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9th Circuit judge writes of gun control's racist origins

A three-judge panel of the 9th U.S. Circuit Court of Appeals threw out California’s ban on high-capacity ammunition magazines, Friday, Aug. 14, saying the law violates the U.S. Constitution’s protection of the right to bear firearms. There is a story from The Associated Press in The Village News outlining this decision

The court found that magazines are protected and “commonly owned.” The ban “substantially burdened” the right of self-defense and the state’s ban was not the “least restrictive means” to achieve its interests.

What I also found interesting was Judge Kenneth Lee’s write-up and inclusion of some of our country’s racist origins of gun control on page 34-38 of his response. “Perhaps the most poignant and persuasive reminder of the fundamental right to self-defense rests in the denial of that right to Black Americans during tragic chapters of our country’s history,” Lee said, “After the founding, Southern states often severely limited, or outright prohibited, firearm possession by slaves, freedmen and others. The judicial branch, too, played a role in denying this fundamental right of self-defense to Blacks. In the infamous Dred Scott v. Sanford decision, Chief Justice Taney recited a parade of horribles if Black Americans were to be considered citizens: it would give Blacks the “right to enter every other state whenever they pleased,” to exercise “full liberty of speech,” to “hold public meetings upon political affairs,” and “to keep and carry arms wherever they went,” according to 60 U.S. 393, 417 in 1857.

It did not get much better even after a bloody war that tore the country apart. Post-Civil War state legislation and the Black Codes in the South deprived newly freed slaves of their Second Amendment rights, see McDonald, 561 U.S. at 771. Meanwhile, armed bands of ex-Confederates roamed the countryside forcibly disarming and terrorizing African- Americans. The Radical Republicans in Congress fought back against these “systematic efforts … to disarm.” Black Americans by enacting the Freedmen’s Bureau Act of 1866 and the Civil Rights Acts of 1866, both of which guaranteed all persons the right of self-defense.

But laws promising protection and equality for African Americans rang hollow because, in the post-Reconstruction era, the Ku Klux Klan and other marauding bands of terrorists slaughtered thousands of unarmed Black Americans. See generally Allen W. Trelease, “White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction” in 1971; see also Robert J. Kaczorowski, “Federal Enforcement of Civil Rights During the First Reconstruction,” vol. 23 of Fordham University’s Urban Law Journal, pages 155, 156-57, published in 1995. Not surprisingly, Black Americans embraced their right to self-defense, understanding that protections offered by the state may be promising in theory but fatal in fact. Ida B. Wells – the crusading journalist who co-founded the National Association for the Advancement of Colored Persons – wrote that “a Winchester rifle should have a place of honor in every Black home, and it should be used for that protection which the law refuses to give,” according to Ida B. Wells, “Southern Horrors and Other Writings: The Anti-Lynching Campaign of Ida B. Wells, 1892-1900” page 70 of the Jacqueline Jones Royster edition in 1997). Martin Luther King, Jr., despite his non-violent approach to protest, owned numerous firearms and hired armed men to guard his house during the Montgomery Bus Boycott in 1956. See Annelieke Dirks, “Between Threat and Reality: The National Association for the Advancement of Colored People and the Emergence of Armed Self-Defense in Clarksdale and Natchez, Mississippi, 1960-1965, 1 J. for the Study of Radicalism” page 71-73 from 2007. One civil rights activist who visited King’s home during that time described the house as an “arsenal.”

Stories of other civil rights activists exercising their right to self-defense are legion. While the NAACP espoused nonviolence, many of its members carried firearms for self- protection and for good reason. Aaron Henry, a branch president of the NAACP, would openly display his firearm after his house was firebombed in 1963. When NAACP activist Hartman Turnbow tried to register to vote, nightriders lit his house on fire with Molotov cocktails. Turnbow recounted that he grabbed his rifle, escaped the burning building and exchanged gunfire with two white men waiting outside. The men fled once Turnbow started shooting back. Ida B. Wells documented that “(o)f the many inhuman outrages of (that) year, the only case where the proposed lynching did not occur, was where the men armed themselves . . . and prevented it. The only times an Afro-American who was assaulted (and) got away has been when he had a gun and used it in self-defense,” according to Ida B. Wells.

During the crucible of the civil rights movement, Black American veterans from World War II and the Korean War founded the Deacons for Defense and Justice to protect Black people from racial violence at the hands of the Ku Klux Klan. See generally Lance Hill, “The Deacons for Defense: Armed Resistance and the Civil Rights Movement” from University of North Carolina Press edition in 2004. In 1966, the small Louisiana town of Bogalusa integrated the local junior high school to the ire of the local Klan. Armed with guns, this roving band of racist terrorists arrived at the junior high school. Their intentions were obvious: In that small town, two African Americans, one of whom was a deputy sheriff, had been recently killed by white people. But this time around, the Klan encountered something unexpected at the entrance of the school: The Deacons for Defense and Justice – armed with revolvers and rifles, and rooted in righteousness and resolution. Outgunned by the Deacons, the Klan fled. As one member of the Deacons noted afterward, “From that day forward, we didn’t have too many more problems.”

These terrible events did not occur long ago in faraway lands. They occurred on American soil, some less than 60 years ago. And tragically, they are not unique. Indeed, Black Americans’ experience throughout the civil rights movement was just the latest iteration in an ongoing struggle to defend hearth and home from those who wished them ill.

Our country’s history has shown that communities of color have a particularly compelling interest in exercising their Second Amendment rights. The Second Amendment provides one last line of defense for people of color when the state cannot – or will not – step in to protect them. It remains true today across all communities of color.”

Julie Reeder can be reached by email at [email protected].


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