A makeshift memorial to Alton Sterling in Baton Rouge outside the convenience mart where he was shot and killed by police. Jonathan Bachman/Reuters

Recent court decisions and state laws have bolstered the individual right to bear arms, but not for everyone.

When police officers in Cleveland shot and killed Tamir Rice, a 12-year-old black boy who was playing with a pellet gun in a park, the officers claimed that they thought Rice was an adult, perhaps a 20-year-old man. Yet had Rice been a man, and had his gun been a real firearm and not a toy, he would have been well within his constitutional and state rights to bear it.

That shooting happened in 2014, many hundreds of police shootings ago. But Rice’s death, and the automatic objection offered up by law enforcement as to why they did not bear responsibility for the child’s death—that he appeared to be a black man holding a weapon—helps to explain two horrific deaths this week.

“Even the Tamir Rice shooting that took place here in Cleveland, that and [the shooting of] John Crawford III, both occurred in Ohio, which is an open-carry state,” says Ronnie Dunn, a professor of urban studies at the Maxine Goodman Levin College of Urban Affairs at Cleveland State University. “The police thought that [Rice] was a 20-year-old. Well, if that’s the case, he was in an open-carry state, and he had what police thought was a firearm, so he had not violated state laws nor his constitutional rights.”

Less than 24 hours after video emerged that showed two police officers subduing and killing Alton Sterling in Baton Rouge, another cell-phone video captured the aftermath of another police officer shooting and killing Philando Castile during a traffic stop near Minneapolis.

The deaths of Castile and Sterling at the hands of police officers bear many disturbing similarities, not least of which being that their deaths were captured on video. Both men were black, both men were alleged to have been carrying firearms, and both men were shot during routine investigations in states with open-carry or permissive licensed-carry laws.

Across the country, Americans are availing themselves of expanded state rights to carry weapons, including concealed firearms. As lawmakers in conservative states work to relax regulations that dictate where and when citizens can bear arms, more African Americans are also obtaining licenses to carry handguns—a right that was, until relatively recently, specifically unavailable to them. Yet in confrontations with police, these rights seem to fall by the wayside, despite court decisions meant to guide the actions of law enforcement.        

The U.S. Supreme Court’s 1985 ruling in Tennessee v. Garner, for example, found it unconstitutional for law enforcement to use deadly force to prevent the escape of an apparently unarmed suspected felon. In states with open-carry laws or concealed-carry laws, an apparently armed individual—a driver stopped for a busted tail light, say—cannot necessarily be considered dangerous or unlawful.

“If we were to extend that decision to what, to me, would be its logical conclusion, if you are in a state where people are entitled to carry weapons, police should not assume that weapons are illegal or will be used against them,” says Delores Jones-Brown, professor of law, police science, and criminal-justice administration at the John Jay College of Criminal Justice at the City University of New York.

Yet in both shooting deaths, the video footage appears to show the opposite of due process: Police register the presence of a potentially legal weapon as a clear and present threat.

In the video of the aftermath of Castile’s shooting, streamed online via Facebook Live by Diamond “Lavish” Reynolds, Castile’s girlfriend, she relates with astonishing composure the incidents that allegedly led to his shooting in Falcon Heights, Minnesota. Reynolds says in the video that Castile announced to the officer who stopped their car that he had a firearm and possessed a permit for it.

“He’s licensed to carry,” Reynolds says in the video, referring to Castile. “He was trying to get out his ID and his wallet out his pocket, and he let the officer know that he had a firearm and he was reaching for his wallet, and the officer just shot him in his arm.”

A visibly agitated police officer, who can be seen pointing a gun inside the vehicle at Castile, shouts, “I told him not to reach for it! I told him to get his hand up!” At which point Reynolds responds, “You told him to get his ID, sir, his drivers license.”

Sterling’s case is potentially more ambiguous from a licensure perspective. The Baton Rouge Police Department has not confirmed that a gun was reclaimed from his body, as the agency has since yielded the investigation to the U.S. Department of Justice, but he is alleged to have carried one. Sterling was selling CDs outside of a convenience store, and the store’s owner, who witnessed the shooting, says that Sterling owned a gun but never brandished it or moved for it before a police officer aggressively tackled him.

Louisiana, where Sterling was killed, is an open-carry state that requires permits for concealed handguns. As a convicted felon, Sterling likely would not have been eligible for a concealed-carry permit, as my colleague David Graham notes, but the police did not take action to ascertain whether Sterling’s gun was legal or not, and could not have known beforehand. Castile was killed in Minnesota, which requires handgun owners to have a permit to carry; his girlfriend claims that he announced the gun and permit, but he was shot by police anyway.

The Second Amendment rights of black and brown Americans have been restricted since the days of slavery, when slaveholders feared insurrection. While African Americans’ rights were technically expanded after the Civil War, they were in fact restricted further during the Jim Crow era, for much the same reason.

Only in 2008, in District of Columbia v. Heller, did the U.S. Supreme Court affirm an explicit constitutional right for an individual to bear arms for self defense, a ruling expanded and confirmed by McDonald v. City of Chicago in 2010. These decisions concretely established the Second Amendment rights of all Americans—and perhaps, for the first time, including black Americans.

“I would propose that part of the reason why there was this delay in determining there was a personal right to gun ownership was because there was this belief that the people who had been excluded from this right for so long would then be able to claim that right,” Jones-Brown says. “As we see, now that those folks can claim the right, it’s actually causing them more harm than benefit. And not harm so much from civilians, but harm from the very people charged with protecting and serving them.”

In Texas, where more than 1 million residents have obtained handgun licenses since 1996, fewer than 70,000 licensed handgun owners are black. Their share is rising, however. The state’s demographic reports show that black Texans represented fewer than 5 percent of applicants who received handgun licenses every year between 1996 and 2002. That figure has hovered around 7 percent since 2006. Black Texans received 7.7 percent of handgun licenses in 2015. (Black Texans make up 12.5 percent of the state’s population.)

Despite their gains as gun-owners, black people do not receive the benefit of the doubt from law enforcement in open-carry or permissive concealed-carry states—which is not a benefit of the doubt, really, but a constitutional right.

Dunn notes that in the case of Sterling’s death, in which he was confronted by police following a report that he had brandished a firearm, the video depicts an abrupt and violent escalation by one of the officers.

“In the media, there is this insertion that there was some kind of struggle [between Sterling and one of the Baton Rouge Police Department officers]. I didn’t really see much of a struggle,” he says. “African Americans in these situations don’t tend to be afforded due process and the opportunity to de-escalate or comply with orders from the police.”

“Police have come to see crime in the U.S. in blackface,” Jones-Brown says. “Black men are presumed to have the potential to be dangerous before there is an inquiry.”

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