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.1 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 nonstate-sponsored armed violence against people of color.2 The painful and often tragic historical intersection between race and firearms is indeed a complex and multifaceted narrative worthy of examination and reflection,3 including in the area of history-in-law4—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.5
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.6 The second—sometimes stated by gun control proponents—is that the Second Amendment itself is inherently racist,7 with some going so far to claim the right to “keep and bear arms” is historically on par with the Constitution’s morally indefensible three-fifths clause—the clause that stipulated slaves would account for three-fifths of a person for the purpose of congressional apportionment.8
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 does more harm than good, particularly in the confines of history-in-law.
I. A Critical Examination of How and Why the “Gun Control Is Racist” Narrative Came to Be
When exactly the first law or laws racially restricting firearms access, ownership, and use appeared within the American colonies is up for debate.9 What is for certain is that by the mid-eighteenth century laws restricting the access, ownership, and use of firearms by people of color, both free and enslaved, were commonplace.10 Even after the ratification of the Constitution (1789) and the Bill of Rights (1791), these laws remained prevalent throughout the United States, particularly in the slaveholding South.11 In 1792 Virginia, for instance, the law prescribed that with the exception of any “free negro or mulatto[] being a housekeeper,” “[n]o negro or mulatto whatsoever shall keep or carry any gun, powder, shot, club, or other weapon whatsoever, offensive or defensive.”12 Come 1806, the law was amended by removing the allowance for “free negro or mulatto” housekeepers, and prescribed that every “free negro or mulatto” wanting to “keep or carry any fire-lock of any kind, any military weapon, or any powder or lead” first needed to obtain “a license from the court of the county or corporation in which he resides.”13
Given that throughout the Early Republic, people of color, free and enslaved, were often prohibited from accessing, owning, and using firearms, it should come as no surprise that they were also often excluded from service in the militia.14 Indeed, by the close of the Revolutionary War, people of color serving as militiamen, soldiers, sailors, and marines, free and slave, composed roughly one-fifth of the American military forces.15 However, when it came time for Congress to decide which classes of persons were suitable for constituting the national militia,16 it was made clear that only “free able-bodied white male citizen[s]” could enroll.17 Although there is nothing in the historical record that expressly informs why Congress stipulated that only the “free able-bodied white” men were eligible for enrollment in the national militia, it was most likely at the request of Southern delegates—delegates who, since the 1739 Stono Rebellion,18 had grown fearful of arming and militarily training people of color.19
Not even the threat of losing the Revolutionary War to the British was enough to calm the slave revolt fears of South Carolina and Georgia. For throughout the Revolutionary War, despite the repeated requests from the likes of Henry Laurens, James Madison, Benjamin Lincoln, and Nathaniel Greene, each of whom urged the Southern states to accept the arming and training of slaves to fight the British, the idea was always rejected by South Carolina and Georgia.20 This is not to say that over the course of the Revolutionary War every Southern slaveholding state was opposed to arming and training its slave population. The State of Maryland, for one, accepted slave militia enrollments and military enlistments, but only so long as the slave had first obtained their master’s consent.21 There is also the State of Virginia, which late in the war agreed to allow free people of color to stand in as militia substitutes for whites.22 It did not take long, however, before slave owners who were called to militia service began forcibly sending their slaves in their stead. After the war, many of these slave owners tried to reclaim their property.23 The Virginia Assembly responded much like that of other state assemblies—by declaring that every slave to have served in the war was fully emancipated.24
The noble military service provided by people of color, free and slave, during the Revolutionary War cannot be overstated. Without their contribution, it is highly unlikely the United States would even exist. It is also worth noting that while the average tour of service for white militiamen, soldiers, sailors, and marines was three to six months, the average tour of service for people of color was three to five years.25 Needless to say, people of color provided more than their fair share of military service during the Revolutionary War. Lastly, one must not forget that while white American colonists were fighting to free themselves from the yoke of British political slavery, many people of color were fighting to free themselves from the physical shackles of actual slavery.26
