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Heroes of the Right of Self-Defense

McDonald

Otis McDonald

My last post ended by asking: where is the outrage at the disparagement of the struggle and sacrifice that the first generation of Black citizens made to vindicate their right to arms? The question was rhetorical, meant to emphasize how casually former Justice John Paul Stevens and Michael Waldman turn a blind eye to one of the foundational episodes in the story of Black Americans.

The tack taken by Stevens and Waldman is all too familiar. It takes for granted that some people more than others are allowed to play rough on the field of race. This is sensitive territory; but it deserves illumination and ultimately takes us to the precise point of this post.

Most Law and Liberty readers are probably familiar with Otis McDonald, lead plaintiff in the landmark case of McDonald v. Chicago. After D.C. v. Heller (2008), the McDonald case affirmed in 2010 that the right to arms must be respected by state governments. McDonald rested on the idea of substantive due process, though many hoped the Supreme Court would use it to revive the Fourteenth Amendment’s privileges or immunities clause, which was gutted by the Slaughterhouse Cases in 1873.

Otis McDonald died on April 4, 2014. The passing of this 80-year-old self-described “liberal, South Side Democrat” was widely recognized by RKBA types. I dedicated my talk at the National Firearms Law Seminar in Indianapolis to him. Among that audience he was known and admired. From traditional civil rights organizations, I can find no acknowledgment of Otis McDonald’s passing.

So another rhetorical question: Why have the nominal champions of civil rights ignored Otis McDonald and the self-defense interests of the sober, mature members of the Black community he represented?

The search for answers highlights priorities wildly out of whack. Compare the relative non-acknowledgment of Otis McDonald with the broad consternation over how Black criminals are treated. Michelle Alexander’s acclaimed book calling the state of Black incarceration the “new Jim Crow” illustrates this.

I want to be very careful here to emphasize that I absolutely condemn discriminatory treatment within the criminal justice system. I am not criticizing Alexander’s book and I am not referring to suspects whose guilt has not been established.

My point is different, more global. I am questioning where the plight of convicted criminals should sit within the hierarchy of civil rights concerns, and how much energy should be directed at that issue versus others. For me, the self-defense interests of reasonable, responsible members of the community, people like Otis McDonald, are a higher order concern than mistreatment of Black convicted criminals within the justice system.

Some might disagree with my judgment. However, it is not as if the Otis McDonald class gets a smidgen less attention than the criminals (whose victims, by the way, are generally other Black people), but that individuals like Otis McDonald are generally ignored, at best, and at worst castigated by progressives and nominal defenders of civil rights.

This baffling inversion of priorities has significant real-world consequences. For example, the outcry about disproportionate treatment of Black criminals has actually prompted the President of the United States to pardon or commute the harsh sentences of crack and heroin dealers. (See this link for the administration’s list of rescued drug dealers.)

I mention the President’s pardons not as a complaint in principle. (I would grant adults broad autonomy over what they ingest so long as they do it in private and behave themselves.) My point is one of comparison, and is quite specific.

The time and place are Atlantic County, New Jersey, in October 2013. The subject is a 27-year-old Black woman named Shaneen Allen. This Washington Post report of her being pulled over by a police officer captures it:

The officer who pulled [Allen] over says she made an unsafe lane change. During the stop, Allen informed the officer that she was a resident of Pennsylvania and had a conceal carry permit in her home state. She also had a handgun in her car. Had she been in Pennsylvania, having the gun in the car would have been perfectly legal. But Allen was pulled over in New Jersey, home to some of the strictest gun control laws in the United States. Allen is a black single mother. She has two kids. She has no prior criminal record. Before her arrest, she worked as a phlebotomist. After she was robbed two times in the span of about a year, she purchased the gun to protect herself and her family. There is zero evidence that Allen intended to use the gun for any other purpose. Yet Allen was arrested. She spent 40 days in jail before she was released on bail. She’s now facing a felony charge that, if convicted, would bring a three-year mandatory minimum prison term.

In New Jersey, the courts have shrunken the individual right to keep and bear arms through judicial decisions holding that what D.C. v. Heller and McDonald v. Chicago affirmed was only a right to keep arms in the home. (See Drake v. Filko, Third Circuit.) This constriction of the basic message that the Second Amendment establishes an individual right to keep and bear arms may send Shaneen Allen to prison.

A final question, and this one is not rhetorical: Will the people who invoke the power and rhetoric of civil rights to condemn the disparate treatment of heroin and crack dealers, come to the rescue of a law-abiding Black woman whose crime was misunderstanding the multilayered bureaucracies that restrict the federally-guaranteed constitutional right to arms?

