The Second: Race and Guns in a Fatally Unequal America

For

Aunt Lennie, Uncle Sam, and Aunt Barbara

My Soul Looks Back and Wonders …

BY THE SAME AUTHOR

One Person, No Vote: How Voter Suppression Is Destroying Our Democracy

White Rage: The Unspoken Truth of Our Racial Divide

Bourgeois Radicals: The NAACP and the Struggle for Colonial Liberation, 1941–1960

Eyes off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955

CONTENTS

Introduction Why Did You Shoot Him, Sir?

One Sheep Will Never Make a Revolution

Two Keeping a Ferocious Monster in Chains

Three The Right to Kill Negroes

Four How Can I Be Unarmed When My Blackness Is the Weapon That You Fear?

Epilogue Racism Lies Around like a Loaded Weapon

Acknowledgments

Notes

Index

Introduction

Why Did You Shoot Him, Sir?

It was like a snuff film that July 6, 2016, livestream. Philando Castile sat in his car, buckled in, bleeding, dying. Why did you shoot him, sir? asked his fiancée, Diamond Reynolds, pain piercing her every word.¹

Castile, who had been pulled over in a suburb of St. Paul, Minnesota, because his wide-set nose supposedly resembled that of a robbery suspect, had been reaching for his ID but, in order to avoid any surprises, let the police officer know that he had a gun with him: a legally permitted, right-to-carry-concealed gun.²

That was all the cop needed to know: Officer Jeronimo Yanez began shooting.³

Castile’s death came just one day after Alton Sterling’s down in Louisiana. He, too, was carrying a gun, which was not unusual in this right-to-carry state. Granted, Sterling had a felony conviction, so owning a firearm was for him illegal, but he had been robbed before and wanted protection. On July 5, 2016, the Baton Rouge police received a 911 call that there was a man with a weapon threatening customers at a local convenience store. As officers rolled onto the scene, they saw Sterling sitting there, selling CDs and DVDs, just as the store owner allowed him to do and, indeed, welcomed. The threatening man was not Sterling. In fact, there was no threatening man. It had been a prank call. But that didn’t matter. Within a few moments, police had thrown the Black man down, pinned him to the asphalt, and then started yelling that Sterling had a gun. He did. It was in his pocket, where he could hardly reach it, what with the officers squatting on both his legs and one arm. Nevertheless, the police began firing round after round into his prone body. Point-blank. Blood poured out of his chest. But not for long. Alton Sterling was dead.⁴

The back-to-back deaths of these two Black men police had shot for carrying guns should have jolted into action the Second Amendment’s staunchest advocate, the National Rifle Association (NRA). In 1995, for example, the organization’s denunciations flew fast and furious when it contended that law enforcement not only overreacted but went out of its way to kill gun owners. Angered by the deaths at the Branch Davidian compound in Waco, Texas, and the siege and firefight at Ruby Ridge, Idaho, both of which were sparked by federal agents serving warrants for weapons violations, Wayne LaPierre, the NRA’s executive vice president, angrily wrote: If you have a badge, you have the government’s go-ahead to harass, intimidate, even murder law-abiding citizens.⁵ He further denounced cops as jack-booted government thugs [who have] more power to take away our constitutional rights, break in our doors, seize our guns, destroy our property, and even injure or kill us.⁶

Nearly two decades later that sentiment had not changed. This was evident when Nevada rancher Cliven Bundy, who had refused to pay over one million dollars in fees for grazing his cattle on public land, summoned his gun-toting, self-styled militiamen to do battle with federal authorities to prevent the seizure of his herd for restitution. Richard Mack, a former recipient of the NRA’s Law Enforcement Officer of the Year award, asserted, If [federal agents are] going to start killing people, I’m sorry, but to show the world how ruthless these people are, women and children needed to be placed on the front lines as human shields. Mack didn’t flinch as he insisted, women needed to be the first ones shot … I would have put my own wife or daughters there [on the front lines], and I would have been screaming bloody murder to watch them die.⁷ Larry Pratt, a speaker at the NRA’s 2014 national convention, commenting on the fact that Bundy backed them [the Bureau of Land Management agents] down with automatic rifles and other deadly weaponry, proudly called that armed confrontation a proper, legitimate, lawful response to illegitimate, unlawful exercise of government power, particularly on the federal level.⁸

