Washington Lawyer - November/December 2021 - 42

WORTH READING
Unequal Origins, Unjust Outcomes
Review by Don Allen Resnikoff
I
n 2016 Philando Castile was
pulled over by police outside St.
Paul, Minnesota. Castile followed
the National Rifle Association's
guidelines for traffic stops - he
produced his license and proof of
insurance upon request and
informed the officer that he was
armed - but he still ended up
dead. In The Second: Race and Guns
in a Fatally Unequal America,
Emory University professor Carol
Anderson argues that the NRA did
not speak up simply because
Castile was a Black man who
owned a licensed gun.1
Anderson believes the root of the Castile story
and other similar incidents lies in the design
of the Second Amendment to the U.S. Constitution.
" [W]hat we get in the Second
Amendment is . . . about a militia that is
designed to curtail Black people's rights to
life, liberty and the pursuit of happiness. So
sitting in the Bill of Rights is the right to curtail
Black people's rights, " Anderson writes.
As determined by the U.S. Supreme Court, the
law on gun rights has to a significant extent
turned against Anderson's point about racial
motivation. The leading opinion, District of
Columbia v. Heller (2008), rejects the idea that
the Second Amendment was adopted to
protect a white militia and to curtail Black rights.
A 2019 article by attorney Anthony Picadio
argues that Justice Antonin Scalia's majority
opinion in Heller permitted gun ownership
" based on an erroneous reading of colonial
history and the drafting history of the Second
Amendment. " 2
Scalia's reading was that the
militias of the time were for civil defense, not
racial oppression. Picadio makes a point similar
to Anderson's: " If the Second Amendment had
been understood to have the [race-neutral]
meaning given it by Justice Scalia, it would not
have been ratified by Virginia and the other
slave states. " The amendment begins with the
phrase " a well regulated Militia " because
Virginia's founders wanted to be sure guns did
not get into the hands of enslaved or free Black
Virginians, Picadio explains. With the state's
all-white militia, the Second Amendment
helped do just that.
Anderson's book goes far beyond the circumstances
of the adoption of the Second
Amendment. The author recounts numerous
episodes of unjust gun-related violence against
Blacks in the same vein as the Castile story.
Throughout the book her writing is not
detached or neutral; she is vehemently advocating
for fairness and justice for Blacks.
The advocacy aspect of Anderson's book has
drawn much praise but also some criticism,
including from Harvard Law School professor
Randall Kennedy. In his book review in the New
York Times, Kennedy writes that Anderson
" argues unconvincingly, in the face of formidable
scholarship to the contrary, that the aim
to protect slavery was the predominant motive
behind the Second Amendment. " Kennedy
cites as an example of " formidable scholarship
to the contrary " Yale law professor Akhil Reed
Amar's explanation in his book, The Bill of Rights,
that debate over the Second Amendment
touched on points distinct from racial oppression,
particularly " deep anxiety about a potentially
abusive federal military. " 3
As a lawyer who is not a scholar on the origins
of the Second Amendment, I am not in a
position to be an arbiter of whether Kennedy or
Anderson is right about the role of race in the
adoption of the Second Amendment. I do see
the intuitive appeal in Anderson's argument
that influential men who were slaveholders
from states where slavery was economically
important and protected strongly favored
white-only militias that suppressed Blacks.
But Justice Scalia, a vocal proponent of an
" originalist " approach to constitutional
42 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2021
interpretation,
had no such
difficulty
being an
arbiter of
what is historically
correct
when
he decided
Heller. That is
puzzling. It is
one thing for
critics like
Kennedy
to reach back
to Amar's
1998 book
and other sources and argue that the Second
Amendment has no racist roots. It is another
thing for Amar's argument to become, in
essence, the ruling of the U.S. Supreme Court in
2008. As Picadio argues in a 2021 article written
in anticipation of new gun rights cases coming
before the Supreme Court:4
We now have the situation where a
one-vote majority Supreme Court opinion
[in Heller] has decided our history. Does it
no longer matter what history scholars say
about the history of gun regulation in 18th
Century England and early America? Does
the concept of stare decisis foreclose consideration
of further scholarly research? Just
posing these questions shows how preposterous
it is for a court to resolve, as a matter
of law, disputed and contested historical
issues.
I find Picadio's observation to be provocative.
It is a concern that judicial endorsement of an
arguably incorrect perspective on a disputed
historical point may allow a judge to inappropriately
cook the case decision to achieve a
preferred outcome.
While some may fault Anderson for not being
a dispassionate scholar, another perspective is
that there is a legitimate role for scholars also
being impassioned authors, especially on
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