Yet despite the valiant military service provided by people of color during the Revolutionary War, as well as the valiant service they provided during subsequent wars and conflicts through the mid-nineteenth century,27 in times of peace and prosperity the general rule was that people of color need not enroll in their respective state militias.28 This was particularly true in the South,29 where since the early to mid-eighteenth century the militia rolls were frequently relied upon for assembling slave patrols.30 Slave patrols were essentially racially oppressive versions of the common law hue and cry and posse comitatus.31 And one of the principal duties of slave patrols was to search for illegal firearms and weapons in the homes of “free negroes and mulattoes, and of slaves” by “force” if necessary.32 It was a duty included within several slave-patroller oaths.33 But it was not only the enrolled militia who were liable to be called upon for slave patrol duty. Depending upon the state and local jurisdiction, many persons not required by law to enroll in the militia, male and female, could be compelled to serve in slave patrols.34 In South Carolina for instance, with few exceptions, “white” residents, women included, were required to serve as slave patrol proxies and “provide . . . and keep always in readiness and carry . . . one good gun or pistol in order, a cutlass, and a cartridge box with at least six cartridges in it.”35 Additionally, at times of worship, the time that many Southern whites most feared the prospects of a slave revolt, the law often required parishioners to bring their firearms to church.36 In Virginia, every enrolled member of the militia was legally required to “go armed to their respective parish churches” to quell potential slave revolts.37 South Carolina law was a bit more discretionary. It empowered every churchwarden, deacon, and elder within “each respective parish” to command “any person liable to bear arms” under the militia laws to bring their “gun or pair of horse pistols and ammunition” to church service as a precaution to thwart slave revolts.38 Meanwhile, Georgia’s “bring guns to church” law was the most sweeping. It required every able-bodied white male to comply and go armed to church to protect against the “fatal consequences” of “domestic insurrections.”39
Throughout the Antebellum South, laws targeting and restricting people of color’s access, ownership, and use of firearms, whether it be in a private or militia capacity, were the norm.40 Even after the Civil War and the ratification of the Thirteenth Amendment, through what was known as the Black Codes, Southern lawmakers continued to target newly freed people of color through inequitable firearms restrictions.41 This was one of many documented, inequitable Southern legal abuses against newly freed people of color—abuses that prompted the Reconstruction Congress to enact the Civil Rights Act of 1866, followed by the Fourteenth Amendment.42 What particularly disturbed the members of the Reconstruction Congress were the stories of white militias disarming Black Civil War veterans of the very rifles that Congress had offered them for their noble service, with the understanding that many of these Black veterans would be called to service once again to secure peace and order in a national or state-run militia.43
Ultimately, neither the Civil Rights Act of 1866 nor the Fourteenth Amendment ended up achieving the legal objective of safeguarding equal rights, privileges, and immunities for all citizens, regardless of race.44 It would take another century before the country would lay witness to a seismic shift in the law that was emblematic of what the Reconstruction Congress originally sought to achieve, but not without people and communities of color continuing to suffer disparate mistreatment—sometimes through armed violence, state and nonstate sponsored alike.45
It cannot be overemphasized that the historical intersection between race and firearms up through Reconstruction is complex and multifaceted. There is not one narrative, but many that historians will hopefully examine in the years and decades to come. For the more historians explore about this tumultuous and ugly past, the better we as a nation are informed today to fix racial injustices moving forward. Yet it is important to note that the historical intersection between race and firearms that took place from American colonization through Reconstruction was merely a subset of a substantially larger legal subjugation of people of color—a legal subjugation established for the principal purpose of safeguarding the institution of slavery.
The lives of Southern people of color, free and slave, were heavily restricted in ways that can at times be difficult to fathom, with the overwhelming bulk of the laws serving the express purpose of suppressing potential slave revolts. The laws affected virtually every facet of their lives. For instance, depending upon the state and local jurisdiction, people of color were prohibited from even speaking to their enslaved kinfolk.46 Free people of color could not own or operate many types of businesses nor engage in even basic commerce without first obtaining a license to do so.47 Free people of color were often given specific curfews,48 in which it was unlawful for them to set foot anywhere but on the confines of their residence unless they obtained “a proper permit in writing from some white person authorized to give the same.”49 And free people of color were generally prohibited from migrating to any of the other Southern states without first obtaining permission.50
Not surprisingly, enslaved people of color were faced with even more restrictive laws. For instance, slaves could not leave the confines of their master’s property without first obtaining a white overseer’s written permission.51 Slaves were often prohibited from learning how to read.52 Slaves could not attend or hold religious worship without first obtaining their master’s consent.53 And slaves were generally prohibited from owning property, even personal property that would help provide them basic sustenance, such as livestock, dogs (for hunting), horses, and boats.54
