In 1967, the Black Panther Party for Self-Defense sold Mao’s Little Red Book to raise money to buy guns.1 BOBBY SEALE, SEIZE THE TIME: THE STORY OF THE BLACK PANTHER PARTY AND HUEY P. NEWTON 79–85 (1968). The Panthers traveled from Oakland to the University of California, Berkeley, where they sold the books to aspiring student communists in the campus center.2 Id. at 80. Huey P. Newton’s sales pitch? “Power comes out of the barrel of a gun. Quotations from Chairman Mao Tse Tung. Get your Red Book.”3 Id. The Panthers soon had enough money to purchase shotguns, pistols, and semi-automatic rifles,4 See id. at 85 (listing weapons owned by the Panthers). which, in the spirit of self-defense, they carried proudly during their combative patrols of Oakland’s police force.5 See id. at 80–81. As Bobby Seale recalled in his memoir, Seize the Time, Newton “studied those law books, backwards, forwards, sideways, and cattycorners; everything on gun laws” to ensure that the Panthers were obeying California law.6 Id. at 73. But their patrols were in danger.
The Panthers had attracted the attention of Don Mulford, a Republican state representative from Oakland. That April, Mulford threatened to “get” the Panthers by making their patrols illegal.7 HUEY P. NEWTON, REVOLUTIONARY SUICIDE 146 (1973) (Newton recounted a radio show that had invited him as a guest. He recalled Mulford calling in: “He told us that he planned to introduce a bill into the state legislature to make it illegal for us to patrol with our weapons. It was a bill, he said, that would ‘get’ the Black Panthers.”). He quickly followed through, introducing a bill to prohibit Californians from carrying loaded firearms “in any public place.”8 Mulford Act, ch. 960, 1967 Cal. Stat. 2459 (codified as amended at Cal. Penal Code § 25850). The Mulford Act, which remains effective in California, was signed into law by then-governor Ronald Reagan after the Panthers staged a daring armed protest of Mulford’s proposed bill at the California State Capitol.9 See ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 244–45 (2011).
Today, many liberals view gun control as an unmitigated good. During campaign season, Democratic politicians use gun control as a powerful political tool to energize their supporters. In 2019, when Beto O’Rourke declared that, “Hell, yes, we’re going to take your AR-15, your AK-47,” during a presidential primary debate, the audience cheered so loudly that he had to shout to finish his sentence.10 Beto O’Rourke (@BetoORourke), Twitter (Sept. 12, 2019, 9:26 PM), https://twitter.com/BetoORourke/status/1172320706526269440 [https://perma.cc/MN3R-ZDR9]. Conservatives, for their part, tend to be hostile towards gun control.11 Republican Platform 2016, REPUBLICAN NAT’L COMM. PLATFORM COMM. 12–13 (2016), https://int.nyt.com/data/documenthelper/7019-republican-platform/cc2c15a0e1b432d6964b/optimized/full.pdf [https://perma.cc/7MPM-PJMC] (Republican Party platform from 2016) (opposing, among other things, “ill-conceived laws that would restrict magazine capacity or ban the sale of the most popular and common modern rifle” and “federal licensing or registration of law-abiding gun owners, registration of ammunition, and restoration of the ill-fated Clinton gun ban.”). The Republican Party declined to adopt a new platform in 2020. Resolution Regarding the Republican Party Platform, REPUBLICAN NAT’L COMM. 1 (2020), https://prod-cdn-static.gop.com/docs/Resolution_Platform_2020.pdf?_ga=2.165306300.2055661719.1598124638-455285808.1584478680 [https://perma.cc/GNS3-TBW7]. After O’Rourke’s debate performance, Lauren Boebert, now a freshman representative from Colorado,12 Biography, CONGRESSWOMAN LAUREN BOEBERT, https://boebert.house.gov/about/biography [https://perma.cc/8KNA-ZXCV] confronted O’Rourke at an Aurora, Colorado town hall.13 Shaun Boyd, Colorado Woman Challenges Beto O’Rourke’s Plan For Buyback Of AR-15s, AK-47s, CBS DENVER (Sept. 20, 2019, 11:38 PM), https://denver.cbslocal.com/2019/09/20/beto-orourke-aurora-colorado-buyback-ar-15-ak-47-semi-automatic/ [https://perma.cc/X2W2-THMV]. Her response to O’Rourke’s proposed assault weapons buyback program? “Hell no.”14 Id. Over a heckling crowd, Boebert pressed on to ask how O’Rourke planned to “legislate evil.”15 Denver7, Full Town Hall: Beto O’Rourke Campaigns in Colorado, YOUTUBE (Sept. 19, 2019), https://www.youtube.com/watch?v=ROFlCzIKdyI [https://perma.cc/5WYX-3H9U]. As Boebert saw it, the cause of crime “is not the gun, it is the heart of the man that does that.”16 Id.
Absent from this debate is any recognition of the reality that, since before America’s founding, firearms regulations have disproportionately restricted black Americans’ access to firearms.17 See Robert J. Cottroll & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 323–26 (1991) (discussing how race impacted the English tradition of bearing arms in colonial America, with Virginia explicitly banning all black residents from owning firearms and other colonies, including Massachusetts and New Jersey, exempting their black residents from militia service). The Mulford Act’s racially-motivated approach to gun control was, in short, not new. Indeed, as early as 1680, Virginia forbade all black residents, both free and enslaved, from possessing weapons of any kind.18 Id. at 325. Although the state subsequently loosened this restriction out of concern for its vulnerable frontier properties, gun ownership by Virginia’s black population remained subject to regulation.19 See id. Across the country, laws that explicitly predicated gun ownership on race coexisted with limitations on gun use in urban areas and regulations of gunpowder storage.20 See District of Columbia v. Heller, 554 U.S. 570, 683–86 (2008) (Breyer, J., dissenting).
Although no jurisdiction would condition gun ownership on race today, modern gun control was built on this dual approach: seeking to control America’s black population on one hand, while addressing practical safety problems on the other. The Mulford Act and the federal Gun Control Act of 1968 showed that racialized fear was an important motivating factor behind the legislation that constitutes our modern gun control regime. Both laws aimed to promote public safety yet pursued this goal by making guns inaccessible to disfavored groups. The Mulford Act’s prohibition of open carry targeted the Black Panther Party,21 See PART II, infra. while the Gun Control Act made it a crime to sell a gun to convicted criminals, drug addicts, and any person deemed “a mental defective.”22 Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213-2 (codified as amended at 18 U.S.C. § 921). These categorizations of gun use and ownership served as rough proxies for dangerousness and resonate with today’s discourse on gun control, focused as it often is on mental illness and mass shootings.
Gun control’s racial history is obscured by today’s partisan divide. What’s more, the partisan split over gun control is deeply inconsistent with both parties’ other positions. Democrats’ eagerness to restrict gun ownership conflicts with their embrace of other personal freedoms, such as abortion access and sexual liberty, and runs up against liberal aspirations to shrink the criminal justice system. In a time when many Democrats decry mandatory minimum sentencing and racially disproportionate criminal punishment, proposals for gun control legislation that incorporate harsh minimum sentences—like Representative Sheila Jackson Lee’s (D-Tex.) proposed federal firearms registration and licensing system23 Sabika Sheikh Firearm Licensing and Registration Act, H.R. 127, 117th Cong. (2021). —seem incongruous, an uncomfortable reminder of Democrats’ prior “tough on crime” stance. For their part, Republicans’ anti-regulatory stance is consistent with libertarianism, but in tension with mainstream conservatives’ comfort with safety-promoting laws. After all, most abortion regulations, a perennial Republican project, are passed to protect unborn life and (perhaps pretextually) promote women’s health.24 Olivia Gans Turner & Mary Spaulding Baulch, When They Say… You Say: Defending the Pro-Life Position & Framing the Issue by the Language We Use, NAT’L RIGHT TO LIFE COMM. 5, 12 (n.d.), https://www.nrlc.org/uploads/WhenTheySayPacket.pdf [https://perma.cc/AKD4-JTZA] (describing fetuses as possessing an “unalienable right to life and deserv[ing] full protection under the law” and asserting that laws restricting abortion are “protective legislation insuring that women are given information about risks and alternatives to abortion and scientifically accurate information about the developing unborn child”). Those interested in overcoming the current deadlock on gun control would do well to consider whether legislating to criminalize supposedly “dangerous” gun use in fact promotes public safety for society writ large.
I. EARLY AMERICAN GUN CONTROL
For most of America’s history, gun control was dominated by state law—Congress did not regulate firearms until 1927.25 WILLIAM J. VIZZARD, SHOTS IN THE DARK: THE POLICY, POLITICS, AND SYMBOLISM OF GUN CONTROL 87–89 (2000). States’ laws blended common-sense public safety measures with restrictions of gun ownership expressly grounded in race. Boston, Philadelphia, and New York City, America’s largest founding-era cities, all regulated the use of firearms and storage of gunpowder within city limits.26 District of Columbia v. Heller, 554 U.S. 570, 683–85 (2008) (Breyer, J., dissenting). At the same time, states across the Union restricted black residents’ ability both to serve in militias and to possess firearms.27 Cottroll & Diamond, supra note 17, at 325–26.
