Gun Control and Black America

Protesters and supporters of Kyle Rittenhouse gather outside at Kenosha county courthouse during the jury deliberations of the case, Kenosha, Wisconsin, USA, November 18, 2021.

Kyle Rittenhouse learned that, following the police shooting of a Black man, Jacob Blake, outraged citizens would be showing up in Kenosha, Wisconsin, to protest that Black lives matter. So, Rittenhouse, his inclinations piqued in opposition to the BLM movement, armed himself with a semi-automatic, AR-15 style rifle and drove the twenty miles to Kenosha from his home in Antioch, Illinois. There, he shot two protestors dead and wounded a third. The victims had been sufficiently reactive to Rittenhouse’s menacing presence for his legal team to summon a “self-defense” legal claim. And Rittenhouse’s imperious opposition to the social justice protest was sufficiently lionized by virtue of a photo of his hauling the AR-15 down the Kenosha streets for reactionary extremists to have adopted the image as a symbole à célébrer.

In some contrast, the 12-gage Remington pump shotgun held by Travis McMichael – one of three neighborhood “vigilantes” who took it upon themselves to ambush and kill Ahmaud Arbery, a Black man who had the audacity to go for a jog through their Brunswick, Georgia, neighborhood – has been depicted as little more than the murderer’s ugly appendage. The state “citizen’s arrest” law (“a private person may arrest . .”), under the purported authority of which the assailants engaged in their atavistic effort to win back the streets, was an 1861 white-only codification, Black people not then qualifying as “persons” under Georgia law.

Racial politics in America have long been entwined with gun carry and gun ownership policy. Lawmakers have tended to respond to the identity of those publicized as bearing the arms, and depending on whether the individuals or groups appear to threaten or reinforce entrenched power. When the Black Panther Party for Self-Defense was formed in California’s San Francisco/Oakland area in 1966, and Panthers began carrying weapons to demonstrations protesting police brutality, legislators introduced a measure aimed at outlawing the carrying of firearms within city limits. On the day the Assembly heard the bill in Sacramento, Bobby Seale led an armed Panthers contingent to the hearing and delivered a “call on the American people in general and the black people in particular to take full note of the racist California legislature aimed at keeping the black people disarmed and powerless at the very same time that racist police agencies throughout the country are intensifying the terror and repression of black people.” Then-California Governor Ronald Reagan quickly thereafter signed into law the Mulford Act, which repealed a law allowing public carrying of loaded firearms.

Continuing to manifest Seale’s then-expressed concerns, to this day Black citizens are 13% of the U.S. population but 40% of the prison population, more likely to be arrested for the same crime as that committed by a white person, 20% more likely to be sentenced to jail time, and on average face a prison sentence 20% longer. But the prototypical gun bearer, in the public image, has shifted. In 1993, right-wing extremists in the United States launched their “militia movement,” steeped in anti-government, conspiracy-oriented ideology, and comprised of formally and informally organized, armed paramilitary groups. The militia movement has been nearly all-white, spewing xenophobic and white sovereignty claims, euphemistically self-identifying as a “Patriot” offensive. However labeled, the loose network of groups has deemed itself entitled to threaten violence, or to directly partake of a variety of criminal enterprises, including possession of illegal weapons and explosives, homicides, and numerous terrorist plots. Coupled with their white supremacist ideology, the militias’ most bitterly voiced grievance has been the government’s alleged usurpation of the individual right to bear arms.

In 2005, the United States Congress enacted a law titled “The Protection of Lawful Commerce in Arms Act,” which generally prohibits victims of gun violence from bringing civil lawsuits against the gun manufacturers, albeit with some exceptions that would apply where the manufacturer has directly engaged in a high level of negligence or intentional misconduct. Three years later, the Supreme Court decided the case of District of Columbia v. Heller (US 2008), which struck down a law barring individual private possession of handguns, the law having been adopted for the purpose of “reducing the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.”

