Strict Scrutiny - Fatally Unequal

Episode Date: October 25, 2021

Melissa talks with Carol Anderson about her book, The Second: Race and Guns in a Fatally Unequal America. This event originally aired as a program by the Commonwealth Club of California back in July, and we're excited to bring it to Strict Scrutiny listeners ahead of Supreme Court arguments in New York State Rifle & Pistol Association Inc. v. Bruen on November 3rd. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray, one of your hosts, and this is a very special episode of Strict Scrutiny. Last summer, on July 21st, 2021, I had the privilege to moderate a conversation

on behalf of the Commonwealth Club of San Francisco with Carol Anderson, the Charles Howard Candler Professor of African American Studies at Emory University. Professor Anderson is the author of many books, the most recent of which is The Second, Race and Guns in a Fatally Unequal America. Professor Anderson's research focuses primarily on how centuries of racial injustice have informed the processes and outcomes of policymaking, and in this most recent book, The Second, she turns her lens toward the Second Amendment, exposing the racialized motives behind its drafting, ratification, and subsequent deployment. She argues that sentiments from early America, when enslaved persons were prohibited from owning, carrying, or using a firearm, persist to this day as measures to expand and curtail gun ownership are used to neutralize,

punish, and subdue the Black population in America. Although this conversation aired in July, we thought it would be especially important to re-up it as we are going into the Supreme Court's term. And this term, there is an incredibly important case concerning the Second Amendment on the docket. That, of course, is New York State Rifle and Pistol Association versus Corlett. So please sit back and enjoy this conversation between myself and Carol Anderson about the second. Welcome, Carol. Thank you so much for having me, Melissa. Thank you. This book is so timely, so of the moment, but maybe it's helpful for the listeners to step back a little and just sort of situate ourselves with some context.

The text of the Constitution, Second Amendment reads as follows, 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. Much of constitutional history is steeped in myth-making. In this case, the conventional wisdom posits that the Second Amendment was, like most of the Bill of Rights amendments, intended as a response to the encroachments of the British crown against the colonists in the period preceding the American Revolution. And so on this account, the Second Amendment is really intended to help Americans to keep and bear arms so that they can rise up against a government that may become tyrannical against them. But as you show in this book, there might be more to this story than this David and

Goliath narrative that we've been given over the years. So can you give us this additional context for the Second Amendment? For me, the additional context, it was looking at the debates on the constitutional ratification conventions and also looking at the role of slavery and the laws that came up in order to control the enslaved. And so you saw a series of laws about thou shall not bear arms. The enslaved shall not have the right to bear weapons. They must be kept away from weapons. They must be unarmed, disarmed. And the architecture that came up, not only of the laws, but of the architecture of the slave patrols that had the ability and the function to go into slave cabins and look for contraband, such as books, as well as weapons. And then the rise of the militia

and the role of the militia was designed to control the slave population. If there was an uprising, they were there to put that uprising down. And so then seeing the ways that those laws and that architecture rolled through the colonies, and then through the war for independence, and then through the constitutional convention and the ratification conventions, it was like, wow, slavery infused, it permeated those discussions. I saw the way that the South bartered hard, I mean, played a game of hardball, saying you will not have a United States of America unless we are able to protect slavery. And this is why we get the three-fifths clause. This is why we get the 20-year extension on the Atlantic slave trade. this is why we get the Three-Fifths Clause. This is why we get the 20-year

extension on the Atlantic slave trade. This is why we get the Fugitive Slave Clause in the Constitution. This is also why we get the Second Amendment, because during that ratification convention, ratification had stalled. And James Madison rushes down to Virginia, which had been one of the major holdouts. And he ran up against the buzzsaw of Patrick Henry and George Mason and the anti-federalists. And they were arguing that by putting the control of the militia under the federal government in the Constitution, you couldn't trust the federal government to protect the slaveholders from an uprising. The North detests slavery, and we cannot trust them. We will be left defenseless. And they began to push hard, threatening this Constitution that Madison had stitched together

that had a strong central government in there. So what they did was they started demanding a bill of rights. And Virginia's ratification, subsequent ratification of the Constitution, they had amended in there, including the right to a well-regulated militia as part and parcel of their approval of the Constitution. They made it clear to Madison that they would hold another, push for another constitutional convention unless they got the protection of the militia. And this is why you get this outlier. Think about it. You get the right to free speech, freedom of the press, the right not to have a state-sponsored religion,

the right to not be illegally searched and seized, the right to a speedy and fair trial, the right not to have to deal with cruel and unusual punishment. And then you get this, the right to a well-regulated militia for the security of the state. That thing is the bribe to the South to buy onto the United States of America. We will protect slavery by protecting the militia. In a lot of ways, this book is an origin story, right? To use the superhero term. And you are telling a very different origin story than the one that we have been conditioned to receive. And it's not just about the Second Amendment, but about the Constitution and the Bill of Rights more generally. And, you know, I teach constitutional law and I begin every semester by having my students actually read

