Excerpted From: Margaret H. C. Tippett, Implicitly Inconsistent: The Persistent and Fatal Lack of Second Amendment Rights for Black Americans in Self-defense Claims and the Importance of Telling the Counter-story, 82 Maryland Law Review Online 68 (2022) (Footnotes) (Full Document)


MargaretHCTippettAmericans are terrified of gun violence, and rightly so. In 2020 alone, 45,222 people died from gun-related injuries and violence in The United States. However, as violent crime rates rise in the United States, it is no surprise that people are turning to more drastic means of protection, straying further from non-automatic weapons, like knives or pepper spray. Forty- percent of American adults own a gun or live with someone who does, and sixty-seven-percent point to the desire for protection and home security as their primary reason for choosing to own a gun. Rising instances of hate crimes in the U.S. have resulted in Americans of color rushing to purchase guns and applying for concealed carry licenses. Despite extreme social pushback and outcry against gun violence, the Supreme Court continues to affirm the right to own a gun as grounded in the Second Amendment, observing the “right to bear arms for the defense of himself and family and his homestead.”

Bruce, a Black American man, purchased his first firearm in response to the increasing racial violence and fatal shooting of Ahmaud Arbery. He had never owned a gun before, but felt it was time to purchase a gun for his own protection. Similarly, Clyde, an Asian American man, purchased a gun after stories of assault and verbal attacks made him fearful of becoming the target of a hate crime. These stories track the rise in firearms sales by minority Americans, which has increased nearly sixty-percent during the first six months of 2020 compared to 2019. There is no doubt that Black Americans and other people of color live in fear and seek self-defense and protection in the form of automatic weapons.

Unfortunately, studies show that owning a gun may correlate with higher risks for accidental gun violence, suicide, and domestic violence--suggesting that gun ownership might not offer the protection that Americans envision. While the risks associated with owning a gun plague all Americans, armed Black Americans are specifically at an increased risk of violence, especially from law enforcement. One study shows that Black men are nearly three times more likely to be killed by the police than white men. Lethal actions by law enforcement disproportionately affect Black people and most victims are reported to be armed with a gun themselves.

So, why can't Black Americans protect themselves like white Americans by carrying a gun for protection? Stereotypes of the “dangerous” Black man perpetuate social expectations of what purpose a Black man may have for carrying a gun. These biases are deeply rooted in the creation and foundation of the Second Amendment, when Black people were heavily restricted from owning guns, stemming from the fears of white people that Black men would initiate a slave rebellion with lethal weapons. Despite the fact that over three hundred years have passed since the establishment of the Second Amendment, carrying a gun still looks very different for Black people compared to white people. Persistent stereotypes are rooted in the Second Amendment: White people who use guns for self-defense are labeled as heroes and protectors, while Black people who carry or use guns for self-defense are stereotyped as the “dangerous” Black man trope.

This Comment will address the counter-story and history of the Second Amendment and the racist roots of the fundamental right to bear arms. Approaching this issue through a Critical Race Theory perspective, this Comment will describe how white people have crafted the law to benefit themselves. Furthermore, this Comment will discuss the perpetuation of differential racialization and the negative stereotyping of Black people by consistently preserving and protecting the needs of white Americans when applying the Second Amendment. These stereotypes, created in the 1700s by white people who were fearful of Black people with guns, have continued to exist, permeating our current culture and justice system. To provide an example of the disparate application of the Second Amendment to Black Americans, this Comment will draw a comparison between two case studies to portray the similarities between the original intent of the right to bear arms and the current interpretation. This Comment will offer a method to address bias in the courtroom by encouraging courts to bring attention to the negative racial influence of the Second Amendment by instructing jury members on the history of the Second Amendment and the consequences of the influential and enduring white perception of the “dangerous” Black man. The counter-story of the Second Amendment provides the foundation necessary to understand the lack of gun rights for Black Americans that continue to infiltrate modern gun legislation and judicial perspectives.

[. . .]

The racist history of the Second Amendment is often unknown, but directly penetrates our social culture and the ability of Black Americans to exercise the right to bear arms. By informing jury members about the racial history of the Second Amendment and by alerting jury members' attention to the persistent disparities present in the modern application of the Second Amendment, jury members will be able to acknowledge that implicit, historically ingrained racial biases exist and incorporate this knowledge into a more just and holistic analysis of self-defense cases for Black Americans.

J.D. Candidate, 2023, University of Maryland Francis King Carey School of Law.