From Ballots to Bullets: District of Columbia v. Heller and the New Civil Rights

• Author: Anders Walker
• Position: Assistant Professor, Saint Louis University School of Law
• Pages: 509-548

Assistant Professor, Saint Louis University School of Law. Ph.D., Yale University; J.D., Duke University; B.A., Wesleyan University. I would like to thank Bronwen Morgan and my fellow contributors to The Intersection of Rights and Regulation: New Directions in Socio-Legal Scholarship (Bronwen Morgan ed., 2007), especially Jeffrey R. Dudas, for help in formulating some of the ideas used to frame this piece. I would also like to thank Patricia Tuitt and the participants in Rights and Regulation: Private Violence and the Authority of Law, a workshop held at the 2005 Oxford Summer Institute, sponsored by the Law & Society Association and the Oxford Centre for Socio-Legal Studies.

"The question tonight, as I understand it, is . . . what next? In my little humble way of understanding it, it points toward either the ballot or the bullet."

Malcolm X¹

Page 509

I Introduction

In the mass of legal documents filed on behalf of the respondent in the recent Second Amendment case District of Columbia v. Heller, one stands out.² The Congress of Racial Equality, or CORE, Page 510 the same organization that orchestrated the freedom rides in 1961 and hosted Malcolm X's "Ballot or the Bullet" speech in Cleveland in 1964, submitted a brief supporting the individual right to bear arms.³ Forty pages in length, the document provided well-substantiated examples of how law had long been used to keep guns from African-Americans, particularly during slavery, Reconstruction, and the early part of the twentieth century.⁴ Then, in a remarkable move, the brief maintained that even current gun control efforts in the twenty-first century are motivated by a basic fear that minorities, particularly African-Americans, "are not to be trusted with firearms."⁵

CORE's claim that gun control is racist raises a variety of questions about the constitutional implications of Heller. First, how, if at all, is the regulation of arms racially discriminatory? Second, what rights, if any, do arms regulations infringe? Third, if arms regulations are discriminatory, does this make Heller a victory for civil rights?

Borrowing from Derrick Bell's interest convergence thesis, this Article posits that Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize.⁶ Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights.⁷ Frustrated by legal liberalism's Page 511 failure to control violent crime, a bi-racial coalition of black and white conservatives adopted the very same rights talk deployed by the NAACP and Martin Luther King, Jr. in the 1950s and 1960s to advance a pro-gun, pro-self-defense agenda in the 1970s and 1980s. Perhaps the biggest proponent of this agenda, the National Rifle Association (NRA) reframed the right to bear arms and the right to self-defense as civil rights that were firmly established at the time of the founding and therefore deserving of constitutional protection.⁸

While much of the campaign to consecrate guns drew from what Jeffrey R. Dudas and others have identified as the "politics of resentment," a notion that certain minorities, particularly criminal defendants have received special rights, not all of it was animated by anti-minoritarian sentiment.⁹ At least some of the push for guns Page 512 came from a genuine belief that firearms bolstered civil rights by deterring violent crime without inviting the rights-averse tyranny of a police state.¹⁰ Convinced that they were carrying on the mantel of the civil rights movement by safeguarding liberty, both CORE and the NRA pushed private ownership of firearms as essential to any meaningful "human, civil, or constitutional" rights regime.¹¹

Interestingly, the NRA even challenged the NAACP's reputation as the nation's preeminent civil rights group, declaring itself to be the "oldest civil rights organization" in America in its Heller brief.¹² While this claim would have certainly rankled veterans of the civil rights movement like former Justice and NAACP lawyer Thurgood Marshall, it did not rile the present Court.¹³ In fact, the Court rejects arguments made by the NAACP in Heller, siding instead with the NRA and CORE.¹⁴

What does the anointing of CORE and the NRA as arbiters of civil rights mean? As this Article will show, Heller marks the beginning of a new chapter of civil rights constitutionalism animated by a new convergence of white and black interests around the kinds of civil rights that deserve constitutional protection. According to Derrick Bell, interest convergence occurs Page 513 when even the slightest black interest converges with white interests to produce a civil rights victory.¹⁵ Without such a convergence, argues Bell, there tend not to be civil rights gains, meaning that the NAACP's victory in Brown v. Board of Education in 1954 happened not simply because the Court wanted to correct racial injustice, but because there were other interests at stake as well.¹⁶ Perhaps foremost among these was a governmental imperative to improve America's Cold War image.¹⁷