Race-based restrictions on gun ownership continued well beyond the founding period. Laws prohibiting free and enslaved black people from owning and using firearms were especially prevalent in southern states.28 See id. at 335–38. Writing for the Supreme Court in Dred Scott,29 Scott v. Sandford, 60 U.S. 393 (1857). Chief Justice Roger Taney accepted the validity of these laws. Indeed, restrictions on black Americans’ firearms ownership logically supported the conclusion that black people could not be “citizens” within the meaning of the U.S. Constitution. “[I]f they were so received, and entitled to the privileges and immunities of citizens,” he wrote, black residents would have the right “to keep and carry arms wherever they went . . . . inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”30 Id. at 416–17. As a result, “it cannot be believed that the large slaveholding States regarded them as included in the word citizens.”31 Id. at 416.
Although the Civil War and Congress’s subsequent amendments to the Constitution ended the practice of chattel slavery, they did not end America’s patchwork of racist gun control regimes.32 Cottroll & Diamond, supra note 17, at 342–49. States including Mississippi, Louisiana, and Alabama created black codes containing stringent firearms licensing procedures and harsh penalties for noncompliance.33 Id. at 344–45. Although the Fourteenth Amendment promised equal protection under the law, black gun owners might also have had their weapons seized extralegally by white mobs.34 For a discussion of the growth of disarmament posses, including the Ku Klux Klan, see WINKLER, supra note 9, at 135–37. After the Supreme Court held in United States v. Cruikshank35 92 U.S. 542 (1875). that the Bill of Rights applied only to the federal government,victims of this vigilante violence had little recourse.36 Cottroll & Diamond, supra note 17, at 348–49.
II. THE MULFORD ACT OF 1967
For decades, African Americans comprised a small portion of California’s population. Before World War I, less than two percent of Californians were black.37 The Struggle for Economic Equality, 1900–1950s, UNIV. CAL. (2005), https://calisphere.org/exhibitions/48/african-americans-economic-equality/ [https://perma.cc/G5DM-C94E]. The Great Migration, however, dramatically changed California’s demographics, especially between 1940 and 1965. In that time period, Los Angeles County’s black population grew nearly tenfold, from 75,000 to 650,000.38 James Queally, Watts Riots: Traffic Stop Was the Spark that Ignited Days of Destruction in L.A., L.A. TIMES (July 29, 2015, 9:20 AM), https://www.latimes.com/local/lanow/la-me-ln-watts-riots-explainer-20150715-htmlstory.html [https://perma.cc/XP3W-7E2E]. Widespread use of racially restrictive housing covenants forced many black Angelenos to live in underserved Southeast Los Angeles, and tensions boiled over in 1965 with the Watts riots.39 Robin D.G. Kelley, Watts: Remember What They Built, Not What They Burned, L.A. TIMES (Aug. 11, 2015, 4:29 AM), https://www.latimes.com/opinion/op-ed/la-oe-0811-kelley-watts-civil-society-20150811-story.html[https://perma.cc/4277-EEF6]. The riots were triggered by police officers’ violent arrest of Marquette Frye, a black motorcyclist who had been weaving in and out of traffic above the speed limit.40 See DAVID O. SEARS & JOHN B. MCCONAHAY, THE POLITICS OF VIOLENCE: THE NEW URBAN BLACKS AND THE WATTS RIOT 4 (1973). A growing crowd watched an officer strike Frye’s head with a baton after he apparently started “cursing and shouting”;41 Queally, supra note 38. the onlookers who had gathered to watch were incensed, but widespread unrest might have been avoided had the police not also seized and arrested a young, possibly pregnant woman as they departed the scene.42 See SEARS & MCCONAHAY, supra note 40 at 5. The outraged crowd had now witnessed the violent arrests of Marquette Frye; his brother, Roland; his mother, Rena; and an unrelated woman accused of spitting on an officer.43 Queally, supra note 38. The riots started small, with thrown bottles, bricks, and rocks, but escalated quickly and lasted nearly a week.44 SEARS & MCCONAHAY, supra note 40 at 5–9. By the time they were finally quelled, thirty-four people were dead—twenty-three at the hands of law enforcement—and over 1,000 were injured.45 Queally, supra note 38.
It was just one month later when, in September 1966, Huey P. Newton and Bobby Seale formed the Black Panther Party for Self-Defense in Oakland, California.46 SEALE, supra note 1, at 59. The men named the group after the panther, but not because it was an aggressive animal: as Newton explained, a panther “never attacks.”47 Id. at 65. Instead, “if anyone attacks him . . . the panther comes up to wipe that aggressor or that attacker out, absolutely, resolutely, wholly, thoroughly, and completely.”48 Id. As the organization’s name made clear, self-defense was an integral part of the Panther platform. Guns were key to achieving that goal, especially when it came to fighting police brutality, and the Panthers invoked the Second Amendment in calling on black Americans to arm themselves.49 See id. at 67–68. Newton and Seale did just that in November 1966, when they persuaded an acquaintance to give them guns so they could begin patrolling Oakland’s police.50 Id. at 72–77.
A. THE BLACK PANTHERS’ PATROLS
The police were unnerved and angered by the Panthers’ patrols. In his memoir, Seale recalls an Oakland police officer stopping a group of Panthers after seeing them enter a car armed “with shotguns and pistols.”51 Id. at 85–86. After demanding Newton’s driver’s license, name, and address, the officer asked, “What are you doing with the guns?”52 Id. at 87. Newton retorted, “What are you doing with your gun?”53 Id. (italics in original). At least five more police cars soon arrived.54 Id. at 88. At this point, the altercation had attracted a crowd, and the police were infuriated by the Panthers’ invocation of their Second and Fifth Amendment rights.55 See id. at 87–89. “Constitution, my ass,” Seale reports one officer saying. “They’re just turning it around.”56 Id. at 89.
Seale recounts another incident where police pulled over a Panther patrol car late at night in what was almost certainly an illegal stop. The officer stormed out of his vehicle, shouting: “What the goddam hell you [n-word]s doing with them goddam guns? Who in the goddam hell you [n-word]s think you are? Get out of that goddam car. Get out of that goddam car with them goddam guns.”57 Id. at 94. This quotation has been redacted at the request of the Journal. After Newton refused to leave the car, the officer opened the door and reached inside to grab Seale’s shotgun.58 Id. at 95. Newton shoved the officer out of the car, chambered a round, and stood up.59 Id. “Go for your gun,” he said, “and you’re a dead pig.”60 Id. Although Seale does not explain how these encounters ended, it seems likely that the police begrudgingly allowed the Panthers to leave. The Panthers were careful not to break the law when out on patrol, and, in his memoir, Seale proudly recounts other altercations which led to his arrest.61 See, e.g., id. at 27–29 (recalling Seale and Newton’s arrests following Seale’s recitation of Ronald Stone’s poem Uncle Sammy Call Me Fulla Lucifer); id. at 163–66, 187–97 (describing the Panthers’ arrest and subsequent incarceration after their armed protest at the California Capitol building). If the police had arrested the Panthers that night, Seale probably would have said so.
The police were undoubtedly frustrated by their impotency, and it appears that they took their complaints to local politicians. In April 1967, Newton was hosted by a local radio show.62 NEWTON, supra note 7, at 146. He had a keen sense for publicity and used the opportunity to explain the Panthers’ ten-point program, focusing on “why it was necessary for Black men to arm themselves” to stop police brutality.63 Id. The show attracted considerable attention; Newton recounted that “[h]undreds of calls poured in.”64Id. The callers included Don Mulford, one of Oakland’s Republican state representatives.65Id. Mulford told Newton that he planned to make the Panthers’ patrols illegal.66Id. His proposed bill, he said, would “get” the Panthers.67Id.
Mulford introduced his bill a few days later.68 See id. Although Newton’s account appears to make Mulford’s intentions clear, it is important to note that California politicians seemed generally willing to embrace gun control. At the time, California already prohibited unlicensed concealed carry, made it a crime to possess a loaded rifle or shotgun in a vehicle, and, as recently as 1965, had imposed a five-day waiting period for gun sales.69 WINKLER, supra note 9, at 244. For more information about when these measures were adopted, see Ben Christopher, How California Got Tough on Guns, CALMATTERS (Nov. 14, 2019), https://calmatters.org/explainers/california-gun-laws-policy-explained/ [https://perma.cc/P3VR-S8M4]. Other California politicians disinterested in the Panthers may have been eager to join the minority of states that prohibited openly carrying firearms.70 See WINKLER, supra note 9, at 244. The Panthers, for their part, believed that they were being targeted. Seale recalled Newton explaining that Mulford was “probably making a law to serve the power structure. He’s trying to get some kind of law passed against us.”71 SEALE, supra note 1, at 148. Yet the Panthers didn’t intend to stop the law from passing: “[w]e don’t care about laws anyway,” Seale recalled Newton explaining, “because the laws they make don’t serve us at all.”72 Id. Instead, the Panthers decided to protest the bill at the State Capitol.73 NEWTON, supra note 7, at 147. They hoped to raise a “national outcry,” “warning people about the dangers in the Mulford bill and the ideas behind it.”74 Id. They planned to utilize the media presence at the capitol to announce Newton’s Executive Mandate Number One (“the Mandate”).75 Id.
