America’s Two Kinds of Justice

We live in a country where the right to buy a gun is more sacrosanct than the right of a black person to not be shot and killed by someone with a gun.

On Feb. 23, Ahmaud Arbery, a 25-year-old black man was out jogging in a Georgia neighborhood when he was chased down, shot, and killed by Gregory and Travis McMichael, a white father and his son. Despite having a video of the killing and knowing the identities of the two suspects, it took Georgia authorities more than two months to arrest the McMichaels, which finally occurred on May 7.

Also in the past month, a group of gun shop owners, would-be gun owners, and gun rights advocates filed a lawsuit in Massachusetts federal District Court challenging an order signed by Governor Charles D. Baker '79 that mandated non-essential businesses, including gun shops, remain closed during the pandemic. On May 7, less than one month later — and the same day the McMichaels were finally arrested — United States District Judge Douglas P. Woodlock issued an order allowing gun shops to reopen because, even in an emergency, “we don’t surrender our constitutional rights.” Judge Woodlock found that the plaintiffs’ Second Amendment right to bear arms “deserve[s] respect and vindication.”

It took a federal judge in Massachusetts less time to uphold the right to buy a gun than it took officials in Georgia to arrest two white men who were captured on video shooting and killing a black man. Maybe this says something about the differences between our federal and state judicial systems, between our civil and criminal law institutions. Maybe it says something about the differences between Massachusetts and Georgia, between north and deep south. Undoubtedly, it says something about who we are and what we value.

The Constitution sets the parameters for the relationship between the people and their government. It does not really govern the way ordinary citizens interact with each other. Judge Woodlock’s decision rests on the Second Amendment to the U.S. Constitution, which says “the right of the people to keep and bear Arms, shall not be infringed,” meaning the government cannot interfere with a person’s right to buy, own, or carry a gun. Apparently, government officials in Georgia also didn’t want to intervene when two white men used their guns to kill a black man for no reason — the case has now been overseen by four different prosecutors.

The Declaration of Independence, on the other hand, does not create rights. Rather, it was written to inspire colonists who felt increasingly oppressed by the British government. The words are aspirational and, unlike the Constitution, do not carry the force of law. Still, Thomas Jefferson, who wrote the first draft, wanted his words to be an “expression of the American mind.” The preamble states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” What may have been self-evident in the 1770s are only half-truths today.

No matter how one feels about the Second Amendment, we should take comfort that, at least in this one instance in Massachusetts, our judicial system worked the way it should: a group of people who believed their constitutionally-protected rights were violated filed a lawsuit, a judge heard them, and their rights were protected.

But Second Amendment rights only go so far. The Second Amendment grants the right to own a gun; it is not a license to kill. The murder of Ahmaud Arbery in Georgia should shock our collective conscience not only for its brazenness but because it proves, yet again, that our system of justice does not work for everyone. It should not take hashtags and marches over two months to prompt government officials to arrest two men for murder, particularly when the crime was captured on video.

The Constitution protects the rights of Gregory and Travis McMichael to own guns. Yet for Ahmaud Arbery and countless black people across the country, the Declaration of Independence’s recognition of our inalienable right to life, liberty, and the pursuit of happiness apparently doesn’t apply.

The time for us to get our priorities straight as a country is long overdue.

Jennifer A. Serafyn is a graduate student at the Harvard Kennedy School and a Zuckerman Fellow at the Center for Public Leadership.