Key Takeaways
- Some historical gun laws, especially before the Civil War and in the Black Codes that followed it, explicitly targeted Black Americans and were plainly racist.
- Facially neutral gun laws, such as licensing schemes that give officials unfettered discretion, have also been applied in racially discriminatory ways, a pattern seen in licensing for trades and professions as well.
- Professor Miller argues that a tainted history does not by itself condemn modern gun regulation, because both regulating and not regulating carry racially disparate costs.
Are gun laws racist? The history includes laws that explicitly disarmed Black Americans. But what should that history mean for gun regulation today?
In this TalksOnLaw Brief, Darrell A. H. Miller, who co-founded the Duke Center for Firearms Law and is now the Harry N. Wyatt Professor of Law at the University of Chicago Law School, separates laws that were racist on their face from neutral laws applied unequally, and explains why history should inform, but not dictate, modern gun policy.
Laws That Were Racist on Their Face
Professor Miller says that without question some historical regulations specifically identified African Americans, imposing special requirements or prohibiting gun ownership altogether, especially before the Civil War and shortly after. The Black Codes passed after emancipation in 1865 made it difficult for free persons of color to have guns. But the same codes, he notes, also imposed licensing requirements on African Americans for skilled trades and professions. If you scratch the surface of almost any American regulation, he says, you will find racially inequitable intent, language, purpose, or effect. Yet no one would conclude that plumbing or medical licensing should be abolished because of that history.
Neutral Laws, Unequal Application
The harder cases involve facially neutral laws. A licensing rule might say nothing about race, but officials with unfettered discretion could use it to keep guns from Black applicants, just as the same officials might keep Black Americans from practicing law or working as pipe fitters. The concern, he explains, is inequitable application, not the concept of licensing itself. He also discusses California's Mulford Act, signed by then-Governor Ronald Reagan after the Black Panther Party began armed patrols monitoring police in and around Oakland in the 1960s. The resulting ban on openly carrying loaded guns was prompted by those events but applied regardless of race, and Professor Miller cautions that a legislature is "a they, not an it," so a single motive is hard to assign.
Disparate Impact in Every Direction
Professor Miller acknowledges that gun regulation, especially when inequitably applied, can have racially disparate impacts, for instance where training or licensing costs fall harder on lower-income people. But disparate impact runs in every direction: a young Black man, he notes, is about 20 times more likely to die from gun violence than a comparable young white man. Good policy, he argues, must weigh both the costs of acting and the costs of doing nothing.
What to Know Now
The role of racist history has become a live issue in Second Amendment litigation because New York State Rifle & Pistol Association v. Bruen (2022) asks courts to compare modern laws with historical ones. In Wolford v. Lopez (2026), the Supreme Court struck down Hawaii's default ban on carrying guns onto private property open to the public, and the majority refused to rely on an 1865 Louisiana law that was part of that state's Black Code, describing it as a tool for disarming Black Americans whose purpose bore no resemblance to Hawaii's. Justice Jackson's dissent argued that a Court tying the right to history must grapple with the entire record, including its ugliest parts, rather than excluding such laws categorically. The exchange reflects the tension Professor Miller identifies: history can expose discriminatory laws without settling whether modern, evenhanded regulation is permissible. Advocates on different sides continue to draw on this history, some to argue for fewer restrictions and others for fair, nondiscriminatory enforcement of reasonable ones.
