The Second Amendment
A White Privilege?
I actually wrote an article about this a few years ago, on a now-defunct website that I can no longer access. But I recently read about the police shooting of Terry Tillman in St. Louis in September, and it reminded me that this issue still persists in America. St. Louis is an “open carry” jurisdiction, and Mr. Tillman was carrying a pistol in a holster when he entered the Galleria Mall in Richmond Heights. Apparently, according to officers, the Galleria mall had recently changed its firearm policy, and when officers approached Tillman to kindly remind him of the new ‘no-guns policy,’ Tillman fled — out of the ‘no gun policy’ mall. Despite the fact that he left the premises, officers chased him into the parking lot, where he was then shot several times before dying. Police claim that Tillman raised his gun at officers, however people in the community, including Tillman’s family, aren’t convinced. They have demanded evidence, including video footage of the encounter. They want to know, “Did Terry Tillman get shot because he was a black man with a gun?” It’s an interesting question.
Americans love guns. And I mean, they love guns. Using data from the U.S. Bureau of Alcohol, Tobacco and Firearms, it is estimated that there are approximately 357 million firearms in the U.S. (as of 2015). That means there are more firearms in America than there are people (approximately 327 million). And that number doesn’t account for illegal imports or trade. Any way you count it, that’s a lot of firepower, enough for every man, woman and child to have 1.13 guns each. But every time anyone — especially a Democrat — suggests that we have too many guns, lively activists start warning us that the government is trying to take away our guns. Ironically, while Democrats are portrayed as freedom-hating gun-controllers, during the eight years of Democrat Barrack Obama’s presidency, the firearm industry actually expanded by 158%.
Of course, the righteous gun lobby always points to that most hallowed Constitutional right whenever they feel like their unfettered access to deadly weapons is being threatened — the Second Amendment. The Second Amendment to the U.S. Constitution reads:
“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
I won’t delve deeply into the complicated and tiresome debate about the inclusion of the phrase “a well regulated militia being necessary to the security of a free state.” In short, the gun-rights activists believe this phrase was extraneous narrative and had no substantive meaning, and was certainly not meant as any sort of limitation on the “right of the people to keep and bear arms.” Others disagree. The Constitution is rather famous for being precise and elegant, wasting very few words, and the framers weren’t wont to add meaningless and ambiguous exposition when carefully setting forth the fundamental rights of the new nation’s citizens. So those of us who don’t think the framers invoked a “well regulated militia” without reason believe this phrase was actually meant for firearms to be “well regulated.” The debate is ongoing.
At any rate, gun rights activists often interpret the Second Amendment to encompass every conceivable weapon, for any conceivable purpose, without restriction. Unfortunately, even the more conservative justices of the U.S. Supreme Court haven’t bought this overly broad interpretation. For example, in District of Columbia v. Heller, 554 U.S. 570 (2008), the late Justice Antonin Scalia stated:
“Like most rights, the right secured by the Second Amendment is not unlimited…. nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Nevertheless, the Right to Bear Arms is a jealously-protected right with a rich history in American politics. And frankly, I am not here today to challenge the Second Amendment. In fact, I grew up in the back woods of Georgia, in a house with no less than 10 firearms. I actually developed into a fairly competent marksman, and genuinely enjoyed target shooting. And while I don’t do a lot of shooting these days, I do not begrudge any American who wishes to exercise his or her Constitutional rights in a well-regulated manner.
Our collective obsession with firearms has led to many interesting news stories over the last few years. The “Open Carry Texas” movement, for instance, made some fun headlines, like “Open Carry Group Kicked Out of Sonic and Chili’s,” followed by “Sonic and Chili’s Announce No-Gun Policies.” There were several meme-worthy photographs of good ol’ American citizens toting automatic rifles into casual dining establishments, as was their god-given right. But what struck me as most unusual was that we didn’t hear about any of these assault-rifle-toting fellows being arrested, harassed, or shot by police.
