Antisubordinating the Second Amendment.

• Author: Li, Danny Y.

NOTE CONTENTS INTRODUCTION 1824 I. SOCIAL-MOVEMENT HISTORY 1831 A. The Early Days of Gun Rights and Racial Justice 1833 B. Gun-Rights Mobilization in the 1980s 1836 C. Race-Conscious Advocacy 1840 D. The "Afro-Americanist Reconsideration" in the Academy 1843 II. JURISPRUDENCE 1845 A. The Road to Heller 1845 B. District of Columbia v. Heller 1849 C. McDonald v. Chicago 1853 D. Neiv York State Rifle & Pistol Ass'n v. Bruen 1856 1. The Second Amendment as a Second-Class Right 1856 2. Racial History and Public Carry 1858 3. Disentangling Racial-Justice Claims in Bruen 1860 a. Racial Disparities in Policing and Prosecution 1861 b. The Discriminatory Origins of New York's Sullivan Law 1862 c. The Racist History of Gun Control 1863 d. Gun Rights and the Civil-Rights Tradition 1863 e. Self-Defense and the Marginalized 1864 E. Bruen and a Demosprudence of Race 1865 III. ANTISUBORDINATION AND THE SECOND AMENDMENT 1869 A. Gun Violence and Civil Rights 1873 1. Equal Public Safety as a Civil Right 1875 2. The Turn to Community-Based Remedies 1878 3. The Court Battle Against Gun Manufacturers 1881 4. The Dark Side of the 1990s Gun Fight 1884 B. Guns, Democracy, and Social Equality 1885 C. Bruen's Racial-Justice Problems 1888 1. An Objection from Equal Public Safety 1892 2. An Objection from Equal Status 1898 D. Guns and Antisubordinating Constitutional Politics 1902 CONCLUSION 1906 INTRODUCTION

[I]t cannot be believed that the large slaveholding States regarded ["persons of the negro race"] as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens,... it would give them the full liberty... to keep and carry arms wherever they went. (1) --Chief Justice Taney in Dred Scott v. Sanford, 1857 "[E]ven Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms--a right free blacks were often denied in antebellum America." (2) --Justice Thomas in New York State Rifle & Pistol Ass'n v. Bruen, 2022 "There's no Second Amendment on the South Side of Chicago." (3) --Chief Public Defender, Cook County, Illinois, 2021 After over a decade of silence and fourteen years since its landmark decision in District of Columbia v. Heller, (4) the Supreme Court has once again reshaped Second Amendment protection in New York State Rifle & Pistol Ass'n v. Bruen. (5) In Bruen, the Court invalidated a New York law that required "proper cause" to obtain a license to carry concealed firearms. Whereas Heller granted individuals the right to possess a gun at home for self-defense, Bruen now grants individuals the right to carry firearms in public.

The questions presented in Bruen have been festering among lower courts since Heller. And the briefing in Bruen largely reflected the popularity of the lands of esoteric historical arguments that have become standard in disputes about the proper scope of Second Amendment protection. Noteworthy, however, was the number of briefs that urged the Court to invalidate New York's licensing law on grounds that these gun regulations subjugate marginalized communities. More than one of every five briefs filed to invalidate New York's law raised arguments about the disparate impact of gun-control laws on marginalized groups. (6)

The filers of these race-conscious briefs made for strange bedfellows. (7) Twenty-three Republican state attorneys general filed a brief recounting the pre-Civil War enactment of laws restricting the carrying of firearms by free Black citizens. (8) One hundred seventy-six Republican members of the House filed a brief arguing that gun-regulation laws like New York's were "designed to exclude non-elite immigrants and disfavored minorities from gun ownership." (9) The libertarian Rutherford Institute compared New York's licensing law to poll taxes and literacy tests. (10) And then there was the public defenders' brief. (11) Filed by prominent New York public-defender organizations like the Bronx Defenders and Black criminal-defense lawyers, the public defenders' brief argued that enforcement of criminal gun regulations like the New York licensing law had a disparate impact on communities of color by exacerbating punitive and discriminatory policing. Conservative gun-rights activists were ecstatic. (12)

In the end, the Bruen Court opted for a purportedly more "value-neutral" approach. In reaching its decision, the Court confined its method of Second Amendment interpretation to text, history, and tradition. (13) That is, to determine whether a particular gun regulation passes muster under the Second Amendment, courts consider first whether the law regulates conduct that is covered by the plain text of the Second Amendment. If so, then courts are limited to the question of whether the regulation comports with history and tradition. (14) In this case, the Court found that New York's regulation was inconsistent with history and tradition--and thus constitutionally invalid.