The Mandate declared that “the racist California Legislature . . . is now considering legislation aimed at keeping the black people disarmed and powerless at the very same time that racist police agencies throughout the country are intensifying the terror, brutality, murder, and repression of black people.”76 SEALE, supra note 1, at 161–62. After invoking Japanese internment, America’s brutal treatment of Native Americans, and the Vietnam War, the Mandate concluded that “the racist power structure of America has but one policy” towards people of color: “repression, genocide, terror, and the big stick.”77 Id. at 162. Because nonviolent protests and attempts to participate in the political process had failed to create change, the only option left was “for black people to arm themselves against this terror before it [was] too late.”78 Id.
B. THE PROTEST AT SACRAMENTO
It was a warm, sunny day when twenty-six Panthers arrived in Sacramento.79 See Jerry Rankin, Heavily Armed Negro Group Walks Into Assembly Chamber, L.A. TIMES, May 3, 1967, at 3 (“A warm noontime sun bathed the Capitol and reporters were waiting on the west steps for Reagan when the Negro group nonchalantly walked up, passed through gaping school children and—surrounded by newsmen—entered the building.”). Their protest happened to coincide with an outdoor chicken lunch Governor Reagan was hosting for a group of eighth-graders.80 Id. As a result, the Panthers—armed, as usual, with loaded rifles, pistols, and shotguns—walked by a gaggle of “gaping schoolchildren” on the Capitol lawn and immediately attracted a press mob.81 Id. Seale was leading the group; as he recalls, “The brothers felt we could not risk Huey getting shot or anything, so we voted that he would stay behind in Oakland.”82 SEALE, supra note 1, at 153.
The Panthers’ first course of action was executing their plan. They accompanied Seale to the Capitol steps, where he read the Mandate to the onlooking reporters.83 Id.at 156. After Seale’s announcement, he decided that he wanted to view the legislative proceedings.84 Id. No one in the group, however, knew where the Assembly chambers were, leading one reporter to describe the Panthers as “a tumultuous, traveling group of grim-faced, silent young men armed with guns roaming around the Capitol.”85 Rankin, supra note 79, at 28. Eventually, an onlooker shouted out the location of the public galleys, and the Panthers and the media scrum reached the Assembly.86 SEALE, supra note 1, at 157. In his memoir, Seale recalls the man by the Assembly door opening it in a subservient manner: “He was scared.”87 Id. at 158. Seale’s retelling of the events indicates satisfaction—perhaps even glee—that his gun scared the doorman into compliance.88 See id. Describing the encounter, Seale writes: “He was opening the door in a manner of, ‘Yes, sir, you sure can come in. Come right on in, sir! You have the gun!’”89 Id.
Remarkably, the state legislators were initially unaware of the Panthers’ presence.90 See Rankin, supra note 79, at 3, 28. The presiding officer could view only the reporters who had also swarmed inside and angrily ordered the cameramen to leave.91 Id. Quickly, though, the representatives noticed the Panthers, and the police began moving the group out.92 SEALE, supra note 1, at 159–60. Once back outside on the Capitol steps, Seale read the Mandate twice more.93 Id. at 161. The Panthers’ protest was international news.94 See, e.g., Armed Gang Invades State Capitol, Guardian, May 4, 1967, at 9; Armed Men Protest in California Capitol, GLOBE & MAIL, May 3, 1967, at 48. The Los Angeles Times printed portions of the Mandate,95 See Rankin, supra note 79, at 28. and to Newton’s delight, local television widely broadcasted Seale’s announcement.96 NEWTON, supra note 7, at 149.
When interviewed by the Los Angeles Times, Mulford denied any racial motivations for the bill, claiming that it was “ridiculous to think this legislation is aimed at any ethnic group . . . .It is aimed at white people as much as any one [sic].”97 Rankin, supra note 79, at 28. His black colleague Willie Brown, later the mayor of San Francisco, did not find the law so innocent. While he agreed that the bill would apply regardless of race, he was skeptical of Mulford’s motives.98 Id. Before the Panthers’ patrols, Brown contended, Mulford was a gun control opponent.99 Id. Only when “Negroes showed up in Oakland—his district—with arms, [did] he seek restrictive legislation.”100 Id. Brown’s narrative was consistent with Newton’s. “Groups like the Minutemen and the Rangers in Richmond were known to have arsenals,” Newton recounted, “but nobody introduced bills against them.”101 NEWTON, supra note 7, at 146.
For his part, Governor Reagan agreed that the Panthers generally had a right to bear arms, but asserted that “[t]here’s no reason why on the street today a citizen should be carrying loaded weapons.”102 Rankin, supra note 79, at 28. The patrols were a “ridiculous way to solve problems that have to be solved among people of good will.”103 Id. Reagan would later, as President, be closely aligned with the National Rifle Association and express concerns about the “entrapment” of honest gun owners by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”).104 VIZZARD, supra note 25, at 126–27. Indeed, Reagan supported abolishing the ATF even after being shot and nearly killed in an assassination attempt. 105 Ian Shapira, Before Trump’s Wild Shifts on the NRA, Ronald Reagan Took on the Gun Lobby, WASH. POST (Mar. 2, 2018, 10:20 AM), https://www.washingtonpost.com/news/retropolis/wp/2018/03/02/before-trump-defied-the-nra-ronald-reagan-took-on-the-gun-lobby/ [https://perma.cc/8G3X-G6F4].
C. PASSAGE OF THE MULFORD ACT
The Panthers’ armed protest at the State Capitol spurred the California legislature to pass the Mulford Act.106 Armed Gang Invades State Capitol, supra note 94, at 9. Reagan quickly pledged his support for the law, which included an urgency clause to make it immediately effective.107 Id. The bill’s hasty passage appears to have caused some drafting errors. The Mulford Act attempted to ensure that hunting would be unaffected by the new law, declaring that “[n]othing in this section shall prevent any person from carrying a loaded firearm in an area within an incorporated city while engaged in hunting, during such time and in such area as the hunting is not prohibited by the city council.”108 See Mulford Act, ch. 960, § 1,1967 Cal. Stat. 2459, 2460 (codified as CAL. PENAL CODE § 12031) (current version at CAL. PENAL CODE § 26040 (Deering, LEXIS through 2021 Reg. Sess.)). The Act failed, however, to state its impact on hunting in unincorporated areas, confusing California’s Department of Fish and Game as to how to enforce the law.109 See Opinion No. 68-175, 51 OP. CAL. ATTY. GEN. 197, 199–200 (1968), 1968 Cal. AG LEXIS 59. In answering their questions, California Attorney General Thomas Lynch emphasized that the Act should be interpreted narrowly, supporting this conclusion by referencing the Act itself.110 See id. at 199. In his words, the Act’s urgency clause “referred to organized bands of men ‘armed with loaded firearms’ entering the Assembly Chambers,” “a clear reference to the appearance of members of the Black Panther organization.”111 Id. at 198. Despite the statute’s breadth, it was “clear” that the Act was aimed not “against all uses of firearms but only at uses of firearms which are ‘inimical to the peace and safety of the people of California.’”112 Id. at 199. The Panthers’ patrols and protest—organized to protect black communities from police violence—were, apparently, such uses.
II. THE GUN CONTROL ACT OF 1968
It was against the backdrop of three consecutive long, hot summers and a nationwide increase in crime that President Lyndon B. Johnson signed the Gun Control Act of 1968.113 Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified as amended in scattered sections of 18 and 26 U.S.C.). After the Watts riots in 1965, racial tensions boiled over in a total of 43 cities in 1966, including Chicago, Cleveland, and Baltimore.114 William P. Toth, Long Hot Summer Riots, 1965–1967, in 3 ENCYCLOPEDIA AFR. AM. HIST. 863, 864 (Leslie M. Alexander & Walter C. Rucker eds., 2010). In 1967, nearly 150 cities experienced large-scale racial unrest.115 Id. The worst violence occurred in Newark, New Jersey, where 725 people were injured and 23 were killed, and Detroit, Michigan, where 1,189 people were injured and 43 were killed, including a four-year-old child.116 Id. There were reports of sniper fire in both cities, terrifying locals and police alike.117 See Federal Firearms Legislation: Hearings Before the Subcomm. to Investigate Juv. Delinq. of the S. Comm. on the Judiciary, 90th Cong. 312–14, 321–23 (1968) (exhibit 35) [hereinafterHearings on S. 3691 et al.]. A dramatic increase in violent crime occurred in the same period: during his opening remarks to the Gun Control Act’s Senate hearings, Senator Thomas Dodd (D-Conn.) emphasized Federal Bureau of Investigation findings that “between 1964 and 1967 . . . murder by gun has increased 51 percent; aggravated assault by gun increased an incredible 84 per cent; and armed robbery increased 57 percent.”118 Id. at 1 (statement of Sen. Thomas J. Dodd).
