Chiricahua Apache prisoners including Geronimo (front row, third from right). National Archives

In the wake of the 2022 NYSRPA v Bruen decision, gun control laws at all levels in the United States have been in danger. While the original case only applied to “may issue” concealed carry laws, the case opened the door to lawsuits of all kinds by changing the standard by which infringements are to be measured. Instead of being able to hand-wave our constitutionally-protected rights away with interest balancing (“We really, really, really need this law!”), states would instead have to show that an anti-gun law would have been tolerable at the time the Second Amendment was ratified.

The only way to prove this is to look at the history and find not only precedent, but also find that the precedent was overwhelmingly common. One state passing a law, or a few states having a law isn’t really enough. For an anti-gun law to stand, it would have needed to be common practice during the founding era.

Obviously, anti-gun forces aren’t going to give up. Instead of being like, “Damn. You got me. This law is unconstitutional,” we instead see them trying all kinds of crazy things to come up with historical precedent to justify today’s anti-gun laws. In a recent New Mexico case, a federal judge tried again to use laws against slaves owning firearms and laws against Native Americans owning guns to justify it.

In short, their argument is that these laws decided who could get a weapon. So, the thinking goes, a state can now decide who can own a weapon, even if very different criteria are used to make that choice.

Why This Argument Doesn’t Hold Water

One very important thing changed since the time of those bigoted and evil laws: the Thirteenth and Fourteenth Amendments.

While simply calling a law bigoted and even genocidal doesn’t automatically render it unconstitutional, it’s pretty clear that a law banning black people and Native Americans wouldn’t be constitutional today. Why? Because the Civil War marked the beginning of the end of that nonsense. Constitutional amendments ended slavery and ended treating anyone as a second-class citizen.

This didn’t become the reality on the ground overnight, though. Slavery ended, but a decades-long insurgency ultimately succeeded in ending Reconstruction. This enabled the South to bring milder forms of slavery back via Jim Crow. Native Americans were denied the rights of citizens both during and after the Indian Wars. But, during the 20th Century, governments and courts decided to start following the law and put an end to unconstitutional persecution of these classes of people. Now, things like Jim Crow and treating Native Americans as foreigners with no rights are in the garbage can of history where they belong.

Given that these laws banning these two classes of people from owning weapons wouldn’t be constitutional today, there’s really no sense in relying on them to support infringements on other people. To claim otherwise is to claim that black people and Native Americans could be rightly denied their rights today.

Really, though, the judge who wrote this decision and the other anti-gun lawyers who originally crafted this dumb argument aren’t bigots themselves. They know this is a nonsense argument that won’t prove durable in higher courts. All they’re trying to do is come up with something that looks semi-legitimate to slow the process down in hopes that Democrats can change the composition of the Supreme Court and undo NYSRPA v Bruen, as well as to make a mockery of the Bruen decision in the process.

We shouldn’t let them off the hook, though. Disingenuously using the bigoted past to support their agenda in the present doesn’t make them good guys. If anything, this should be seen as a spit in the face and a mockery of the people who fought so hard to end slavery and the abuse of Native Americans. For this, they should still be ashamed.

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14 COMMENTS

  1. It’s leftists like this who fought to keep slavery and oppression in place back in the day and fight now to keep it alive today.

    The very fact that they can use arguments like this and not vomit from the gut ache demonstrates that they are oppressors and bigots at their very core.

  2. Newsflash: many people in the world are vile selfish scumbags who will take what they want–by deception or even force if they can get away with it. Whether or not such vile selfish scumbags are two-bit street thugs, violent rapists, serial killers, or politicians is neither here nor there.

    All we have here is an example of politicians (New Mexico legislature, Governor, and judge) who are vile selfish scumbags doing what they think they can get away with. They don’t care about timeless and objective standards of human rights nor wrong-versus-right. And they don’t care about feeble attempts of decent people to verbally chastise them or shame them.

    This is why our nation’s Framers codified the Second Amendment. They knew a day and time would come when politicians revealed themselves to be vile selfish scumbags coming for us. And our Framers knew that government would not come to rescue us from that very same government. Plan accordingly.

  3. Basically what NY has been arguing re catholics, natives and slaves so no real surprise. Be fun to see this go to a higher court in any given circuit.

  4. If this judge were non-white and/or non-male, the logic would be even weaker, given early restrictions on race and gender in holding office.

    Hmmm, is the judge in this case exploiting his white privilege? Lol, mebbe he should recuse himself.

  5. Is the Judge looking to restore a particular peculiar institution so he can have his “property rights”?

  6. Once upon a time, these laws were constitutional for no reason other than that Indians and slaves were not considered to be “people” or “persons” in the eyes of the law and were not eligible for citizenship. So the real question should not be whether laws banning “noncitizens” from owning firearms were valid restrictions back in the day, but whether there were laws banning “law abiding citizens” from keeping and bearing arms. There were no such laws, and thus the question is whether there were restrictions on the receipt of weapons after sale applicable to law abiding citizens. Absent such restrictions, the waiting periods violate constitutional rights.

    • Mark N.,

      You bring up an outstanding point which I suspect that the defendant’s council did not realize. Can you PLEASE try to contact them and inform them of that critical detail? Even if it is too late for the 11th Circuit process, it could be critical if the defendant fails and the case goes to the U.S. Supreme Court.

    • “Once upon a time, these laws were constitutional for no reason other than that Indians and slaves were not considered to be “people” or “persons” in the eyes of the law and were not eligible for citizenship.”

      You mean once upon a time they were ‘legal’ because they existed. The old “the law exists because we have it on the books therefore its constitutional therefore its legal therefore we can do this because we have a law on the books” two step.

      They were never constitutional.

  7. If we were to enact laws that prohibit Black people from possessing and purchasing firearms, we could reduce the homicide rate by about half and the gun homicide rate by almost two-thirds.

    Of course the vast majority of Black people will never commit homicide, but that is no reason to not abrogate their rights .

  8. This “decision” will be tossed by the Supreme Court so fast, the Left’s heads will spin like tops.

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