32. Emma Lou Thornbrough, “T. Thomas Fortune: Militant Editor in the Age of Accommodation,” in John Hope Franklin and August Meier, Black Leaders of the Twentieth Century (1980) at 22-23.
33. Jacqueline Jones Royster, Ida B. Wells Barnett, Southern Horrors and Other Writings (1997) at 70.
CHAPTER 9: THE BLACK TRADITION OF ARMS AND THE MODERN ORTHODOXY
1. Benjamin C. Zirpursky, “Self-Defense, Domination and the Social Contract,” 57 U. Pitt. L. Rev. (1996) at 579, 605. See also critiques of the utilization of principles of self-defense to expand rights on the progressive agenda, in Nicholas J. Johnson, “Principles and Passions: The Intersection of Abortion and Gun Rights,” 50 Rutgers L. Rev. (1997) at 97-197; Nicholas J. Johnson, “Self-defense?” 2 Geo. Mason J. L., Econ. & Pol. (2006) at 187; Nicholas J. Johnson, “Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons and the Attitudinalist Critique,” 60 Hastings L. J. (2009) at 1285.
2. Robin L. West, “The Nature of the Right to an Abortion,” 45 Hastings L. J. (1994) at 961, 964-965.
3. Alex P. Kellogg, “Black Flight Hits Detroit,” Wall Street Journal, June 5, 2010; “Crime-ridden Camden, N.J., Cuts Police Force Nearly in Half,” January 18, 2011, by the CNN Wire Staff, http://www.cnn.com/2011/US/01/18/new.jersey.layoffs/index.html (last accessed October 1, 2013).
4. Robert Cooper, in Youth of the Rural Organizing Cultural Center. Their Minds Stayed on Freedom: The Civil Rights Struggle in the Rural South, an Oral History (1991) at 93.
5. Melissa Isaacson, “One Tough (But Sweet) Mother,” ESPN Chicago.com (January 14, 2010).
6. William Oliver, “The Structural-Cultural Perspective: A Theory of Black Male Violence” in Violent Crime: Assessing Race and Ethnic Differences (Darnell F. Hawkins, ed. 2003).
7. Project of the Graduate Institute of International Studies, Geneva, Small Arms Survey 2007: Guns in the City (2007) at 47-51. Nicholas J. Johnson, “Imagining Gun Control in America: Understanding the Remainder Problem,” 43 Wake Forrest Law Review (2008) at 847-860.
8. For a full discussion, see Johnson, “Imagining Gun Control,” at 837.
9. David Feith, “William Bratton: The Real Cures for Gun Violence, William Bratton, the Once (and Possibly Future) New York Police Commissioner, on the President’s Gun-Control Plans and the Need for ‘Certainty of Punishment,” Wall Street Journal, January 18, 2013; Johnson, “Imagining Gun Control,” at 851-856. There is no precise count of firearms in America. Estimates of the gun stock proceed based on surrogate information. In 2012, my coauthors and I calculated approximately 323 million. See Johnson, et al., Firearms Law, chapter 12 (online). There is general agreement that the number exceeds 300 million. William Bratton’s estimate of 350 million firearms is on the high end of the spectrum. It also accounts for record levels of gun buying over the last several years in response to gun-ban proposals.
10. The affiliated position of spot firearms bans only for beleaguered black communities is also a demonstrably failed experiment. The proffered excuse for that failure, and for the extraordinary levels of gun violence in rare places that banned guns, was that criminals were getting guns from other jurisdictions. The solution, proponents said, was to extend stringent gun restrictions to neighboring jurisdictions. But it was never realistic to expect the extraordinarily restrictive policies of a handful of municipalities to catch hold nationwide. And even if a national gun ban were enacted, the words would not make more than 300 million guns disappear but would instead send a large fraction of them into the black market.
11. Pew Research Center Publications, Views of Gun Control—A Detailed Demographic Breakdown (January 2011).
12. Pew Research Center, Public Divided over State, Local Laws Banning Handguns (March 2010).
13. Paula D. McClain, “Firearms Ownership, Gun Control Attitudes and Neighborhood Environment,” 5 Law & Policy Quarterly (1983) at 299-300, 304-308.
14. Pauline Brennan, Alan Lizotte, and David McDowall, “Guns, Southerness and Gun Control,” 9 Journal of Quantitative Criminology (1993) at 289, 304.
15. Harold M. Rose and Paula McClain, Black Homicide and the Urban Environment, Final Report, Grant #5 RO1 MH 29269-02, Submitted to Center for Minority Group Mental Health Programs, National Institute of Mental Health (January 1981) at 174-175.
