The 2nd Amendment as liberty for some, oppression for others

Criminal defense lawyers occupy a dual role within our criminal legal system - roles which can sometimes be at odds.

In matters related to the Second Amendment, this tension is particularly pronounced. On the one hand, a criminal defense attorney, duty-bound to protect the interests of an individual client, must advocate for a broad interpretation of the Second Amendment in cases involving guns, ranging from unlawful possession to homicide and more. Yet, the representation of individuals charged with crimes occurs within the broader context of our criminal legal system and the carceral state. To advance the goal of equal justice for all, defenders must advocate against it.

As we recall Patrick Henry's famous clarion call to liberty amidst the reality of the carceral state from which we reminisce, we are faced with profound modern tension: the dissonance between the ideal of the Second Amendment as a universal right and the harmful, inequitable way it is applied.

From its inception, the Second Amendment has been a privilege for some, but not for others. Early laws barred Black Americans - both enslaved and free - from owning firearms, ensuring that the means of resistance (and oppression) remained the preserve of the dominant race. This deliberate exclusion laid the groundwork for the persistent racism that plagues our nation. Documented selective enforcement has reinforced social hierarchies and perpetuated racial injustice throughout the carceral system - from policing to prosecutorial decisions, jury verdicts and community supervision. Indeed, an act of self-defense by a Black person is far more likely to be criminalized than the same act by a white person.

Moreover, the proliferation of guns throughout every community has contributed to more incarceration and longer sentences enhanced for a crime connected to the possession or use of a gun. This is true despite modern interpretations of the Second Amendment as encompassing a fundamental right to self-defense. Ironically, the evidence holds that increased access to firearms correlates with higher rates of gun violence and accidental tragedies, as most gun owners simply lack the necessary training and preparedness to respond effectively in actual self-defense situations.

But most notably, in the context of the founders' cry for liberty, as "a bulwark against tyranny," the Second Amendment has seen better days. Our society has evolved far beyond that bygone era when citizens brandished muskets to stave off the Redcoats. In the modern world, there is no need for a well-armed militia. We no more want the Black Panthers armed than the Oath Keepers. We didn't want the Jan 6 rioters armed, and we won't want the next angry mob engaging in armed conflict with police or the military upon the latest crisis. For our contemporary democracy to endure, it must prioritize nonviolence.

Despite its original billing as a safeguard for liberty, the right to bear arms has been wielded as a tool of power for the powerful - used to intimidate and oppress vulnerable populations. Protected for the dominant class and used to justify detentions, arrests and longer sentences for the others. It has, quite effectively, contributed to mass incarceration, exacerbated wealth inequality and stunted the economic well-being of communities of color, reinforcing a system of inequality, distrust and social demise.

For these reasons, the Second Amendment, long celebrated as a guarantor of individual liberty, now stands as an anachronism in a nation grappling with systemic injustice. As we commemorate Patrick Henry's call for freedom, we must address our national addiction to incarceration and our obsession with firearms and engage in thoughtful reassessment of our legal and societal priorities. As our rate of incarceration increases and our cities and towns grapple with increased poverty, homelessness and despair, the time has come to critically reconsider the value of the Second Amendment.

What was once heralded as a fundamental liberty, the Second Amendment, as applied, has instead become the very mechanism of oppression itself, while the United States continues to incarcerate its own people more - and for longer - than any other country in the world.

Jacqueline Goodman is a State Bar-certified criminal law specialist and founder of The Law Office of Jacqueline Goodman.