The Supreme Court’s first analysis of the Second Amendment spanned all of one paragraph. But United States v. Cruikshank’s laconic examination of the right to bear arms is more important than its brevity would suggest. Its natural right conception of the Second Amendment undergirds Heller and its progeny, yet key points of its reasoning have been glossed over in the ensuing centuries. Cruikshank tells us that the Second Amendment secures the pre-existing right to bear arms for “lawful purposes.” Because this right is defined not by the Constitution but by natural legal principles, the purposes for which it can be lawfully exercised must also be determined by these principles. Under the classical natural law, there are a number of such lawful purposes—personal self-defense, resisting tyranny, and hunting, among others. By re-examining Cruikshank’s reasoning, this paper argues that placing the right to bear arms in light of its own lawful purposes may provide the solutions to modern issues such as weapon bans, carry restrictions, and the disarmament of felons and other “dangerous” individuals.
I. Introduction
In 1876, the Supreme Court handed down United States v. Cruikshank,1 and with it, the Court’s first opinion analyzing the scope of the Second Amendment.2 Amid the flurry of Second Amendment cases to come before the Court in the twenty-first century,3 Cruikshank’s single-paragraph analysis has faded to the background,4 typically serving merely as an introduction to the story of the Second Amendment.5 But Cruikshank’s analysis laid the groundwork for the Court’s later reasoning in District of Columbia v. Heller6 and its progeny. And as this paper will argue, key points of Cruikshank’s succinct analysis have been glossed over—with potentially massive effects on issues such as weapons bans, carry restrictions, and the disarmament of felons and other dangerous individuals.
Part I of this paper examines the history of societal upheaval leading up to the Court’s decision in Cruikshank. Part II examines the Court’s reasoning, highlighting tension in how the Court’s language is viewed today, and arguing that, under Cruikshank, the Second Amendment protects the pre-existing right to bear arms for purposes considered lawful under pre-Constitutional legal principles. Part III considers the relevant pre-existing legal principles and explains how each is implemented through the Second Amendment. Finally, Part IV reveals how a return to classical legal principles is the key to understanding the scope of the Second Amendment right as described in Cruikshank. This includes a brief interpretation of the right as applied to ownership of different types of arms, how they can be kept and carried, and when it is appropriate to disarm individuals.
II. Cruikshank’s Story
The story behind Cruikshank is one of tragedy. In the years following the Civil War, Louisiana fell into a political crisis.7 During the 1872 gubernatorial campaign, election fraud was rampant and ballot tampering took place across the state.8 Although the Democrat candidate, John McEnery, technically received more votes, both he and the Republican William Pitt Kellogg claimed victory.9 The State Returning Board, which certified all elections within the state, was Democrat-controlled and so certified McEnery as the winner.10 Not one to go down without a fight, Kellogg created a competing election board to certify himself as winner, and both candidates “proceeded as if they each were the lawful executive of the state, filling state and local vacancies with their supporters.”11
Violence ensued. A group of white Southerners formed a heavily armed paramilitary group known as the White League.12 The White League—comprised in part of trained, former Confederate soldiers13—forcibly installed McEnery as governor.14 President Grant viewed this administration as illegitimate and sent federal troops to New Orleans in response.15 The White League initially surrendered control of the city,16 but even with Grant’s support, Kellogg struggled to maintain governance.17 McEnery would go on to organize a coup, and briefly regain control after an angry mob stormed the statehouse.18
This state-wide chaos was also reflected at the local level. In Louisiana’s Grant Parish, Democrats took a fusionist approach in an attempt to gain power19—allying with sympathetic Republicans.20 Although nominally a mixture of Republicans and Democrats, Grant Parish’s Fusionist group was filled with those who had tampered with the election and resisted or even killed Republican officials.21 Governor Kellogg initially tried to cut a deal with the Fusionists that would place a murderer as Sheriff and put his allies throughout local offices.22 But once Kellogg realized the group’s history, he gave them a more limited offer that left Republicans as parish sheriff and judge.23 The Fusionists rejected this offer and instead promised violence.24
The Republican sheriff and judge acted quickly to establish Republican control of the parish by taking residence in the Grant Parish Courthouse and “swearing in Republican officeholders.”25 Echoing the tactics unfolding at the statelevel, the Fusionists argued that they were “the only legitimate government of Grant Parish.”26 With violence looming, Republican leaders went to New Orleans to seek military assistance.27 They left a predominantly black militia—poorly armed and with very little military experience—behind to guard the courthouse in Colfax.28
On Easter Sunday in 1873,29 a mob of over 150 white men, predominantly former Confederate soldiers and members of the Ku Klux Klan and White League, surrounded the courthouse.30 The mob fired a cannon at the courthouse, prompting a fierce firefight.31 The black militia fought for two hours, but with limited munitions, they were eventually forced to surrender.32 Accepting their surrender, the mob outside offered them safe passage out of the courthouse.33 But as the men left the courthouse, the mob chased them down and murdered them.34 When the rest of the militia returned to cover inside the courthouse, the mob set fire to the building, shooting the men as they attempted to escape the blaze.35 The few who survived were taken prisoner and also soon executed.36 When all was said and done, as many as 150 black Republicans were killed.37
The incident was called “[t]he bloodiest single instance of racial carnage in the Reconstruction era.”38 In response, the Department of Justice indicted ninety-eight39 members of the mob under the Enforcement Act of 187040 arguing that they had conspired to deprive the murder victims of various rights including, as relevant here, the right to bear arms.41 A strategic decision was made to charge them with conspiracy in federal court, rather than murder in state court, because Louisiana’s courts were largely controlled by Democrats.42 Three defendants were ultimately convicted, but they appealed the matter to the Supreme Court.43
On appeal, the Court in Cruikshank rejected the DOJ’s arguments. Regarding the Second Amendment claim, the Court first clarified that the right was “that of bearing arms for a lawful purpose.”44 It then recognized the pre-Constitutional nature of the right,45 declaring that it “is not a right granted by the Constitution [nor] is it in any manner dependent upon that instrument for its existence.”46 Rejecting the idea that the Second Amendment right had been incorporated against the states, the Court held that it “has no other effect than to restrict the powers of the national government.”47 Instead, individuals were to look to state governments for protection against violations of their rights by other citizens.48
Because other citizens could not be found to infringe on one’s Second Amendment rights,49 the white mob members could not be convicted of depriving the black militiamen of their right to bear arms. The Supreme Court, therefore, affirmed the circuit court’s arrest of the judgment against the defendants,50 and the perpetrators of the deaths of dozens of black men walked free.
