Nicholas J. Johnson

Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).

Arms and the Several States

My last post discussed how John Paul Stevens, late of the Supreme Court, and author Michael Waldman advance a stingy, substantively empty view of the Second Amendment by ignoring the Constitution’s framework of limited, enumerated powers. That critique, of course, only goes to federal authority. The right to arms enforceable against the states rests on the Fourteenth Amendment.

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Undermining Our Conversation About the Right to Arms

We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)

Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.

There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.

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Negroes and the Gun

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This next Liberty Law Talk is with Nick Johnson on his new book Negroes and the Gun: The Black Tradition of Arms. Johnson writes that “The black tradition of arms has been submerged because it seems hard to reconcile with the dominant narrative of nonviolence in the modern civil rights movement.” Added to this, Johnson observes, was the rise of a “new black political class” that came to prominence “within a progressive political coalition that included the newly minted national gun control movement.” “The burgeoning black political class,” he writes, “embraced gun bans and lesser supply controls as one answer to violent crime in their new domains. By the mid-1970s, these influences had supplanted the generations old tradition of arms with a modern orthodoxy of stringent gun control.”

The full history, however, of the black tradition of arms ought not be submerged. The historical record that we discuss – it includes runaway slaves defending their communities from slave catchers and blacks in the Jim Crow South defending life and property – uncovers a tradition that affirms guns as essential to self-defense while avoiding their use in organized political resistance. For reasons not difficult to imagine, the conceptual separation between these two notions of self defense and political resistance was difficult, at times, to maintain in practice. Finally, Johnson notes that it was two black plaintiffs, Shelly Parker and Otis McDonald, would-be beneficiaries of enlightened, progressive supply-control policies, who led the lawsuits against strict gun prohibitions in Washington, D.C. and Chicago that recently bolstered every American’s constitutional right to keep and bear arms.

Negroes and the Gun

I have been away from this page for several months, working on book that is now nearing completion. Thought I would say hello again and give a preview of the book. You may recall my posts responding to eruptions from Bob Costas, Jason Whitlock and Danny Glover. Those posts tried to retrieve the debate from the swirl of myths, absurdities and glib chatter that often afflict the intersection of race, gun rights and firearms regulation. I have spent a substantial part of my scholarly effort over the years within that intersection. The culmination of that work so far, is my forthcoming book Negroes and the Gun: The Black Tradition of Arms (Prometheus, Jan. 2014). I am still working through copyedits but Amazon already has the pre-order page up.

Negroes and the gunI expect to be talking about the book in a variety of places during 2014. I also plan to work some of the themes from the book into this page as I pick up the blog again. I have posted the Introduction to the book below to give the flavor of it. All I will add for now is that I have known about this story for a very long time, but until I launched fully into the research for the book I did not appreciate its extraordinary richness. Almost every day, as I worked through the sources, I found something that took my breath away. By the end of it there were enough episodes defying the traditional narrative of victimization that it changed the way I think about the black experience in America. More on all this later, for now, here is the Introduction.

From Negroes and the Gun (Prometheus 2014)

Gun! Just the word raises the temperature. Add Negroes and the mixture is incendiary, evoking images of hopeless young gangsters terrorizing blighted neighborhoods.

This book tells a dramatically different story. It chronicles a tradition of church folk, merchants and strivers, the very best people in the community, armed and committed to the principle of individual self-defense. This black tradition of arms takes root early and ranges fully into the modern era. It is demonstrated in Fredrick Douglass’ advice of a good revolver as the best response to slave catchers. It is evident in mature form in 1963, when Hartman Turnbow of Mississippi fought off a Klan attack with rifle fire. Turnbow considered this fully consistent with the principles of the freedom movement, explaining, “I wasn’t being non-nonviolent, I was just protectin’ my family”.

