Women and People of Color Deserve Better from the Second Amendment

Today, the Supreme Court heard oral arguments in U.S. v. Rahimi—a case which will determine the fate of a federal law which keeps firearms out of the hands of domestic abusers. While some predict that the Court will find a way to uphold the law, no matter how the case is resolved, women and people of color have already lost.

This is because last year, in a landmark gun safety ruling, the Supreme Court froze the terms of the debate somewhere between 1789 and 1868. According to the Court’s tortured ruling in New York State Rifle and Pistol Association v. Bruen, if a certain type of gun regulation didn’t exist in this early period of U.S. history—an era where Black people were considered property in many states and married women had no legal identity independent of their husbands—it is presumptively unconstitutional.

It bears emphasizing that the Founding Fathers’ vision of the Second Amendment explicitly excluded women and people of color. In 1791, the nation ratified the Second Amendment, which linked the right to bear arms to a “well-regulated militia.” The following year, Congress defined the militia to consist of “white male citizen[s].”

Against the racist, sexist backdrop of history, advocates on both sides of Rahimi have advanced problematic arguments. Rahimi’s legal team argues that the statute is unconstitutional because legislatures in the 1800s did not pass laws to disarm domestic abusers—ignoring the fact that until 1850, only one state had passed a law against domestic violence. Meanwhile, in defense of the law, the U.S. government notes past state governments’ willingness to disarm various classes of individuals who were not deemed “law-abiding, responsible citizens,” including “tramps” and “vagrants.” This argument omits the long history of states using facially-neutral, discriminatorily applied vagrancy statutes to target Black Americans after the Civil War, and to the present.

Both arguments—encouraged by the current Court’s extremist ideology—threaten to exacerbate disparities in who is able to exercise their right to bear arms and increase the overall level of gun violence in the present. Today, white men are more than twice as likely as women or people of color to own guns and are three times more likely than women of color to own a gun. Nevertheless, regulations criminalizing gun ownership are overwhelmingly applied to Black and Hispanic people. According to analysis in support of Rahimi, although Black people make up only 18% of New York’s population, they account for 78% of the state’s gun possession cases.

When Black people interact with the police, the mere inference of the presence of a gun can prove fatal, as in the case of Philando Castile, Alton Sterling and so many others. Meanwhile, white armed suspects are frequently captured alive, including the perpetrators of the Emanuel AME Church mass shooting in 2015, the Kenosha, Washington shooting in 2020, and the Atlanta spa mass shooting in 2021. All too frequently, armed white people are treated as “law-abiding citizens,” while (supposedly) armed people of color are presumed dangerous.

At the same time, gun proliferation has hurt women and communities of color. Latinos and Black people respectively are 2 and 12 times are twice as likely as white people to die of gun violence. Nearly 1 million American women have been shot by an intimate partner and Indigenous and Black women are respectively 2 and 3 times as likely as white women to be shot and killed by a partner. Although women and people of color are frequently denied the right to bear arms, they disproportionately bear the burden of America’s gun violence epidemic.

The reality is that the rollback of gun control has hurt everyone. Since 2008, when the Supreme Court first began to overturn gun safety regulations with District of Columbia v. Heller, the annual rate of mass shootings has nearly tripled, from 253 to more than 645, and the annual school shootings has increased tenfold, with more than 300 incidents in 2022. By requiring lawmakers to solve 21^st century problems with 18^th century tools, the Supreme Court has fueled inequality and exacted a heavy toll on human life.

Instead of parsing who among the population is worthy of gun ownership, or adopting a reckless “more is more” approach, we should work to decrease the overall availability of guns in our society. We might focus on removing categories of weapons from public use and strengthening training and licensing requirements. This approach has been widely adopted by our common law cousins, including Britain, Canada, and Australia, and as a result those countries enjoy much lower levels of gun violence than seen in the United States.

An approach based on universal, rather than categorical restrictions would also find surer footing in the constitutional system developed by the Second Founders after the Civil War. Unlike the generation of 1791, the Second Founders were deeply concerned (although imperfectly), with racial and gender equality, and multiracial democracy. The experience of the war would have laid to rest the extreme idea that the Second Amendment confers a right to armed insurrection. It also underlined the importance of equal protection, and that, to the extent lethal weapons are available, the right to access them must be distributed equitably. Most importantly, having seen the near demise of the constitutional system envisioned by the Founding Fathers, they understood that government needs flexibility to adapt and confront modern challenges.

In the short term, a narrow ruling in favor of the government may help to mitigate the damage done by Heller and Bruen. In the long term, only by embracing universal approaches can we secure a future that is both safe and equitable.

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Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.

Gun Violence Prevention and Second Amendment, Race and Criminal Justice, Women's rights