III. Understanding Cruikshank
While Cruikshank’s refusal to incorporate the Second Amendment against the States is no longer good law in light of McDonald v. City of Chicago,51 much of its reasoning remains relevant today. In fact, while Cruikshank’s Second Amendment analysis is largely limited, spanning only one paragraph, most of the ideas therein have been expanded upon through Heller, McDonald, and Bruen.
The Court in Cruikshank wrote that the Second Amendment right “is not a right granted by the Constitution [nor] is it in any manner dependent upon that instrument for its existence.”52 This pre-Constitutional, “natural right” view of the Second Amendment right53 was not new at the time of Cruikshank,54 nor has it diminished in the century-and-a-half since the case was handed down. Following the reasoning of Cruikshank, the Court in Heller recognized that “it has always been widely understood that the Second Amendment . . . codified a pre-existing right.”55 In doing so, the Heller Court cited Blackstone for the proposition that the Second Amendment right was “the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defence [sic].”56 Similarly, the Court looked to James Wilson, who called the “arms-bearing right” the “natural right of defense ‘of one’s person or house’—what he called the law of ‘self preservation.’”57 And the Court gave weight to a 1769 article that declared the right “a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence [sic].”58 While Justice Scalia’s opinion is ostensibly originalist,59 Heller’s reasoning relies so heavily on the right’s natural law origins that Professor Hadley Arkes once wrote that Scalia “appeal[ed] to something resembling—brace yourself—’natural law.’”60 Heller, therefore, brought Cruikshank’s natural right reasoning into the twenty-first century, declaring that the Second Amendment “implicitly recognizes the pre-existence of the right [to keep and bear arms] and declares only that it ‘shall not be infringed.’”61
In New York State Rifle & Pistol Association v. Bruen, the Court again approved of this reading, explaining that “the pre-existing right [was] codified in the Second Amendment, and made applicable to the States through the Fourteenth.”62 Indeed, Bruen’s history and tradition test “looked to history because it has always been widely understood that the Second Amendment codified a pre-existing right.”63 Justice Alito expanded on this in his concurrence, explaining that the “inherent right of self-defense . . . is central to the Second Amendment right.”64 Therefore, the pre-existing natural right reading of the Second Amendment that first entered Supreme Court jurisprudence with Cruikshank is firmly entrenched in our caselaw even now.
The Court in Cruikshank next explained the nature of this pre-existing natural right, calling it the right of “bearing arms for a lawful purpose.”65 The Supreme Court in Heller accepted this characterization, reading the intervening Second Amendment case, United States v. Miller,66 to hold that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”67 And in rejecting the District of Columbia’s handgun ban, the Court noted that it “amount[ed] to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for th[e] lawful purpose [of self-defense].”68 Because the law banned arms typically used for lawful purposes, the Court found it unconstitutional.69 So not only did the lawful purposes conception survive Heller, it was central to its reasoning.
The Court reiterated this in McDonald when it wrote that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes.”70 And in Bruen, the Court expanded on the history of this requirement, looking to the North Carolina Supreme Court’s 1843 decision in State v. Huntly.71 The court in Huntly held that the crime of “riding or going about armed with unusual and dangerous weapons, to the terror of the people”—embodied in the Statute of Northampton—was included within the law of the state.72 But that court then clarified that bearing an arm “[f]or any lawful purpose” “per se constitutes no offence.”73 Carrying in a peaceful manner, such that one does not “alarm[] a peaceful people,” did not constitute an offense.74 The Bruen Court briefly surveyed other early state court decisions before concluding that “those who sought to carry firearms publicly and peaceably in antebellum America were generally free to do so.”75
While much of Cruikshank has been carved away by superseding precedent,76 two primary principles have survived: (1) that the right to keep and bear arms is pre-Constitutional, neither granted by the Constitution nor dependent upon it for the right’s existence; and (2) that the right protected by it is to bear arms for lawful purposes.77 These two claims appear simple enough, but together they beg the question: how should these principles inform our understanding of the Second Amendment?
In today’s world, where legal positivism reigns supreme,78 the meaning of the term “lawful purposes” seems clear enough: whatever purposes the relevant judicial opinion or Constitutional, statutory, or regulatory clause deem lawful.79 Under the positivist conception, these are the only sources of lawfulness.80 Yet, if the right protected by the Second Amendment is pre-Constitutional—and therefore exists outside of the positively established legal system—interpreting that right to protect only conduct defined as lawful by positively enacted law presents both conceptual and practical issues.
From a purely conceptual perspective, there is an obvious tension between acknowledging, on the one hand, that the Second Amendment derives from a natural right and arguing, on the other hand, that that right only extends to certain conduct, the parameters of which are defined by posited law. The first argument claims that the right secured by the Second Amendment is pre-political, existing exclusive of any human action to define it.81 But the second defines the acts protected by that pre-political right according to seemingly political lawmaking. In other words, if the Second Amendment only protects conduct deemed lawful by a legislature, then its scope must necessarily be defined through positive legal action. If both premises are true, then the right exists both sua sponte and does not protect anything without human intervention. Put differently, if the right exists outside of a positive legal system, yet its scope can only be defined by one, then the right has no meaning in and of itself.
And while invoking the concept of natural rights feels like a trump card, if the contours of the right are drawn by lawmakers, we could find that card disappearing as though in a sleight of hand trick.82 Grounding the natural right to bear arms for lawful purposes in pre-Constitutional legal thought seems like it ought to safeguard it from statutory meddling.83 After all, the legislative ability of Congress is defined by the Constitution,84 so rights that pre-exist the Constitution would seem to be beyond the scope of Congressional authority. Yet if the right only protects bearing arms for purposes defined as lawful by lawmakers, then “lawful purposes” for keeping a firearm could be defined to exclude everything except using it as wall art. Such a natural right, submitted to the pure will of the lawmaker, would bear little resemblance to the nominal natural right.
