Civil rights and the Second Amendment
In her harrowing 1892 treatise on the horrors of lynching in the post-bellum American South, the journalist, suffragist, and civil-rights champion Ida B. Wells established for her readers the value of bearing arms. “Of the many inhuman outrages of this present year,” Wells recorded, “the only case where the proposed lynching did not occur, was where the men armed themselves.” She went on to proffer some advice: “The only times an Afro-American who was assaulted got away has been when he had a gun and used it in self-defense. The lesson this teaches, and which every Afro-American should ponder well, is that a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.”
Conservatives are fond of employing foreign examples of the cruelty and terror that governments may inflict on a people that has been systematically deprived of its weaponry. Among them are the Third Reich’s exclusion of Jews from the ranks of the armed, Joseph Stalin’s anti-gun edicts of 1929, and the prohibitive firearms rules that the Communist party introduced into China between 1933 and 1949. To varying degrees, these do help to make the case. And yet, ugly as all of these developments were, there is in fact no need for our augurs of oppression to roam so far afield for their illustrations of tyranny. Instead, they might look to their own history.
“Do you really think that it could happen here?” remains a favorite refrain of the modern gun-control movement. Alas, the answer should be a resounding “Yes.” For most of America’s story, an entire class of people was, as a matter of course, enslaved, beaten, lynched, subjected to the most egregious miscarriages of justice, and excluded either explicitly or practically from the body politic. We prefer today to reserve the word “tyranny” for its original target, King George III, or to apply it to foreign despots. But what other characterization can be reasonably applied to the governments that, ignoring the words of the Declaration of Independence, enacted and enforced the Fugitive Slave Act? How else can we see the men who crushed Reconstruction? How might we view the recalcitrant American South in the early 20th century? “It” did “happen here.” And “it” was achieved — in part, at least — because its victims were denied the very right to self-protection that during the Revolution had been recognized as the unalienable prerogative of “all men.”
When, in 1857, Chief Justice Roger B. Taney buttoned his Dred Scott v. Sandford opinion with the panicked warning that if free blacks were permitted to become American citizens they might begin “to keep and carry arms wherever they went,” he was signaling his support for a disgraceful status quo within which suppression of the right to bear arms was depressingly quotidian. Indeed, until the late 1970s, the history of American gun control was largely inextricable from the history of American racism. Long before Louisiana was a glint in Thomas Jefferson’s eye, the French “Black Codes” mandated that any black person found with a “potential weapon” be not only deprived of that weapon but also beaten for his audacity. British colonies, both slaveholding and free, tended to restrict gun ownership to whites, with even the settlements at Massachusetts and Plymouth prohibiting Indians from purchasing or owning firearms. Throughout the South, blacks were denied weapons. The intention of these rules was clear: to remove the means by which undesirables might rebel or resist, and to ensure that the majority maintained its prerogatives. In 1834, alarmed by Nat Turner’s rebellion in Virginia, Tennessee amended its state constitution to make this purpose unambiguous, clarifying that the “right to keep and to bear arms” applied not to “the freemen of this State” — as the 1794 version of the document had allowed — but to “the free white men of this State.”
In much of America, this principle would hold for another century, emancipation notwithstanding. As Adam Winkler of UCLA’s law school has noted, a movement comprising the Ku Klux Klan and those Democrats who sought to thwart the gains of the Civil War “began with gun control at the very top of its agenda.” In theory, by mandating that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” the 14th Amendment would bring an end to Dixie’s confiscatory schemes; in reality, its passage provoked white supremacists in the states of the former Confederacy to achieve their aims in a more subtle manner. Nowhere in Tennessee’s illustrative “Army and Navy” law (1879) was race so much as hinted at. Instead, the measure limited residents of that state to a few expensive firearms, thereby outlawing the small derringers and low-caliber revolvers that impoverished blacks could afford. Like the poll taxes and literacy tests that went along with them, such laws achieved their aims without telegraphing their intent.
So it would continue to be. Speaking in favor of the proposed Gun Control Act in 1968, the mayor of Chicago, Richard Daley, griped that Americans, “especially the non-white, are buying guns right and left.” “Someone,” Daley thought, “ought to do something,” lest the riots that had been sparked by the assassination of Martin Luther King Jr. turn into a minor insurrection. That year, Congress obliged, passing a set of harsh restrictions on the importation of firearms and in effect outlawing the inexpensive foreign weaponry on which most inner-city blacks had come to rely. “It is difficult to escape the conclusion,” the historian Barry Bruce-Biggs has argued, “that the ‘Saturday night special’ is emphasized because it is cheap and is being sold to a particular class of people.” The left-wing writer Robert Sherrill put it even more bluntly in his classic anti-gun tome The Saturday Night Special (1973): “The Gun Control Act of 1968 was passed not to control guns but to control blacks.” In California a year earlier, legislators had been so vexed by the sight of armed Black Panthers protesting outside the statehouse that they passed legislation outlawing all open carrying of firearms — the first such ban in state history and, at the time, perhaps the strictest ordinance in the country. Governor Ronald Reagan happily signed the bill.
