Shooting at the Dark

I wrote this essay in 2014, and hadn't looked at in years, but I remembered it this week as I was talking to a friend about the murder of George Floyd by a policeman in Minneapolis. I'm putting it online now because I think the racist history of firearms legislation in the US is worth studying as the country begins a process of policymaking and reform to address the injustices and inequities that got it to this point.

William Allen. Tonya Gunn. Joey Henderson. Cassius White. Robert Cotton. Anthony Hobson. Kezon Lamb. Donald Ray. Schiquille Slater. Joel Bentley. Deandre Brown. Shaquille Ross. Corey Hudson. Shambreyh Barfield.

On the third of July, 2014, the day I began working on this essay in earnest, each of these men and women was alive. As I write these words, on the seventh of July, 2014, every one of these Chicago residents is dead, felled by cold lead slugs cutting into their bodies at supersonic speeds. They died in different neighbourhoods under varying circumstances, but, with the exception of Joey Henderson, whose race was never reported, all of these victims were Black.¹

Of the last fifty homicides reported in the city of Chicago as of the seventh of July, 2014, 47 were perpetrated using a gun. In 42 of those 47 cases, the victim was of Black origin.² As of the 2010 census, Chicago was 45.0% White and 32.9% Black³, which means, assuming a base case of equivalent distribution of gun deaths across demographics, that Blacks are overrepresented by 272%, almost a factor of 3, in the tally of firearm-aided homicides.

Nationally, the story is very similar. In 2008 and 2009, gun violence was the leading cause of death for Black teenagers⁴, and in 2010 54.6% percent of all gun homicide victims were Black, as opposed to only 12.8% of the general population.⁵ In the same year, 65% of all gun homicide victims between the ages of 15 and 24 were Black as opposed to only about 14% of the overall population in that age group.⁶ It is, therefore, unsurprising that a Washington Post-ABC News Poll conducted in 2013 found that 78% of Black respondents surveyed were in favour of stricter gun control laws with only 22% opposed, while the corresponding numbers for White respondents were 48% and 49% respectively⁷. President Barack Obama, the first Black to hold the highest office in the land, is an enthusiastic proponent of stricter gun control laws, a perspective informed by his residency in Chicago at the height of the crime wave in the 1980s and 1990s.^{8 9}

In recent years, gun-rights organizations like the National Rifle Association and Gun Owners of America have attempted undermine this strong Black support for gun control by advancing a theory predicated on the idea that gun control legislation in America is essentially racist in origin, while the Second Amendment has functioned as a bulwark against racial oppression.^{10 11 12} Gun control proponents counter this with the argument that the Second Amendment was racist both in original intent and effect in the founding era, authorizing the violence against both slaves and Native Americans and allowing for the creation of a racist police state.^{13 14} In my research into these two seemingly contradictory positions, I came to the rather counterintuitive conclusion that both have a significant amount of merit and are, in fact, symbiotically linked. What follows is an attempt to reconcile those claims into a coherent narrative of racism and minority oppression in American firearms legislation, from the founding era to modern times.

Let us start with the question of the possible racist intents and effects of the Second Amendment. As with any Constitutional analysis, one must begin with the text itself.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.¹⁵

This one idiosyncratically structured sentence, just four clauses, has ignited many centuries of contentious debate. It is beyond the scope of this paper to attempt to divine some ‘true’ or ‘correct’ interpretation of original textual intent - countless scholars have written numerous papers and book-length treatises on the subject. Most interpretations given mainstream credence, however, lie between two well established extremes - a pure individual rights interpretation on one side, and a pure state’s rights interpretation on the other¹⁶. It will thus suffice, for our purposes, to traverse the text across the spectrum of interpretations between the extremes, subjecting each consequential in-between state to independent racial analysis. The aggregate result of these analyses will serve to represent the racial colouring, if you will, of the law as a whole.

If one subscribes to the pure individual rights theory of Second Amendment, wherein the phrase ‘A well regulated Militia, being necessary to the security of a free State’ is effectively a non-operative and non-exclusive justification for the ‘right of the people to keep and bear arms’¹⁷, then one would be hard pressed to find racist intent behind its text.The People referred to, of course, could not have included slaves if its meaning was consistent - slaves did not ‘ordain and establish’ the Constitution, being unable to vote in all states at the time of ratification. As Akhil Amar notes, the word People in all cases within the original Constitution and the Bill of Rights references the political citizenry, the citizens endowed with the right to vote and stand for elected office, not the Persons referred to in the Fifth Amendment and the Articles elucidating the proportionment of representatives¹⁸. This ludicrously racist and sexist distinction hangs over every word of the Constitution like a malignant odor, but must, therefore, be excluded from any non-trivial racial analysis of a part in isolation. The question of slavery aside, nothing in the text seems to discriminate against free Blacks counted among the political citizenry, so if one were to accept the individualist reading in toto, the Second Amendment is not, prima facie, any more racist than the rest of the Constitution.

