Friday, April 20, 2018

The Second Amendment - Right to Bear Arms

The Second Amendment: Toward an Afro-Americanist Reconsideration

Abstract

excerpted from: Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown Law Journal 309 (December, 1991) (290 Footnotes (Full Article)

 

RobertJCottrolThe often strident debate over the Second Amendment is like few others in American constitutional discourse and historiography. It is a constitutional debate that has taken place largely in the absence of Supreme Court opinion. It is a historical controversy where the framers' intentions have best been gleaned from indirect rather than direct evidence. It is a scholarly debate that members of the academy have been until recently somewhat reluctant to join, leaving the field to independent scholars primarily concerned with the modern gun control controversy. In short, the Second Amendment is an arena of constitutional jurisprudence that still awaits its philosopher.

The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms. Waged in the popular press, in the halls of Congress, and increasingly in historical and legal journals, two dominant interpretations have emerged. Advocates of stricter gun controls have tended to stress the Amendment's Militia Clause, arguing that the purpose of the Amendment was to ensure that state militias would be maintained against potential federal encroachment. This argument, embodying the collective rights theory, sees the framers' primary, indeed sole, concern as one with the concentration of military power in the hands of the federal government, and the corresponding need to ensure a decentralized military establishment largely under state control.RaymondTDiamond

Opponents of stricter gun controls have tended to stress the Amendment's second clause, arguing that the framers intended a militia of the whole—or at least the entire able-bodied white male—population, expected to perform its duties with privately owned weapons. Advocates of this view also frequently urge that the Militia Clause should be read as an amplifying, rather than a qualifying, clause. They argue that, while maintaining a “well-regulated militia” was the predominate reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting reason. They argue that the framers also contemplated a right to individual and community protection. This view embodies the individual rights theory.

This debate has raised often profound questions, but questions generally treated hastily, if at all, by the community of constitutional scholars. For example, if one accepts the collective rights view of the Amendment, serious questions arise concerning whether the federal government's integration of the National Guard into the Army and, later, the Air Force have not in all but name destroyed the very institutional independence of the militia that is at the heart of what the collective rights theorists see as the framers' intentions. Even the gun control debate is not completely resolved by an acceptance of the collective rights theory. if the Second Amendment was designed to ensure the existence of somewhat independent state militias immune from federal encroachment, then the question arises to what extent states are free to define militia membership. Could a state include as members of its militia all adult citizens, thus permitting them an exemption from federal firearms restrictions? If, instead, the federal government has plenary power to define militia membership and chooses to confine such membership to the federally controlled National Guard, does the Second Amendment become a dead letter under the collective rights theory?

If the collective rights theory raises difficult questions, the individual rights theory raises perhaps even more difficult, and perhaps more interesting ones. Some of these questions are obvious and frequently asked, such as where to draw the line between an individual's right to possess arms and the corollary right to self-defense on the one hand, and the community's interest in public safety and crime control on the other. Other questions are more elusive, more difficult to pose as well as to answer. At the heart of the individual rights view is the contention that the framers of the Second Amendment intended to protect the right to bear arms for two related purposes. The first of these was to ensure popular participation in the security of the community, an outgrowth of the English and early American reliance on posses and militias made up of the general citizenry to provide police and military forces. The second purpose was to ensure an armed citizenry in order to prevent potential tyranny by a government empowered and perhaps emboldened by a monopoly of force.

The second argument, that an armed populace might serve as a basis for resistance to tyranny, raises questions of its own. The framers had firsthand experience with such a phenomenon, but they lived in an age when the weapon likely to be found in private hands, the single shot musket or pistol, did not differ considerably from its military counterpart. Although the armies of the day possessed heavier weapons rarely found in private hands, battles were fought predominately by infantry or cavalry with weapons not considerably different from those employed by private citizens for personal protection or hunting. Battles in which privately armed citizens vanquished regular troops, or at least gave “a good account of themselves,”were not only conceivable—they happened.

Modern warfare has, of course, introduced an array of weapons that no government is likely to permit ownership by the public at large and that few advocates of the individual rights view would claim as part of the public domain. The balance of power has shifted considerably and largely to the side of governments and their standing armies. For individual rights theorists, this shift immediately raises the question of whether, given the tremendous changes that have occurred in weapons technology, the framers' presumed intention of enabling the population to resist tyranny remains viable in the modern world. Although partly a question of military tactics, and thus beyond the scope of this discussion, it is also a constitutional question. If private ownership of firearms is constitutionally protected, should this right be protected with the original military and political purposes in mind, or should the protection of firearms now be viewed as protecting only those weapons used for personal protection or recreation? Or, given that all firearms are potentially multi-purpose, and that all firearms potentially may be used for military, recreational, or personal defense as well as for criminal purposes, what effect should legislatures and courts give to the framers' original military rationale? Where should the proper lines be drawn with respect to modern firearms, all of which employ technologies largely unimagined by the framers?