the Constitution. And slavery is hiding in plain sight in the Constitution. It's all still there. The Three-Fifths Clause is still there. All of the compromises about slavery. There is an explicit clause about the rendition of property back to the states, which is about slavery, even though it's not explicitly stated as being about slavery, but it's all there. Why have we never made these connections between slavery and the constitution and the bill of rights? Why instead has the narrative about the Bill of Rights really been about these anti-federalists who are so deeply consumed with this question of individual rights and the possibility of a tyrannical central government? Why haven't we heard before that it's actually the tyranny of slavery that they want to preserve?

I think that's because our origin story is just wrapped up in the mythology of these noble founders who were just steeped in fighting off the tyrannical regime of the British. And so when you have this very flattened two-dimensional origin story, you don't deal with the complexity of the reality of what these folks were really dealing with and the choices that they were making. So for instance, when we get this narrative story about this incredible militia that fought off the British, that was there to fight against domestic tyranny, what we don't hear is how George Washington was absolutely beside himself, that the militia was absolutely unreliable during the war for independence. Sometimes they'd show up. Sometimes they wouldn't. Sometimes they

fight. Sometimes they take off running. I mean, how do you fight a war when you don't know if your folks are going to be there? And so that was part of the reason why it was put in the constitution for federal control is that Madison wanted to have that militia more organized, more regulated to be more effective. And, and we also get the story of this fighting off the domestic tyranny. I mean, we've got this amber waves of grain kind of origin story. Well, that domestic tyranny, we had Shays' Rebellion right before the Constitutional Convention, where you had a group of white men who were just furious at the government for taxation policy. So they began attacking the Massachusetts government. And when the government tried to call out the militia, the militia was like, no, I'm not feeling that. And you actually had then members of the militia joining in in Shays' Rebellion. So they weren't feeling this whole thing about a domestic tyranny

kind of piece either. What the militia was really good at was putting down slave revolts. Absolutely really good at that. And you think about the silence in the constitution of slavery, that is the same silence we have had in our histories. It is the thing that we are ashamed of. And so the origin story of the greatest nation ever cannot be rooted in slavery, because one of these things is not like the other. So just to be clear for the listeners, there is this narrative about the militia being a sort of animating principle around the Second Amendment. But as you show in the book, they never had any expectation that a militia could stand up to a standing army, could ever defeat the tyranny of the state if the state were to become tyrannical

against the people. Instead, their investment in the militia is about this local form of potential tyranny. And that's the slaves that they are worried will revolt against them. And Thomas Jefferson, I am a graduate of the University of Virginia. I have been steeped on Jefferson quotes like it's mother's milk. And there's a quote from Thomas Jefferson that I've actually never heard of that appears in your book where he talks about the possibility that his slaves could justifiably turn against him. And he is deeply worried about this. And you see other members of that political community also being worried about the possibility of enslaved persons rebelling. And it's not an idle fear. This is the age of revolution. Not only have the American colonists rebelled against the British, the French are about to overthrow their monarch in a year or two, but closer to home, the Caribbean nation of Haiti has just experienced a massive overthrow of not only the institution of chattel slavery, but the government of Haiti and they've made it their own. And this looms large in the

history of the Second Amendment. And we've never heard of this either. So can you make the connections between these external events and what happened here in the United States? Oh, absolutely. And so here, this is the age of revolution. And so one of the things that happens is this fear that these revolutionary ideas will carry forward to Black people, that Black people will think that somehow this idea of self-determination and self-government, this idea about being able to rule yourself, that Black people will believe that that applies to them. And Haiti verifies this in ways that just sends shockwaves through the United States, just shockwaves. This is where you get Thomas Jefferson going, oh, my God, if this thing gets unleashed, we have to fear it.

We must fear it. And the fear that his own enslaved people will justifiably rise up against him. And you see this coming through in terms of the laws so that in Baltimore, as you have slave owners fleeing Haiti with their enslaved, when they get to Baltimore, Baltimore opens up the public armory to white citizens so that they can protect themselves against these Haitians enslaved people coming into Baltimore. You have in South Carolina, actually banning the enslaved from Haiti from being able to come into South Carolina. And think about this, South Carolina is a slave state. I mean, South Carolina, where more than half of the residents are enslaved. And South Carolina is a slave state. I mean, South Carolina, where more than half of the residents are enslaved, and South Carolina banning the enslaved from coming, this tells you about the fear. And you have Governor Pinckney talking about, and this is why we have the militia.