The black tradition of arms has been submerged because it seems hard to reconcile with the dominant narrative of nonviolence in modern civil rights movement. But that superficial tension is resolved by the longstanding distinction that was vividly evoked by movement stalwart Fannie Lou Hamer. Hamer’s advice about segregationists who dominated Mississippi politics was, “Baby you just got to love ‘em. Hating just makes you sick and weak.” But asked how she survived the threats from midnight terrorists Hamer responded, “I’ll tell you why. I keep a shotgun in every corner of my bedroom and the first cracker even look like he wants to throw some dynamite on my porch won’t write his mama again.”

Like Hartman Turnbow, Fannie Lou Hamer embraced private self- defense and political nonviolence without any sense of contradiction. In this she channeled a more than century old practice and philosophy that evolved through every generation, sharpened by icons like Ida B. Wells and W.E.B. Dubois, pressed by the burgeoning NAACP, and crystallized by Martin Luther King who articulated it this way:

Violence exercised merely in self-defense, all societies, from the most primitive to the most cultured and civilized, accept as moral and legal. The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi. … When the Negro uses force in self-defense, he does not forfeit support he may even win it, by the courage and self-respect it reflects.

…But violence as a tool of advancement, involving organization as in warfare… poses incalculable perils.

In practice and policy, from the leadership to the grass roots, this view dominated into the 1960’s – right up to the point where the movement boiled over into violent protests and black radicals openly defied the traditional boundary against political violence. That violent and radical turn was the catalyst for a dramatic transition, as the movement ushered in a new black political class. Rising within a progressive political coalition that included the newly minted national gun control movement, the burgeoning black political class embraced gun bans and supply controls to answer the violent crime in their new domains. By the mid-1970’s, these influences had supplanted the generations old black tradition of arms with a modern orthodoxy of stringent gun control.

The first seven chapters of this book chronicle the rise, evolution and decline of the black tradition of arms. Chapter eight details the pivot from that tradition into the modern orthodoxy.

The secondary theme of this book, distilled in the last chapter, addresses an intriguing tension. On one side is the tragic plague of violent young black men with guns and the toll that this violence takes on many black communities. On the other is the fact that recent momentous affirmations of the constitutional right to keep and bear arms were led by black plaintiffs, Shelly Parker and Otis McDonald, who complained that stringent gun laws in Washington D.C. and Chicago left them disarmed against the criminals who plagued their neighborhoods. The modern orthodoxy would cast Parker and McDonald as dupes or fools. But the black tradition of arms places them in a more complex light and raises critical unexamined questions about the modern orthodoxy. Chapter nine engages those questions, highlights the diversity of interests and views about the gun question, and assesses the current implications of the black tradition of arms.

In the several years that I have been working on this project, people have asked what motivated it. What did I hope to achieve? To the first question, this book, like much of my work, is motivated by a rural sensibility, a familiarity with and affection for people and places that are under-acknowledged in both in popular culture and in policy-making.

To the second question, my goal here is to answer a longing that I have observed in a variety of contexts. It is evident when people, especially young people of color, probing the narrative of the civil rights movement, wonder plaintively “whether anyone ever fought back”. There is a palpable yearning for something more than the images of negroes in church cloths flattened by baton charges, attacked by dogs and sometimes hanged from tree limbs. Many of these people were heroes. But they were also victims and that leaves us unfulfilled, grateful for their sacrifice, but still not fully proud. The question lingers, where is our Leonidas? Where is our classic champion who meets force with force even in the face of long odds? Some may find an answer within the black tradition of arms.

Of course, many episodes here end badly for Negroes with guns. And any worry about over-glorifying violence is further leavened by accounts of prosaic black on black violence and desperate, failed efforts that are more pathetic than heroic. But other episodes, like Hartman Turnbow’s defiant stand, leave us wondering how different is that really, from the tale of gallant young cavalrymen charging artillery placements with sabers?

Black folk still await their Tennyson. But his raw material is in these pages.

