A Cautionary Note to Readers of Professor Volokh’s “Cautionary Note”

Pratheepan Gulasekaram - Santa Clara University School of Law

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[Editor's note: This comment is in response to a comment by Professor Eugene Volokh on following law review article: Pratheepan Gulasekaram, "The People" of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. REV. 1521 (2010). Professor Volokh's comment is also available on the Legal Workshop.]

Few scholars have impacted the field of Second Amendment scholarship as Professor Eugene Volokh has, and it is hard to overstate the degree to which my own work has benefited from his foundational insights. Indeed, my Article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms,1 benefited from Professor Volokh’s generous comments prior to publication, and his queries about my fundamental assumptions directly informed and sharpened my arguments.2

This reply to Professor Volokh’s response3 to my Article reiterates my thesis, notes the historical evidence at issue, clarifies my use of that evidence, and then explains the implications of that evidence for my Article’s core claim. A less-than-careful reader might believe, based on Professor Volokh’s Cautionary Note, that the statements he finds objectionable are of central relevance to my Article. They are not. Although Professor Volokh and I may disagree about much of consequence—and we aired many of those important differences during our prior email exchanges—the historical evidence at issue here is not one of those things.

I should begin by restating my thesis for the benefit of an unfamiliar reader. While I appreciate Professor Volokh’s agreement with what he takes to be my conclusion,4 I believe it is important to state my thesis accurately. My project evaluates the language in District of Columbia v. Heller, 554 U.S. 570 (2008), which purports to equate “the people” referenced in the Second Amendment with “members of the political community.”5 My conclusion is that if we accept Heller’s holding that the Constitution protects a robust individual right to bear arms,6 then that logic cannot simultaneously limit those protections based on citizenship status. Citizenship limitations make sense only when the Second Amendment is interpreted as a right conditioned on protection of, or from, the state—the reading expressly rejected by the Heller majority.7 I stress this contingency regarding Heller’s individual rights holding because it is not the normative or doctrinal position to which I subscribe. My general scholarly project concerns equality for non-citizens,8 but, importantly, equality need not mean an expansion of rights.9 As I wrote in my Article, I have no quarrel with interpretations of the Second Amendment that would equitably restrict gun rights for all persons, regardless of citizenship status.10

Professor Volokh’s response takes issue with the text and footnotes of several sentences in the first segment of Part II.A (“Guns and Citizens from the Founding to the Civil War”). He cautions that I imply that there were many laws in the early years of the Republic that heavily regulated gun possession by women, poor whites, and non-citizens:

The article appears to assert that poor whites, women, and non-citizens were often legally barred from owning guns in the early years of the United States, or at least were subject to especially heavy gun controls.11

First, nothing in my Article or the passages he selects claims the existence of especially frequent or unduly burdensome regulation of those groups. Leaving Professor Volokh’s characterization aside, however, I should have been more precise with the language I used to describe early American gun possession, rights, and attitudes. I did not intend to make or defend the strong claim Professor Volokh cautions against, which would have been tangential to my argument. To the extent there is any confusion about evidence or argument, let me be clear: I am not aware of, nor did I cite to, laws that expressly prohibited gun ownership by these groups. Indeed, in my Article, I expressly noted that I was not providing such evidence with respect to women.12 I am confident that readers will not overlook the nuances and caveats routinely incorporated in the footnotes of academic articles.13

Moreover, I provide ample support for the proposition that aspects of gun possession and use were colored by a racialized, gendered, citizenship-based, and wealth-based understanding of full membership in the American polity, including prohibitions on militia membership for several groups and restrictions on gun ownership by slaves and free blacks.14 This is the modest claim I intended to defend, and it is neither a novel claim nor an especially surprising one. Further, even this modest claim is ancillary to my thesis. Instead, my Article focuses on using citizenship and racial restrictions in firearms law to unlock larger truths about “the people” protected by the Constitution.15 To claim that core notions of American identity and rights for “the people” were intertwined with common views about race, class, and gender—categories of individuals that did not enjoy the full panoply of privileges and rights as propertied white males during that time period—is not a controversial historical claim either.16

