https://www.wsj.com/articles/o...6?mod=hp_featst_pos5



Historical, racist gun laws are taking on new relevance in legal battles over modern-day gun regulations, following a Supreme Court ruling that expanded the right to bear arms.

In the 1700s and 1800s, states across the country passed laws to keep guns out of the hands of slaves, free Black people, Native Americans and Catholics. Such discriminatory gun restrictions would be unconstitutional today, but they have entered the gun-rights debate as judges look to apply the Supreme Court’s decision last June that said gun restrictions must be anchored in historical traditions.

In recent months, federal and state government lawyers have cited the historical laws, garnering a mixed reception so far. They have argued that racist gun laws are evidence of a historical tradition of legislative bodies denying access to firearms for public safety.

“[S]ome of these classifications—such as those based on race or religion—are abhorrent,” U.S. prosecutors told a federal appeals court last fall in a brief defending the disarmament of convicted domestic abusers. “They nevertheless show that the Framers understood that legislatures could make such judgments to categorically disarm groups of people deemed to be dangerous.”

The Justice Department, which didn’t respond to a request for comment, made similar arguments in recent weeks in other criminal appeal cases involving gun bans imposed on accused and convicted felons.

It is a distasteful but unavoidable argument, legal scholars say, a consequence of the upheaval in Second Amendment litigation ushered in by the Supreme Court’s expansion of gun rights.

The 6-3 decision in New York State Rifle & Pistol Association Inc. v. Bruen, written by Justice Clarence Thomas, struck down New York’s strict handgun permitting rules and upended how courts are expected to review the constitutionality of gun regulations.

Before the ruling, the government could defend a gun law by citing the importance of preventing mass shootings and other gun violence. The Bruen decision stripped away that defense and substituted a test rooted in historical precedent.

Government defendants must show commonalities between a modern gun law and statutes that existed in the 1700s and 1800s when the Second Amendment and 14th Amendment, which made certain constitutional rights binding upon states, were ratified.

“It is almost inevitable that courts will have to confront the history of racist gun laws,” said UCLA constitutional law professor Adam Winkler, who wrote a recent Harvard Law Review article on the issue. “The Supreme Court says that gun laws today must be consistent with gun laws from the 17- and 1800s, and many gun laws from the 17- and 1800s were motivated by racism.”

In lawsuits challenging California’s gun laws, the state attorney general’s office submitted spreadsheets of historical gun statutes that it says are relevant to its case.

Among dozens of racist laws it cited is a 1792 Virginia statute—passed one year after the Second Amendment was adopted—dictating that “no negro or mulatto” except for housekeepers “shall keep or carry any gun, powder, shot, club, or other weapon whatsoever, offensive or defensive.”

The state also referred to an 1833 Florida law, enacted in the aftermath of Nat Turner’s bloody slave rebellion, that authorized white citizen patrols to “search negro houses” for firearms. Anyone found in possession could be summarily whipped.

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“These laws are morally repugnant and would obviously be unconstitutional,” the office of California’s Democratic attorney general, Rob Bonta, said in a legal brief filed with U.S. District Judge Roger Benitez in San Diego. “But these laws are part of the history of the Second Amendment and may be relevant to determining the traditions that define its scope, even if they are inconsistent with other constitutional guarantees.”

Before Bruen, California had been mounting a largely successful defense of its gun laws, which are among the nation’s toughest.

The state is now confronting the Supreme Court’s requirements in a series of lawsuits, including cases challenging its ban on semiautomatic firearms classified as assault weapons, its prohibition on high-capacity gun magazines and its background-check requirements for ammunition buyers.

In December, Judge Benitez, a President George W. Bush appointee considering legal challenges to several state restrictions, ordered California to draw up a list of any “relevantly similar” historical laws.

In the ammunition background-check case, the state listed more than 100 laws from the 17th, 18th and 19th centuries. More than three-quarters of them explicitly targeted slaves, free Blacks, Native Americans and Catholics.

“I was kind of in shock when they first sent us the spreadsheets,” said Konstadinos Moros, a lawyer with Michel and Associates PC, which represents the California Rifle and Pistol Association, a plaintiff in several lawsuits against the state. “We found these racist laws they were citing that were clearly not relevant to the case.”

Lawyers for California disagree, saying their survey of statutes buttresses their assertion that the state’s background-check law is “rooted in the historical tradition—dating back to the founding—of disarming groups of people perceived to be dangerous or unvirtuous.”

Other courts have considered the applicability of discriminatory gun laws. At least two judges have cautioned the government against relying upon them. U.S. District Judge Alan Albright, a President Donald Trump appointee from Texas, ruled in January that a federal law banning those under felony indictment from obtaining guns is unconstitutional. He wrote that he was “skeptical of using historical laws that removed someone’s Second Amendment rights based on race, class, and religion to support doing the same today.”

