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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.

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