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.
INTRODUCTION I. DISCRIMINATORY ENFORCEMENT & DISCRIMINATORY "TAINT" A. Bruen's Use of Historical Enforcement Data to Suggest Discriminatory Taint B. The Court's Approach to Discriminatory Taint Outside of the Second Amendment II. POSTBELLUM SOUTHERN GUN REGULATION AS A CASE STUDY A. Background and Scholarly Debate B. Legislative Complexity C. Enforcement Complexity: North Carolina's 1879 Concealed-Carry Ban 1. Historical Context 2. Unearthing the Enforcement Record a. Methodology b. Results CONCLUSION
INTRODUCTION
The Supreme Court's 2022 decision in New York State Rifle & Pistol Ass'n v. Bruen explains that, in the Second Amendment context, "history guide[s] our consideration of modern regulations[, including those] that were unimaginable at the founding." (1) To the Bruen majority, the focus is not merely on historical legislative enactments but also on traditions which necessarily ebb and flow over time. (2) In Bruen, the court emphasizes that historical enforcement data can be probative to a court's analogical inquiry, especially to the extent these data suggest that certain facially neutral historical firearm regulations were rarely enforced or enforced in a discriminatory manner. (3) Discriminatory enforcement or nonenforcement, the Court says, is "simply one additional reason to discount the[] relevance" of a statute under the historical framework. (4)
The court provides little guidance, however, on how to implement the enforcement inquiry within its larger historical-analogical test. one might presume that enforcement evidence is only relevant when one of the parties presents such evidence to the Court, (5) but how should judges weigh this evidence? Who bears the burden of proving discriminatory enforcement or nonenforcement, and by what standard must it be proved? What exactly is the "payoff," or outcome, if a judge decides that a historical law was inappropriately enforced or rarely used at some relevant historical point? In terms of disparate enforcement, how much "discriminatory taint" (6) is too much? Is evidence of a law's enforcement only relevant immediately after the law was enacted? If not, how far after enactment is this evidence relevant? May the government also offer evidence of consistent, nondiscriminatory enforcement as support for potential historical analogues? Is the government required to do so whenever a law implicates the Second Amendment? And what would such evidence look like? It is possible the Court may clarify some broader questions regarding Brueris historical test that have divided courts over the past year (7) in its next Second Amendment case, United States v. Rahimi. (8) While Rahimi likely will not directly present the question of how to weigh the historical enforcement of facially neutral gun laws, (9) it is possible that the Court will have to confront that issue to the extent any Justices find that the government's potential historical analogues may have been underenforced or disparately enforced around the time of enactment. (10)
The Court has considered similar questions regarding discriminatory enforcement in other areas of constitutional law--when evaluating challenges to jury verdict rules, voting restrictions, and redistricting, and in its equal protection jurisprudence. Often, the question reduces to "whether the legislature that enacted a challenged statute did so with a discriminatory or otherwise constitutionally forbidden intent"; (11) enforcement evidence may be relevant both to whether a facially neutral law was enacted with improper intent, and to whether that improper purpose persisted after enactment. While the Court's equal protection jurisprudence sets an extraordinarily high bar for a challenger seeking to strike down a law based on disparate impact, (12) certain Justices have appeared increasingly willing to credit circumstantial evidence of discriminatory intent and potential discriminatory enforcement in recent years. (13) However, the discriminatory enforcement inquiry may present unique issues when conducted through a historical-analogical lens--in other words, when the enforcement at issue is enforcement of a potential analogue to a modern law, rather than the modern law itself or a lineal ancestor. (14) Thus, courts may need to slightly alter approaches used in other areas of constitutional law. (15)
This Article presents the first comprehensive analysis of historical enforcement inquiries under Bruen, exploring the pressing and unanswered questions the decision surfaces regarding the enforcement of historical gun regulations. Part I summarizes Bruen's approach to historical enforcement, connects Bruen's enforcement references to possible discriminatory legislative taint, and examines how similar issues are handled in other areas of constitutional law. Part II summarizes perhaps the most important area where discriminatory enforcement may arise in future Second Amendment challenges: facially neutral post-Civil War Southern public carry regulations. This Part also unpacks the complexity involved in determining how historical gun laws were actually enforced by summarizing original archival research on the enforcement of North Carolina's 1879 concealed-carry ban in New Hanover County from 1879 through 1908. The Article concludes by comparing Brueris approach to the Court's consideration of discriminatory taint in other areas, arguing that Brueris treatment of discriminatory taint may be ill-suited to the painstaking work of historical enforcement research in important ways and suggesting how doctrine from outside of the Second Amendment might be harnessed to guide courts tasked with examining the enforcement of potential historical analogues under Bruen.
I. DISCRIMINATORY ENFORCEMENT & DISCRIMINATORY "TAINT"
A. Bruen's Use of Historical Enforcement Data to Suggest Discriminatory Taint in Bruen, the Supreme Court rejected an approach to Second Amendment challenges honed across more than 1,000 cases over twelve years in the lower courts. That prior approach first asked whether a legal challenge implicated the text of the Second Amendment, and, if so, proceeded to apply some form of means-end scrutiny asking whether a law was sufficiently tailored to accomplish the government's stated objective. (16) In Bruen, the Supreme Court found the second, scrutiny-based step inconsistent with its prior jurisprudence and set forth the following test: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." (17)
Brueris approach has created a great deal of uncertainty in the lower courts, (18) and it has already led the Supreme Court to grant certiorari in a subsequent Second Amendment case where the Court may clarify certain aspects of the methodology. (19) While legal scholars have only begun to unpack the historical-tradition test and its ramifications, there is general consensus that the test permits, and perhaps requires, careful presentation and consideration of historical nuance and evidence outside of merely the text of enacted statutes. (20) In other words, Bruen is not--as some lower-court judges appear to have approached the decision (21)--a mandate to simply tabulate historical legislation at the state level, trim that list according to the Supreme Court's time and geography limitations, (22) and then compare the remaining list of historical laws to the modern law at issue and judge relevant similarity. That simply cannot be the gravamen of Brueris test. Bruen itself looked far beyond a simple count of historical regulations and considered contextual evidence in numerous places. (23) These include two important instances where the Court suggested that uneven or discriminatory enforcement of certain facially neutral (24) firearm laws in...
