Scholars say racist gun laws are warnings, not precedent for courts

A new law review article argues that the ugliest chapters of American gun control history, including slave codes and post-Civil War Black Codes, shouldn't be treated as valid precedent for today's firearm restrictions, but rather as proof of the abuses the Constitution was meant to stop.

Snapshot

Writing in the Yale Law Journal, NRA-ILA's Joseph Greenlee and University of Wyoming law professor George Mocsary examine historical gun laws aimed at Black Americans, Native Americans, and religious minorities. They argue courts should treat these racist enactments as "anti-analogues," warnings against repeating past abuses, rather than evidence that similar restrictions fit within a legitimate constitutional tradition.

Key points

• Old laws, old wrongs: Colonial Virginia and an 1825 Florida statute allowing whites to seize firearms from Black households are cited as examples of racially targeted gun restrictions predating the Civil War.
• Black Codes after Reconstruction: Greenlee and Mocsary point to an 1865 Louisiana law, part of the state's Black Codes, that barred bringing guns onto plantation property, a law Hawaii invoked while defending its so-called "vampire rule" in the Wolford case.
• Not a precedent, a warning: The authors contend that a law's existence doesn't make it constitutionally sound, and that enactments built to subordinate people should count as negative evidence against modern restrictions, not affirmative support for them.
• Hawaii's culture argument also failed: The Supreme Court rejected Hawaii's claim that the "spirit of Aloha" exempted it from the Second Amendment, ruling the amendment means the same thing in every state.
• Pushback expected: The piece notes that gun control advocates and jurists such as Justice Ketanji Brown Jackson resist excluding historical laws from constitutional analysis simply because they're offensive by modern standards.

Quick take

Bearing Arms' Cam Edwards calls the argument solid, noting it likely won't change minds like Justice Jackson's but gives Second Amendment advocates a sharper tool: just because government got away with violating rights generations ago doesn't make that violation a legitimate tradition today.

Read the full story: bearingarms.com