Notre Dame Law Review

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Andrew Willinger*

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations.  The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced.  In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue.  Historical enforcement data appear to be part of a larger inquiry into possible discriminatory taint, an issue the Court has previously addressed in the historical context in cases dealing with criminal procedure, voting rights, and equal protection.  This Article seeks to identify lessons from these other areas of constitutional law to inform the treatment of enforcement evidence in Second Amendment cases after Bruen, where questions of historical enforcement can be especially nuanced.

The Article makes three major contributions to the existing literature.  It is the first in-depth scholarly examination of how Bruen treats enforcement evidence within its historical-tradition test, including by appearing to place the burden of proving nondiscrimination on the government.  Second, the Article identifies Bruen‘s focus on possible discriminatory enforcement as a subspecies of historical discriminatory “taint” or legislative animus arguments and explores how Bruen may depart in important ways from the Court’s past practice.  Finally, the Article uses original archival research into the local enforcement of North Carolina’s 1879 concealed-carry ban as a case study to demonstrate how assessing possible discriminatory taint for facially neutral historical laws presents unique challenges and to examine whether Bruen‘s approach is well suited to appreciate and address such complexity.

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© 2024 Andrew Willinger.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

The Notre Dame Law Review has not independently reviewed the data and analyses described in this Article.

*Lecturing Fellow and Executive Director, Center for Firearms Law, Duke University School of Law.  I would like to thank the participants at the Notre Dame Law Review’s November 2023 Symposium, History, Tradition, and Analogical Reasoning, as well as Jake Charles, for insightful comments and suggestions.  This project grew out of research funded by the Duke Endowment, and I am grateful for its support of the Duke Center for Firearms Law.  Brennan Rivas’s work in Texas inspired this project, and she was a fantastic resource throughout.  I am tremendously indebted to Andrew Adler and Amir Ali for excellent legal research and for taking charge of the archival review that informs Part II of the Article, and to Connor Biswell, Talia Granick, Emmery Perkins, and Abdel Shehata for countless hours reviewing old minute books at the State Archives in Raleigh, North Carolina (and for their enthusiasm and good cheer throughout).  Thank you also to Zeke Tobin, Sydney Colopy, and Jennifer Behrens for invaluable research assistance, and to Jennifer Finlay at the New Hanover County Library for help locating elusive primary source documents.