Jordan Mobley
The Second Amendment and the Myth of Neutral Self-Defense
Jordan Mobley
Although recent high profile shootings resulting in mass casualties have occurred with
alarming frequency in the United States,1 there has been an eerie silence from the absence of any
public conversation about the effects of gun control, or lack thereof, on the nation. In this
Article, I argue that the lack of public debate is not simply due to the surge in advocacy for
individual gun ownership rights over the last (three) decades, nor the strength of second
amendment rights the gun lobby claims. Rather, I argue such silence is driven by a deeply
rooted racialized fear of minority violence on the part of whites, which simultaneously neglects
the fact that the groups most vulnerable to such policies that make guns freely available are
people of color living in impoverished communities. Thus, the current state of second
amendment law, and the progeny2 thereof is the product not of an impartial legal system, but
implicit (or sometimes explicit) racial bias. Non-neutral policy preferences favoring individual
gun ownership over the lives of (number of gun deaths each year) are manifested through
Supreme Court decisions, the policies fervently promoted by the pro-gun lobby like the now
infamous “stand your ground” laws, and the utter neglect of the impact of easily available guns
on vulnerable communities.
These same anti-control advocates, whether it be the Court in Heller and McDonald or
political advocacy groups, rely on a farce that race is not a factor in these discussion—that the
Second Amendment is colorblind. It is dangerous to neglect the prominence of race in the
national discourse on gun control. Not only is it hypocritical, because, as discussed infra,3 race
is used to the benefit of anti-control advocates by ginning up fears and thus creating a perception
that individual gun ownership is a necessity for purposes of self-defense. But beyond that, anticontrol advocates rely on a notion that the Second Amendment and its progeny (i.e. stand your
ground and other hyper-self-defense laws) are neutral. That the inherent rights of gun ownership
and the color blind nature of our constitution do not implicate race. Yet, if race is not a factor
considered when examining the prudence, legality, and morality behind individual gun
ownership, the role of implicit and explicit racial bias, and non-automatic legal judgments are
assumed to be absent.
In this article I hope to show that the legal and moral bases for anti-control laws are based
largely on value judgments influenced by a narrow, misunderstanding of the historical concept of
self-defense and the tradition of individual gun ownership. Part II of this article provides a brief
1
As I was working on this article, the nation was rocked by the tragic shooting at Sandy Hook
Elementary. While this article does not propose specific controls, or address anything closely
related to the tragedy, I do hope it serves to break down some of the barriers to the National
dialogue on much needed gun control.
2
By progeny, I include, without reference to chronology, much of the movement toward less
regulated individual gun ownership.
3
See infra note 103 and accompanying text.
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critical background of the colorblind constitution, explaining the error in believing constitutional
text lends itself to neutral interpretations in light of a highly racialized society. Part III analyzes
the Supreme Court’s decision in Heller though a lens critical of its purportedly neutral, and
absolute textual interpretation. Part IV looks at historical and current notions of self-defense,
focusing on the dissonance between the narrow “self-defense” touted by the proponents of
individual gun ownership and the historical realities of self-defense. This section also examines
the different ways that implicit racial bias precludes any sense of neutrality in self-defense, as
commonly understood. Section V concludes and proposes that exposing the racial motivations
underlying the voices against reform will open dramatic new avenues for substantial and
necessary reform.
II. A Critical Background
There is a common understanding that the Constitution is colorblind. In this respect, it
renders the special considerations of race irrelevant to the discussion of the Second Amendment.4
As long as there are no overt racial biases in the processes that the Constitution guarantees, any
racial disparity in the results are irrelevant.5 The apparent neutrality of the Constitution, lends
itself to the supposedly mandated textual interpretation of the Second Amendment at the heart of
the decision in Heller. It enables the Court to apply its own policy judgments and historical
presumptions to the text of the Constitution, and still claim neutrality. The notion of the
colorblind constitution is a prudent one in a post-racial society—if race does not matter in
society, then why should it matter in our application of laws? Yet, given the lingering
racialization of society, the colorblind constitution is inapposite with current and historical
reality.6
The Civil Rights Era brought a great many victories for racial equality in the United
States. As a result, there is a commonly held misconception that those victories represented total
victory. Thus, the total victory of the Civil Rights Era means that we now live in a post-racial
society—one where de jure discrimination is ancient history, and the only racial prejudice lies
with a few overtly bigoted outliers. This is simply not the case. Significant structural racial
hierarchies still exists in most facets of society, and racial prejudice, unconscious or not, is not
hard to find in the average American.7 Thus, because the colorblind constitution prevents any
See generally Neil Gotanda, A Critique of “Our Constitution is Color-Blind,” 44 STAN. L. REV.
1.
5
Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and
Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1341–42 (1988) (explaining
the “restrictive” vision of antidiscrimination law, which focuses only on equality of process, not
of results).
6
“This belief in color-blindness and equal process, however, would make no sense at all in a
society in which identifiable groups had actually been treated differently historically, and in
which the effects of this difference in treatment continued into the present.” Id. at1345.
7
Id. at 1384.
4
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significant consideration of race, it makes it impossible to respond to the actual problems created
by racial disparity, further structuralizing racism in today’s society.8
III. Heller and Its Progeny
I am not going so far as to argue that the majority in DC v. Heller was operating under a
racial bias—I cannot discern the hearts and minds of those five justices. I am, however,
suggesting that the opinion could be read to reflect value judgments which in the aggregate may
suggest a racial bias. Heller is perhaps one of the most thoroughly originalist decisions written
by the Court. Despite its superficial mooring in the text of the Second Amendment itself, the
majority goes well beyond the text to make value judgments, favoring one understanding of
history over another. In Heller.9 Scalia relies on a quasi-textual, quasi-historical analysis of the
Second Amendment to determine that the Second Amendment guarantees the right of individuals
to freely possess firearms for self-defense. In McDonald, Alito applies a test examining whether
the right to keep and bear arms is fundamental to our scheme of ordered liberty, or whether the
right is “deeply rooted in this Nation’s history and tradition.”10
Despite broad claims to the contrary by the NRA and other gun-right advocates, the right
to keep and bear arms was historically understood as a collective, rather than individual right.11
Prior to Heller, the Court never acknowledged any individual right in the three instances the
Court addressed the Second Amendment.12 In fact, many considered the collective right model
to be the singular and uncontroversial approach to understanding the Second Amendment.13 It
8
Id. at
District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
10
McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 (2010).
