01/16/2014 06:57 pm ET Updated Mar 18, 2014

America Cannot Shake Off Its Legacy of Racial Violence

Martin Luther King Day is as good a time as any to remind ourselves of certain inconvenient problems in America that are unfortunately not subjects for polite discussion. One of them is racial violence.

Dr. King preached and practiced nonviolent civil disobedience against unjust laws and a legalized system of racial violence known as Jim Crow segregation. Jim Crow had its official component of oppression, to be found in the corridors of power, in the state houses and city halls, in the courtrooms and on the schoolhouse steps. This was the "respectable" Jim Crow of the White Citizens' Council, of the Dixiecrats in Congress.

Meanwhile, Jim Crow also had its untutored and unwashed component, which was found in the form of unruly mobs, thugs and troublemakers, their handiwork in the form of bullet-riddled bodies, perhaps located at the bottom of a river or buried in a ditch, or found hanging from a tree, like some strange fruit haunting us in a Billie Holiday song. This was the unofficial Jim Crow of the Ku Klux Klan, but it was just as potent and effective as its cleaned-up, dressed-up, more-educated relative. The oppression of segregation emanated from slavery, the dehumanization of black people that allowed for the forced labor that built this country. Slavery has been left unresolved as unfinished business in U.S. history. Even as the institution itself was abolished a century and a half ago, its badges and remnants remain. And black people remain scapegoated and criminalized, victims of racial bias.

For example, it is more than pure happenstance that our drug laws disproportionately target people of color, or that the majority of the nation's prisoners are black and Latino. And it is no accident that the U.S. -- particularly the U.S. South, the former Confederacy -- still clings to the outdated and violent practice of executing people, or that people of color disproportionately receive the death penalty, or that death is nearly exclusively a punishment reserved for murders involving white victims.

Under slavery, the activities of African Americans were highly regulated through the slave codes, laws that controlled both slaves and free blacks. The slave patrols, consisting of white male slaveholders and non-slaveholders, were created to prevent slave rebellions. These patrols were ordered to stop the slaves they found on the road, force them to produce a pass, and make them prove they were not breaking the law. Slave patrols monitored areas where slaves congregated, and they had the authority to enter plantations without a warrant and search slave quarters for weapons, books, runaways or stolen property.

The slave patrols enforcing the slavery police state in the South were militias as described in the Second Amendment. As Professor Carl T. Bogus of the Roger Williams University School of Law argues, the amendment applies to a right to bear arms within a militia. The Second Amendment, says Bogus, was an assurance by law to the Southern States that Congress would not disarm their slave patrols, which would have resulted in the unraveling of the Southern police state and slavery itself. At the time that the Constitution was ratified, hundreds of slave rebellions had taken place, and in many areas blacks outnumbered whites. Militias in Georgia, South Carolina and Virginia were regulated slave patrols that protected whites against slave insurrection, and in which most Southern white men were obligated to serve at some point in their lifetime.

Meanwhile, the death penalty was a popular method of social control to keep blacks in their place and preserve the dreadful institution of slavery. Under the Georgia slave code, for example, death was deemed an appropriate punishment for striking a white person, the rape or attempted rape of a white woman (black slave women were property, not people), arson or attempted arson, and "circulating incendiary documents" that encouraged slave insurrection.

Jim Crow states used capital punishment as a means of racial violence against African Americans. With the epidemic of lynchings throughout the South in the earliest part of the 20th century, Southern states feared the passing of an anti-lynching statute by Congress. They responded to this possibility by "substituting the judicial process for lynchings," as Robin Gise notes in the Fordham International Law Journal. The courts assured the mob that black defendants would receive a quick guilty verdict, provided that the mob allowed the system to do its part. So the courts served as an effective venue for racial violence. In Georgia, between 1924 and 1972, when the Supreme Court issued a decision that effectively banned capital punishment until a 1976 decision reversed it, Georgia executed 337 blacks and only 75 whites. The ritual violence against African Americans was maintained but administered through an additional method.

A final note on the Second Amendment: Interestingly, a study on racism, gun ownership and gun control -- which was conducted by researchers at universities in Australia and the United Kingdom -- was recently published in the journal Plos One. The study found that symbolic racism (racial resentment) among whites is linked to having a gun in the home and opposition to gun control policies. This helps explain America's contradictory views toward gun control policies, given the grave statistics on gun-related deaths in the U.S. According to the report, "for each 1 point increase in symbolic racism there was a 50% increase in the odds of having a gun at home." Further, the researchers found that "stronger Republican identification, being from a Southern state, and anti-government sentiment were associated with opposition to gun-control policies."

In America, bad habits are hard to break. And the slave patrols die hard. We need to be mindful of our nation's continued legacy of racial violence.