This is why we have the militia. And you have Virginia. Virginia is absolutely fearful about Haiti. And when they're coming, they're like, they're bringing too many of them here. There's too many of them here. And our enslaved folk are learning to be disrespectful. They're getting these airs about them. We've got to protect ourselves. One of the things that you have happening in the United States shortly after the Haitian Revolution begins is you have be part of the militia and has to have a gun. So you're seeing the definition of citizenship and the responsibilities of citizenship wrapped up in the role of the militia, gun ownership, and whiteness. And you have James

Madison writing in a letter going, who did you see that mess in Haiti? Oh, by the way, our Militia Act will be passing soon. So, you know, I don't know whether it was a subconsciousness speaking or whatever, but to connect Haiti and our Militia Act will be passing soon. That is absolutely essential. How do we keep these enslaved folks down? How do we stop the revolutionary ideas from seeping into our enslaved population where they're going to rise up and think that they could be free too? And then we have Gabriel's revolt in 1800 in Virginia, a multi-city, multi-county planned revolt that they find out about on the day it was supposed to happen. And Governor James Monroe is just shook. He is just trembling as he's writing to Thomas Jefferson, I just found out about this. Oh, we would have been in blood if this thing had really gone off. And they called out the state militia, the various militias to go and round up and hunt down Gabriel and his followers. And then you have mass public hangings as a way to send the signal. This is what happens to Black people who believe in freedom. The response to Gabriel's rebellion is to make an example of the slaves who were involved in

that uprising. We didn't have a similar response to the Whiskey Rebellion, nor did we have a similar response to Shea's Rebellion, but they too sort of were very much a disruptive force in colonial America. What explains the difference? I really believe it's whiteness. Whiteness explains the difference. It's the sense that Black people, you have to be afraid of them. They are a danger. They are a threat to the security of the United States. They are a threat and a danger to white citizens in the United States. So we have to put in measures to subjugate them, to protect ourselves in order to be safe. White men are not seen as dangerous in that kind of collective sense. And so when you had Shays' Rebellion that attacked the Massachusetts government and was going after the armory in Springfield.

And it required a mercenary army of 4,000 soldiers to put Shays' Rebellion down. What you then had were just a handful of folks who were tried and convicted, and they received pardons. They received presidential pardons. The same with the Whiskey Rebellion, where you had an attack on federal officers at the time, and you had them tarring and feathering federal tax officers. I mean, so this is like torturing, and you have them engaging the U.S. Army in this rebellion, this Whiskey Rebellion rebellion over tax policy. At the end of the day, what you ended up with were a handful who were tried and convicted and they received pardons. It was like, whereas when you had the enslaved, when you had African descended people rising up for their freedom, the response was,

we have got to make a full example of you so that no one who looks like you believes that they have the right to be free. So we see beheadings happening in 1811, in the revolt in 1811 in Louisiana, where they are beheaded and their heads put on spikes to line the road to the plantation as a warning to the enslaved. This is what happens when you believe that you can be free. This is the Stono Rebellion. Oh, no. Stono was in South Carolina. So this is the Charles- So many rebellions. Right, right. And this is why you had the slave owners who were afraid, because one

of the things is that they knew that this was wrong. They knew that slavery was wrong. When you're looking at the ways that they're talking about slavery, they know that it's wrong, but they're doing it anyway. And so then there's the fear of retribution, that when they get free, they're going to do to us what we have done to them. That is why we have to keep them unarmed and subjugated, because they are inherently dangerous criminal people. There are two main contributions to the book. One is surfacing this lost history of the Second Amendment, this other origin story that has really been hiding in plain sight and hasn't been talked about as part of the Second Amendment. The second contribution, I think, though, is the way in which the relationship between African Americans and guns and violence

has actually been shaped by the Second Amendment and constitutional history that, in fact, the social construction of dangerousness is actually originating in this founding period, but we see the repercussions of it to this day. So you begin the book with a discussion of the police murders of Philando Castile and Alton Sterling. These are both men who are shot and killed when they are in lawful possession of firearms. They are exercising their Second Amendment rights, and yet they are killed because they are seen to be threatening. Can you say more about that?

Ashley, it was the killing of Philando Castile that was the genesis for me for this book. Because here you have a Black man who was pulled over by the police. The officer asked to see his ID. Philando Castile, following NRA guidelines, alerts the officer that he has a license to carry weapon with him, but he is now reaching for his ID as the officer has asked. The officer begins shooting Philando Castile. So he wasn't threatening the officer. He wasn't brandishing the gun. He hadn't pulled it out, pointing it at anybody. He simply had a license to carry weapon and he was gunned down. And you got silence from the NRA, virtual silence. It was only when Black members of the NRA began pushing for the NRA to make a statement. And remember, this is the NRA

