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.

 

Information Request on Tribal Gun Laws

I’m beginning research on tribal gun laws. If you would like to help, please email any information you have on tribal laws regulating guns or protecting gun rights, such as a copy of the law or information on legislative history, to me at tribalgunrights@comcast.net. I’m particularly interested in efforts to curb gun violence through regulation, especially laws enacted in response to mass shootings, and also in whether any tribes have stand-your-ground laws. But all tribal laws pertaining to guns are of interest to me. You can find my earlier work on tribes and the Second Amendment here.

Tenth Circuit Decides Important Second Amendment/Official Immunity Appeal

Here is the opinion in Peterson v. Martinez.

Not an Indian law case, but the material on state official immunity is interesting, in my view, because of how much of the Tenth Circuit’s jurisprudence on the subject derives from Indian law cases.

Ann Tweedy on Indian Self-Defense and the Second Amendment

From the crit:

Ann E. Tweedy

“[H]OSTILE INDIAN TRIBES . . . OUTLAWS, WOLVES . . . BEARS . . . GRIZZLIES AND THINGS LIKE THAT?” HOW THE SECOND AMENDMENT AND SUPREME COURT PRECEDENT TARGET TRIBAL SELF-DEFENSE

Here is the introduction:

This article examines the history of self-defense in America, including the right to bear arms, as related to Indian tribes, in order to shed light on how the construction of history affects tribes today. As shown below, Indians are the original caricatured “savage” enemy that white Americans believed they needed militias and arms to defend themselves from. Since the early days, others have ably documented that the perceived enemies have multiplied to include African-Americans, immigrants, and the lower classes. But this has not meant that Indians have been let off the hook. Instead, they not only remain saddled with whites’ nightmare images of their savagery, but they continue to be punished for the popular perception of them in very concrete ways. Specifically, they are repeatedly and increasingly denied the right to govern on grounds of their untrustworthiness, and it is entirely possible that the lawlessness on Indian reservations has continued as a result of this very racialization.
This article first examines evidence that the historical meaning of self-defense in America (including that of the Second Amendment) was predicated largely on the premise that European, especially English, colonists needed to defend themselves against “savage” Indians. The article then argues that the cultural myth of white America’s need to defend itself against Indians obscures the fact that Indians who engaged in armed conflicts with the United States or the colonies were, in many instances, actually defending themselves and their homelands from white aggression and encroachment on the lands they owned and had been using for centuries.
The article next argues that this self-defense mythology and the oppressive history that it obscures have had important historical consequences for tribes and continue to have concrete consequences for tribes today. These continuing consequences are largely due to the fact that tribes today continue to be viewed as “savage” in the popular imagination and by Supreme Court Justices. The article further argues that such consequences can be understood as a deprivation of the right to self-defense in a figurative sense.
More specifically, as scholars such as Robert Williams have documented, the Supreme Court implicitly relies on this racialized characterization to deny tribes their sovereign powers. Thus, despite the fact that federal and state governments no longer have statutes and rules in place that deny Indians the right to carry guns, because tribes continue to be punished for their past efforts to defend themselves, in a very real sense Indians today lack the right to self-defense. Furthermore, the Supreme Court’s continual abrogation of tribal sovereign rights render tribes and the individuals living on reservations, both Indian and non-Indian, virtually defenseless against everything from predatory lending to violent crime. As a result, the depictions of tribes as savages are depriving tribes and Indians of their right to self-defense in a figurative sense on a macroscopic level. Additionally, America’s cultural understanding of tribes as warlike savages who perpetrated aggressions on innocent white colonists may well be working to subconsciously motivate the federal government to turn a blind eye to the horrific levels of violent crime that plague Indian reservations in the United States.
This article concludes that, as a nation, we must make an honest attempt to reckon with this checkered history and that, ultimately, we need to reevaluate both key Indian law precedent and the right to self-defense embodied in the Second Amendment. At a minimum, Indians’ and tribes’ constitutional rights must be protected prospectively, both in the context of self-defense as traditionally understood and more widely. Moreover, limitations on tribal jurisdiction are, in many cases, grounded on notions of savagery and should be regarded as inherently suspect. Finally, as a society, we must question all of our assumptions about tribes and Indians.

Article on Tribes and Self-Defense

For anyone who’s interested, my article, “‘Hostile Indian Tribes . . . Outlaws, Wolves, . . . Bears . . . Grizzlies and Things Like That?’ How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense,” recently came out in the University of Pennsylvania Journal of Constitutional Law and is now available on Westlaw and Lexis. It examines the legal history of tribes’ and Indians’ right to self-defense (or lack thereof) and right to bear arms and argues that tribes are still being punished for past acts of self-defense.

