The text of the Second Amendment says nothing about race, but the history of guns in America is deeply entangled with it, from laws that barred enslaved and free Black people from bearing arms, to the Black Codes after emancipation, to California's 1967 ban on open carry, enacted after the Black Panthers began carrying arms while monitoring police. Does that history mean gun laws are racist, or that the Second Amendment itself was meant to protect slavery?
In this TalksOnLaw interview, recorded in 2024, Joel Cohen speaks with Darrell A. H. Miller, a constitutional law scholar who was then the Melvin G. Shimm Professor of Law at Duke Law School and co-founder of the Duke Center for Firearms Law, and is now the Harry N. Wyatt Professor of Law at the University of Chicago Law School. Miller offers a nuanced account of how race and gun rights intersect, and cautions against reading the history too simply in either direction.
Are Gun Laws Racist?
Miller distinguishes between laws that expressly targeted Black Americans, facially neutral laws applied with discriminatory discretion, and laws prompted by racial anxieties but written in neutral terms, such as California's Mulford Act, signed by Governor Ronald Reagan. He explains that if you scratch the surface of almost any American regulation, from licensing for plumbers and physicians to firearms, you will find some racially inequitable intent or effect, and that this history alone cannot condemn all regulation. He also emphasizes that disparate impact runs in every direction: young Black men are about 20 times more likely than comparable young white men to die from gun violence.
The Second Amendment, the Militia, and Slavery
Miller explains why some scholars connect the Second Amendment's protection of the militia to slavery. In the North, the militia was a civic force for repelling invasion or suppressing uprisings like Shays' Rebellion; in much of the South, by 1791 it had merged with the slave patrol, and Patrick Henry spoke of the need for a militia to put down slave insurrections. He cautions that the ratifiers had many different motivations, and discusses the irony that enslaved people, who had the strongest claim to use arms for liberation, were excluded from the founding-era vision of armed resistance to tyranny.
Militias, Heller, and Armed Groups Today
Miller explains how District of Columbia v. Heller (2008) separated the Second Amendment's militia clause from the individual right to keep and bear arms, the difference between the organized militia and the idea of an unorganized militia of the people, and why self-appointed armed groups have a troubled history, including the Ku Klux Klan's claim during Reconstruction that it was simply a self-defense force. He discusses the limits of the anti-tyranny rationale as enforceable law and closes by urging policymakers to weigh both the costs of regulating guns and the costs of not regulating them.
What to Know Now
The questions Miller raises have become more pressing under the history-and-tradition test of New York State Rifle & Pistol Association v. Bruen (2022), which requires courts to decide which historical laws count as analogues for modern regulation, including whether laws that discriminated by race can inform that analysis. In United States v. Rahimi (2024), the Supreme Court upheld the federal ban on gun possession by people subject to domestic violence restraining orders, clarifying that modern laws need only be consistent with the principles underlying the nation's regulatory tradition. In 2026, the Court held in United States v. Hemani that the federal ban on gun possession by unlawful drug users could not be applied based solely on occasional marijuana use, and in Wolford v. Lopez struck down Hawaii's rule barring licensed carry on private property open to the public absent the owner's express permission. Professor Miller joined the University of Chicago Law School in 2024 and is a co-author of the casebook The Second Amendment: Gun Rights and Regulation (Foundation Press, 2025).