Democracy and Distrust

Ballooning scandals at the IRS, government snooping, and the run on ammunition are the main topics of conversation at the range these days. It’s illuminating to hear people outside the chattering class talk about checks and balances, ammo shortages as a barometer of discontent and looming tyranny. Tyranny especially, used to be the cry of black helicopter conspiracy theorists.  It signals something when regular folk, will say the word and talk unselfconsciously about how to define it and what to do about it. 

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The Bad Gun Dumpster

I have a friend who keeps going to the range with me and then threatening to buy a gun of his own.  He has the grudging support of his wife who got drawn in after a round of clays where she hit more than he did.

She has questions, though.  And it has been enlightening for me to talk about familiar things with an open-minded person who comes at gun issues basically from what she sees on TV.  She was perplexed about many of the exchanges in the current debate.

She listened patiently to my critique of the “bad gun formula of marginal supply controls as recipe for creeping disarmament.” Against scary looking pictures of AR-15’s it didn’t really click.  But she was unwilling just to nod and move on.  Her need to understand forced me to work a little harder on the details and to appreciate something I had lost sight of.

I realized that those of us who focus on these issues sometimes use rhetorical tools that fail to resonate for folks who are increasingly lured to think in pictures rather than words.  This helped me understand why the bad gun formula as a slippery slope to full confiscation argument might not convince some people until you tell the long story and illustrate it in detail.  I thought it might be worth doing that here.

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The Saturday Night Special

I just dusted off an entertaining screed from 1973 written by former Washington Post reporter Robert Sherrill. Although you can gather it from his credential as a Posty, the prodigious title of the book better signals his views on the “so-called” right to keep and bear arms. To wit: The Saturday Night Special: And Other Guns With Which Americans Won The West, Protected Bootleg Franchises, Slew Wildlife, Robbed Countless Banks, Shot Husbands Purposely And By Mistake And Killed Presidents – Together With The Debate Over Continuing Same.  Absent from Sherrill’s list is any suggestion of the utility of firearms for legitimate self-defense.

The book is a vivid reflection of the times, urging confidently the states’ rights view of the Second Amendment that today not a single member of the United States Supreme Court attempts to prop up. But enough nostalgia.

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Gun Control Advocates are Playing Chess

The President was on television recently stumping again for his gun control agenda.  He spoke in his favored repetitive mode except for one sort of new flourish, which was the acknowledgment that there are good people on both sides, and we all need to walk a bit in each other’s shoes. This advice actually might illuminate our way through the coming teeth gnashing-debate about the Senate’s vote on expanded background checks, among other things.

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The Miseducation of Danny Glover

In a January 17  speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”

This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question.  But I will give him credit for the try.  He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.

His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus.  First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.

Either way, his education is incomplete (as is true for all of us).  Mr. Glover’s mistake is to have taken one dubious thing and run with it.  That is almost always a mistake and especially so in the gun debate.  But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.

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Presidential Sophistry

Obama's executive orderThe President has held two news conferences in three days commenting on the coming wave of gun control initiatives.  His presentation has been emotional and properly reflects the anguish that we all feel for the victims of gun crime. It also has been a dazzling display of sophistry. I say that because the President is smart. And if he were not smart, I would say that, so far as his gun ban proposals, his comments were a profound display of ignorance.

Responding to the run on guns precipitated by the preliminary proposals floated by his team, the President said that the motivation must be mainly financial.   Callous capitalism, that other great evil, had prompted unnamed villains to gin up fear of gun bans in order to make profit. The truth is far more basic.

Everyone here is seeking the best route to personal security. Gun people calculate that within the window of imminent threats government is incompetent and they must protect themselves. From the rhetoric, you would think that gun owners or at least NRA members do not have families and children that they love and want to protect.  That of course is absurd.

These people realize the limits of government and have prepared to protect themselves.  Private firearms are central to their approach, and that drives the recent run on guns (and those following Obama’s two elections). If you believe you will lose something essential to one of your core needs, you will scour the market and buy up what you can.  It does not require blandishments from profiteers.

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