Guns and Membership in the American Polity

IntroductionThe gun is mythic in the American imagination. James Madison extolled its transformative and signifying powers when he argued in the Federalist Papers that "the advantage of being armed" is a characteristic that "Americans possess over the people of almost every other nation."1 This "advantage," in the hands of militiamen, has provided the foundation for our nation's creation stories,2 but it has also been the catalyst for some of our nation's most inexplicable tragedies.3 Vacillating be tween these poles of heroism and heartbreak, firearms have remained at the center of the nation's political, legal, and historical consciousness. All along, one aspect of Madison's contention perseveres: the gun - its availability to the civilian population,4 its use for both public and private ends,5 and the violence associated with it6 - has steadfastly remained uniquely American.7Access to, and use of, firearms has helped define ideas of membership in America. The gun played a vital role in the genesis tales of the Republic itself. It was a bullet fired into a British officer by a militia man in Lexington, Massachusetts on April 19, 1775, that is credited with igniting the war for independence;8 it was the gun that helped tame the wilderness and battle American Indians in stories of the expanding nineteenth-century frontier;9 and firearms were credited with shoring up the struggle for political and racial equality during Reconstruction after the Civil War.10 In all of these manifestations - as a tool of resistance to tyranny, an instrument of imperialism, a method of survival and self-protection, and a pathway to political inclusion - the gun facilitated formation of, and inclusion in, the American polity.Concomitantly, however, the gun has also demarcated the borders of exclusion as well. Despite a thriving firearms trade with Indians,11 several colonial and early state laws reflected discomfort with the idea of arming them, sometimes forbidding or limiting such trade.12 Guns that were sold to Indians were often inferior, ensuring that whites would maintain an advantage over them.13 Similarly, possession by slaves and free blacks was heavily regulated.14 According to federal law, the militia of the several states was to be comprised only of white citizens, and some state constitutions made clear that "negroes, mulattoes, and Indians" were excluded from such participation.15 In the mid-nineteenth century, a majority of the Supreme Court seemed bemused by the idea that a freed slave could be a citizen of the United States. 16 To consider him such, the Dred Scott majority opined, would mean not only that blacks could travel and speak as they wished, but could also own guns.17 Surely, the Court reasoned, the founding fathers would not have been so unmindful of the safety of white citizens to have permitted such an absurd consequence.18Even after the Civil War and the Reconstruction Amendments, Black Codes in several states attempted to strip newly freed slaves from firearm possession, facilitating the ability of state and local militia forces and armed groups to terrorize the newly freed population.19 And, coincident with large-scale immigration and the first comprehensive federal immigration laws, several turn of the century gun statutes excluded noncitizens from gun possession based on notions of foreigners' proclivity towards violence.20 Even in present day, over twenty states and the federal government maintain alienage restrictions in their firearms statutes, differentiating between citizens and noncitizens for certain aspects of firearm purchase and possession.21 And, firearms offenses are among the crimes listed under the Immigration and Nationality Act22 that place noncitizens in danger of deportation.23Recent Supreme Court cases have exacerbated confusion over the inclusiveness of the Second Amendment. District of Columbia v. Heller2* established that the right to bear arms inured to individuals, based in part on the utility of handguns for selfdefense. …