Shaneen Allen failed to appreciate that only one piece of the right to keep and bear arms operates in New Jersey. She perhaps concluded that two high-profile Supreme Court opinions affirming the constitutional right to keep and bear arms, plus a Pennsylvania license to carry a concealed firearm, would be enough to secure her right to carry a gun for self-defense, even in New Jersey. She was mistaken, and might be faulted for her slippery grasp of U.S. federalism. But with that as her crime, she is still infinitely more worthy of being rescued than anyone on the recent list of presidential pardons.

So far, there have been no protests or demonstrations seeking justice for Shaneen Allen. Like Otis McDonald, she is ignored by the nominal defenders of civil rights. Let us hope that this is not the end of the story.

Professor Glenn Reynolds has a comment about Allen’s case in USA Today and see this link for photos and more details about her. Please distribute it widely.

Reader Discussion

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on August 27, 2014 at 09:41:50 am

It is not difficult to understand why Ms. Allen's case has not garnered any attention. She is simply on the wrong side of the Regressives, Oops I must mean Progressives, ideology. She possesses a weapon - she must be stopped!!! - and they will do all that they can to accomplish this.

BTW: Are there no challenges to the New Jersey gun laws? It would seem ripe for review.

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gabe
on August 27, 2014 at 23:42:45 pm

[…] Fordam law professor Nicholas Johnson challenges Americans over the Right to Keep and Bear Arms: […]

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Quote of the Day: Shaneen Allen Edition | Shall Not Be Questioned
on August 28, 2014 at 12:09:24 pm

National Review: Gun Control Doesn't Work
www npr org

Racism created gun control in America. Confronted with the prospect of armed freedmen who could stand up for their rights, states across the South instituted gun-control regimes that took away the ability of blacks to defend themselves against the depravity of the Klan.

McDonald v. City of Chicago brings the law up to speed with reality. According to David Rittgers, a generation from now, legal and policy discussions will look back and see gun control for the sham that it has always been.

Strict gun-control policies have failed to deliver on their essential promise: that denying law-abiding citizens access to the means of self-defense will somehow make them safer. This should come as no surprise, since gun control has always been about control, not guns.

http://www.npr.org/templates/story/story.php?storyId=128186209

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Clay Cooper
on August 28, 2014 at 13:24:02 pm

[…] Read the article: Library of Law and Liberty […]

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Image of Heroes of the right of self-defense | Pro 2nd Amendment Boycott – P2AB
Heroes of the right of self-defense | Pro 2nd Amendment Boycott – P2AB
on August 28, 2014 at 14:03:16 pm

Not being formally trained in law, please forgive my bluntness. I follow these gun rights issues closely as they are extremely important to me. I held a federal firearms license for three years when I owned my own sporting goods store. When I closed my store I voluntarily turned in my license. I made a perfect score on the pre license test. When I turned in my license I received a letter from BATFE that stated if I ever wanted my license renewed just reference the last license number and it would be automatically renewed. I closed my store in very good standing and BATFE wanted to use the records keeping paper work that I had developed for my store as an example in the book of regulations. of course I gave them permission to reprint the paper work. Now I'm not an expert on too many things But I generally know a great amount on the issues I speak to. I am what I call an extreme constitutional conservative. I study the constitution very closely and examine new laws very carefully.

Frankly I think everyone addressing these issues is going at it backasswardly because of an absurdly poor understanding of the constitution. I do not really care how many law degrees someone has, it seems to me everybody is missing the boat.

First of all, Article six clause two states that the constitution is the supreme law of this land, therefore nothing can be held above it , not treaties or any other foreign law from anywhere of any kind. The constitution makes it very clear that if the written words do not appear in the constitution they simply can not be considered and no substitution is allowed. It appears to me that our congress believes the constitution does not really exist. their behavior over the decades has been appalling.

Our government was created by the people and for the people. It is a limitation on the powers of that government we created The bill of rights is a list of things the government can not touch. Define the words shall not infringe. The term Shall Not is in legal terms an absolute, all encompassing command. Infringe means nothing related to the issue can be considered. Not a single law or regulation or tax is permitted. The fact is that a right can not be licensed, regulated or taxed. If it is licensed, regulated or taxed it is no longer a right but merely a privilege.

The second amendment is clearly spelled out as a guaranteed right.

Next point so many seem to forget is the issue of statehood. anytime a territory desired to join the union, it first had to recognize and honor the federal constitution. placing the federal constitution above its own. What ever the federal constitution dictates the state have no power to address or change in any way or form. Their constitutions must conform to the federal constitution or that part of the individual states constitutions are void.

