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Firearms Policy and the Black Community: an Assessment of the Modern Orthodoxy Nicholas J Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2013 Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy Nicholas J. Johnson Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Human Rights Law Commons, and the Second Amendment Commons Recommended Citation Nicholas J. Johnson, Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy, 45 Conn. L. Rev. 1491 (2013) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/535 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. CONNECTICUT LAW REVIEW VOLUME 45 JULY 2013 NUMBER 5 Article Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy 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. 1491 ARTICLE CONTENTS I. INTRODUCTION ................................................................................. 1493 II. STATE FAILURE AND THE BLACK EXPERIENCE ...................... 1497 III. TRADITIONAL PRACTICE AND POLICY ..................................... 1516 A. THE TRADITIONAL PRACTICE AND ADVOCACY OF FIREARMS OWNERSHIP AND ARMED SELF-DEFENSE ..................................... 1516 B. THE STRATEGIC DICHOTOMY: THE BLACK COMMUNITY UPHOLDS FIREARMS OWNERSHIP AND ARMED SELF-DEFENSE AS POLICY ............................................................ 1532 IV. THE MODERN ORTHODOXY: EXPLANATION AND CRITICAL EVALUATION ............................................................... 1553 A. THE RISE OF THE MODERN ORTHODOXY .......................................... 1554 B. ANSWERING THE TWENTY-FIRST CENTURY OBJECTION ................... 1567 V. REASSESSING THE MODERN ORTHODOXY ............................... 1576 A. THE MODERN ORTHODOXY AND COMMUNITY ATTITUDES ............... 1578 B. COMPETING CRITIQUES OF BLACK CRIMINALITY .............................. 1581 C. FIREARMS POLICY AND THE INTERESTS OF INNOCENTS ..................... 1589 VI. CONCLUSION ................................................................................... 1603 Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy NICHOLAS J. JOHNSON∗ I. INTRODUCTION “[A] Winchester rifle should have a place of honor in every Black home.” –Ida B. Wells Barnett, 18921 “To get them you have to go through a bureaucracy that makes it difficult . Nobody thinks we would have fewer shootings and fewer homicides if we had more relaxed gun laws.” –Eleanor Holmes Norton, 20102 Guns are a scourge on the black community. That is the conventional wisdom. Black-on-Black gun crime imposes terrible costs.3 So it is no surprise that many in the Black community and most of the Black leadership endorse stringent gun control measures. This translates into broad support for the most aggressive supply restrictions and gun bans like those recently overturned in Washington D.C. and Chicago.4 Black mayors of big cities and Black legislators have overwhelmingly ∗ Professor of Law, Fordham University School of Law. Thanks to Bob Kaczorowski, Shelia Foster, Marc Arkin, Russ Pearce, Howie Erickson, Dave Kopel, George Mocsary, Dan Richmond, Jack Krill, Nelson Lund, Bob Levy, Bob Cottrol, Don Kates, Steve Halbrook, Jack Krill, Alice Marie Beard, Robin Lenhardt, Tanya Hernandez and to the participants in the Fordham Law School Faculty Scholarship Retreat, for comments on drafts of this Article. Tammem Zainulbhai provided excellent research and editing assistance. 1 IDA B. WELLS, Southern Horrors: Lynch Law in All Its Phases, in SOUTHERN HORRORS AND OTHER WRITINGS 49, 70 (Jacqueline Jones Royster ed., 1997). 2 Gary Fields, New Washington Gun Rules Shift Constitutional Debate, WALL ST. J., May 17, 2010, at A1. 3 See, e.g., Brief for NAACP Legal Defense & Educational Fund, Inc. as Amici Curiae Supporting Petitioners, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290) at 1–2 [hereinafter NAACP Amicus Curiae], available at http://www.gurapossessky.com/news/parker/docume nts/07-29tsacNAACPLegal.pdf (stating and explaining that “[t]he effects of gun violence on African- American citizens are particularly acute” and providing the example that how “all but two of the 137 firearm homicide victims in the District were African Americans”). 