that had gone just wild with anger about Ruby Ridge and about Waco, calling federal law enforcement jackbooted government thugs. But you'd get nothing like that when it comes to the killing of Black men for simply having a weapon, for simply having a gun. Instead, what they said was, well, we believe everybody has the right to bear arms, but we have to wait for the investigation. And it was that sense where then journalists and pundits were saying, well, don't Black people have Second Amendment rights? And I went, Lord, that's a great question. Let me go find out. And that's what had me hunting back into the 17th century and taking us all the way through to see about the right to bear arms, the right to a well-regulated militia,

and the right to self-defense. Let me backtrack a little bit. I mean, it's a perfect compliment to this, but the idea of Black men bearing arms is one that becomes threatening and is threatening at the period of revolution and remains threatening even to this day. But as you note in the book, the militias that the founders are imagining are almost wholly and exclusively white militias, but that's not the full range of Melissa participation. There are actually black militias at this period of time. And in fact, they are incredibly impactful during this period. And as you note, at the battle of New Orleans, Andrew Jackson would not have prevailed and we would not have won the War of 1812 were it not for the intervention of this Black militia, which is incredibly ironic given what Andrew Jackson later goes on to do as a

president of the United States. But can you say more about these Black militias and how their service translates or doesn't translate into a bid for citizenship and to be recognized as citizens later in the history of the country. And so you have in New Orleans, this black militia, and they had been there since the early 1700s under French rule and Spanish rule. And so when the U.S. moved in to New Orleans, the Louisiana Purchase, one of the key pieces was you had whites in New Orleans demanding that the governor disarm and disband this Black militia. And originally, this is what he's thinking, you know, oh yeah, because Black men with guns. But he figures out that this Black militia is the best trained, the best organized, and the most efficient fighting force that they have. The white militias,

they've got lousy officers. They're too spread apart to handle all of the challenges that are happening in the territory. And so he tries to square the circle with whites who are demanding the disbanding of this Black militia with the security needs of the area. And so he removes the Black officer class of this militia and installs white officers on top of them, thinking that that would appease whites. And they were like, no, was like, oh my God, we need help. And he calls on this black militia to help put down the slave revolt and then notes how effective and efficient they were in doing so. But they got no love for that effort. Instead, they were just kind of like, go away, just go away. Then comes the War of 1812. And as you note, Andrew Jackson is looking at that basic armada

that is coming from the British to invade New Orleans and get a hold of the Mississippi, because if you can control the Mississippi, you've got an incredible gateway to control America. And so that battle of New Orleans is absolutely essential. Andrew Jackson looks around and he sees that that Black militia is an incredible, organized, well-run fighting force. And he's like, I want them. I want them. And I will treat them equal to white men in the army. I will pay them equally. I mean, so it was all about, I will treat them as full citizens, as full human beings. And this was the promise. Those black men fought something fierce. And he notes, he's like, I heard you were good, but I didn't realize how good. Wow. But after the victory, after the war, he sends them off to the swamps as a labor battalion to do the work that white men did not want to do. And you have the government in New Orleans

then figuring out how to disband the Black militia. And so all of those promises that military service would lead to citizenship consistently keeps getting denied. And that's one of the lines that I'm following. So seeing what happens after the war of 1812, what happens after the Civil War, what happens after the First World War, is that you get Black men fighting for the United States of America and believing that that is part and parcel of citizenship, that they will come back to be able to fully experience democracy. And instead, what they experience is just this anger, this how Black men with arms must not happen. We are afraid of Black men who have learned how to use weapons, Black men who have

learned how to take up defensive positions, Black men who have soldiering skills are a threat and they must be dealt with. So I think you may actually have a very receptive audience for this book among the Supreme Court of the United States, and in particular, one member of the court, Justice Clarence Thomas. In a 2010 case, McDonald versus the city of Chicago, he wrote a really interesting concurrence that picks up on some of the themes that you've mentioned in the book. The case is about whether or not the Second Amendment can be incorporated to state governments through the 14th Amendment. And he writes a decision about what the appropriate constitutional vehicle for incorporation should be.

But he also notes that during the period following the United States Civil War, there were a number of massacres and uprisings involving white private militias against newly freed African-Americans. Americans. And one of the points he makes here is if those African Americans had been permitted by the states to bear arms, as was their right as citizens under the second amendment, they would have been able to stand up to these marauding mobs of white men. And so he very much is making a connection between the second amendment and racism, but it is to turn the argument about gun control, to say that gun control is actually bad for African-Americans. So where does your book come in on this debate among progressives and gun rights enthusiasts about how gun control affects these different communities, and in particular, the African-American community, that it really has been besieged by gun violence? violence. And so where my book comes down is that, as I say, this isn't

a pro-gun or an anti-gun book. This is a book about Black people's rights and seeing those rights consistently undermined because of the anti-Blackness coursing through this nation that sees Black people as a threat. And so it doesn't matter whether we're armed or whether we're unarmed. And think about the Black folks who were gunned down because, ooh, I was afraid. I was afraid when they didn't have a gun. Or the Black people who were gunned down because they did have a gun. They were a threat. I was afraid. And so they're killed. My book doesn't deal with that. I think about the ways that you had a lawsuit by the NAACP that challenged gun manufacturers for flooding the Black community with cheap guns that were spiking the homicide rate within the Black community. You also had a lawsuit by