Societal, as well as technological, changes, raise questions for advocates of the individual rights view of the Second Amendment. In the eighteenth century, the chief vehicle for law enforcement was the posse comitatus, and the major American military force was the militia of the whole. While these institutions are still recognized by modern law, they lie dormant in late twentieth-century America. Professional police forces and a standing military establishment assisted by semi-professional auxiliaries—the reserves and the National Guard—have largely assumed the roles of public protection and national security. It is possible that the concept of a militia of the armed citizenry has been largely mooted by social change.

Yet, the effect of social change on the question of the Second Amendment is a two-edged sword. If one of the motivating purposes behind the Second Amendment was to provide a popular check against potential governmental excess, then does the professionalization of national and community security make the right to keep and bear arms even more important in the modern context? Furthermore, the question remains whether the concept of a militia of the whole is worth re-examining: Did the framers, by adopting the Second Amendment, embrace a republican vision of the rights and responsibilities of free citizens that, despite the difficulties, should somehow be made to work today?

Finally, the Second Amendment debate raises important questions concerning constitutional interpretation, questions that need to be more fully addressed by legal historians and constitutional commentators. It poses important questions about notions of the living Constitution, and to what extent that doctrine can be used to limit as well as extend rights. It also poses important questions about social stratification, cultural bias, and constitutional interpretation. Do courts really protect rights explicit or implicit in the Constitution, or is the courts' interpretation of rights largely a dialogue with the elite, articulate sectors of society, with the courts enforcing those rights favored by dominant elites and ignoring those not so favored?

Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African-American history. With the exception of Native Americans, no people in American history have been more influenced by violence than blacks. Private and public violence maintained slavery. The nation's most destructive conflict ended the “peculiar institution.” That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence and abetted by Supreme Court sanction. Jim Crow was sustained by private violence, often with public assistance.

If today the memories of past interracial violence are beginning to fade, they are being quickly replaced by the frightening phenomenon of black-on-black violence, making life all too precarious for poor blacks in inner city neighborhoods. Questions raised by the Second Amendment, particularly those concerning self-defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection, thus take on a peculiar urgency in light of the modern Afro-American experience.

This article explores Second Amendment issues in light of the Afro-American experience, concluding that the individual rights theory comports better with the history of the right to bear arms in England and Colonial and post-Revolutionary America. The article also suggests that Second Amendment issues need to be explored, not only with respect to how the right to keep and bear arms has affected American society as a whole, but also with an eye toward subcultures in American society who have been less able to rely on state protection.

The remainder of this article is divided into five parts.

Part I examines the historical tension between the belief in the individual's right to bear arms and the desire to keep weapons out of the hands of “socially undesirable” groups. The English distrust of the lower classes, and then certain religious groups, was replaced in America by a distrust of two racial minorities: Native Americans and blacks.

Part II examines antebellum regulations restricting black firearms ownership and participation in the militia.

Part III examines the intentions of the framers of the Fourteenth Amendment with respect to the Second Amendment and how nineteenth-century Supreme Court cases limiting the scope of the Second Amendment were part of the general tendency of the courts to limit the scope of the Fourteenth Amendment. This Part also examines restrictions on firearms ownership aimed at blacks in the postbellum South and the role of private violence in reclaiming white domination in the South.

Part IV examines black resistance to the violence that accompanied Jim Crow.

In Part V, the article suggests directions of further inquiry regarding political access, the current specter of black-on-black crime, and the question of gun control today.

Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy

Abstract

excerpted from: Nicholas J. Johnson, Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy, 45 Connecticut Law Review 1491 (July, 2013) (645 Footnotes) (Full Article)

 

[A] Winchester rifle should have a place of honor in every Black home.”
 -Ida B. Wells Barnett, 1892

 

“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, 2010

 

NicholasJohnsonGuns are a scourge on the black community. That is the conventional wisdom. Black-on-Black gun crime imposes terrible costs. 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.

Black mayors of big cities and Black legislators have overwhelmingly favored gun bans and restrictions that go substantially beyond prohibiting guns to criminals and the untrustworthy. The National Urban League is a sustaining member of the Coalition to Stop Gun Violence, previously the National Coalition to Ban Handguns. The NAACP pressed a stringent gun control agenda in NAACP v. AccuSport, 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.

