In the Supreme Court's DC handgun ban case, a brief from the Congress on Racial Equality argues that there is a long history in America of gun controls being enacted and applied with racially discriminatory intent. A brief for GeorgiaCarry.org makes similar arguments, with more detail about Georgia. [I think it's wonderful to see a 21st-century in which a black man won 2/3 of the vote in the Georgia Democratic primary, and a gun-rights organization from Georgia is calling for the U.S. Supreme Court to pay attention to problems of racial discrimination.]
In support of the DC handgun ban, a brief from the NAACP LDF uses most of its words to argue against overturning what its says is the large body of anti-individual rights precedent. The brief also points out the high rate of gun crime victimization by blacks. Pages 29-31 of the NAACP LDF brief anticipate the arguments presented CORE/GeorgiaCarry briefs, and argue that the Fourteenth Amendment's equal protection clause is sufficient to address any problem of racial discrmination in gun laws. See also NAACP Br. at 19 n.20 (DC's ban is not racially discrminatory, and in any case, Equal Protection and Due Process, are sufficient to address the issue, without need for an individual rights Second Amendment).
I don't think there's any reasonable dispute that much of the gun control in American history is tainted by racial discrimination. But, commenters, do you think that the CORE and GeorgiaCarry briefs overcome the NAACP's anticipatory counter-arguments? Please write your comments after reading the briefs, rather than making other arguments which could have been made, but were not.
All Related Posts (on one page) | Some Related Posts:
- Military Brief in DC v. Heller:
- District Attorneys, the ABA, and precedent in DC v. Heller
- Errors Brief in DC v. Heller:...
- Congressional Brief in DC v. Heller:
- DC v. Heller, amicus brief on racial issues:
- Claremont Institute Empirical Brief in DC v. Heller:
- NRA brief in DC v. Heller:
- Respondent's Brief in DC v. Heller:
Some years back, I was doing a radio talk show in Lafayette, Louisiana, talking about gun control. The callers were overwhelmingly redneck whites--people whom I could barely understand because of the thickness of their accents. Yet when I started to explain about the racist roots of gun control--and how blacks get the "benefit" of government intervention first, then the rest of the society gets screwed over by these wonderful ideas--you could hear the wheels starting to turn in the brains of the callers.
Welcome to the club.
What can be done in such cases of plagiarism? If the Georgia Carry brief is cited as influential on the Court, in particular the section they stole from you, is there anything you can do about it?
But, I think citing anything from the Congress of Racial Equality, without explaining that it is a now a conservative organization with very little grassroots support, despite its previous more honorable history, is either based on ignorance or is fundamentally deceptive.
I suspect in this case it is based on ignorance, as Mr. Kopel referred to the organization as the Congress on Racial Equality, when it is correctly referred to as the Congress of Racial Equality.
Clayton, take some consolation in the Age of the Internet. Your grievance appears here, it is immediately known to be true to those who have read your article on racism and gun control, and it will be believed by many who read this blog.
I'm not sure what you mean, and I'm especially not sure why you don't think the "rednecks" are poor and paranoid.
Barak Obama wants to keep guns out of the inner city. The poor Black folks who live in the inner city have a much greater need for guns for self defense than any other demographic in the country. Second Amendment advocates will uniformly support any (noncriminal) group's right to armed self defense, no matter how unpopular that group may be.
Indeed. How cool would it be if it was Condi instead of McCain on the Republican side right now?
Assuming this is correct, I'd think that sort of acknowledgment would be appropriate in a law review article but not in an amicus brief. To paraphrase from the Green Bag's submission policy, authors whose articles point you to helpful sources should be recognized in something printed by Hallmark, not the amicus brief.
It strikes me as being more in the nature of a political than a legal argument, an argument that Justices can rule in favor of an individual-rights view with a discussion that doesn't have to make them look like right-wing nuts. Such a context discussion may be politically wise, independent of its legal soundness or relevance.
The problem is that the liberals advance these social policy arguments and courts buy them. Even if you believe, as I do (and as you do) that social concerns are irrelevant, they still have to be dealt with.
On defense, foreign policy, guns and the NFL, she is great.
To answer the question: the N-LDF brief argues that guns kill black people in the District. The CORE brief makes the point that law-abiding black people need the means to defend their lives against armed thugs - a means which local government has systematically denied to black people for centuries -- and that taking away the means has resulted in more deaths instead of fewer. The Georgia Carry brief reinforces the argument by covering the same points.
The beginning of the LDF brief covers the same ground as everything I've ever read from the Handgun Control/VPC side of things: basically: courts all agree, so you should too, and even though the Supreme Court cases on guns mostly date from the Plessy v. Ferguson Jim Crow era, which we kinda wanted to change, the Brown v. Board of Education result was a GOOD change and changing this law would be a BAD change.
