It is a sad but historical fact that neither race-motivated terrorism nor mass shootings are new to the United States. Thankfully, both are rare in a country with hundreds of millions of guns and hundreds of millions of people. At the same time, they are not unusual. And in Charleston, South Carolina, last week, they converged in one awful act of terror and racism.
The desire to do “something” after a tragedy is normal. Indeed, politicians often count on public outcry to enact new legislation. In his statement responding to the attack on Emanuel African Methodist Episcopal Church last Thursday, President Barack Obama made the familiar allusion to gun control. “We don’t have all the facts, but we do know that, once again, innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun,” he said.
But as politicians call for new gun laws in the wake of this racist attack, lawmakers ought to take a look at the origins and effectiveness of similar gun control measures that have passed, and their consequences—especially for black people. And in an era where blacks and other minorities continue to suffer from over-policing and disproportionately suffer the abuses of law enforcement, any new criminal laws should be carefully considered.
Like many criminal laws, gun control legislation has disproportionately affected black people and contributed to sky-high rates of incarceration for minorities in the US. As Radley Balko wrote in the Washington Post last year:
Although white people occasionally do become the victims of overly broad gun laws…the typical person arrested for gun crimes is more likely to have [black] complexion…. Last year, 47.3 percent of those convicted for federal gun crimes were black — a racial disparity larger than any other class of federal crimes, including drug crimes. In a 2011 report on mandatory minimum sentencing for gun crimes, the U.S. Sentencing Commission found that blacks were far more likely to be charged and convicted of federal gun crimes that carry mandatory minimum sentences. They were also more likely to be hit with “enhancement” penalties that added to their sentences. In fact, the racial discrepancy for mandatory minimums was even higher than the aforementioned disparity for federal gun crimes in general.
Balko’s piece goes on to detail the case of Shaneen Allen, a black woman and single mother who legally owned a firearm in Pennsylvania. She was arrested in New Jersey for having that weapon during a routine traffic stop in October 2013. She faced a three-year mandatory minimum sentence despite a clean record and having committed no other crime. Allen fortunately received a pardon from Governor Chris Christie as her case gained national attention.
Another story that made headlines was that of Marissa Alexander, a black woman who was convicted and sentenced to a mandatory minimum 20 years in prison in Florida after firing what she claims was a warning shot in self-defense against her estranged husband. After public agitation and much legal wrangling, Alexander was offered a plea bargain and was released from prison in January after serving three years.
This evidence is anecdotal, to be sure, but strict gun laws with harsh penalties aimed at punishing violent criminals can also ensnare law-abiding people who make mistakes. That these laws often affect people of color is not at all new.
The history of gun control in this country is long and has usually been directly or indirectly tied to race. After the Civil War, disarming freed slaves became a priority of white Southern state governments and roving bands of terrorists, like the Ku Klux Klan and other white supremacist organizations. In this environment, gun rights were viewed as an essential tool for freed slaves and other black Americans to take care of themselves and their families.
In part to circumvent resistance from black Americans, Southern states created convict lease systems, not unlike old slave leasing systems, aimed at profiting off of captured black labor. As Nicholas Johnson describes in his book Negroes and the Gun: The Black Tradition of Arms, blacks who carried firearms to protect themselves were often pulled into this leasing system for violating concealed carry laws. As Johnson and other authors have noted, those laws, as well as vagrancy and other minor offenses, were almost exclusively enforced against blacks.
In the years following Reconstruction, conflagrations like the coup d’état of Wilmington, North Carolina, in 1898, the Tulsa race riots in 1921, and the Rosewood Massacre in 1923 peppered the South as outgunned blacks fell victim to white mob violence. As Johnson explains in his book, some blacks were able to fend off small attacks on themselves or their homes, but white mob violence—and Jim Crow—ultimately prevailed as the dominant and unchallenged power structure.
Fast-forward to the Civil Rights Movement of the 1950s and 60s. Dr. Martin Luther King Jr. committed himself to peaceful civil disobedience and political non-violence. He also applied for a gun permit for personal protection given continuous threats to his safety. It was denied because the local police were not required to issue him one. Such discretion comes from “may issue” gun permit laws, still in effect in states like New York and New Jersey, which allow states or localities to determine whether or not an individual may carry a gun, even if that person meets all the legal requirements.
As UCLA law professor Adam Winkler wrote in the Atlantic and his book Gunfight: The Battle over the Right to Bear Arms, the “true pioneers of the modern gun-rights movement” were the infamous Black Panthers. Fed up with local authorities’ abuse of blacks, the Panthers openly, audaciously, and legally carried guns in public, taking advantage of California’s open-carry law.
The state reacted to black militancy by passing a bill known as the Mulford Act in 1967, repealing open carry, signed by then-governor Ronald Reagan. Other states followed suit. In 1968, the federal Gun Control Act and Omnibus Crime Control and Safe Streets Acts were passed—the first federal gun regulation in decades—in no small part as a reaction to the race riots of the era, according to Winkler. The passage of these bills opened the floodgate to further federalization of criminal laws and the “tough on crime” mindset that dominated late 20th century American politics. In tandem with the War on Drugs, the full force of government became focused on urban and inner city crime.
Of course, while “urban” and “inner city” are geographic descriptors, in America, they also mean “black and Hispanic.” Thus continued our long history of racially influenced criminal lawmaking. It is little wonder that law professor and author Michelle Alexander dubbed the resulting criminal justice and mass incarceration apparatus the New Jim Crow.
In recent years, some of these policies have been deemed unconstitutional. In the landmark 2008 Supreme Court case that ended the de facto gun ban for home possession in Washington, DC, personal safety was the motivation for one of the original lead plaintiffs, ShellyParker—but instead of white mobs, Parker was afraid of the neighborhood drug dealers and hoodlums that thrived on the drug trade. It was also the driving factor for the late Otis McDonald, whose Supreme Court case against the city of Chicago in 2010 effectively ended indiscriminate gun-in-the-home bans across the country.
Looking ahead, we should not continue the old thinking of the past two centuries. Mass shootings and other gun crimes elicit strong emotions, but they should be tempered when trying to craft sound policy. Every gun death is a tragedy. Any loss of life wreaks havoc on families, friends, and communities. In hindsight, it is abundantly clear thatDylann Storm Roof should not have had a firearm. It is much less clear any law could have prevented him from using it to murder nine people in cold blood. Far too often, our gun laws and criminal laws—even when well intentioned—have disproportionately burdened the black community. As calls grow for more gun laws, let’s not compound a tragedy by continuing the same mistakes of the past.