11
See Heller, 128 S. Ct. 2822 (Stevens, J. dissenting).
12
See Benforado Adam Benforado, Quick on the Draw: Implicit Bias and the Second
Amendment, 89 OR. L. REV. 1, 12 (2010). Speaking of the Second Amendment, in 1943 the
Third Circuit Court of Appeals made it clear that it believed there was no individual right
embodied in the Second Amendment: “It is abundantly clear both from the discussions of this
amendment contemporaneous with its proposal and adoption and those of learned writers since
that this amendment, unlike those providing for protection of free speech and freedom of
religion, was not adopted with individual rights in mind, but as a protection for the States in the
maintenance of their militia organizations against possible encroachments by the federal power .
. . . The almost uniform course of decision in this country, where provisions similar in language
are found in many of the State Constitutions, bears out this concept of the constitutional
guarantee.” United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev’d on other grounds, 319
U.S. 463 (1943); see also Carl T. Bogus, The History and Politics of Second Amendment
Scholarship: A Primer, 76 CHI.-KENT L. REV. 3, 4 n.7 (2000).
13
Bogus, supra note 12, at 4.
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was not until the 1960s that the first article proposing an individual right model of the Second
Amendment appeared.14
The crux of the majority opinion in Heller is the prefatory clause to the Second
Amendment, which ostensibly qualifies the right contained there: “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.”15 Justice Scalia, author of the opinion, wrote that the prefatory clause
announces for the world why the amendment was being codified.16 It was codified to protect the
presence of the militia, but the prefatory clause has no limitation on the inherent right of arms.17
The operative clause, “the right of the people to keep and bear Arms, shall not be infringed,” is
where Justice Scalia finds the inherent, individual right. Part of this discovery, is based on the
interpretation of “the right of the people” as connoting individual, rather than collective rights.18
This interpretation is based on the appearance of the use of similar phrasing to connote
individualism elsewhere in the Constitution, namely in the First, Fourth, and Ninth Amendments.
Based on this collective interpretation of the operative clause, Justice Scalia argues then that the
clearly not-individual use of “militia” in the prefatory clause, renders that clause incapable of
limiting the operative clause.19
Before his analysis of the rest of the text, history and tradition behind the Second
Amendment, Justice Scalia wrote, “we start therefore with a strong presumption that the Second
Amendment right is exercised individually and belongs to all Americans.”20 With this
presumption, Justice Scalia continues to “strongly read” the text—interpreting the phrase to
“keep and bear Arms” to mean possess and carry, in any context, not just a military context, as
the prefatory clause may suggest. Thus, the operative clause, which per Justice Scalia’s
treatment of the prefatory clause is the singularly significant clause in the Second Amendment,
guarantees “the individual right to possess and carry weapons in case of confrontation.”21
Having established the individual right from a narrow focus on the operative clause,
Justice Scalia turns to the historical background of the Second Amendment to confirm his
conclusion.22 According to Justice Scalia, the historical background is of utmost importance
because the Second Amendment did not create the right, but merely “codified a pre-existing
14
Id. at 6. This article was a student article titled, The Right to Bear Arms, A Study in Judicial
Misinterpretation.
15
U.S. Const. amend. II.
16
District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).
17
Id. at 2788. (explaining that the Second Amendment has “two parts: its prefatory clause and
its operative clause. The former does not limit the latter grammatically, but rather announces a
purpose.”).
18
Id. at 2790.
19
Id. at 2791.
20
Id.
21
Id. at 2797.
22
Heller, 128 S. Ct. at 2797.
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right.”23 History leads Justice Scalia to believe that the purpose of the prefatory clause was to
state a purpose for the right contained in the operative clause: to prevent the elimination of the
militia.24
In contrast, Justice Stevens argues in dissent that the scope of the Second Amendment is
limited to the right to maintain a well-regulated militia.
[A] conclusion that the Second Amendment protects an individual right does not tell us
anything about the scope of that right. . . . Guns are used to hunt, for self-defense, to
commit crimes, for sporting activities, and to perform military duties. The Second
Amendment plainly does not protect the right to use a gun to rob a bank; it is equally
clear that it does encompass the right to use weapons for certain military purposes.
Whether it also protects the right to possess and use guns for nonmilitary purposes like
hunting and self-defense is the question presented in this case. The text of the
Amendment, [and] its history . . . provide a clear answer to that question.25
Using ostensibly the same tools—text, history, and precedent—the dissent, representing
four members of the Court, comes to a conclusion contrary to the majority’s. The dissent
concludes that “when each word in the text is given full effect, the Amendment is most naturally
read to secure to the people a right to use and possess arms in conjunction with service in a wellregulated militia.”26 Mirroring the majority’s approach, Justice Stevens’ dissent analyzes each of
the distinctive clauses and phrases of the Amendment, and with each concludes something
different than Justice Scalia. Without belaboring the specific differences, the point is that these
phrases are not as clear as either Justice pretends. The greatly disparate interpretations of the
same words indicate that there is no single interpretation mandated by the text.
Constitutional text is incapable of, on its own, guaranteeing any absolute rights. With
this understanding, Heller and its progeny can be understood as a choice, not a mandate. There
are competing Constitutional interests at play. They must be resolved through careful balancing,
not pretextual application of rote textual formulae.