Today, this history has largely been forgotten — and with it a fascinating counter-history: the tales of those who, like Ida Wells, steadfastly refused to be intimidated; the recognition that firearms played a key part in the emancipation of blacks as well as of whites; and the understanding that if rights are not backed up by force they represent nothing solid at all. In some part, this amnesia is the fault of a gun-control movement that would rather ignore its legacy. But it is also the result of a civil-rights tradition that has declined to trumpet the physical bravery of its rebellion.
As Fordham Law School’s Nicholas Johnson suggests in a new book, Negroes and the Gun: The Black Tradition of Arms, we have a tendency in the modern era to overprotect the romantic notion that the civil-rights movement achieved its great victories through entirely nonviolent means. This notion, Johnson argues, is demonstrably false. Drawing a crucial distinction between organized resistance and basic Lockean principles of self-defense, he argues that while the most prominent champions of equality tended to shy away from waging war against their persecutors — from inciting domestic insurrection, in other words — many were happy to take up arms in order to protect their lives, their families, and their property.
The distinction between insurrection and self-defense was one that Martin Luther King Jr. himself insisted be observed. While “violence as a tool of advancement, organized as in warfare, deliberately and consciously,” was likely to invite “incalculable perils,” King held, “violence exercised merely in self-defense, all societies, from the most primitive to the most cultured and civilized, accept as moral and legal.” Or, as the Mississippi farmer and civil-rights activist Hartman Turnbow put it with more élan, by opening fire on Klan members who were attacking his home, “I wasn’t being non-nonviolent, I was just protectin’ my family.” Both men were tapping into a long and proud instinct within what Johnson refers to as “the black tradition of arms.” Asked in 1850 what advice he would give to escaped blacks who feared the slave-catcher’s embrace, Frederick Douglass responded: “a good revolver, a steady hand, and a determination to shoot down any man attempting to kidnap” them.
The number of instances in which assailed blacks were required to defend themselves against captors, lynchers, and an unlovely array of people who wished them physical harm is nothing short of remarkable. In another recent work — This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible (the first part is a reworking of another of Hartman Turnbow’s colorful phrases) — Charles E. Cobb, a Brown University professor and former field secretary of the Student Nonviolent Coordinating Committee (SNCC), laments “the gaps in the history” of civil rights. In particular, Cobb hopes to bring about an acknowledgment of “the role of guns in the movement.” Like Nicholas Johnson, he allows up front that the civil-rights movement was aspirationally “nonviolent.” Nevertheless, he told NPR in June of this year, blacks were “human beings” who were prone to “respond to terrorism the way anybody else would”; they could not be expected to remain faithful to their doctrine of nonviolence in the presence of mortal threats. “Robust and organized defensive measures were an absolute necessity for any prominent black civil rights advocate who valued his or her life,” Cobb explains early on in his book. There is no reason for posterity to turn brave men and women into pacifists.
Cobb should know. He was there. “I worked in the South,” he recalled during his interview with NPR. “I lived with families in the South. There was never a family I stayed with that didn’t have a gun. I know, from personal experience and the experiences of others, that guns kept people alive.” Martin Luther King’s home, Cobb recollected, was an “arsenal” — not an uncommon thing for blacks who felt that their lives were in danger. Fannie Lou Hamer, the driving force behind the Mississippi Freedom Summer and a remarkable orator in her own right, always “kept weapons nearby in case she needed them.” She once wrote to a friend that “the first cracker even looks like he wants to throw some dynamite on my porch won’t write his mama again.” Another woman, Cynthia Washington, responded to the murder of a fellow activist by keeping a handgun in her purse at all times. It would, Washington said, be an “unforgivable sin to willingly let someone kill my mother’s only child without a fight.” Annie Colton Reeves of Mississippi, Johnson records, was told by her father that “it’s better to have ammunition than food,” and she took him seriously: She owned two rifles, two handguns, and a shotgun, and proved more than happy to use them. “Women like Annie Colton and Fannie Lou Hamer offered no high theories about armed self-defense versus political violence,” Johnson contends. They just wished to survive.