First, nested cites are the bane of any brief writer's existence. Second, Clayton is not a member of the Bar. Third, citing his name may add an unwanted note of controversy.
I wish the CORE brief had taken the point further. As was shown in the brief, political control of disfavored groups can be accomplished by a) disarming them, and b) by withholding police protection from them. Blacks are not the only victims of this.
In the Crown Heights Riots of Aug. 1991, blacks attacked Hassidic Jews in Brooklyn NY, as the result of a car accident where a little black boy was killed. Police stood by and allowed the jewish community to be attacked, and their property damaged. The black Mayor (David Dinkins), and the black Police Commissioner (Outta Town Lee Brown) both vehemently denied ordering the stand down. But somebody sure did.
In 1990 (IIRC), the contemptable racial provocateur, Sonny Carson, led a boycott of an Asian-owned grocery market. The demonstrations were rife with racial epithets and physical intimidation. The black Mayor (David Dinkins), and the black Police Commissioner (Ben Ward), refused to enforce a State Supreme Court order barring picketing within 50 ft. of the store's entrance. Several other Asian-owned businesses were targeted in a coordinated campaign to run such businesses out of black neighborhoods.
I don't believe Dinkins was a racist or anti-Semite, but merely a coward. He had a choice to make as to which group(s) he was willing to piss off, and decided Al Sharpton, Alton Maddoxe, &etc. needed to be mollified. I'll bet at least some of those southern sheriffs made the same political calculation vis-a-vis the Klan.
Throw the prospect of 30 million newly minted citizens from Latin America--and another 60 million of their family members--into the political mix, and American Blacks may find themselves right back in the bad old days.
Now, you can argue that the DC law wasn't enacted from racial animus. But isn't it interesting that businesses are exempted from the unloaded firearm requirement, but residences aren't? Gee, I wonder why that it is? Are there some assumptions about the relative ability of the business owners (who were probably largely white back in 1976) relative to the residents of DC (who were largely black)?
Here's a question for you: imagine if we had a law that violated some other explicit Constitutional provision, and had a history of being openly used against blacks for centuries, and more covertly used against blacks in the last forty years. Would the fact that one city--the only large city in America that is overwhelmingly black--decided to impose such a law against everyone in the city, be something that would cause the Court to turn a jaundiced eye towards that law?
I don't know enough about her other than she was apparently a prodigy at Stanford to evaluate whether or not I'd support her nomination - regardless of skin tone.
As a white guy, i guess i can't relate, but if i was black i would say "from my cold dead hands."
The ACLU affiliate's argument really more or less says that black people can't be trusted with guns. cute.
As far as whether the 14th Amendment is enough, tell me, which would you prefer? One measure of protection? Or two?
Btw, so now the ACLU LIKES government power? Hates individual rights?
More proof that the ACLU is just the legal wing of the dem party.
As for your indication, David, that "much of the gun control in American history is tainted by racial discrimination" I don't have much argument with that, or, for that matter CORE's. At the same time, it seems to me there is a point in time where this discrimination has become somewhat self-inflicted, as, for instance with Washington DC, the population is (according to the 200 census) slightly over 60% black. If blacks' want to eliminate this discrimination, they might try something novel, like voting for representatives who won't impose it on them.
Spoken like a practiced liar and a thief. Academic ethics are broader than plagiarism (or even Green Bag's submissions policy). If an academic had done to Clayton what that organization did, that academic might have problems obtaining tenure.
There is then, a conflict between self defense and a desire to not see a nephew, cousin, or neighbor's son shot by someone acting in self defense.
Roy Innis is the National Chairman of the Congress of Racial Equality (CORE) and a member of the Board of Directors of the Natioanl Rifle Association. A fair history of these times will remember and honor these two organizations and men like Roy Innis and Charlton Heston as true champions of civil rights.
Jews are an interesting situation. There are a fair number of Jewish gun rights activists. But yes, until the 1970s, "Jewish gun rights activists" was right up there with "black skiier" and "neo-Nazi English professor" for groups that could hold their national meeting in a large phone booth.
Here's a couple of points to keep in mind.
1. Gun ownership in America, at least until recently, was strongly correlated with religious identification. Protestants were most likely to be gun owners, then Catholics, and Jews were least likely. Why? It is also the case that gun ownership tends to be something you learn from your father (whether you are male or female). In general, American Protestants arrived here first. My ancestors, for example, were largely here in the 17th century. One of them was the colonial armourer for New Haven Colony, His son, a gunsmith, testified as an expert witness in America's first firearms product liability suit in 1645.
Catholics arrived next, largely in the early 19th century from Ireland.
Jews arrived last, with small numbers in the 17th and 18th centuries, but most in the mid to late 19th century.