Without diminishing Professor Volokh’s important and welcome elucidation of the historical record,17 I also want to contextualize the importance of his clarification to my thesis. Quite simply, nothing in my argument turns on the strong claim that colonies or states exercised their authority to enact heavy prohibitions on gun ownership or use by women and poor whites. I have no interest in pursuing that auxiliary claim,18 precisely because my argument does not depend on it. The sentences quoted by Professor Volokh appear in the first Section of Part II of my Article, which constructs a consistent narrative of racialized and xenophobic firearm exclusion throughout American history. It is a narrative that is explicitly a part of Dred Scott v. Sandford,19 Cruikshank v. United States,20 Presser v. Illinois,21 several state statutes at the turn of the twentieth century,22 debates surrounding the passage of mid-twentieth-century federal gun laws,23 and even the current federal and state statutory background regarding citizenship-based gun rights.24 This overarching narrative is wholly unaffected by the existence vel non of statutes in the early years of the Republic showing states had latitude to prohibit women and poor whites from gun ownership. Further, as I do not subscribe to “originalism” or “original meaning” or any interpretative methodology that disproportionally or exclusively weights meanings and practices of the early Republic, I do not consider the specific statutory background during that time period to be more important than others.

The sources cited in the sentences at issue purport to demonstrate—I hope successfully—that notions of race, gender, class, and citizenship informed and colored fundamental rights, like gun rights, in that time period.25 Of these categories, de jure and de facto race– and citizenship-based exclusions are relevant to the remainder of the arguments made throughout Part II and the Article as a whole.26 Thus, even incorporating Professor Volokh’s clarifications wholesale, they do not in any way affect my arguments in Part I, which challenges citizenship limitations on textual and doctrinal grounds,27 or Part III, which constructs and rejects theoretical justifications for citizenship-based exclusions in an individual gun-rights regime;28 nor do they diminish the strength my argument in Part II, which constructs a narrative of explicit xenophobic and racialized gun prohibitions throughout American history.29 I do not read Professor Volokh’s critique or research to refute or undermine these foundational arguments.

I sincerely welcome Professor Volokh’s critique as a useful clarification of the historical record. I reiterate, however, that the weight of my thesis does not depend on the narrow historical claim raised by his Cautionary Note. One of the benefits of an active research agenda populated by capable scholars is that misapprehensions and disagreements about historical evidence can be quickly aired. Given our shared interest in producing interesting, useful, and accurate scholarship, I am especially grateful for this productive correspondence with Professor Volokh.

Acknowledgments:

Pratheepan Gulasekaram is an Assistant Professor of Law at Santa Clara University School of Law. He wishes to thank the editors of the N.Y.U. Law Review for their wonderful work on my Article and for the opportunity to continue discussion of the ideas presented in my Article.

