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How Second Amendment gun rights fall short for African Americans

Nothing in the Constitution restricts gun ownership by ethnicity. But in reality, the Second Amendment doesn’t apply equally to people of color, who are often killed while trying to fully exercise their right to “keep and bear Arms.”

Handguns are offered for sale at a store in south suburban Tinley Park.
Handguns are offered for sale at a store in south suburban Tinley Park. Black Americans are buying firearms in record numbers, but on the ground, their Second Amendment rights are not respected, two legal experts write.
Scott Olson | Getty Images

It was described as a standoff. Congresswoman Lauren Boebert (R-Colorado) recently refused to permit Capitol Police to search her purse after she set off a metal detector. She now avoids the Capitol metal detectors entirely — so far, without consequence. The Second Amendment is allowing her to get away with a lot.

Boebert’s not alone in carrying a gun. According to data gathered from the FBI, 15 million guns were purchased between January and July 2020, marking a 91% increase from the same period in 2019. More than 30% of American adults claim to own a firearm.

What is different now is that the largest rise in gun sales in 2020 — nearly 60% — has been among African Americans, who increasingly fear that they can’t rely on law enforcement for safety.

Gun ownership comes with many risks, but these new gun owners should be given an additional warning: In practice, the Second Amendment right of African-Americans is limited.

Nothing in the Constitution restricts gun ownership by ethnicity, of course. But in reality, the Second Amendment doesn’t apply equally to people of color, who are often killed while trying to fully exercise their right to “keep and bear Arms” to defend themselves or protect others.

Take the story of Breonna Taylor and her boyfriend Kenneth Walker, neither of whom had criminal records. When three men in street clothes attempted to break through their door at one o’clock in the morning, Walker grabbed his registered firearm. When the men broke down the door, he fired a single shot in self-defense. The men, who he later learned were police, fired back several rounds. They shot Walker, arrested him for attempted murder and killed Breonna.

There are other cases that illustrate the same point. Take Philando Castile who, during a traffic stop, alerted the officer that he carried a registered gun in the vehicle but was shot and killed by police before he could explain. Then, there’s the 26-year old security guard from Illinois, Jemel Roberson, who apprehended a dangerous armed man at gunpoint but was shot immediately by police when they arrived on the scene.

Similarly, a heroic Emantic Bradford helped to protect the crowd from a lone gunman in an Alabama shopping mall — yet the 21-year old, who was lawfully carrying a firearm, was shot and killed by police.

Each of these men was licensed to carry. But contrast how police responded to them with their treatment of Kyle Rittenhouse, a white teenager charged in the killings of two men and the injury of a third during protests in Kenosha, Wisconsin. Rittenhouse, at 17, openly carried a semi-automatic AR-15 rifle as he strolled through the crowd, and at one point came in close proximity to police. He was arrested — without being shot — and later released on bond and allowed to return back home to Illinois while awaiting trial.

The obvious difference is that Castile, Roberson, Bradford and countless others are Black, in a country where Black civilians are not permitted to “use” guns without endangering their lives.

Historically, “Slave Codes,” “Black Codes,” and other gun control laws prohibited gun ownership by African Americans, who were frequently lynched or otherwise terrorized for violating these laws. The modern-day executions of African Americans who legally own guns fit this pattern.

There is no evidence that victims like Castile, Roberson and Bradford committed crimes, but such an argument would be meaningless here. Rep. Boebert violated the law by carrying a gun into the Capitol. Rittenhouse is charged with killing two people. And executing a person before they are charged, much less convicted and sentenced, is illegal.

Although 60% of Americans favor stricter gun control laws, many more Americans are buying guns now and view it as an exercise of their rights. The exercise of those constitutional rights should not be allowed to differ based on race or ethnicity.

Imagine if the First Amendment right to free speech or religion varied by race.

While the contours of the Second Amendment will continue to be debated, it should be construed equally for all Americans.

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Margareth Etienne is a law professor, associate dean and the Nancy Snowden Research Scholar at the University of Illinois College of Law. She is a former criminal attorney and a Public Voices Fellow of The OpEd Project.

Suja Thomas is the Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law. She is an expert in anti-discrimination law, constitutional law and civil procedure.