A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. Rev. 1521 (2010)

I’ve just published this article at the Legal Workshop, the online site run by the NYU Law Review and several other journals; the author of the article to which I responding published a gracious reply to my piece.

Here’s the opening of my article, plus a few items from the rest of the piece (which is only a few pages long); please go to the Legal Workshop site to read the rest, including the footnotes, and of course please also read the author’s response to my piece:

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I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.

The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls [emphases added]:

  • “[P]recolonial and early colonial gun laws in some states limited such rights [to bear arms] to subsects of the citizenry: white males deemed loyal to state interests.”
  • From the early years of the republic through the mid-twentieth century, explicit and thinly veiled alienage and racial prohibitions helped maintain racial exclusivity in firearms possession.”
  • “The pre-Revolution and founding-era firearm restrictions were harbingers for the themes that have consistently pervaded gun regulation…. [S]ince only “First-Class citizens” were allowed to vote, bear arms, and serve on juries, many other citizens — poor whites, women, minors, free blacks — were denied many fundamental rights presently associated with citizenship.”
  • “Pre–Revolutionary War gun regulation did not necessarily depend on categories of legal citizenship but rather on a conception of membership in the national community contingent upon race, wealth, and gender.”
  • “Prevailing firearm laws in various states allowed for the disarmament of Catholics and poor whites.”
  • “By the time of the Constitution’s framing, statutes in the several states made guns a privilege of ‘First-Class Citizens,’ meaning that only select citizen males could legitimately exercise the right to bear arms.”
  • [A]rms bearing was considered congruent to voting, holding public office, or serving on juries — rights associated with each other and denied even to many citizens.”
  • “Militia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century.”
  • “This racialized, gendered, and class-stratified understanding of persons permitted to own guns — and exercise other core political rights — began finding legislative imprimatur in immigration and militia regulations [citing sources from the early Republic]…. Individual state constitutions codified restrictions on ‘Negroes, Mulattoes, and Indians’ serving in state militias or expressly limited firearms to ‘free white men.’”
  • “This ‘lone-democracy’ syndrome of the framers also explains the relationship between firearms and voting at the founding. Both were rights of ‘First-Class Citizens’ and could be denied to most Blacks, women, and aliens.” [Footnote: This appears to be an assertion that certain people were restricted from owning guns, as the “discussing gun-ownership restrictions in early republic” quotation shows; it does not seem to be just an assertion that they lacked a constitutional right to own guns and were thus vulnerable to such legislative restrictions. Indeed, the analogous behavior to which the passage points — voting by blacks, women, and aliens — was actually prohibited in many or nearly all jurisdictions [citations omitted].] Elsewhere, the article refers to this passage using the parenthetical “discussing gun-ownership restrictions in early republic.”

These statements are claims about restrictions on civilian gun possession — about who was “permitted to own guns,” who was “prohibit[ed]” from owning guns, who was subject to “firearms restrictions” and “gun regulation,” whose “disarmament” was “allowed” by various “laws,” and so on — and not merely about who could be excluded from militia duty.

Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites, women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions…. The article [does cite one contemporary source], which says that “the meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period.” But, however the “meaning” of the right may have been “colored,” that passage points to no statutes that actually limited gun ownership by women, poor whites, or aliens….

The article does include a footnote that says, “I am not arguing that women were prevented from owning arms; rather, prevailing statutes and legal opinions gendered arms bearing in important ways.” So the careful reader might grasp that the article’s claims about women — but not the article’s claims about poor whites and noncitizens — are not what they first appear.

But I am afraid that some readers might understandably miss that footnote. And if they see it, they might understandably be confused, because it is difficult to reconcile that footnote with the article’s statements that:

  • “[S]ince only ‘First-Class citizens’ were allowed to … bear arms …, … women … were denied many fundamental rights presently associated with citizenship.”
  • “[G]un regulation [depended] on a conception of membership in the national community con¬tin¬gent upon … gender.”
  • “[O]nly select citizen males could legitimately exercise the right to bear arms.”
  • “[A]rms bearing was considered congruent to voting.”
  • “[F]irearms … could be denied to most … women.”

These statements do seem to assert that “women were [legally] prevented from owning arms.”
It is of course possible that custom or informal social understandings might have imposed de facto restrictions on gun ownership, even if the law did not. But none of the sources that the article cites offer evidence of that possibility, either.

When the article was available in draft on the Social Science Research Network (SSRN), I e-mailed the author asking whether he had found some sources showing that women, poor whites, and noncitizens had indeed been disarmed by law. I asked again after the Law Review published the article. But while the author kindly and promptly replied to my e-mails, neither response pointed to any sources that actually showed that women, poor whites, or noncitizens were legally constrained from owning guns.

It thus seems to me that the article may leave the reader with a mistaken understanding of the matter. I thought this was worth communicating to readers….