As one begins to unmoor oneself, however slightly, from the idea that the Militia clause does not substantively affect the right to bear arms, if one merely acknowledges that such a right was limited to those which might simply qualify to serve in a Militia - any Militia, State or Federal - at some point in the future, then one would be forced to acknowledge that Blacks were not protected by the Second Amendment after 1792. That year, President George Washington signed into law two Militia Acts which made participation in State Militia and Federal Military service the exclusive domain of the ‘free able-bodied white citizen’¹⁹. These Acts originated in the House of Representatives in 1790, just over a month after the passage of the Bill of Rights, and passed through Congress with the support of James Madison and the majority of the supporters of the aforementioned Bill²⁰. The Second Amendment was in force without the Militia Acts’ definition of the Militia referenced therein for a mere six months. As such, the definition of the Militia as an all-white force may reasonably be construed to be part of the original intent of the drafters of the Bill of Rights themselves.

It is important to note, however, that to substitute the intent of an Amendment with the intent of its Framers is akin to performing a cheap conjuring trick by bludgeoning the audience over the head with a bat in order to create the necessary misdirection. The intent of the voters in the House and Senate must rate above such concerns, with the intent of the State ratifiers perhaps most important of all, and these last stakeholders had no direct part in the drafting of the aforementioned Militia Acts. Any racist intent construed in relation to later legislation is necessarily circumstantial.

Moreover, if one ignores or underplays the phrase ‘well regulated’ in the first clause, one might suggest that nothing prohibited Blacks from forming their own Militias, thus softening any charge of possible racist intent. However, if one interprets the power to regulate a Militia as the power to regulate into non-existence, the power to recognize official Militia and withhold recognition to all other, then it is inescapable that the Second Amendment, in the lived experience of the ‘free Negro’, was at best alienating.

As we move further towards the absolutist State’s rights interpretation, wherein the second Amendment serves only to prevent the Federal Government from compromising the Militias of the several States such that the latter might function an important check upon the growth of the former’s powers and prevent the transformation of the U.S. into a centralized tyranny²¹, the unmistakable stench of slavery and racism begins to reveal itself. The Second Amendment was unusual among the articles of the Bill of Rights in that only four of the thirteen states - Massachusetts, North Carolina, Pennsylvania and Vermont - had provisions about arms bearing in their Constitutions at the time of ratification, of which Massachusetts and North Carolina reserved that right exclusively to actions in defence of the State²². Most of the other rights granted by the aforementioned Bill, in addition to most provisions of the U.S. Constitution, had predecessors in a large number of State Constitutions. Carl T. Bogus, in his masterfully composed The Hidden History of the Second Amendment, argues fairly convincingly that a significant amount of circumstantial evidence points to the Second Amendment being conceived in an effort to reassure Southerners that the Militia-esque Slave Patrols they used to maintain the bonded-labour economy would not be dissolved, modified or removed from State control²³. The famed Anti-Federalist orator Patrick Henry gave voice to these Southern concerns in the Virginia ratification debates, suggesting that under the proposed Constitution,

"if the country be invaded, a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only, can call forth the militia."²⁴

James Madison’s original draft of the Second Amendment spoke not of the security of the ‘State’, but of the security of the ‘Country’. That, in turn, was based on a provision in the proposed Virginia Declaration of Rights, which was predicated on the ‘defence’ of the state rather than its ‘Security’. One does not ‘defend’ a state from an internal insurrection - one ‘secures’ it. In addition, Madison included strong negative language - ‘shall not be infringed’ - limiting the ability of the Federal Government to interfere.²⁵ Together, these changes suggest a calculated attempt to pacify the maintainers of the Slavocratic police state, though the evidence is merely circumstantial.

As circumstantial as these charges might be in terms of historical intent, they ring true with respect to the lived experience of generations of Southern slaves. Sally Hadden, in her book Slave Patrols: Law and Violence in Virginia and the Carolinas, documents hundreds of Slave uprisings crushed by State Militias in Virginia and the Carolinas, even as the majority of fighting against international enemies and the Indian tribes was accomplished by the considerably better trained national standing army.²⁶ Indeed, even during the Revolutionary War the Southern states’ Militias spent the majority of their time on Slave Patrol, contributing very little to frontline fighting.²⁷ Far from being a check on institutionalized tyranny, these Militias were agents of tyrannical oppression.