Although slavery insurmountably burdened people of color the most, there were also considerable liberty impacts on anyone—whites included—that opposed the institution, no matter whether said opposition was based on religious, moral, or legal grounds. Slave patrol duty is one example.55 While militia laws generally provided an enrollment exception for any person religiously scrupulous to bearing arms,56 in those state and local jurisdictions that required most persons, regardless of their legal obligation for militia duty, to serve in the slave patrols, there was no abolitionist or ideological exception.57 Those that opposed the institution of slavery were also prohibited from doing anything that might be construed as enticing, advising, or persuading any slave to escape from their master.58 In the State of Maryland, this included printing, publishing, distributing, or circulating any materials “having a tendency to create discontent among, and stir up to insurrection . . . people of colour.”59
The key historical takeaway is that slavery created stark legal double standards for those that supported the institution and those that opposed it. For those that supported the institution, the law was considerably beneficial. For those that opposed it, especially people of color, the law imposed devastatingly disproportionate burdens. It was this stark racial inequity that the Reconstruction Congress sought to remedy through the equal protection provisions within the Civil Rights Act of 186660 and the Fourteenth Amendment.61 At no point did the Reconstruction Congress seek to topple federalism—that is, upend state and local lawmakers’ authority to regulate within their respective governmental spheres on a wide range of issues.62 Rather, the Reconstruction Congress sought to ensure that the Constitution once and for all embodied the “all men are created equal” promise within the Declaration of Independence.63 Thus, outside and away from racially repressive and inequitable laws like the Black Codes, the Reconstruction Congress understood and accepted that the Fourteenth Amendment did not undo longstanding legal norms, nor did it undo state and local governmental authority to regulate on a wide range of issues. This included regulating the acquisition, ownership, and use of firearms. For ever since the Norman Conquest, Anglo-American law had prescribed rules, regulations, and legal requirements pertaining to dangerous weapons to protect public safety and prevent injury.64 Simply put, the legal concept of regulating access, ownership, and use of firearms was not something unique to people of color. This area of regulation had long applied to all segments of society.65 What was unique for people of color from American colonization through Reconstruction was that the rules, regulations, and legal requirements were always far more severe and disproportionate to what was imposed upon whites. The Fourteenth Amendment was intended to remedy this racial inequity.
From the time the Fourteenth Amendment was ratified in 1868 through most of the twentieth century, no one (at least that this author can find) appears to have espoused the view that the history of race and firearms was indicative that most, if not all, gun controls are inherently racist. Indeed, in the late 1960s and early 1970s, Black extremist political action groups, such as the Black Panther Party and Black United Front, are on record claiming that specific firearms laws were adopted with racist aforethought.66 However, none of these Black extremist political action groups were so bold to claim that all gun controls are racist.
For most of the twentieth century, the same was true of gun rights advocates, who throughout the early to mid-twentieth century were known for proliferating any and every criminological, social, cultural, historical, and moral argument against gun controls they could muster.67 This included proffering outlandish claims and conspiracies, such as the American public was being misled in supporting firearms restrictions by insidious actors, who were intent on disarming the entire country. In the 1920s, gun rights advocates alleged the “campaign against the pistol” was being led by “an invisible organization, apparently . . . well equipped with propaganda facilities.”68 At the same time, up through the 1930s, gun rights advocates alleged it was gangsters.69 During World War II, the blame was shifted to alleged fifth columnists and Nazi operatives.70 This was followed by gun rights advocates blaming alleged communist operatives71 and later liberal elites,72 both of whom gun rights advocates claimed were seeking to force their antigun agenda on liberty-loving Americans. None of it proved to be true. Yet many within the gun rights community believed it and took part in spreading the unsubstantiated claims and conspiracies far and wide.73 For, as is common with virtually all misinformation campaigns, all that is required to effectively spread the lie is that it be built on a combination of public fear and some facet of the truth.74
As it pertained specifically to race and gun control, beginning in the late 1960s through the mid-1970s, gun rights advocates had only advanced two claims. The first claim went like this: because crime statistics consistently showed that communities of color were more likely to experience high crime rates, gun controls disproportionately affected those communities’ ability to acquire “more guns” and therefore adequately reduce the criminological consequences associated with it.75 One gun rights advocacy group, the American Pistol and Revolver Association, went so far as to provide Black gun rights supporters with the following form letter to make this case in point, as well as frame gun rights as a broader civil rights issue:
Dear Congressman ______:
I had to wait until 1964, after the Civil Rights Act was passed, before I could buy my guns. Prior to that, gun dealers told me “We don’t sell guns to [n***ers]” and they asked me “to leave.” I have supported Civil Rights candidates because I now finally have my freedom. It is in the ghetto and the high crime areas where law abiding negros like myself need guns to protect our homes and our families. Now that they are talking about licensing all hand guns, will I be turned down from obtaining a license from my white Chief of Police, my white Sheriff, or my white government bureaucrat again like I was before the 1964 Civil Rights Act was passed?
