NRA lawsuit gives SCOTUS a chance to confront 2nd Amendment roots in racism

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Oct. 22 (Reuters) – The U.S. Supreme Court will soon have its first opportunity in more than a decade to redefine the scope of gun rights and confront the connection between the Second Amendment and the slavery it had previously neglected.

Next month, judges will hear a National Rifle Association-backed challenge against New York State’s restrictions on handguns concealed in public. The NRA and two gun owners claim the restrictions violate the Second Amendment, claiming Americans have the absolute right to carry guns in public in self-defense.

Conservative judges are expected to extend to the public sphere the rights to firearms established by the court in 2008 and 2010 for protection inside the home.

The 2008 court decision in District of Columbia v. Heller rooted the two dominant narratives in the political battle over gun control and defined much of our public history of guns and citizenship.

In Decision 5-4, the Conservative justices determined that the Second Amendment was originally intended to grant an individual right to have firearms, linked to self-defense and unrelated to militia service, such as the Guard. national.

Originalism’s foremost evangelist, Justice Antonin Scalia, said Second Amendment law stems primarily from fears that the federal government would disarm citizen militias, allowing a standing army to rule.

The liberal legal interpretation in Heller was that the Second Amendment grants a collective right in the context of state-regulated militias. Justice John Paul Stevens said it was evident in the opening words of the amendment: “A well-regulated militia, being necessary for the security of a free state …”

But there is another “original” narrative evident in the very documents the judges studied, which appears to have more support than their versions of the story. Indeed, historical records show that the Second Amendment is rooted in racism and was written to preserve Southern state militias whose job it was to crush slave rebellions and capture the fugitives.

The court’s recognition of this narrative would indicate its willingness to confront our history in the frank manner demanded by originalism – whether or not we accept that we adhere to the ideals of the founders.

The racism thesis behind the Second Amendment was developed, among other things, by Carol Anderson, a bestselling author and historian at Emory University. Anderson released The Second: Race and Guns in a Fatally Unequal America in June. Anderson’s book also asserts that black people have been continuously denied the right to arms.

I asked her if she thought the court could face this story head-on and what that might mean. She paused for a long time.

“I don’t think they’re going to engage my argument because it would force them to treat anti-noir as a significant factor in American jurisprudence and history,” Anderson said. “I can see this turn into criminal justice or voting rights issues, so I really think dealing with anti-Blackness would be anathema to this court.”

Americans are generally aware that the framers of the Constitution passed a clause that counted enslaved blacks as three-fifths of a human being, as a compromise for most southern slave holders.

Anderson argues that the Second Amendment is in the same sordid category. Here is some evidence:

First, there’s a lesser-known speech from 1788 by former Virginia Governor Patrick Henry, the man famous for “Give me freedom or give me death!” “

During the founding period, the Southern militias were largely all-white slave patrols tasked with detecting and suppressing revolts, as documented by historian and Western Michigan University professor Sally. Hadden, in the 2003 book Slave Patrols: Law and Violence in Virginia and the Carolinas.

Henry feared that the federal government would dismantle the slave patrols if it retained the power to arm and disarm the “militias” – leaving the southerners unprotected from their slave population, wrote Carl Bogus, professor at the Roger Williams University Law School, in The Hidden History of the Second Amendment in 1998.

Here’s how Henry raised his concerns at the Virginia Ratification Convention.

“If the country is invaded, a state can go to war, but cannot suppress insurgencies. If an insurrection of slaves were to occur, the country cannot be said to be invaded. So they cannot suppress it without the intervention of Congress… Congress, and Congress alone, can call in the militia.

Another revered founder, James Madison, revised the amendment to appease the pro-slavery contingent. The last amendment explicitly linked the right to bear arms to militia service and state security, reducing the powers of the federal government over state militias, while leaving the ability for those states to adopt individual restrictions. On gun possession, Anthony Picadio, a lawyer at Houston Harbaugh in Pittsburgh, wrote in 2019 in The Right to Bear Arms: A Disfavored Right.

Second, we know that in Heller, Scalia briefly mentioned that Thomas Jefferson proposed a version of the Second Amendment which was defeated. But justice ignored the reasons. The amendment proposed by Jefferson was essentially the same as Scalia’s ultimate interpretation, according to Picadio. In other words, it conferred an individual right to arms. Virginia apparently rejected this version because it was large enough to allow possession of black weapons, Picadio said.

Scalia also concluded to Heller that it was evident that black people were not restricted from carrying firearms during the founding period. But that “is not at all obvious,” Stevens wrote, adding that “many states” have done just that.

I asked Bogus at Roger Williams if the court could have ignored this other account in the historical record.

“Would the Supreme Court justices take an ostrich approach to arguments that the 2nd Amendment was motivated by concerns about the preservation of the slave system?” Yes, I think it is possible that this is what happened, ”he said.

Anderson took a shorter break when I asked him to think about what it would mean if the court continued to overlook this story.

“I think that would mean they’re just ‘original’, in a twisted way,” she said. “Ignoring reality – like writing that it stands to reason that all men are created equal, while owning slaves.”

The opinions expressed here are those of the author. Reuters News, under the principles of trust, is committed to respecting integrity, independence and freedom from bias.

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The opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the principles of trust, is committed to respecting integrity, independence and freedom from bias.

Hassan Kanu |

Hassan Kanu writes on access to justice, race and equality under the law. Kanu, who was born in Sierra Leone and raised in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years working mainly on labor law. He lives in Washington, DC Reach Kanu at [email protected]

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