Thursday, July 07, 2016

The Whites-Only Second Amendment

Believe it or not, I've never been an anti-gun zealot. I've fired a gun before, once, at camp (it had a shooting range) -- it didn't really make an impression on me one way or the other. I'm a huge fan of Top Shot. I did some pro bono work for the Brady Campaign, even interviewed for a job there, but I withdraw my name from consideration immediately afterwards -- I knew I didn't have the true fire in the belly to work there.

I also know enough of the scholarly literature to be quite aware of checkered past gun control has had vis-a-vis the civil rights movement -- David Graham provides some of that history in this incisive piece. There were many periods where efforts to take away guns blossomed because, simply put, black people were using them to defend themselves against racist whites. The NRA has, of course, expended quite a bit of time excavating this history in order to argue that more guns, not fewer, are the solution to violence besetting communities of color.

And yet today, it is beyond clear that the Second Amendment is meaningless for black gun owners. There is no right to bear arms if you're black, and the "defenders" of gun rights like the NRA have virtually nothing to say when black people are victimized for exercising that right.

After all, if there is a right to open carry, then a black man seen with a gun is not only not committing a crime, there's not even probable cause to believe that they have. If a state allows concealed carry, then telling an officer that one has a concealed (and permitted) handgun can't justify even heightened anxiety, let alone fear for one's life. But everyone knows that black men cannot actually draw on these "rights". It doesn't matter if the gun is permitted, out of reach, or even real. A black man possessing a gun is always going to be viewed as a valid target, no matter what the law says.

And as for the NRA -- of course they're not going to stand up for these gun owners. In the NRA's world, black people don't get to own guns, they're the reason one owns guns. When they talk about guns being essential to American liberty, they don't envision an armed black population evening out the balance of force in a police encounter -- that's what justifies force in a police encounter. When they blather about a well-armed citizenry as a bulwark against tyranny, they don't have in mind Black Panthers exercising their open carry rights at the capital; they imagine Clive Bundy making an ass of himself.

Anyone who's read and takes seriously works flowing from the Black Power movement has to acknowledge the theoretical purchase of the idea that vulnerable populations are the ones who lose out when majoritarian dominated institutions gain a monopoly on the instruments of violence. But practical experience has made it abundantly obvious that this theoretical argument has no practical value. "Gun rights" has long since settled into a contented status quo accessible by whites and whites alone.

And that's unsustainable. If as a society, we feel threatened when a black man walks around openly carrying a firearm, that should mean that nobody has the right to openly carry a firearm. If possession of a gun by a black man is sufficient to justify a police shooting, then possession of a gun by anyone justifies it. In short, if we can't guarantee gun rights for everyone -- and we can't, it's clear that we can't, and gun rights organizations have no interest in changing it so we can -- then they don't belong to anyone. The status quo is racist, murderous, and toxic to rule of law. It is not sustainable. And eventually, it will fall.


EW said...

If a state allows concealed carry, then telling an officer that one has a concealed (and permitted) handgun can't justify even heightened anxiety, let alone fear for one's life.

As a matter of fact, yes. A cop would get convicted if he said, “Based solely on the fact that the victim said he was legally bearing a concealed handgun, I feared for my life and therefore shot him.”

But as a matter of doctrine, it is unclear to me that someone’s legal behavior could never constitute grounds for fear justifying the use of deadly force. Could you justify shooting the toddler ambling toward the nuclear trigger? Ambling is legal, yet still might result in disaster. (Admittedly, at the moment I can’t come up with any remotely plausible hypotheticals involving concealed carry….)

And moreover, even if you could not justify fear based on some legal behavior in isolation, any cop would be able to cite multiple factors that, in combination, contributed to his fear. And the fact that those factors were each legal, in and of themselves, would not mean that they could not, in combination, justify fear.

For example, imagine a cop learns that a homicidal nut in the vicinity is weaving back and forth in a rusty green Gremlin, shooting cops. The cop finds himself trapped in an alley as a rusty green Gremlin weaves down toward him. Now, driving a rusty green Gremlin is not illegal. Weaving is not necessarily illegal. But given the totality of circumstances, the cop might be justified in employing deadly force in his own defense.

EW said...

If possession of a gun by a black man is sufficient to justify a police shooting, then possession of a gun by anyone justifies it.

I heard some of the comments of the girlfriend of the guy who just got shot in Minnesota. I thought she showed surprising self-restraint. I imagined being in her shoes, and saying this:

“I know police officers. I know they want to support their fellow officers. That’s natural, and it’s laudable. But in this case, the cost of that support is too high. If officers really want to support their fellow officers, the single most important thing they can do is ensure that this one officer pays for what he did.

Because everyone is waiting to learn what the law is in Minnesota. Can you justify killing someone just ‘cuz he’s carrying a weapon? The day that cop gets sent to prison, we’ll know that it isn’t. Alternatively, the day that cop goes free, we’ll know that it is. And I cringe to imagine what mayhem we will see on the streets of Minnesota that day—especially for cops.

I lost the man I love ‘cuz he was carrying a gun. So I want to talk to people: Does someone you love carry a gun? If so, please TALK to that person—especially if he’s a cop. TELL THEM how important it is that we send a clear message that you can’t shoot people merely because they’re legally armed. And think about what you would say if you were sitting where I’m sitting. Because if we can’t fix this, eventually – you will be.”