President Johnson, for his part, described the Act as a first step towards “disarm[ing] the criminal and the careless and the insane.”119 The President’s Remarks Upon Signing the Bill into Law, 4 WEEKLY COMP. PRES. DOC. 1518 (Oct. 22, 1968). For video of President Johnson delivering the remarks, see NBCUniversal Archives, 1968 – Lyndon B Johnson Signs Gun Control Bill – www.NBCUniversalArchives.com, YOUTUBE (Dec. 19, 2012), https://www.youtube.com/watch?v=tbe-2W_K70Q [https://perma.cc/5J72-H96Y]. The Act was an important weapon for his “war on crime”: “the key to effective crime control,” he explained, “remains . . . effective gun control.”120 The President’s Remarks Upon Signing the Bill Into Law, 4 WEEKLY COMP. PRES. DOC. 1519 (October 22, 1968). Passing with bipartisan support from seventy senators,121 Senate Vote #558 in 1968 (90th Congress), GOVTRACK, https://www.govtrack.us/congress/votes/90-1968/s558 [https://perma.cc/H8W6-WBYJ]. the Act primarily regulated the sale of firearms. It required licenses for firearms dealers,122 Gun Control Act of 1968, Pub. L. No. 90-618, § 922(a)(1), 82 Stat. 1213, 1216–21 (codified at 18 U.S.C. § 922). prohibited interstate mail-order gun sales,123 Id. § 922(a)(2). and, in section 922(h), made it a crime to sell a gun to any felon, drug addict, or “mental defective.”124 Id.§ 922(h). Section 922(h) created the basis for the felon-in-possession charge, a crime eventually codified by Congress in 1986.125 Firearms Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986).For a discussion of the changes in law enforcement policy and Supreme Court jurisprudence that predated the Firearms Owners’ Protection Act, see VIZZARD, supra note 25, at 99. Like the Mulford Act, the Gun Control Act is still in effect.126 See 18 U.S.C. § 922.
Although there is no mention of race in the Gun Control Act, the legislative record reveals that Congress was influenced by the perceived threat of groups like the Black Panther Party. To be sure, race was not Congress’s only motivating factor. The proposed bills included findings about the “high incidence of crime in the United States,”127 Hearings on S. 3691 et al., supra note 117, at 4 (exhibit 2). declared that “crimes committed with guns threaten the peace and domestic tranquility of the citizens of the United States,”128 Id. at 6 (exhibit 3). and aimed “to protect the people of the United States against the lawless and irresponsible use of firearms.”129 Id. at 13 (exhibit 5). Senator Joseph Tydings (D-Md.) evocatively described the status quo’s serious consequences: “Presidents, Senators, cab drivers, storeowners, bus drivers, young men and women, great men and humble citizens—innocent people from all walks of life—have been gunned down under the insane gun policy our Nation has pursued.”130 Id. at 19 (statement of Sen. Joseph Tydings). Yet mixed in with these lofty statements were allusions to the specter of black firearm ownership. Senator Dodd expressed a desire to regulate rifles and shotguns, which he considered “the weapons of the assassin, the hidden snipers, and the big city rioters.”131 Id. at 2 (statement of Sen. Thomas J. Dodd). Witnesses raised concerns about the rise of black extremism and an “arms race in the cities,”132 Id. at 293 (exhibit 35). and California’s Attorney General Lynch even testified about the Mulford Act.133 Id. at 454 (statement of Thomas Lynch, Att’y Gen. Cal.). The Gun Control Act was ultimately a compromise bill—it failed to achieve a federal registration and licensing system, and its statement of purpose was sanitized of any reference to the toll of gun violence. Yet one thing seventy senators could agree on was that felons should not be allowed to purchase firearms, and, as of 1960, black men were five times more likely than white men to be incarcerated.134 Bruce Drake, Incarceration Gap Widens Between Whites and Blacks, PEW RSCH. (Sept. 6, 2013), https://www.pewresearch.org/fact-tank/2013/09/06/incarceration-gap-between-whites-and-blacks-widens/ [https://perma.cc/HD2F-63BL].
A. CONGRESS’S PRIOR GUN CONTROL
The Gun Control Act of 1968 was Congress’s first major firearms legislation since the late 1930s.135 VIZZARD, supra note 25, at 92. Congress’s earlier gun control legislation, part of the increase in federal criminal law accompanying Prohibition, aimed to reduce crime by regulating the interstate shipment of firearms and establishing modest licensing requirements.136 Id. at 88–91 (discussing federal legislation including the National Firearms Act of 1934 and the Federal Firearms Act of 1938). Following a flurry of legislation in the 1920s and 1930s, however, Congress’s interest in gun control waned.137 Id. at 94. Despite the best efforts of Senator Dodd, who in 1961 started his tenure as the Senate Judiciary Committee’s Juvenile Justice Subcommittee Chair with a “full-scale inquiry into the interstate mail order gun problem,”138 Thomas Dodd, Federal Firearms Legislation, 1961–1968, at 3 (unpublished report prepared for the Subcomm. to Investigate Juv. Delinq. of the S. Comm. on the Judiciary, 90th Cong., 2d Sess., 1968). Congress was not moved to legislate for most of the 1960s. Not even Lee Harvey Oswald’s 1963 assassination of President John F. Kennedy with a mail-order rifle spurred new legislation.139 VIZZARD, supra note 25, at 94. Although Dodd introduced a bill to regulate the sale of mail-order firearms—including the type of weapon Oswald had used—just five days after President Kennedy’s assassination, the bill went nowhere, dying in committee in 1964.140 Franklin E. Zimring, Firearms and Federal Law: The Gun Control Act of 1968, 4 J. LEGAL STUD. 133, 146 (1975).
1968 was, for some reason, different. The assassinations of Martin Luther King, Jr. and presidential candidate Robert F. Kennedy—occurring just two months apart—gave Congress new political impetus to pass firearms legislation.141 VIZZARD, supra note 25, at 95–96. That said, scholar Franklin Zimring cautions that the effect of contemporary events was “important but susceptible to overstatement.”142 Zimring, supra note 141, at 147. In his telling, the Department of Treasury had, by 1965, established the Act’s basic structure; although Robert Kennedy’s assassination spurred additional registration and licensing proposals, these added provisions were ultimately rejected by Congress.143 Id. at 148. Zimring may be correct that Kennedy’s death had little impact on the Act’s content, but it appears to have provided vital political momentum for the Act’s passage. Contemporaneous news coverage indicates that the assassination dramatically increased public pressure on legislators to act.144 See, e.g., John W. Finney, Gun Control Bill Blocked in House, N.Y. TIMES, June 12, 1968, at 1, 32 (“Since the assassination of Senator Robert F. Kennedy last week, the Congressmen have been subjected to an outpouring of mail and telegrams in favor of stronger gun controls.”). Furthermore, according to a staff attorney, the Juvenile Justice Subcommittee had been evenly divided on whether to advance Dodd’s bill prior to Robert Kennedy’s death.145 VIZZARD, supra note 25, at 213 n.29. After Kennedy’s assassination, two senators changed their proxy votes, allowing the bill to move forward.146 Id. The final version of the Gun Control Act prohibited interstate mail-order gun sales and strictly regulated intrastate mail-order sales and was supported by seventy senators147 Senate Vote #558 in 1968 (90th Congress), GOVTRACK, https://www.govtrack.us/congress/votes/90-1968/s558 [https://perma.cc/L3XX-ZFD3] —a remarkable reversal given that fifty-three senators had opposed an earlier proposal to ban mail-order gun sales.148 VIZZARD, supra note 25, at 32.
