Jurisprudence

“The Second Amendment Is Not Intended for Black People”

Tracing the racist history of gun governance.

A man's camo vest, stuffed with weapons and ammunition, reads the text of the Second Amendment.
Black gun owners take part in a rally in support of the Second Amendment in Oklahoma City, Oklahoma, on June 20, 2020. Reuters/Lawrence Bryant

On a recent episode of Slate’s legal podcast Amicus, host Dahlia Lithwick spoke with historian Carol Anderson, professor and chair of African American studies at Emory University, about her new book, The Second. Anderson’s work explores how the Constitution’s Second Amendment was not only crafted to suppress Black Americans, but was continually enforced throughout the centuries in a racist manner, leading to everything from the terrorizing of Reconstruction-era Black Americans to the police killings of even legally armed Black people today. A portion of the conversation, which has been edited and condensed for clarity, has been transcribed below.

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Dahlia Lithwick: I wonder if you could start by talking about what led you to this exploration of the connection between slavery, the founding, and guns.

Carol Anderson: It began in 2016 with the killing of Philando Castile. In Minnesota, you have a Black man who was pulled over by the police. The officer asked to see his ID. Castile, following NRA guidelines, alerts the officer that he has a license to carry a weapon with him but he says he’s reaching for his ID. The police officer begins shooting and kills Philando Castile. We see the film of it. It is horrific.

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We have a Black man killed simply for having a gun—not for brandishing it, not for threatening anyone, simply for having a license to carry a gun. The National Rifle Association, that protector of the Second Amendment, goes virtually silent. And I thought, how is the NRA silent on this, particularly when it was calling federal law enforcement jackbooted government thugs at Ruby Ridge and at Waco? On this, they’re like virtually silent. Journalists began asking, “Well, don’t African Americans have Second Amendment rights?” And I thought to myself, that’s a great question, and that’s what led me on to this hunt.

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In the epilogue to your book, you put in Trevor Noah’s quote from when he looks at a whole host of incidents in which police officers talk down a white man with a gun: They persuade him to disarm and they arrest him. Noah makes the argument that “the Second Amendment is not intended for Black people.” I think the argument is saying that the Second Amendment is in fact working exactly the way it was intended to work with respect to Black folks, and that is as a tool of persistence, subordination, and destruction. I just want to be super clear that you’re not saying the Second Amendment is broken, that it was conceived to do a thing that it doesn’t do. You’re saying the Second Amendment does precisely the thing it was crafted to do.

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Exactly. You nailed it.

Going right back to the Colonial era, how much were guns and gun ownership really at the heart of the plantation owners who were attempting to keep control over situations in which they were simply outnumbered?

Guns were central to that, as the militia was central to that. There was this massive fear of slave uprisings and revolts, of Black people fighting for their freedom and willing to do whatever it took to be free. With each rumored uprising, you see the rise of a legal infrastructure in terms of laws banning the enslaved from gun possession, as well as the rise of slave patrols and the militia in order to curtail and control Black people.

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The slave patrol was a smaller unit that did the kind of regular routine, going through the slave cabins, looking for contraband, looking for weapons, looking for books, looking for anything that sparked of somebody believing they could be free. The militia was there to backstop the slave patrols so that, if the uprising was too large, more than the slave patrol could handle, the militia could come in.

The numbers that you lay out show that 50 percent of all wealth holders in the 13 Colonies in 1774 owned guns. That number soared if you were looking just at the South: 81 percent of slave-owning states had firearms, and plantations with the largest numbers of enslaved people were 4.3 times more likely to have guns than those with few or no slaves. At the point of the birth of the Second Amendment, already it was absolutely clear that guns were in some sense as essential to continuing slaveholding way of life as were the crops themselves. Guns were just that braided into it.

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Absolutely braided into it. You see it, for instance, in the 1739 Stono Rebellion in South Carolina. In Stono, you had a group of Black men who were laborers building a road day after day after day, and they began figuring out what the routine and rotation of the guards were. They began figuring out where the weapons were kept. On a Sunday, they struck and killed two of the guards who were manning the arms, and they took those and began this quest toward Spanish Florida, because Florida had no slavery, and they wanted to be free.

They demonstrated that they were willing to kill or be killed in the process of getting free. On that Sunday morning, Stono’s white folks were in church and the alarm bell rang. They grabbed their guns as part of their work as the militia and went after these rebellious folk, hunting them down to kill them, to make an example of them. White men having guns was the expectation by law. Black folks being banned from having access to guns was the expectation by law.

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After Stono, you have the 1740 Negro Act. That Negro Act defined the African-descended people as slaves, absolute slaves, for those here and those not yet born. It defined what they could do and what they could not do. They could not be literate. They could not have access to guns, and they could not walk about freely. They had to be subjugated, controlled by whites.

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I want to talk for a minute about what you describe as a three-part move for subjugating slaves from Colonial time on into the framing of the Second Amendment and the way we talk about Second Amendment rights. You’ve talked a about the militias denying the enslaved the right to have arms and then of the right of self-defense. And that, I think, is what you would say filters into the way we still frame these questions today.

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Absolutely. One of the things I’m tracking historically is how this plays out over time and whether the legal status of black people changes that dynamic. As we move from enslaved to denizen—which was that in-between space between a slave and citizen—to emancipated and freed people to Jim Crow to post–civil rights African Americans, does that change? The answer is no. You don’t see any significant change in the ways that access to weapons, and the surveilling, and the right to self-defense, plays out for Black people in the United States. It was Virginia that actually developed that three-pronged mechanism of control, and we see how well that has worked over time. When I looked at the individual right to bear arms, when I looked at the right to a well-regulated militia, and when I looked at the right to self-defense all over time, I’m seeing that those do not apply to Black Americans—in fact, each of those have been used against African Americans because it is the quality of anti-Blackness, to define African Americans as a threat, as dangerous, as criminal, as people who need to be subjugated and controlled.