To read the profusion of such accounts is to recognize that the gun-controllers of the past knew precisely what they were doing. There is no guarantee that an armed citizen will survive an armed attack. But it is almost certain that a citizen unarmed will not. Ida Wells predicted that “when the white man who is always the aggressor knows he runs as great risk of biting the dust every time his Afro-American victim does, he will have greater respect for Afro-American life.” This appears, in some quarters at least, to have been the case. Time after time, armed blacks successfully defended themselves against both private actors and state-sponsored terrorism, thereby chipping away at the perception that they were easily assailable and strengthening the movement that would eventually put an end to their oppression. Julian Bond, SNCC’s founder, has reasonably mocked the modern historical narrative as being little more than “Rosa sat down, Martin stood up, and the white kids came down and saved the day.” Johnson and Cobb have put vital flesh on these bones. The nature of the rebels’ eventual victory is complex — the work of thousands of reformers both celebrated and ignored. And within the true account there is ample room for a slogan that gun manufacturer Colt popularized in its early brochures: “Abe Lincoln may have freed all men, but Sam Colt made them equal.”
Quite how all of this should inform our present debate is unclear. America’s gun-controllers are no longer motivated by racial animus but by an earnest, if misdirected, desire to reduce the number of suicides and murders that the country suffers each year. Nevertheless, the unthinking zealotry of those who would make it harder for Americans to obtain and to carry weapons does disproportionately affect blacks — even in the modern era. At present, anti-gun cities such as New York charge residents almost $500 just to apply for a firearms license, while concealed-carry permits remain unavailable to all but the wealthiest and best connected. Whom do we imagine this affects most keenly, financially and in terms of the capacity to fend off threats? And why, one wonders, are the same voices that routinely castigate the architects of voter ID for rendering basic rights contingent on fees and documentation not shouting in anger in the streets?
Worse, perhaps, gun-control laws put minorities behind bars. The Washington Post’s Radley Balko has found data from the U.S. Sentencing Commission showing that blacks were “far more likely to be charged and convicted of federal gun crimes that carry mandatory minimum sentences” and “more likely to be hit with ‘enhancement’ penalties that added to their sentences.” Is this because blacks are more likely to break those laws? Sometimes, yes. As we have learned recently from the case of Shaneen Allen — the black single mother whom prosecutors in Atlantic County, N.J., are trying to send to prison for more than three years for mistakenly believing that her Pennsylvania concealed-carry permit was accepted in New Jersey — harmful statutes can easily ensnare good people who are just trying to do the right thing.
Are the rules worth it despite all of these drawbacks? Nicholas Johnson is unconvinced, concluding his book with a welcome recognition that state intrusion into this area is typically ineffective and that the “assumption” that “guns produce no benefits that would be lost under restrictive policies” is “difficult to sustain.” This is not to deny that black Americans face real and serious challenges: Federal statistics show that firearms are the leading cause of death among blacks 14 to 18 years of age. “It must be acknowledged,” Charles Cobb writes at the Volokh Conspiracy, a blog, that most homicides involve “black people killing other black people, most of them young black people.” In consequence, black voters show more enthusiasm for expansive firearms restrictions than any other group. Nevertheless, as Nicholas Johnson observes, blacks are disproportionately poor and tend to live in dangerous areas, which puts them in greater need of the means of self-defense than any other group. It is perhaps no accident that the Supreme Court’s two seminal Second Amendment cases, decided in 2008 and 2010, were brought by black plaintiffs from Chicago and Washington, D.C. — Otis McDonald and Shelly Parker, respectively — who complained that they had been left defenseless against criminals and dependent on government protection that was, practically at least, no more forthcoming in the 21st century than it had been in the 19th.
As do I, Johnson looks at these problems and concludes that, ultimately, the liberty interest must prevail. “Personal security,” he writes, “is the bedrock upon which other popular autonomy claims rest.” Charles Cobb is a little less emphatic. But he is keen nonetheless to “refute some of the liberal hysteria,” characterizing America’s challenge not as a “gun problem” but as a combination of “a mental health problem” (this accounts for suicides and, presumably, mass shootings) and “a massive and disturbing failure of black leadership” of the sort that would have mystified the doyens of the civil-rights era. And thus the age-old debate continues: May free men defend themselves or not? Adumbrating why he asked the Supreme Court to strike down Illinois’s ban on handguns, Otis McDonald complained about the young men who “are out there at three in the morning, in the middle of the street, drinking and smoking their stuff. They throw stuff all over your lawn, and you can’t say anything because they might up and shoot you.” They might, yes. But they now know that there will be return fire — and that’s quite the disincentive.