This tension depends on the conception of “lawful” being tied to positively enacted law. But before the positivist revolution, there was a long-standing tradition of viewing the law as encompassing more than simply the positive law.85 Law, in the classical conception, comprises not only promulgated law but also general principles of reason from which the positive law derives.86 These highernd the scope within which positive law can validly be enacted.87 In other words, there is a source of lawfulness that exists outside the positive law.88 So, to correctly understand the Court’s reasoning in Cruikshank, which explained that the Second Amendment protects a pre-Constitutional right to bear arms for lawful purposes,89 we must look to these order legal principles to resolve the apparent tension and determine what constitutes a “lawful purpose” to bear arms.
IV. Pre-Constitutional Lawful Purposes
The world of pre-Constitutional legal principles is rich. Tome after tome has been spent pouring over the details of which aspects of human conduct to approve or condemn as a matter of first principles.90 To determine which of these many principles is most relevant to interpreting the Second Amendment, consider the Prefatory Clause of the Amendment,91 which states: “A well regulated Militia, being necessary to the security of a free State . . . .”92 The text of the Amendment itself, therefore, suggests that a primary principle relates to the “defense of the security of the state.”93
The natural law’s approval of the right of defense is “as old as history.”94 The earlyRoman philosopher Cicero wrote that “the meaning . . . of our swords” is a law “imbibed from nature herself.”95 In the early second millennium, the Catholic Church explicitly recognized this right.96 Relying on the idea that one’s primary intent to save one’s own life can justify a secondary effect of harm to another, Thomas Aquinas reasoned that “this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in ‘being,’ as far as possible.”97 Thomas Hobbes, in 1651, defined the “ius naturale” (or natural law) itself to be “the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life.”98 Founder James Wilson wrote that “[t]he defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.”99 And Pope John Paul II wrote in 1995 that “the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence.”100
It is evident that this right extends to personal self-defense.101 But it does not end there. When a nation finds itself under attack by an outside force, its members have a right to defend themselves and their community.102 The same arises when the nation is injured not by the aggression of another country, but by the tyranny of its own government.103 Ultimately, under the natural law, “[w]hether murder, rape, and theft be committed by gangs of assassins, tyrannous officials and judges or pillaging soldiery was a mere detail; the criminality of the ‘invader and plunderer’ lay in his violation of natural law and rights, regardless of the guise in which he violated them.”104
So one pre-Constitutional “lawful purpose” for bearing arms is in defense.105 But the type of aggression defended against informs exactly what actions are lawful.106 For example, when defending against immediate personal violence, action must be taken with the intent of saving one’s own life.107 “[W]here the violence to the aggressor is merely a by-product, self-defense is a natural good.”108 On the other hand, Hugo Grotius explained that “it was the lack of alternatives in situations involving immediate violence that made it naturally right for one to resort to violent defense.”109 So “if a man, in self-defense, uses more than necessary violence, it will be unlawful.”110 Not only must the intent of the action be to defend innocent life, the action itself must not be “out of proportion to the end.”111 Because “self-defense is just only when violence is unavoidable[,] [t]he defense must be undertaken with whatever minimal force is necessary to repel immediate violence.”112
Defense by the community against a foreign aggressor has similar, yet distinct requirements. First, a just war requires the authority of the sovereign.113 A just cause is also required, such as where one nation has attacked the territory of another or otherwise infringed on its sovereignty.114 Just as with personal self-defense, there must be the right intent—“the advancement of good, or the avoidance of evil.”115 “Where a sovereign wages war for a just cause and with a good intent ‘rather than for cruel or selfish motives,’ they have performed a natural good as if they had defended their own lives.”116
Citizens must act similarly in the case of resisting tyranny. The natural law exists outside positively enacted legal orders, and so binds both governments and their subjects.117 Therefore, when a government violates this law, citizens have a right to resist.118 Yet this right can only be lawfully exercised when the government places the private goods of those in power over the common good of the citizenry.119 In exercising the right, forceful resistance should be employed only insofar as it is necessary to secure the safety of the people.120 And the right of resistance cannot be exercised where resistance itself would harm the common good.121
Under pre-Constitutional legal principles, each of the above forms of defense is a “lawful purpose” for bearing arms.122 But they are not the only ones. Other lawful purposes include “hunting, sport shooting, [and] recreation.”123 Hunting has generally been seen as lawful according to the natural law.124 As Thomas Aquinas rationalized: “Wherefore it is not unlawful if man use plants for the good of animals, and animals for the good of man . . . . Now the most necessary use would seem to consist in the fact that animals use plants, and men use animals, for food, and this cannot be done unless these be deprived of life: wherefore it is lawful both to take life from plants for the use of animals, and from animals for the use of men.”125 Bearing arms for recreational or sporting purposes can also be a lawful purpose as productive recreation has long been seen as a natural good.126 No doubt a detailed analysis of other pre-Constitutional legal principles would reveal other lawful purposes—but that is beyond the scope of this paper. For the present purposes, it is enough to know that a number of pre-Constitutional “lawful purposes” exist for the bearing of arms, and that chief among them is defense “against immediate personal violence, against a foreign aggressor, and against an unjust ruler.”127
V. Cruikshank’s Lessons for Interpreting the Second Amendment
Cruikshank teaches us that the right protected by the Second Amendment pre-exists the Constitution.128 And that right is “bearing arms for a lawful purpose.”129 Therefore, because the right pre-exists any positive legal system, the lawfulness of any purpose must accordingly be judged not by the dictates of lawmakers, but by pre-existing legal principles. If a purpose—such as defense—is lawful under natural legal principles, then it is covered by the Second Amendment. And, as a result, the Amendment must protect the bearing of weapons of a type sufficient to fulfill these lawful purposes.130
The effects of this recognition have the potential to ripple throughout Second Amendment jurisprudence. As a general matter, since Heller, the Supreme Court has repeatedly tied the right to bear arms to its use for lawful purposes.131 In fact, the “common use standard” under which Heller invalidated the District’s handgun ban, protects “those weapons . . . typically possessed by law-abiding citizens for lawful purposes.”132 The McDonald Court characterized Heller’s “central holding” as “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes.”133 In other words, the common use standard, which adopts and incorporates Cruikshank’s recognition of the pre-Constitutional right to bear arms for lawful purposes, must protect the bearing of the kind of arms typically used for those purposes.
