With Ninth Circuit Declaring No Right To Carry, Will SCOTUS Respond?

Earlier this week, I asked Cincinnati attorney Rachel Citak to join me on today’s Bearing Arms’ Cam & Co to discuss her recent column in the Cincinnati Inquirer “Second Amendment History Is Black History” (which should be required reading for anyone interested in the Second Amendment and gun control). Thanks to the Ninth Circuit’s absolutely atrocious decision yesterday that declared the Second Amendment doesn’t actually protect a right to bear arms, however, our conversation ended up being more expansive than originally intended.


As it turns out, the Ninth Circuit decision, which inexplicably ignores both the plain text of the Second Amendment and the history of the Fourteenth Amendment in favor of 17th century English statutes and 19th century Hawaiian regulations, dovetails pretty well with Citak’s column, which focuses on how gun control laws in the United States have historically been used to deny the right to keep and bear arms to racial minorities and other groups seen with disfavor by those in power.

Armed self-defense is what made the civil rights movement possible, according to Black historians and authors like law Professor Nicholas Johnson, Professor Lance Hill, Professor Charles Cobb Jr. and civil rights-era author Robert Franklin Williams. Their memoirs and written work discuss how the history of gun control is actually rooted in racism, and was designed to target and disarm minorities like Native Americans and African Americans.

Whether motivated by fear of slave insurrection, Native American savagery, or Black militancy, gun control has always been pushed with fear-mongering. Ultimately, the problem isn’t actually our fear of guns and violence. The problem is our fear of each other, and facing the potential of true equality among the ruled and the ruler. For everyday citizens, it’s “the ballot or the bullet” – because those are the two best levelers we have.

If you haven’t read Nicholas Johnson’s book “Negroes and the Gun: The Black Tradition of Arms” or Charles Cobb’s “This Nonviolent Stuff Will Get You Killed: How Guns Made the Civil Rights Movement Possible, you’re missing out on some truly important American history. Unfortunately, as Citik points out, the racist roots of gun control are alive and well in 2021, and with the Ninth Circuit declaring that the right to bear arms is meaningless, it’s more important than ever for the Supreme Court to weigh in and protect the right of the people to protect themselves with firearms.


Citik says that the Ninth Circuit simply engaged in picking and choosing the history that supported their pre-existing viewpoint that states should have the power and authority to turn the right to bear arms into a privilege to be doled out to those they view as worthy or possessing “good character.”

“What we’re seeing in this latest faux-constructionism,” Citik explains, “is that the judges come into the decision knowing what the end result is that they desire, and then they kind of shape history to point to the answer that they want. When you look at a true constructionist like [the late Justice Antonin] Scalia, what he does is trace the history to arrive at the correct answer, even if it’s something he didn’t agree with.

“We see quite the opposite here,” Citik continued. “A lot of grasping at straws and throwing in everything and the kitchen sink.”

While the Ninth Circuit may have thrown in the kitchen sink, they virtually ignored the debates in the Reconstruction era over legislation like the Civil Rights Act of 1866 and the Fourteenth Amendment. As Second Amendment attorney and scholar Stephen Halbrook has pointed out, protecting the rights of newly freed slaves to keep and bear arms against state-level restrictions on those rights was of paramount importance to supporters of civil rights in the 19th century.

When Congress took up Senate Bill No. 61, which became the Civil Rights Act of 1866, Sen. Lyman Trumbull (R., Ill.), Chairman of the Senate Judiciary Committee, indicated that the bill was intended to prohibit inequalities embodied in the black codes, including those provisions which “prohibit any negro or mulatto from having fire-arms.”

In abolishing the badges of slavery, the bill would enforce fundamental rights against racial discrimination in respect to civil rights, the rights to contract, sue and engage in commerce, and equal criminal penalties.

Sen. William Saulsbury (D., Del.) added: “In my State for many years, and I presume there are similar laws in most of the southern States, there has existed a law of the State based upon and founded in its police power, which declares that free negroes shall not have the possession of firearms or ammunition. This bill proposes to take away from the States this police power….”

The Delaware Democrat opposed the bill on this basis, anticipating a time when “a numerous body of dangerous persons belonging to any distinct race” endangered the state, for “the State shall not have the power to disarm them without disarming the whole population.”

Thus, the bill would have prohibited legislative schemes which in effect disarmed blacks but not whites. Still, supporters of the bill were soon to contend that arms bearing was a basic right of citizenship or personhood.

