The Second: Race and Guns in a Fatally Unequal America

by Carol Anderson

Just as the continuation of the Atlantic slave trade for an additional twenty years, the three-fifths clause, and the fugitive slave clause were embedded in the Constitution to purchase the South’s participation in the United States of America, the Second Amendment was also a bribe.

The Second was designed and implemented to abrogate and deny the rights of Black people.

As the U.S. Commission on Civil Rights reported in its study of the racial implications of the law, the criminal justice system is “ten times more likely” to rule a homicide justifiable “if the shooter is white and the victim black” than if an African American kills someone white and claims self-defense.

the Second has consistently meant this: The second a Black person exercises that right, the second they pick up a gun to protect themselves (or not), their life—as surely as Philando Castile’s, as surely as Alton Sterling’s, as surely as twelve-year-old Tamir Rice’s—could be snatched away in that same fatal second.

The Second Amendment is so inherently, structurally flawed, so based on Black exclusion and debasement, that, unlike the other amendments, it can never be a pathway to civil and human rights for 47.5 million African Americans.

whites, particularly on plantations, were stacking up the arms. Scholars who pored over the probate records revealed that “50% of all wealthholders in the Thirteen Colonies in 1774 owned guns.” That percentage soared to 69 percent when isolated to the South. North Carolina (77 percent), South Carolina (70 percent), Virginia (68 percent), and Maryland (62 percent) were all well above the average for the thirteen colonies. Indeed, 81 percent of slave-owning estates had firearms, and plantations with the largest number of enslaved people were 4.3 times more likely to have guns than those with few or no slaves.

The asymmetry in aims allowed the dream of the United States of America to be held hostage to the tyranny of slave owners. If South Carolina and Georgia, in particular, did not get nationwide protection for slavery, did not get to have inordinate power in the halls of government, and did not get to enrich their wealth on the backs of the Atlantic slave trade, they “threatened to bolt.”97 Repeatedly, during the deliberations they made clear that human bondage was their price for signing onto the Constitution.98 If Americans wanted a United States, it was going to cost Black people dearly.

The Second Amendment was, thus, not some hallowed ground but rather a bribe, paid again with Black bodies. It was the result of Madison’s determination to salve Patrick Henry’s obsession about Virginia’s vulnerability to slave revolts, seduce enough anti-Federalists to get the Constitution ratified, and stifle the demonstrated willingness of the South to scuttle the United States if slavery were not protected.

What the militia could do rather well, however, as George Mason noted, was keep slave owners safe.

The governor of the Mississippi territory fearfully imagined the powder keg that was bound to explode in America’s slaveholding democracy: “That we deprive them of the sacred Boon of Liberty is a Crime they can never forgive.”4 The fear of retribution for slavery and the flat-out denial of citizenship only strengthened the anti-Blackness of the Second Amendment and shaped whether Blacks, even free Blacks, had the right to bear arms, the right to a well-regulated militia, or even the basic right to self-defense.

Congress, thus, followed up its work on the Bill of Rights with a heated debate about the ongoing existence of slavery and by passing two new, important laws. First, there was a petition crafted by Pennsylvania Quakers, signed by the revered but dying Benjamin Franklin, and introduced by the Speaker of the House “calling for a national commitment” to end slavery. It landed like a stick of dynamite among the solons. Some legislators tried to just snuff out the flame, hoping that no one would see the “explosive” issue of slavery smoldering in a House of Representatives built on the three-fifths clause.

James Jackson of Georgia and William Loughton Smith of South Carolina launched into a four-hour filibuster, before the term was even used, to “harangue,” threaten, and berate the other congressional representatives about “these cursed negro petitions.” Jackson’s ire was particularly focused on the Quakers who threw that antislavery bomb into the House of Representatives, and he swore that anyone who tried to emancipate the South’s slaves would soon find themselves “in danger.” Mortal danger.6

Madison stripped the committee’s language down and whittled it away until it was unequivocal: “Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States.”8

They could not agree on much except that “African Americans were not considered qualified for citizenship or for other rights.”11 Congress erected a racial threshold that would not be substantively crossed until 1952, when the legislators finally “eliminated race as a basis for naturalization.”

In 1806, the Virginia Supreme Court of Appeals ruled, “In the case of a person visibly appearing to be a negro, the presumption is that he is a slave.” The burden of proof was on them to prove otherwise.19

That Blacks could actually be “free,” therefore, sent a strong, unwanted signal to those entrapped in human bondage. George Washington was greatly concerned, as he brought his enslaved entourage to his presidential residence in Philadelphia, a city where free Blacks were nearly five times more prevalent than those “still tethered to the institution of slavery.” He worried that “the idea of freedom might be too great a temptation for them to resist.” His wife, Martha Washington, was even more determined to “shield … her slaves from the contagion of liberty.”28

States thus legislated even greater controls on who could have a gun and under what circumstances. The enslaved were already banned from possession, but legislatures were determined to be even more explicit. It wasn’t just gun ownership but the “sale or delivery of firearms to slaves [that] was forbidden in Florida, Georgia, Louisiana, and North Carolina.”116 South Carolina and Louisiana added that no slave could even use a firearm unless it was with the expressed permission of whites “to hunt within the boundaries of the owner’s plantation.”117