Of course, the types of arms commonly used vary among the lawful purposes outlined in Part III.134 The weapons useful in defending against a mugger, for example, could be different than those needed to resist a tyrannical army or that would be helpful in hunting. And how such a weapon is kept or carried might be different as well. For example, defending against threats of immediate personal violence would require the ability to go armed in public, where such attacks are likely to occur.135 But the type of arm protected would be that kind useful for public carrying—likely something small and capable of concealed carry, like a handgun.136
On the other hand, the purpose of defending against an unjust government would require a different set of arms. Specifically, a type of arms “sufficient to resist, collectively of the people, a sovereign’s standing army.”137 These need not be nuclear weapons, submarines, or stealth drones, as effectively resisting an unjust government does not necessarily require winning a traditional combat victory.138 During World War II, prisoners held by Nazi Germany permanently shut down two extermination camps by stealing weapons from their guards.139 Small acts of resistance add up and can successfully save lives by making the despot’s aggression more difficult.140 And while resisting state injustice requires access to sufficient arms, these types of weapons need not be carried in daily public life.141
Hunting and sporting are also lawful purposes.142 The weapons useful here differ again. Shotguns and larger-caliber rifles are typically the firearms of choice for hunting.143 Meanwhile sporting weapons can encompass everything from .22-caliber handguns to long-range .50-caliber rifles.144 Firearms would need to be carried publicly while hunting in the woods—but they need not be carried over one’s shoulder into the neighborhood grocery store.
Besides the types of weapons protected and how and where they can be borne, the lessons this paper takes from Cruikshank could have an impact on who can bear arms as well. The Court in Heller said that the Second Amendment right presumptively “belongs to all Americans.”145 Nonetheless, since colonial times, this country has disarmed various, discrete groups.146 This disarmament was often discriminatory in application,147 but was always justified as “disarm[ing] those who posed a danger.”148 While any discriminatory intent would be impermissible under the natural law,149 the principle behind these laws—of disarming dangerous individuals—generally comports with Cruikshank’s pre-Constitutional conception of the right to bear arms for lawful purposes.
As discussed previously, one such lawful purpose is that of defense against various forms of danger—to oneself or community.150 If one finds themselves held at gunpoint by a robber, then they are justified in taking forceful action to protect themselves.151 And the Second Amendment protects the bearing of arms for this purpose.152 But consider the other side of that situation. Attacking an innocent person is unlawful under the natural law, so bearing arms for that purpose is not protected under Cruikshank’s reading of the right to keep and bear arms.153 As a corollary to protecting the right to bear arms for defense, the Second Amendment could be read to allow disarming those who have been proven to have carried arms for a purpose that is unlawful under pre-Constitutional legal principles.154 In other words, an individual could be disarmed if they “have committed a discreet act of personal violence of the type that the victim would have been justified in resorting to violent self-defense against.”155
These are just some of the ways in which fully recognizing the pre-Constitutional nature of the right to bear arms for “lawful purposes” could affect Second Amendment jurisprudence moving forward. The full breadth of such impact is beyond the scope of this short paper—indeed it could take a treatise. But as new questions arise, one need only look to those legal principles that pre-exist the positive law to find the answer.
Conclusion
Cruikshank tells us that the Second Amendment secures the pre-Constitutional right to bear arms for “lawful purposes.”156 Because the right is defined by natural legal principles, the purposes in which it can be lawfully exercised must, by necessity, also be determined by these principles.157 Under the classical natural law, there are a number of such lawful purposes, with chief and foremost being defense—of both self and community.158
By analyzing the Second Amendment right in light of its lawful purposes, the contours of the right come into focus. Bearing arms for personal self-defense might require allowing the public carrying of arms minimally necessary to repel spontaneous personal violence.159 Meanwhile, resisting tyranny may require keeping more powerful arms that would be inappropriate for daily carrying.160 And while the Second Amendment protects the right to bear arms for lawful purposes, its failure to protect the wielding of arms for unlawful purposes may provide a framework for disarming those who commit violence of a type that would necessitate a response of self-defense.161 There are doubtless other areas of the Second Amendment in which Cruikshank’s appeal to pre-Constitutional lawful purposes can aid in its interpretation. The goal of this paper is not to perform a comprehensive view of the Amendment, but rather to show that Cruikshank is a signpost to guide interpreters to those classical principles that underly the right to keep and bear arms.162
* J.D., Harvard Law School, 2022. B.S., Montana State University, 2018. The author would like to acknowledge the aid received during the drafting of this paper, in the form of advice, background knowledge, comments, and suggestions. Specifically, the author would like to thank Mark Allen, Jo-seph Greenlee, Ashley McWilliam, Catherine McWilliam, Charles McWilliam, and George Mocsary. The author would also like to thank the editors of the University of Illinois Law Review for their indis-pensable work in finalizing this Article. All views and errors are the author’s own, and do not reflect those of any of the aforementioned people or any of the author’s current or past employers.
1. 92 U.S. 542 (1876).
2. Ethan T. Stowell, Top Gun: The Second Amendment, Self-Defense, and Private Property Exclusion, 26 Regent U. L. Rev. 521, 527 (2014) (describing Cruikshank as the “first case to come before the Supreme Court on the grounds of a possible violation of Second Amendment rights”); Jamie G. McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2, 6–7 (2022) (“[F]or over two-hundred years, the Court said little on the subject.”).
3. With Heller, McDonald, and Bruen, the “Court has decided as many major Second Amendment cases since the turn of the century as it had in its entire history prior.” Jamie G. McWilliam, A Classical Legal Interpretation of the Second Amendment, 28 Tex. Rev. L. & Pol. 125, 171 (2024). As of the time of publishing, the Supreme Court has also taken up the case of United States v. Rahimi, 60 U.S. ––, 144 S. Ct. 1889 (2024).
4. Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev. 1521, 1555 (2010) (“The Cruikshank opinion devotes only a paragraph to the Second Amendment before dismissing its applicability . . . .”).
5. See, e.g., Stowell, supra note 2, at 527–28; McWilliam, supra note 3, at 48–49. Cruikshank’s importance to other areas of the law, such as incorporation and the scope of the privileges or immunities protected by the Fourteenth Amendment, have been more widely discussed. See, e.g., Franita Tolson, Parchment Rights, 135 Harv. L. Rev. F. 525, 532 (2022) (“The Slaughter-House Cases, which interpreted the Privileges or Immunities Clause to protect only a few rights incidental to national citizenship, called th[e] assumption [that the Fourteenth Amendment had nationalized the Bill of Rights, constraining both the states and the federal government] into question; Cruikshank rejected it outright.”); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev. 1359, 1456 (1998) (“The Cruikshank decision completed the work begun by The Slaughter-House Cases, ruining the Fourteenth Amendment as a check on most state abuses of the Bill of Rights until the 1920s.”); James Gray Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. C.R.-C.L. L. Rev. 385, 388 (2014) (“It was Cruikshank, not the far more famous Civil Rights Cases, that first limited the Fourteenth Amendment to protect only against specifically identified state violations, and not directly against private action. . . And it was Cruikshank, not the notorious Slaughter-House Cases, that resolved whether the Privileges or Immunities Clause of the Fourteenth Amendment protected the rights enumerated in the Bill of Rights.”).
6. 554 U.S. 570 (2008).
7. Tolson, supra note 5, at 527 (“This political flux was also evident at the state level, with Louisiana becoming a poster child for political dysfunction amidst what had initially been great promise.”).
8. Id. at 529.
9. Id.
10. Id.
11. Id.
12. Danny Lewis, The 1873 Colfax Massacre Set Back the Reconstruction Era, Smithsonian Magazine (April 13, 2023), https://www.smithsonianmag.com/smart-news/1873-colfax-massacre-crippled-reconstruction-180958746/ [https://perma.cc/E6L6-UN32].
13. Gordon Chadwick, Election Controversy and the Rise of the White League, New Orleans Historical, https://neworleanshistorical.org/items/show/145 [https://perma.cc/3ULR-ADZ4].
14. Tolson, supra note 5, at 530; Chadwick, supra note 13.
15. Tolson, supra note 5, at 530.
16. Chadwick, supra note 13.
17. Tolson, supra note 5, at 530.
18. Id.
19. Id.
20. Hans C. Rasmussen, Infighting, Fusion, and Fraud in the Election of 1872, 24 Civil War Book Rev. 5 (2022).
21. Tolson, supra note 5, at 528, 530.
22. Id. at 530.
23. Id.
24. Id.
25. Id.
26. Id. at 530–31.
27. Id. at 531.
28. Id.
29. Id.
30. Lewis, supra note 12.
31. Id.
32. Tolson, supra note 5, at 531.
33. Id.
34. Id.
35. Id.
36. Id.
37. Gulasekaram, supra note 4, at 1555. The exact number is unknown, but a now removed state marker in the area declared that “three white men and 150 Negroes were slain.” Colfax Riot, Hist. Marker Database (June 17, 2021), http://tinyurl.com/42bazpup [https://perma.cc/G6HB-4R5P]; see also Lewis, supra note 12 (“Historians aren’t sure how many people died in the end, but while records show that the massacre resulted in the deaths three white men, it’s estimated that anywhere from 60 to 150 African Americans were killed.”).
38. Lewis, supra note 12.
39. There seems to be some dispute over the exact number of mob members indicted. Compare Tolson, supra note 5 at 531 (stating ninety-eight) and Pope, supra note 5, at 388 (same) with McDonald v. City of Chicago, 561 U.S. 742, 757 (2010) (stating ninety-seven) and Lewis, supra note 12 (same).
40. The Enforcement Act made it a felony for “two or more persons [to] band or conspire together . . to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same.” United States v. Cruikshank, 92 U.S. 542, 544 (1876)
41. Tolson, supra note 5, at 531.
42. Lewis, supra note 12.
43. Cruikshank, 92 U.S. at 561 (Clifford, J., dissenting).
44. Id. at 553 (cleaned up).
45. McWilliam, supra note 3, at 49 (describing Cruikshank as “recogniz[ing] [the right’s] ius naturale roots”); Kopel, supra note 5, at 1456 (“Cruikshank thus asserted that the Second Amendment protected, but did not create, the individual’s right to bear arms; the right instead derives from natural law.”).
46. Cruikshank, 92 U.S. at 553.
47. Id.
48. Id. Implicit in this statement is that the right protected by the Second Amendment is, in fact, a right exercisable by individuals. Kopel, supra note 5, at 1457. Notably, Cruikshank held that only state action—not private—can infringe a right protected by the Fourteenth Amendment nearly a decade before the more famous Civil Rights Cases. Pope, supra note 5, at 388.
49. David B. Kopel, The Supreme Court’s Thirty-Five Other Gun Cases: What the Supreme Court Has Said About the Second Amendment, 18 St. Louis U. Pub. L. Rev. 99, 173 (1999) (describing Cruikshank’s reading of the Second Amendment right as one that was an “individual right; . . . pre-exist[ed] the Constitution; [was] protected by the Constitution, rather than created by the Constitution; [and] protected only against government interference, not against the interference of private conspirators.”).
50. Cruikshank, 92 U.S. at 559.
51. 561 U.S. 742, 791 (2010) (“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.”). Even before McDonald, some scholars viewed Cruikshank as bad law on this regard. See, e.g., Kopel, supra note 5, at 1457 (“The Cruikshank decision completed the work begun by The Slaughter-House Cases, ruining the Fourteenth Amendment as a check on most state abuses of the Bill of Rights until the 1920s. Although no longer good law, the case clearly approaches the Second Amendment from an ‘individual right’ perspective.”).
