Archive | Civil Rights

Evolving Christian Attitudes Towards Personal and National Self-Defense

Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern OrthodoxyJohnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long and honorable history of Black Americans’ use of arms for lawful self-defense, especially against white racists. Johnson observes that in the late 1960s, Black political leadership abruptly shifted from the community’s traditional support for armed self-defense into being quite hostile to gun ownership.

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

My own contribution to the symposium is an article titled Evolving Christian Attitudes Towards Personal and National Self-Defense. (SSRN link here; Conn. L. Rev. link here.) My article observes that the Black political leaderships’ sharp turn against self-defense [...]

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Bias in the Northern District of Georgia?

On Sunday, the Atlanta Journal of Constitution published a front-page story: Workers Who Cry Foul Seldom Get a Day in Court. The story focuses on an empirical study on summary dismissal of employment discrimination claims brought in the Northern District of Georgia in 2011 and 2012. That study reveals that it is “nearly impossible to get trial in an employment discrimination case” in the Northern District of Georgia. [The study was commissioned by the law firm of Barrett and Farahany in Atlanta, GA, and authored by Tanya McAdams and Amanda Farahany (full disclosure: my sister)]. The Northern District of Georgia (and Atlanta, in particular) appears to be an outlier, in that “70 percent of cases brought under Title VII of the Civil Rights Act of 1964 are dismissed before trial [nationwide],” while in the Northern District of Georgia, “judges toss more than 80 percent of all cases.” In Atlanta, they toss 94% of employment discrimination claims. In 2011 and 2012, 100% percent of racial harassment cases and all but one sexual harassment case were dismissed. By comparison, when the firm compared the results from the Northern District of Alabama (also within the 11th Circuit, and also a state with no state laws concerning employment discrimination (like Georgia)), they found that 66% instead of 80% of employment discrimination claims were dismissed in full.

How should we interpret these results? Could the Northern District of Georgia be facing far more frivolous suits than other jurisdictions? Perhaps, although it’s hard to believe that’s a complete answer. I, for one, would like to know how these results compare to summary dismissal of other types of claims in the same jurisdiction. Assuming that the rate of summary dismissal for employment discrimination claims differs from dismissal of other civil claims, should we infer some [...]

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Successes in Colorado Sheriffs’ Second Amendment case

This post provides an update on last week’s developments in Cooke et al. v. Hickenlooper. This is a lawsuit filed May 17 in federal District Court in Denver, challenging two gun laws enacted by the state legislature in March. In the case, I represent 55 of Colorado’s 62 elected Sheriffs, plus one retired police officer. Other plaintiffs, with their own attorneys, include the Colorado Farm Bureau, Outdoor Buddies (which helps disabled people participate in outdoor sports), the Colorado Outfitters Association (trade association for hunting guides), federally-licensed firearms dealers, the National Shooting Sports Foundation, and others. We argue that House Bill 1224 (magazine ban) and House Bill 1229 (background checks and paperwork on temporary loans and private sales of firearms) violate the Second and Fourteenth Amendment, and the Americans with Disabilities Act.

On June 12, we filed a motion for a preliminary injunction on two narrow issues in the magazine ban.

1. The magazine ban outlaws magazines which accept more than 15 rounds of ammunition. The ban also applies to magazines which are “designed to be readily converted” to hold more than 15. We argued that the “designed” language was unconstitutionally vague, in violation of the 14th Amendment, and to the extent that the language had any clear meaning, it violated the Second Amendment.

2. To qualify for grandfathering, a person must fulfill two requirements. First: own the magazine on July 1. Second: maintain “continuous possession” thereafter. We argued that “continuous possession” was unconstitutionally vague, and that what meaning it did have (according to the Attorney General) violated the Second Amendment.

On the eve of the July 10 preliminary injunction hearing, the plaintiffs’ attorneys and the Colorado Attorney General’s office reached an agreement which resulted in new Technical Guidance being published by the Attorney General on July 10. The new [...]

