Racist History and the Second Amendment: A Critical Commentary
43 Cardozo L. Rev. 1343 (2022)
36 Pages Posted: 4 Aug 2021 Last revised: 9 May 2022
Date Written: August 1, 2021
To say that the moral stain of racism pervades American history would be an understatement. One does not have to look hard to find examples where people of color were treated disparagingly or disparately. Thus, it should come as no surprise that throughout much of American history there are examples where race played a role in lawmakers deciding who may and may not acquire, own, and use firearms for lawful purposes, or where race was the principal factor in orchestrating state and non-state sponsored armed violence against people of color. The painful and often tragic historical intersection between race and firearms is indeed a complex and multi-faceted narrative worthy of examination and reflection, including in the area of history-in-law —that is the study of how the law has evolved in a particular area, what events and factors caused the law to evolve, and how, if at all, this history is important when adjudicating legal questions.
Yet in the ongoing discourse over the purpose, meaning, and protective scope of the Second Amendment, the historical narrative of race and firearms is becoming increasingly misappropriated and hyperbolized. There are indeed numerous examples, but two are particularly concerning and exist at the extreme opposites of the Second Amendment political spectrum. The first—often stated by gun rights proponents—is history shows that gun control is inherently racist. The second—sometimes stated by gun control proponents—is that the Second Amendment itself is inherently racist, with some going so far to claim the right to “keep and bear arms” is on historically on par with the Constitution’s morally “indefensible” three-fifths clause—the clause that provided slaves would account for three-fifths a person for the purpose of congressional apportionment.
This article seeks to examine and unpack these extreme historical opposites and explain why their ‘racist’ claims ultimately do more societal harm than good. This article is broken into three parts. Part I critically examines how and why the ‘gun control is racist’ narrative came to be. Part II then critically examines how (and the elusive why) the ‘Second Amendment is racist’ narrative came to be. Lastly, Part III outlines why accepting either of these ‘racist’ narratives do more harm than good, particularly in the confines of history-in-law.
Keywords: Second Amendment, racism, militias, racist history, slave patrols, bear arms, history-in-law, gun control
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