52. Cruikshank, 92 U.S. at 553.
53. Kopel, supra note 5, at 1456 (noting that Cruikshank’s reading of the Second Amendment is that “the right . . . derives from natural law”).
54. See, e.g., Nunn v. State, 1 Ga. 243, 251 (1846) (upholding a state law because “it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms.”); Bliss v. Commonwealth, 12 Ky. 90, 92 (1822) (“The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms.”).
55. District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (emphasis in original). While some have argued that this pre-existing right was the English positive right rather than a natural one, there is some scholarly consensus that Heller—and the founders—referred to the pre-constitutional natural right. See, e.g., David B. Kopel, The Natural Right of Self-Defense: Heller’s lesson for the World, 59 Syracuse L. Rev. 999, 999–1000 (2008) (“The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution.”); Chester James Antieau, Natural Rights and the Founding Fathers—The Virginians, 17 Wash. & Lee L. Rev. 43, 51 (1960) (“The identification of natural rights to common law rights by early Americans has been greatly exaggerated . . . .”); Robert S. Barker, Natural Law and the United States Constitution, 66 Rev. Metaphysics 105, 124 (2012) (concluding that even if the freedoms had their immediate source in the English common law tradition, their “ultimate origin [is] in the nature of man, that is, in the Natural Law”). The sources on which Heller relied confirm this reading. Blackstone explained that the Amendment protected “the natural right.” William Blackstone, 1 Commentaries 139–40, 144 (emphasis added). And the Georgia Supreme Court, in Nunn v. State, construed the Amendment as recognizing the “natural right of self-defence.” 1 Ga. 243, 251 (1846). The Court in Heller relied on these, in part, to conclude that the Second Amendment protected an “inherent right”—that is, one derived from the nature of humanity rather than from English or any other positive law. Heller, 554 U.S. at 680.
56. Id. at 594 (internal citations and quotations omitted).
57. Id. at 585 (citing 2 Collected Works of James Wilson 1142 (K. Hall & M. Hall eds. 2007)).
58. Id. at 594 (citing Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936) (reprinted 1970)).
59. Id. at 576 (“In interpreting this text, we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’” (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)).
60. Hadley Arkes, Scalia and the Lure of the Natural Law, First Things (July 1, 2008), https://www.firstthings.com/web-exclusives/2008/07/scalia-and-the-lure-of-the-nat [https://perma.cc/6YK6-3THQ].
61. Heller, 554 U.S. at 592.
62. 597 U.S. 1, 25 (2022).
63. Id. at 11 (cleaned up).
64. Id. at 71 (Alito, J., concurring) (internal citations and quotations omitted).
65. United States v. Cruikshank, 92 U.S. 542, 553 (1875).
66. 307 U.S. 174 (1939).
67. District of Columbia v. Heller, 554 U.S. 570, 625 (2008) (emphasis added).
68. Id. at 628 (emphasis added).
69. Id. at 630.
70. McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (emphasis added).
71. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 43 (citing 25 N.C. 418 (1843)).
72. 25 N.C. at 421–22.
73. Id. at 422–23.
74. Id. at 423.
75. Bruen, 597 U.S. at 44.
76. Kopel, supra note 5 at 1457 (characterizing Cruikshank as “no longer good law”).
77. United States v. Cruikshank, 92 U.S. 542, 553 (1875).
78. McWilliam, supra note 3, at 12.
79. See Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U. L. Rev. 1187, 1248 (2015) (providing the violation of drug distributing laws as an example of an unlawful purpose).
80. Under many conceptions of positivism, “law depends only on its social source, not its content or morality.” Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673, 679 (1998); see also Anthony Sebok, Misunderstanding Positivism, 93 Mich. L. Rev. 2054, 2064–65 (1995) (describing classical positivism’s view that “[l]aw, simply and strictly so called [is] law set by political superiors to political inferiors”—in other words, a command of the legal system’s “sovereign”). In the modern day United States, the sources identified are the general sources of positive lawmaking.
81. District of Columbia v. Heller, 554 U.S. 570, 592 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” (emphasis in original)); Cruikshank, 92 U.S. at 553 (“[The Second Amendment right] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”).
82. For a real-life example, consider the way that the lower courts applied tiered scrutiny in the years following Heller. Judges “appl[ied] it in a way that . . . lead[] to all but the most drastic restrictions on guns being upheld.” Allen Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 707 (2012); see also Duncan v. Bonta, 19 F.4th 1087, 1162 (9th Cir. 2021) (en banc) (VanDyke, J., dissenting) (“[F]or Second Amendment cases, our circuit has ‘watered down the reasonable fit prong of intermediate scrutiny to little more than rational basis review.” (quoting Mai v. United States, 974 F.3d 1082, 1101–04 (9th Cir. 2020) (VanDyke, J., dissenting from denial of rehearing en banc))), vacated and remanded by 142 S. Ct. 2895 (2022).
83. See Lochner v. New York, 198 U.S. 45, 58, 64 (invalidating a statute regulating the working hours of bakers because it “interfere[d] with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.”).
84. U.S. Const. art. I.
85. Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103, 124 (2022) (“[T]he classical tradition, in appropriate cases, looks to general principles of law and the [natural law] precisely in order to understand the meaning of [the positive law] . . . .”); Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law 8 (2010) (discussing “the understanding of that Founding generation” that the judgment of law was to be traced “back to first principles and anchoring truths”).
86. McWilliam, supra note 3, at 7 (describing lawmaking as the “process of giving substantive content to a general principle from a higher source of law”); Hadley Arkes, A Natural Law Manifesto or an Appeal from the Old Jurisprudence to the New, 87 Notre Dame L. Rev. 1245, 1247 (2012) (“That understanding of the regime could not be explained without the recognition of moral truths, of standards of moral judgment that had to be in place before we could even conceive a Constitution.”); David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of Self-Defense, 22 BYU J. Pub. L. 43, 97–98 (2007) (“The first principles, like the foundation of a skyscraper, were still there of course, for the whole edifice would collapse without them.”); Hadley Arkes, Mere Natural Law 18 (2023) (“They would reach back to those principles that were before the text for the sake of explaining how the Constitution bore sensibly on the cases before them.”).
