Race and the Second Amendment

Emory University Professor Carol Anderson. (Photo copyright Stephen Nowland/Emory University.)

CAROL ANDERSON

Race and Guns in a Fatally Unequal America

THE U.S. CONSTITUTION

clearly states that Americans have the right to keep and bear arms, an argument often used to dispute proposed gun control legislation. Historian Carol Anderson uncovers the history behind the Second Amendment and argues that it was designed to keep African Americans vulnerable and subdued. From the July 21, 2021, program “Carol Anderson: Race and Guns in a Fatally Unequal America.” Dr. CAROL ANDERSON, Ph.D., Charles Howard Candler Professor of African American Studies, Emory University; Author, The Second: Race and Guns in a Fatally Unequal America In Conversation with MELISSA MURRAY, Frederick I. and Grace Stokes Professor of Law, NYU School of Law; Co-host, “Strict Scrutiny” Podcast

MELISSA MURRAY: I’m especially delighted to be joined by Professor Carol Anderson. Her research focuses primarily on how centuries of racial injustice have informed the processes and outcomes of policymaking. In her new book, Professor Anderson performs an in-depth analysis of the Second Amendment, exposing the highly racialized motives behind its drafting, ratification and subsequent deployment. Welcome, Carol. CAROL ANDERSON: Thank you so much for having me, Melissa. MURRAY: The text of the Constitution’s Second Amendment reads as follows: “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.”

Much of constitutional history is steeped

in mythmaking, but as you show in this book, there might be more to this story than this David and Goliath narrative that we’ve been given over the years. Can you give us this additional context for the Second Amendment? ANDERSON: The additional context was looking at the role of slavery and the laws that came up in order to control the enslaved. You saw a series of laws about, “thou shall not bear arms. The enslaved shall not have the right to bear weapons. They must be kept away from weapons, they must be unarmed, disarmed.” Slave patrols had the ability and the function to go into slave cabins and look for contraband, such as books, as well as weapons.

Then, seeing the ways that those laws and that architecture roll through the colonies, the Constitutional Convention and the ratification conventions, it was like, wow, slavery permeated those discussions. I saw the way that the South played a game of hardball, saying, “You will not have a United States of America unless we are able to protect slavery.” This is why we get the Three-Fifths Clause, this is why we get the 20-year extension on the Atlantic slave trade, this is why we get the Fugitive Slave Clause in the Constitution, this is also why we get the Second Amendment.

During that ratification convention, ratification had stalled and James Madison rushed down to Virginia, which had been one of the major holdouts, and he ran up against the buzzsaw of Patrick Henry, George Mason and the anti-federalists.

They were arguing that by putting the control of the militia under the federal government in the Constitution, you couldn’t trust the federal government to protect the slave holders from an uprising. They began to push hard, threatening this constitution that Madison had stitched together. And so what they did was they started demanding a Bill of Rights.

They made it clear to Madison that they would push for another constitutional convention unless they got the protection of the militia. This is why you get this outlier. You get the right to free speech, freedom of the press, the right not to have a state-sponsored religion, the right to not be illegally searched and seized, the right to a speedy and fair trial, the right not to have to deal with cruel and unusual punishment. And then you get this, the right to a wellregulated militia for the security of the state. That thing is the bribe to the South to buy on to the United States of America—we will protect slavery by protecting the militia. MURRAY: Why have we never made these connections between slavery and the Constitution and the Bill of Rights? Why instead has the narrative about the Bill of Rights been about these anti-federalists, who were so deeply consumed with this question of individual rights and the possibility of a tyrannical central government? ANDERSON: Our origin story is wrapped up in the mythology of these noble founders, who were just steeped in fighting off the tyrannical regime of the British. When you have this very flattened, two-dimensional origin story, you don’t deal with the complexity of the reality of what these folks were really dealing with and the choices that they were making.

When we get this narrative story about this incredible militia that fought off the British, that was there to fight against domestic tyranny, what we don’t hear is how George Washington was absolutely beside himself that the militia was absolutely unreliable during the War for Independence. Sometimes they’d show up, sometimes they wouldn’t, sometimes they fight, sometimes they take off running.

