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.