In August, however, U.S. District Judge Irene Berger, a President Barack Obama appointee from West Virginia, upheld a federal law prohibiting people convicted of domestic violence misdemeanors from possessing guns, finding it relevant that states historically excluded minorities from the right to bear arms.

Judge Berger, noting that she herself is Black, wrote: “Common sense tells us that the public understanding of the Second Amendment at the time of its enactment, which allowed for disarmament of Blacks and Native Americans based on their perceived threat, would have accepted disarmament of people convicted of misdemeanor crimes of domestic violence.”

Interesting. 2A requires historical context, but will have to be applied in the context of modern Constitutional doctrine under the 14 Amendment.

That's a great position for 2A fans to be in.

Oh, and Judge Berger? Common sense is what judges fall back on when there are no facts or law to guide the court. I'd say there are facts and law aplenty in this particular field, and that your definition of "common sense" may or may not be "common" to us all.

quote:

Originally posted by RogB:
“These laws are morally repugnant and would obviously be unconstitutional,” the office of California’s Democratic attorney general, Rob Bonta, said in a legal brief filed with U.S. District Judge Roger Benitez in San Diego. “But these laws are part of the history of the Second Amendment and may be relevant to determining the traditions that define its scope, even if they are inconsistent with other constitutional guarantees.”

Of course they would be unconstitutional - they infringe the Second Amendment. That there is a clear history and tradition of violating citizens' Second Amendment rights doesn't diminish the scope of those rights, it highlights the importance of protecting them.

It’s almost like the people that created second amendment were against government control of people the government arbitrarily deemed undesirable.

Gotta love someone’s being forced to admit that a common historical practice was unconstitutional while arguing for the continuation of current unconstitutional practices.

I’m not going to hold my breath or make any baseless predictions about the future of gun rights in this country, but I will take a bit of satisfaction from the things I can.

One way to understand those old racist laws in the context of Bruen is that they were not anti-gun, but anti-black, or anti-Catholic, for example.

Judge Benitez is not going to fall for that argument. Commies in California are up against a wall.

Not a lawyer, but two points come to mind:

quote:

It is a distasteful but unavoidable argument, legal scholars say, a consequence of the upheaval in Second Amendment litigation ushered in by the Supreme Court’s expansion of gun rights.

The “legal scholars” are confused. SCOTUS didn’t expand diddly, they just recognized existing rights and cleaned up the framework to make it harder to ignore them going forward.

quote:

“I was kind of in shock when they first sent us the spreadsheets,” said Konstadinos Moros, a lawyer with Michel and Associates PC, which represents the California Rifle and Pistol Association, a plaintiff in several lawsuits against the state. “We found these racist laws they were citing that were clearly not relevant to the case.”

Maybe I’m confused, but it seems Mr. Moros is mistaken. The racist laws cited are entirely relevant. They are clearly and transparently unconstitutional. It isn’t shocking that Mr. Bonta would offer them to bolster his support for other laws which are also clearly and transparently unconstitutional.

Editorial comment: It is too bad we can’t have immediate and severe sanctions for any convicted of passing or signing such blatantly unconstitutional garbage. Loss of office, lifetime ban on holding any other public office, perhaps depending on the severity even imprisonment would be a good start. When New York’s response to Bruen is to double down it is clear that consequences for are “leaders” are sorely needed. Clearly a pipe dream, but what the heck, dreaming is free….

quote:

Originally posted by RogB:
https://www.wsj.com/articles/o...6?mod=hp_featst_pos5

"Historical, racist gun laws are taking on new relevance in legal battles over modern-day gun regulations, following a Supreme Court ruling that expanded the right to bear arms."

SCOTUS did not expand the right to bear arms. They reaffirmed a right which pre-exists the Constitution. This is an important point which bears repeated emphasis. While Dobbs is universally criticized for limiting a right which never existed, many view Bruen as the expansion of a privilege at best with questionable legitimacy. My apologies for stating the obvious. I find the notion that SCOTUS creates or curtails rights most bothersome.

quote:

When New York’s response to Bruen is to double down it is clear that consequences for are “leaders” are sorely needed. Clearly a pipe dream, but what the heck, dreaming is free….

The consequences are supposed to exist via the voting booth, and those that are voting to keep or put these politicians into, or back into office are the problem.

quote:

Originally posted by slosig:


Editorial comment: It is too bad we can’t have immediate and severe sanctions for any convicted of passing or signing such blatantly unconstitutional garbage. Loss of office, lifetime ban on holding any other public office, perhaps depending on the severity even imprisonment would be a good start. When New York’s response to Bruen is to double down it is clear that consequences for are “leaders” are sorely needed. Clearly a pipe dream, but what the heck, dreaming is free….

