the right—how they exercised it and which restrictions upon it they tolerated or endorsed. But Ramos gives us a critical caveat about how we should conduct this historical research. When assessing a past restriction’s probative weight on the true scope of a constitutional guarantee, we cannot simply ignore past actors’ illegitimate and ulterior motives in enacting such restrictions. Rather, illegitimate motives tell us that past actors restricted a right not necessarily because they considered it trivial, but because they thought their impermissible motive—for instance, preservation of white supremacy—the greater priority. So ignoring historical motives (and, perhaps even more important, historical enforcement patterns) might lead us to wrongly over-value certain historical evidence in a modern constitutional calculus. Translated to the controversy before the Court in Ramos itself, concluding that historical actors did not consider jury unanimity an important right because of their longstanding decision to permit nonunanimity would be a mistake. Rather, the impermissible motives behind that historical practice gutted those restrictions’ probative weight in assessing how broad or fundamental was the burdened right.

With that context in mind, understanding Ramos’s import for the Second Amendment becomes simple. When courts—and, later this term, the Supreme Court—assess the scope of the “bear” right, they may consider historical practice relevant in that assessment. But that does not involve simply looking at old laws written on a page. Judges instead must grapple with those laws’ historical motivations and enforcement patterns. And to the extent that such analysis reveals impermissible motives and disparate enforcement, judges must discount the probative weight of that evidence accordingly. In other words, Ramos tells us that it is illegitimate to conclude that the modern “bear” right is susceptible to copious restrictions because racist Southern authorities restricted Black citizens’ past exercise of that right. Such evidence may be powerfully probative of historical racism, but its probative weight regarding history’s true verdict on the scope of the Second Amendment should be considered slim. Otherwise, courts risk laundering past racist restrictions to validate modern burdens on constitutional rights.


On May 10, 1865, Frederick Douglass delivered an address in New York City that advocated for a constitutional amendment to make guarantees in the Bill of Rights directly applicable to the states.219 219.“In What New Skin Will the Old Snake Come Forth?: An Address Delivered in New York, New York, on 10 May 10, 1865,” reprinted in 4 The Frederick Douglass Papers 79, 83–84 (John W. Blassingame & John R. McKivigan eds., 1991).Show More Without one, he said, state legislatures could “take from [free Blacks] the right to keep and bear arms . . . [n]otwithstanding the provision in the Constitution of the United States.”220 220.Id.Show More As we now know, the nation responded by ratifying the Fourteenth Amendment. Ironically, New York today seeks to defend its “proper cause” requirement by invoking old laws of just the sort that Douglass decried. Its brief in opposition to certiorari in NYSRPA II, for instance, cited Kachalsky twenty-nine times and advanced multiple Southern gun-control statutes to argue that history supports continued restrictions on public carry.221 221.Brief of Respondents at iii, v–vi, N.Y. State Rifle & Pistol Ass’n v. Corlett, 20-843 (2021), 2021 WL 723110 (citing Kachalsky and several Southern gun-control statutes).Show More Apparently, that historical evidence did not dissuade the Court from taking up the case. Nor, when it turns to the merits, should the Court reinvigorate tainted artifacts of a bygone era to burden constitutional rights in the modern one.


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