87. See Casey & Vermeule, supra note, at 118 (noting that the discretionary choice made in enacting positive law must be within the “reasonable bounds” of the natural law); Diarmuid F. O’Scannlain, The Natural Law in the American Tradition, 79 Fordham L. Rev. 1513, 1516 (2011) (describing how early American jurists regularly traced their judgments back to first principles); McWilliam, supra note 3, at 9 (“The ius naturale thus provides the basic bounds of reason within which such determinations for the common good can be made.”).
88. McWilliam, supra note 3, at 8 (“[T]he ius naturale provides general principles of law, which are binding in their own right at a high level.”).
89. United States v. Cruikshank, 92 U.S. 542, 553 (1875).
90. See infra Part IV.
91. McWilliam, supra note 3, at 21 (“The text of the law itself is the first place to look in determining the scope and purpose of the [positive] law.” (citing Adrian Vermeule, Common Good Constitutionalism 74–75 (2022))).
92. U.S. Const. amend. II.
93. McWilliam, supra note 3, at 28.
94. John J. Merriam, Natural Law and Self-Defense, 206 Mil. L. Rev. 43, 46 (2010).
95. Marcus Tullius Cicero, Speech in Defence of Titus Annius Milo (c. 52 B.C.), in 3 Orations of Marcus Tullius Cicero 390, 394 (C.D. Yonge trans., 1913).
96. See David B. Kopel, The Catholic Second Amendment, 29 Hamline L. Rev. 520, 534–35 (2006) (discussing how Gratian of Bologna, who “compile[d] what became the unified foundational text of canon law,” argued that the “right of self-defense” is “inherent in the natural order of the world”). This recognition was in part motivated by a need to wrest Church control from the corrupt aristocracy. Id. at 524.
97. Thomas Aquinas, Summa Theologiae, II–II, Q64, article VII, https://www.newadvent.org/summa/3064.htm [https://perma.cc/GP6H-6VUJ].
98. Thomas Hobbes, Leviathan 64 (1651).
99. James Wilson, Of the Natural Rights of Individuals, in Collected Works of James Wilson, vol. 2 235 (Liberty Fund ed. 2007).
101. McWilliam, supra note 3, at 29.
102. Kopel et al., supra note, at 43, 72 (“The legitimacy of state warfare is . . . derivative of the personal right of self-defense . . . .”).; John Locke, Two Treatises of Government 207 (McMaster University Archive) (writing that in “a state of war . . . every one has a right to defend himself, and to resist the aggressor”).
103. See Kopel, supra note 5, at 535 (“The Founders viewed resistance to tyranny simply as an application of the right of self-defense, which was a natural right regardless of whether a person was attacked by a lone criminal, or by a large criminal gang, in the form of a tyrannical government.”); Locke, supra note 102, at 208 (“[I]t is lawful for the people, in some cases, to resist their king . . . Self-defence is part of the law of Nature; nor can it be denied the community, even against the king himself . . .”).
104. Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87, 93 (1992).
105. See generally id.
106. McWilliam, supra note 3, at 39 (“[P]ersonal defense may require the ability to bear in public an arm sufficient to repel a personal attack, but not more. . . . On the other hand, defense against foreign aggressors and unjust rulers may require allowing possession of arms sufficient to resist, collectively of the people, a sovereign’s standing army.”).
107. See Aquinas, supra note 97.
108. McWilliam, supra note 3, at 30.
109. Id. at 31; see also Hugo Grotius, The Rights of War and Peace 76 (A.C. Campbell ed. & trans., 1901) (1625).
110. Aquinas, supra note 97.
111. Id.; see also Grotius, supra note 109, at 76.
112. McWilliam, supra note 3, at 31.
113. Aquinas, supra note 97.
114. See id. (“A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.”).
115. See id. (“Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil.”).
116. McWilliam, supra note 3, at 32.
117. Id. at 33; Locke, supra note 102, at 195 (“For the king’s authority being given him only by the law, he cannot empower any one to act against the law . . .”).
118. John of Salisbury, Policraticus 207 (Cary J. Nederman ed. & trans., Cambridge Univ. Press 1990) (1159) (“[I]t is just for public tyrants to be killed and the people to be liberated for obedience to God.”).
119. See Kopel, supra note 95, at 557 (“A tyrannical government is not just, because it is directed, not to the common good, but to the private good of the ruler . . . .”).
120. See Locke, supra note 102, at 208 (“Wherefore, if the king shall . . . cruelly tyrannise over the . . . the people have a right to resist and defend themselves from injury . . . They may repair the damages received, but must not, for any provocation, exceed the bounds of due reverence and respect. They may repulse the present attempt, but must not revenge past violences.” (quoting Barclay, Contra Monarchomachos, iii. 8)).
121. Kopel, supra note 95, at 557 (“Consequently there is no sedition in disturbing a [tyrannical government], unless indeed the tyrant’s rule be disturbed so inordinately, that his subjects suffer greater harm from the consequent disturbance than from the tyrant’s government.”); see also Locke, supra note 102, at 194 (describing how resisting the government “will unhinge and overturn all polities, and instead of government and order, leave nothing but anarchy and confusion”).
122. 3 William Blackstone, Commentaries 4 (“[Self-defense] is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.”).
123. See C.D. Michel & Konstadinos Moros, Restrictions “Our Ancestors would Never Have Accepted”: The Historical Case Against Assault Weapon Bans, 24 Wyo. L. Rev. 89, 93 (2024); see also Joseph Blocher, Cities, Preemption, and the Statutory Second Amendment, 89 U. Chi. L. Rev. 557, 573 (2022) (identifying recreation, hunting, and self-defense as “traditionally lawful purposes”).
124. Locke, supra note 102, at 117 (detailing how the labor of finding and pursuing a beast during hunting transforms it from “common” into private property); s(stating that there is “no sin” in killing an animal for food); Augustine, City of God 30 (Marcus Dods trans. 2015) (“[W]hen we say, Thou shalt not kill, we do not understand this of . . . the irrational animals that fly, swim, walk, or creep, since they are dissociated from us by their want of reason, and are therefore by the just appointment of the Creator subjected to us to kill or keep alive for our own . . .”).