In an amicus brief in District of Columbia v. Heller, the National Association for the Advancement of Colored People (“NAACP”) urged the Supreme Court to uphold the District's gun ban. In the wake of the Court's ruling that the District's regulations violated of the Second Amendment, the author of the Association's Heller brief has argued that diminishing Heller should be part of “any civil rights agenda.” This includes, for example, a proposal for limiting the constitutional right to keep and bear arms to enable isolated de jure gun prohibition in Black enclaves.

Within the broader Black community general support for stringent gun laws can be inferred roughly from party allegiance. The Democratic Party has been a comfortable home for advocates of gun prohibition and stringent controls. No group of voters has been more loyal to the modern Democratic Party than Blacks.

Gun bans and other aggressive control measures promise a solution to the plague of gun violence, so in that sense, the modern orthodoxy is easy to understand. But on reflection it is also quite odd. First, because it is grounded on assumptions that are difficult to reconcile with the Black experience in America. Second, because it directly contradicts traditional practice, policy, and philosophy of the Black leadership and the broader Black community.

The modern orthodoxy is very difficult to square with the historic and well-earned Black distrust of the state. A competent and benevolent state that supplants the need for self-help is a core assumption of stringent gun laws. But the assumption of government competence and benevolence- particularly competence and benevolence of state and local law enforcement-is foreign to the Black experience. Blacks have justifiably distrusted the state and have suffered more than most groups from state failure and malevolence. Even today, the Black community complains about the inability or unwillingness of state and local governments to serve and protect Blacks. This includes biting criticism of local policing.

Moreover, in terms of practice and policy, armed self-defense has been an essential private resource for Blacks. Not only have many in the leadership owned, carried, and used firearms for self-defense, as a matter of policy, Blacks from the leadership to the grassroots have supported armed self-defense by maintaining a crucial distinction between political violence (which was condemned as counterproductive to group advancement) and self-defense against imminent threats (for which there was no substitute).

This Article elaborates these critiques of the modern orthodoxy. Part I shows that trusting the state for personal security is incompatible with the Black experience.

Part II shows that the modern orthodoxy is incompatible with traditional practice and policy. Section A of Part II illustrates the tradition of firearms ownership and armed self-defense in the Black community. Section B shows how traditionally, Blacks in the leadership and at the grassroots, sustained and supported armed self-defense as a matter of policy by insisting upon a fundamental distinction between private self-defense against imminent threats and collective political violence that was considered damaging to group goals. Section B contends that this traditional support for armed self-defense was fundamentally a response to state failure and impotence which continues to this day. This continuing state failure and impotence pose a fundamental challenge to the modern orthodoxy.

The evident response to the arguments and implications of Part II is that practice and policy formed in the context of Black Codes; that Jim Crow and racist terrorism are no longer relevant. Black support for stringent gun control, the argument goes, is dictated by modern concerns about Black-on-Black violence in the urban underclass. Traditional worries about state failure or impotence, it is said, are outdated.

Part III engages the “things have changed” defense of the modern orthodoxy. Section A charts the departure of modern orthodoxy from traditional practice and policy. Section B argues that the failure and inherent limits of government that fueled the traditional support for firearms ownership and armed self-defense remain salient. Part III argues that Black political advances have not diminished the problems of imminent threats and finite resources that constrain government's ability to protect Blacks from criminal violence. Part III concludes that the modern orthodoxy is philosophically at odds with the Black experience in America.

Part IV argues that the modern orthodoxy rests on dubious assumptions about the risks and utilities of private firearms and submerges the legitimate self-defense interests of the sober mature members of the community.  Part IV invites reassessment of the modern orthodoxy with a keener focus on the interest of innocents.

Much Ado about . . . Something Else: D.c. V. Heller, the Racialized Mythology of the Second Amendment, and Gun Policy Reform

Abstract

excerpted from: Maxine Burkett, Much Ado about . . . Something Else: D.c. V. Heller, the Racialized Mythology of the Second Amendment, and Gun Policy Reform , 12 Journal of Gender, Race and Justice 57 (Fall 2008) (276 Footnotes) (Full Article)

 

Maxine BurkettIn late 2007, the National Rifle Association and the Brady Campaign to Prevent Gun Violence shared a rare moment of agreement. The U.S. Supreme Court's grant of certiorari in District of Columbia v. Heller, both organizations declared, brought before the Court the most important Second Amendment case in history. For the first time since its 1939 decision in United States v. Miller, the Court squarely confronted the scope and meaning of the Second Amendment, and did so by reinterpreting this once-neglected area of constitutional law. For the District of Columbia itself, the case introduced a watershed moment--a determination of whether its longstanding handgun ban and regulation of other firearms would stand or fall, and thus a determination of its autonomy to legislate for the health and welfare of its citizens. Yet for the rest of the nation, I contend, Heller simply does not represent the transformative moment in constitutional interpretation that both sides of the gun policy debate may hope it to be.