The facts are that the federal constitution already addresses the second amendment. Because the states must recognize the second amendment of the federal constitution , I claim that not one single law, regulation or tax by the individual states is valid law. If the federal government is forbidden to infringe on the right to keep and bear arms, it seems to me the individual states could never consider touching the second amendment with taxes, licenses, regulations or laws. It all boils down to one form of infringement or another.

The right to keep and bear arms is a federal guaranteed right. I claim that we are first citizens of this nation and secondly a resident of the state we choose to reside in. We as united states citizens are free to go anywhere in this country at our will. no individual state has the authority to stop us from moving in or moving out of or across any state boundary, therefore our federally guaranteed rights follow us wherever we choose to go.

I believe the federal constitution states that any male citizen between the ages of 18 to 60 is automatically a member of the militia. If such a thing were to happen that the federal government were to call up the militia, how many of those militia would be arrested carrying their firearms across state lines because of laws that are actually unconstitutional? Simply put the states have no authority to pass any laws, regulations or taxes concerning the second amendment.

As far as requiring safety courses to own or carry a weapon that is an unlawful infringement. case in point, a fairly local safety course instructor, charging about 50 dollars for his course, shot himself unloading his own weapon. something in more recent news a safety instructor was shot in the head by one of his students. He will not be giving any more classes.

The second amendment does not require anyone to own a weapon except those in the militia. The militia 's weapons must be equal to those of the standing army, which we are not supposed to have. If you are rich enough to have a chauffer would you let your chauffer tell you when you could use your own car. The constitution is/was written to place limitations on the power of government, specifically telling our employees what they can do and what they are forbidden to do and infringing on our bill of right is strictly forbidden by the federal government and definitely by state governments. State governments have no authority to correct the federal constitution as they see fit. By this understanding there is no valid state law, license or tax concerning the second amendment.

Someone tell me where in the federal constitution it allows for the creation of the BATFE, show me the wording and I'll point out another screw up by our federal congress. Next we can work on HEW and other numerous alphabet agencies there is no constitutional mention of. Anyone care to look up the penalty for so called activist judicial officers, try looking it up in volume 16 second edition of American Jurisprudence. There can be no such thing as an activist judge. You can have a judge that has violated his oath of office and is required to resign or be forcibly removed from office. but there is no allowance for an activist judge. Once a judge violates his oath to uphold and enforce the laws as they are written, he must resign or be removed. This affects any person that takes an oath of office. the very instant the oath of office is violated the violator looses all power and authority of that office and can never ever hold another office that requires an oath when the salary of that office is paid for from government funds, federal, state, county or city.

Why are so many arguing about so many different laws when in fact those laws have no right to exist in the first place. they are all infringements and void on their face. Wake up all of you so called legal experts. Try reading the constitution the way it is written. Most people with a second grade education can read and understand the constitution, what seems to be the problem with the legal experts? Try reading the last three verses in the last chapter of revelations in the Bible as a guide to reading and understanding the Constitution. Sorry that may cause some of you to get your fingers burned.

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Paul Clark
on August 28, 2014 at 15:27:43 pm

Well, you certainly are blunt! - and that is unfortunate as your bluntness may lessen the effectiveness of some of your argument(s).

Also, I would ask where is the age of militiamen specified in the Constitution? Also, while all adult males were members of the militia not all owned weapons. Of course, most did and the Brits were quite surprised to be confronted with well armed American farmers outshooting them. But it does not follow that "The second amendment does not require anyone to own a weapon except those in the militia' - in fact, there is no such requirement at all, nor was there during that period. It was typical for adult (and juvenile) males to own a weapon but not all did.

On the other hand, I am quite sympathetic to the notion that the 2nd Amendment should trump state laws on gun control. As Mr Cooper argues in the post preceding yours, there is a rather substantial case that can be made that many state gun control laws were motivated by racism which, in and of itself, should be sufficient to cause Progressive supporters of gun control to rethink their position. Of course, it will not - because it is about control and nothing else. After all, we would not want to repeat the situation that confronted the Brits when they sought to continue their imposed tyranny on us - no much better to have a meek and disarmed populace with no chance of effectively countering governmental overreach!

Anyway, sometimes a 9mm is better than a .357!!! It is quieter but still garners attention.

take care, from another non-lawyer

gabe

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gabe
on August 28, 2014 at 17:37:09 pm

Thousand of documents, letters and explanations exist in the national archives that were created during the eleven years it took to create the constitution between the founding fathers and others if it were not for common understanding between those people due to the correspondence they exchanged the constitution may have required many more pages to explain every detail. Eleven years of discussion to select every word that was written down so that it said what they intended it to say as clearly as possible.