CORE, the Congress of Racial Equality, that was against the U.S. government for the 1968 Gun Control Act, which banned Saturday night specials, those cheap guns, saying that you took away basically the right to self-defense from the Black community because this was the gun that they were able to overwhelmingly to afford. And so here, to me, it speaks to the conundrum that we have about guns in the United States. And it requires us to rethink what real safety and real security looks like. To me, the other part of this discussion, because I have run into this, is to say that with these guns, you got Black folks in Chicago just killing themselves. You got all of this Black-on-Black crime. And what I say is that,

yes, over 80% of Black people are killed by Black people, but over 80 percent of whites are killed by white people. But we don't have the narrative of pathology about whites killing whites at that rate. So much, again, is focused in on the anti-Blackness and the pathology, the inherent criminality of Black people, that that is driving this discussion. And I also argued in a Guardian op-ed that we're dealing with these twin pandemics, the pandemic of mass shootings and the pandemic of anti-Blackness, and that the anti-Blackness is short-circuiting our ability to have real actual gun safety laws. So that what you hear from like a Lauren Boebert is that if you take away our guns, we will be left defenseless against the gangs, against the drug dealers, and against the thugs. And as we know, those are synonyms, pejorative synonyms

for African Americans. Yelling about defenselessness is the same language that we heard in 1788 from Patrick Henry and George Mason. We will be left defenseless. And that's what we have to really deal with is this history. Well, so that's interesting. So when Justice Thomas makes this appeal for expanded gun rights by linking it to the ability of African Americans to stand up for themselves in the Reconstruction era, he's actually trying to inject African Americans into a narrative about defenselessness that has, as you point out in the book, been reserved for white people. And so there is a disjunction between the tale that he's telling and the way that

dangerousness has been constructed in the United States. And this will always, I think your book makes the point, this will always mean that regardless of how gun rights are understood and recognized, Black people will not be included in this vision. Right. I mean, so when you think about, you know, towards the end of the book, I'm dealing with stand your ground, open carry states, and the Castle Doctrine. And what we're seeing in those is that you've got disproportionate fear of Black people in these laws that are supposed to be the hallowed ground of the Second Amendment. So when you look at Stand Your Ground, what Stand Your Ground does is it expands the concept of the

Castle Doctrine. The Castle Doctrine says that if you're in your home and somebody comes in that's an intruder, you have the right to defend yourself. You have the right to ward them off. The stand your ground says, expands that to, you don't have to be in your house. Anywhere where you have a right to be and where you perceive a threat, you have the right to stand your ground. Well, that perception of threat, because Black is the default threat in American society, that perception of threat puts Black folks in the crosshairs. And this is why you see that for whites who kill Blacks, understand your ground, they are 10 times more likely to walk with justifiable homicide than Blacks who kill whites. Understand your ground. 10 times more likely. For whites who

kill blacks, they are 281% more likely to walk under justifiable homicide than whites who kill whites. When blacks are the victims of this violence, it becomes acceptable in the judicial system because Black is the threat. I also look at it in terms of just juxtaposing Kyle Rittenhouse to Tamir Rice. So Kyle Rittenhouse is the 17-year-old white teenager who crosses state lines with an illegally obtained AR-15 to go to a protest in Kenosha, Wisconsin, so he can defend the property against this Antifa and BLM, whatever. And the police welcome him. As part of a militia. Right? They welcome him. They're like, oh, we really appreciate you guys being here. It's hot out here. You want some water? So they don't see this 17-year-old with an AR-15 as a threat,

as dangerous. He goes and he shoots down three men, killing two of them, seriously wounding a third. He walks back to them with his hands up as if to surrender to the police and the police go right by him. They don't see him as a threat. Not even that they don't see him as a threat. They see him as an amplifier to their own authority. He's there to help them. Right. We really appreciate you guys being here, but you take Tamir Rice, who was the 12-year-old black child in Cleveland in an open carry state, who's playing in the park by himself. And the law says, as long as you're not pointing a gun at someone, you can open carry. And granted, it was a toy gun,

but it didn't have the orange tip on it. But he wasn't threatening anyone. The police came in within two seconds. They gunned him down, saying he was dangerous, he was a threat. Kyle Rittenhouse is one of the boys. Tamir Rice is a threat, and he is killed within two seconds. So can we inject gender into this? We've mostly been talking about Black men and white men, but generally the overlay of gender and gun rights is that guns are necessary

