A Racial Jurisprudence of Guns: Purposivism, Originalism, and the Statutory Revolution in Arms

This paper examines a politics of purposivism that shaped the rise of the modern gun rights movement amidst the generation of originalist scholarship on the Second Amendment. I explore how, from the 1970s through the early 2000s, law-and-order politicians supported punitive gun policies, enforced harsh mandatory sentences for firearm-related crimes, and advocated for purposive interpretations of these new statutes. Additionally, I analyze how the racial politics involved in crafting originalist frameworks for an individual right to keep and bear arms aligned with bipartisan support for what Jacob Charles terms “firearms carceralism.” I investigate the interaction between Congress and the Supreme Court concerning “felon-in-possession” laws, amendments to the Gun Control Act of 1968, the Armed Career Criminal Act of 1984, and the Anti-Drug Abuse Acts of 1984 and 1986. Specifically, I read the Supreme Court’s decisions in Busic v. United States (1980) and Ball v. United States (1985), which offered less punitive interpretations of federal gun laws, in contrast to subsequent congressional amendments that rejected the Court's interpretations. The paper discusses how a racial jurisprudence of guns emerged, aiming to incapacitate those deemed “armed and dangerous” for extended periods through sentencing enhancements, stacking provisions, three-strikes laws, and the expansion of prosecutorial power. I consider the relationships among various actors in the gun rights movement as they advanced different frameworks and agendas concerning guns and federal law. I interrogate how constitutional and statutory interpretation fit into the broader legal agendas of the gun rights movement, conservative legal thought, mass incarceration, and punitive modes of racial control.