The ACLU fired shots on Twitter last month, claiming that the Second Amendment is “racist” alongside an article and podcast episode that posed the question “Do Black People Have the Right to Bear Arms?”
Racism is foundational to the Second Amendment and its inclusion in the Bill of Rights.— ACLU (@ACLU) July 25, 2021
Learn more from experts Carol Anderson and Charles Howard Candler on this episode of the At Liberty podcast.https://t.co/9AjGALT1GH
The article, written by Ines Santos, claimed that gun violence in America — which she labeled an “epidemic” caused by widespread “vigilante” firearm ownership — negatively impacts black people because of racially discriminatory policing. “What is absent in the intense debates on gun rights in America is the intrinsic anti-blackness of the unequal enforcement of gun laws,” she wrote.
Santos went on to say that racism determined the Second Amendment's inclusion in the Bill of Rights.
These are hefty charges worth examining. Let’s break down the claims made here and review the history.
Claim: "What is absent in the intense debates on gun rights in America is the intrinsic anti-blackness of the unequal enforcement of gun laws.”
The Second Amendment has indeed been selectively upheld throughout our nation’s history, with gun control frequently being used to block black Americans from accessing their right to self-defense. Additionally, enforcement of gun control laws has been discriminatory, and the rhetoric around guns has often framed black people as a threat.
But to leave the narrative there ignores a rich history of black people using guns to free themselves from oppression. Let’s review.
Before the Civil War ended, black people were prohibited from owning guns under the “Slave Codes” and “Black Codes.” For example, under the 1806 Louisiana Black Code, Chapter 33, Section 19 statute, slaves were banned from using firearms or any other “offensive weapons.”
Under the 1819 Acts of South Carolina, slaves without the company of white people or a slave master’s written permission were prohibited from using or carrying firearms “unless they were hunting or guarding the master’s plantation.”
These laws were put into place to hinder black people from using arms to rise up and break the shackles of slavery. But throughout the history of American chattel slavery, black heroes did use guns to free themselves and others. The most notable example of this was Harriet Tubman, who carried a pistol on her missions to free slaves as well as a sharp-shooting rifle during the Civil War. Mary Fields (better known as Stagecoach Mary) was a former slave and one of the first two black women to serve as a "star route" mail carrier. She famously used two guns to defend herself and the mail from thieves along her route.
The Freedmen’s Bureau Bill of 1865, the Civil Rights Act of 1866, the Civil Rights Act of 1870, and the Fourteenth Amendment — ratified in 1868 — knocked down the overtly racist Slave Codes and should have made the Second Amendment applicable to all citizens. However, in the 1870s, racists in power turned to the use of “facially neutral laws” to continue blocking black people from gun ownership. These laws did not explicitly state that black people were the target, but the end result was the same.
How did they achieve this? They used things like police-issued licenses, permit laws, and business and transaction taxes on guns that disproportionately affected black people, thus successfully disarming them. One of the first major examples of these laws was the 1870 Tennessee "An Act to Preserve the Peace and Prevent Homicide,” which banned the sale of all handguns except the expensive "Army and Navy model handgun" which was more affordable to white people.
In the early 1900s, racially charged acts of mass atrocity such as the Tulsa Race Massacre and the Atlanta Massacre caused leaders in the black community to organize for self-defense, continuing the rich and powerful history of black people arming themselves to rise up against their oppressors.
In subsequent decades, as cracks began to show and eventually break Jim Crow in the South, the armed resistance of black Americans grew more organized.
The Deacons for Defense and Justice were formed in 1965 to fight against white supremacist terrorism in Louisiana and Mississippi with .38 special revolvers. When Rev. Dr. Martin Luther King Jr. led the “Meredith March Against Fear” for black voter registration in Mississippi, they provided the security. Their presence in the deep South also deterred the Ku Klux Klan from attacking the black community in many instances.
This exercise of the black community’s Second Amendment rights led to and helped ensure the success of the Civil Rights movement in the 1960s.
But the history doesn’t stop there. In response to racially discriminatory policing in California, the Black Panthers began armed patrolling in black neighborhoods to “copwatch” in the late 1960s. In 1967, the Mulford Act, named after Republican Assemblyman Don Mulford, was signed into law by then-Governor Ronald Reagan to stop the Panthers from armed protesting. The bill was supported by both parties in the state House, as well as the NRA, according to History.com. The policy effectively banned open carry in California, and it stemmed directly from the Black Panthers embracing their Second Amendment rights.
By no means was this the end of discriminatory gun control laws or enforcement in our country.
To date, black Americans are more likely than any other group to suffer the adverse impacts of gun control laws. Urban cities with concentrated black populations have the strictest gun laws, and black people are more likely to be convicted of and subjected to a firearms offense carrying a mandatory minimum. In addition, stop-and-frisk, infamous for its role in the police harassment of black Americans, was employed to enforce gun control measures.
To conclude, the ACLU is correct in its allegations that gun control has at times been racially written and enforced. But abundant historical evidence shows that Second Amendment rights, when firmly asserted, have been crucial to black Americans in their fight against oppression and white supremacy.
Claim: "Racism determined the Second Amendment's inclusion in the Bill of Rights."
It is clear that gun control has been used in systemically racist ways, and that gun rights have often only been upheld for some groups of people. But does that mean the Second Amendment is inherently racist?
Good principles have often been defended for the wrong reasons in our society. Many accuse the left of defending the right to free movement out of a desire to increase their voting base, for one example. If true, does that mean the principle of free movement is wrong? Certainly not. Such is the case with the Second Amendment. The principle is good, even if the arguments in its favor have not always been without ulterior motives.
It is correct that our Founders did not craft the Bill of Rights for all people, notably excluding women and ethnic minorities from its legal protections of our natural rights. Various groups of people, including black people, Native Americans, and even white populations like the Irish, have all been subjected to violations of their rights at times throughout our history due to this hypocrisy.
But to allege that the right to self-defense, or the right to fight back against oppression—which are the natural rights the Second Amendment is meant to restrain government from infringing upon—are inherently racist is detached from history and reality.
In fact, it is the removal of this right that has led to systemic oppression. As discussed, the implementation of gun control targeted and negatively impacted black communities throughout our past, preventing them from rising up to defend their other natural rights.
It is when we have seen the black community organize and peacefully take up arms in self-defense that we have seen the greatest increase in civil rights. The Second Amendment is a weapon against oppression, not a tool of it.
Freedom Is Indivisible
Historically, the ACLU has been one of the most important and consistent champions of free speech in our country, although that support has unfortunately waned in recent years.
For their prior work, they deserve praise. Were it not for their advocacy, specifically in the courts, it is likely we would have seen a much greater erosion of free speech over the past several decades.
But while they have been a tremendous champion of one civil liberty, they have simultaneously failed to recognize and uphold another that ensures its survival. In practice, freedom of speech and the freedom to bear arms are just different facets of the same human freedom.
The economist Ludwig von Mises once said, “Freedom is indivisible. As soon as one starts to restrict it, one enters upon a decline on which it is difficult to stop.”
Without the freedom to bear arms, individuals are helpless against government infringements on their freedom of speech or any other facet of their freedoms. Liberties quickly erode when the people have no means by which to defend them.
This is why we’ve seen the government work so hard to block those they view as a threat from fully accessing their fundamental rights. And it’s why we’ve seen such tremendous gains for civil rights when oppressed communities have finally accessed it.