Having established that there was no absolute basis for the “originalist” decision, it
becomes clearer that the majority27 in both important cases was expressing policy preferences –
especially considering the stated, and acknowledged, legitimate government purpose behind the
laws that were struck down. Tradition and history supposedly gave us the contours of the
Second Amendment right. But there is a problem with relying on such a feeble tool, for such
important decisions. At some point, history is not going to give us a credible answer once we get
to nuanced questions. At the end of the day the court will have to balance, because history is
simply unable to handle those questions of policy preference. The majorities of Heller and
23
Id.
Id. at 2801.
25
Heller, 128 S. Ct. at 2822 (Stevens, J. dissenting.).
26
Id. at 2831.
27
McDonald garnered a plurality of justices.
24
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McDonald chose property rights over human rights.28 The danger here is the same danger with
current notions of discrimination – the majority hides behind a supposedly neutral application of
the law, disguising the value-laden decisions on which these cases were actually based.
When the Heller and MacDonald decisions are taken from the security of the colorblind
constitution and confronted with a highly complex, racialized society, the authoritative bases
with which those decisions were announced quickly erode. The impact of anti-control laws visà-vis the prevalence of weapons available in communities of color, namely shockingly high rates
of gun violence, cannot simply be viewed as an unfortunate effect of the absolute, unambiguous
wishes of our framers.29 Instead, these decisions reflect value judgments made by the Court,
placing a higher value on a rigid interpretation of history which includes an inherent right to selfdefense over the actual effects of guns on the United States.
The actual impact is staggering. Census data for 2009 shows that there were 11,031
firearm related murders in the United States.30 The same data shows that firearm related murders
accounted for over 80% of the total murders for that year.31 In Chicago, the murder rate in 2012
surpassed the 2011 total, in August.32 As an international comparison, the U.S. has several
thousand more gun homicides than the rest of the G-12 member nations combined.33 This is a
problem that is not going away.
IV. Self-Defense, the White Privilege
A. The History and Myth of Self-Defense
If Heller and McDonald guarantee an individual right to own a gun for the purpose of
self-defense, what does that mean in the context of a highly racialized society? Self-defense has
historically been a white privilege, for years encountering no question that American Indian
tribes34 or African-Americans35 enjoyed the same right. The myth of self-defense has become a
28
See infra text at note 102. Having shown the impact of guns on impoverished communities, I
think there is no doubt that gun violence in the United States is a human rights issue, after all, it
affects what should be our most protected right – the right to life.
29
District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008).
30
LAW ENFORCEMENT, COURTS & PRISONS: CRIMES AND CRIME RATES, THE UNITED STATES
CENSUS BUREAU, Murder victims—circumstances and weapons used or cause of death tbl.310
(2012), available at http://www.census.gov/compendia/statab/2012/tables/12s0310.pdf
(showing that in 2009 there were a total of 9,203 murders by firearm where the firearm type was
known, and another 1,828 murders by firearm where the type of firearm was unknown).
31
Id.
32
http://chicagoist.com/2012/08/21/saturday_murders_in_chicago_tie_201.php
33
http://www.gunpolicy.org/firearms/compare/194/number_of_gun_homicides/10,11,18,31,280,6
6,69,88,91,125,172,177,178,192.
34
Ann E. Tweedy, “[H]ostile Indian Tribes . . . Outlaws, Wolves . . . Bears . . . Grizzilies and
Things Like That?” How the Second Amendment and Supreme Court Precedent Target Tribal
Self-Defense, 4 THE CRIT: CRITICAL STUD. J. 1, 4 (2011).
35
Id. at 2–5.
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means of covering the exceptionally biased nature of historical gun ownership, while
simultaneously romanticizing it.
Myths are stories drawn from a society’s history that have acquired through
persistent usage the power of symbolizing that society’s ideology and of
dramatizing its moral consequences-with all the complexities and contradictions
that consciousness may contain. Over time . . . the original mythic story is
increasingly conventionalized and abstracted until it is reduced to a deeply
encoded and resonant set of symbols, “icons,” “keywords,” or historical clichés.
In this form, myth becomes a basic constituent of linguistic meaning and of the
processes of both personal and social “remembering.”36
In this context, the myth of self-defense is not used in any way to convey fiction, but
instead as Tweedy used it, as a means of conveying the historical and cultural complexity of selfdefense.37 Comparing the myth of self-defense to historical realities of early America reveals the
dissonance between the two. Despite these disparities, however, the myth of self-defense
remains pervasive throughout the conversation on individual gun rights today.
“From Plymouth Colony to the sandy plains of Kuwait, firearms in the hands of free
Americans have purchased, maintained and preserved our freedom, liberty and unique way of
life.”38 The first sentence in an article promoting the opening of a then new firearms museum,
accompanies a picture of early, well-armed settlers arriving to the shores of the “new” world. In
another article in American Rifleman, the author paints a romanticized picture of the relationship
between a particular early settler and his firearm. “Those hearty souls who left England in 1620
in search of a fresh beginning in the New World did so knowing that just the act of surviving
could be their greatest accomplishment. . . . Like most of the able-bodied men in the new colony
. . . [John Alden] carried his own musket.”39 These articles begin to convey part of the myth of
self-defense, involving an adventurous pioneer seeking freedom, and relying on his firearm to
defend himself and his family from the “savages” of the “new” world.40
The prevalence of the “savage” as a motivator for gun ownership was evident even in the
Supreme Court’s questioning during Heller. Justice Kennedy rhetorically asked whether there
was no concern embodied in the Second Amendment “of the remote settler to defend himself and
36
RICHARD SLOTKIN, GUNFIGHTER NATION: THE MYTH OF THE FRONTIER IN TWENTIETHCENTURY AMERICA 5 (1992).
37
See Tweedy, supra note 34, at 2 n.3.
38
Philip Schreier, Freedom’s Guns, American Rifleman 32, May 1998, available at
http://www.nramuseum.org/media/940537/freedoms%20guns.pdf.
