Gun rights have gone woke, if the briefs filed in a pending Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen, are any indication.
At issue is a New York law that requires “proper cause” to obtain a license to carry concealed firearms on the streets — and that deems a mere desire to carry a gun for self-protection insufficient cause. The New York State Rifle & Pistol Association and two individual plaintiffs have challenged the law as a violation of the Second Amendment, and gun rights groups expect another major statement from the court in favor of broad Second Amendment rights.
The briefing in the case has made for strange alliances. Some Black criminal defense lawyers and public-defender organizations, including the Bronx Defenders, filed a brief on behalf of the plaintiffs, pointing out the disparate impact gun regulations have on low-income people of color. Twenty-three Republican state attorneys general, of all people, echoed their race-based arguments. “State legislatures have often fallen short of the mark in defending this right to bear arms in self-defense,” they conceded, pointing to historical bans on the carrying of arms by free Black citizens in some of their own states. “In the wake of the Nat Turner slave revolt,” they observe in a typical passage, “Maryland, Virginia, and Georgia passed laws prohibiting free blacks from carrying firearms.”
They were joined by 176 House members — again, all Republicans, including such divisive figures as Reps. Marjorie Taylor Greene (Ga.), Lauren Boebert (Colo.), Madison Cawthorn (N.C.) and Paul A. Gosar (Ariz.) — who argued that the history of the New York gun regulation at issue in Bruen “confirms that it was designed to exclude non-elite immigrants and disfavored minorities from gun ownership.” Finally, the libertarian Rutherford Institute weighed in as well, arguing that there are “strong parallels between poll taxes, literacy tests, and certain gun control schemes that can have the effect of preventing blacks and other minorities from owning guns much as they were once prevented from voting.”
Depending on how you count, 1 of every 4 Bruen briefs that urge the justices to strike down New York’s law argues that such gun regulations have disparate impacts on people who have suffered from discrimination in other contexts. Indeed, to read some of these briefs, one would think that the dominant motive for regulating the public bearing of arms — historically and today — was not public safety or keeping the peace but racial and ethnic bigotry.
The issue didn’t go unmentioned in the oral arguments in the case, held on Wednesday. Justice Samuel A. Alito Jr. asked Brian Fletcher, of the Justice Department, whether it was true that “a major reason” for enactment of New York’s law a century ago “was the belief that certain disfavored groups, members of labor unions, Blacks, and Italians were carrying guns and they were dangerous people” who needed to be disarmed. Paul Clement, counsel for the petitioners, specifically mentioned the Bronx Defenders brief in his closing remarks as proof of the dangers of discretionary concealed-carry licensing
The hypocrisy on display in these briefs is galling. Some signatories are the same figures who spent the summer of 2021 supporting “big lie”-backed voting rights restrictions on minorities, who screeched that immigrants are replacing “real Americans” and who endorsed anti-critical-race-theory legislation so ham-handed that teachers are now instructed to offer “opposing” views of the Holocaust. These right-wing leaders have suddenly discovered the merits of concepts like White privilege, anti-Blackness and structural racism — but only when it applies to gun rights, it seems.
Why do these briefs highlight the racial history and impacts of these regulations? Perhaps these conservatives hope to sway the more-liberal justices, who in the past have taken into account the racist history or effects of other regulations. Perhaps these divisive figures have had an epiphany and have genuine concern for the rights of Black citizens, racial minorities and immigrants (and will perhaps soon back legislation designed to ease the burden on minorities in the areas of health care and voting) — although I doubt it. (As a matter of full disclosure, I joined a brief arguing on behalf of neither side, focused on the interpretive method that judges should use to answer Second Amendment questions.)
Irrespective of motive, all this situational wokeness makes for poor history and worse policy. First, to presume that a facially neutral law is invalid today solely because it has a bigoted past proves too much. Essentially all law in America is tainted by racism. Rape laws, for instance, were notoriously used to police sexual relations between Black men and White women — but the fact that they were used to racist ends in the past doesn’t mean that all modern laws prohibiting sexual assault should be stricken from the criminal code.
Second, gun rights have as bigoted a history as gun regulation. The Second Amendment derives directly from the overtly anti-Catholic Glorious Revolution, in which the English people deposed King James II for his Catholicism and for his tolerance of Catholics, in favor of his Protestant daughter Mary and her Dutch husband, William of Orange. Indeed, a passage in the 1689 English Declaration of Rights — one that Justice Antonin Scalia described in Heller as “the predecessor to our Second Amendment” — specifically guaranteed only Protestants the right to “arms for their defense” and was enacted almost simultaneously with a law curbing Catholics’ ability to possess firearms.
Further, as the historian Carol Anderson and legal scholar Carl Bogus have documented, at least some of the framers (and perhaps more of the ratifiers) of the Second Amendment wanted to ensure that their militias, which doubled as slave patrols, would never be disarmed. During Reconstruction, Klan members baldly asserted that the federal government was infringing on their rights to armed self-defense when it prosecuted them for terrorism against Black citizens.
Finally, the focus on the purported disparate impacts of gun regulations on people of color overlooks the fact that racial minorities disproportionately suffer the negative effects of gun rights. Numerous studies have shown that Black people are more likely to be mistakenly shot in self-defense when they hold innocuous items like wallets or phones, compared with people who aren’t Black. A young Black man in the United States is 20 times as likely to die as a result of gun violence than his White counterpart. Twenty times. Gun regulation can have a disparate impact on Black freedom, but so can refusing to enact gun regulation. To not regulate in service of preventing gun violence is to treat these young men’s lives as undeserving of equal protection.
As the court deliberates on this case between now and next summer, it should be cautious about the invocation of anti-racism presented in these briefs, whether pushed by conservatives, like the Republican House members, or liberal activists, like the Bronx Defenders. There is without doubt a relationship between racism, gun rights and gun regulation, but it’s a far more complicated and consequential story than these advocates are willing to tell.
correction
An earlier version of this article said that 21 state attorneys general signed an amicus brief in favor of the plaintiffs in the New York gun-rights case. In fact, 23 have. This article has been updated.