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June 6 - June 10, 2021
While numerous books have examined the impact on Blacks of a racially compromised Bill of Rights, there is almost an eerie silence on this particular amendment, which its advocates call central to citizenship.18 That silence is not accidental. The eighteenth-century origins of the “right to bear arms” explicitly excluded Black people.
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.
Regardless of which legal interpretation of the Second Amendment is deployed—be it an individual’s right to bear arms, the right to a well-regulated militia, or even the attendant right to self-defense—each has been used against African Americans.22 The Second was designed and implemented to abrogate and deny the rights of Black people.
This has revealed a paradox. Whereas the judicial and the legislative weakening of the Bill of Rights has been instrumental in allowing the death penalty, voter suppression, and racial profiling to undermine African Americans’ citizenship rights, the Second Amendment, despite numerous massacres and thousands of gun deaths, has become only mor...
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Regardless of the court’s stance, there is no clear pathway to human rights where the Second Amendment is concerned.
In fact, the report notes, stand-your-ground laws actually worsen and increase the racial disparity outcomes of self-defense claims.
From colonial times through the twenty-first century, regardless of the laws, regardless of the court decisions, regardless of the changing political environment, 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 planters responded to this challenge by adopting a three-part strategy to break the will, or at least the ability to fight, of a people who had been snatched from their homeland and brutalized and who were overwhelmingly “hostile to those who controlled their labor.”14 In a series of moves that would scar the United States well into the twenty-first century, colonial Virginia deployed this triad of brutal control. It denied the enslaved the right to bear arms; ignored the right to self-defense for Black people; and put in place a “large-scale military machinery,” the militia, “to crack
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explicitly stated that “no negro, mulatto, or indian [sic] whatsoever” should have a gun “under penalty of a whipping not to exceed twenty-nine lashes.”19 One key point of the laws, the “Virginia governor explained to royal officials,” was to “impose a ‘perpetual Brand’ on blacks as different and inferior to whites.”
From 1671 to the early 1700s, the colony worked mightily to build, adjust, and then overhaul its slave-patrol guidelines until it had “effectively turned its white population into a community police force.”
But the Stono Rebellion, “the bloodiest example of slave resistance in colonial North America,” was the planters’ worst nightmare. Blacks, in a quest to break free, were willing and able to kill whites without remorse, without fear. More than sixty dead bodies proved that.42 The planters were, as a consequence, determined to make as grisly an example of the vanquished as possible. The enslaved “were tortured, shot, hanged, and gibbeted alive.” Then another fifty slaves “were taken by their Planters who Cutt off their heads and set them up at every Mile Post they came to.”
South Carolina’s legislative assembly knew what it had to do as it considered Laurens’s proposal. It could either swallow its “alarm” and “horror” over arming the enslaved to drive the British back into the sea, or it could refuse and risk the national independence that so many had already died for. The choice was actually quite simple. The United States could be sacrificed. The majority, in fact, questioned whether “this union was worth fighting for at all.” They were appalled and “disgusted” that Congress would even recommend something so abhorrent as arming the enslaved. “Not even imminent
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Greene complained to George Washington that “the rejection of the proposal” could be summed up in a few words: the “dread of armed blacks.”
Nothing that Blacks—free and enslaved—did could overcome the ethos of Black betrayal and treachery.
As the war ended, it was in this mythologized landscape that only whites fought for liberty. It was only whites who stood toe-to-toe with the tyranny of monarchy. It was only whites who defeated the British, and therefore, it was whites who were now ready to build a nation committed to “deriving their just powers from the consent of the governed.”
There was something else besides fear, though, that required slavery to remain like a terrifying wraith haunting the nation’s founding document: guilt. John Dickinson, a delegate from Pennsylvania who drafted the original Articles of Confederation, noted that the very omission of “ ‘the WORD’ slavery … [from the Constitution was to] conceal a principle of which we are ashamed.”
One of South Carolina’s first governors, Rawlins Lowndes, was unequivocal: “Without Negroes, this state would degenerate into one of the most contemptible in the union … Negroes were our wealth,” he said, “our only natural resource.”
This juxtaposition laid bare the dilemma. There were two divergent goals for the Constitutional Convention. The Deep South was intent on strengthening the slaveholders’ power and the institution of slavery. That is why they were there. Meanwhile, the other delegates were determined to create a viable nation. 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
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Similarly, when it came to the method for allocating congressional representatives based on a state’s population, the South, which had previously argued that the enslaved were nothing but untaxable property, now did a complete about-face. Charles Pinckney “saw no reason why black slaves ought not ‘to stand on an equality with whites’ ” when counting the number of inhabitants.
the three-fifths clause
And that was the deal. Human sacrifice. African-descended people would be offered up on the altar of slavery and anti-Blackness to appease the Southern gods. By the time the convention discussed the fugitive slave clause and the responsibility of the national government to suppress slave insurrections, euphemistically termed “domestic violence,” there wasn’t much Northern fight left. The language on the militia was “all-embracing … empowering the national legislature to ‘call forth the aid of the militia’ not only to ‘repel invasions’ but also ‘to execute the laws of the Union’ and to
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“The majority of Congress is to the north,” Henry pressed on, “and the slaves are to the south.” That very configuration spelled trouble.
Was the Civil War basically inevitable?
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.
It was obvious, whether North or South, that no militia was going to stop a foreign invasion. The war proved that beyond a reasonable doubt.127 What the militia could do rather well, however, as George Mason noted, was keep slave owners safe.