to protect the defenseless women in your household. How does this play out when one of the women is lawfully carrying and tries to stand her ground and protect her home. And she happens to be African-American. That is the story of Katherine Johnston that I tell in the book. And she was a 92-year-old woman in Atlanta. And she hears, it's the middle of the night, and she hears the burglar bars being removed from her home. She is rightfully afraid. She gets her rusty revolver to protect her domain. The door slams open. She shoots to protect herself. A barrage of bullets come back in at her. It was the police, and they said it was justified because she shot first. So this Black woman, 92 years old, in her home in the middle of the night, did not have the right to protect herself. I mean, and that became the narrative until the

narrative was blown apart because it was clear then that the police had basically used torture to extract a confession from somebody who gave up her house and that they were then putting pressure on an informant who ran to the media to tell the truth about what had happened. But if that had not occurred, this would have been as justified as the killing of Breonna Taylor. Can I go back in time a little bit? A part of the book that I found so fascinating was the part that takes place here in Oakland, California. So you note in the 1960s in Oakland, the Black Panthers were incredibly active, setting up free breakfast programs and very active in arming the community. But they did so lawfully. They were very observant of the existing gun laws,

but they believed that it was really important for the Black community to be armed against police violence. What happened in California to basically thwart their efforts to keep Black people armed and protected against what they saw as a threat. The Panthers really arose in response to the police brutality raining down on that Black community. And they had a framework of policing the police. They knew what the laws were about open carry. California had open carry laws. They knew how to open carry.

They knew what kinds of guns they had to have. And they knew that they had to be licensed. And they knew the distance that they had to maintain from the police as the police were making an arrest. Well, the police did not like having these Panthers watching them, observing them, and basically monitoring them, policing the police. And so the police would stop the Panthers, but they couldn't arrest them on anything because they were following the law. They knew the law. UEP Newton was a law student. He knew what the law said, and that is what they were following. So the police ran to Don Mulford, who was a California assemblyman, and said, you got to help us here. The Panthers are

dangerous. They are dangerous. They are a threat. They are a serious challenge to our being. And Mulford's like, I got this. And so with the help of the NRA, they drafted legislation to basically make the methods that the Panthers were using to police the police, that open carry, to make it illegal, to make the Panthers illegal. And you had Governor Ronald Reagan, who was eager to sign this legislation because he had been hearing about these Panthers as well, and that they were a threat, that they were dangerous. And I thought it was fascinating in this. Not only did you have this confluence of conservative NRA assemblymen and Ronald Reagan working on gun control when Black people are carrying arms, but you also had

no movement in terms of getting at the root cause, which was the police brutality that had driven the Panthers to come into being. We have some terrific questions that have already come in. And your last response really then speaks to this next question from one of the listeners. What role have gun rights organizations played in these disparate approaches to gun control that really do impact individuals on the basis of race? As you know, one of the major gun rights organizations is the NRA. The NRA began in 1871, founded by Union soldiers as a marksmanship club. They were absolutely distraught at the lack of marksmanship that they saw in the Civil War.

So they spent a lot of time teaching folks how to shoot. And that was the role of the NRA. And then you started seeing greater politicization happening in the 1960s, particularly when it came to gun control laws. And again, like I talked about with the Mulford Act, they were there helping to draft that legislation. And they weighed in on the 1968 Gun Control Act as well, which was the one that banned Saturday night specials. Then it was the coup in 1977 at the NRA convention in Cincinnati, where the kind of politicized, virulent right wing took over and said, enough of this being mamby-pamby about politicization. We've got to go full bore into politics. And so in that coup, this is where you then see the NRA backing the folks at Ruby

Ridge, calling those government officers jackbooted government thugs who have the right to murder law-abiding citizens and break into their homes and take their guns. I mean, you're getting this politicized narrative that is about our freedom, the way that we stop tyranny is that we are armed. But you don't get that language, for instance, in the killing of Philando Castile. And there was nothing said about Alton Sterling. Are you worried, Professor Anderson, after such a watershed year for racial justice, and I think we can say that 2020, despite all of the disruption, was a watershed year for racial justice, the Supreme Court will take up an important case next term, the New York State Rifle and Pistol Association versus Corlett. That will be another case that really, I think, seeks to expand the scope of gun rights and common use. Are you worried about backsliding? Because I imagine there must be a world in which the expansion of gun rights could be met as

enhancing the rights of all citizens or enhancing the rights of some citizens over others. What I see is the enhancing of some rights over others. Again, because we have not dealt with the anti-Blackness in American society, and we have not dealt with defining Black people as dangerous, as inherently dangerous, as inherently criminal, as inherently a threat. And so this expansion of gun rights will heighten the threat to black people's lives, heighten the precarity of black life is what I see. Let me come back to that because there's a way in which this book, the second, is very much like the 1619 Project. We cannot hope to address the disparities in contemporary American society if we do not go back and understand our origins and the legacy of those origins on the present day.

