The New York Times, Charles C.W. Cooke, and Nicholas Johnson: The Black Tradition of Arms and Historical Illiteracy

This line is popular among the historically illiterate. Nicholas Johnson on why it’s nonsense: http://t.co/uSvRTbPSm4pic.twitter.com/gyfXsk4pLe

— Charles C. W. Cooke (@charlescwcooke) October 27, 2014

Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).

For the Online Library of Law & Liberty, Nicholas J. Johnson writes:

In a January 17  speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”

This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question.  But I will give him credit for the try.  He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.

[Conservatives at Texas A&M University blast ‘leftist bias’ after Danny Glover ties Second Amendment to slavery at a school event – New York Daily News]

His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus.  First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.

[Check out Nicholas Johnson’s book “Negroes and the Gun: The Black Tradition of Arms” at Amazon]

Also see – [VIDEO] How the Civil Rights Movement Changed Black Gun Culture

Either way, his education is incomplete (as is true for all of us).  Mr. Glover’s mistake is to have taken one dubious thing and run with it.  That is almost always a mistake and especially so in the gun debate.  But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.

The article by Prof. Bogus is a useful illustration of the long and ongoing enterprise to render the Second Amendment substantively meaningless.  There are many flaws in his approach, primarily that it simply ignores the straight forward individual rights assessment that in the literature is dubbed the “standard model”. Rather than repeat the standard model assessment, which is stated well by the majority in D.C. v. Heller, I thought it would advance the debate to put Prof. Bogus’ article in the broader context of the various other efforts to hollow out the Second Amendment.

For people who pine for a gun-free society, the “right of the people to keep and bear arms” is a substantial impediment.  Since most Americans support the idea of a private right to guns the chance of amending the constitution to repeal the Second Amendment is nil.   So the alternative tactic has been to argue that the Second Amendment, despite providing a far stronger textual and historical foundation for a constitutional right to arms than we have for other controversial rights (e.g., the abortion right), really is no barrier to stringent supply side gun controls.

That enterprise is instructive because it has generated so many different and sometimes conflicting efforts.  The article that fuels Mr. Glover’s attempt at constitutional wisdom is one of those. One of the most damming indictments of these projects is that there are so many different ones.

Most people appreciate that when someone continually changes their story, it diminishes their credibility and this is doubly true for legal claims.  This is the burden on the various and conflicting hollow Second Amendment arguments. There are at least eight of them, including the one that Mr. Glover has championed.  I summarize them here….(read more)

Online Library of Law & Liberty

Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).

[Bill of Rights, Heller, Individual Rights, Second Amendment, State Militia, U.S. v. Tot]

The Miseducation of Danny Glover | Online Library of Law & Liberty

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