Free Blacks’ access to guns was another problem altogether. In 1806, Virginia required them to have a license to carry firearms.118 In Louisiana, one of the key targets was the free Black militia that had thrived under Spanish and then French rule. After the territory was purchased by the United States, whites demanded that all free Blacks be disarmed. In 1804, the new municipal council in New Orleans “began a campaign to exclude free blacks from any position in which they were required to bear arms.” Not only was the Black militia targeted, but so were “the old black slave-catching crews,” which the council now wanted replaced with a “white constabulary.”119

Louisiana was ratcheting up the restrictions because it was smuggling in and importing enslaved African-descended people as fast as the burgeoning sugar and cotton plantations could chew them up. As historian Daniel Rasmussen notes, “Nowhere in America was slavery as exploitative, or were profits as high, as in the cane fields of Louisiana. Slaves worked longer hours, faced more brutal punishments, and lived shorter lives than any other slave society in North America.”129 Those conditions fed into the brutality of iron collars, facemasks, cowhide whips, and even a Black child held as a pet to fetch food off the master’s floor.130 Louisiana proudly epitomized “the horrors of an archaic labor system with the rapacious efficiencies of capitalism.”131 Not surprisingly, it was also the site of the largest slave rebellion in North America.

Legend has it that the child whom the slaver had kept as a dog also swung the ax “exacting final vengeance.”134

From the Louisiana Territory’s very inception as an American domain, Thomas Jefferson was adamant that only “white inhabitants would be granted citizenship ‘on the same footing with other citizens of the US.’ ”167 The subsequent state constitution was also clear that this was about white male citizenship—the right to vote and the duty to serve in the militia. Blacks, on the other hand, were trapped in that netherworld of rightlessness.

It wasn’t just about the right to a well-regulated militia. The “right to bear arms” was not a right at all. The ongoing push to further disarm Black people was relentless. Even when calling upon the Black militia to save New Orleans from Deslondes’s slave revolt, Claiborne had banned all gun and ammunition sales to people of color, including free Blacks. In Virginia by 1832, “free Negroes [were] not to carry firelocks of any kind, under penalty of thirty-nine lashes.”

A series of laws and actions thus established that Black people did not have the right to bear arms, the right to a well-regulated militia, or the right to self-defense. Gun control laws, to be clear, were everywhere in antebellum America. Indeed, “the South was the gun control center of the United States as local governments tried to lessen the violence among whites that seemed to dominate the region.”215 But the laws targeted at Black people that banned or severely limited access to weapons, carried racialized criteria and punishments. Even a court ruling that overturned a handgun ban in Georgia did not invalidate a law prohibiting Blacks from possessing any type of firearm.

The end of chattel slavery should have made the difference. Even citizenship should have made the difference. But it didn’t. Because as the years after the Civil War would make clear, “the core of white supremacy was not chattel slavery, but antiblackness.”224 And that is the foundational root of the Second Amendment.

Andrew Johnson, who ascended to the presidency after Lincoln’s assassination, was instrumental in sabotaging efforts to craft a political and legal environment in which the formerly enslaved and free Blacks could live fully. He pardoned many leaders of the Confederacy, welcomed those unrepentant rebels into their old positions in state government, and did not wince as they drafted new constitutions, such as Louisiana’s, that boldly stated, “We hold this to be a Government of white people, made and to be perpetuated for the exclusive benefit of the white race.” And perhaps even more important, the state’s new Constitution affirmed the founding principle “that people of African descent cannot be considered as citizens of the United States.”4

Politically war-torn Louisiana wasn’t about to do anything about this massacre. The U.S. Department of Justice, therefore, stepped in and charged eight terrorists with violating a federal law, the Enforcement Act, which Congress had passed specifically to stop the Klan and similar violent white supremacist organizations. This should have been easy. As the Klansman Dave Paul noted, what they did in Colfax is what gets you hung from the highest gallows. Yet when their convictions reached the U.S. Supreme Court, the justices ruled in United States v. Cruikshank (1876) that the Enforcement Act applied only to state action, not to private groups such as the Klan.

The Supreme Court’s 5–4 decision not only meant that the “Colfax murderers … walked off scot-free,” but the ruling also sent “a powerful message to white supremacists that they could slay blacks without any penalty.”

Frederick Douglass—after having escaped slavery, fought with all that he had for abolition, pushed for Black citizenship through military service, and worked with members of Congress to pass key legislation—knew that things had reached the point, after years of domestic terrorism, Northern retreat, and Supreme Court decisions, that “he could not fully trust his own country.”71 It was like being relegated to somewhere between slave and citizen. Historian Nan Elizabeth Woodruff poignantly wrote, “Black people had learned since the end of Reconstruction that what the federal government gave with one hand, it could take with another.”72

In fact, in 1906 the Supreme Court accepted the implicit suggestion that American-born whites were the only real “citizens.”79 African Americans, however, were just Black. And from “scientific studies,” movies, books, plays, music, and sensationalized newspaper accounts of crime-infested neighborhoods, inherent criminality, and uncontrolled libidos, “the cumulative impression was of a world made precarious by Negroes.”80 Whites, thus, had a near paranoid sense of being “besieged, even though no one [was] at the gates.”81

President Woodrow Wilson, an arch-segregationist, knew that trouble was brewing. “Black American soldiers were being treated as equals by the French, he worried, and ‘it has gone to their heads.’