While the Duke Center for Firearms Law’s stated mission is to develop “firearms law as a scholarly field”, the vast majority of the attorneys and academics who regularly write for the center’s blog seem to be more interested in defending existing gun control laws (and pushing for more) than serious scholarship. 

One of the recent targets of the anti-gunners is the Eighth Circuit’s recent decision in Worth v. Jacobson, which found Minnesota’s ban on concealed carry for adults younger than 21 a violation of the Second Amendment. 

Absolutely fascinating how much the Worth decision in particular has angered Duke Law https://t.co/Iu2jDzifIC pic.twitter.com/NvUGTHZi37

— Rob Romano (@2Aupdates) September 13, 2024

Worth has their knickers in such a twist that historian Saul Cornell and law professor/gun control advocate Megan Walsh had no issue citing racist laws from the 19th century to defend their claim of a national tradition prohibiting young adults from exercising their Second Amendment right to bear arms. 

In their recent post, the pair claim that a ” wave of weapons regulations targeting those below the age of legal majority included laws from Alabama, Tennessee, and Kentucky” were introduced around the time of the Civil War and the ratification of the Fourteenth Amendment in 1868. 

In 1856, twelve years before the ratification of the Fourteenth Amendment, Alabama prohibited selling, giving, or lending, “to any male minor, a bowie knife, or knife or instrument of the like kind or description, by whatever named called, or air gun or pistol.” Also in 1856, Tennessee enacted a law prohibiting the selling, loaning, giving, or delivering “to any minor a pistol, bowie-knife, dirk, Arkansas tooth-pick, or hunter’s knife,” with exceptions for hunting and traveling. An 1859 Kentucky law prohibited selling, giving, or loaning “any pistol, dirk, bowie-knife, brass-knucks, slung-shot, colt, cane-gun, or other deadly weapon . . . to any minor.”

Note that all of these laws are directed at minors, not adults. Cornell and Walsh contend that people weren’t considered adults until the age of 21 in the 18th and 19th centuries, which (in their view) means 18, 19, and 20-year-olds today should be treated like juveniles when it comes to their Second Amendment rights. It’s also worth noting that the Tennessee law they cite had an explicit exemption for minors who were traveling (or hunting), which means it isn’t analogous to the complete prohibition that Cornell and Walsh (and Minnesota Governor/Democratic VP candidate Tim Walz) support. 

I was a little curious about why the academics didn’t cite the complete text of the 1859 Kentucky statute. But when I clicked the link to view the full statute in context, I understood why. 

If any person, other than the parent or guardian, shall sell, give or loan, any pistol, dirk, bowie-knife, brass knucks, slung-shot, colt, cane-gun, or other deadly weapon, which is carried concealed, to any minor, or slave, or free negro, he shall be fined fifty dollars.”

Yep, this is yet another racist gun control law cited approvingly by gun control advocates. And when academics like Walsh and Cornell use these laws as a basis to defend modern gun control regimes, anti-gun judges are empowered to do the same, as we recently saw in the Ninth Circuit. 

The 9th Circuit panel that decided to uphold Hawaii’s version of the vampire rule relied on just two outlier laws to do so. One of them, from Louisiana in 1865, was enacted right after the Civil War ended and appears to be part of the infamous “Black Codes”.

I don’t think the… pic.twitter.com/vmVFvpfsa7

— Kostas Moros (@MorosKostas) September 9, 2024

Even if Cornell and Walsh weren’t relying on racist gun control laws, they’re still making an inane argument. Just as the Supreme Court has held that the Second Amendment doesn’t apply only to those arms in existence in 1791, it doesn’t apply only to those who were considered “the people” when the Second Amendment (or Fourteenth Amendment) was ratified. We have become a more perfect union since then, and the scope of “the people” has broadened considerably, to the point that 18-year-olds are clearly considered a part of the political community. That means they get to access their right to keep and bear arms along with their right to speak freely, to worship as they choose, and to be secure in their persons and property, just like every other adult. 

But a big part of the problem with placing too much importance on 1868 and the ratification of the Fourteenth Amendment for evidence of a “national tradition” of gun ownership is that many former slave states were passing all kinds of laws to restrict the lives and rights of those held in bondage. While some of those laws may have been explicitly based on race, legislators quickly learned to couch these infringements in race-neutral terms on paper, while primarily enforcing the laws against freedmen (and their white allies, both native-born and newly arrived carpetbaggers from the northern states). Those laws weren’t a part of the national tradition. They were a reaction to Radical Republicanism, the Freedman’s Bureau, and the growing number of freemen who were exercising their right to keep and bear arms, both in militias and in their private lives. 

In the 1860s, most gun control laws were meant to stop a disfavored class from exercising a favored right. Today, most gun control laws are more egalitarian in their infringements; it’s the right that’s disfavored, not a particular class. But as modern gun control activists like Walsh and Cornell continue to show us, they have no problem using the racist laws of their ideological forefathers to strip we the people of our most fundamental civil right.