39
Philip Schreier, From the Old World to the New, American Rifleman 43 March 2001,
available at http://www.nramuseum.org/media/940597/new%20guns%20old%20world.pdf
40
See Tweedy, supra note 34, at 9 (“[T]ribes have historically been constructed as a caricatured
other that European colonists and then white American citizens need to defend against.”).
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his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies . . . .”41
There is wide agreement that the Second Amendment “grew directly out of Americans’ colonial
experiences of defending themselves through militias.”42
As tensions between the colonies and colonial powers heightened, the myth of selfdefense began to include more political notions of freedom, namely freedom from oppression.
The ability to participate in a militia and defend one’s country, or political freedom generally
became one of the primary facets of the myth of self-defense. The myth thus conveys a dual
understanding of the gun owner as “both the guardian of the free state and the defender of home
and hearth.”43 The myth was an enabling one. It allowed individuals to create a safety for
themselves that they would not have had otherwise. It allowed settlers to live off the land
through hunting, and to defend themselves from hostiles, whether they are wild animals, Native
Americans, or other settlers. The romanticism that flows from the “tradition” of gun ownership
is largely due to this ability for the gun and self-defense to enable an individual to take advantage
of new land, new opportunities. In this sense, the myth of self-defense is intricately tied to the
American Dream, perhaps explaining its stronghold in the American psyche.
The myth of the Second Amendment is just that—a myth. Self-defense, in this context, is
not the clean, innocent (read: neutral, unbiased) concept that we tend to think of—it is not
justified killing. Instead, it functions as a means of justifying campaigns of racial and ethnic
oppression and extermination. Far from self-defense, the gun was a means of preserving white
European values in the “new” world—“the gun culture originated in the concerns of white
citizens to control those of other races, especially blacks and Native Americans. ”44 The myth of
self-defense, and much of American history portrays Native Americans as the aggressors,
justifying the appropriateness of the centuries of self-defense resulting in total displacement, and
almost complete eradication of Native American populations. From the point of view of
colonists and early Americans, there was no bridging the “ineluctable political and social
differences” between the natives and the newcomers—the only basis for coexistence was
subjugation.45
In Heller, Justice Scalia is so willing to practically excise the prefatory clause of the
Second Amendment because of the seemingly inherent nature of the right to bear arms for the
purpose of self-defense—certainly, the reasoning goes, such a recognized right cannot be so
41
Tweedy, supra note 34, at 11 (citing Transcript of Oral Argument at 8, Heller, 554 U.S. 570,
(Mar. 18, 2008) (No. 07-290)).
42
Id. at 12.
43
Maxine Burkett, Much Ado About . . . Something Else: D.C. v. Heller, the Racialized
Mythology of the Second Amendment, and Gun Policy Reform, 12 J. GENDER RACE & JUST. 57,
76 (2008).
44
David C. Williams, Constitutional Tales of Violence: Populists, Outgroups, and the
Multicultural Landscape of the Second Amendment, 74 TUL. L. REV. 387, 406 (1999).
45
Tweedy, supra note 34, at 12–13 (quoting RICHARD SLOTKIN, GUNFIGHTER NATION: THE
MYTH OF THE FRONTIER IN TWENTIETH-CENTURY AMERICA 5 (1992)).
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couched as the prefatory clause would suggest.46 Justice Scalia looks to English common-law as
one of the authorities for the substance of the Second Amendment—looking to how this right
was viewed in the context of not simply a specific right granted by a legal document, but a
“natural” right that all free men enjoy.47 Yet, the dark history of the United States shows that the
right to self-defense was a “white” right, one specifically kept from African-Americans48 and
Native Americans.49 The gun was a symbol not of equalizing opportunity,50 but of gaining an
advantage—the technology allowed white plantation owners to control greater numbers of slaves
without fear of revolt;51 it allowed small groups of early settlers to exert a tactical advantage over
the native populations.52 Far from equalizing, “the gun [permitted] its holder to transcend his
perceived position of inferiority and to gain superiority over, rather than equality with, his
adversaries.”53
The so-claimed inherent right to bear arms for self-defense recognized so easily by Heller
is eroded by the selective nature through which we have historically viewed self-defense. It was
not an inherent right available to anyone. Instead, it is a tool, by which subjugation is enabled
and justified. Historically, self-defense has been a white privilege, not an inherent right. The
moral authority that the myth of self-defense provides to Heller and other notions of individual
gun rights is thus stripped of significance when understood as a pretext for subjugation and
extermination—no individual has a right to this kind of self-defense.
B. Racialized Self-defense Today
Why does the myth of self-defense54 matter? Because the same dynamics are still at
play—self-defense is not anymore neutral today than it was three hundred years ago. It is no
“[T]he Second Amendment was not intended to lay down a ‘novel principle’ but rather a right
‘inherited from our English ancestors.’” Heller, 554 U.S. at 599 (quoting Robertson v. Baldwin,
165 U.S. 275, 281 (1897)).
47
Id. at 615.
48
Burkett, supra note 43, at 78.
49
Tweedy, supra note 34, at 41–51 (detailing the specific prohibitions against Native Americans
possessing weapons, thus having the right to defend themselves despite recurrent violence
against these populations).
50
Gun ownership is often thought of as the great equalizer. This is embodied in the “Cowboy
Corollary” to the Declaration of Independence, which essentially says that God made men, but
the gun made them equal. See Burkett, supra note 43, at 77–78.
51
This scenario is what Samuel Colt, inventor of the Colt Revolver, claimed was his inspiration
for his invention. See e.g., Burkett, supra note 43, at 78.
52
See Tweedy, supra note 34, at 41–51.
53
Burkett, supra note 43, at 77.
54
In this section, I will be only addressing the individual aspect of self-defense—the defense
hearth and home, rather than homeland. This is the case for two reasons. First, practical
constraints of this paper. Second, it seems clear that in light of technological advances in
weaponry, i.e. heavy automatic weapons, unmanned drones, and other technology, the Second
Amendment protects political self-defense in name only. Heller fully acknowledged that limits,
46
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great mystery that the obscene gun violence in places like Chicago is the result of weak gun
regulation. I don’t think any reasonable person would argue that making guns harder to get will
result in less violence. So then why is it that we do not respond to these patent truths? Because a
substantial and loud segment of the population cling to this mythical notion of self-defense. We
rubber stamp laws, like the now infamous “stand your ground,” and fail to respond to
overwhelming gun violence, while hiding behind the shield of the inherent right to self-defense.