I consider owning firearms my most important civil right. I firmly believe in the Bill of Rights and it clearly says “the right of the people to keep and bear arms shall not be infringed.” I interpret that to mean the right of all people, of all colors and creeds, being able to own and to carry firearms. If you are really for Civil Rights, you would be for this right too.
I am very disappointed that an organization calling itself the American Civil Liberties Union would be in favor of taking away these civil liberties!
Sincerely,
(Sign your name)76
The second gun rights advocacy claim involving race was that gun control is just another attempt at race control.77 The claim was a modified take on the early 1970s gun rights (and John Birch Society) mantra “gun control is people control”—a mantra that implied gun control was an insidious means toward achieving both the liberals’ and communists’ alleged goal of a totalitarian police state,78 and the only thing standing in the way of achieving this un-American, anti-Democratic end was an armed citizenry.79 The “gun control is race control” claim was not all that different, albeit with the caveat that allegedly liberals and communists were insidiously using the high crime rates among communities of color to first subjugate them, which would then be followed by the subjugation of the general white population. “The black man will quickly see he is being used as a silent instrument to obtain complete gun control,” wrote former NRA president Harlon B. Carter in a 1975 Guns & Ammo editorial, adding, “[h]e gains nothing and he is at once the victim of tyranny and the instrument by which tyranny is imposed on the white man.”80
It was in the late 1970s—a time when gun rights advocates were diligently working to restore the Second Amendment to its constitutional pedestal81—that a contingent of gun rights advocates began shifting the narrative on race and firearms, and linking it to the larger gun rights political message of firearms ownership being a social good and all gun control being a social evil.82 To this contingent of gun rights advocates, gun control not only disproportionately burdened communities of color, but was also, historically speaking, inherently racist as well.83 In advancing this “racist history” narrative, this gun rights contingent focused immensely on the firearms restrictions contained within the slave codes and subsequent Black Codes.84 All other weapons and firearms restrictions, spanning from the Norman Conquest through the turn of the twentieth century, were either conveniently omitted or cast in an unfavorable historical light,85 thus leaving the reader to conclude that gun control was primarily the tool of elitists and despots.86 This is not true.
As this author and other scholars have detailed, history provides countless examples where lawmakers passed gun controls with the purposes of lowering homicide rates, preventing public injury, and protecting public safety.87 This is particularly true regarding the law of armed carriage, where all persons, not just people of color, were often restricted from carrying dangerous weapons within the public concourse.88 Indeed, many modern forms of gun control that are prevalent today did not appear on the statute and ordinance books until the late nineteenth and early twentieth centuries, to include laws requiring permits to purchase firearms, laws requiring firearms dealers to register and record all sales, laws prohibiting firearms sales to minors, and prohibitions on selling firearms to known criminals and other dangerous persons.89 However, every one of these forms of gun control became generally accepted to the point that the first gun rights movement (including the NRA) embraced them.90 These were not “racist” laws, but rather laws widely deemed “sane” and “reasonable” (by early twentieth-century gun rights advocates, no less) in the interest of the public good.91
Despite the “gun control is racist” narrative’s lack of historical transparency, it gradually gained acceptance among gun rights writers.92 In 1991, Robert J. Cottrol93 and Raymond T. Diamond published what has proven to be a highly influential article, which asked jurists and scholars to reconsider the Second Amendment from an Afro-American historical viewpoint—that is, as embodying a broad, individual right to self-defense against both state and nonstate actors.94 That same year, in a law review article titled Gun Control and Racism, NRA Assistant General Counsel Stefan B. Tahmassebi proclaimed that the “history of gun control in the United States has been one of discrimination, oppression, and arbitrary enforcement” against people of color.95 A few years later, gun rights advocate and writer Clayton E. Cramer published a law review article titled The Racist Roots of Gun Control, wherein he boldly proclaimed that “racism underlies [all] gun control laws.”96 In the years since then, several other gun rights writers and advocates have adopted Cramer’s “all gun controls are racist” decree.97 This includes the organization, Jews for the Preservation of Firearms Ownership, which in 1999 published and distributed a twenty-three-page illustrated pamphlet titled “Gun Control” Is Racist!: Facts that Racists Don’t Want You to Know.98 As the title implies, the pamphlet casts all gun controls and anyone that supports them as racist.99 Near the end of the pamphlet, an eye-catching note reads: “If any apology is owed to slaves and their descendants, it should be from those who kept them unprotected and disarmed for years . . . THE RACIST GUN CONTROLLERS!”100