Yet how quickly the NRA’s swagger disappeared when government agents gunned down Philando Castile and Alton Sterling for merely carrying guns. Sterling’s death didn’t even merit acknowledgment. As for Castile, the NRA broke its silence only after inordinate pressure from African American members led the gun manufacturers’ lobby to issue a tepid statement that the Second Amendment was applicable regardless of race, religion, or sexual orientation. When pressed further by many of its members to stand up for Castile, the often-fierce organization demurred, saying it was important for the NRA not to comment while the investigation is ongoing.⁹

This situational silence did not go unnoticed. The NRA had not only loudly defended the rights of those in the Branch Davidian cult and at Ruby Ridge, men who had actually shot and killed members of law enforcement, but the organization had also doubled down on calling for more guns in the face of mass shootings in a public school in Newtown, Connecticut, and a movie theater in Aurora, Colorado.¹⁰ Yet here the guardian of the Second Amendment was now deliberately ignoring the inconvenient fact that Black men had been killed for merely possessing a firearm. Where’s the NRA? asked journalist Hanna Kozlowska. Didn’t Alton Sterling and Philando Castile have Second Amendment rights, too?¹¹ David A. Graham, in The Atlantic, coolly observed that the two shootings give a strong sense that the Second Amendment does not apply to black Americans the same way it does to white Americans.¹² Washington Post columnist Eugene Robinson wrote that he saw that old Jim Crow whites only sign plastered above the Second Amendment.¹³ The message was loud and clear: Even for the NRA, Black people did not have Second Amendment rights.¹⁴

A broken, treacherous rights landscape, of course, has always been the reality for African Americans. We know that the Fifteenth Amendment (the right to vote) was undercut by poll taxes, literacy tests, violence, and understanding clauses for nearly one hundred years and unfortunately, since 2013, has come under assault again.¹⁵ Similarly, the amendments covering the criminal justice system—the Fourth, Fifth, Sixth, and Eighth—have offered little to no protection for African Americans because of numerous Supreme Court decisions that have embedded racism and racial profiling into policing, trial procedures, and sentencing.¹⁶ But the Second Amendment’s charge for a well regulated Militia and the right of the people to keep and bear Arms offers a particularly maddening set of double standards where race is concerned.¹⁷ And that is what I explore in The Second. 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.¹⁹ South Carolina encoded into law that the enslaved could not carry or make use of fire-arms or any offensive weapons whatsoever unless in the presence of some white person. Moreover, the state’s various militias had the power to search and examine all negro-houses for offensive weapons and ammunition. In Delaware, there could be no valid earthly reason that any bought Servant, or Negro, or Mulatto slave … be allowed to bear Arms. Georgia was even more direct. Not only were Blacks forbidden from owning or carrying firearms, but white men were required to own a good gun or pistol to give them the means to search and examine all negro houses for offensive weapons and ammunition. The distinction was clear: Citizen(s) had the right to keep arms; the slave did not.²⁰

Even the well-regulated militia interpretation of the Second Amendment ran aground on the shoals of Blackness. The militia had been active in the War of Independence, and while states wanted to keep those forces intact afterward to fend off a tyrannical president or foreign aggressor (there was no real standing army until 1947), they had actually proved to be too unreliable and ill-equipped for those roles. They were adept, however, in buttressing slave patrols to hunt down, capture, and return back to their owners Blacks who had fled bondage. More important, state militias quashed slave rebellions.²¹

Thus, the role of the militia and who controlled it—either the federal government or the slaveholding states—became a sticking point in ratification of the U.S. Constitution. James Madison, architect of the Constitution and the Bill of Rights, understood what was at stake. 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 more constitutionally and legally entrenched—for everyone, that is, except African Americans.²³ Let me explain.