Another blast from the not-too-distant past was Cliven Bundy. Bundy was a Nevada rancher that has been feuding with the federal government since the early 1990’s. Well, not feuding so much as refusing to pay for grazing rights on federal land. Bundy is a right-wing, state’s rights, tea-party hero who has explicitly stated that he “doesn’t recognize the existence of the federal government.” A few years ago, in 2014, that “feud” came to a head when the federal Bureau of Land Management attempted to evict Bundy’s cattle from the federal lands, for said refusal to pay for grazing rights. Over the course of several months, the BLM cordoned off the area and began rounding up Bundy’s cattle. Supporters of Bundy — fellow “tea-party” activists — showed up to help protest the federal government’s actions — with guns. At one point there was even an armed standoff between federal officials and Cliven Bundy-ans. And guess what happened? Officials negotiated with Bundy, and gave him his cattle back. And again, what I found most unusual was that not a single armed combatant — people who were actually pointing guns at federal officials — was shot, arrested, or otherwise prosecuted for their actions.
Now, let’s do a thought experiment. Imagine if two young black males walked into a local restaurant holding assault rifles, just because it was their Constitutional right to do so, and the staff and other patrons find this act to be disquieting. What might the following day’s headline read? “Open Carry Enthusiasts Prompt Local Business to Change Gun Policy?” Or would it be, perhaps, “Two Armed Assailants Killed By Police Minutes After Entering A Local Business.”
Imagine Cliven Bundy was a black man, intent on not paying his taxes because he “doesn’t recognize the U.S. Government.” When the I.R.S. showed up at his house, Bundy and several of his black friends met them in the yard with automatic weapons and threatened an armed insurrection if the federal agents wouldn’t negotiate. Headlines: “Activists Challenge the Federal Government and Are Granted Tax Amnesty;” or maybe “Violent Tax Evaders Gunned Down By ALL the Police?”
Having a hard time imagining these scenarios? Well, I don’t want to be accused of rank speculation, so let’s talk about some a little more realistic. The same year as Cliven Bundy threatened an armed uprising, John Crawford, a 22-year old black man from Ohio, was shot and killed inside a Wal-Mart. Police received a 911 call advising that there was a man walking around the store holding a rifle. Officers arrived, saw Mr. Crawford holding a rifle, and immediately shot and killed him. It should be noted , just as in the Terry Tillman story that I opened this article with, that Ohio is an “open carry” state, and people are allowed to carry firearms into Wal-Mart as long as they are clearly visible. Why was John Crawford perceived as a dangerous criminal just for exercising his right to open carry in Ohio? Well, he wasn’t. John Crawford was not even holding a real gun — it was a toy air rifle that was sold at that same Wal-Mart. He picked up a toy gun off of a shelf in the store, and he was gunned down for it, no questions asked.
Not long after the Crawford incident, another young black man — er, boy — 12-year old Tamir Rice, was killed by a police officer while wielding a pistol. Tamir Rice was playing with the gun in a public park when someone called the police and alerted them that someone was waving a gun around at the park. Police arrived, and within 2 seconds, shot and killed Tamir Rice — and it was caught on video. Police say they gave him a command, and he refused to comply, but the video shows that there was no time for either a command, or compliance thereto. The officer shot young Tamir as soon as he saw him. And the “gun” Tamir was armed with? An Airsoft — a toy — pistol.
More recently there was a young black man shot and killed in Sacramento. Stephon Clark, 22, was shot by police in his grandmother’s back yard. Police claimed that they “believed” Clark was pointing a gun at them, so they opened fire — 20 times. The entire encounter lasted for less than a minute, and ended with Clark dead from multiple gun shot wounds. It was discovered that the “object” in Clark’s hand that officers believed was a weapon, was a cell phone. Stephon Clark was shot to death because police officers mistook a cell phone for a firearm, in his own grandmother’s yard.