Following the acquittal in 2012 of George Zimmerman in the shooting death of a Black teenager, organizers launched the BLM movement, spreading the word by means of the #BlackLivesMatter social media hashtag. National recognition followed during protests in 2014 over the police killings of two Black men, Michael Brown in Ferguson, Missouri, and Eric Garner in New York City. A string of similar state-sponsored assaults on Black citizens’ humanity and dignity followed. In 2020, then-police officer Derek Chauvin held his knee on George Floyd’s neck on a Minneapolis street corner for nine uninterrupted minutes, as Floyd, ostensibly suspected merely of passing a counterfeit $20 bill, gasped for breath and cried out for his mother. Some 20 million people participated in the BLM protests over this murder.

At least each year since 2013, police officers in the United States have killed over 1000 civilians, and social scientists, mapping event characteristics to the elements of reasonableness articulated in case law, have found that Black suspects are more than twice as likely to be killed by police than are persons of other racial or ethnic groups. Importantly, this statistic applies when there are no other obvious circumstances during the encounter that would make the use of deadly force reasonable. Cell phone or other videos convey a sense of unmediated access to a tiny fraction of these homicides, depictions that generate alarm, sadness, anger, and outrage, and a widespread will to march against continued injustice. Although verbal accounts of Ahmaud Arbery’s slaying in February 2020 strongly suggested a racially motivated ambush and clear lack of any legal justification, state suppression of a video of the ambush stifled mass reaction for three months until that video was leaked to the public.

The U.S. Supreme Court in the November 2021 session heard argument in the case of New York State Rifle & Pistol Association v. Bruen, the gun organization and its array of “amici” supporters arguing that the New York law prohibiting residents from carrying concealed weapons outside their homes and without a license to do so violates the Second Amendment. The specter of denizens of densely populated urban centers on perpetual edge over being elbowed aside by the armed yet unhinged actor notwithstanding, Chief Justice John Roberts in his questioning turned the implications on their head, retorting to New York’s Solicitor General, “if the purpose of the Second Amendment is to allow people to protect themselves, that’s implicated when you’re in a high-crime area.”

Andy Warhol’s weapons paintings conveyed “the inherent phallocratic nature of the gun” endowing its carrier with “an overt declaration of power, ownership and authority — a visual symbol that naturally begets violence and machoism.” The Zeitgeist emanating from the self-appointed “Patriot” movement exploits the firearm’s antidote to invisibility in a world of imagined “replacement” by other racial and ethnic groups, instilled by means of the weapon’s aesthetic allure (Ethan Crumbley named his Christmas gift from his parents, a 9-millimeter Sig Sauer handgun, “My new beauty”). In the extremist mind, BLM is threateningly imminent, gun possession should be ubiquitous for “our side” of the divide, and rampant arming presents no reason to worry because a good guy with a gun stops a bad guy with a gun. Plus, for the fainthearted, the law ensnares wrongful uses of such weapons, even if only under the most blatant and unambiguous conditions, as in Brunswick.

Although social justice protests are overwhelmingly peaceful, “Patriots” have grown into experiencing an existential threat from the dignitarian demands of non-white people. So when Justice Elena Kagan posed the question during oral argument to counsel appearing on behalf of Rifle and Pistol, whether the Second Amendment would allow weapons restrictions in the context of a “protest or event that has more than 10,000 people,” the lawyer responded that such a circumstance would be “trickier . ., I don’t think that would be a sensitive place” warranting any such restriction. Analysis might further explore ways in which Second Amendment jurisprudence and verdicts in “cool gun” cases like Rittenhouse tend to cloak a larger ideological tendency toward obscuring the active roles taken by the state, and sometimes the courts themselves, in sustaining hierarchies of racial power.

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Alani Golanski

Alani Golanski is a James Kent Scholar at the Columbia University School of Law. He has an M.A. in Philosophy from the Graduate Center, City University of New York. He is currently the Director of Appellate Litigation, Weitz & Luxenberg, P.C. in New York. Follow his tweets @alanigolanski.