125. Aquinas, supra note 97.
126. John Finnis, Natural Law and Natural Rights 87 (2d ed. 2011) (describing recreation, or “play”—“performances which have no point beyond the performance itself, enjoyed for its own sake”—as a natural human good).
127. McWilliam, supra note 3, at 57.
128. United States v. Cruikshank, 92 U.S. 542, 553 (1876) (“[The Second Amendment right] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”).
129. Id.; District of Columbia v. Heller, 554 U.S. 570, 620 (2008); McDonald v. City of Chicago, 561 U.S. 742, 757 (2010).
130. McWilliam, supra note 3, at 57.
131. Heller, 554 U.S. at 624–25 (“The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense. ‘In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.’”)
132. Id. at 625 (emphasis added). This standard survives Bruen as a consideration of the historical tradition of regulating “dangerous and unusual” arms in Bruen’s second step. Jamie G. McWilliam, The Relevance of “In Common Use” After Bruen, 2023 Harv. J.L. & Pub. Pol’y 37, 9 (2023).
133. McDonald, 561 U.S. at 780 (emphasis added).
134. See supra Part III.
135. As Judge VanDyke has noted, one’s “need for armed protection in self-defense can arise at a moments’ notice and without warning,” for “[p]eople don’t plan . . . to be assaulted while walking through city streets” and thus “[i]t is in these unexpected and sudden moments of attack that the Second Amendments’ [sic] rights to keep and bear arms becomes most acute.” McDougall v. County of Ventura, 23 F.4th 1095, 1112 (9th Cir. 2022), vacated, 26 F.4th 1016 (9th Cir. 2022).
136. District of Columbia v. Heller, 554 U.S. 570, 629 (2008) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon.”); McWilliam, supra note 3, at 57 (“For example, a state may be able to ban carrying a fully automatic rifle, but not a pistol, because the latter is proportionate to the immediate threats that typically arise during personal altercations, while the former is not.”).
137. McWilliam, supra note 3, at 39.
138. See David B. Kopel, Guns Kill People, and Tyrants with Gun Monopolies Kill the Most, 25 Gonzaga J. Int’l L. 29, 53 (2021) (“As dictators seem to recognize, people who have no hope of overthrowing a regime can still make work more difficult for the secret police.”); see also 1 Aleksandr I. Solzhenitsyn, The Gulag Archipelago 1918-1956: An Experiment in Literary Investigation 13 n.5 (Thomas P. Whitney trans. 1974) (1973) (detailing how “the cursed machine [of Soviet tyranny] would have ground to a halt” if people had resisted simply with “axes, hammers, pokers, or whatever else was at hand”).
139. Kopel, supra note 138, at 53.
140. See Solzhenitsyn, supra note 13 at 13 n.5.
141. See Aymette v. State, 21 Tenn. 154, 160 (1840) (“The citizens have the unqualified right to keep the weapon . . . . But the right to bear arms is not of that unqualified character.”).
142. See Michel & Konstadinos Moros, supra note at 93; Blocher, supra note, at 573.
143. Common Firearms, Texas Parks & Wildlife (last visited Aug. 6, 2024),https://tpwd.texas.gov/education/hunter-education/online-course/firearms-and-ammunition-1/common-firearms [https://perma.cc/XYE3-X7D5]; Shotguns, Texas Parks & Wildlife (last visited Aug. 6, 2024), https://tpwd.texas.gov/education/hunter-education/online-course/firearms-and-ammunition-1/shotguns [https://perma.cc/X42X-9UQB].
144. Different types of Competition Shooting, Colorado School of Trades—Gunsmithing (last visited Aug. 6, 2024), https://schooloftrades.edu/different-types-of-competition-shooting/ [https://perma.cc/T989-M2K4].
145. District of Columbia v. Heller, 554 U.S. 570, 581 (2008).
146. Jamie G. McWilliam, Refining the Dangerousness Standard in Felon Disarmament, 108 Minn. L. Rev. Headnotes (forthcoming 2024) (manuscript at 4) (describing historical efforts to disarm Blacks, Catholics, Indians, Loyalists, and slaves); Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 261–72 (2020) (discussing similar targeted disarmament laws). Indeed, Heller itself called felon disarmament laws “presumptively lawful.” 554 U.S. at 626–27, n.26.
147. McWilliam, supra note 146, at 10 (“The historical laws were often discriminatory and would not be enforced today . . . .”); Greenlee, supra note 144, at 286 (“[M]any of these bans have been unjust and discriminatory . . . .”).
148. Greenlee, supra note 146, at 286.
149. Martin Luther King, Jr., Letter from Birmingham Jail (“To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. . . . So segregation is not only politically, economically, and sociologically unsound, but it is morally wrong and sinful.”); Locke, supra note 102, at 106 (describing the state of nature as a “state also of equality . . . without subordination or subjection”).
150. See generally supra notes 134–36 and accompanying text.
151. Merriam, supra note , at 50 (“A man’s strongest inclination is the preservation of his own life, and thus the natural law compels man to do those things that preserve his life and thwart those things that would threaten it.”).
152. New York State Rifle & Pistol Association v. Bruen (“We . . . now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”).
153. See United States v. Cruikshank, 92 U.S. 542, 553 (1876) (noting that the right is “bearing arms for a lawful purpose”).
154. McWilliam, supra note 146, at 8 (“[A] corollary [to the right to carry weapons to resist a spontaneous attack] could be that the Second Amendment does not protect such a right for those who have actually committed the types of crimes that necessitate violent self-defense in the first place.”).
155. Id. at 9.
156. Cruikshank, 92 U.S. at 553.
157. See id.
158. District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (citing 2 Collected Works of James Wilson 1142 (K. Hall & M. Hall eds. 2007)).
159. McWilliam, supra note 3, at 58.
160. Id.
161. McWilliam, supra note 144, at 11.
162. McWilliam, supra note 3, at 24 (“[The Second Amendment] determines ius naturale principles that exist from the very nature of humanity and law.”).
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