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Rick Hasen Read the DoJ Inspector General Report on the Civil Rights Division So You Don’t Have To

As his Election Law Blog Rick Hasen has a fairly thorough summary of the just-released Justice Department Inspector General’s report on the politicization of the Civil Rights division. The bottom line: liberal and conservative employees of the division did not play well with one another. The IG largely absolves attorneys within the division of engaging in improper conduct but (as Hasen notes) there are some close calls. In most cases, however, it appears that what one side considered improper conduct was simply the other side pursuing its vision of how the division should operate, and that such decisions are within the discretion of each administration and its political appointees.

BLT has more on the report here. [...]

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Review of Flagrant Conduct in the New York Review of Books

Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade oral and anal sex for same-sex couples but not for opposite-sex couples. A similar Georgia law had been upheld in Bowers v. Hardwick (1986), which the Lawrence Court reversed.  Cole notes that it was unusual enough for the Court to recognize its own error:

But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.

The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.

Unlike the Court, Carpenter revels in the factual details and the

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Speaking Engagements for Flagrant Conduct: The Story of Lawrence v. Texas

Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co

Of perhaps greatest interest to readers of this blog are a couple of events coming up soon.  This Friday, March 16, I’ll be in Washington speaking at lunchtime at the Cato Institute, with commentary by Washington Post editor Charles Lane, and moderated by Cato’s David Boaz.   The following Thursday evening , March 22, I’ll be in New York speaking at the Institute for American Values, hosted by Elizabeth Marquardt, Director of the Center for Marriage and Families.

Both events are open to the public and free of charge, but require pre-registration at the links above. [...]

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Something’s Not Kosher about Davis-Bacon

That’s the subtitle Reason Magazine editors gave to this journalistic piece I wrote back in 1991 about the discriminatory origins and effects of the Davis-Bacon Act.  Reason recently posted it online, and I’m pleased to see that it holds up pretty well.  I explored the anti-black origins of Davis-Bacon in far more detail in a chapter of my book, Only One Place of Redress. [...]

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Whatever Happened to the New Black Panthers Party Case?

At Election Law Blog, Rick Hasen revisits the New Black Panthers Party scandal that engulfed the Department of Justice’s Civil Rights Division and became the source of largely partisan infighting on the U.S. Commission for Civil Rights. The Justice Department’s Office of Professional Responsibility concluded a report on the controversy back in March that largely confirmed my take on the matter. (I had missed news of this report, covered at TPM but largely escaping notice elsewhere.)

To recap, the original incident was no big deal. The NBPP members’ actions may have been illegal, but there’s little no evidence any actual voters were intimidated, so it’s not clear why this case was ever worth much attention. The OPR report is most enlightening  in its discussion of why the Obama Justice Department sought to narrow the injunction after it had obtained a default judgment. As Prof. Hasen notes, there were reasonable bases for the move — but no one at DoJ ever made a public effort to explain them.   DoJ officials acted as if there was something to hide, even though there wasn’t.  Had Department officials been more forthcoming, it would not have satisfied all their critics, but it would certainly have kept this tempest inside a rather small teapot.

UPDATE: After corresponding with some individuals who are closer to this case, I’ve concluded that I should have written that there was “little” evidence of actual voter intimidation, rather than “no” evidence. [...]

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Behind the Scenes of DOJ’s Black Panther Case

On Friday the Washington Post ran an extensive story on the Justice Department’s handling of a voter intimidation case against members of the New Black Panther Party in Philadelphia.  Based upon the Post‘s reporting, which seemed quite thorough and balanced, I’ve come to the following conclusions:

  1. The original case was small potatoes.  The Philadelphia district attorney’s office thought it was a “non-incident.”  Yes there were technical violations, but the Bush DoJ never identified any voters who felt intimidated by the Panthers, so it’s hard to justify making their conduct into a federal case.
  2. It may not have made sense to pursue the case in the first place, but once the Justice Department obtained a default judgment, it made no sense to dismiss it and narrow the injunction.
  3. As is so often the case, it’s not the crime but the cover-up.  Justice Department officials have never forthrightly explained their decision to dismiss the case and have alternately stone-walled and dissembled about the involvement of political appointees.  Had they instead come clean at the outset, this issue would have gone away and conservative complaints would have never gained traction (let alone this sort of coverage from the Post).
  4. The Civil Rights Division at DoJ remains politicized and divided, as it has been for quite some time, and this cannot be good for the even-handed enforcement of federal law.
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US Commission on Civil Rights Conference on Civil Rights in the 21st Century

On September 14, the US Commission on Civil Rights will be hosting a conference on Civil Rights in the 21st Century that may interest many of our readers. The event will be in Washington, DC, at the National Press Club [HT: My fiancee Alison Schmauch, a special assistant/counsel at the Commission].

There will be many prominent civil rights scholars and activists from across the political spectrum among the speakers, including James Patterson, Harry Holzer, Amy Wax, Amitai Etzioni, and others. The keynote speaker will be Washington Post columnist William Raspberry. Alison points out that law students, in particular, may want to take advantage of the opportunity to meet prominent people in this field. [...]

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Final Thoughts on Libertarianism and Antidiscrimination Laws

Here is my final contribution to the Cato Unbound mini-colloquium on libertarianism and antidiscrimination laws.

Meanwhile, my friend Bryan Caplan criticizes my argument (read the original essay here) that Title II was justified on libertarian grounds to break up the Jim Crow cartel. He argues that the logical implications of my argument that Title II suggest that the government should also have regulated the speech and marriage markets:

In fact, simple deregulation probably would have worked better for business than for marriage or speech. Both marriage and speech have a strong herding component. Most individuals don’t want to marry a member of a group that most people don’t want to marry, and most individuals don’t want to say things that most people don’t want to say. Despite weak incentives to defy the cartel, though, deregulation still worked wonders. In for-profit business, on the other hand, contrarian strategies often pay, big time. The first firm that hires qualified minorities or accepts minorities’ patronage cleans up. That’s quite an incentive for defiance.

I agree with Bryan that the segregationist cartel was very vulnerable to defectors, and, indeed, once Title II was passed, segregation in public places dissipated much more quickly and with far less violence and other resistance than almost anyone anticipated at the time.

However, the vulnerability of Jim Crow segregation was precisely the reason why white southerners who supported it were so intent on preventing any deviations from it. For example, in 1902, when Jim Crow was becoming firmly established, there were two private integrated universities in the South, one in Kentucky and one in Tennesse. By 1904, both states had passed laws forcing these universities to segregate. These universities were marginal institutions that served only a small fraction of the South’s populations, yet even border-state Kentucky couldn’t tolerate this [...]

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Conservatives, Libertarians, and Civil Rights History

To follow up on Ilya’s post below, it’sworth noting that the post-World War II politician of national significance probably most beloved by libertarianish types (libertarianism was not a self-conscious movement until recently) was Sen. Robert Taft of Ohio. Taft, of course, lost the Republican presidential nomination to Eisenhower in 1952. The conservatives who eventually founded National Review supported Eisenhower, because he was an enthusiastic Cold Warrior. The more libertarian types supported Taft because he wasn’t, and because he more generally was not completely at peace with the New Deal, as Eisenhower was. The split between the Eisenhower and Taft supporters led to the demise of the first major post-war conservative intellectual journal, The Freeman (which eventually continued as the house organ of the Foundation for Economic Education).

Another dividing line between Taft and Eisenhower, though it had relatively little political salience at the time, is that Taft was an enthusiastic supporter of civil rights, whereas Eisenhower was at best lukewarm. Taft’s support for civil rights was in the great tradition of northern classical liberal Republicans going back to the 1850s. One of his most enthusiastic supporters was the African-American conservative/libertarian writer, Zora Neale Hurston.