The U.S. Supreme Court has refused to acknowledge the full extent of rampant and demonstrated racial bias in the use of the death penalty, which has made this ultimate sentence inherently cruel and unusual and, thus, in violation of the Eighth Amendment.²⁴ Instead, the court, after issuing a brief moratorium, has allowed states to continue putting the convicted, who are disproportionately Black, to death so long as the method is not as barbaric as, say, electric chairs that spark and set an inmate on fire.²⁵ Yet as myopic and convoluted as the rulings have been, there is a clear human rights pathway on this: The court simply has to acknowledge how profoundly embedded racism is in the criminal justice system—from racial profiling to police stops, to access to competent counsel, to jury selection, to the impact of the victim’s race on the trial, to sentencing—and declare the death penalty unconstitutional. Similarly, clear-cut rulings that uphold the Voting Rights Act’s pre-clearance standards would eliminate the pernicious effects of twenty-first-century gerrymandering, voter ID requirements, purged rolls, etc., on the Fifteenth Amendment’s right to vote.

The Second Amendment, on the other hand, is fundamentally different. It was designed and has consistently been constructed to keep African Americans powerless and vulnerable. Regardless of the court’s stance, there is no clear pathway to human rights where the Second Amendment is concerned. A series of legal decisions best illustrate this point. In Lewis v. United States (1980), citing the need for public safety, felons were stripped of the right to bear arms. This ruling, of course, fell disproportionately on African Americans, because an unequal justice system had unnaturally created mass incarceration and imprisoned the Black community.²⁶ Meanwhile, African Americans in Chicago and Washington, D.C., had faced staggering gun violence and record homicides, and responded with statutes to reduce the number of firearms in their cities. But they soon ran headlong into NRA-backed Supreme Court decisions that interpreted gun control as violating the individual’s right to bear arms.²⁷ Guns would once again legally flood those cities.²⁸ Similarly, state laws that banned firearms in public housing in order to provide for the security of the residents have also been overturned.²⁹ Each of these—restricting felons from possessing guns, while also allowing a greater flow in urban areas for protection against crime, and forbidding firearms in public housing—had at its center the argument of safety and security. But they had something else in common, too: African Americans were always the ones who posed the threat and always the ones who bore the brunt of the decision.

Similarly, the Second Amendment, which scholars herald as bedrock for the right to self-defense, has been quicksand for African Americans.³⁰ Since at least 1680, Black people have not had the right to self-defense, especially when it comes to protecting themselves from white violence.³¹ Over the course of more than three hundred years, that hard reality remains as the stand your ground laws, first enacted in 2005, make clear. 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.³² In fact, the report notes, stand-your-ground laws actually worsen and increase the racial disparity outcomes of self-defense claims.³³ When the NRA provided the template of this law for Florida’s legislators, it wanted the legal equivalent of carte blanche for the exerciser of a Stand Your Ground right.³⁴ The NRA got it.

To be clear, this is not a pro-gun or anti-gun book. Guns are not the key variable here. It’s Black people. Their legal status—enslaved, free Black, denizen, Jim Crowed citizen, or citizen of post-racial America—did not change the way the Second Amendment worked against their rights. 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.

Once all the distracting arguments about individual versus collective gun rights are stripped away, it becomes clear that this debate is quite simply dwarfed by a much broader national discussion about rights and equality. The NRA’s insistence on framing the Second Amendment: A Citizen’s Right has dominated the argument, with the only question being a citizen’s right to do what?³⁵ But that is not the question. 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. That’s the painful answer to Diamond Reynolds’s question.