As a matter of historiography, the embrace of the historically distorted “gun control is racist” narrative by gun rights writers and advocates is not all that surprising. For it is not the first, and certainly not the only, time gun rights writers and advocates have flocked to support intellectually suspect and hyperbolic historical claims. The Revolutionary War was started due to British attempts at gun control,101 one of the grievances in the Declaration of Independence was written with gun control in mind,102 and there were no gun control laws on the books in the American colonies and later in the United States until the turn of the nineteenth century103 (slave codes excluded). These are all examples of history gone awry in gun rights circles.104 And this is not even considering the long list of intellectually suspect and hyperbolic historical claims made by gun rights writers and advocates regarding firearms and weapons laws on the other side of the Atlantic.105
This brief historiography answers how the “gun control is racist” narrative came to be. It is the why, however, that is most interesting from a history-in-law perspective. So far as this author and others can tell, the why is essentially twofold—the first why being political and the second why being constitutional framing. As to the political why, the “gun control is racist” narrative is not really all that different from the many other gun rights claims regarding the history of gun control—each of which seeks to historically cast gun control in malevolent and unfavorable terms. In fact, from the early twentieth-century genesis of gun rights advocacy, this tactic was used early and often in an attempt to historically sully the 1911 Sullivan Law, the very law that caused gun rights advocates to become politically organized in the first place.106 And to this day, gun rights advocates continue to subjectively frame, and therefore espouse, false and misleading historical claims on the origins, intent, and purpose of the Sullivan Law.107 Indeed, the existence of any disproportionate, class-based enforcement of the Sullivan Law (or any law for that matter) is worthy of study and criticism. The Sullivan Law’s principal purpose, however, was not about expanding political corruption or advancing an anti-immigrant agenda. It was about reducing firearms-related homicides, fighting crime, and increasing public safety.108 To suggest otherwise is to break the bands of historical elasticity. The “gun control is racist” narrative is part of this same acontextual “gun control is evil” constitutional-framing playbook. Simply put, the “gun control is racist” narrative is merely one of many misinformation means toward achieving expansive gun rights.
The second why the “gun control is racist” narrative came to be is to provide gun rights advocates with a favorable constitutional framework.109 For by associating the right to “keep and bear arms” with the civil rights movement’s push for racial equality, gun rights advocates are trying to frame the Second Amendment in a way that helps convince the courts to administer some form of heighted scrutiny when examining the constitutionality of gun controls.110 To date, although some jurists have been willing to embrace the idea of associating Second Amendment rights with the fight for racial equality,111 the courts have yet to accept gun rights advocates’ plea112 to invoke the “same demanding standards when reviewing the constitutionality of a gun control law” as is applied to laws that “discriminate[] based on race.”113 Gun rights advocates have, however, proved successful in convincing some Supreme Court Justices that Second Amendment rights are receiving “second-class” constitutional treatment,114 i.e., that the Second Amendment is being relegated to the “back of [the] constitutional bus.”115
Whether the “gun control is racist” narrative will ever gain jurisprudential traction is unknown. What is for certain is the narrative is a principal argument before the Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen. Therein, petitioners and accompanying amici—in the hopes of persuading the Court to adopt strict scrutiny—are constitutionally framing the history of armed carriage laws as being racist.116 Yet the petitioners’ and accompanying amici’s constitutional framing is neither in moral nor historical earnest. For all the while petitioners and accompanying amici are framing armed carriage laws as being racist, they are also citing racist history to advance broad Second Amendment carry rights, including the very eighteenth-century Southern slave laws enacted to suppress slave revolts on days of worship.117 And reliance on these racist laws to expand Second Amendment rights by gun rights advocates is not some mistaken one-off.118 Time and time again,119 despite having been repeatedly criticized for invoking these racist laws in their writings and legal briefs,120 gun rights advocates continue to hold them up as proof positive that the Founding Fathers enshrined the Second Amendment to protect broad public carrying rights.121 Suffice it to say, it is not only the how “gun control is racist” that is worthy of criticism, but also the why—for both are merely a means to manipulate history in a way that expands Second Amendment rights and diminishes gun control.
