Would Justice Scalia Think Black Guns Matter?



Do Black Guns Matter? This Article considers what Justice Scalia’s opinion in District of Columbia v. Heller tells us about how the law treats Black gun owners’ rights. The opinion appears to tell two stories. One elevates white gun holders through three white paradigms: the colonial revolutionary, the frontiersman, and the hunter. The second excludes Black gun holders through repeated citations to instances where Black Americans have been denied the same gun rights extended to white Americans, and through a list of presumptively lawful gun regulations with racial consequences the opinion does not acknowledge. This unequal construction matters because Heller lays the foundation for the modern Second Amendment, and when we then take stock of Black Americans’ ability to own and use guns—limited through enforcement of firearm prohibitions from police action to court determinations—Black Americans do not have access to the same scope of gun rights that white Americans do. If Heller is here to stay, then we should recognize this inequality as a problem. The national reckoning around race and police violence in recent years has renewed Americans’ focus on guns and made this discussion particularly salient. This Article combines Second Amendment and critical race analysis to highlight a twofold problem: the doctrinal formulation of the Second Amendment and the broader cultural conception of whose gun rights merit protection.

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