B. THE ACT AND EXTREMIST VIOLENCE
Perhaps unsurprisingly, given the recent spate of high-profile assassinations, the Senate hearings for the Gun Control Act often focused on exceptional rather than everyday violence. In 1968, gun homicide and suicide rates were similar to today’s. There were an average of 5.2 homicides and 6.3 suicides by firearms per 100,000 people in 1968, compared with 6.2 and 7, respectively, in 2020.149 John Gramlich, What the Data Says About Gun Deaths in the U.S., PEW RSCH. (Feb. 3, 2022), https://www.pewresearch.org/fact-tank/2022/02/03/what-the-data-says-about-gun-deaths-in-the-u-s/ [ https://perma.cc/2SX2-3646]. Yet ordinary homicides were not of primary importance to Congress, and suicides were hardly addressed at all. Instead, the Senate heard extensive testimony from Arnold Kotz, an economist at the Stanford Research Institute who had conducted a five-month study of the connection between firearms and civil unrest.150 See Hearings on S. 3691 et al., supra note 117 at 236–37. Kotz’s study, which was funded by the firearms companies Remington and Winchester,151 See id. at 236–395 (statement of Arnold Kotz). was part of the Kerner Commission’s larger exploration of the race riots of 1967.152 See id. at 236–37. Unlike the Kerner Commission Report, which called on Congress to address “white racism” in order to prevent future unrest,153 John Herbers, Panel on Civil Disorders Calls for Drastic Action to Avoid 2-Society Nation, N.Y. TIMES, Mar. 1, 1968, at 1. the Remington-Winchester study focused narrowly on restricting firearms access. Although it found that gun use “was not extensive” during the riots, the study was concerned by a corresponding rise in gun sales and concluded that “white or black extremists . . . should be precluded from possession of firearms by law.”154 Hearings on S. 3691 et al., supra note 117, at 295 (exhibit 35).
The companies’ motivations for funding this research are somewhat unclear. During the Senate hearings, Representative Jonathan Bingham (D-N.Y.) stated that the manufacturers had contacted the Kerner Commission “to see if they could be helpful in getting additional facts about the impact of firearms on riots and violence in general.”155 Id. at 237 (statement of Rep. Jonathan Bingham). The record also reflects the companies’ concerns about the potential for negative public perception of firearms. A joint statement from Remington and Winchester declared that “[t]here was a lot of talk about firearms during the heat of the disorders, but there is remarkably little actual data on just how significant firearms were in the overall disorder situation. We believe an independent and objective appraisal is needed . . . .”156 Id. (statement of Arnold Kotz). It is possible that the companies wanted to ensure that the interests of ordinary gun owners—their customers—were not eclipsed by unfounded rumors about the role of firearms in social unrest. The manufacturers may have also spied an opportunity to divert attention from more ordinary violence, perhaps scuttling a broader reform bill. Regardless of their motivations, it is remarkable that gun manufacturers would fund a study that concludes, among other things, that “[t]he easy availability of firearms encourages a propensity to violence.”157 Id. at 240
Although the Remington-Winchester study discussed both black and white militant groups, it focused on organizations formed in the 1960s, like the Panthers, the Minutemen, and the Christian Youth Corps, rather than older domestic terrorist organizations like the Ku Klux Klan.158 Id. at 335–37. In its “Paramilitary Forces” section, the study stated that “the Black Panthers make their intentions to use firearms in future disorder situations quite explicit.”159 Id. at 304. Perhaps as a result, the report was also skeptical about organizations’ true motives: “Although both black and white groups generally wrap themselves in the cloak of self-defense forces, the fine line between defensive and aggressive action may be erased in the actual dynamics of a riot situation.”160 Id. While recognizing that prohibiting these groups from obtaining weapons would raise “[d]elicate questions of Constitutional law,” the study suggested that “the protection of society and of domestic peace and tranquility” justified abridging individual liberties.161 Id. In his final letter to Dodd, sent in the weeks following the hearings, Kotz reiterated his concerns about “difficulties” faced by law enforcement “if so tremendous a quantity of firearms should pass into the hands of black or white extremists for use in civil disorders, or . . . others who should be excluded from possession by law.”162 Id. at 391 (exhibit 37). He believed it was important to create not only a registration and licensing system, but also to prevent “extremists, criminals, narcotic addicts, the insane, and other anti-social types” from obtaining firearms in the first place.163 Id. at 390.
C. THE FAILED FEDERAL GUN REGISTRY
Although the Act succeeded in regulating gun importation and sales, Kotz’s hope for a national gun registry was never realized. The proposed registry was especially unpopular among conservative opponents of the bill. Franklin Orth, the National Rifle Association’s (“NRA”) Executive Vice President, made clear the organization’s opposition to the federal registry, characterizing it as an illogical and unprecedented overreach.164 Id. at 192–95 (statement of Franklin Orth). A federal registry, Orth contended, would fail to reduce illegal gun ownership, would not make solving crime easier, and would have only a marginal impact on helping return stolen firearms to their rightful owners.165 Id. at 194. While the NRA would be willing to support measures to ensure “that no undesirable should acquire, own, or be permitted to use any firearm,” a registry would be “comparatively useless” and risk creating a “Federal police state.”166 Id. at 199.
Representative John Dingell (R-Mich.), who was also an NRA board member, spoke during subcommittee hearings to object to the proposed law, especially the federal gun registry.167 Id. at 468 (statement of Rep. John Dingell). Despite his high-level NRA membership, Dingell claimed to appear not as an NRA representative but as a congressman.168 Id. In an increasingly contentious exchange with Senator Tydings,169 See, e.g., id. at 478–80. Dingell raised the specter of Nazi Germany, contending that gun registration would be a first step towards government oppression.170 Id. at 478. Tydings, who had grown deeply irritated with Dingell, dismissed the Representative’s claim as “the argument the extremists use.”171 Id. at 480. “When I hear a Congressman of the United States using this type of argument,” Tydings continued, “I find it unacceptable in view of the facts as I know them to be. I will insert at this point in the record appropriate documents concerning the history of Nazism and gun confiscation.”172 Hearings on S. 3691 et. al, supra note 117, at 480 (statement of Rep. John Dingell).
A Library of Congress letter providing Senator Dodd a translation of Nazi legislation prohibiting firearms ownership by German Jews immediately follows Dingell’s testimony in the hearing records.173 Id. at 489–505 (exhibit 62). This document has, ironically, led to confusion over the Gun Control Act’s origins. Scholar Adam Winkler cites the letter as proof that Dodd had “asked the Library of Congress to provide him with a translation of the German gun laws of the 1930s when he was drafting his bills”174 WINKLER, supra note 9, at 252. and speculates that Dodd knew of the Nazi legislation through his work as a Nuremburg prosecutor.175 Id. at 253. The record, however, makes clear that the Library of Congress letter is the supporting documentation requested by Tydings, not Dodd’s drafting aid. Dodd wrote the Library of Congress on July 2, 1968, when the hearings were almost over and Dingell had already testified; the Library of Congress did not respond until July 12, 1968.176 Id. at 489 (exhibit 62). Though it is highly unlikely that Dodd based the Gun Control Act on Nazi law, Tyding’s cursory dismissal of Dingell’s analogy as “unacceptable” obscures an uncomfortable tension: the analogy was surely offensive to Tydings, but did that make it untrue?
Just before Dingell’s testimony, California Attorney General Thomas Lynch had spoken. While he appeared primarily to testify in support of federal registration and licensing,177 Hearings on S. 3691 et al., supra note 117, at 454 (statement of Thomas Lynch, Att’y Gen. Cal.) (“Today, I wish to endorse national firearms registration and licensing procedures.”). measures which Lynch believed would help calm “[a]n already taut society . . . increasingly strained by the deadly proliferation of guns and bullets,”178 Id. at 455. he also discussed California’s gun control regime. The Subcommittee was familiar with Lynch, who had previously appeared before the Subcommittee and had also served on President Johnson’s National Crime Commission.179 Id. at 454 (“I appeared before you 3 years ago to urge certain firearms controls.”). It was likely, then, that he spoke as a trusted witness when he described the Black Panther’s appearance at the California Capitol as an act of aggression that led to the state’s prohibition of open carrying. When asked if the California Assembly had previously passed a “tight or effective gun control law,” Lynch responded that firearms regulation had “met some opposition”180 Id. at 457. but described the Mulford Act as one success. In his recounting, “[w]e had an instance where our legislature was invaded by an extremist group carrying M-1 loaded rifles, which was legal at the time. As a result of that, we have passed a law in California that you cannot come on public property with a loaded gun, you cannot carry them in your car, you cannot go into any public office, or even into the homes of any public officials.”181 Id. But the Mulford Act was introduced before the Panthers protested it.182 SEALE, supra note 1, at 88–98. Seale, on the steps of the Capitol building, decried the law as an attempt to keep “the black people disarmed and powerless at the very same time that racist police agencies throughout the country are intensifying the terror, brutality, murder, and repression of black people.”183 Id. at 162. Dingell was probably not thinking of the Panthers when he argued against federal gun control—but it seems that he and Seale might have agreed on its undesirability.
Although Attorney General Lynch’s appearance was largely amicable, an interesting disagreement arose between Lynch and Senator Roman Hruska (R-Neb.) on the issue of whether felons should be barred from owning firearms, as was already the case in California. Hruska, a Republican, asked Lynch whether someone who had committed a felony as a young man but had subsequently “lived an exemplory [sic] life” should be barred from buying a shotgun to “go hunting for rabbits or ducks or geese.”184 Hearings on S. 3691 et al., supra note 117, at 467. “We do not make any exceptions,” Lynch replied.185 Id. “Kind of harsh, isn’t it,” queried Hruska.186 Id. “Is there anything to the theory of rehabilitation?”187 Id. Lynch’s best response was that he did “not believe that the rehabilitation necessarily means you put a gun in a man’s hand.”188 Id.