II. A Critical Examination of How (and the Elusive Why) the “Second Amendment Is Racist” Narrative Came to Be
At the opposite end of the “racist history” spectrum is the “Second Amendment is racist” narrative. It too is largely derived from the same historical intersection between race and firearms spanning from American colonization through Reconstruction. What distinguishes the “Second Amendment is racist” narrative from its “gun control is racist” counterpart is that history is not framed in civil rights and racial equality terms.122 Rather, the historical intersection between race and firearms is primarily viewed through the lens of white privilege and the level of armed oppression that was legally directed at people of color.123
When exactly the “Second Amendment is racist” narrative first entered the public discourse is difficult to gauge. What is known is the narrative first appeared within the legal discourse in 1998 in a law review article written by Carl T. Bogus. Titled The Hidden History of the Second Amendment, the article claimed that the Second Amendment was part of the larger constitutional bargain between the Northern and Southern delegates on maintaining the institution of slavery.124 According to Bogus, given that the Constitution provided Congress broad authority over the militia, and the militia was the principal means through which the Southern states carried out slave patrols, many Southern delegates feared that Congress might use this authority to muster and assemble the militias out of their respective states, thus leaving the South virtually unprotected from slave insurrections.125 It was primarily for this reason that James Madison, through the urging of George Mason and Patrick Henry, included the Second Amendment within the Bill of Rights. According to Bogus, this “slavery compromise” motivation for including the Second Amendment was well understood by Madison’s congressional “colleagues in the House and Senate.”126
What direct historical evidence did Bogus unearth to come to this astonishing conclusion? Nothing significant—certainly no historical “smoking gun.” Rather, Bogus came to his slavery compromise conclusion with what he, himself, described as “circumstantial” evidence.127 Indeed, throughout the article, Bogus includes a multitude of reliable historical sources. However, much like the “gun control is racist” narrative, Bogus’s thesis breaks the bands of historical elasticity and is severely undercut by the weight of the full evidentiary record—a record that, when viewed in context, reveals that the Second Amendment was drafted, enacted, and ratified with the principal purpose of sustaining the republican concept of a well‑regulated militia.128 The evidentiary record is replete with examples of the Founders referring to a well‑regulated militia as the “palladium” or “bulwark” of liberty—that is, a constitutional counterpoise to unlawful standing armies and one of several legal protections that balanced the Constitution in favor of the people.129 The significance the Founders placed on the constitutional concept of a well‑regulated militia is underscored by the fact that almost all of the Second Amendment’s language (or some variation thereof) can be found regularly within English and American militia laws spanning from the seventeenth through the eighteenth century.130
That the Second Amendment was included within the Bill of Rights with the purpose of sustaining the constitutional concept of a well‑regulated militia does not extinguish the fact that Southern slave states often utilized their militia rolls for the dual purpose of conducting slave patrols.131 It does, however, seriously call into academic question the implicit conclusion from which the “Second Amendment is racist” narrative principally rests.
For if circumstantial evidence and historical conjecture is all that is necessary to declare the Second Amendment as inherently racist, then the same loose standard must apply to all the amendments within the Bill of Rights. And under this loose evidentiary standard, given the disparate, inequitable legal treatment afforded people of color both before and after the ratification of the Bill of Rights, there is a valid argument to be made that—except for the Third Amendment—the entire Bill of Rights is inherently racist. For whether one examines the First Amendment rights of free speech, association, and religion, the Fourth Amendment rights against unreasonable searches and seizures, the Fifth Amendment right of due process, the Sixth Amendment right to a fair jury trial, and so forth and so forth, the evidentiary record is full of examples where people of color were mistreated and not afforded the same rights and protections as whites. Additionally, if circumstantial evidence and historical conjecture are indeed an acceptable academic standard, then those that subscribe to the “Second Amendment is racist” narrative must also concede to the validity of the “gun control is racist” narrative. But, academically speaking, this would set a very low scientific and evidentiary bar and it is largely why—that is, until recently—both the “Second Amendment is racist” and the “gun control is racist” narratives languished in academic obscurity.
The fact that neither “racist” history narratives were taken all that seriously in academia is not to say that they have coexisted equally within the public discourse. Without a doubt, the “gun control is racist” narrative has shown itself to be far more vocal, widespread, and politically prevalent than the “Second Amendment is racist” narrative, particularly among gun rights supporters.132 Conversely, the “Second Amendment is racist” narrative—although it did appear periodically in the public discourse from 1998 to 2017, largely in editorials133—failed to gain any considerable political traction. The reason for this is threefold. First, since the early twentieth-century genesis of the gun rights movement, the political fortitude, messaging, and strategy of gun rights supporters far surpassed that of gun control supporters. While gun rights organizations have been a political constant for more than a century,134 gun control organizations did not really enter the political fold until 1968, and since that time several gun control organizations have come and gone.135 And not one of these gun control organizations have come close to replicating the political power and influence of their gun rights organization counterparts. Second, unlike the “gun control is racist” narrative, no organization or institution has ever actively promoted or funded the “Second Amendment is racist” narrative.136 And there is certainly nothing even remotely comparable to the extremist message contained within the 1999 gun rights pamphlet titled “Gun Control” Is Racist!: Facts that Racists Don’t Want You to Know.137 Third and lastly, there is nothing within the Second Amendment’s text that implicates race, nor states or infers the militia shall be utilized for the suppression of slave rebellions.