Still, under the guise of "neutral" reasoning from text, history, and tradition, the Bruen Court vindicated race-conscious claims throughout its decision. Justice Thomas's majority opinion recounted the history of Black disarmament and the necessity of Black arms bearing to defend against white terror. (15) It also referenced Chief Justice Taney's oft-quoted passage in Dred Scott, cited above, ridiculing the idea of extending the right to bear arms--a privilege of citizenship--to Black people. This was proof in Thomas's eyes that the Second Amendment has long been understood to protect carrying in public. (16) And in a concurring opinion, Justice Alito directly cited the public defenders' brief to suggest that Second Amendment protection serves the public-safety interests of communities of color. (17)

These racial-justice claims are not some odd blips in the history of the modern Second Amendment's development--indeed, as this Note argues, they are central to it. Nor are these claims inventions of the Roberts Court. Rather, race-conscious arguments for gun rights have been present from the very beginning of the modern Second Amendment's social-movement and jurisprudential evolution. As early as the late 1960s, conservative gun-rights advocates began to link gun control with racial subordination. These arguments became a consistent theme among gun-rights organizers and grew in sophistication over time as legal academics--and then federal judges--took notice.

As gun-rights advocates turned to courts to enforce new, more expansive readings of the Second Amendment, they brought these racial-justice claims with them. Indeed, at each stage of the Second Amendment's modern development, the same racial-justice claims have been raised again and again to justify an increasingly expansive account of the constitutional right to keep and bear arms. The race-conscious arguments asserted by gun-rights activists in public fora in the late twentieth century were transformed and made legible in formal jurisprudential settings in the twenty-first century--first, to justify the individual-rights theory of the Second Amendment; then, Second Amendment incorporation; and now, Second Amendment protection outside the home.

The invocation of race in the modern Second Amendment debate has been asymmetric. Whereas pro-gun conservative legal academics have amassed a war chest of scholarship advancing variations of the claim that gun regulation has racist origins and effects, (18) progressive legal scholars have--with rare exceptions (19)--largely remained silent. With the recent and unexpected boon from the public defenders' brief, conservative gun-rights activists have successfully popularized the claim that gun control is racist after half a century of social-movement mobilization without comparable resistance from progressive gun-regulation advocates.

Proponents of gun regulation cannot afford to cede this ground any longer. In that spirit, this Note has two goals. The Note's first contribution is in unearthing the enduring role of racial-justice claims in the social-movement and jurisprudential history of the modern Second Amendment. In bringing this history to light, this Note follows the example set by recent works that recover the ways in which histories of slavery and racial domination are essential to understanding the evolution of American law in an effort to complicate prevailing legal canons. (20) In the Second Amendment context, uncovering these histories in parallel highlights an important case of conservative "demosprudence." Coined by Professors Lani Guinier and Gerald Torres, demosprudence describes "the process of making and interpreting law from an external--not just internal--perspective," which "emphasizes the role of informal democratic mobilizations and wide-ranging social movements that serve to make formal institutions," such as courts, more responsive to popular accounts of legal meaning. (21) The social-movement and jurisprudential histories this Note uncovers demonstrate that when it comes to race-conscious understandings of the Second Amendment, movement actors and courts have always been in conversation with one another. In Bruen, the Court expressly aligned itself with a social movement that has, over decades, mobilized to change Second Amendment understandings on race-based reasonings.

The Note's second contribution is in offering a counterdemosprudence in the form of a competing normative framework that defends gun regulation as essential to addressing forms of racial subordination--a project I call "antisubordinating" the Second Amendment. (22) This framework views an absolutist and historical account of the right to bear arms--exemplified by the Bruen decision--as incompatible with the demands of racial antisubordination. Antisubordinating the...