The Taft-Eisenhower battle illuminates the fact that the more libertarian-oriented conservative tradition was civil-rights friendly. The more traditionalist National Review crowd, which took over the conservative movement, was not. Yet more reason for conservatives to be more abashed about claiming that their position on civil rights makes them superior to libertarians, and, for that matter, for some of our commenters to be a bit more circumspect about reading classical liberals out of the modern civil rights movement. [...]

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Conservatism, Libertarianism, Civil Rights, and “Circumstances”

In a National Review post discussing the civil rights laws of the 1960s, Roger Clegg writes that “Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” Whatever the general validity of this claim, Clegg picked a very poor example to illustrate it.

As co-blogger David Bernstein has pointed out, numerous prominent conservatives, including many associated with National Review, actively defended racial segregation throughout the 1950s and 60s. They supported Jim Crow not only on “states’ rights” grounds but also because, as a 1957 National Review editorial put it, whites were “the advanced race” and could deny the franchise to blacks in order to protect “civilization.”

By contrast, as David also notes, most leading libertarian writers of the time – including Milton Friedman and Ayn Rand – were on the other side of this issue. Rand, for example, wrote that “[t]he Southern racists’ claim of ‘states’ rights’ is a contradiction in terms: there can be no such thing as the ‘right’ of some men to violate the rights of others.” She also denounced racism as “the lowest, most crudely primitive form of collectivism.”

Many 1960s libertarians can reasonably be criticized for underemphasizing the importance of ending segregation relative to other issues. But their record on these matters was considerably better than that of most conservative intellectuals of the day. Even if you think that libertarians were wrong to be skeptical of restrictions on purely private sector discrimination, the conservatives of the time were no better. And unlike in the case of the conservatives, libertarian opposition to private sector anti-discrimination laws was motivated by general support for a right of free association, whereas most of the conservative opponents were perfectly willing to support Jim Crow laws forbidding blacks from voluntarily [...]

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Discussion of Shelley v. Kraemer

Over at Cato Unbound, Jason Kuznicki, prompted by V.C. commenters, takes up Shelley v. Kraemer, the 1948 decision in which the Supreme Court held that it was unconstitutional for state courts to enforce racially restrictive covenants. I respond, concluding that Shelley was probably correct, but that the Court could have articulated a much clearer and sounder rationale for its decision.

One thing I don’t mention over there, but I’ll point out here, was that racially restrictive covenants were an imperfect substitute for the explicit racial zoning the Supreme Court invalidated in Buchanan v. Warley in 1917. The covenants worked in some neighborhoods, but overall they were too difficult and expensive to enforce to prevent an influx of African Americans to American cities. See Michael J. Klarman, From Jim Crow to Civil Rights 262 (2004); William A. Fischel, Why Judicial Reversal of Apartheid Made a Difference, 51 Vand. L. Rev. 977, 981 (1998). In some cities, whites lobbied for a segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement. So while restrictive covenants mitigated the positive effects of Buchanan for three decades, they did not completely negate them.

UPDATE: Sheldon Richman adds his thoughts. [...]

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Are Civil Rights Groups Skeptical of Kagan?

Today’s Washington Post reports that some civil rights organizations are still trying to determine whether (or how enthusiastically) to support Elena Kagan’s nomination to the Supreme Court.  It begins:

On the eve of Elena Kagan’s Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

Their reservations have introduced the first substantive division among liberals in what has otherwise been a low-key partisan debate over Kagan’s merits to replace Justice John Paul Stevens. . . .

The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group’s president, Mavis T. Thompson, said it “had some qualms” about Kagan’s statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines. Others have expressed reservations about Kagan’s views on affirmative action, racial profiling and immigration.

Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings set to begin Monday. Some, including the Mexican American Legal Defense and Educational Fund, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan’s public statements and actions and said they are uneasy.

Among other things, the story reports that some groups are put off by documents released from Kagan’s time in the Clinton Administration that reveal her disagreements with Christopher Edley on racial matters, such as whether Clinton’s race initiative should have included a ban on racial profiling. [...]

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