Is an armed citizenry consistent with a carceral state? Throughout the twentieth century, the Second Amendment cast no shadow on the U.S. Supreme Court as the Court crafted the constitutional doctrines that license America’s expansive criminal legal system. Under the Court’s interpretation of the Fourth Amendment, the fact or mere possibility that an individual is armed can generate broad powers for police officers, including the power to disarm. But since the Court embraced an individual right to bear arms in 2008, a few scholars and lower courts have begun to worry that this right contradicts contemporary understandings of police authority. In this Essay, I acknowledge these apparent doctrinal contradictions but argue that Fourth and Second Amendment doctrines actually share a common conceptual foundation: carceral political theory. Carceral political theory divides people into “criminals” and “law-abiding citizens” and does so according to intuitions about natural criminality rather than through positive law. The supposed distinction between the criminal and the law-abiding is used to rationalize unequal distributions of political power, social goods, and exposure to violence. In the United States, the naturalized conception of criminality has long been racialized. Unless we identify and reject the carceral assumptions that underlie both Fourth and Second Amendment doctrine, the new (or newly recognized) right to bear arms is likely to further exacerbate racial inequality in the United States.