How do we start these conversations on these issues with individuals who don't believe that there are existing racial disparities in this country? I mean, we've already seen the incredible backlash to the 1619 Project, which has morphed into a backlash against critical race theory. And, you know, headline, if your child is learning critical race theory, congratulations, because your kindergartner is actually in law school, because that is where critical race theory is taught. How do we have those conversations, though, where we can actually be honest about excavating our origins if there aren't people who are ready to hear it? And that has been one of the long battles in American society has been our history. I mean, so it is the way that the Civil War morphed from

a war about slavery to the lost cause, that this was about states' rights and this was about states' rights, and this was about economics without understanding the economics of slavery. It was the role of the United Daughters of the Confederacy that transformed our textbooks so that the role of slavery just basically got elided over in terms of the Civil War. Our history matters. And this is the backlash that we're seeing because we know that history matters. We know that the narrative stories that we tell are powerful in shaping the way that we understand the world, in the way that we analyze it. And this is why you're seeing this push. I mean, it is Texas that is trying to pass a law that says, no, we're not going to teach about the Klan. And no, you're not going to teach

Martin Luther King. And no, you're not going to teach Susan B. Anthony either. So if what we're doing is we have this, it's like we talked about that origin story that was fighting against tyranny, and these are absolutely pure, heroic, two-dimensional folks. When that's the story, then what we're seeing is a culture of poverty. We're seeing people making individual choices. It means that you don't have to deal with the systems that had created this and that sustained it. It also means that we don't have to deal with the systems that set up FHA to create the inordinate wealth disparities in the United States. And how do we get there is to begin to continue to speak to the truth, to speak to the evidence, and to continue to say it

and put it out there. Because at a certain point, at a certain point, when the stuff doesn't make sense anymore, when you've got this flattened narrative and it's just not making sense, then you just might go back to looking at, no, this didn't happen this way. This is how this happened. We have to continue to have those conversations. really good historians and digging in the archives and digging in the best work that's out there and pulling together those streams of thought to see how we got here. Because that's the only way we're going to figure out how to get out. That point about methodology, I think, is really important. You note that as an historian, you are going to the archives. You didn't come to this with a predisposition.

You went to the archives and this is what you found. But it also suggests that it wasn't that hard to find this in the archives, that it was sort of hiding, well, not even really hiding. It was just there. No one chose to surface it. What does that say about our willingness to grapple with our past if there's all of this information pointing to clues about our origins, but we refuse to surface them. It says a lot about the ways that we learn to ask questions. So much of the questions, for instance, on the Second Amendment are whether it is about the right to a well-regulated militia or the right for an individual to bear arms. And that's how the Supreme Court has talked about it, like whether this prefatory clause has any impact on the operative clause. Right. And so when it's framed that way, then that means you're not looking at its real origins.

That means that you are framing it in a way that allows you to elide over the roots of what was driving these folks to think through why we would have the right to a well-regulated militia for the security of the state. Wow. Do we talk about the security of the state when we talk about freedom of religion, the right to not be illegally searched and seized. The way that we frame it has a lot to do with the ways that we go to find the answers. And because I was looking at, do Black people have the right to bear arms? Do they have Second Amendment rights? That's the frame that I went looking for. So when you say it like that, it makes the text

of the Second Amendment illuminate in a completely different way. I mean, a well-regulated militia being necessary to the security of a free state as to oppose to an enslaved state. It's the free men we're trying to protect. Right? Exactly. It's incredibly illuminating when you say it that way. And again, really interesting that this aspect of it, we haven't talked about it. It hasn't become more commonplace in our discussions of it. You have done incredible work though, not just on the Second Amendment, but on voting rights. I think this year is really going to be Carol Anderson's year because everything you've written has suddenly coalesced into being of the moment in the cultural zeitgeist. So one of our listeners has been steeped in the oeuvre of Carol

Anderson and wants to know, when you wrote One Person, No Vote back in 2018, this is your book about restrictive voting laws, did you imagine that restrictive voting laws would be enacted as quickly as they were in 2021. I'm going to go back to the book right before One Person, No Vote, White Rage. And with White Rage, I talked about whenever you see this massive attainment of Black citizenship rights is that you get this massive policy backlash to undercut those rights. When you think about how in 2020, you had a turnout that was astronomical because Black folks knew that democracy was on the line. So you had like a 60% Black voter turnout rate. There were 160 million people who voted. You had an incredible multiracial coalition

who were willing to deal with a pandemic to vote. That coalition, what we're dealing with right now is white rage. We are dealing with the backlash, the policy backlash to people exercising their right to vote. People saying, this is the kind of society that we want. And the white rage backlash is like, no, you will not have that society. And we will cut down the access to the ballot box that you used in order to try to change the dynamics of this society. Did I anticipate that they would move, as my brother would say, with a quickness? I didn't think they'd move this fast, but the coalition of forces that were there made that obvious that this would happen. The point you make about the politics of