But if we understand the ugly side of self-defense, perhaps it is no longer sufficient to support an
anti-control movement that defies logic and reality.
1. Implicit Racial Bias
It is with some hesitance that I approach this subject. There is a great deal of connotation
associated with saying something has racial implications. It is precisely the point of the theory
of implicit racial bias, however, that there is not necessarily racial animus or bigotry involved in
these decisions. There is something of a misnomer concerning bias when it comes to current
conceptions of discrimination. Bias is generally understood to have conscious motivations, as
reflected in the structure of anti-discrimination law, which “constructs intergroup bias as
something that occurs when a ‘discriminatory purpose’ motivates a decision.”55 However, much
discrimination, and racial bias generally, occurs without a discriminatory purpose or intent, but
instead “when an individual’s group status subtly, even unconsciously, affects a decision makers’
subjective perception of relevant traits, on which ostensibly non-discriminatory decisions are
subsequently based.”56 Thus, the line between intentional discrimination and implicit racial bias
lies with cognizance of that bias and the response to it.57 However, in some cases, even
intentional discrimination does not involve actual animus, merely capitalizing on the predictive
nature of racial stereotypes.58
Whether or not our law reflects a the common notion that racial bias is only present
where there is conscious purpose, or whether our common notion reflects it because our law says
it is so, it is hardly arguable that it is the case. The colorblind approach to the law is insufficient
such as prohibiting civilian use of automatic weapons, are constitutionally appropriate
restrictions. Thus, despite the militia focused language of the Second Amendment, modern
Second Amendment jurisprudence prohibits an average citizen from coming close to matching
the armament used by militaries around the world. This effectively renders the political selfdefense aspect of the Second Amendment useless. See e.g., John Zulkey, The Obsolete Second
Amendment: How Advances in Arms Technology Have Made the Prefatory Clause Incompatible
with Public Policy, 2010 U. ILL. J.L. TECH. & POL’Y 213 (2010).
55
Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative
Action, 86 CAL. L. REV. 1251, 1278–79 (1998).
56
Id. at 1279.
57
“Insofar as cognitive sources of bias are concerned, the difference between people who
discriminate and those who do not is that members of the latter group notice the influences of
stereotypes on their thinking and counteract those influences by consciously adjusting responses
in a nonprejudiced direction.” Id. at 1285.
58
See infra, note 77 and accompanying text.
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because it fails to consider the effects of a “society in which history, ideology, law, and patterns
of social, economic, and political distribution have made race, sex, and ethnicity salient.”59 The
colorblind approach to law also overestimates an individual’s ability to consciously engage with
every decision she makes throughout her lifetime.60 Given the complexity of society, and the
subtlety of biases, it is necessary to look beyond shallow notions of racial bias, to rely on factors
more complex than animus and intent.
With so many things to worry about on a daily basis from rising gas prices to terrorist
attacks, our brains need to make short cuts. Significant studies have shown that individuals are
unable to consciously deal with the constant bombardment of information that we are exposed to
on a daily basis.61 To compensate we reflexively make associations between subconscious
beliefs about various group attributes and the best way to respond to particular groups so that we
can “quickly make sense of the people we meet.”62 Without these associations, the information
that an individual perceives is meaningless—that is, without meaning.63 In other words, our
observations remain generic and neutral instead of value laden and ultimately useful perceptions,
unless the individual has a “preexisting knowledge structure” with which to process the
observation.64 These structures are referred to as “trait constructs.”65
These trait constructs allow individuals to quickly assess a situation and know how to
respond by applying the stereotypes of the trait construct to the ambiguous information being
received.66 There is nothing inherently wrong with this. It is merely a way for an individual’s
brain to process information more efficiently, especially in a society where information abounds.
59
Krieger, supra note 55, at 1277.
See Benforado, supra note 12.
61
See Krieger, supra note 55 at 1284 n.120 (citing several studies of automatic mental
processes). See also Benforado supra note 12 at 37–38. “Since 1998, more than 4.5 million
[Implicit Association Tests] have been taken, and the results show pervasive implicit racial bias:
indeed, about seventy percent of those who have taken the race-bias version of the test were
found to exhibit ‘an unconscious, or implicit, preference for white people compared to blacks.’”
Id. at 39.
60
The Implicit Association Test [IAT] is the method most frequently employed by researchers to
measure implicit bias. “The IAT works by measuring response latencies as individuals attempt
to categorize concepts on a computer—concepts that are strongly associated are quickly sorted,
and those that are not strongly associated take subjects more time. In a typical IAT, a participant
in a study is provided with exemplars of two social categories (for example, whites or blacks,
homosexuals or heterosexuals, old people or young people), which they must then associate with
certain abstract evaluative concepts (often words that have positive or negative valences, like
‘joy,’ ‘love,’ ‘happiness,’ ‘agony,’ ‘pain,’ and ‘evil’).” Id. at 38–39.
62
Benforado, supra note 12 at 38.
63
See Krieger, supra note 55 at 1280.
64
Id.
65
Id.
66
Benforado, supra note 12, at 38.
