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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 to confront the link between the Second Amendment and slavery that it has previously overlooked.
The justices next month will hear a challenge backed by the National Rifle Association to New York state’s restrictions on concealed handguns in public. The NRA and two gun owners are claiming the restrictions violate the Second Amendment, arguing that Americans have an unfettered right to carry guns in public for self-defense.
Conservative justices are expected to extend into the public sphere the gun rights established by the court in 2008 and 2010 for protection inside the home.
The court’s 2008 ruling in District of Columbia v. Heller entrenched the two dominant narratives in the political battle over gun control, and has defined much of our public history on guns and citizenship.
In the 5-4 ruling, conservative justices determined that the Second Amendment was originally intended to grant an individual right to have guns, tied to self-defense, and unconnected with militia service, such as the National Guard.
Justice Antonin Scalia, originalism's most prominent evangelist, said the Second Amendment right stemmed mainly from fears that the federal government might disarm citizen militias, enabling a standing army to rule.
The liberal's 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 that's evident in the first words of the Amendment: "A well regulated Militia, being necessary to the security of a free State..."
But there's another “originalist” narrative evident in the very source materials the justices studied, which seems to have more support than their versions of history. Indeed, the historical record shows 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 runaways.
The court's acknowledgement of that narrative would indicate its willingness to confront our history in the forthright manner demanded by originalism -- whether or not one agrees that we should adhere to the founders' ideals.
The thesis of racism at the root of the Second Amendment has been developed, most notably, by Carol Anderson, a bestselling author and historian at Emory University. Anderson published The Second: Race and Guns in a Fatally Unequal America in June. Anderson's book also asserts that the right to weapons has been continuously denied to Black people.
I asked if she thinks the court might confront that history head on and what that might signify. She took a long pause.
“I don’t think they’re going to engage my argument because that would require them to deal with anti-Blackness as a strong factor in American jurisprudence and history,” Anderson said. “I can see that eddying over into issues of criminal justice or voting rights, so I really think dealing with anti-Blackness would be anathema for this court.”
Americans are generally aware that the Constitutional drafters adopted a clause that counted enslaved Black persons as three-fifths of a human, as a compromise to mostly Southern slave-holders.
Anderson argues the Second Amendment is in the same sordid category. Here's some of the evidence:
First, there is a lesser-known 1788 speech by former Virginia Governor Patrick Henry -- the man famous for “Give me liberty, or give me death!"
During the founding period, 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 might dismantle slave patrols if it retained the power to arm and disarm "militias" -- leaving southerners unprotected from their slave population, Carl Bogus, a professor at Roger Williams University School of Law, wrote in The Hidden History of the Second Amendment in 1998.
Here’s how Henry put his concern to the Virginia Ratifying Convention.
“If the country be invaded, a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress … Congress, and Congress only, can call forth the militia.”
Another venerated founder, James Madison, revised the amendment to appease the pro-slavery contingent. The final amendment explicitly linked the right to bear arms to militia service and the states' security, curtailing the federal government's powers over state militias, while still leaving room for those states to enact 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 that got rejected. But the justice glossed over the reasons. Jefferson's proposed amendment was essentially identical to Scalia's ultimate interpretation, according to Picadio. In other words, it conferred an individual right to arms. Virginia apparently rejected that version because it was broad enough to allow Black gun ownership, Picadio said.
Scalia also concluded in Heller that it’s obvious Black people weren't prevented from carrying guns during the founding period. But that “is not obvious at all,” Stevens wrote, adding that “many States” did just that.
I asked Bogus, at Roger Williams, whether the court might have ignored this other narrative in the historical record.
“Would Supreme Court justices take an ostrich approach to arguments that the 2nd Amendment was motivated by concerns about preserving the slave system? Yes, I think it’s possible that’s what happened,” he said.
Anderson took a shorter pause when I asked her to reflect on what it would mean if the court continues to overlook this history.
“I think that would mean they’re simply being ‘originalist,’ in a sort of twisted way," she said. "Ignoring reality – like writing that it’s self-evident all men are created equal, while owning slaves."
Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.
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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.
Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at [email protected]
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