To say that the moral stain of racism pervades American history would be an understatement. One does not have to look hard to find examples where people of color were treated disparagingly or disparately. Thus, it should come as no surprise that throughout much of American history there are examples where race played a role in lawmakers deciding who may and may not acquire, own, and use firearms for lawful purposes, or where race was the principal factor in orchestrating state- and nonstate-sponsored armed violence against people of color. The painful and often tragic historical intersection between race and firearms is indeed a complex and multifaceted narrative worthy of examination and reflection, including in the area of history-in-law—that is, the study of how the law has evolved in a particular area; what events and factors caused the law to evolve; and how, if at all, this history is important when adjudicating legal questions.

Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With the Court set to rule on Second Amendment protections beyond the home, the issue demands scrutiny not simply for the outcome but for how the Justices consider the question in light of a growing gun violence epidemic. This Article argues against a rights-as-trumps approach that focuses on history, instead using a population-based perspective to shift the focus from the scope of the right and properly place the rights and liberties of the general public into the equation.

Forty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions. These measures have been remarkably effective in reducing the breadth and variety of gun laws nationwide, but their consequences have only just begun to attract attention. Public debates over guns tend to center on the Second Amendment while overlooking state-level obstacles to local lawmaking, and the scholarship on state-local preemption lacks an analysis devoted exclusively to the gun-policy space.

Gun violence is no longer just a crime-control problem in the United States; it is a public health crisis. This crisis is most acute in densely populated and economically challenged communities. The threat of becoming the intended or innocent victim of gun violence in these communities has become so pervasive that it only seems to make the headlines when the numbers are truly shocking to the general public. Sadly, these numbers have become the norm for the residents of these communities. Government bears a responsibility to leverage every lawful measure to mitigate this safety hazard, no differently than it does for other threats that implicate both public safety and crime control, such as the detection and deterrence of intoxicated drivers.

Assault rifle bans. Gun-free zones. Concealed carry permits. Sentencing enhancements. Of all the firearm regulations we have, or have had, in our country, the most important one is the felon prohibitor, 18 U.S.C. § 922(g)(1). This is the federal statute prohibiting anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” from shipping, transporting, possessing, or receiving firearms. For better or worse, this statutory subsection is the centerpiece of gun laws in the United States in terms of impact, enforcement, overlap with other laws, and spillover effects.