On the Use of a Footnote — More Bullshit about Indians and Slaves and Guns

It is illegal under federal law for a felon to possess a firearm. Naturally, felons keep possessing firearms and keep getting prosecuted for it. One federal judge, almost comically playing for a seat on SCOTUS, wrote 37 pages arguing that felons should be allowed to possess firearms unless the government proves dispossession is “necessary to protect the public safety.” [page 27] This judge argues that the rule is suggested by the Founders, those white guys who owned property in 1791 and therefore had the right to write and voted for the Second Amendment.

On page 41, we get this nugget of truth about the Founders:

Slaves and Native Americans, on the other hand, were thought to pose more immediate threats to public safety and stability and were disarmed as a matter of course. See MALCOLM, supra, at 140–41; WINKLER, supra, at 115–16 (noting “forcible disarmament” out of “fear that these groups would use guns to revolt” or otherwise threaten the “public safety”); DECONDE, supra, at 21–22 (noting “anxiety that slaves would rebel”). And this practice of keeping guns out of the hands of “distrusted” groups continued after the Revolution. For example, many states even constitutionalized the disarmament of slaves and Native Americans. See Volokh, 11 TEX. REV. L. & POL. at 208–09.

So, yeah, “slaves and Native Americans” were disarmed as a matter of course during the Founding era (and until when, exactly?), unlike felons — then and now — who are for our judge still deserving of the right to own guns [at least the safe felons]. So this paragraph proves that the Framers were fearmongering racists? How does this help felons who are not a threat to public safety?

I initially took from this paragraph that modern day felons, many of whom are white, should not be placed in the same category as brown people who are “immediate threats to public safety and stability” and therefore eligible to be “disarmed as a matter of course. One might begin to think that our judge is an adherent to the type of Founding era racism that dominated the thoughts of the Framers, but there’s a footnote at the end, footnote 7, designed I suppose to separate the judge from that very bigotry that permeates originalism: “It should go without saying that such race-based exclusions would be unconstitutional today.” No citation or anything. Seriously? There’s not a single case that says this? You can’t even cite to the Fifth or Fourteenth Amendment? Is it some sort of dog whistle?

Ok. So why is this in a footnote? No one reads footnotes but law professors. Is it in a footnote because it’s bullshit (reckless disregard for the truth)? Is it that our judge doesn’t care if the statement in the footnote is true, she just doesn’t want to be labeled a racist?

Can’t someone just be honest about the Founders? They were racist, misogynist, greedy, elitist bastards. We should stop caring what they thought. Let’s talk about whether the felon dispossession law is fair as a matter of public policy now, not whether those dead white guys thought it was a good idea. And BTW, if we do that, we leave judges out of that conversation.

Update — A law clerk colleague informs me that law clerks also read footnotes.