  1. Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. REV. 1521 (2010).
  2. Id. at 1532 & n.54 (crediting Professor Volokh for his query regarding whether the use of “citizen” in judicial opinions could be a colloquial allusion to a general class of persons to whom all civil rights inure).
  3. Eugene Volokh, A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms.
  4. See id. (“I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens.”).
  5. Heller, 554 U.S. at 580; see also Gulasekaram, supra note 1, at 1539–42 (discussing similar language in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), and my concerns with McDonald).
  6. Gulasekaram, supra note 1, at 1526 & n.27 (noting that my Article would not address the validity of either side of the conventional individual-versus-collective rights debate).
  7. Id. at 1538–39, 1574–75 (“[N]on-citizens are rightly excluded from Second Amendment protections only when the Amendment’s first clause is read as a limitation on the second, protecting gun possession in a public or civic-minded capacity, the exact reading rejected by Heller.” (footnote omitted) (citing Heller, 554 U.S. at 580–81)).
  8. See generally Pratheepan Gulasekaram, Aliens with Guns: Equal Protection, Federal Power, and the Second Amendment, 92 IOWA L. REV. 891 (2007) [hereinafter Gulasekaram, Aliens with Guns] (surveying federal and state laws restricting firearms based on citizenship, and arguing for modified equal protection methodology to evaluate those laws); Pratheepan Gulasekaram & Rose Cuison Villazor, Sanctuary Policies & Immigration Federalism: A Dialectic Analysis, 55 WAYNE L. REV. 1683 (2009) (analyzing the differences between sanctuary ordinances and restrictitionist laws passed by states and localities); Pratheepan Gulasekaram, Sub-National Immigration Regulation and the Pursuit of Cultural Cohesion, 77 U. CIN. L. REV. 1441 (2009) (arguing that sub-federal immigration regulation is fundamentally about preserving cultural status quo, and that such laws will neither accomplish their purpose nor survive constitutional analysis).
  9. Cf. Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1393 (1988) (arguing that equality and remedying racial bias could be understood in capital punishment cases like McCleskey, 481 U.S. 279 (1987), to require more executions of black criminals, rather than abolition of the death penalty altogether).
  10. Gulasekaram, supra note 1, at 1526 & n.28 (“Because of the politicized and sensational nature of the gun debate in American culture, I feel compelled to state clearly that I firmly support gun regulation at all levels of government, if applied equally. . . . [N]either my research nor my personal convictions are beholden to any association promoting increased gun possession and decreased regulation.” (citations omitted)).
  11. Volokh, supra note 3; see also Gulasekaram, supra note 1, at 1545–49, 1545 n.117, 1547 nn.128–29, 1549 n.143 (describing limitations on the understanding of gun rights based on class, gender, and race).
  12. Gulasekaram, supra note 1, at 1547 & n.129 (“I am not arguing that women were prevented from owning arms; rather, prevailing statutes and legal opinions gendered arms bearing in important ways.”).
  13. Contra Volokh, supra note 3 (“But I’m afraid some readers might miss that footnote.”).
  14. See TENN. CONST. of 1834, art. I, § 26 (“That the free white men of this State have a right to keep and to bear arms for their common defence.” (emphasis added)); Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271, 271 (“Be it enacted . . . [t]hat each and every able-bodied white male citizen of the respective states . . . who is or shall be of the age of eighteen years, and under the age of forty-five years . . . shall severally and respectively be enrolled in the militia . . . .”); Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 102, 102 (1790) (“[A]ny alien, being a free white person, . . . may be admitted to become a citizen [of the United States] . . . .”); THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 138 (J. Hammond Trumbull ed., Hartford, Brown & Parsons 1850) (describing restrictions against selling ammunition to Indian tribe members); 1 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND, 1628–1641 at 392 (Nathaniel B. Shurtleff ed., Boston, William White 1853) (discussing the punishment for those breaking the ban on selling guns to Indian tribe members); AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 48 (1998) (“Alien men and single white women circa 1800 typically could speak, print, worship, . . . and exercise sundry other civil rights, but typically could not vote, hold public office, or serve on juries. These last three were political rights, reserved for First-Class Citizens. So too, the right to bear arms had long been viewed as a political right, a right of First-Class Citizens.”); id. at 161 (“In a society that saw itself under siege after Nat Turner’s rebellion, access to firearms had to be carefully restricted, especially for free blacks.”); SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL 167–71 (2006) [hereinafter CORNELL, A WELL-REGUALTED MILITIA] (discussing state limitations on gun ownership by blacks); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 140–41 (1994) (stating, while discussing colonial law, that “[n]either the Indian nor the slave was a citizen, therefore neither was entitled to the rights of English subjects. . . . Their inability to legally own weapons merely confirmed their status as outsiders and inferiors”); id. at 162 (“The Second Amendment was the product of Anglo-American attitudes, prejudices, and policies toward standing armies, militia, citizenship, and personal rights . . . .”); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 898 (3d ed. 2000) (“[T]he ‘militia’ included all able-bodied, property-owning white