What the militia was really good at was putting down slave revolts. Absolutely, really good at that. The silence in the Constitution on slavery—that is the same silence we have had in our histories. It is the thing that we are ashamed of. So the origin story of the greatest nation ever cannot be rooted in slavery, because one of these things is not like the other. MURRAY: There’s a quote from Thomas Jefferson that appears in your book where he talks about the possibility that his slaves could justifiably turn against him. And he is deeply worried about this.

It’s not an idle fear; this is the Age of Revolution. Not only have the American colonists rebelled against the British, the French are about to overthrow their monarch in a year or two. Closer to home, the Caribbean nation of Haiti has just experienced a massive overthrow of not only the institution of chattel slavery, but the government itself by enslaved persons. This looms large in the history of the Second Amendment, and we’ve never heard of this, either. Can you make the connections

between these external events and what happened here in the United States? ANDERSON: This is the Age of Revolution. So one of the things that happens is this fear that these revolutionary ideas will carry forward to Black people, that Black people will think that somehow this idea of selfdetermination and self-government, this idea about being able to rule yourself, that Black people will believe that that applies to them. And Haiti verifies this in ways that sends shockwaves through the United States. This is where you get Thomas Jefferson going, “Oh my God, if this thing gets unleashed, we have to fear it. We must fear it.” The fear that his own enslaved people will justifiably rise up against him.

You see this coming through in terms of the laws, so that as you have slave owners fleeing Haiti with their enslaved, when they get to Baltimore, Baltimore opens up the public armory to white citizens so that they can protect themselves against these Haitian enslaved people coming into Baltimore. You have South Carolina actually banning the enslaved from Haiti from being able to come into South Carolina.

One of the things that happens in the United States shortly after the Haitian Revolution begins is you have the Uniform Militia Act of 1792, that says that every white man between the ages of 18 and 45 has to be part of the militia, and has to have a gun. So you’re seeing the definition of citizenship and the responsibilities of citizenship wrapped up in the role of the militia gun ownership and whiteness.

Then we have Gabriel’s revolt in 1800 in Virginia. That is a multi-city, multi-county planned revolt that they find out about on the day it was supposed to happen. Governor James Monroe is just shook. He is trembling. He’s writing to Thomas Jefferson, “I just found out about this. Oh, we would have been in blood if this thing had really gone off.”

They called out the state militia, the various militias, to go and round up and hunt down Gabriel and his followers. Then, you have mass public hangings as a way to send the signal: This is what happens to Black people who believe in freedom. MURRAY: The response to Gabriel’s Rebellion is to make an example of the slaves who were involved in that uprising. We didn’t have a similar response to the Whiskey Rebellion, nor did we have a similar response to Shays’ Rebellion, but they too were very much a disruptive force in colonial America. What explains the difference? ANDERSON: Whiteness explains the difference. It’s also the sense that Black people, you have to be afraid of them, they are a danger, they are a threat to the security of the United States, they are a threat and a danger to white citizens in the United States. White men are not seen as dangerous in that kind of collective sense.

With the Whiskey Rebellion, [they were] tarring and feathering federal tax officers over tax policy. At the end of the day, what you ended up with were a handful who were tried and convicted, and they received pardons.

When you had African-descended people rising up for their freedom, the response was, we have got to make a full example of you so that no one who looks like you believes that they have the right to be free. So we see the

revolt in 1811 in Louisiana, where they are beheaded and their heads put on spikes to line the road to the plantation as a warning to the enslaved, this is what happens when you believe that you can be free.

When you’re looking at the ways that [slave owners are] talking about slavery, they know that it’s wrong, but they’re doing it anyway. There’s the fear of retribution, that, “when they get free, they’re going to do to us what we have done to them. That is why we have to keep them unarmed and subjugated, because they are inherently dangerous criminal people.” MURRAY: There are two main contributions to the book. One is surfacing this lost history of the Second Amendment, this other origin story that has really been hiding in plain sight and hasn’t been talked about as part of the Second Amendment. The second contribution, though, is the way in which the relationship between African-Americans and guns and violence has actually been shaped by the Second Amendment and constitutional history.