backlash, it doesn't just translate into policymaking. In the book, The Second, you also note that the massacres that we are only beginning to hear about now, like the Tulsa race riots, like the Elaine race massacre, all of those were backlash to the gains, the limited gains that African-Americans made during the Reconstruction period. So this doesn't just play out in the arena of policymaking. It then gets translated into physical violence using the right to bear arms. So, I mean, there is a through line, which is when I talk about the policy, you see how the results of that election. So they were storming the courthouse in Colfax, Louisiana, which was the site of democracy in that area. And there was a Black militia protecting that courthouse. They were overrun. They were slaughtered. Over 100 Black men killed. And Louisiana was so fractious at the time that it was impossible to charge them, the killers, with a state crime. So the federal government comes in and charges them with violating the Third Enforcement Act, which is the act against white domestic terrorism,

which is the Ku Klux Klan Act. That case goes all the way up to the U.S. Supreme Court. And the Supreme Court in the Cruikshank decision basically sanctions white domestic terrorism, saying, well, the Third Enforcement Act only applies against state action, not private action. This is like, so those killers, mass murderers get to walk because the U.S. Supreme Court then covers that by saying this act that was designed for this white domestic terrorism only applies toward the state, not towards the KKK. That's a great transition to my last question, which is about the Supreme Court. So as you say, in the Cruikshank decision, the court basically says that the 14th Amendment

only applies as to state action, insulating private acts of racial violence from any kind of recourse. But over the last 50 years, there has been an emerging interest in originalist interpretation of constitutional text. So the idea here is that judges should read and interpret the Constitution with an eye toward how its terms would have been understood and experienced at the time of drafting and ratification. And so the idea is because it is rooted in how things would have been understood in the past, you know, perhaps originalism is less attentive to questions of race and racial discrimination that exist in our modern day period. That's always been the rap on originalism.

But you are actually offering in the second an originalist take on the Constitution and the Second Amendment, one that makes race and slavery central to the founding and to the Constitution itself. And so with that in mind, how should lawyers and judges deploy this new understanding of the Second Amendment, of the Constitution itself, in their efforts to interpret constitutional tax? The originalist slant really seems to me to be a way to try to undermine the role of racism and race in the United States. And so by doing what I've done, which is to go back and look at the ways that James Madison was drafting the Constitution and drafting the Bill of Rights and the pressures that were on him,

then you're having a very different discussion about the Second Amendment. And you're seeing that it is steeped in anti-Blackness. The Bill of Rights, having there in the middle of the Bill of Rights, the right to control and contain Black people's rights, the right to deny Black people their rights. Wow. I think that what we need to do is to remove the Second Amendment from its hallowed ground that it currently has, that has been propped up by the NRA, and to treat it the way we treat the Three-Fifths Clause, recognizing that this is a function of slavery. It is a function of the denial of Black humanity and a denial of Black people's rights, and really reconceptualizing in this nation what real safety and security looks like, and also what real

citizenship looks like. So I think our listeners should actually have the last word on this. And this one comes from a listener who is really interested in how you approach the classroom at Emory. So when you teach history to your wide-eyed students down there in Atlanta, what surprises them the most about the history that you discuss and discover together? So much of what I teach is what they haven't had, even as they've come through their AP courses. And so there's this like, what? But I also believe that the greatest learning is what they're able to bring to themselves, what they're able to define for themselves. And so all of my classes are research courses where I send them into the archives, into the original documents where they've got to pull it together. And that makes the learning real. It makes it

their own. And so I had a student, for instance, who had asked the question, well, why haven't African-Americans after the civil rights movement made more progress? And I said, that's a great question. Go to the archives. And in our archives, there's a collection called the Neighborhood Network Association or something like that. And what they did was they tracked Klan members in Georgia's government and in Georgia's judiciary in the 70s and 80s. When you begin to track those Klan members

with the legislation that they're blocking and with the judicial decisions that they're making, things become very clear about the roadblocks to progress. And I could have said, womp, womp, womp, and sounded like a Charlie Brown adult, but there was something about my student finding that information on his own that now it's enlightening for him. It's like, I get it. I get it.

Thanks so much for joining us for this very special episode. We hope you enjoyed this conversation with Emory professor Carol Anderson. We are grateful to the Commonwealth club and professor Anderson for the opportunity to share this conversation with the strict scrutiny audience. And as always, we are grateful to our producer Melodyody Rowell, for all the work that she does to get us into your ear holes sounding great. And of course, to Eddie Cooper, who does our music. If you'd like to support Strict Scrutiny, please feel free to do so by

subscribing at glow.fm forward slash strict scrutiny. Thanks so much. Thank you.