16. Ibid., at 175.
17. Marvin E. Wolfgang, Patterns in Criminal Homicide (1958) at 31-37, 40-45, 84, 90-95.
18. W. E. B. Du Bois, The Philadelphia Negro: A Social Study (1889) at 97, 311, 318; David Levering Lewis, W. E. B. Du Bois: Biography of a Race (1993) at 206.
19. W. E. B. Du Bois, The Souls of Black Folk, in Three Negro Classics (1999) (1965) at 241, 249, 259, 284-94, 297.
20. Du Bois, Philadelphia Negro, at 235-268.
21. Lewis, Du Bois, at 186-187; W. E. B. Du Bois, The Autobiography of W. E. B. Du Bois: A Soliloquy on Viewing My Life from the Last Decade of its First Century (1962) at 195, 241, 249, 259, 284-94, 297; W. E. B. Du Bois, “Notes on Negro Crime Particularly in Georgia: A Social Study Made under the Direction of Atlanta University by the Ninth Atlanta Conference. Ed.” (1904).
22. Linda O. McMurry, To Keep the Waters Troubled: The Life of Ida B. Wells (1998) at 294; Alfreda M. Duster, Crusade for Justice: The Autobiography of Ida B. Wells (1970) at 301-302.
23. David T. Beito and Linda Royster Beito, Black Maverick: T. R. M. Howard’s Fight for Civil Rights and Economic Power (2009) at 67-68, 73.
24. Roy Wilkins, Standing Fast: The Autobiography of Roy Wilkins (1982) at 65. Wilkins was fully committed to the idea of black criminals being apprehended and punished in accordance with the law but was militantly opposed to mobbing that scooped up innocent men and punished anyone without a proper finding of guilt. This is an interesting contrast with some modern critiques arguing that punishment of black criminals at current rates is inherently problematic. See, Michelle Alexander, The New Jim Crow, Mass Incarceration in the Age of Colorblindness (2012).
25. Neil R. McMillan, Dark Journey: Black Mississippians in the Age of Jim Crow (1990) at 202-204.
26. Ibid., at 203; Collins v. Mississippi, 100 Miss. 435, 437 (1911); Butler v. Mississippi, 146 Miss. 505 (1927).
27. Delbert S. Elliott, “Life Threatening Violence Is Primarily a Crime Problem: A Focus on Prevention,” 69 Colo. L. Rev. (1998) at 1081, 1093.
28. David Kennedy and Anthony Braga, “Homicide in Minneapolis: Research for Problem Solving,” 2 Homicide Studies (1998) at 263-290; Robert J. Cottrol, “Submission Is Not the Answer: Lethal Violence, Microcultures of Criminal Violence and the Right to Self-Defense,” 69 U. Colo. L. Rev. (1998) at 1029.
29. Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction (2008) at 5; Robert Cottrol and Raymond Diamond, “Never Intended to apply to the White Population” 70 Chi.-Kent L. Rev. (1995) at 1307-1335; Clayton Cramer, “The Racist Roots of Gun Control,” Kan. J. L. & Pub. Pol’y (1995) at 17.
30. Oliver, Structural-Cultural Perspective, at 280.
31. Robert Sherrill, The Saturday Night Special (1973) at 125.
32. Darnell Hawkins, ed., Homicide among Black Americans (1986).
33. Ibid., at 8. Hawkins followed his 1986 work with two additional books: Ethnicity, Race and Crime: Perspectives across Time and Place (1995) and Violent Crime: Assessing Race and Ethnic Differences (2003). One of the better concrete prescriptions for addressing the problem is provided in David M. Kennedy, Don’t Shoot: One Man, a Street Fellowship and the End of Violence in Inner-City America (2011).
34. The result comes from counting 743 gunshot deaths in King County, Washington. For every case where a gun in the home was used in a justifiable killing, there were 4.6 criminal homicides, 37 suicides, and 1.3 unintentional deaths. Arthur L. Kellermann and Donald T. Reay, “Protection or Peril? An Analysis of Firearm-Related Deaths in the Home,” 314 New Eng. J. Med. (1986) at 1557-1560; Stevens H. Clarke, “Firearms and Violence: Interpre
ting the Connection,” Popular Gov’t. (Winter 2000) at 3, 9; Gary Kleck, Point Blank: Guns And Violence in America (1991) at 114; Gary Kleck and Marc Gertz, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,” 86 J. Crim. L. & Criminology (1995) at 150-181.