You begin the book with a discussion of the police murders of Philando Castile and Alton Sterling. These are both men who are shot and killed when they are in lawful possession of firearms. They are exercising their Second Amendment rights, and yet they are killed because they are seen to be threatening. Can you say more about that? ANDERSON: It was the killing of Philando Castile that was the genesis for me for this book, because here you have a Black man who was pulled over by the police. The officer asked to see his ID, and Philando Castile, following NRA guidelines, alerts the officer that he has a license to carry weapon with him. But when he is now reaching for his ID as the officer has asked, the officer begins shooting Philando Castile. He wasn’t threatening the officer, he wasn’t brandishing

the gun, he hadn’t pulled it out, pointing it at anybody. He simply had a license to carry weapon and he was gunned down. And you got silence from the NRA, virtual silence. It was only when Black members of the NRA began pushing for the NRA to make a statement that they did.

What they said was, “Well, we believe everybody has the right to bear arms, but we have to wait for the investigation.” Journalists and pundits were saying, “Don’t Black people have Second Amendment rights?” And I went, “Lord, that’s a great question. Let me go find out.” That’s what had me hunting back into the 17th century and taking us all the way through to see about the right to bear arms, the right to a well-regulated militia and the right to self-defense. MURRAY: Can you say more about Black militias and how their service translates or doesn’t translate into a bid for citizenship and to be recognized as citizens later in the history of the country? ANDERSON: You have in New Orleans

“George Washington was absolutely beside himself that the militia was unreliable during the War for Independence. Sometimes they fight, sometimes they take off running. What the militia was really good at was putting down slave revolts.”

—CAROL ANDERSON

this Black militia, and they had been there since the early 1700s, and under French rule and Spanish rule. When the U.S. moved in, you had whites in New Orleans demanding that the governor disarm and disband this Black militia.

He figures out that this Black militia is the best trained, the best organized and the most efficient fighting force that they have. The white militias, they’ve got lousy officers, they’re too spread apart to handle all of the challenges that are happening in the territory. He tries to square the circle with whites who are demanding the disbanding of this Black militia with the security needs of the area. So he removes the Black officer class of this militia and installs white officers on top of them, thinking that that would appease whites. And they were like, “No, we want them gone.”

Then, there was that massive slave revolt in 1811. And the Governor Claiborne was like, “Oh my God, we need help.” He calls on this Black militia to help put down the slave revolt, and then notes how effective and efficient they were in doing so. They got no love for that effort. Then comes the War of 1812.

Andrew Jackson is looking at that armada that is coming from the British to invade New Orleans and get ahold of the Mississippi, because if you can control the Mississippi, you’ve got an incredible gateway to control America.

Andrew Jackson looks around and he sees that that Black militia is an incredibly organized, well-run fighting force. And he’s like, “I want them, I want them. And I will treat them equal to white men in the army. I will pay them equally.” Those Black men fought something fierce. And he notes, “I heard you were good, but I didn’t realize how good. Wow.” But after the victory, after the war, he sends them off to the swamps as a labor battalion to do the work that white men did not want to do.

What happens after the War of 1812, what happens after the Civil War, what happens after the First World War is that you get Black men fighting for the United States of

America and believing that they will come back to be able to fully experience democracy. Instead, what they experience is fear of Black men who have learned how to use weapons, Black men who have learned how to take up defensive positions, Black men who have soldiering skills. MURRAY: I think you may actually have a very receptive audience for this book among the Supreme Court of the United States, and in particular, one member of the court, Justice Clarence Thomas. In a 2010 case, McDonald v. City of Chicago, he wrote a really interesting concurrence that picks up on some of the themes that you’ve mentioned in the book.

One of the points he makes here is if those African-Americans had been permitted by the states to bear arms as what’s their right as citizens under the Second Amendment, they would have been able to stand up to these marauding mobs of white men. So he very much is making a connection between the Second Amendment and racism, but it is to turn the argument about gun control, to say

that gun control is actually bad for AfricanAmericans. Where does your book come in on this debate among progressives and gun rights enthusiasts about how gun control affects these different communities, and in particular, the African American community that really has been besieged by gun violence? ANDERSON: Where my book comes down is that this isn’t a pro-gun or anti-gun book. This is a book about Black people’s rights, and seeing those rights consistently undermined because of the anti-blackness coursing through this nation that sees Black people as a threat. It doesn’t matter whether

“This isn’t a pro-gun or anti-gun book. This is about Black people’s rights, and seeing those rights consistently undermined because of the antiblackness coursing through this nation that sees Black people as a threat.”

—CAROL ANDERSON

we’re armed or whether we’re unarmed.