Do you know why most police stopped using 9mm and switched to the 40 cal.? Answer, the 9mm and a bow and arrow are the only weapons that generally penetrate body armor as if it is not there and they were shooting each other in cross fire situations. Body armor stops just about everything but the 9mm and an arrow fired from a 50 pound pull bow. The university of Arizona at Tucson has a video library. In that library is a video created by the Phoenix Arizona police department. the video shows the police department personnel shooting at body armor with everything in their arsenal. The 9mm and the arrow are the only things that passed through both sides as if it did not exist. another part of that video shows them shooting a 357 at a five gallon bucket of sand. the 357 stopped about half way through the sand. the arrow went all the way through.

If you want proof of how ignorant most anti gunners are, compare a 30 caliber M1 carbine round ( M1 carbines are classified as assault weapons) to a completely legal .375 h&h magnum rifle round and tell me which one you would prefer to be hit by if you had to make a choice. The difference would be wounded or cut in half.

Bidden say buy a shot gun. I shoot a 12 gauge. I make my own ammunition. I once made up a round that I shot at an old 60 Chevy four door it made a hole the size of my fist in one side and physically blew the other door completely off of the car. I wont be giving any of those rounds to Chenny.

The reason those in the militia had to have their own weapon is because the government did not have an arsenal to issue weapons from. Anything you can put in your hand is a weapon, Some people claim their entire body is a weapon and they can go anywhere they please without being searched or required to walk around naked.

If you want to know where something is in the constitution read it for yourself.

The primary purpose of the second amendment is to be able to stop government in its tracks. They can outlaw all guns and they will get mine when I am out of ammo. sooner or later they will run out of collectors.

Little known fact, less than 2 percent of the Americans fought in the revolutionary war. At least 40 percent of Americans are gun owners and have enough guns to supply the rest.

The Japanese never considered invading the US mainland because they assumed there would be a weapon behind every blade of grass. Something the Muslims have failed to consider. Sharia law can not be recognized above the constitution.

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Paul Clark
on August 28, 2014 at 20:59:13 pm

There was a recent challenge that was overruled by a Federal Appellate Court, and went to the SCOTUS, which declined to hear it.

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Michael Rothberg
on August 29, 2014 at 10:35:41 am

The comment comparing a 9mm to a .357 magnum had nothing to do with the lethality of either round - it had to do with speaking softly so that other people would listen and not be turned away by the loud noise.

Apparently the noise also deafens the shooter!

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gabe
on August 29, 2014 at 10:41:15 am

In the infamous Dred Scott decision, SCOTUS commented that by ruling that Dred Scott had the rights of all citizens, it would permit Negros to keep and bear arms.

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proseshooter
on August 29, 2014 at 21:07:07 pm

For the sake of conversation. let us put the Dred Scott Decision and the 1964 civil rights laws side by side and compare them. Dred Scott says all Negros have the same rights as all other citizens. The 1964 civil rights law says there can be no discrimination for race color or national origin. since the civil rights law only apply to this nation it must mean from state to state or where you are from in this nation. It does say Citizen. So if Negros can carry any where so can all other races of citizens in this nation.

The second amendment says to keep and bear. says nothing about where or how you have to keep arms and does not define where, when or how you can bear your arms. it says nothing about in your home only, in a safe, in your car , between your legs or up your six. it says nothing about loaded or unloaded. It makes no mention of number of arms permitted to be possessed or types of arms. It simply does not define the term arms. To bear is to carry. Is your home the only place you may need to defend yourself To carry a fire arm for self defense it is far easier than carrying a cop.

There is absolutely nothing in the constitution that gives a basis for individual states to create gun laws and there is plenty to prevent them from making gun laws. Has everyone forgotten the 9th and 10th amendments. Considering the 4th and 5th amendments and the Miranda ruling, why do cops think they have the right or duty to question anyone about anything at a traffic stop or anywhere else? No right to search and seizure without a specific very specific warrant, no right to demand self incrimination and no attorney present. According to a USSC ruling your vehicle is your home away from home. When it comes to fire arms, it is an un enumerated right as to how, where,what and when you carry for self defense. If and I say they are, the individual states are required to honor the US constitution, then there is no authority to create gun laws

Congress (our Legislature) is forbidden to create infringing legislation. there is no authority for congress to delegate its authority it does not have to an agency such as BATFE. It could be called BATE. There is no constitutional authority to regulate fire arms. Shall Not Infringe still means exactly the same thing it did in 1789. Congress did not have the authority to regulate fire arms in 1789 and that authority has not increased in 2014, except through criminal behavior by elected politicians, ignoring the mandates of the Constitution. I say criminal because to pass legislation infringing on arms it violates their oath of office by failing to uphold and enforce as written. Violating the oath of office is a crime.