Whether the “right to bear arms” guaranteed by the Second Amendment is an “individual” right or a “collective” right constitutional issue before the Court in Heller little practical difference in states' and local governments' ability to regulate firearms. The Second Amendment has never been incorporated against the states, and that issue was not before the Court in Heller. Yet even if the Heller holding were to apply to the states, gun policy would continue to be created by the political decisions of state and local legislative bodies, relatively unconstrained by acts of judicial constitutional interpretation.

Indeed, as recent scholarship makes clear, those decisions ultimately are not anchored in the Second Amendment at all, but rather derive from intensely embraced cultural values and cultural myths. Proponents and opponents of gun control essentially are arguing not so much about policy as about the preservation--or, in some cases, the generation--of venerated ways of life. In its most basic incarnation, this argument takes the form of a clash between a strongly avowed reverence for the nation's individualist frontier spirit and an equally strongly expressed desire for a communitarian approach to American public life and policymaking.

While recent scholarship has taken a critical first step toward gun policy reform by making clear that debates over gun control have always been, at their heart, debates over competing cultural values, that scholarship has stopped short of its most valuable conclusion. The competing cultural values at stake in the gun debate have, at their core, an often unrecognized racial conflict that extends back to the very founding of the nation. A look at the story of the Second Amendment from the African American perspective reveals not only the greater complexity of the cultural conflicts undergirding the gun policy debate, but also lays bare the deep structure of gun policy that has aided black repression from the slavery epoch to today. The cultural mythology that undergirds the commitment to the right to bear arms has long gained force from and been perpetuated by a perennial struggle between white and black America. These myths pit white commitment to gun ownership against a counter-narrative in the African American community, which has simultaneously looked to guns as a defense against white oppression, to gun control as a means of disenfranchisement and dispossession, and to the contemporary prevalence of firearms as a threat to its livelihood.

To date, most scholars have failed to analyze the way in which gun policy has historically been deployed not to regulate gun ownership by white men--the primary locus of the gun rights movement--but rather to disarm or generally disempower African Americans. In the culture wars over gun policy, therefore, it is not enough to highlight racial tension; the debate must also recognize the link between firearms and white control. By doing so, true resolution of the divisive gun debate may be achieved.

Heller's most critical legacy thus will lie not in its interpretation of the constitutional right to bear arms, but rather in its potential to generate a renewed and reformed conversation about gun policy in light of these powerful underlying cultural inputs. At its most productive, that conversation will illuminate the powerful American mythology of gun ownership, a mythology the origins and continuing vitality of which are ineluctably bound up with racial conflict and with notions of true citizenship. Tracing that mythology from its colonial roots through the present will elucidate the motivations attached to the much-trumpeted cultural value of defending home, hearth, and the free state in the American context.

Part II of this Article examines what was at stake in Heller, both for the District of Columbia and for the nation as a whole, arguing that the case will have a limited impact at most on actual gun policy. While the “ideological, visceral, polarized, ad hominem--and, often, ugly” rhetoric of the “great American gun debates” might suggest otherwise, actual decisions about gun ownership and use will be made not by judicial fiat, but rather by legislative action at the state and local level. Even though the Heller Court held that the Second Amendment protects an individual right, state and local governments will still have significant freedom to craft gun policy.

Part III explores the more crucial reason for Heller's ultimately limited impact: The debate over the right to bear arms is not grounded in constitutional interpretation, but in cultural values and cultural myth. This Part demonstrates that political fights over gun control are more accurately understood as fights over the ability to protect or construct revered ways of life. As a result, any significant policy reform can only derive from an understanding of and appeal to those ways of life.

Part IV delves into the specific cultural mythology that Richard Slotkin has called the “Cult of the Colt,” with a detailed focus on the myth's racialized underpinnings and effects, and on the elements of American culture that enable its persistence. This Part develops my contention that the debate over gun control is steeped in and propelled by a larger, four- century-old tension between white and black America, a tension that must be addressed-- and ultimately eliminated--for meaningful reform to be possible.

Finally, Part V responds to recent scholarly calls for reframing and reforming the debate over gun policy. Solving the problem of gun violence means crafting both policy and cultural attitudes that will make it possible for those who embrace the values associated with gun ownership as well as gun control to protect and revere their ways of life without any need or motivation for quarrelling about armament. Systemic reform will require far more than illusory compromises between advocates and opponents of gun control, and it will be enacted on the ground by communities unwilling to “stand by while [their] citizens die.”

