The U.S. Constitution was intended to recognize the natural rights of citizens. The Second Amendment, like the First Amendment, doesn’t give anyone any rights. Instead, it prohibits the federal government from infringing on rights that are natural and God-given and that preexist government. The Declaration of Independence sets forth the essential principles. Every person (i.e., not just American citizens) is endowed by nature or God with fundamental rights. These include life, liberty, and the pursuit of happiness.
Thus, given that people’s rights are natural and God-given, they preexist government. The rights come first and the government comes second.
The Founding Fathers did not believe that these rights could not be limited, however. Instead, they saw that legislation that restricted one’s natural rights should be handled by governments closer to the people themselves, including states and localities.
This is why the Bill of Rights was not intended to apply to state government.
Though many state constitutions shared similarities with the Bill of Rights, by 1820 only 9 of 22 states had language explicitly protecting the right to bear arms: Massachusetts (1780), Pennsylvania (1790), Kentucky (1792), Tennessee (1796), Ohio (1801), Indiana (1816), Mississippi (1817), Connecticut (1818), Alabama (1819), and Maine (1819). (The number was 18 of 33 by 1886.)
While the right to bear arms applied equally to “whites”, in many cases it banned Native Americans, “Free Negroes”, “Mulattos” and of course slaves.
Prior to the passing of the 14th Amendment, eight states had gun control legislation that criminalized the possession of fire arms by non-white free citizens. Virginia required such individuals to receive government permission. Three additional states had constitutional language that specified that gun rights were reserved exclusively for white men.
While slavery ended as a result of the Civil War, racially motivated gun control laws continued.
While the 14th Amendment prevented states from explicitly mentioning race in legislation, state governments still managed to find ways to disarm black citizens.
As David Kopel and Joseph Greenlee have noted, these included laws that banned pistols that were not used by former Confederate officers, severe racial discrepancies in the penalty for unlawfully concealed carrying, as well as gun licensing requirements that, in the words of a future Florida Supreme Court Justice, were “passed for the purpose of disarming the negro laborers” and “was never intended to apply to the white population.”
The Black Panthers’ basic ideology was one of armed protection against police oppression.
“The key plank of the Panther platform, the one which would shape its history and predetermine its course, was a non-negotiable demand for the immediate end of police harassment and brutality in the black community…indeed, their very name proclaimed a dedication to the concept of armed self-defense.” — Huey Newton.
For Huey Newton, the black ghetto was merely a colonized nation at war with an oppressive police state. The residents of the black community therefore had a right to defend themselves against acts of aggression, and who better to police the streets of Oakland than the “brothers off the block?—brothers who had been out there robbing banks, brothers who had been pimping, brothers who had been peddling dope, brothers who ain’t gonna take no shit.”
California’s Mulford Act, signed in 1967 by Governor Ronald Reagan was a direct response to the Black Panthers’ open-carry patrols of Oakland neighborhoods, and banned the carrying of loaded weapons.
Gun control policies continue to discriminate against minority communities. Every government hurdle placed on legal gun ownership renders citizens more dependent upon the state for their own protection. The ACLU has found that African American and Latino neighborhoods wait much longer for a police officer to be dispatched after an emergency 911 call, have fewer officers assigned to minority districts for each emergency call than predominantly white neighborhoods and that minority neighborhoods continue to have more violent crimes per officer than white neighborhoods.
Justice Clarence Thomas also noted the unique experience of black Americans in his opinion on McDonald v. Chicago, “the first colonial statute that specifically targeted black people (not just slaves, not Indians, and not white servants) was a Virginia law prohibiting gun ownership for blacks in 1639:
The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “ ‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’ ”
So while it is easy for well-protected politicians, celebrities, and billionaires to champion the cause of gun control, it’s important to remember that the history of such legislation has come at the expense of those most vulnerable in society.