Historic racist gun laws are taking on new relevance in legal battles over modern-day gun regulations after the Supreme Court case that expanded the right to bear arms. In the 1700s and 1800s, states 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, getting a mixed reception. They have argued that racist gun laws are evidence of a historical tradition of legislative bodies denying access to firearms for public safety, the Wall Street Journal reports. “[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 made similar arguments in recent weeks in other appeals involving gun bans imposed on accused and convicted felons. It is a distasteful but unavoidable argument, legal scholars say, as a consequence of the upheaval in Second Amendment litigation caused 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 the state's strict handgun permitting rules and upended how courts are expected to judge the constitutionality of gun regulations. In recent months, federal and state government lawyers have cited the racist laws in defense of firearm restrictions. 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.