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Even if you are unarmed, you’re still a threat. How many times have we in this current day heard of a Black person being gunned down simply because they had a cellphone and somebody felt threatened because they thought it was a gun? Or seeing a Black person like Jonathan Ferrell in North Carolina, who had been in a car accident and was happy to see the police because he thought help was on the way, and the police gunned him down? They said, We were afraid. He was dangerous. He was threatening. We see that somebody like Philando Castile—who has a licensed gun—is a threat and he’s gunned down. It doesn’t matter whether you have a gun or you don’t. Your Blackness is the threat, and it is the default threat in this society. This is also why “stand your ground” laws have such a strong racial bias, because it says wherever you have a right to be. So if I’m at the grocery store, if I’m in a parking lot, if I’m in a park, and I perceive a threat, I have the right to use lethal force. Well, when Black is the default threat in American society, that perception of threat puts the crosshairs on Black people. When you look at the U.S. Civil Rights Commission Report on “stand your ground,” we see that for white people who kill Black people using “stand your ground,” they are 10 times more likely to walk with justifiable homicide than are Black people who kill white people. We also see that white people who kill Black people under “stand your ground” are 281 percent more likely to walk than white people who kill white people. Because when Black Americans are the victims in these killings, it becomes much more justifiable because of the default threat.

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There was this essential moment at the Constitutional Convention: You’ve got 25 of the 55 delegates who are slave owners, including George Washington, and the Second Amendment is a grand bargain. It was not in and of itself this lodestar of freedom. It was a deal. I wonder if you can walk us through what that deal was and why the question of what they were going to do about slavery baked into the very framing of the Second Amendment?

At the Ratification Convention in Virginia, the Constitution has been drafted, ratification is happening, and then it stalls. Virginia is one of the big holdouts. James Madison runs down back home to Virginia to try to push this thing through. He runs up against Patrick Henry and George Mason, who are apoplectic because Madison has put control of the militia in the federal Constitution, under federal control. They’re like, You know the North detests slavery. If we have a slave revolt, how can we count on them to get the militia to come down here and protect us, to put the slave revolt down? We will be left defenseless. Madison is quaking in his boots because his arguments aren’t working. He’s already like, Look, slavery is protected. You already got the three-fifths clause. You already got 20 extra years on the Atlantic Slave Trade. You already got the Fugitive Slave Clause. But what they wanted was a bill of rights that would protect them. And they said, If we don’t get it, we’re going to push for a new Constitutional Convention. What Madison was afraid of was that this would hurl the U.S. back to the unworkable Articles of Confederation. He runs to that first Congress, and he was obsessed with drafting these amendments.

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When you think about it, in these amendments, you get freedom of the press, freedom of speech, the right not to be illegally searched and seized, the right to a speedy and fair trial, the right not to have cruel and unusual punishment—and then you have the right to a well-regulated militia for the security of the state? This thing is such an outlier in this Bill of Rights. And this outlier is because this is the bribe to Patrick Henry, to George Mason, to the Southern slaveholders: This is how you contain federal control, by making sure that the states have control of the militia and so they will not be left vulnerable to “the abolitionist whims,” as Patrick Henry saw it, of those in Pennsylvania or Massachusetts. Now the control of the militia will be in the hands of the enslavers.

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I think one of the things you’re saying is that the more widespread white people’s ability to arm oneself to the teeth became, the more unarmed Black people who cannot have arms were put in these untenable lose-lose situations.

Absolutely, you see the asymmetry in access to firepower. There was an 1841 riot in Cincinnati, where white people were coming to basically burn down and kill the Black community. They were moving toward the neighborhood, but Black folks had guns and they shot back. The rioters were just like, “What just happened here? They have the audacity to shoot at us simply because we were trying to kill them?”

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They came back with a cannon, the vintage mass murder machine. Then the police finally move in, but what they is they disarm the Black community, thinking that disarming Black folks will calm white folks down, that the rioters will now be pleased that Black people don’t have their guns. Instead, the slaughter happened, because it was so clear that the police were on white people’s side, and that there would be no consequences for their killings of Black people.

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We see that asymmetry again happening after the Civil War: in Colfax, Louisiana, where there is an election and white supremacists because Republicans won. These Democrats—who are the white supremacist party at the time—then were going to attack the seat of democracy in Colfax, Louisiana, and oust those who won the election. The Black militia was called upon to protect this bastion of democracy, but they were outgunned. They didn’t have enough ammunition, and they were overwhelmed by the number of white fighters. It was a slaughter. About a hundred Black people were killed, many of them after they had surrendered, because white attackers had set the courthouse on fire where the Black militia had taken up to protect themselves.

This case goes all the way up to the Supreme Court as a look at the constitutionality of the Third Enforcement Act, which was the act to deal with the domestic terrorism of the Ku Klux Klan. The court ruled that that piece of legislation only applied to state action, not to private action. Basically, the slaughter—that domestic terrorism by these private groups—was fine. And then we had the Hamburg massacre shortly thereafter, which again showed the disparity, the asymmetry, in access to weaponry. President Ulysses S. Grant was beside himself. He said, “What these states all have in common is not Christianity, is not civilization. It is the right to kill Negroes.” I remembered thinking, “Wow!”

To hear their entire discussion, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.

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