Race, Riots, and Guns

Abstract

excerpted from: Carl T. Bogus, Race, Riots, and Guns, 66 Southern California Law Review 1365 (May, 1993) (157 Footnotes) (Full Article unavailable)

 

Carl T BogusOn May 14, 1992, the New York Times ran a disturbing lead article. “In the aftermath of the Los Angeles riots,” it reported, “Californians are buying firearms at the highest rate since the state began keeping records 20 years ago, and other states are reporting similar surges in gun sales.” The article continued:

In large part, the rush to buy guns in California can be attributed to one of the more frightening messages to come out of the two days of arson, looting and violence in South-Central Los Angeles. That message, that fear, is that the police might not be able to defend people during an outbreak of civil unrest.

The National Rifle Association (N.R.A.) wasted no time capitalizing on this sentiment. It ran national advertisements that painted a picture of law-abiding citizens, made vulnerable by gun control laws, cowering helplessly before armed mobs. The mainstream media condemned this appeal to fear, but some believed that the Los Angeles riots did indeed demonstrate that people should arm themselves. The American Spectator, a high-brow conservative magazine, even ran an article recommending the type of gun its readers should select.

The N.R.A. exploited racial fears. Its ads—which included color photographs of black rioters—were published in a select group of magazines that have particularly rural, white readerships such as Field & Stream, Progressive Farmer, and Western Outdoors. But it was not hunters or farmers who were left unprotected by the police during the L.A. riots; it was the largely non-white residents of South Central Los Angeles. The riots do, therefore, raise a legitimate question about race and gun control: Does gun control impose a disproportionate burden on inner-city residents, particularly those in minority communities?

Even before the riot, some scholars suggested that gun control had racial implications. In December 1991 Professors Robert J. Cottrol and Raymond T. Diamond, of the Rutgers-Camden and Tulane law schools, respectively, presented what they called an Afro-American reconsideration of the Second Amendment to the Constitution, which contains the provision referring to the right to bear arms. Cottrol and Diamond trace how guns were used by white colonialists to subjugate blacks and Indians in early America and by Southern whites to enforce the Jim Crow system after the Civil War. They explain that, at least in the South, gun control laws were originally designed to disarm blacks, and suggest that these statutes helped the Ku Klux Klan (KKK) lynch thousands of African-Americans. “[A] society with a dismal record of protecting a people has a dubious claim on the right to disarm them,” Cottrol and Diamond write. They conclude that “it is unwise to place the means of protection totally in the hands of the state, and that self-defense is also a civil right” judgment, some would argue, that has been corroborated by the L.A. riots.

This Article challenges that conclusion. It argues that an examination of the interrelationships among race, riots, and guns in America properly leads to the conclusion that African-Americans have been particularly victimized by guns and the so-called “right to bear arms.” The lesson to be drawn from both history and contemporary experience is not that blacks should be armed, but that all citizens should be subject to stricter gun control regulations.

Part II of the Article explores the racial motivations behind the Second Amendment to the Constitution. There is, it turns out, a great deal to be learned from reconsidering the Second Amendment from this perspective—much of it surprising and unpleasant. An African-American reconsideration of the Second Amendment punctures a nearly sacred myth—that the framers wanted to guarantee a right to bear arms so that patriotic citizens, in the mold of the rugged individualists who defended freedom at Concord and Bunker Hill, would have the means to resist tyranny. The framers' motives may not have been so pure. There is strong evidence that the Second Amendment was intended, in large part at least, to serve as an instrument of slave control. The armed militia were principally used to deter and suppress America's first race riots—slave insurrections. A view from this perspective militates in favor of treating the Second Amendment as an anachronism, in much the same manner that we treat the provision that counts a slave as three-fifths of a person for purposes of determining the number of congressional representatives for each state.

Part III examines the complex interactions among guns, race, riots, and urban history. This Part follows two intertwined threads. One thread concerns the question of whether the state should have a monopoly on the use of organized force. When public authorities fail to adequately protect citizens, it is tempting to conclude that citizens should be prepared to protect themselves. But history teaches that the alternative to a state monopoly on organized force is vigilantism. The other thread concerns the role of guns in the inner city. Here, both history and contemporary experience demonstrate that arming for self-defense is counterproductive. The Article argues that strict gun control is in everyone's interest, and especially in the interest of the African-American community. Indeed, the question must be asked: If white America suffered as much from guns as black America, would strict gun control be enacted immediately?

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