Gun ownership wasn't common in the Old World. Indeed, it was often severely regulated. The practice of owning guns tends to pass down from father to children--and Protestants foremost and Catholics next have had more generations to become part of the gun owning culture.
2. From what I have read in Paul Johnson's History of the Jews and various works about the Warsaw Ghetto Uprising, there was a well established tradition of pacifism in Eastern European Jewish culture. This was a combination of both laws that limited weapons ownership, and a very practical response to pogroms. If you fought back against an overwhelming large group that enjoyed at least the tacit support of the government (and sometimes more), it would just enrage the attackers. Accepting a few murders allowed the rest of the community to survive, because the pogromists would lose interest after a while.
This was a perfectly logical response until someone came along for whom killing Jews wasn't a temporary expression of rage and petty viciousness, but a methodical, carefully planned campaign of extermination.
I wonder if those survivors of World War II most prone to pacifism came here--while those prepared to fight back hard ended up Israel.
When a brief writer plunders the rewards of someone else's original research, representing hundreds if not thousands of hours of hard work, decency ought to compel some sort of acknowledgment. All it has to be is something like this in a footnote: These source materials were originally collected in Clayton Cramer, [fill in citation]. Simle decency carries little force these days, of course, and all kinds of excuses are readily found for dispensing with it and taking credit for someone else's labors.
Gun control laws were widely enacted in the South after the civil war with the intent that they would not be enforced against whites but would be vigorously enforced against blacks. To the extent the Supreme Court wants to consider the established traditional of gun control in America, it will be helpful for them to know that the tradition of such laws has not been an honorable one.
If the New York Sullivan Law is ever before the Supreme Court the dishonorable intentions behind the enactment of that law might be highly relevant.
The first part of the CORE brief, on slave codes, seems to me to use the discriminatory intent of old gun control laws against slaves as evidence that the right to bear arms was assumed to be an individual right of the citizens, and the laws were to deny slaves a specific individual right of the citizen. Since slave code gun control laws were there to deny an individual right of citizens, there perforce had to be an individual right of the citizen which they were denying. Therefore, modern gun control laws must similarly be denying an individual right even in absence of intent to discriminate.
Maybe I'm reading too much into this section, but it does say —
The NAACP brief section on racially discriminatory gun control does not address that argument. The arguments for a collective rights interpretation stand in general opposition, however.
The next part, on the Black Codes and the reaction of the Federal Government, seems to me to similarly be concerned with establishing that the Black Codes were trying to deny an individual right (note the Mississippi code specifically exempted black members of the military), and the Federal Government was trying to preserve an individual right; the motives of the Black Codes are secondary. (Again, I may be reading too much into this section.)
The NAACP brief section on racially discriminatory gun control does not address that argument. The arguments for a collective rights interpretation stand in general opposition, however.
The next sections establish that facially neutral laws were enacted with discriminatory intent. The NAACP brief section does address this part in advance. In particular —
When dealing with current gun control laws, CORE argues that modern gun control was established on racist motives for facially neutral laws, and continue to be enforced that way, and have disparate impact even if intended and enforced neutrally. The NAACP brief section, again, does address this part, as above.
Rest has not much to do with racially discriminatory laws, it's basically standard arguments that gun control laws cannot be enforced, don't reduce crime, and law-abiding citizens vulnerable.
So, yeah, the NAACP brief seems to do a good job of pre-addressing the CORE brief.
As some have pointed out, a legal brief is not an academic work. If it were, I would have included a very lengthy bibliography of persuasive material (from which no citations were used in the brief), including Mr. Cramer's article. Supreme Court rules state what should be included in a brief, and specifically state that extraneous information in an amicus brief "burdens the court." I would be hesitant to include a bibliography that is not requested. Moreover, there is a fiction in the legal world that everyone knows or can readily find the entire body of law. Because of this, one doesn't credit a source that points one to a particular statute or court opinion. One cites the statute or court opinion.
If I had quoted Mr. Cramer's article for a factual proposition (as I did some other academic writings), I would have cited his article appropriately.
I also should mention Mr. Young's post ("Clayton, welcome to the club."). I cannot tell if this is a general comment directed at lawyers generally who have used Mr. Young's work in their briefs, or if Mr. Young is "piling on" GeorgiaCarry.Org. I have not, to my recollection, ever had the pleasure of reading Mr. Young's work. I understand that my co-counsel, Ed Stone, has purchased two books by Mr. Young but has not yet read them. Mr. Young's work was not used at all in the GeorgiaCarry brief.
To conclude, I did, indeed read Mr. Cramer's article prior to filing my brief and I believe his article to be excellent. I did not quote from his article, nor use it as a primary source in the brief. It would not be appropriate, as one poster noted, to nest cites needlessly in a legal brief.