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The problem arises because a person readily characterizes information into a trait construct when
that construct is readily available in the memory at the time of the behavior.67 Thus, in a society
where stereotypes are prevalent, they are likely to be unconsciously adopted for these purposes,
whether or not they are consciously believed:
Any activity, conscious or unconscious, that “primes” a particular trait construct
will tend to increase its accessibility and the corresponding likelihood that
ambiguous information will be assimilated or encoded in a manner consistent
with that trait. . . . Once activated, stereotypes serve to “prime” the trait constructs
with which they are associated. Incoming behavioral information, especially if
capable of various interpretations, is accordingly assimilated into those traits
associated with the stereotype.68
The interplay between trait constructs and negative racial stereotypes creates an untenable
situation where an individual’s daily processing of information is done unconsciously through a
racially biased lens. The prevalence of negative stereotypes only serves to ensure the
accessibility of those stereotypes to be assimilated through automatic mental processes, which in
turn lead to behavior based on those stereotypes, enforcing the viability of those stereotypes for
others. It is a perpetual cycle.
The negative influence of implicit racial bias is not only prevalent, but also difficult to
detect and overcome. The suggestions for how to counteract these processes that can lead to
discrimination illustrate how much of a problem implicit racial bias can be. Four conditions
have been proposed, which if satisfied will mitigate these mental processes:
First, one must become aware of the nature of the particular mental process which
threatens to bias one’s judgment. Second, one must be motivated to correct its
unwanted influence once it has been recognized. Third, one must be able to
discern the direction and magnitude of the bias, lest it be “overcorrected” and
judgment skewed in the opposite direction. And finally, one must have sufficient
control over his or her mental processes to correct the effect of the unwanted
influences.69
67
See Krieger, supra note 55 at 1280.
Id.
69
Id. 1286 (citing Timothy D. Wilson & Nancy Brekke, Mental Contamination and Mental
Correction: Unwanted Influences on Judgments and Evaluations, 116 PSYCHOLOGICAL BULL.
117, 119–20 (1994)).
68
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The burden of overcoming the negative influence of these automatic mental processes hints at a
reason why racial stereotypes still exists in a post-Civil Rights Era.70 Arguably, there are few
who still argue that race makes an employee more or less qualified or a person on the street more
or less dangerous, yet many still act this way. An easy example is the way that code words or
topics, like welfare or public housing are often used as ways to talk about race, without explicitly
invoking the taboo.71 Indeed, one of the most common racially stereotyped associations links
crime to being black.72
The stereotype of Black Americans as violent and criminal has been documented
by social psychologists for almost 60 years. Researchers have highlighted the
robustness and frequency of this stereotypic association by demonstrating its
effects on numerous outcome variables, including people’s memory for who was
holding a deadly razor in a subway scene, people’s evaluations of ambiguously
aggressive behavior, people’s decision to categorize nonweapons as weapons, the
speed at which people decide to shoot someone holding a weapon, and the
probability that they will shoot at all. Not only is the association between Blacks
and crime strong (i.e. consistent and frequent), it also appears to be automatic.73
It is important to recognize that implicit racial bias is not just relevant to in-the-moment
decision making, but much more broadly, because it effects our information processing
generally. As it relates to anti-control, the real danger is in believing that control policies are
neutral, that they have no racial implications. If this is the case, then anti-control advocates, gun
owners, and the public in general think that race is only relevant when individuals are explicitly
thinking about it. While explicit uses of race are relevant to this discussion74 the greater danger
70
See Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of
Reasonableness, 81 MINN. L. REV. 367, 402–05 (1996) (“Over time, as society has publicly
denounced racism, overt racial prejudice appears to have declined. Negative stereotypes of
African Americans, however, still persist. One of the stereotypes most often applied to African
American males is that they are more dangerous, more prone to violence, and more likely to be
criminals or gang members than other members of society.”).
71
Dorothy E. Roberts, Welfare and the Problem of Black Citizenship, 105 YALE L.J. 1563 (1996)
(“[I]t is common place to observe that ‘welfare’ has become a code word for race.”).
72
See Benforado supra note 12, at 40. (citing Jennifer L. Eberhardt et at., Seeing Black: Race,
Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876, 877 (2004)).
73
Jennifer L. Eberhardt et at., Seeing Black: Race, Crime, and Visual Processing, 87 J.
PERSONALITY & SOC. PSYCHOL. 876 (2004) (internal citations omitted). See also Cynthia Kwei
Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81
MINN. L. REV. 367, 402–05 (1996); L. Song Richardson & Phillip Atiba Goff, Self-Defense and
the Suspicion Heuristic, 98 IOWA L. REV. 293, 298–307 (2012).
74
See infra notes 81–102 and accompanying text.
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is the rhetoric which takes advantage of the spongy nature of heuristics75—creating stereotype
after stereotype about race, violence, and self-defense which in turn engender profound racial
biases.
2. Explicit Bias
One of the primary motivating factors for explicit bias is economics. Despite arguments
to the contrary,76 an understanding of explicit bias can be a great asset for economic motives.
For this discussion, however, the notion of economics can be expanded to include political
economics.
Economist Ian Ayres conducted an experiment which revealed the use of implicit bias in
retail car sales.77 The experiment revealed that dealerships purposely considered the race of a
potential car buyer and paired that customer with a sales person of a race and gender thought to
be most likely to make the sale in light of the race and gender of the customer. More
specifically, dealers targeted buyers of a specific race and gender who were most likely to pay a
high-markup price.78 Not only were the race and gender boundaries of these interactions
optimized, but the information exchanged within these relationships differed based on the
race/gender pairings.79
There was no animus involved, but the import of the experiment is that manipulating
racial biases and the flow of information through those biases, whether implicit or explicit, can
engender support for a particular position. In this example, favorable race/gender pairings made
customers more amenable to making a car purchase. The same is arguably true of political
economy. In the same way that the dealerships capitalize on racial biases to manipulate
relationships between the buyer and seller to “generate revenue-based disparate treatment,”80 so
too advocacy organizations can capitalize on racial biases to manipulate the relationship between
the advocate, the message, and the public.
This is precisely why the NRA embraces racial bias, it allows the organization to turn
racially motivated fear into support. In a recent op-ed piece by NRA Executive Vice President,
75
Accessibility of stereotypes increases the amount they are used, which in turn increases
accessibility—thus, acting like a self-perpetuating process. See Krieger, supra note 55 at 1284.
