Armed with Privilege: The 'Right to Keep and Bear Arms' as a Tool for Reinforcing Exclusionary Conceptions of Citizenship

• Author: Chayce Glienke
• Pages: 231-249

NOTES

Armed with Privilege: The “Right to Keep and Bear

Arms” as a Tool for Reinforcing Exclusionary

Conceptions of Citizenship

CHAYCE GLIENKE*

ABSTRACT

The “right to keep and bear arms” is often touted as a fundamental right that

affords protections to all Americans. However, as this note argues, the “right to keep

and bear arms” does not now provide—nor has it ever provided—the same presump-

tions of lawfulness to Black Americans as it does to White Americans. Part I of this note

explores the origins of the “right to keep and bear arms,” beginning with the founding

of the United States and continuing through the Reconstruction era. Part II analyzes

Black disarmament through gun laws as a mechanism of constructing exclusionary con-

ceptions of citizenship that prioritize whiteness. Part III imports this lens of citizenship

to the modern context, arguing that high profile examples of racially disparate responses

to firearm use demonstrate that vestiges of earlier, more explicit restrictions on gun own-

ership still function to reinforce racially exclusionary conceptions of citizenship.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

I. ORIGINS OF THE “RIGHT TO KEEP AND BEAR ARMS” AND ITS HISTORICAL

APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

A. Gun Regulations and Firearm Ownership in Colonial America . . . 233

B. Evolution of the Second Amendment as a Tool of Racial Control . . 236

II. GUN OWNERSHIP AS A MEANS OF EXCLUSION THROUGH CONSTRUCTIONS

OF CITIZENSHIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

III. THE MODERN ANALOGUE OF JIM CROW GUN RESTRICTIONS: RACIAL

DISPARITIES IN THE APPLICATION OF THE “RIGHT TO KEEP AND BEAR

ARMS”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

A. Whiteness as a Proxy for Presumptive Lawfulness: The Story of Mark

and Patricia McCloskey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

* © 2022, Chayce Glienke.

231

B. Blackness and the Presumption of Illegality: The Story of Kenneth

Walker, III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248

INTRODUCTION

“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.”

1

The Second

Amendment protects the right of the American people “to keep and bear arms.”

2

Modern Supreme Court jurisprudence has strengthened the Second Amendment,

expanding rights related to gun ownership. In District of Columbia v. Heller, the

Court held that the Second Amendment affords an “individual right” of gun own-

ership to each and every American.

3

However, more honest analysis reveals that

the Second Amendment affords protection to only certain Americans: namely,

Americans who are white.

When referring to the “right to keep and bear arms,” I mean to encompass more

than the bare legal rights enshrined in the text of the Second Amendment and the

Court’s interpretations of it. Rather, in analyzing the “right to keep and bear arms,”

I intend to also capture the public perception of gun ownership and the presump-

tions associated with the Second Amendment.

4

Such a characterization of “the right

to keep and bear arms” includes how the Justices on the Court conceptualize Black

Americans who seek to exercise this “right,” how police respond to Black firearm

owners, and even how Black Americans are situated within the polity with respect to

their firearm ownership. This note will argue that America’s history of Black subjuga-

tion and disarmament is part and parcel of a still-existing system of oppression. That

is, America’s history of conceptualizing Black people within its borders as dangerous

non-citizens still informs the way that the “right to keep and bear arms” is under-

stood and applied in the modern context. Contemporary frames for understanding

the “right to keep and bear arms” are merely persisting relics of America’s longstand-

ing history of oppression of People of Color.

This note will demonstrate that the privileges and presumptions of legal gun own-

ership afforded by the “right to keep and bear arms” are applied in a racially

1. U.S. CONST. amend. II.

2. Id.

3. District of Columbia v. Heller, 554 U.S. 570, 595 (2008); see also ROXANNE DUNBAR-ORTIZ,

LOADED: A DISARMING HISTORY OF THE SECOND AMENDMENT 199 (2018) (citing a 2008 Gallup poll find-

ing that, when asked, “Do you believe the Second Amendment to the U.S. Constitution guarantees the rights

of Americans to own guns, or do you believe it only guarantees members of state militias such as the National

Guard units the right to own guns?,” 73% of respondents agreed with the Court that it was an individual

right, while only 20% of respondents believed the former).

4. See Anders Walker, Fundamental Frames: How Cultural Frames Inform the Fourteenth Amendment, 62

ST. LOUIS U. L.J. 569, 576 (2018) (describing how National Rifle Association advocates sold a vision of the

“right to keep and bear arms” that was broad, as it encompassed “not only was the right to bear arms [as] an

individual constitutional right, but the right to bear arms in self-defense was an even greater, absolute right

worthy of constitutional protection independent of the Second Amendment.. .derived from natural law itself,

pre-dating the founding”).

232 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 13:231