The point of this diatribe is to show the blatant discrepancy between how the public, and especially the law enforcement community, reacts to firearm possession by white people compared to black people. White people — mostly Republicans, Conservatives and Libertarians — hold rally’s, they go to NRA conventions, they lobby to prevent any type of gun control ever, and they routinely enjoy the privilege of walking around with their pistols, shotguns and assault rifles, unharmed and unharassed. But, all too often, a black guy picks up a gun — or even an object that police mistakenly believe is a gun — and the public panics, and police draw on them, and, all too often, shoot to kill.
As a criminal defense lawyer and public defender in New Orleans, I had the privilege of representing many young black men. In a criminal prosecution, one of the first stages is to have a Preliminary Examination, the purpose of which is to determine if police acted with ‘probable cause’ when they arrested, searched and/or seized the arrestee. The Fourth Amendment prevents law enforcement from performing “unreasonable searches and seizures” that are not based on probable cause. If it is found that an officer acted without probable cause, any evidence he recovers after the unreasonable search can be suppressed — or thrown out.
More times than I can count, officers testified that my client was arrested, or detained, based on nothing more than the officer’s observation that he was in possession of a firearm. A rifle on the dashboard, a pistol on the passenger seat, or a handgun discarded in the bushes. Based on these observations, officers decide to place the individual under arrest, and pursuant to a search incident to arrest, maybe they discover a small amount of marijuana, and thus charge him with a drug offense. Or maybe they don’t find anything on the person, and so they only charge him with Illegal Possession of a Firearm. Sometimes, they don’t even find a firearm. Sometimes police are — conveniently — wrong about seeing the person in possession of a firearm in the first place.
But time and time again, it doesn’t matter — the simple fact that police think they observe a firearm is practically always considered probable cause to arrest. When a black guy has a gun, even one in plain view in an otherwise legal manner, police have the right to arrest, search and seize that individual. The gun is always confiscated, and never returned, even if the person is determined to be innocent of any wrongdoing. No one wants to put a gun back “out on the streets.” At least not in a black community. When white guys walk around with guns, police applaud them for standing up for their Second Amendment rights. When black men try to exercise that right, police draw their weapons, order the man to the ground, and/or shoot and kill the “offender.”
I’m not saying that armed black men are always wrongfully arrested. Black men commit crimes with firearms all the time. Almost in the same proportion as white men. But the way we treat black men with firearms is markedly different than the way we treat white men. Hell the way we treat black men who “might be” armed with a firearm is markedly different than the way we treat white men who are beyond a doubt armed with guns. Remember when James Holmes — the mass shooter from Aurora, Colorado — was arrested? He was discovered minutes after he shot 70 moviegoers with an automatic weapon, still holding that automatic weapon when police arrived, yet not a single shot was fired by police. Or Dylan Roof, the white supremacist that shot and killed 9 black people inside a church in Charleston, S.C. — he was also taken into custody without any gunfire, and police actually took him to Burger King before they took him to jail.
Contrast with people like Philando Castille, a 32-year old black man from Minnesota, who was stopped because an officer thought Castille and his girlfriend “just look like people” that were involved in a robbery. The officer demanded Castille’s license and registration, and Castille informed the officer that he had a legal firearm in the vehicle, and he did, in fact, have a license to carry a firearm. However, while Castille was reaching for his wallet — and his identification — the officer shot him seven (7) times, killing him. The officer was charged with manslaughter, but was acquitted.
It would not be unfair to imagine that every one of the stories outlined in this article would have had a different outcome if the races of the ‘particular individuals’ had been reversed. I believe in common sense gun control — reasonable restrictions on gun ownership and possession, and an outright ban on assault weapons — but what matters even more is the equal enforcement of gun rights and restrictions. If we have open-carry laws, they should apply regardless of skin tone. If we have Second Amendment rights, then black men should not be detained, searched and arrested for the simple act of possessing a legal firearm. And certainly black men should not be gunned down by police every time an officer believes he may be armed with a dangerous — yet Constitutionally protected — weapon. But as it stands, it appears, at least occasionally, that the Second Amendment is not a universal right, but a privilege reserved to certain citizens — white ones.
