|
Abstract
|
Throughout history, minoritized Americans, particularly Black people, seeking to vote have faced two main obstacles: 1) discriminatory policies, and 2) armed intimidation and violence. When discriminatory policies, such as poll taxes and literacy tests could not keep minoritized people from the polls, brute force, such as Billy clubs, bombs, and guns stepped in. Given that discriminatory policies and armed violence can, and do, disenfranchise minoritized voters, the Supreme Court's Second Amendment and voting rights cases are connected.
Specifically, the Supreme Court's contradictory approaches to the Voting Rights Act and the Second Amendment threaten to deter minoritized Americans from safely and effectively voting. When considering the Voting Rights Act, the Court's conservative wing bases opinions on its myopic version of the present. But when considering the Second Amendment, the Court's conservative wing does the exact opposite, basing opinions on its myopic version of the past.
Contrasting the reasoning in Shelby County v. Holder, 570 U.S. 529 (2013), with the Court's seminal Second Amendment decision in District of Columbia v. Heller, 54 U.S. 570 (2008) exemplifies the difference. In Shelby County the Court considered the constitutionality of the Voting Rights Act (VRA) provision that empowered Congress to place certain jurisdictions under federal oversight. The Court decided that the VRA's constitutionality hinged on social conditions that, in its judgement, no longer existed. The Court accordingly proclaimed "[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions." The Shelby County majority's claim that "current conditions" constrain legislation contradicts that same majority's reasoning in District of Columbia v. Heller. In Heller, the majority relied on dubious historical analysis to decide, for the first time, that the Second Amendment encompasses an individual right to keep a handgun in the home. The Court opined that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." In other words, the Court relies on its version of history to expand access to firearms while relying on its version of the present to reduce access to voting. The contrast between Heller and Shelby County is no aberration. Indeed, the Court consistently applies a "living constitution" framework to the Fifteenth Amendment while applying questionable "originalism" to the Second Amendment. New York State Rifle & Pistol Association v. Bruen7 (Bruen) is the latest example...
Language: en |