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.

Ann Tweedy on Indian People and the Right to Self-Defense

Ann Tweedy has posted “How the Tentacles of America’s Racialized History Eviscerate Indian Tribes’ Right to Self-Defense” on SSRN. Here is the abstract:

This article looks at tribal actions of defending their homelands in colonial and early American history and argues that their actions in self-defense were popularly perceived as acts of aggression, which in turn led to their being defined as ignoble savages in caselaw and in society generally. This imputation of savagery continues to harm tribes because, as the scholar Robert Williams has argued, the cases defining them as “savages” and denigrating their sovereign rights are still cited to support abrogations of tribal sovereignty. Thus, although the language of savagery usually is not itself cited, the cases, and the racialized ideas that they embody, which can be traced to tribes’ early acts of self-defense, continue to be used against tribes.

The article first examines historical evidence of tribes engaging in acts of self-defense in order to expose the fallacy of the portrayal of tribes as savages. It then examines the use of the imagery of savagism in Supreme Court and other caselaw and discusses recent cases that rely on the earlier cases containing this imagery and that abrogate tribal rights. The goal is to expose the popular understanding of tribal roles in early American history as erroneous and thereby reveal the baselessness of the language of savagery. This, in turn, brings to light the injustice of continuing to rely on cases that portray tribes as savages. Once this racism comes to be more widely understood and these racialized precedents are rejected, the older cases will no longer be used in contemporary opinions to deprive tribes of their remaining sovereign rights. Thus, tribes will no longer be punished for past acts of self-defense.

I’ve had a chance to read an earlier draft of this paper. Very interesting!

Cert Petition in Roy v. Minnesota — Is There a Treaty Right to Possess Firearms?

Interesting arguments in this one — Roy v Minnesota Cert Petition

Questions presented (check out no. 5 — a treaty right to possess firearms?):

1. DOES THE STATE OF MINNESOTA LACK SUBJECT-MATTER JURISDICTION OVER THE PRESENT CONTROVERSY BECAUSE POSSESSION OF FIREARMS IS “CIVIL-REGULATORY” IN THIS PARTICULAR CASE?

2. DOES THE PETITIONER HAVE A RIGHT TO POSSESS FIREARMS THAT IS PROTECTED AS A RESERVED RIGHT IN THE 1854 AND 1855 TREATIES WITH THE CHIPPEWA?

3. DID THE MINNESOTA APPELLATE COURT IMPROPERTLY DENY REVIEWOF THIS MATTER BECAUSE THE MINNESOTA COURT OF APPEALS FAILED TO ADDRESS OR REVIEW THE RELEVANT AND APPLICABLE 1854 AND 1855 TRIATIES WITH THE CHIPPEWA?

4. DO PETITIONER’S TREATY RIGHTS BELONG TO HIM AS AN INDIVIDUAL TRIBAL AS WELL AS A TRIBAL AND BAND MEMBER OF THE MINNESOTA CHIPPEWA TRIBE, AS WELL AS COLLECTIVELY TO THE BANDS THAT ARE SIGNATORY TO THE TREATIES OF 1854 AND 1855?

5. DOES THE PETITIONER HAVE A TREATY RIGHT TO POSSESS FIREARMS AS A PRE-EXISTING RIGHT IN LIGHT OF THIS COURT’S 2008 DECISION IN UNITED STATES V. HELLER (2008 WL 2520816)?

Tenth Circuit Holds Indian Felons Lose Treaty Right to Carry Firearms

Here is the opinion in United States v. Fox. Fox is Navajo.

An excerpt:

Dionysius Fox, a member of the Navajo Nation, was arrested on the Navajo Reservation on an unrelated charge and found in possession of a shotgun and a rifle. Mr. Fox is a convicted felon, subject to the provisions of 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those previously adjudged guilty of felonies. Although he acknowledges that he is prohibited from possessing firearms beyond Navajo Reservation land, Mr. Fox asserts that he is entitled to possess guns for the limited purpose of hunting on the Navajo Reservation, pursuant to an 1868 Treaty between the United States and the Navajo Nation. We conclude, however, that Mr. Fox has relinquished any treaty right to use firearms for hunting purposes, and therefore affirm the judgment of the district court.

This case is interesting in part because another Tenth Circuit judge (see concurring opinion in U.S. v. McCane) raised a question about whether the Supreme Court’s recent Second Amendment decision D.C. v. Heller actually may make the federal statute in question in Fox unconstitutional.

Here are the briefs:

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