D. IMPACT OF THE GUN CONTROL ACT
Although the Gun Control Act was ultimately a compromise bill, it remains the “legal core of national gun policy in the United States”189 VIZZARD, supra note 25, at 93. and is located today at 18 U.S.C. § 922. The Act, for the first time, required a license to import, manufacture, or deal in firearms.190 H.R. 17735, 90th Cong. § 922(a)(1) (1968) (enacted). Interstate mail-order gun sales were prohibited.191 H.R. 17735, 90th Cong. § 922(a)(2). Oddly, the original Act prohibited felons, fugitives from justice, drug users and addicts, and “mental defectives” from receiving firearms but failed to address whether their possession of a gun was a crime.192 See H.R. 17735, 90th Cong. § § 922(h). The Supreme Court eventually intervened in 1977 to affirm federal felon-in-possession prosecutions, concluding (the Act’s silence notwithstanding) “that Congress sought to rule broadly to keep guns out of the hands of those who have demonstrated that ‘they may not be trusted to possess a firearm without becoming a threat to society.’”193 Scarborough v. United States, 431 U.S. 563, 572 (1977) (quoting 114 Cong. Rec. 13868, 14773 (1968)). This ruling embraced the suggestion in United States v. Bass, 404 U.S. 336 (1971), that the inherently interstate quality of firearms might give Congress a sufficient constitutional basis to punish “mere possession.” In Bass, the Court invalidated Denneth Bass’s felon-in-possession conviction on the grounds that the prosecution had not established—nor even alleged—that his firearms “had been possessed ‘in commerce or affecting commerce.’” Id. at 338. The Court noted that it need not “reach the question whether, upon appropriate findings, Congress can constitutionally punish the ‘mere possession’ of firearms.” Id. at 339 n.4. Its subsequent reference to Perez v. United States, 402 U.S. 146 (1971), however, suggested that the Court would respond in the affirmative. Bass, 404 U.S. at 339 n.4. In Perez, the Court upheld Congress’s ability to punish local loan sharking due to its aggregate impact on interstate commerce. 402 U.S. at 147. Congress codified the felon-in-possession charge in 1986 when it passed the—perhaps ironically named—Firearms Owners’ Protection Act.194 Firearms Owners’ Protection Act, S. 49, 99th Cong. (1986) (enacted). Since 1987, tens of thousands of people have been prosecuted for federal weapons violations.195 Federal Weapons Prosecutions Rise for Third Consecutive Year, TRAC Reports (Nov. 29, 2017), https://trac.syr.edu/tracreports/crim/492/. In 2012, close to 6,000 individuals were convicted under § 922’s felon-in-possession provision.196 U.S. SENTENCING COMM’N, QUICK FACTS: FELON IN POSSESSION OF A FIREARM (2013), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Felon_in_Possession_of_a_Firearm.pdf. Of those offenders, 51.2% were black;197 Id. for context, the 2010 Census results indicated that 12.6% of America’s population was black or African American.198 U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2012, 25 tbl.19 (2012), https://www.census.gov/prod/2011pubs/12statab/pop.pdf.
Did Congress’s failure to specifically prohibit gun ownership by extremist groups implicitly reject the Remington-Winchester report’s recommendations? Perhaps—or perhaps not. As the Mulford Act made clear, a statute need not expressly name a group to target its members. Additionally, specifically prohibiting gun ownership by extremists would have posed practical concerns—many people differ on what constitutes “extremism.” In any event, the Gun Control Act’s broader criminalization of gun sales to felons may have rendered the issue moot. Of course, not all members of extremist organizations are under felony conviction or indictment, but groups like the Black Panthers (not to mention their right-wing counterparts) often tangled with the law. To the extent that Congress was concerned about these groups using guns, prohibiting firearms sales to felons may have been considered a sufficiently powerful remedy.
IV. MODERN GUN CONTROL EFFORTS
Despite a broad popular consensus favoring gun control,199 See Guns, GALLUP (2021), https://news.gallup.com/poll/1645/guns.aspx [https://perma.cc/EA35-R6E9]. Congress has not passed gun control legislation since 1994 (it has, however, passed several laws to protect firearms manufacturers).200 See Sarah Gray, Here’s a Timeline of the Major Gun Control Laws in America, TIME (Apr. 30, 2019, 11:13 AM), https://time.com/5169210/us-gun-control-laws-history-timeline/ [https://perma.cc/MU79-QLUN]. While politicians could, historically, overcome their differences through common contempt for “the criminal and the careless and the insane,”201 See Gun Control Act of 1968: The President’s Remarks Upon Signing the Bill Into Law, 4 WEEKLY COMP. PRES. DOC. 1518 (Oct. 22, 1968). the modern debate over gun control has succumbed to partisan gridlock. Gun use and armed protest are now associated with Republicans; Democrats are the party of gun control. Although white supremacist groups remain active and heavily armed, no modern leftist organization has the commitment to firearms exemplified by the original Black Panther Party.202 Armed Assembly: Guns, Demonstrations, and Political Violence in America, EVERYTOWN FOR GUN SAFETY SUPPORT FUND (Aug. 23, 2021), https://everytownresearch.org/report/armed-assembly-guns-demonstrations-and-political-violence-in-america/#motivations-of-armed-demonstrators-in-america [https://perma.cc/5HLB-D935]. Perhaps as a result, mass shootings are now the main evil invoked by gun control advocates. Liberal proposals are often infused with the ugly symbolism of mass shootings, such as bans of assault weapons,203 Healing the Soul of America, DEMOCRATIC NAT’L COMM. (2020), https://democrats.org/where-we-stand/party-platform/healing-the-soul-of-america/ [https://perma.cc/R2GD-C5Q6]. high-capacity magazines,204 Id. and features like stabilizing braces.205 Assault Weapons Ban of 2019, S. 66, 116th Cong. § 2 (2019).
Make no mistake: mass shootings are deeply tragic. But the extensive news coverage devoted to mass shootings, which typically occur in suburban and rural areas,206 See Richard Florida, Gun Violence Is an Everywhere Issue, BLOOMBERG CITYLAB (Dec. 15, 2012, 11:50 AM), https://www.bloomberg.com/news/articles/2012-12-15/gun-violence-is-an-everywhere-issue [https://perma.cc/RWR2-FAMP]. obscures the reality of gun deaths in America. Typical gun deaths—suicides and ordinary homicides—simply do not receive national media attention.207 See, e.g., Study: Media’s Reporting on Gun Violence Does Not Reflect Reality, PENN MED. (Oct. 20, 2020), https://www.pennmedicine.org/news/news-releases/2020/october/study-medias-reporting-on-gun-violence-does-not-reflect-reality [https://perma.cc/PEH9-KS3Q] (examining shootings in Cincinnati; Philadelphia; and Rochester, New York and finding that although “shootings with multiple victims occurred just 22 percent of the time …mass shootings were almost six times as likely to make the news”); Mass Shootings, EDUC. FUND TO STOP GUN VIOLENCE, https://efsgv.org/learn/type-of-gun-violence/mass-shootings/ [https://perma.cc/M2NB-SLPR] (“Despite the fact that mass shootings are relatively rare events, they control the news media surrounding gun violence.”). Approximately 40,000 Americans die from guns each year; a majority of these deaths are suicides.208 Gramlich, supra note 149. Although mass shootings generally occur in exurban areas, the leading cause of gun death in these areas is suicide.209 See Charles C. Branas, Michael L. Nance, Michael R. Elliot, Therese S. Richmond & C. William Schwab, Urban–Rural Shifts in Intentional Firearm Death: Different Causes, Same Results, 94 AM. J. PUB. HEALTH 1750, 1753 (2004). In contrast, urban areas are characterized by higher rates of gun homicides,210 See id. at 1752. although individual cities’ rates vary widely.211 See Richard Florida, The Geography of U.S. Gun Violence, BLOOMBERG CITYLAB (Dec. 14, 2012, 1:23 PM), https://www.bloomberg.com/news/articles/2012-12-14/the-geography-of-u-s-gun-violence [https://perma.cc/P7Q9-FZPR].