In this climate of State-sponsored racial violence, one might suppose, harkening back to the previously discussed individual rights interpretation of the Second Amendment, that a free Black would be glad to have his constitutionally guaranteed firearm with him at all times, especially when travelling in and around the South. Unfortunately, this is the point where the tale of the Second Amendment runs smack into a wall of racially-charged gun control.

State and municipal legislatures in the colonial and founding eras enacted varied and often very restrictive arms control legislation, but none more restrictive than those enacted against Blacks. Ordinances prohibiting Black possession of weapons, whether unlicensed or in general, were commonplace.²⁸ The Maryland legislature even went so far as to ban “free Negroes” from owning a dog without a license for fear that canines might be used as weapons.²⁹ In 1831, after the slave rebellion led by Nat Turner³⁰, the Virginia Legislature made it illegal for “Negroes or Mulattoes” to “keep or carry any firelock of any kind, any military weapon, or any powder or lead..”.³¹ In 1834, the Tennessee Constitution was amended to restrict the right to bear arms to ‘free white men’ as opposed to the original’s ‘free men’³². In defense of a measure prohibiting possession of weaponry without a license by Black Americans, the North Carolina Supreme Court noted that

Its only object is to preserve the peace and safety of the community from being disturbed by an indiscriminate use, on ordinary occasions, by free men of color, of fire arms or other arms of an offensive character. Self preservation is the first law of nations, as it is of individuals.³³

In the same period, many State Constitutions were amended to restrict the right to bear arms to citizens.³⁴ In the 1830s and 40s, a number of (mostly Southern) State Supreme Courts, including North Carolina and Georgia, ruled that free Blacks could not be Citizens of those states.³⁵ The U.S. Supreme Court’s infamous Dred Scott decision extended that argument to its logical conclusion - Chief Justice Roger Taney explicitly referenced the fear of a Black right ‘to keep and carry arms’ as part of the justification for his landmark decision denying citizenship to all persons of African descent.³⁶ In a world where a Black American could not, de jure, be a member of the People, the right to bear Arms transforms into a weapon for the oppression and subjugation of the race deprived of it.

After the Civil War, during the initial Reconstruction period in the 1860s and 70s, black militias composed of former Union soldiers patrolled the South in order to prevent violence against their kind. The Freedmen’s Bureau, controlled by the Federal Government, as well as the U.S. Army, fought vigilante disarmament of Black Americans by roving bands of former Confederates enforcing the so-called Black Codes, statutes passed by the former Rebel States circumscribing the actions of the newly freed Blacks.³⁷ As Blacks gained the right to vote and participate in society as full citizens, White Southerners were temporarily disenfranchised as they negotiated the terms of their surrender.³⁸ For a brief moment, the racial tables had turned, but the backlash was swift and severe. The rise of the Ku Klux Klan and similar racial terrorist organizations, the progeny of those original disarmament posses, and the resulting violent disenfranchisement of Southern Blacks, resulted in the horribly segregated Jim Crow South, where de facto bondage replaced de jure slavery and the Klan took over where the State Slave Patrol Militias left off.³⁹

The specter of outright, undisguised racism in gun control law and its enforcement was, alas, alive and well through the 1930s and 40s. In his concurring opinion in Watson v. Stone (1941), wherein the Florida Supreme Court overturned the conviction of a white man on charges of unlicensed possession of a gun⁴⁰, Justice Rivers H. Buford wrote

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.⁴¹

The NRA itself was a strong proponent of gun control legislation towards the middle of 20th Century. They helped pass a series of laws in several states requiring licensing from local governments to own or carry firearms, in practice disarming minorities not usually found ‘suitable’ for possession.⁴² Martin Luther King, Jr. was in 1956 famously denied a concealed carry permit in Birmingham, Alabama even after his house was firebombed.⁴³

Current gun control laws continue to have undeniably racially skewed effects. Blacks are arrested on weapons possession charges at 5 times the rates of Whites (adjusted proportionally for population), and 60% of people convicted on felony weapons possession charges are Black⁴⁴ as opposed to only 7% of gun owners in general.⁴⁵ Mandatory minimums for sentencing on gun possession charges for convicts with previous criminal records disproportionately affect Blacks, many previously charged with drug-related non-violent crimes.⁴⁶ Additionally, enforcement of gun-control legislation has numerous indirect effects on the Black community - for example, most arrests as a result of the NYPD’s controversial stop-and-frisk policy, aimed, according to its creators and defenders, at confiscating illegal weapons, are of Blacks on drug possession charges.⁴⁷ Several studies indicate that this may have more to do with racial bias in terms of police execution than actual racist intent in policy^{48 49}, but, as previously noted, the latter is far from absent.