However, beginning in 2018, a few historians gave the “Second Amendment is racist” narrative a veneer of historical legitimacy138—the most prominent being Emory University historian Carol Anderson,139 who asserts that the Second Amendment needs to stop being treated as “hallowed” or “holy ground,” but instead should be treated as an “indefensible” antecedent of slavery.140 Not long after Anderson published her findings, media outlets ran eyepopping headlines and interview segments with titles such as The Second Amendment Is Not About Guns—It’s About Anti-Blackness, a New Book Argues,141 Historian Uncovers the Racist Roots of the 2nd Amendment,142 and White Supremacy as the Foundation of the Second Amendment.143
What new historical evidence did Anderson uncover to resurrect the “Second Amendment is racist” narrative from the dustbin of history? Nothing, really. Virtually, Anderson uncovered the same “circumstantial” evidence that Bogus presented more than two decades ago. Yet, somehow, Anderson is confident that the Founders drafted, enacted, and ratified the Second Amendment with racist aforethought. As Anderson puts it in her book, The Second: Race and Guns in a Fatally Unequal America, the Second Amendment “not only elevated militias, whose primary and most important function was controlling the Black population, but ensured that the federal government’s constitutional role would not interfere in the states’ ability to use those forces when necessary.”144 In another section in Anderson’s book, the Second Amendment is viciously labeled a constitutional “bribe to the South using the control of Black people as the payoff.”145
The fact that neither Anderson nor anyone else has uncovered anything new in the way of buttressing the “Second Amendment is racist” narrative is not to say it is not built upon some historical layer of truth. As noted earlier, the historical intersection between race and firearms is complex and multifaceted. There is not one narrative, but many. Consider that just as history provides examples where people of color have disparately suffered at the hands of armed violence, state and nonstate sponsored alike, it also provides examples where people of color successfully armed themselves to protect their lives, liberty, and property. Simply put, there is no one right answer when it comes to the history of race and firearms.
Yet despite there being room for many narratives on the history of race and firearms, for Anderson or any other writer to conclude that the “Second Amendment is racist” primarily because Southern slaveholding states often utilized their militia rolls for the dual purpose of appointing slave patrols, is a disservice to the long and well-documented history of the right to keep and bear arms—a history that sufficiently predates American colonization and the normalization of slave patrols.146 For one, as Sally E. Hadden has demonstrated, and whom Anderson regularly cites in her book, the militia rolls were merely one of several means through which Southern slaveholding states and municipalities carried out slave patrols, as well as legally subjugated people of color.147 The simple point to be made is that the institution of slavery pervaded much more than just Southern state militias’ rolls. The institution was systemic in most facets of Southern society. Second, as outlined earlier in Part II, the significance the Founders placed on the constitutional concept of a well-regulated militia is thoroughly documented—a significance that ideologically had nothing to do with slave patrols.148 Third and lastly, if indeed the Second Amendment was a “bribe to the South” as Anderson suggests, the contemporaneous congressional debates on federal-state authority over the militia severely undercuts it. For not once during three years of congressional debate (1790–1792) over the division of powers between the national and state militias was the institution of slavery or the subject of slave patrols ever brought up.149 The overall point to be made is that for Anderson, or anyone for that matter, to confidently arrive at the conclusion that the Second Amendment was a “bribe to the South” requires substantiated evidence that proves it, which remains utterly lacking in the case of the “Second Amendment is racist” narrative.150
This concludes the how the narrative came to be, as well as its surprising resurgence in both the public and academic discourse. The why, however, remains elusive. While some supporters of the “Second Amendment is racist” narrative appear to have politically partisan reasons for doing so,151 there is no organized, well-funded movement behind it.152 Moreover, unlike the “gun control is racist” narrative, no one appears to be using the “Second Amendment is racist” narrative as a litigation strategy, i.e., trying to convince the courts to adopt a favorable form of judicial scrutiny that will constitutionally diminish the right to keep and bear arms. It seems that the best explanation for the resurgence of the “Second Amendment is racist” narrative is that the authors believe or intuitively want to believe it to be true. Certainly, it is every person’s right to believe whatever they want. However, historical claims require substantiated evidence to support them, and the “Second Amendment is racist” narrative falls woefully short.
