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Tribes, Firearm Regulation, and the Public Square

Ann E. Tweedy

Vol. 55

June 2022

Page 2625

We stand at a crossroads with the United States Supreme Court seemingly poised, in New York State Rifle & Pistol Association v. Bruen, to expand the right of individualized self-defense first recognized in District of Columbia v. Heller, and shortly thereafter extended to states in McDonald v. City of Chicago. The Court’s decision in Heller has drawn criticism for its casting of its individual-focused view of the Second Amendment as rooted in history dating back to the drafting and ratification of the Amendment when, in fact, its interpretation appears to be of much more recent vintage.

Putting these concerns to one side, however, another major problem with the notion of self-defense in the United States — and with the Second Amendment (which has come to be viewed as a codification of that right) — is that it is racialized. As we saw with the recent acquittal of Kyle Rittenhouse, a white teenager armed with an assault rifle who had traveled across state lines purportedly to maintain order at a protest and who ultimately killed two people and wounded a third, it appears that whites are much more likely to be able to make successful self-defense claims than are those of other races. Although race disparities relating to self-defense are often viewed as a binary with privileged whites on one side of the equation and oppressed African-Americans on the other, the system of racial hierarchy in the United States is, in actuality, much more complex, with many other racial groups also being negatively affected. My purpose in this Article is to shine a light on the experiences of, and the disparities suffered by, Native Americans with respect to self-defense and, to the extent possible, to explore tribal approaches to gun regulation, particularly as they relate to the current national debate about whether the right of self-defense recognized in Heller extends beyond the home and, assuming that it does, whether guns may be restricted in sensitive places like schools and other government buildings.

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