males who enjoyed the defining political rights of citizenship . . . . When this race-specific and gender-specific group was called into service, it became the ‘organized militia[]’ . . . .” (emphasis omitted)); see also LEE KENNETT & JAMES LAVERNE ANDERSON, THE GUN IN AMERICA: THE ORIGINS OF A NATIONAL DILEMMA 50 (1975) (describing pre-Republic laws preventing blacks from gun ownership); Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENT 221, 235 (1999) (“[T]he meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period.”); Thomas N. Ingersoll, Free Blacks in a Slave Society: New Orleans, 1718–1812, 48 WM. & MARY Q. 173, 178–79 (1991) (describing the eighteenth-century Louisiana law requiring that blacks carrying potential weapons be stopped); Richard Slotkin, Equalizers: The Cult of the Colt in American Culture, in GUNS, CRIME, AND PUNISHMENT IN AMERICA 54, 56 (Bernard E. Harcourt ed., 2003) (“Colonial militias excluded from service those residents who were not classed as freemen, a category that included poor whites and such disenfranchised groups as slaves, indentured servants, women, and sometimes non-Protestants. The expansion of citizenship rights from 1776 through the Age of Jackson extended the franchise and the right and obligation of militia service to the white male portion of the excluded classes. . . . Thus, the right to bear arms came to be commonly recognized as a hallmark of citizenship, manhood, and racial identity.” (internal quotation marks omitted)); Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473, 476 (1915) (Emery was formerly the Chief Justice of the Maine Supreme Court and wrote that “[w]omen, young boys, the blind, tramps, persons non compos mentis, or dissolute in habits, may be prohibited from carrying weapons”); CORNELL, A WELL-REGULATED MILITIA, supra, at 198–205 (noting the “hegemonic dominance” of Lucilius A. Emery’s interpretation of the Second Amendment).
  15. Gulasekaram, supra note 1, at 1524 (“[The Article] argues that, although the Second Amendment’s text provides no basis for limiting arms bearing to citizens, states and the federal government have restricted noncitizen possession throughout the nation’s history to maintain racial and citizenship-based supremacy.”); id. at 1528 (“Post-Heller, does ‘the people’ refer to anyone within the territorial jurisdiction of the United States, or is it limited to a smaller subset, such as a select group of U.S. citizens? As the phrase ‘the people’ appears multiple places in the Constitution, the question has significant implications.”).
  16. See generally AMAR, supra note 14, at 48 (noting that certain important political liberties inured only to the benefit of certain “First-Class” citizens); BARBARA YOUNG WELKE, LAW AND THE BORDERS OF BELONGING IN THE LONG NINETEENTH CENTURY UNITED STATES (2010) (arguing that American law from the Revolutionary Era through the early twentieth century determined national belonging along racial, gender, and ability lines, and that able-bodied white men privileged themselves through the legal subordination of women, racial minorities, and disabled persons).
  17. While his clarification does not at all affect the viability of my thesis and my particular research agenda, I appreciate the importance of his clarification for an accurate account of the historical record, and for use by other academic researchers who might read and rely upon my work in their areas of study.
  18. See supra note 12 and accompanying text (clarifying that I was not providing statutory evidence).
  19. 60 U.S. (19 How.) 393, 417 (1856) (noting that to consider slaves as “citizens” would allow them to exercise gun rights).
  20. 92 U.S. 542, 561–62, 564 (1875) (acquitting on federalism principles several white defendants who attacked and killed with guns black citizens who were protesting certain political developments; see also CORNELL, A WELL-REGULATED MILITIA, supra note 14, at 190–97 (discussing the factual background of and the circuit court and Supreme Court decisions in Cruikshank).
  21. 116 U.S. 252 (1886) (upholding the conviction of a member of the “Lehr und Wehr Verein,” an armed private society).
  22. See Gulasekaram, supra note 1, at 1557–60 (discussing California’s alien-in-possession law, and noting the background of New York’s Sullivan law, and Pennsylvania’s hunting laws).
  23. See id. at 1562–65 (discussing twentieth-century legislation).
  24. See generally Gulasekaram, Aliens with Guns, supra note 8, at 894–96 & 895 nn.11–14 (citing and discussing state gun statutes with citizenship distinctions); Gulasekaram, supra note 1, at 1567 (discussing federal laws that affect noncitizens and firearms).
  25. See supra note 14 (listing statutes and secondary sources that show how gun and militia laws were racialized and discriminatory in other ways).
  26. Gulasekaram, supra note 1, at 1543 (“Heller’s pronouncement is situated within a historical narrative that has long kept firearms from noncitizens and racial minorities. Surveying critical moments in the evolving relationship between firearms and citizenship reveals this cohesive narrative centered on both maintaining a racially exclusive conception of citizenship and disarming noncitizens.”).
  27. Id. at 1527–42 (discussing “who are ‘the People’?” and analyzing Heller and McDonald in light of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)).
  28. Id. at 1570–77 (constructing a theory of rights properly confined to citizens, and then concluding that gun rights, as individual rights, do not fit within the theory).
  29. Id. at 1542–70 (constructing a narrative of race– and citizenship-based exclusions and concerns with firearm possession from the Founding to the Civil War, Reconstruction to the mid-twentieth century, and from the mid-twentieth century to present day).

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