76
There is much literature arguing that the free-market economy erases discrimination through
competition. See e.g., GARY BECKER, THE ECONOMICS OF DISCRIMINATION 21–23 (2d ed. 1971).
77
See Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104
HARV. L. REV. 817 (1991).
78
Id. at 855.
79
Id. at 827 (“the tests reveal that salespeople asked different types of questions and used
different tactics in attempting to sell the cars.”). Ayres explained that the types of questions and
sales tactics employed by the sales people depended on the race and gender of both the sales
person and the customer. For example, “sellers asked black female testers more often about their
occupation, about financing and whether they were married,” while “sellers asked black male
testers less often if they would like to test drive the car, whether they had been to other
dealerships, and whether they had offers from other dealers.” Id. at 834.
80
Id. at 856.
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Wayne LaPierre, said it was prudent to be armed in these dangerous times. He warned “good
Americans” that Latin American gangs have infiltrated every major city, and that the border
“remains porous not only to people seeking jobs in the U.S., but to criminals whose jobs are
murder, rape, robbery and kidnapping.”81 Quite explicitly, LaPierre preys on an already
alarming prevalence of racism toward Latinos, so that later in the article he has good reason to
ask for donations.
In the context of this discussion, this understanding of explicit bias affirms the continual
presence racism has in this national dialogue. It reminds us that race is not absent from daily
life, but is, in fact, deeply embedded in our national psyche.
3. A Rational Shooter?
Much scholarship demonstrates the impact of implicit bias on the in-the-moment
decisions involved with self-defense situations. It all points to the same conclusion: there are
practical concerns that self-defense is not a neutral concept in application. The notion of the
“rational shooter,” upon which much of the Second Amendment rhetoric is based, is flawed. The
idea of the “rational shooter” is pervasive. It is hard to imagine that regulation of gun ownership
would be decreasing if there was general consensus that gun owners were irrational, biased, and
excessively fearful individuals. Yet, is this what humans are? There is a crazy notion that once
you put a gun in someone’s hand, rationality returns, enabling the shooter to make the right
instinctive decision about when and who to shoot in a threatening situation. Implicit bias theory
has turned the notion of the “rational shooter” on its head.
In the last decade, the theory of implicit bias has been applied to assess the impact of race
on “shoot/don’t-shoot” decisions.82 The research in this area shows that shooters with implicit
associations between race and weapons or crime show bias in their shooting behavior.83
Specifically, this bias is manifested by quicker and more accurate shooting, or deciding not to
shoot where the “suspect” is unarmed: “Participants are faster and more accurate when shooting
an armed Black man rather than an armed White man, and faster and more accurate when
responding “don’t shoot” to an unarmed White man rather than an unarmed Black man.”84 Even
more significant, these studies revealed that implicit bias had a stronger impact on shooting
decisions than did explicit, negative sentiments toward African Americans.85
Similar to other judgments, determining whether or not someone is dangerous is not easy.
Thus, judgments of criminality are easily influenced by implicit bias—as a means of quickly
81
Wayne LaPierre, Stand and Fight, The Daily Caller Feb. 13, 2013, available at
http://dailycaller.com/2013/02/13 /stand-and-fight.
82
Benforado, supra note 12, at 42.
83
Id. at 43–44.
84
Id. at 43 (citing Joshua Correll et al., Event-Related Potentials and the Decision to Shoot:
The Role of Threat Perception and Cognitive Control, 42 J. EXPERIMENTAL SOC. PSYCHOL. 120,
126 (2006)).
85
Id. at 44.
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determining a threat.86 Quick associations, heuristics, are used between race, gender and
criminality to make these determinations.87
The impact of shooter bias is not a new discovery. Police officers and other armed law
enforcement officials go through extensive training before they are allowed to carry weapons in
their official capacity. This training is meant to “help officers avoid the snap judgments in
shooting decisions that often reflect implicit racial bias.”88 While, implicit racial bias is not
necessarily the primary purpose of this training, studies have shown that such training
counteracts implicit racial bias.89 The same studies that measured the impact of training on
police officers’ implicit racial bias in shoot/don’t-shoot decisions, also found that the same
results occurred for college students.90 These students, who were novice shooters, showed
reduced racial bias in their decision making after they received training.91
Law enforcement officials go through rigorous qualification training before allowed to
carry weapons, the same is not required of the average citizen who wishes to carry a gun. Even
more troubling is the proliferation of laws making it easier for citizens to carry guns,92 and laws
reducing the accountability for using those guns in cases of self-defense.93 It is impossible to
think that such training would be absolutely required of every gun owner, if the impact of racial
bias on shooters was understood. Race has real and demonstrable negative impact on the
decision-making of shooters, thus it is necessary to proactively consider the ways that race
affects notions of self-defense.
Self-defense, generally, eliminates the criminal liability for the use of deadly force where
the non-aggressor has a reasonable belief of the imminent use of deadly force from another.94
This typical construct of self-defense exculpates deadly force for any reasonable belief—thus,
86
L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic, 98 IOWA
L. REV. 293, 310 (2012)(“Faced with a potentially life-threatening situation, people are unlikely
to take the time necessary for deductive reasoning. Rather, they will make their judgments of
criminality quickly, based upon only small slices of behavior, under highly stressful
circumstances.”).
87
Id.
88
Id. at 50.
89
Id. at 48. (“Officers, just like the community sample, held implicit bias, but their training
allowed them to override the automatic associations.”).
90
Id.
91
Id.
92
Illinois was the last holdout among states enacting concealed carry laws. Ray Long, Illinois
Concealed Carry Ban Tossed by Federal Appeals Court, Chicago Tribune Dec. 12, 2012,
http://articles.chicagotribune.com/2012-12-12/news/ct-met-conceal-carry-ruling20121212_1_gun-control-gun-ordinance-todd-vandermyde (“Illinois’ days as the only state in
the nation to forbid public possession of a firearm could be numbered . . . .”).