What about a close case, where Constitutionality isn't clear? I know you said "blatantly," but one man's blatant violation is another man's close question of law. This would also turn the courts into potential weapons against disfavored politicians. It would also allow criminal prosecution to be used as a political threat. Also recall, this cuts both ways and will be used against your person some day. I realize you are fantasizing, but there are good reasons that sort of thing couldn't be the law.

at the state level, there are also a bunch of state constitutions to work through. Many with RKBA text in them.

quote:

Originally posted by jhe888:
. . . [ snip ] . . .

You aren’t wrong. The reality is that it is impossible to make rules, much less laws that consider every possible corner case.

Still, it is deeply frustrating to see those who have sworn an oath to support and defend the constitution ignore or attempt to dismantle it.

The following is dated November 3, 2021. Interesting argument in the reading.

https://www.johnlocke.org/infa...cations-in-gun-case/

David Kopel writes for the Federalist about an important element of the U.S. Supreme Court’s latest gun case.

On Wednesday, the Supreme Court will hear oral argument in New York State Rifle and Pistol Association v. Bruen, to decide whether the Second Amendment right to “bear arms” is a legally enforceable right. The case raises some of the same questions that were at issue at the infamous 1857 Supreme Court case Dred Scott v. Sandford.

The Dred Scott majority held that free blacks could never be citizens of the United States, so plaintiff Scott could not bring a case in federal court. …

… Dred Scott has several implications for the Bruen case. First, it affirms that the Second Amendment right to bear arms is a normal individual right, like the other individual rights listed in the case, such as free exercise of religion, freedom of speech and of the press, jury trial, and so on. …

… Dred Scott shows that the Second Amendment’s original public meaning from 1791 remained the same through 1857. The Scott Court put Second Amendment rights into lists of other ordinary rights belonging to all citizens, not solely for a subset of citizens engaged in military service. …

… It is not surprising that the plaintiffs’ briefs in Bruen, and several of the amicus briefs in support of the plaintiffs, directly address the Dred Scott case. It is revealing that neither the Bruen defendants nor their many amici claiming expertise in American legal history even dare to mention Dred Scott. The case destroys their assertions that bearing arms was generally prohibited in the antebellum United States.

Yet it would have been proper for the supporters of the current New York system to defend and extol Dred Scott v. Sandford. The ultimate principle that the anti-rights briefs support is that Dred Scott’s holding against the rights of free people of color should be affirmed and extended to all people, regardless of color.

quote:

Originally posted by slosig:

quote:

Originally posted by jhe888:
. . . [ snip ] . . .

You aren’t wrong. The reality is that it is impossible to make rules, much less laws that consider every possible corner case.

Still, it is deeply frustrating to see those who have sworn an oath to support and defend the constitution ignore or attempt to dismantle it.

What is infuriating is when the politicians making a law say it may not be Constitutional but pass it anyway. A close cousin situation is when all manner of experts show how it appears to blatantly violate the Constitution. Clearly the politicians' intent is to make an unConstitutional law.

quote:

The state also referred to an 1833 Florida law, enacted in the aftermath of Nat Turner’s bloody slave rebellion, that authorized white citizen patrols to “search negro houses” for firearms. Anyone found in possession could be summarily whipped.

So they cite a law that violates the 2nd (RKBA), 4th (warrantless searches), and 8th (cruel and unusual punishment) as SUPPORT???

Also keep in mind, even IF these laws were on the books in 1791, none had been challenged on a Constitutional basis. Heck, the 'understanding' that many states held was that it was perfectly fine to ban RKBA altogether. How many of those laws cited would pass Constitutional muster today?

Well, those that qualify can get guns and are happy to have them, I’ve got no complaints.

I doubt it was because they were considered dangerous, as much as those laws were about ensuring the victims of the Klan couldn’t fight back.

Not that long ago, the Klan/Dixie Mafia pretty well ruled the South.

quote:

Originally posted by Fly-Sig:

quote:

Originally posted by slosig:

quote:

Originally posted by jhe888:
. . . [ snip ] . . .

You aren’t wrong. The reality is that it is impossible to make rules, much less laws that consider every possible corner case.

Still, it is deeply frustrating to see those who have sworn an oath to support and defend the constitution ignore or attempt to dismantle it.

What is infuriating is when the politicians making a law say it may not be Constitutional but pass it anyway. A close cousin situation is when all manner of experts show how it appears to blatantly violate the Constitution. Clearly the politicians' intent is to make an unConstitutional law.

It's also distressing how fast they can oppress and how long it takes to liberate ourselves again.

For years I've been telling people outside the 2A community that basically all the gun laws in our history have been written to keep guns out of the hands of minorities, specifically black people and natives and I'm ever met with skepticism at best.

I absolutely love that having to confront this fact is baked into Bruen.