35. “With about 1400 FGAs in 1987, this implies that there were fewer than 28 incidents of this sort annually.” Kleck, Point Blank, at 122.
36. Gary Kleck and Mark Gertz conducted an especially thorough survey in 1993, with stringent safeguards to cull respondents who might misdescribe a DGU story, yielding a midpoint estimate of 2.5 million DGUs annually. See Gary Kleck and Marc Gertz, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,” 86 J. Crim. L. & Criminology (1995) at 150. Eighty percent of these DGUs involved handguns, and 76 percent did not involve firing the weapon but merely brandishing it to scare away an attacker.
Marvin Wolfgang, one of the most eminent criminologists of the twentieth century and an ardent supporter of gun prohibition, reviewed Kleck’s findings and commented, “I am as strong a gun-control advocate as can be found among the criminologists in this country. . . . I would eliminate all guns from the civilian population and maybe even from the police. I hate guns. . . . Nonetheless, the methodological soundness of the current Kleck and Gertz study is clear. . . . I do not like their conclusions that having a gun can be useful, but I cannot fault their methodology. They have tried earnestly to meet all objections in advance and have done exceedingly well.” Marvin Wolfgang, “A Tribute to a View I Have Opposed,” 86 J. Crim. L. & Criminology (1995) at 188, 191-192.
Philip Cook of Duke and Jens Ludwig of Georgetown were skeptical of Kleck’s results and conducted their own survey for the Police Foundation. That work yielded an estimate of 1.46 million DGUs per year. Philip Cook and Jens Ludwig, Guns in America: Results of a Comprehensive National Survey of Firearms Ownership and Use (1996) at 62-75. Cook and Ludwig argue that their own study produced implausibly high numbers. For a response to Cook and Ludwig, see Gary Kleck, “Has the Gun Deterrence Hypothesis Been Discredited?” 10 J. Firearms & Pub. Pol’y (1998) at 65.
The National Opinion Research Center argues that Kleck’s figures are probably too high, and the National Crime Victims Survey (a government survey that does not actually ask about DGUs but reports volunteered information) is too low. The NORC estimates annual DGUs in the range of 256,500 to 1,210,000. Tom Smith, “A Call for a Truce in the DGU War,” 87 J. Crim. L. & Criminology (1997) at 1462. Gary Kleck notes “there are now at least 14 surveys, with an aggregate sample size of over 20,000 cases, and all of the surveys indicate at least 700,000 DGUs [per year].” Gary Kleck, “The Frequency of Defensive Gun Use,” in Don B. Kates and Gary Kleck, The Great American Gun Debate (1997) at 159.
37. Gary Kleck and Marc Gertz, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,” 86 J. Crim. L. & Criminology (1995) at 150, 175. The Kleck/Gertz survey found that at least 80 percent of DGUs involved handguns and that 76 percent did not involve firing the weapon but merely brandishing it to scare away an attacker.
38. Gary Kleck and Jongyeon Tark, “Resisting Crime: The Effects of Victim Action on the Outcomes of Crimes,” 42 Criminology (2005) at 861, 903.
39. Kleck, 35 Soc. Probs., at 7-9; Gary Kleck and Miriam DeLone, “Victim Resistance and Offender Weapon Effects in Robbery,” 9 J. Quantitative Criminology (1993) at 55, 73-77; Gary Kleck and Marc Gertz, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense With a Gun,” 86 J. Crim. L. & Criminology (1995) at 150, 174-75; William Wells, “The Nature and Circumstances of Defense Gun Use: A Content Analysis of Interpersonal Conflict Situations Involving Criminal Offenders,” 19 Just. Q. (2002) at 127, 152.
40. Lawrence Southwick, “Self-Defense with Guns: The Consequences,” 28 J. Crim. Just. (2000) at 351, 362, 367.
41. This visceral concern is sometimes exploited for political advantage. See discussion of Washington State Initiative 676, in Nicholas Johnson, “A Second Amendment Moment: The Constitutional Politics of Gun Control,” 71 Brooklyn Law Review (Winter 2005) at 786-788.
42. National Safety Council, Injury Facts (2011) at 143.
43. Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (1995) at 5, 7 (airplane and vaccine data). “The likelihood of death by pool (1 in 11,000) versus death by gun (1 in 1 million-plus) isn’t even close.” For children in age range 0–19 years, it showed firearms-related deaths of 3,067 from homicide, suicide, and accidents. This broke down into 138 accidents, 683 suicides, and 2,161 homicides, 25 from legal intervention, and 60 undetermined. National Safety Council, Injury Facts (2011) at 143.