In short, James Madison, the Virginian, knew “that the militia’s prime function in his state, and throughout the South, was slave control.”
As legal scholar Michael Waldman noted, however, the “other amendments pointed forward; the Second Amendment, backward.”142 In a landmark document whose preamble begins, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty,” the Second Amendment continued to buttress slavery.
On September 25, 1789, Congress sent the amendments to the states. In less than two years, three-fourths of them had ratified the Bill of Rights, and the Second Amendment came into being on December 15, 1791, steeped in anti-Blackness, swaddled in the desire to keep African-descended people rightless and powerless, and as yet another bone tossed to keep the South mollified and willing to stay aligned with the grand experiment of the United States of America.
The determination to keep Black people subjugated by law and excluded from the array of rights that defined the revolutionary era “poisoned the entire society.”
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.
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.”
As historian Martha S. Jones noted, “No single piece of congressional legislation was felt more … than the Naturalization Act of 1790.”15 That “whites only” barricade created a rightless, race-contingent netherworld for everyone else, including free Blacks.
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 And that very burden meant that there was nothing they could do, no level of patriotism, no amount of God-fearing godliness, no depth of bravery, no proof of being born in the sweet land of liberty, and no “evidence of time-in-residence … [that] could alter their natural-born state of unfitness.”
The “publick danger” posed by free Blacks that rattled Monroe most, however, focused on something even more frightening than violence. Hope. Uncomfortably coexisting with the elegiac “we hold these truths” was America’s foundational belief that “God intended the African for the status of slavery.”27 That Blacks could actually be “free,” therefore, sent a strong, unwanted signal to those entrapped in human bondage.
Despite the Washingtons’ fears, however, the North “was no Eden.” As the number of free Blacks increased, so, too, did the laws to curtail their access to rights.
The second major law passed by Congress, therefore, was all about getting guns and control into white men’s hands.
Prior to 1790, numerous states, especially in the North, allowed free Blacks to be members of their militias.40 The Uniform Militia Act of 1792 sought to change that. This federal law required every white, able-bodied male between eighteen and forty-five to join his state’s militia. “More significantly, it required them all to buy a gun.”41 This was an act of citizenship and an act of self-defense. Whites believed that they “lived in an enemy camp.”42 The threat was always there.
Ironically, the Age of Revolution contributed greatly to the foreboding threat of being overtaken, rul...
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Before his capture, the Haitian leader Toussaint Louverture, knowing that the only way to defeat a vastly superior army was through a scorched-earth strategy, ordered his troops: Don’t forget that the only resources we have until the rainy season rids us of our enemies are destruction and fire. Know that the earth worked by our own sweat must not provide a single morsel of food to our enemies. Obstruct trails, throw cadavers and horses in all the springs; annihilate and burn everything, so that those that come to put us back in bondage always encounter here a portrayal of the hell they all
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The unthinkable had just happened. For white slaveholders in the United States, the Haitian Revolution had set a “terrifying precedent.”60 It “rendered white supremacy vulnerable and thereby surmountable.”61 Southern slave owners knew it and trembled; it was “their darkest fears realized.”
Initially, the Saint Domingue plantation owners thought that the insurgents did not have “combinaison d’idées nécessaire” to sustain a successful revolt.63 The ideas that drove the American and French Revolutions were supposed to be “FOR WHITES ONLY.”64 But the Haitian Revolution’s leaders had welded egalité, liberté, and fraternité into a mighty sword for Black liberation.65 They, in fact, exceeded the parameters of the American Revolution by making the struggle not only about civil liberties but about racial equality.66 Historians have therefore traced the resonance of those ideas through a
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In that steamy hotbed of human bondage, “the ideas of liberty, fraternity, and equality were spread to the far corners of the colony, including the slave quarters.”
This legislative ennui about musket- and rifle-toting insurgents also ignored that, from Shays’s Rebellion to the Whiskey Rebellion, white men were the ones who had taken up arms against the United States of America. And in a pattern that would repeat itself well into the twenty-first century, there were little to no consequences for that.
What patriots saw as heroic in whites, such as Patrick Henry’s clarion call “Give me liberty or give me death,” was dangerous when espoused by Blacks.
And in 1805, in “one of their first acts,” they revised the militia law to write the Black militia right out of existence. That law ensured that public firearms were no longer available to the most organized, battle-tested group in the territory. And just as with the Militia Acts of 1792, only white males, regardless of how disorganized and dysfunctional their militia, could serve in this capacity.
“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.”
Thus, while leniency, forgiveness, and pardons defined the conclusion of the Whiskey Rebellion, getting “slaughtered without a pretense of justice” was the gruesome ending to the 1811 Slave Rebellion.
As the United States gained control of Louisiana, whites stripped the Black militia of its official standing, blocked access to the cache of publicly funded weapons, and, when compelled because of a slave revolt and then a British invasion to reconstitute the best-organized and -trained militia in the area, dismantled its command structure and required white officers. The Second Amendment’s well-regulated militia simply could not countenance, include, or embrace Black men.
Fugitive Slave Act of 1850.
Moreover, the law challenged the way Northern states viewed themselves. Although Blacks had enormous difficulties in places like New York, still, freedom, even if it was a veneer, was essential to the way states above the Mason-Dixon Line defined what had made them distinct and, yes, better than those below it.189 The Fugitive Slave Act of 1850, however, now made Northern states active, complicit participants in upholding slavery, in denying freedom.190 That reality did not sit well.
Thus, it wasn’t just about re-enslavement of fugitives; it was about the wanton, encouraged enslavement of free Blacks, too.