Over 80 percent of Black people are killed by Black people, but over 80 percent of whites are killed by white people. But we don’t have the narrative of pathology about whites killing whites at that rate, because so much is focused on the anti-blackness and the inherent criminality of Black people.

Anti-blackness is short-circuiting our ability to have real, actual gun safety laws. So what you hear from people like Lauren Boebert is that if you take away our guns, we will be left defenseless against the gangs, against the drug dealers and against the thugs. And as we know, those are pejorative synonyms for African Americans.

That yelling about defenselessness is the same language that we heard in 1788 from Patrick Henry and George Mason, “we will be left defenseless.” And that’s why we have to really deal with this history.

Toward the end of the book, I’m dealing with Stand Your Ground, the right to open carry and open carry states, and the Castle Doctrine. What we’re seeing in those is disproportionate fear of Black people in these laws that are supposed to be the hallowed ground of the Second Amendment.

What Stand Your Ground does is expands the concept of the Castle Doctrine. The Castle Doctrine says that if you’re in your home and somebody comes in that’s an intruder, you have the right to defend yourself, you have the right to ward them off. Stand Your Ground expands that to, you don’t have to be in your house. Anywhere where you have a right to be and where you perceive a threat, you have the right to stand your ground. Well, that perception of threat, because Black is the default threat in American society, puts Black folks in the crosshairs.

For white people who kill Black people under a Stand Your Ground law, they are 10 times more likely to walk with justifiable homicide than Black people who kill white people under stand your ground—10 times more likely. For white people who kill Black people, they are 281 percent more likely to walk under justifiable homicide than white people who kill white people. When Black people are the victims of this violence, it becomes acceptable in the judicial system because Black is the threat.

I also look at it in terms of juxtaposing Kyle Rittenhouse to Tamir Rice. Kyle Rittenhouse is the 17-year-old white teenager who crosses state lines with an illegally obtained AR-15 to go to a protest in Kenosha, Wisconsin, so he can defend the property against BLM. The police welcome him. They’re like, “Oh, we really appreciate you guys being here. It’s hot out here, you want some water?” So they don’t see the 17-year-old with an AR-15 as a threat, as dangerous. He goes and he shoots down three men, killing two of them, seriously wounding a third. He walks back to [the police] with his hands up as if to surrender to the police, and the police go right by him. They don’t see him as a threat.

Tamir Rice, who was the 12-year-old Black child in Cleveland, in an open carry state, who’s playing in the park by himself. And the law says, as long as you’re not pointing a gun at someone, you can open carry. Granted, it was a toy gun, but it didn’t have the orange tip on it, but he wasn’t threatening anyone. The police came and within two seconds, they gunned him down, saying he was dangerous, he was a threat. Kyle Rittenhouse is one of the boys. Tamir Rice is a threat and he is killed within two seconds. MURRAY: What happened in California to basically thwart the Black Panther’s efforts to keep Black people armed and protected? ANDERSON: The Panthers really arose in response to the police brutality raining down on that Black community. They had a framework of policing the police. California had open carry laws. They knew how to open carry, they knew what kinds of guns they had to have, and they knew that they had to be licensed and they knew the distance that they had to maintain from the police as the police were making an arrest.

Well, the police did not like having these Panthers watching them, observing them and basically monitoring them, policing the police. So the police would stop the Panthers, but they couldn’t arrest them on anything because they were following the law.

The police ran to Don Mulford, who was a California assemblyman, and said, “You got to help us here. The Panthers are dangerous, they are dangerous, they are a threat, they are a serious challenge to our being.” And Mulford is like, “I got this.” So with the help of the NRA, they drafted legislation to make the methods that the Panthers were using to police the police, that open carry, to make it illegal, to make the Panthers illegal.

And you had Governor Ronald Reagan, who was eager to sign this legislation, because he had been hearing about these Panthers as well, and that they were a threat, that they were dangerous.

Not only did you have this confluence of

conservative NRA, assemblymen and Ronald Reagan working on gun control when Black people are carrying arms, but you also had no movement in terms of getting at the root cause, which was the police brutality that had driven the Panthers to come into being. AUDIENCE QUESTION: What role have gun rights organizations played in these disparate approaches to gun control that impact individuals on the basis of race? ANDERSON: One of the major gun rights organizations is the NRA. The NRA began in 1871, founded by Union soldiers as a marksmanship club. They were absolutely distraught at the lack of marksmanship that they saw in the Civil War. So they spent a lot of time teaching folks how to shoot. That

was the role of the NRA. You started seeing greater politicization happening in the 1960s, particularly when it came to gun control laws. They were there helping to draft legislation.

