Professor Jacob Charles, "On Sordid Sources in Second Amendment Litigation" -- Stanford Law Review Online (forthcoming)
Professor Jacob D. Charles's article, "On Sordid Sources in Second Amendment Litigation," (SSRN) will be published in the Stanford Law Review Online (forthcoming). The article considers the Supreme Court's Second Amendment legal test that forces reliance on historical tradition alone to judge public safety today.
Abstract of "On Sordid Sources in Second Amendment Litigation"
The landscape of American history is littered with facially racist, misogynistic, homophobic, xenophobic, and other demeaning, marginalizing, and subordinating laws. Many more facially neutral laws have been applied in ways that subjugate disfavored groups. The history books teem with tales of these heinous American legacies. But legacies they are. And constitutional rules that privilege history and tradition should have some principled standard for dealing with such sordid sources in a consistent fashion. Yet the Supreme Court’s current jurisprudence falls short.
Second Amendment litigation provides a fruitful context for clarifying possible pathways to greater consistency in the doctrinal treatment of our checkered past. That is particularly true given the Supreme Court’s recent mandate to use a novel history-and-tradition-only legal test, and because race, guns, and the law have been inescapably bound together in American society since its inception.
Within the Anglo-American legal tradition lie laws expressly disarming specific marginalized groups, like African-Americans (free and enslaved), Native Americans, and religious minorities. Legal rules have long been used to keep disfavored groups from accessing instruments of power and self-defense. These laws have been legally dead for more than a century, but recent Second Amendment litigation has resurrected them to relevance. In this context, the question of what courts, counsel, and commentators should do with these moribund laws takes on heightened importance.
This Essay describes why this question matters, explains the options available to legal actors in dealing with these laws, and argues in favor of an approach that abstracts past principles while condemning past judgments. The Court’s recent revolution in Second Amendment method forces reliance on historical tradition alone to judge public safety today. Without a full picture of past laws—the prosaic and prejudiced alike—courts risk impermissibly narrowing the range of legislative options the ratifiers understood to be consistent with the right to keep and bear arms. And constricting that authority too tightly would be to usurp the people’s power to rule themselves.