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Paul Clark
on August 31, 2014 at 14:07:33 pm

Gabe: I am a direct descendant of Jonas Clark, he is the minister that formed a militia from his church congregation and that militia is responsible for firing the shot heard around the world. His militia fired the first shot of the revolutionary war. Perhaps my understanding of the second amendment and the constitution are in my blood. Many people read the constitution the way they read the Bible and try to make it say things it does not. With careful editing you can make the Bible say anything you want it to. Sadly enough that is the way too many legal minds read the constitution.

I have little faith in bar certified attorneys. I grant you there are some very fine attorneys but I have come across only one. I have had to fire three bar certified attorneys and represent my self to win three cases. I managed to help get one attorney in Tucson Arizona dis barred for incompetence and corruption. I won against a female attorney three consecutive times. I also won total custody of two of my female children representing myself, one in Arizona and one in California.

I also find that most police agencies are far more corrupt than can be accepted. I found out the hard way, you can not beat the system of corruption when it comes to the blue wall. I even have proof that the FBI is as corrupt as most police agencies. My proof came from the FBI IG. and my experiences with numerous field offices. I also watched a US attorney nearly melt he was so angry when I pointed out his legal errors. When he stopped sweating and regained his composure, he ordered me out of his office and called security to have me removed from the building. He said there was nothing he could do about the issue I presented then I showed him the law that required him to take action, that is when he ordered me to leave the building. I guess he didn't like being made a fool of. I first went to the US martials office and they sent me to the US Attorneys office. Apparently the Martials office had notified him I was on my way because he met me in the lobby of his office with his finger marking a place in a book referring to a law that had nothing to do with the issue I presented. I handed him a copy of the appropriate law. that is when I thought he was going to explode. he started shaking, turned red in the face and sweating profusely. when he calmed down he simply states , leave my office immediately, I'm calling security to have you thrown out. I got up from where I was setting and left, I didn't say another word I just left. I passed the security officers on the way out.

Eight local county sheriffs deputies criminally kidnapped my child and gave her back to her mother to be taken out of state. They kept me in jail over night to allow my ex and her badge carrying husband to leave the state. the next day I showed my paperwork to the sheriff himself, he admitted to my face that his deputies had broken the law and there was not a damn thing he would do about it. actually including the kidnapping charge they violated 22 state, federal and international laws. The local superior court judge registered a foreign judgment from another state that states on the paperwork that no jurisdiction existed for the judgment. the Arizona superior court judge is required to verify proper jurisdiction before he can register a foreign judgment for enforcement When I showed my paperwork to the district attorney his face turned white as a sheet. then he said there was nothing he could or would do. Then he suggested I leave his office. I got my daughter back when her mother kicked her out of the house because my daughter could not get along with my ex wife eighth husband and child support would have ended in five more months. My daughter wound up having to get a GED on her own. Now that she has been with me for the last nearly five years she will graduate college in December. UGH, she wants to go into law enforcement. at least there will be one totally honest cop and I taught her to shoot and some self defense moves.

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Paul Clark
on September 03, 2014 at 08:43:58 am

[…] It’s a blog post by Prof. Nick Johnson of Fordham Law. He discusses Otis McDonald and Shaneen Allen (who faces a mandatory three year jail […]

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Image of Where Are The Civil Liberties Folks When It Comes To Defending Black Gun Owners ? | YouViewed/Editorial
Where Are The Civil Liberties Folks When It Comes To Defending Black Gun Owners ? | YouViewed/Editorial
on September 11, 2014 at 00:24:33 am

Heroes of the Right of Self-Defense | Online Library of Law & Liberty
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idlksbx
on November 20, 2014 at 14:59:32 pm

Self-defense is a very vague topic. Many who have tried to use-self defense in a fight have done more possible damage to their aggressors.

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Brody
on June 06, 2015 at 17:41:47 pm

That's the idea, pound on them till they stay down. I had an experience in Tucson Arizona. My ex wife's boy friend decided he was going to beat me senseless My ex wife always wanted to see me fight Well she got her eyes full six weeks later that guy was almost able to get out of bed without help and was starting to eat solid food. The police refused to arrest him for assault even though 50 eye witnesses said he started the fight, they did not want to pay his medical bills and charged it up to mutual combat. They said they did not think he would ever try that again.

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Paul Clark
on November 11, 2015 at 17:07:16 pm

[…] Read the entire column here. […]

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Heroes of the Right of Self-Defense

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.