California courts are known for performing all sorts of legal contortions in order to perpetuate the state’s complex and extensive regulation of guns and how they can be owned and carried. In a recent example a “liberal” federal judge decided that past racism should be legitimized so that today’s minorities can be protected by laws that were rooted in…racism.
The opinion came in the case of Baird v. Bonta, which challenges California’s open carry licensing laws. Last week’s opinion by Chief District Judge Kimberley Mueller denies the plaintiffs’ motion for summary judgement in the case which would have invalidated the law.
The judge says that not allowing racist gun laws to be used as historical support for modern ones might "perpetuate inequality": pic.twitter.com/ltPKn4h89L
— Firearms Policy Coalition (@gunpolicy) December 30, 2023
Did you catch that? The judge ruled that failing to use racist gun laws of the past to support limits on gun rights today (that some black Americans support) might “perpetuate inequality.” If that makes your head spin a bit, I’ll try to explain. Your head will probably still spin, but things will be a little less blurry as they go by.
First off, this is a post-Bruen case. In NYSRPA v Bruen, the Supreme Court ruled that the Second Amendment’s protection of the right to keep and bear arms shouldn’t be subject to “interest balancing,” where governments basically swear that they really, really need to control who can own and carry guns so the courts let them violate the Constitution. Instead, governments must now carry the full burden of proving that their laws regulating keeping and bearing arms are constitutional.
A California District Court had earlier ruled against the plaintiffs in this case using interest balancing. In September, the Ninth Circuit reversed that ruling and told the District Court to reconsider the case under Bruen’s text, history and tradition tests.
There’s only one good way for them to do that under Bruen: find similar gun laws from the time of the Constitution’s ratification and maybe for a few decades after, which would prove that the people who ratified the Second Amendment considered those laws to be in keeping with the Amendment’s original meaning. If you’re a gun control proponent, that’s terrible news because there was almost no gun control at that time.
What gun control there was from the late eighteenth and first half of the nineteenth centuries is mostly invalidated by the Fourteenth Amendment. Nearly all of the anti-gun laws of the period were those that prohibited slaves and people of certain races from possessing firearms, which were obviously based on racism. Subsequent gun laws based on this racism after the Civil War applied to everyone in theor, but were mostly only enforced against racial minorities in practice (Jim Crow).
So what the judge is trying to do here is rehabilitate those laws and use them as limits on Second Amendment rights today. This isn’t only a racist in and of itself, but because we live in a world with a Fourteenth Amendment, those laws would all be unconstitutional today, and thus aren’t really usable as historic examples or analogues.
This is where the judge’s insane argument comes in. Because many people in those racial minorities today favor gun control and voting for the judge’s party, he thinks he gets a pass. It’s okay to be racist if it means advancing the larger policy agenda and supposedly protecting minorities today.
The Firearms Policy Coalition is rightfully rubbing Judge Mueller’s nose in this. Racism and the dangers minorities face today doesn’t mean that we should give any credibility to racist laws of the past. The judge knows that a war was fought with that being an important issue, and that subsequent constitutional amendments ended the practice of slavery, unequal treatment under the law, etc.
She also knows that at the end of Reconstruction, a resurgence of abusive laws and unequal treatment of minorities was constructed and perpetuated over time, culminating in the Civil Rights Act.
What she may not be aware of is that ending segregation and other official racism in the United States didn’t happen strictly through peaceful protest and non-violence. Groups like the Deacons for Defense and Justice and the Black Panthers engaged in armed resistance against violent discrimination, providing the important “or else” behind Martin Luther King, Jr’s more peaceful efforts.
Sadly, this very resistance resulted in many of today’s gun control laws in California (and yes, Ronald Reagan signed those into law, but he wasn’t the infallible deity some think he was).
Judge Mueller’s cheap shot in Baird won’t survive in the higher courts. It’s ultimately just another delay tactic. But it should be called out and criticized for what it is: an attempt to use past racism for current political advantage.