4 See McDonald v. Chicago, 130 S. Ct. 3020, 3026 (2010) (holding that the Second Amendment right to keep and bear arms for the purpose self-defense is applicable to state and local governments); District of Columbia v. Heller, 554 U.S. 570, 573–75, 635 (2008) (holding that a District of Columbia ban on handgun possession, as well as an effective ban on the use of firearms for defense in the home, violated the Second Amendment right to armed self-defense). 1494 CONNECTICUT LAW REVIEW [Vol. 45:1491 favored gun bans and restrictions that go substantially beyond prohibiting guns to criminals and the untrustworthy.5 The National Urban League is a sustaining member of the Coalition to Stop Gun Violence, previously the National Coalition to Ban Handguns.6 The NAACP pressed a stringent gun control agenda in NAACP v. AccuSport,7 arguing that gun makers negligently supplied and marketed firearms that ravage poor Black communities. In Chicago, Jessie Jackson advanced the point with protests of legal gun sales in the suburbs of Chicago.8 In an amicus brief in District of Columbia v. Heller,9 the National Association for the Advancement of Colored People (“NAACP”) urged the 5 In 1992, New York Congressman Major Owens introduced a joint resolution, “[p]roposing an amendment to the Constitution of the United States repealing the Second Amendment to the Constitution.” H.R.J. Res 438, 102d Cong. (1992), available at http://thomas.loc.gov/cgi- bin/bdquery/D?d102:438:./list/bss/d102HJ.lst::. In 1993, Owens proposed a separate Bill, explaining: Mr. Speaker, my bill prohibits the importation, exportation, manufacture, sale, purchase, transfer, receipt, possession, or transportation of handguns and handgun ammunition. It establishes a 6-month grace period for the turning in of handguns. It provides many exceptions for gun clubs, hunting clubs, gun collectors, and other people of that kind. H.R. Res. 302, 103d Cong. (1993), 139 Cong. Rec. 28527, 28533 (Nov. 10, 1993) (statement of Rep. Major Owens). In 1999, Illinois Congressman Bobby Rush revealed: My staff and I right now are working on a comprehensive gun-control bill. We don’t have all the details, but for instance, regulating the sale and purchase of bullets. Ultimately, I would like to see the manufacture and possession of handguns banned except for military and police use. But that’s the endgame. Evan Osnos, Bobby Rush; Democrat, U.S. House of Representatives, CHI. TRIB., Dec. 5, 1999, at C3 (quoting Rep. Bobby Rush). Mayor of Detroit, Dennis Archer, brought suit against a number of firearm manufacturers for negligent oversupply of guns in a manner injurious to the City of Detroit. Archer v. Arms Tech., No. 99-912658 NZ, 2000 WL 35624356 (Mich. Cir. Ct. May 16, 2000). This claim was deemed barred by subsequent state legislation in Mayor of Detroit v. Arms Tech., Inc., 669 N.W.2d 845, 854–55 (Mich. Ct. App. 2003). See Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 424–25 (Ind. App. 2007) (explaining that in a case known as “Smith & Wesson II,” the city of Gary, Indiana alleged that the gun manufacturer Smith & Wesson knew that guns it sold to intermediaries would ultimately be sold illegally). One of Gary’s early Black mayors, Richard Hatcher, was a strong advocate of stringent gun controls. Hatcher stated in 1979 that he would not be approving any citizens’ concealed carry applications. He said if they wanted to challenge his authority, they were welcome to take him to court. Some of them did. Kellogg v. City of Gary, 562 N.E.2d 685, 688 (Ind. 1990). 6 HARRY L. WILSON, GUNS, GUN CONTROL, AND ELECTIONS: THE POLITICS AND POLICY OF FIREARMS 145 (2007) (describing how the Coalition to Stop Gun Violence “was founded in 1974 as the National
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