Implicitly Inconsistent: The Persistent and Fatal Lack of Second Amendment Rights for Black Americans in Self-Defense Claims and The Importance of Telling the Counter-Story

Margaret H. C. Tippett

Gun control legislation in the United States began in the 1700s, when white people prohibited the purchase or use of guns by Black people. While the Civil Rights Act of 1866 overrode a majority of the restrictive “Black Codes,” high prices for weapons and ammunition implicitly regulated who could purchase a firearm, specifically targeting those with a lower income. Black people with guns were deemed dangerous and several states implemented white patrol groups that would seek out Black gun owners for punishment and torture. These regulations did not go unnoticed. Many Black people, notably The Black Panthers in the 1960s, retaliated and demanded equal rights and access to guns.

For decades, state and federal legislation has established what appears to be equitable regulation to curb gun violence—deploying officers to generally “high crime” areas and imposing “spot checks” in public transit areas and streets. However, these regulations inevitably contribute to the extreme policing and incarceration of Black people because they are specifically targeted by the police, fueled by the societal belief that Black neighborhoods and Black people are inherently “dangerous” and therefore more responsible for gun violence.

This Comment applies a Critical Race Theory (“CRT”) lens to present and historic gun-control legislation and the direct consequences of this legislation within the legal system. More specifically, this Comment will consider the history and creation of the Second Amendment for and by white people in perpetuating differential racialization of Black people to establish the illusion of the “dangerous” Black man versus the “heroic” white man. Further, this Comment will conduct a small case study of the exercise of self-defense and compare the current status of gun rights to the initial foundation of the Second Amendment. This Comment will draw a comparison between the history of gun rights and the current interpretation of gun rights in America. Finally, this Comment will propose a method that will help to mitigate racial bias in judicial courts by educating potential jury members about the racist history of the Second Amendment and the historically ingrained racial biases that people, particularly white individuals, inherently harbor.