44. Lois A. Fingerhut et al., “Firearm and Nonfirearm Homicide among Persons 15 through 19 Years of Age,” 267 J. Am. Med. Ass’n 3048, 3049 tbl. 1.
45. Kates and Mauser, “Would Banning Firearms Reduce Murder and Suicide?
A Review of International and Some Domestic Evidence,” 30 Harvard J. Law and Public Policy (2007) at 649.
46. Alfred Blumstein and Joel Wallman, The Crime Drop in America (2006).
47. Robert Ikeda et al., “Estimating Intruder-Related Firearms Retrievals in U.S. Households, 1994,” 12 Violence & Victims (1997) at 363.
48. Richard Wright and Scott Decker, Burglars on the Job: Streetlife and Residential Break-Ins (1994) at 112-113.
49. James Wright, Peter Rossi, and Kathleen Daly, Under the Gun: Weapons, Crime and Violence in America (1983) at 139-140; Gary Kleck, “Crime Control through the Private Use of Armed Force,” 35 Soc. Probs. (1988) at 1, 12, 15-16.
50. David Kopel, Lawyers, Guns, and Burglars, 43 Ariz. L. Rev. (2001) at 345, 363-366. For more, see Philip Cook and Jens Ludwig, “Guns & Burglary,” and David Kopel, “Comment,” both in Evaluating Gun Policy (Jens Ludwig and Philip Cook eds., 2003).
51. James Wright and Peter Rossi, Armed and Considered Dangerous: A Survey of Felons and Their Firearms (expanded ed. 1994) at 146, 151, 155, 237.
52. U.S. Bureau of Justice Statistics, “Household Burglary,” BJS Bull. at 4 (1985).
53. George Rengert And John Wasilchick, Suburban Burglary: A Tale of 2 Suburbs (2nd ed., 2000; study of Delaware County, Penn., and Greenwich, Conn.) at 33; see also John Conklin, Robbery and the Criminal Justice System (1972) at 85.
54. Gary Kleck, Point Blank: Guns and Violence in America (1991) at 140.
55. Gary Kleck and David Bordua, “The Factual Foundation for Certain Key Assumptions of Gun Control,” 5 L. & Pol’y Q. (1983) at 271, 284; Gary Kleck, “Policy Lessons from Recent Gun Control Research,” 49 J. L. & Contemp. Probs. (1986) at 35, 47.
56. Don Kates, “The Value of Civilian Handgun Possession as a Deterrent to Crime or Defense against Crime,” 18 Am. J. Crim. L. (1991) at 113, 153. One set of commentators argued that the drop in Orlando rapes was statistically insignificant, being within the range of possibly normal fluctuations. David McDowall et al., “General Deterrence through Civilian Gun Ownership,” 29 Criminology (1991) at 541. But this objection was based on a model that would have found statistical insignificance even if gun-based deterrence had eliminated all rapes in Orlando. Kleck, Targeting Guns, at 181.
57. John Lott Jr., More Guns Less Crime: Understanding Crime and Gun Control Laws (3d ed. 2010); James Q. Wilson, “Just Take away Their Guns,” New York Times Magazine, March 20, 1994, at 47; National Research Council, Firearms and Violence: A Critical Review (2005) at 270; Nicholas J. Johnson, “A Second Amendment Moment, The Constitutional Politics of Gun Control,” 71 Brooklyn L. Rev. (2005) at 715, 747-764.
58. Rose and McClain, at 117, 270.
59. The quote is from Planned Parenthood v. Casey, 505 U.S. 833 (1992), upholding a woman’s right to choose abortion. For more on the intersection between the right to arms and reproductive rights claims see, Nordyke v. King, 644 F.3d 776 (9th Cir. 2011); J. Harvie Wilkinson III, “Of Guns, Abortions, and the Unraveling Rule of Law,” 95 Virginia L. Rev. (2009) at 253; Nicholas J. Joh
nson, “Supply Restrictions at the Margins of Heller and the Abortion Analogue,” 60 Hastings L. J. (2009) at 1285; Cass R. Sunstein, “Second Amendment Minimalism: Heller as Griswold,” 122 Harv. L. Rev. (2008) at 246; Nicholas J. Johnson, “Self Defense?” 2 Journal of Law Economics and Policy (2006) at 236; Nicholas J. Johnson, “Principles and Passions: The Intersection of Abortion and Gun Rights,” 50 Rutgers L. Rev. (1997) at 97.
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