The Second Amendment, and more specifically its absolutist individualist interpretation, has a large part to play in all of this - most guns implicated in illegal possession are purchased legally, either through the gun show loophole or through often transparent straw purchases. Individualist interpreters of the Second Amendment have vigorously resisted efforts to introduce stronger regulation to curb such methods of purchase. Indeed, there is some suggestion that elements in the gun-rights community and the NRA espoused the gun-related homicidal violence in the Black community as a positive effect of the Second Amendment, acting as a form of population control for the undesirable. In a 1994 paper presented at the Academy of Criminal Justices in Chicago, the NRA’s then Coordinator of Research, the ironically named Paul H. Blackman, argued that

The flaw in the assumption regarding the costs to society is that the presumption is that persons killed with guns would, absent the gunshot wound, have led productive working lives. In fact, studies of homicide victims—especially the increasing number of younger ones—suggest they are frequently criminals themselves and/or drug abusers. It is quite possible that their deaths, in terms of economic consequences to society, are net gains. Society is freed from costs of $20,000 per year for imprisonment, and of the costs criminals impose on society, which, among the most active of criminals, has been estimated at upwards of $400,000 per year.⁵⁰

While he doesn’t explicitly reference Blacks, a solid majority of all gun homicide victims, and even higher percentage of gun homicide victims in their late teens and early twenties, are of that racial persuasion, as noted in the introductory paragraphs of this paper. As such, the racial equality intentions of the mostly-white NRA⁵¹ and similar gun-rights organizations are dubious, at best.

The gun lobby’s preferred solution for crime is more guns⁵² - organizations like Gun Owners of America sponsor ‘justifiable homicide’ and Stand Your Ground laws, ostensibly to ‘raise the cost of crime’ and reconfigure the risk calculus of criminals.⁵³ On examining the data from trials centered around Stand Your Ground-type laws in the United States, one finds a significant racial, specifically pro-White and anti-Black, bias in verdicts issued - in cases where a White plaintiff shot an Black, the shooting was found to be justified about 17% of the time, while the shooting of a White by an Black was found to be justified only 1% of the time.⁵⁴ This would suggest that the jurors in these cases, likely mostly White, believe that Whites have more of a right to use weaponized force for self-defence than Blacks. The Trayvon Martin case⁵⁵ is a recent, high-profile example of these forces in motion. This phenomenon results in partial ex post facto selective disarmament on the basis of race, harkening back to the days of mobs lynching Black Americans for protecting themselves.

In summation, the balance of evidence suggests that gun control and the ‘right to bear arms’, while seemingly enemies at first glance, have instead over the centuries combined to produce, through racially selective armament and law enforcement, a framework for the effective subjugation of Black Americans. Emancipated but never truly freed, a large portion of Black America still lives, literally and figuratively, under the gun.

Endnotes

I owe debts of gratitude to the following works:

Amar, Akhil Reed. America's unwritten constitution: the precedents and principles we live by. New York: Basic Books, 2012. Print.

Amar, Akhil Reed. The Bill of Rights: creation and reconstruction. New Haven: Yale University Press, 1998. Print.

Cramer, Clayton E.. For the defense of themselves and the state: the original intent and judicial interpretation of the right to keep and bear arms. Westport, Conn.: Praeger, 1994. Print.

Halbrook, Stephen P.. That Every Man Be Armed The Evolution of a Constitutional Right. Revised and Updated Edition.. Albuquerque, NM: University of New Mexico Press, 2013. Print.

Cornell, Saul. A well-regulated militia: the founding fathers and the origins of gun control in America. Oxford: Oxford University Press, 2006. Print.

Halbrook, Stephen P.. A right to bear arms: state and federal bills of rights and constitutional guarantees. New York: Greenwood Press, 1989. Print.

Uviller, H. Richard, and William G. Merkel. The militia and the right to arms, or, How the second amendment fell silent. Durham: Duke University Press, 2002. Print.

Shain, Barry Alan. The nature of rights at the American founding and beyond. Charlottesville: University of Virginia Press, 2007. Print.

Cortner, Richard C.. The Supreme Court and the second Bill of Rights: the fourteenth amendment and the nationalization of civil liberties. Madison: University of Wisconsin Press, 1981. Print.

Finally, I’d like to thank Professor Akhil Reed Amar for introducing me to the delights of Constitutional scholarship.

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Soham Sankaran is the CEO of Pashi, a Y Combinator-backed startup building software for manufacturing. He is on leave from the PhD program in Computer Science at Cornell, and has a BS in Computer Science from Yale University.

Soham can be contacted at (his first name) [at] soh.am.

You can read more of his writing at soh.am/writes, follow him on twitter @sohamsankaran, and get new writing via email by subscribing below.