93
Laws, such as the one central to the Trayvon Martin shooting, remove the duty to retreat and
allow use of deadly force if in response to a reasonable fear of death or great bodily harm. See
e.g., Florida Statutes Chapter 776.
94
See e.g., Richardson & Goff, supra note 86, at 314.
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where “a person uses deadly force against an innocent victim, as long as the individual actually
believed deadly force was necessary, and the mistake was reasonable,” the self-defense will still
be available.95 The impact that implicit racial bias has on criminality judgments bear heavily on
this notion of reasonableness.96 If, as has been demonstrated, race influences the level of threat
felt by the non-aggressors, then this racialized notion of reasonableness dramatically expands the
scope of justified killings—frequently covering deaths of innocent victims.97
In their piece on race and modern self-defense laws, Richardson and Goff use the tragic
death of Yoshihiro Hattori as an example of this racialized reasonableness in action.98 Hattori, a
sixteen-year-old Japanese exchange student, was on his way to a Halloween party with a member
of his host family in Louisiana, when he was shot and killed by a man whose house Hattori
mistakenly thought was the location of the party.99
Hattori was dressed as John Travolta, wearing a white tuxedo jacket . . . the two
got lost and mistook the home of Rodney and Bonnie Peairs as the location of the
party. They rang the doorbell, but when no one answered, the boys walked
around the carport. At that moment, Mrs. Peairs opened the door. She saw
Haymaker first, but when Hattori rounded the corner, she screamed, slammed the
door shut, and yelled out to her husband to “[g]et the gun.” The boys began to
walk away, still in search of the Halloween party. They were on the sidewalk,
approximately ten yards away from the home, when Mr. Peairs ran outside with
his laser-scoped .44 Smith & Wesson Magnum. Hattori, who spoke broken
English, turned around and began to walk back towards Mr. Peairs, saying that
they were there for the party. Mr. Peairs yelled “Freeze!” but Hattori did not
understand what that word meant. When Hattori continued to approach, Mr.
Peairs fired one shot, killing Hattori. The entire event, from the time Mr. Peairs
opened his door, lasted about three seconds. A jury found Mr. Peairs’s belief that
he was in imminent danger reasonable and acquitted him.100
While we do not know whether or not Mr. Peairs held any particular racial intentions, it
would be completely normal for Hattori’s race to function as a substitute for suspicion.101 The
narrative of Hattori’s death is echoed in the killing of Trayvon Martin. In that tragedy, similar to
Hattori’s death, we do not know what mental processes led George Zimmerman to shoot and kill
the unarmed teenager. What it does absolutely demonstrate is the potential for implicit racial
95
Id.
“The suspicion heuristic demonstrates how easily honest—but mistaken—beliefs can occur
when the person being judged fits a criminal stereotype.” Id.
97
Benforado, supra note 12, at 33–34.
98
Id. at 315.
99
Richardson & Goff, supra note 86, at 315.
100
Id.
101
Id.
96
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bias to render objectively unreasonable shooting decisions, reasonable under current self-defense
rubrics.102
4. Self-defense is not cheap
The absolute allegiance to the inherent right to keep and bear arms for the purpose of
self-defense is not without costs. As a result of the campaign to promote and further secure the
traditions of gun ownership in our country, guns have become readily available. The real impact
of the proliferation of individual gun ownership is not in widespread prevention of crime and
harrowing instances of reasonable self-defense, as advocates of the individual right may suggest.
Instead the real impact has been tragic, and disproportionately affecting impoverished
communities of color.103 In Chicago, close to 90 percent of violent crimes occur in low-income
areas, which are predominately black and Latino.104
Despite the fear that drives the perceived necessity of guns for self-defense, most gun
violence is isolated. Gang violence, the most prevalent minority violence, is isolated—rarely
touching the lives of the white middle class (as a result of systemic segregation, both economic
and racial). For most, it is certainly something to be concerned about, but not something to be
personally afraid of. In light of this understanding, the notion of self-defense yet again serves to
mask the real racial impact of gun ownership, while promoting its non-racially relevant
purposes—the narrow notion of actual, reasonable self-defense.
V. Conclusion
There are two purposes to emphasizing the racialized Second Amendment. First, it
exposes the insufficiency of the fundamental rights arguments and the claimed moral high
ground of gun advocates. And, second it allows Heller and its progeny to be seen as a choice,
not a mandate. There are competing Constitutional interests at play. They must be resolved
through careful balancing, not pretextual application of rote textual formulae. The Constitution
does not make any absolute guarantees, “It fails [to do so] because the Constitution has to be
read as a whole, and when it is, other values crop up in potential conflict with an unfettered right
. . . the explicit terms of the Constitution, in other words, can create a conflict of approved
values, and the explicit terms of the Constitution do not resolve that conflict when it arises. . . . A
choice may have to be made, not because language is vague, but because the Constitution
embodies the desire of the American people, like most people, to have things both ways. We
102
Patricia J. Williams, The Real Injustice at the Heart of the Trayvon Martin Case, The Nation
(May 7, 2012), http://www.thenation.com/article/167455/real-injustice-heart-trayvon-martincase.
103
See Burkett, supra note 43, at 76.
104
Rebecca Leber, 34 People were Shot in Chicago on July 4, THINK PROGRESS (July 5, 2013),
http://thinkprogress.org/justice/2013/07/05/2259541/chicago-gun-violence-july-4.
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want order and security, and we want liberty. And we want not only liberty, but equality as
well.”105
When we are able to see the interpretation of the Second Amendment as a choice, then
we can look to smart regulation to curb the deleterious effects of gun ownership in the United
States. I do not think that I have any great ideas about reform, certainly none that merit inclusion
in this article, but there is plenty out there to point towards as reasonable steps to take. In any
renewed discussion about gun ownership and self-defense, race must be a consideration. The
deeply complex relationship between gun ownership and race cannot be ignored.
Justice David Souter, Address at Harvard’s Commencement (May 27, 2010), available at
http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/
105
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