Again, there is certainly room for many narratives on the history of race and firearms, including how firearms-related violence has historically impacted communities of color disproportionately. However, despite the necessity of these narratives being thoroughly examined and explored, when any narrative is principally built on historical misinformation, it will ultimately end up doing more harm than good.
III. Racist History and the Second Amendment: The History-in-Law Case for a High Evidentiary Burden
To understand how historical misinformation can end up doing more societal harm than good, one needs to look no further than the historiography of the Civil War. There is widespread academic consensus that slavery was far and away the war’s principal cause.153 Indeed, few if any historians will dispute that when Southerners outlined their reasons for supporting the war, they often did so in states’ rights terms, and certainly many Southerners supported the war for nonslavery-based reasons. However, the historical record is replete with examples that the principal states’ right that Southerners were defending was state authority to maintain the institution of slavery without federal interference.154 Yet not long after Reconstruction, Southerners began reframing the Civil War as a revolutionary, “lost cause” conflict over states’ rights155 and increasingly referred to it as the “war of Northern aggression.”156 And some even went so far as to defend slavery as a necessary and benevolent institution.157 To this day, due largely to this Southern historical reframing of the causes of the Civil War, the United States has yet to fully heal and move on. Despite the progress of the 1960s civil rights movement, the societal repercussions of the Civil War’s historical revisionism persist. The recent resurgence of white supremacist ideology, the debates over displaying the Confederate flag, and the debates over retaining Confederate monuments on government property are all cases in point.158
Similar, long-term societal harm will likely arise should either the “gun control is racist” narrative or “Second Amendment is racist” narrative ever be given the imprimatur of the courts. The narratives are simply opposite sides of the same ahistorical coin. This is not to say, of course, that there are not times and events where racism or discrimination reared its ugly head, whether it be in gun control or the Second Amendment context. It most assuredly has. Rather, what is concerning is the long-term harm that legitimizing either the “gun control is racist” or “Second Amendment is racist” narrative will have on the country. Both narratives are largely built on misinformation and serve to stoke political divisions only further, particularly as they pertain to the more-than-a-century-long political fight over gun rights and gun control.
As for history-in-law—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—legitimizing either the “gun control is racist” narrative or “Second Amendment is racist” narrative would have, at least in this author’s opinion, dire legal and constitutional consequences. For one, given that both narratives are largely built on misinformation, by accepting either narrative as true the courts will end up facilitating a perpetual chain of ill-founded jurisprudence.159 For one historical misstep begets another, and another, until myth consumes fact.160 Additionally, should the courts accept either the “gun control is racist” narrative or the “Second Amendment is racist” narrative, even piecemeal, it sends the wrong message that circumstantial evidence and historical conjecture is jurisprudentially equal to substantiated evidence and historical context.
Certainly, there are cases in which circumstantial evidence is all that has survived historical posterity, and therefore what historians must rely upon when reconstructing the past. In such cases, the courts will have to choose whether such circumstantial evidence is indeed sufficient to rely upon. But in this author’s opinion, it is best that the courts err on the side of caution and lean against relying on circumstantial historical evidence when adjudicating constitutional questions and controversies, particularly when alleged “racist history” is involved.161 There are two reasons for this. First, if circumstantial evidence of racism is all that is required to call a law or body of law into constitutional question, it would signal to litigants that all that is necessary for them to advance a legal claim is to unearth some evidence of racism, whether that be a racist article, editorial, statement, or allegation at any historical point in time, and decry the law or body of law as racist. Yet such arguments show too little and claim too much. Second, if the courts indeed accepted such a low standard and applied it evenly across the constitutional board, it would end up placing most, if not all, categories of law as having been tainted with racism. For following Reconstruction through the 1960s civil rights movement, particularly in the South, the historical intersection between racism and the law was systemic. Genuine novel additions to that historical record are useful and important; table-thumping based on strained extrapolations from the existing record are not.162
In closing, this author’s criticism of the “gun control is racist” and “Second Amendment is racist” narratives should not be interpreted as suggesting that racist or discriminatory aforethought is never relevant in adjudicating constitutional cases and controversies. To the contrary, if it can be shown that a particular law or body of law was adopted with racist or discriminatory aforethought, then said law or body of law should be adjudicated accordingly. But the evidentiary burden in such cases should be high—that is, with concrete and substantiated evidence, not evidence that is circumstantial, loosely connected, and principally based on historical conjecture.