The Cold War, of course, is over. However, Heller suggests that a new convergence of interests has occurred, one that unites gun rights enthusiasts, small government conservatives, and a distinct minority of black voters who maintain that the deregulation of arms promotes security and bolsters liberty.¹⁸ This claim, made by several briefs in Heller, manifests itself in the articulation of two new civil rights. The first, the individual right to bear arms, empowers the Supreme Court to overturn unreasonable federal regulations of private arms as a violation of the Second Amendment. The second, the right to "employ deadly force in self-defense," gives the Court the power to overrule regulations that impinge on citizens' efforts to guard themselves and their homes, independent of Second Amendment concerns.¹⁹

This last right, generally treated as a creature of criminal law, is one of the more subtle contributions of District of Columbia v. Heller. ²⁰Following CORE's suggestion that the right to self-defense is a "fundamental right" and the NRA's suggestion that it is an "essential right," the Supreme Court held that self-defense is in fact an "inherent right" capable of protecting those arms Page 514 "overwhelmingly chosen by American society" to defend self, family, and property.²¹ One of those arms, what Scalia terms the "quintessential self-defense weapon," is the handgun.²²

The implications of the Court recognizing self-defense as a fundamental right are potentially great. For one, Heller's affirmation of self-defense provides a constitutional basis for protecting arms that does not necessarily rely on incorporating the Second Amendment to the states.²³ By identifying an "inherent" right to self-defense, the Court suggests that draconian state bans on the "quintessential self-defense weapon," the handgun, will never pass constitutional review regardless of Second Amendment concerns.²⁴ As several briefs filed in Heller suggest, such bans either deprive "persons" of their "liberty" to defend their lives and homes, in violation of the Fourteenth Amendment's Due Process Clause;²⁵ or, conversely, they strip "citizens" of one of their most important "privileges and immunities," the privilege to own a gun for self-defense and the immunity from prosecution in cases of justified use of deadly force.²⁶

Looked at from a socio-legal perspective, Heller's invocation of self-defense not only sounds a warning for state gun bans, but reverses the federal government's policy of what Jonathan Simon has called "governing through crime." ²⁷Since the 1960s, argues Simon, the federal government has used crime as an excuse to expand state power.²⁸ Heller suggests the opposite is going on. Rather than expanding state power, the Supreme Court is relinquishing it by avoiding further expansions of the criminal justice system in favor of using private violence as a legitimate Page 515 means of crime control. This turn to private violence, or what Lawrence Friedman has called a "private system of criminal justice," echoes America's longstanding vigilante tradition, suggesting that even conservatives have begun to grow weary of America's costly, statist prison-industrial complex.²⁹

To explain more clearly how Heller represents a return to private criminal justice and an endorsement of a new civil rights, this Article will proceed in five parts. Part II will recover the argument that CORE makes in its brief, showing how it uses the history of slavery and Reconstruction, not the founding, to frame armed self-defense as a civil right inextricably linked to citizenship. Part III will discuss the interests that appear to be converging in Heller by comparing CORE's brief to other briefs filed in the case, including a brief filed by a majority of Senators and Representatives in Congress, as well as a brief filed by the NRA. Part IV will walk through Scalia's majority opinion in Heller showing how it begins with the founding but then moves quickly to an affirmation of the arguments made by CORE and the NRA. ³⁰ Part V will provide a historical explanation for why these interests have converged in the manner that they have and what this means for civil rights generally.

II From Freedom Rides To .45'S: The Core Brief

Before discussing CORE's brief, it is helpful to provide some of the history of the organization. Founded in 1942 by college students in Chicago, the Congress of Racial Equality was not initially dedicated to armed self-defense.³¹ Inspired by the peaceful teachings of Mahatma Ghandi, CORE...