Civil Liberties, Constitutional Law, Exclusives, National, Right To Arms, Uncategorized

Fogleman: ACLU gets Second Amendment wrong; it’s actually gun control that’s steeped in racism

The American Civil Liberties Union (ACLU) made headlines this week when it declared the Second Amendment to be inherently racist, proclaiming “Anti-Blackness determined the inclusion of the Second Amendment in the Bill of Rights.” It also suggested a “relationship between appeals to gun rights and the justification of militia violence.”

The claim turns the history of racism and guns in America on its head. The right to arms in America predated the Second Amendment and the ratification of the U.S. Constitution. Vermont, Massachusetts, North Carolina, and Pennsylvania all had explicit arms guarantees in their respective state constitutions prior to 1791, none of which made reference to the “militia” or race-based “militia violence.”

Additionally, the three northern states had already outlawed slavery by the time of the Constitution’s ratification. In fact, Vermont abolished slavery in the exact same 1777 declaration of rights that secured the right of the people to “bear arms for the defense of themselves and the state.” Many of these same northern states helped lead the charge for the inclusion of the Bill of Rights, including the right to arms, in the Constitution’s ratification process.

It cannot reasonably be said that the original inclusion of the Second Amendment was determined by “anti-blackness,” or slave-targeted militia violence, when antecedent arms guarantees were primarily from abolitionist states expressly securing the right to the people, not the militia.

However, a relationship does exist between “Anti-Blackness” and the Second Amendment. But it has been advocates of gun-control, not gun rights proponents or the framers, who have been motivated by anti-black animus historically.

Take for instance the 1857 opinion of Justice Roger Taney who, in the infamous Dred Scott decision, denied citizenship to black Americans. Writing for the court, Taney suggested that if blacks were to be considered citizens, and thus entitled to the privileges and immunities of citizens, they would be able “to keep and carry arms wherever they went… inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”

After the civil war was fought to settle the question of slavery and citizenship for African Americans once and for all, racially motivated gun control reared its ugly head once again in an attempt to control and intimidate the freedmen of the postbellum south. Licensing regimes, carry restrictions, and outright bans on affordable arms were passed with the express purpose of keeping the black populations of the southern states disarmed and defenseless.

One such restriction, a 1893 Florida law requiring a license to carry or possess a pistol or repeating rifle, was referred to in 1941 by a Florida Supreme Court justice who said the law was “never intended to be applied to the white population,” and had never been. The law was repealed in 1987 and replaced with a shall-issue licensing regime that spurred a national trend of granting carry licenses on objective, race-neutral criteria.

For the upcoming Supreme Court case NYSRPA v. Bruen, which challenges the licensing regime of one of the few remaining states that does not grant firearm permits on objectively neutral grounds, a group of progressive public defenders filed an amicus brief in support of striking down New York City’s may-issue permitting scheme.

While progressive public defenders are not typically associated with gun rights advocacy, they are uniquely positioned in this case to detail the human costs of a system that grants governments broad discretion in determining who is protected under a constitutional right. Their account tracks with the racially fueled history of gun control:

“As a result, each year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York’s licensing regime renders the Second Amendment a legal fiction. Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”

The Second Amendment secures the right of the people to keep and bear arms. It makes no qualifications about what types of people may do so on the basis of race or any other immutable characteristic. Despite the claims of the ACLU, its inclusion in the bill of rights was fueled by the principle of individual and community defense. It is only in the case of gun control where one can find a racially motivated tradition.

Jake Fogleman, a graduate of Metropolitan State University, is part of the Future Leaders program at the Independence Institute, a free market think tank in Denver

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