What’s more, gun deaths disproportionately impact communities of color and have risen to the highest rate in decades over the course of the pandemic.212 Reis Thebault & Danielle Rindler, Shootings never stopped during the pandemic: 2020 was the deadliest gun violence year in decades, WASH. POST (Mar. 23, 2021, 11:42 PM), https://www.washingtonpost.com/nation/2021/03/23/2020-shootings/?outputType=amp [https://perma.cc/QQK8-QDAC]. Mass shootings that do occur in cities generally receive little national media attention. In 2020, as COVID-19 dominated news cycles, mass shootings in Chicago; Charlotte; and Monroe, Louisiana claimed eighteen lives.213 See id. Yet in March 2021, after the Gold Spa shooting in Atlanta, the New York Times stated that “it had been a year since there had been a large-scale shooting in a public place.”214 Maria Cramer, Mass Shootings in Public Spaces Had Become Less Frequent During the Pandemic., N.Y. TIMES (Mar. 19, 2021), https://www.nytimes.com/2021/03/19/us/mass-shootings.html [https://perma.cc/3WLN-WVGL]. Block parties, as in the Chicago shootings,215 Lawndale Block Party Shooting Leaves 4 Wounded, Including 13-Year-Old Boy, ABC7 CHIC. (Aug. 5, 2019). https://abc7chicago.com/chicago-shooting-crime-lawndale-block-party/3887138/ [https://perma.cc/9ZG2-STCD]. and Juneteenth celebrations, as in Charlotte’s,216 Tonya Pendleton, Juneteenth Celebration Turns Deadly as 2 Killed, 12 Injured in Charlotte, THEGRIO (Jun. 24, 2020), https://www.wcnc.com/article/news/crime/deadly-shooting-north-charlotte-beatties-ford-road/275-781db2ad-0768-402f-8ebc-09f2526172a7 [https://perma.cc/25FY-Z6MK]. surely are “public places”—but these tragic events do not register as “mass shootings” in American news media.
Liberal proposals rarely acknowledge urban gun homicides. Instead, gun control advocates are disappointingly path-dependent, arguing that their tireless crusade against the equipment associated with mass shootings will magically solve ordinary gun homicides. For instance, in 2019, the Center for American Progress called for a ban on assault weapons and high-capacity magazines.217 Assault Weapons and High-Capacity Magazines Must Be Banned, CTR. AM. PROGRESS (Aug. 12, 2019), https://www.americanprogress.org/issues/guns-crime/reports/2019/08/12/473528/assault-weapons-high-capacity-magazines-must-banned/ [https://perma.cc/CEE8-RF66]. Its statement focused almost exclusively on that equipment’s use in mass shootings, with a short discussion urban gun violence appearing at the end of the piece—almost as an afterthought. 218 Id. It asserted that (unsurprisingly) use of assault weapons rose after the federal assault weapons ban expired and that approximately one-quarter to one-third of “crime guns” were equipped with high-capacity magazines in 2017, but it failed to explain how banning this equipment would ameliorate urban homicides.219 Id. Perhaps it is no wonder that conservative lawmakers so often reject policies drafted by liberals—on top of the political incentives against collaboration, these proposals appear to reflect deep ignorance not only about the nature of gun violence but about how firearms work, too.
Liberals may face another barrier to gun reform: federal constitutional law. In 2008, the Supreme Court decided District of Columbia v. Heller,220 554 U.S. 570 (2008). which found “the inherent right of self-defense . . . central to the Second Amendment right.”221 Id. at 628. Heller also, however, recognized that “the right secured by the Second Amendment is not unlimited.”222 Id. at 626. The Court noted that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”223 Id. at 626–27. In another nod to tradition, “dangerous and unusual weapons,” a category apparently so well-established as to render definition unnecessary, can also be restricted.224 Id. at 627. While the Heller majority discusses the racist roots of gun control, the Court ends its chronology in the early twentieth century, giving the impression that post-New Deal firearms regulations are untainted by racism.225 See id. at 611–16 (discussing racially restrictive gun laws from the early 1800s through Reconstruction).
Until recently, it seemed unlikely that constitutional law would invalidate typical gun control. In his scholarship, Adam Winkler has suggested that the liberal furor around Heller was much ado about nothing.226 See, e.g., Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV 1551, 1552, 1575 (2009) (claiming that Heller is dogged by logical inconsistencies and that its most likely outcome is to establish a reasonableness test for gun control laws); Tina Mehr & Adam Winkler, The Standardless Second Amendment, 5 ADVANCE 107, 107 (2011) (arguing that Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010), provide little guidance to lower courts and that most lower courts uphold gun regulations against Second Amendment challenges); Adam Winkler, Is the Second Amendment Becoming Irrelevant, 93 IND. L.J. 253, 253–54 (2018) (contending that divergence between popular and legal understandings of the Second Amendment may vitiate it of use in determining which gun control laws are unlawful). Except for incorporating the Second Amendment against the states in McDonald,227 McDonald v. City of Chicago, 561 U.S. 742 (2010). the Court had not issued any further Second Amendment interpretation, and appellate courts had consistently rejected Second Amendment challenges to gun control.228 See Mehr & Winkler, supra note 244, at 107–10. But things may be poised to change. This term, the Supreme Court heard arguments in New York State Pistol Association v. Bruen,229 818 Fed. Appx. 99 (2d Cir. 2020), No. 20-843 (U.S. argued Nov. 3, 2021). a lawsuit challenging New York’s “proper cause” requirement for concealed-carry handgun licenses.230 See Amy Howe, In Major Second Amendment Case, Court Will Review Limits on Carrying a Concealed Gun in Public, SCOTUSBLOG (Oct. 27, 2021), https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/ [https://perma.cc/TTS4-TSMR]. Under the “proper cause” requirement, people applying for concealed-carry permits in New York must establish a specific need for self-defense, such as repeated physical threats; a general desire to protect oneself is not considered “proper cause.”231 Id. The Court’s conservative majority expressed skepticism that New York could condition Second Amendment rights in this way.232 See Amy Howe, Majority of Court Appears Dubious of New York Gun Control Law, but Justices Mull Narrow Ruling, SCOTUSBLOG (Nov. 3, 2021), https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/ [https://perma.cc/GTZ4-J736]. In the words of Justice Brett Kavanaugh, the state’s choice to give its officials discretion over whether concealed-carry applicants had established proper cause “seems inconsistent with an objective constitutional right.”233 Id. Court watchers expect the Court to invalidate New York’s 108-year-old law under the Second Amendment, but the direction and scope of this upcoming decision remains unclear. The Court could, for example, take an aggressive stance towards gun licensing generally, or narrowly invalidate only New York’s extra requirement that applicants show “proper clause.” 234 Id.
We do know one thing: in Heller, the Court determined that the Second Amendment guarantees not just a collective right to bear arms but an individual right to self-defense.235 District of Columbia v. Heller, 554 U.S. 570, 592–94 (2008). As a normative matter, the right to self-defense seems especially salient for people living in areas with high murder rates. Given evidence of underenforcement and low clearance rates for serious crimes in low-income urban neighborhoods,236 See Rod K. Brunson, Protests Focus on Over-Policing. But Under-Policing is Also Deadly, WASH. POST (June 12, 2020), https://www.washingtonpost.com/outlook/underpolicing-cities-violent-crime/2020/06/12/b5d1fd26-ac0c-11ea-9063-e69bd6520940_story.html [https://perma.cc/5VEA-9TTV]. it seems unfair to contend, as Justice Stephen Breyer did in his Heller dissent, that “there simply is no untouchable constitutional right . . . to keep loaded handguns in the house in crime-ridden urban areas.”237 Heller, 554 U.S. at 722 (Breyer, J., dissenting). It is also important to acknowledge, however, that guns can both save lives and take them. Indeed, statistical evidence shows a significant correlation between per capita gun ownership and per capita gun deaths.238 See, e.g., Joe Myers, Chart of the Day: The Link Between Gun Ownership and Gun Deaths, WORLD ECON. F. (Feb. 15, 2018), https://www.weforum.org/agenda/2018/02/chart-of-day-the-link-between-gun-ownership-and-gun-deaths/ [https://perma.cc/R7RB-MNWV]; Michael Siegel, Craig S. Ross & Charles King, III, The Relationship Between Gun Ownership and Firearm Homicide Rates in the United States, 1981–2010, 103 AM. J. PUB. HEALTH 2098, 2101 (Nov. 2013). This heightened risk is especially strong for gun suicides; states with the highest rates of gun ownership experience nearly four times the per capita firearm suicides of states with the lowest rates of gun ownership.239 Madeline Drexler, Guns & Suicide: The Hidden Toll, HARV. PUB. HEALTH (Feb. 2, 2021), https://www.hsph.harvard.edu/magazine/magazine_article/guns-suicide/ [https://perma.cc/X9TJ-R7QN].
Heller also made clear that the Second Amendment prohibits outright bans of commonly-owned firearms like handguns.240 Heller, 554 U.S. at 635. Yet Democratic politicians like former Texas congressman Beto O’Rourke (D-Tex.) continue to fantasize about unrealistic buyback programs and weapons bans, providing Republicans potent bogeymen with which to frighten their supporters.241 See, e.g., O’Rourke, supra note 10. Until politicians take seriously Heller’s twin holdings—that individuals have a right to possess firearms for self-defense, and that the Second Amendment permits reasonable gun regulations—we will continue to lose lives while lawmakers posture.
