Disgust and Guns: Conduct, Identity, and Second Amendment Animus

William D. Araiza | March 6, 2022

In Second Amendment Animus, Professor Jacob Charles examines whether the burgeoning doctrine of unconstitutional animus should play any role in adjudicating Second Amendment claims. This Essay responds to Professor Charles’s important work. While it concludes that he is likely correct to reject animus as a grounding for Second Amendment claims, it points out areas where the analysis is more nuanced than he suggests. After considering Professor Charles’s analysis, the Essay examines the Second Amendment animus issue through the theoretical lens provided by Professor Martha Nussbaum’s work on disgust as a motivating factor for the types of exclusionary and subordinating laws properly condemned as grounded in animus. While that examination again concludes that animus is generally a poor fit for Second Amendment claims, the Essay nevertheless identifies fascinating parallels between at least some extreme gun regulations and characteristics of some laws condemned as animus based. Those parallels suggest that more work should be done to investigate the connection between animus-based laws and the disgust reactions Professor Nussbaum identifies as their source. In particular, more work is needed to examine how Professor Nussbaum’s theory relates to laws that, while connected to disgust reactions, are not squarely grounded in them.