Professor Jacob Charles Quoted in "If We Must Rely on 'History and Tradition' to Assess Gun Laws, Does Racist History Count?" -- Los Angeles Times

Professor Jacob D. Charles is quoted in the Los Angeles Times article, "If We Must Rely on 'History and Tradition' to Assess Gun Laws, Does Racist History Count?" The article considers whether old, racist laws should be considered part of the nation's legal tradition by litigants in modern gun control cases.

Excerpts from "If We Must Rely on 'History and Tradition' to Assess Gun Laws, Does Racist History Count?"

Jake Charles, an associate professor at Pepperdine Caruso School of Law, has studied and written about the issue of old, racist laws being relevant — or not — under Bruen’s “history and tradition” test.

He said he doesn’t believe modern gun laws should be upheld or tossed based on a historical test, but since such a test is required under Bruen, it should at least be honest and applied consistently — regardless of whose modern position on guns it bolsters.

Charles noted that much of the discussion of late has centered on racist laws that excluded enslaved people and other racial minorities from possessing weapons, but there were also racist motivations for many old laws that cemented gun rights for white people. Some early Southern laws, for example, required white men to bring guns to church services as a precaution against slave revolts, he said.

“The expansion of gun rights was often motivated by the same kind of discriminatory rationales that some of the regulations were motivated by,” he said. “They were to enforce white supremacy.”

Charles said racist laws of centuries past should be viewed skeptically by the courts, but not dismissed wholesale. “Whether or not these laws are unconstitutional, they can tell us something about what kind of scope of government power the founding generation would have thought the legislature had” to restrict gun rights or access, he said.

The so-called abstraction approach to gun law precedent has been applied by judges before, including in a pre-Bruen case by then-Circuit Judge Amy Coney Barrett — who is now a Supreme Court justice, Charles wrote last year in the Stanford Law Review.

Barrett issued a dissenting opinion in the case Kanter v. Barr in which she cited old racist gun laws against enslaved people, Indigenous people and Catholics as clearly unjust, but nonetheless informative — helping to establish a clear tradition of lawmakers restricting access to firearms for people they deemed public threats.

Barrett’s approach, Charles wrote, suggested that old racist laws “can provide hints about earlier generations’ understanding of legislative power divorced from their concrete application to specific groups.”

Charles said the Supreme Court could provide more guidance on the issue in its forthcoming decision in United States vs. Rahimi, where it is considering the constitutionality of laws that prohibit the possession of firearms by people under domestic-violence restraining orders.

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Charles said the Supreme Court could weigh in further on racist old laws serving as historical analogues in another case called Range vs. Attorney General, which considers whether individuals convicted of felony crimes can be prohibited from possessing firearms.

If it does, Charles said, he will be watching closely to see where Barrett lands — and whether she once again argues for considering old racist laws as relevant history.

The complete article may be found at Los Angeles Times