Should Blacks be Allowed to Kill Cops? Or, the Fundamental Irrationality of the Second Amendment

To clarify, the following is a thought experiment, and should not be taken as an endorsement or call-to-action.

I am by no means an American constitutional scholar (I am Canadian for what it is worth) and this article is not meant to form, persuade or finalize an argument about what the framers of the constitution meant or anticipated with the Second Amendment, the words of which read “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”. Whether any argument pertaining to the meaning of that sentence can or will be settled is well beyond the scope of this article or my capability.

The intention of this article is to examine a thought I expanded upon from a comment I encountered in a news article about the police shootings in Dallas and Baton Rouge resulting, presumably, from the seemingly extra-judicial killing of black men by officers. That is, could the killing of police officers by black men be justified under the second amendment?

A brief history of the antecedents of the codified right to bear arms is that the amendment was based partially on English common law, and influenced by the English Bill of Rights of 1689. Sir William Blackstone described the right to bear arms-as per Wikipedia-as an auxiliary right, supporting the natural rights of self-defence (the legally defensible right to life), resistance to oppression, and the civic duty to act in concert in defense of the state. Blackstone has also written of the right to rebel as the natural right of resistance and self-preservation, exercisable as a last resort when “the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Bringing this idea to America, early English settlers viewed the right to bear arms (and the right to form militias) as intrinsic for a variety of reasons, including deterring a tyrannical government, and the facilitation of the natural right of self-defence.

The inclusion of these principles within the amendments of the constitution is a long and exhaustive history, and the judicial decisions and battles over the amendment in the intervening 200-plus years are even more exhaustive. Suffice it to say, when the proponents of the second amendment in modern day America speak of the right to bear arms beyond a self-defence-against-crime issue, their argument is generally one of defending against a tyrannical state. So for the purposes of this article, let us accept this as a rationale in contemporary times in favor of the second amendment, against the headwinds of criminal mass shootings and potential terrorist acquisition of firearms,

Anecdotally speaking, within the last couple years, anyone who follows thoughtful, long form media will have encountered pieces by black men or women decrying the terrible accounts of police brutality or harassment that they or their loved ones have faced. As a white, Canadian man it is hard for me to say that the experience of the black, American man is being exaggerated for political or societal brownie points. Seeing a police squad car pull up to twelve-year old Tamir Rice and the officer killing him within a few seconds of the first encounter from a 911 call, after a deluge of similar incidents, and followed by similar incidents, tend to enforce a sense of oppression, abject profiling and police bigotry against black men that is hard to compare to anything seen against other racial or ethnic groups. So if only for the purposes of this thought experiment, I am willing to grant that black men are being oppressed by the police and, through the existence and enforcement of drug laws, by the state.

Now, in one’s day to day life, which agent of the state is one most likely to encounter? The answer to that is most likely a police officer. The job of an officer is not to interpret laws, but to enforce them. The state sets laws; police do the bidding of the state to adapt those laws to the street, so to speak. Thus police are agents of the state, not protecting the public in a strictly legal sense, but enforcing the laws of the state, or protecting the status quo.

So if black men are interpreting police as enforcing the laws as they oppress them, I imagine it is a very shallow step to take to view the state as guilty of tyranny, projected through its agents, the police.

If the interpretation of the second amendment is to allow the citizenry to protect themselves against a tyrannical state, who gets to decide what is tyranny and who is perpetrating that tyranny? It seems a rather self-defeating notion if the state is accorded the right to determine whether the state is guilty of tyranny. One gets the impression the NRA does not exist to allow the state the right to dictate the terms of their possible future resistance.

Therefore, the oppressed labels the oppressor. Under the terms of the second amendment, it seems to me that its white proponents would seize for themselves the right to resist the state by force if agents of the state, say, sought to impound private firearms. The NRA would presumably champion this as the very raison d’etre of the second amendment in the court of public opinion; using necessary violence to protect themselves against state tyranny.

In theory I fail to see how this is different for black men. On the presumption that black men are being oppressed by the state through its agents, the police, that black men have repeatedly been killed by said agents in an extra-judicial manner, under the constitutional auspices of the second amendment are black men not afforded the right to defend their lives by force, as a last resort?

A lawyer would most likely here challenge the meaning of ‘defend’. But is the state also able to dictate how the defence against tyranny occurs?

How this is playing out in the court of public opinion is that the black men who killed cops are being excoriated from all angles, including all but the extreme fringes of the Black Lives Matter movement. Not only is the act of killing the police officers being denigrated, the subjective oppression they felt as a justification for the killings is being minimized. Not only is the state obviously opposed to any justification, the court of public opinion is also widely against the notion of not only the killings themselves, but the rationale of oppression leading to resistance.

In essence, those who feel oppressed by the state and its agents are being battered from all sides for applying Second Amendment principles to defend themselves against this state tyranny. The language used against the defense rationale is generally one of societal law and order, and keeping the peace.

So we have in these incidents of black men killing cops in response to police brutality a real life and real time experiment detailing the limits of the Second Amendment as a means for the oppressed to defend against their oppressors. If the state (which is to be expected) and public opinion both react strongly against any violent action by those exercising their right to “bear arms” in defense of state tyranny, and that backlash prompts the oppressed to acquiesce to the public will (effectively allowing the original oppression to continue) or face even harsher retribution, of what use is the Second Amendment as a defense mechanism against the state? If the public will always choose law, order, safety and stability over justice, the right to bear arms against state tyranny is an irrelevant right granted to the people as a hypothetical salve to the notion of a tyrannical state. When implemented, the use of violence-the extension of the right to bear arms-as a defense against the state and its agents seems to hinge on the willingness of the state and the populace to concede to the oppressed the terms of both their oppression and their means of defense. Therefore, the Second Amendment of the United States constitution is an irrational article of legislation, useless in its application, serving only as rhetoric as to the ability of an oppressed populace to defend themselves against an all-powerful state. So, wither the Second Amendment?