Scholars argue racist historical gun laws shouldn't justify modern restrictions

A new Yale Law Journal article is making the case that racist gun laws from America's past shouldn't count as legal justification for restrictions today, a legal argument with real stakes for how courts weigh historical gun control claims going forward.

Key points

• The authors: NRA-ILA's Joseph Greenlee and University of Wyoming law professor George Mocsary argue that laws once used to disarm slaves, freedmen, and other minorities shouldn't be treated as legitimate precedent simply because they existed.
• Their framework: Bearing Arms reports the pair propose treating such laws as "anti-analogues," counterexamples showing the abuses the Constitution was meant to prevent, rather than evidence of lawful tradition.
• The Wolford connection: The piece ties this to Hawaii's "vampire rule" case, where the state cited an 1865 Louisiana Black Codes-era law and the "spirit of Aloha," arguments the Supreme Court rejected, affirming the Second Amendment means the same thing nationwide.
• The pushback: Bearing Arms notes gun control advocates and jurists like Justice Ketanji Brown Jackson resist excluding offensive historical laws from constitutional analysis, but the authors say courts should examine whether a law was later repudiated as unconstitutional.
• The stakes: According to the article, if adopted, this standard would block states from using discriminatory 19th-century statutes to defend modern restrictions in Second Amendment litigation.

Quick take

This is a dense legal argument, but the upshot matters for anyone watching how courts handle history-based challenges to gun laws: it's a direct counter to attempts to launder old discriminatory statutes into modern justifications for restricting the right to bear arms.

Read the full story: bearingarms.com