… Rep. Sidney Clarke (R., Kansas) referred to an 1866 Alabama law providing: “That it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own firearms, or carry about his person a pistol or other deadly weapon.” This same statute made it unlawful “to sell, give, or lend fire-arms or ammunition of any description whatever, to any freedman, free negro, or mulatto….”[31] Clarke also attacked Mississippi, “whose rebel militia, upon the seizure of the arms of black Union Soldiers, appropriated the same to their own use.”

Sir, I find in the Constitution of the United States an article which declares that “the right of the people to keep and bear arms shall not be infringed.” For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws….[33]

Emotionally referring to the disarming of black soldiers, Clarke added:

Nearly every white man in that State that could bear arms was in the rebel ranks. Nearly all of their able-bodied colored men who could reach our lines enlisted under the old flag. Many of these brave defenders of the nation paid for the arms with which they went to battle…. The “reconstructed” State authorities of Mississippi were allowed to rob and disarm our veteran soldiers….

In sum, Clarke presupposed a constitutional right to keep privately held arms for protection against oppressive state militia.


A few years after the Fourteenth Amendment was ratified, Congress revisited the issue in debate over legislation designed to suppress the Ku Klux Klan. One of the opponents of the bill made an argument that, while couched in the language of the 19th century, could be made by a gun control advocate today.

Rep. Washington C. Whitthorne (D., Tenn.), who complained that “in having organized a negro militia, in having disarmed the white man,” the Republicans had “plundered and robbed” the whites of South Carolina through “unequal laws,” objected to Section 1 of the anti-KKK bill on these grounds:

It will be noted that by the first section suits may be instituted without regard to amount or character of claim by any person within the limits of the United States who conceives that he has been deprived of any right, privilege, or immunity secured him by the Constitution of the United States, under color of any law, statute, ordinance, regulation, custom, or usage of any State. This is to say, that if a police officer of the city of Richmond or New York should find a drunken negro or white man upon the streets with a loaded pistol flourishing it, &c., and by virtue of any ordinance, law, or usage, either of city or State, he takes it away, the officer may be sued, because the right to bear arms is secured by the Constitution, and such suit brought in distant and expensive tribunals.[48]

The Tennessee Democrat assumed that the right to bear arms was absolute, deprivation of which created a cause of action against state agents under Section 1 of the anti-KKK bill. In the minds of the bill’s supporters, however, the Second Amendment as incorporated in the Fourteenth Amendment recognized a right to keep and bear arms safe from state infringement, not a right to commit assault or otherwise engage in criminal conduct with arms by pointing them at people or wantonly brandishing them about so as to endanger others. Contrary to the congressman’s exaggerations, the proponents of the bill had the justified fear that the opposite development would occur, i.e., that a black or white man of the wrong political party would legitimately have or possess arms and a police officer of the city of Richmond or New York who was drunken with racial prejudice or partisan politics would take it away, perhaps to ensure the success of an extremist group’s attack. Significantly, none of the representative’s colleagues disputed his assumption that state agents could be sued under the predecessor to § 1983 for deprivation of the right to keep arms.


While the Ninth Circuit may have found these facts inconvenient, I suspect (and hope) that the Supreme Court will take a very different view.

The Court is expected to consider a case dealing with the right to carry in conference tomorrow, and could announce as early as next Monday whether it has accepted New York State Rifle & Pistol Association vs. Corlett for review. That case deals with the state’s subjective licensing laws, much like the Young v. Hawaii case decided by the Ninth Circuit on Wednesday, and could very well be the vehicle used by SCOTUS to answer what should be a simple question: does the Second Amendment actually protect a right of the people to bear arms in self-defense?

There is a clear split in the various appellate courts on the issue, which increases the odds of the Court accepting either the NYSPRA case or the Young case when it reaches the Supreme Court in just a few weeks. The addition of Justice Amy Coney Barrett to the bench also makes it more likely that four justices will agree to hear one of these two cases. I’m cautiously optimistic about a carry case being heard by the Court in the near future, though I won’t hazard a guess as to which case is more likely to be accepted for review.

Be sure to check out the entire conversation with attorney Rachel Citak in the video window above, and make sure you’re refreshing BearingArms on Monday morning when we’ll have an update on any new cases that the Court accepted during tomorrow’s conference.


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