Race, Ramos, and the Second Amendment Standard of Review

Abstract

Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We argue that courts’ reliance on these restrictions is illegitimate. Drawing on original research, we reveal how the post-war South restricted gun-ownership for racist reasons, deployed its new laws to disarm free Blacks, yet allowed whites to bear arms with near impunity. We then show how modern reliance on these laws contravenes the Supreme Court’s decision in Ramos v. Louisiana, which deemed similarly tainted statutes unconstitutional. Since the Court will soon consider the validity of modern limits on concealed carry, placing Southern gun restrictions in their proper historical context matters today more than ever. While Southern gun control after the Civil War might tell us something about how the South sought to preserve white supremacy, it tells us almost nothing about the true scope of the Second Amendment.

Keywords: Legal History, Second Amendment, Standard of Review, Discrimination, African American History, Race, Constitutional Rights, Interpretation