Connecticut Law Review 45:5 (with links to all of the following articles):
Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy
by NICHOLAS J. JOHNSON
The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political violence. The precise boundaries and policy implications of that tradition had always been debated as times and context changed. But the basic idea that the community would support indeed exalt the man or woman who fought back in self-defense, even with, nay, especially with arms, has a far longer pedigree than the modern orthodoxy which urges stringent supply controls as the clearly best firearms policy for black folk. Full consideration of this black tradition of arms raises serious questions about the practical wisdom and conceptual grounding of that modern orthodoxy.
In the Civic Republic: Crime, the Inner City, and the Democracy of Arms— Being a Disquisition on the Revival of the Militia at Large
by ROBERT J. COTTROL & RAYMOND T. DIAMOND
This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be a useful tool in fighting crime in inner-city communities.
Let Us Talk Past Each Other for a While: A Brief Response to Professor Johnson
by MICHAEL DE LEEUW
This Article is a brief response to Professor Johnson’s excellent lead article, Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy. Professor Johnson has (I would say unfairly) counted me among the “orthodoxy” that believes that any and all gun control measures are good for communities of color. He accuses me (and the rest of those who hew to the modern orthodoxy) of ignoring the clear and present danger faced by what he calls the “Parker/MacDonald class”—law-abiding citizens who live in dangerous neighborhoods that are (perhaps) not well served by law enforcement. Professor Johnson urges that members of the Parker/MacDonald class should be allowed to protect themselves in their homes and (presumably) on their streets. I admit that Professor Johnson’s anecdotal argument is persuasive, and I agree with him. But I also point out that the Supreme Court has already held that the Second Amendment guarantees the Parker/MacDonald class the right—subject to reasonable restrictions—to protect itself with certain classes of firearms—so that part of the debate is over. On that score, the Parker/MacDonald Class has won. But that does not scratch the surface of today’s gun rights/gun control divide—a divide that is bitter and will be difficult to bridge. I then lament the lack of good empirical data that could help inform the gun rights/gun control debate—a deficit that has led both sides of the debate to rely on obsolete data to support their arguments. I urge both sides to embrace new peer- reviewed empirical studies, for example, on defensive gun use and gun trafficking, that could help guide us toward a sane middle ground that would allow permissible restrictions that can actually save innocent lives, what I call the “Newtown/Pendleton/Harbour class.” I then turn the tables and ask Professor Johnson what gun control measures he would favor so long as the basic right to keep and bear arms for self-defense is guaranteed.
Self-Defense and Gun Regulation for All
by DAVID KAIRYS
The importance and universality of self-defense rights are beyond dispute. Self-defense emerged as a major social and constitutional issue in the second half of the twentieth century focused on minorities and women before it provided the primary basis for expansive Second Amendment rights. Supporters of broad Second Amendment rights base them on an individual and collective right to self-defense against attacks by others, but they differ about the source of the danger—the others who are attacking. Professor Nicholas Johnson emphasizes that law-abiding blacks are most at risk and most need guns to defend themselves because of black-on-black violence and the government’s failure to provide safety. He opposes gun regulation, which he considers “disarmament,” and favors armed self- defense. The import of the common arguments of opponents of gun regulation is that their absolutist understanding of their rights to self- defense and freedom, their dire perceptions of the perils of government, and their fantasies of the necessity and efficacy of armed resistance to the federal government require the rest of us to live with the open gun market, with its very real and immediate toll of over 30,000 people shot dead a year, and with the usually unspoken normalcy of widespread murder and fear that undermines the quality and tenor of daily life. But there are regulations that would significantly reduce the easy availability of guns to criminals, youth, and mass murderers without interfering with self-defense. Blacks and whites, and everybody else, do not need that open gun market for self-defense. Self-defense and gun regulation can coexist.
Murder, Self-Defense, and the Right to Arms
by DON B. KATES & ALICE MARIE BEARD
Despite being well aware of crime and uprisings, the framers of the Bill of Rights made a policy decision to guarantee a constitutional right to keep and bear arms, a constitutional right that “shall not be infringed.” Courts should not ignore the policy decision of the framers, and courts should not supplant the framers’ policy decision with their own. Empirical research shows that there is no gun control measure that has reduced murder, violent crime, suicide, or gun accidents. Thus, even under intermediate scrutiny, the government cannot prove that there is a reasonable fit between its objective of applying a gun control law to all people—both law-abiding and non-law-abiding—and its governmental justification to reduce crime.
