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.


Angela Riley’s “Indians and Guns” Just Published

Angela Riley has published “Indians and Guns” in the Georgetown Law Journal.

Here is the abstract:

The Supreme Court’s recent Second Amendment opinions establish a bulwark of individual gun rights against the state. District of Columbia v. Heller confirmed that the Second Amendment guarantees an individual the right to bear arms for self-defense, and the Court applied this analysis to the states via incorporation theory two years later in McDonald v. City of Chicago. As a result of these cases, it is often assumed that individual gun rights now extend across the United States. But this conclusion fails to take account of a critical exception: Indian tribal nations remain the only governments within the United States that can restrict or fully prohibit the right to keep and bear arms, ignoring the Second Amendment altogether. Indian tribes were never formally brought within the U.S. Constitution; accordingly, the Second Amendment does not bind them. In 1968, Congress extended select, tailored provisions of the Bill of Rights to tribal governments through the Indian Civil Rights Act but included no Second Amendment corollary. As a result, there are over 67 million acres of Indian trust land in the United States, comprising conspicuous islands within which individuals’ gun rights are not constitutionally protected as against tribal governments. With Indian nations thus unconstrained—bearing in mind that gun rights and regulations are oftentimes set by tribal law—pressing questions regarding gun ownership and control arise for those living under tribal authority.

Angela Riley on Indians and Guns

Angela Riley has posted the abstract of  what looks to be a fascinating paper titled “Indians and Guns” on SSRN. Here is the abstract:

In this article, I seek to fill a hole in existing legal scholarship by detailing the untold story of the relationship of Indians to guns in a set of crucial law-making moments: at the drafting of the U.S. Constitution and ratification of the Second Amendment; in 1924 as the Indian Citizenship Act was passed; in 1968 when Congress passed the Indian Bill of Rights; and today, where tribal governments still make their own laws and govern beyond the scope of the U.S. Constitution in Indian country. I examine and explain the unique positioning of Indian nations vis a vis the Second Amendment and lay out the contemporary implications of that undefined relationship. I provide an understanding of gun control and ownership as linked to Indian sovereignty and a complex dynamic of racial hierarchy and social control and show how, though developing in some ways parallel to the status of African-Americans and guns, Indian gun rights – largely because of complexities associated with Indian national sovereignty and peoplehood – diverted in crucial ways, both in the colonial period and today. Mark Tushnet has written that “[t]he Second Amendment is one of the arenas in which we as Americans try to figure out who we are.” I focus here on the corollary to that position, concluding that the history and, indeed, the current reality of Indians and guns is, in many respects, a reflection of a long-standing understanding of Indians and Indian nations as the un-‘we’, as peoples existing consistently outside the American polity.