Then there was the coup in 1977 at the NRA convention in Cincinnati, where the kind of politicized, virulent right wing took over and said, “enough of this being nambypamby about politicization, we’ve got to go full bore into politics.” In that coup, this is where you then see the NRA really going after politicians who are about gun control. MURRAY: The Supreme Court will take up an important case next term, New York State Rifle & Pistol Association Inc. v. Corlett. That will be another case that really, I think, seeks to expand the scope of gun rights in common use. Are you worried about backsliding? Because I imagine there must be a world in which the expansion of gun rights could be met as enhancing the rights of all citizens or enhancing the rights of some citizens over others. ANDERSON: Right. What I see is the enhancing of some rights over others, again, because we have not dealt with the anti-blackness in American society and we have not dealt with defining Black people as inherently dangerous, as inherently criminal, as inherently a threat. So this expansion of gun rights will heighten the precarity of Black life. MURRAY: How do we have those conversations, though, where we can actually be honest about excavating our origins if there aren’t people who are ready to hear it? ANDERSON: One of the long battles in American society has been about our history. It is the way that the Civil War morphed from a war about slavery to a war about states’ rights, about economics without understanding the economics of slavery. It was the role of the United Daughters of the Confederacy that transformed our textbooks

so that the role of slavery just basically got elided over in terms of the Civil War.

Our history matters. And this is the backlash that we’re seeing, because we know that history matters, we know that the narrative stories that we tell are powerful in shaping the way that we understand the world and the way that we analyze it. MURRAY: As you say, in the Cruikshank decision, the Supreme Court basically says that the 14th Amendment only applies to state action, insulating private acts of racial violence from any kind of recourse. But over the last 50 years, there has been an emerging interest in originalist interpretation of constitutional texts. So the idea here is that judges should read and interpret the Constitution with an eye toward how its terms would have been understood and experienced at the time of drafting and ratification.

Because it is rooted in how things would have been understood in the past, perhaps originalism is less attentive to questions of race and racial discrimination that exists in our modern day period, but you are actually offering an originalist take on the Constitution and the Second Amendment, one that makes race and slavery central to the founding and to the Constitution itself. With that in mind, how should lawyers and judges deploy this new understanding of the Second Amendment of the Constitution itself in their efforts to interpret constitutional text? ANDERSON: The originalist slant really seems to me to be a way to try to undermine the role of racism and race in the United States. By doing what I’ve done, which is to go back and look at the ways that James Madison was drafting the Constitution and drafting the Bill of Rights and the pressures that were on him, then you’re having a very different discussion about the Second Amendment. And you’re seeing that it is steeped in anti-blackness, having there in the middle of the Bill of Rights the right to control and contain Black people’s rights, the right to deny Black people their rights. Wow.

I think that what we need to do is to remove the Second Amendment from this hallowed ground that it currently has that has been propped up by the NRA and to treat it the way we treat the Three-Fifths Clause, recognizing that this is a function of slavery, it is a function of the denial of Black humanity and a denial of Black people’s rights, and really reconceptualizing in this nation what real safety and security looks like and also what real citizenship looks like. AUDIENCE QUESTION: When you teach history to your wide-eyed students down there in Atlanta, what surprises them the most about the history that you discuss and discover together? ANDERSON: I had a student who had asked the question, “Well, why haven’t African-Americans after the Civil Rights Movement made more progress?” I said, “That’s a great question. Go to the archives.”

In our archives, there’s a collection called the Neighborhood Network Association. What they did was they tracked Klan members in Georgia’s government and in Georgia’s judiciary in the ’70s and ’80s. When you begin to track those Klan members with the legislation that they’re blocking and with the judicial decisions that they’re making, things become very clear about the roadblocks to progress. I could have said whomp-whomp-whomp, and sounded like a Charlie Brown adult, but there was something about my student finding that information on his own that now it’s enlightening for him. It’s like, “I get it. I get it.”

“We have not dealt with defining Black people as inherently dangerous, as inherently criminal, as inherentlly a threat. So this expansion of gun rights will heighten the precarity of Black life.”

—CAROL ANDERSON