One

Sheep Will Never Make a Revolution

In 1776, in an act of incredible bravado, the rebels penned and signed the Declaration of Independence; they refused to be a mere collection of colonies subservient to the most powerful nation on earth, Britain. But after all the bold pronouncements and flowery language, hard, cold reality began setting in. How were they going to finance, much less fight, a full-scale war against a foe that was superior … in manpower, in naval and army technology, and as some have argued, in seasoned military leaders?¹

This was not a rhetorical question. The shot heard round the world at Lexington, the bloody guerrilla warfare at Concord, and the outright battle at Bunker Hill made it clear that the American rebels were going to require more men, more arms, and definitely more money if they were going to stand a ghost of a chance.² The rebellious patriots were even rumbling about the need to build a fleet strong enough to take on the vaunted and feared Royal Navy.³ None of this was going to be cheap. Representatives from Pennsylvania and others from the North acknowledged this bracing truth and, therefore, suggested a wartime taxation plan based on the head count of the 2.5 million people who lived in the thirteen colonies. That kind of financing, they argued, could provide enough revenue to equip their military and defeat King George III’s forces.

There was a major problem with that formulation, however. The South, which was more dependent economically, politically, and culturally on human bondage than the Northern colonies were, balked.⁴ South Carolina, where more than half the population was Black, insisted that the rationale behind a head count was faulty.⁵ Namely, how were slaves going to be counted when they were not people? Thomas Lynch of South Carolina explained it in terms he hoped even someone from Massachusetts or Pennsylvania could understand: Sheep in the North weren’t taxed: why should the South’s property be?

Benjamin Franklin, the grand old man among the patriots, sat there in the Second Continental Congress listening and then pungently replied that there was ‘some difference between’ slaves and sheep as ‘sheep will never make a revolution.’ ⁶ Stung by Franklin’s all-too-accurate insight, South Carolina’s delegates countered with the ultimate threat. If the northern states insisted on this point, ‘there is an End of the Confederation.’ Pennsylvania and its compatriots could fight this war against the British alone. Without the South.⁷

Regardless of the South’s outrage, Franklin had zeroed in on the core of the matter. Despite all the fulminations and mental gymnastics about property, the enslaved, as everyone knew, were human beings who resented mightily their bondage.⁸ In fact, they had already demonstrated that, at every opportunity, they would do whatever it would take to be free.⁹ If that meant running away, they would do it.¹⁰ If that meant pounding on the court system or the religious establishment by petitioning for their liberty … or suggesting that slavery was an abomination before God, they did it.¹¹ If that meant launching a revolt, an insurrection, an uprising, then so be it.¹² Thus, despite all the self-congratulatory kudos for civilizing Africans and trying to anesthetize whites with the myth of Black docility and complacency, Southern plantation owners actually understood not only that slavery bred insurrection but that those revolts threatened the entire social structure of white Southern communities.¹³

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 down [on] any conspiracies or uprisings.¹⁵

As early as 1639, Virginia prohibited Africans from carrying guns because what white Southerners feared the most … [was] an armed black man unafraid to retaliate against both the system of slavery and those who fought to defend it.¹⁶ Nevertheless, insurrectionist scares rocked the colony in 1687, 1709, 1710, 1722, 1723, and 1730.¹⁷ In 1680, as racialized chattel slavery congealed, the legislature crafted a law denying the enslaved and free Blacks the right to self-defense if attacked by their ‘master’ and/or Whites.¹⁸ Next, in 1723, the colony’s statute 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.²⁰ The colony also passed a series of laws to beef up the readiness and firepower of the militia because, as one Southerner explained, it was necessary that a militia should be kept constantly on foot to keep them [the enslaved] in awe."²¹

In colonial South Carolina, rice production was a special type of breeding ground for uprisings because it required an inordinate amount of Black labor, Black expertise, and the attendant Black subjugation to bend this workforce into submission and yield a handsome profit.²² Plantation owners were thus notorious for barbarities such as scalding, burning, castrating, and extracting the tongues or eyes of slaves.²³ That combination of the insatiable desire for enormous profits coupled with the sadistic brutalization of bonded African labor created an overwhelming fear among whites of the enslaved’s capacity and desire for retribution. And they needed to be fearful. The vast majority in South Carolina were Angolan Africans or from Kongo. As one of the slave merchants explained, those Africans were the meanest of all.²⁴

That recognition and the resulting fear, however, did not stop the mass importation of kidnapped Africans,