On January 6, 2021, hundreds of conservative, mostly white rioters242 Amanpour & Co., Studies Show Capitol Rioters Were Majority White Men, WETA (2021), https://weta.org/watch/shows/amanpour-and-company/studies-show-capitol-rioters-were-majority-white-men-ryn3m2 [https://perma.cc/ML9F-JFDM]. stormed the Capitol, halting the presidential vote tally for close to six hours and killing a Capitol Police officer.243 Shelly Tan, Youjin Shin, & Danielle Rindler, How One of America’s Ugliest Days Unraveled Inside and Outside the Capitol, WASH. POST (Jan. 9, 2021), https://www.washingtonpost.com/nation/interactive/2021/capitol-insurrection-visual-timeline/ [https://perma.cc/MB4Z-NZ6M]. Like the Panthers, they came armed—but they upped the ante. The rioters’ aim, after all, was not just protest: they wanted to “stop the steal.”244 Yelena Dzhanova, The organizer of the ‘Stop the Steal’ rally that led to the Capitol riot said he will comply with a congressional subpoena because he doesn’t have ‘money to spend on legal bills’, YAHOO!NEWS, https://news.yahoo.com/organizer-stop-steal-rally-led-191228523.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAAlGCPPTHJdBeG7PpfHLFPmf8ciMieOIk_nh5p1iCP–wxsHSY9OoEc4GCj2bsW4lkQEfB3gHP5RuYU0G_-UEioTKW4P6bZCpYXZmO3AUS3ebgdNj3hbVEyJGLm5qEEuT8E6b2rEu8etRZxrkNKHXVgZEumu5QGlD5jX7oSD4FlC [https://perma.cc/T8MZ-NJSQ]. They brought chemical sprays, baseball bats, stun guns, and an arsenal of firearms.245 Tom Dreisbach & Tim Mak, Yes, Capitol Rioters Were Armed. Here Are The Weapons Prosecutors Say They Used, NAT. PUB. RADIO (Mar. 19, 2021), https://www.npr.org/2021/03/19/977879589/yes-capitol-rioters-were-armed-here-are-the-weapons-prosecutors-say-they-used [https://perma.cc/C88J-LP3C]. Some were carrying guns when apprehended by law enforcement, while others, though unlawfully armed at the Capitol, evaded arrest entirely.246 Id. One defendant brought a truck filled with what a federal judge called a “small armory,” including at least four loaded guns, a crossbow, multiple machetes, and almost a dozen Molotov cocktails.247 Id. (quoting Order of Detention Pending Trial at 3, United States v. Coffman, No. 21-4 (D.D.C. Jan. 14, 2021). Unlike the Panthers, who broke no laws during their Sacramento protest, the January 6 rioters violated a dizzying array of federal laws.248 See U.S. DEP’T JUST., Capitol Breach Cases, https://www.justice.gov/usao-dc/capitol-breach-cases [https://perma.cc/CZM6-5SHV]. Despite the weapons and violence, however, many conservative politicians contended that January 6 “didn’t seem like an armed insurrection.”249 Dreisbach & Mak, supra note 245. Republican members of the House called the subsequent installation of metal detectors at the Capitol building “an atrocity”;250 Jaclyn Peiser, GOP Lawmakers Dodge Metal Detectors Added After Capitol Riots, Blast Them As an ‘Atrocity’, WASH. POST (Jan. 13, 2021), https://www.washingtonpost.com/nation/2021/01/13/republican-lawmakers-house-metal-detectors/ [https://perma.cc/XC3E-U5MM]. one representative, Andy Harris (R-Md.), even attempted to bring a gun onto the House floor.251 See Meagan Flynn, House Democrats Revive Bill to Ban Colleagues from Carrying Guns on Capitol Grounds, WASH. POST (Jan. 28, 2021), https://www.washingtonpost.com/dc-md-va/2021/01/28/democrats-ban-guns-capitol/ [https://perma.cc/BW7U-M6BS].
But what if the insurrectionists had, like the Panthers in Sacramento, been black? What if, instead of trying to “stop the steal,” they had descended on the Capitol to demand that Congress reckon with systemic inequality and racial injustice? Many commenters have noted the striking distinction between the Capitol Police’s response to the insurrectionists and the aggressive deployment of the National Guard and Metropolitan Police against Black Lives Matter (“BLM”) protestors in the summer of 2020. The January 6 rioters quickly overwhelmed police stationed at the Capitol; once inside, they roamed through the halls with near-impunity, even taking “selfies” with officers.252 See Peter Nickeas, Annie Grayer & Ryan Nobles, 2 Capitol Police Officers Suspended and at Least 10 More Under Investigation for Alleged Roles in Riot, CNN (Jan. 11, 2021), https://www.cnn.com/2021/01/11/politics/capitol-police-officers-suspended-tim-ryan/index.html [https://perma.cc/RMP9-RVD5]. Ashli Babbitt, the sole person killed by police on January 6, was met with fatal force only when, after multiple warnings, she tried to force herself through a window and enter the Chamber of the House of Representatives.253 See Press Release, U.S. Dep’t Just., Department of Justice Closes Investigation into the Death of Ashli Babbitt (Apr. 14, 2021), https://www.justice.gov/usao-dc/pr/department-justice-closes-investigation-death-ashli-babbitt [https://perma.cc/U2RB-4QSV].
In contrast, consider what former President Donald Trump said about BLM protestors: “You have got to have total domination, and then you have to put them in jail.”254 Rachel Chason & Samantha Schmidt, Lafayette Square, Capitol Rallies Met Starkly Different Policing Response, WASH. POST (Jan. 14, 2021), https://www.washingtonpost.com/dc-md-va/interactive/2021/blm-protest-capitol-riot-police-comparison/ [https://perma.cc/MHY2-H8PD]. In fact, on June 1, 2020, the same day Trump made that statement, law enforcement acting on his orders cleared peaceful protestors out of Lafayette Square, releasing tear gas before descending on the demonstrators with batons.255 See id. BLM protests nationwide were met with similarly aggressive antiriot measures, both from the police and from conservative counter-protestors who monitored demonstrations as armed “concerned citizens.”256 See Nate Hegyi, The ‘Concerned Citizen Who Happens To Be Armed’ Is Showing Up At Protests, NAT’L. PUB. RADIO (June 10, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/10/873751544/the-concerned-citizen-who-happens-to-be-armed-is-showing-up-at-protests [https://perma.cc/6XCV-YY7S]. These interventions sometimes had fatal consequences, as in the aftermath of what had been a peaceful Black Lives Matter protest in Kenosha, Wisconsin, where seventeen-year-old Kyle Rittenhouse shot three men, killing two.257 See Joyce Sohyun Lee et al., Kenosha: How Two Men’s Paths Crossed in An Encounter That Has Divided the Nation, WASH. POST (Nov. 19, 2020), https://www.washingtonpost.com/investigations/2020/11/19/kenosha-shooting-kyle-rittenhouse-interview/ [https://perma.cc/ZC5F-NSSS]. State legislatures, for their part, have responded to BLM activists not by redressing the activists’ concerns but by passing tough new laws targeting protests,258 See Adam Gabbatt, Republicans Push ‘Tsunami’ of Harsh Anti-Protest Laws After BLM Rallies, GUARDIAN (Apr. 12, 2021), https://www.theguardian.com/world/2021/apr/12/republicans-push-anti-protest-laws-blm-demonstrations [https://perma.cc/7QGK-G5B8]. in some cases even eliminating liability for people who drive their cars through crowds of demonstrators.259 See Reid J. Epstein & Patricia Mazzei, G.O.P. Bills Target Protesters (and Absolve Motorists Who Hit Them), N.Y. TIMES (Apr. 21, 2021), https://www.nytimes.com/2021/04/21/us/politics/republican-anti-protest-laws.html [https://perma.cc/NS5F-AD3Z].
Where does this leave us? If the deadliest two years of gun violence in decades and even an invasion of Congress by armed rioters are not enough to spur politicians to action, ultimately, Dave Chappelle’s analysis of Congress’s utter failure to pass gun control may be right:
I’ve given this a lot of thought. I don’t see any peaceful way to disarm America’s whites. There’s only one thing that’s going to save this country from itself . . . and that is African Americans . . . . It is incumbent upon us to save our country and you know what we have to do . . . . Every able-bodied African American must register for a legal firearm. That’s the only way they’ll change the law.”260 STICKS & STONES (Pilot Boy Productions 2019).
* Harvard Law School, J.D. 2022 (expected). I am grateful to Professor Nikolas Bowie for his support and insightful comments; to my classmates in Critical Legal History and The Constitution for their curiosity; to Mary Brown, Julian Couture, Robert Mortenson, Sarah Sadlier, and Erin Shyr Holm for their thoughtful and detailed feedback on earlier drafts; and to the JOL Online editorial team, especially Devon Himelman, Betsy Goodwin, and Victoria Yu, for the many hours they spent preparing this piece for publication.