Evolving Christian Attitudes Towards Personal and National Self-Defense
by DAVID B. KOPEL
This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism. In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual’s duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War I turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a theory, they adopted pacifism as a practice. World War II and the early Cold War ended the pacifist interlude for all but a few radical pacifists. Beginning in the 1960s, much of the American Catholic leadership, like the leadership of mainline Protestant churches, turned sharply Left. Although churches did not repudiate their teachings on Just War, many Catholic and mainline Protestant leaders seemed unable to find any circumstances under which American or Western force actually was legitimate. Pacifism and anti- Americanism marched hand in hand. Today, pacifism now has greater respectability within orthodox Christianity than any time in the past 1700 years. Among the influential thinkers profiled in this Article are all Popes from World War II to the present, Dorothy Day and her Catholic Worker Movement, and the Berrigan Brothers. The Article suggests that some recent trends in pacifist or quasi-pacifist approaches have been unduly influenced by hostility to the United States, and by the use of narrowly-focused emotion rather than the rigorous analysis that has characterized Catholic philosophy.
Firearms Policy and the Black Community: Rejecting the “Wouldn’t You Want a Gun if Attacked?” Argument
by ANDREW JAY MCCLURG
The gun lobby has succeeded in focusing the gun debate on a narrow, oversimplified question: “If a criminal attacked you, wouldn’t you prefer to have a gun to protect yourself?” This Article asserts that the question—which correlates with a “more guns” argument—is a red herring, a diversion that leads us off track and blinds us to the need for comprehensive strategies to address the complex, polycentric issues of gun violence in America. In his article, Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy, Professor Nicholas Johnson pursues a version of the “Wouldn’t you want a gun if attacked?” argument particularized to black communities. Johnson uses the article as a platform for opposing black leaders who support gun regulation while essentially advocating for a “more guns” approach to violence in black communities. This reply Article highlights structural and rhetorical issues in Johnson’s arguments, but focuses on the reasoning fallacy inherent in concentrating the gun debate on a single, exaggerated utility of guns (i.e., the “Wouldn’t you want a gun if attacked?” argument) without fairly considering the offsetting risks or costs. It also asserts we should act quickly as a nation to invest in more research and data collection pertaining to the causes and prevention of firearms deaths and injuries, including the efficacy of guns for self-defense. Only with current, accurate information—which does not exist due in large part to efforts by the gun lobby to stifle gun research—can governments and individuals make rational firearms choices. The Article concludes with a detour from the academic, theoretical world of gun debating to Memphis, Tennessee, one of America’s most violent cities.
Uncoupling the Constitutional Right to Self-Defense from the Second Amendment: Insights from the Law of War
by WILLIAM G. MERKEL
This Article contextualizes Professor Nicholas Johnson’s argument that a robust right to arms is essential to the security of Black communities in the United States. While accepting Johnson’s premise that private self-defense is necessary where government is hostile towards or unable to defend a community against violence, this Article maintains that the Second Amendment as understood at the time of its ratification did not extend to private self-defense. Rather than force- fitting a private right to self-defense into the syntactically and contextually unrelated Second Amendment as one-Justice majorities have done in District of Columbia v. Heller and McDonald v. City of Chicago, the Author suggests that honest intellectual engagement with moral and philosophical claims in favor of a private right to self-defense could profit enormously from careful consideration of the jus ad bellum, the branch of public international law concerning the right of states to defend themselves against armed attack. The lack of an absolute textual command in the Constitution, federalism, and deference to democratically legitimate legislative policy making favor judicial accommodation of public safety and arms control concerns alongside private claims of self-defense. Comparing the right to self-defense in domestic law (as illustrated by the Trayvon Martin case) to the right to self-defense in public international law (as illustrated by the arguments advanced by the Bush and Obama Administrations to justify the use of unmanned drones to target Al Qaeda operatives) suggests that claims to use force in self-defense must be limited to situations in which an actual attack is underway or imminent. The Author concludes by suggesting that these limits are inherent in general principles of law basic to the very nature of self-defense, and that constitutional jurisprudence in the United States would benefit greatly from attending to these general principles of law and abandoning historically implausible and disingenuous originalism when assessing claims premised on the right to self-defense.
