E351 -

Nicholas Johnson joins the show to talk about the tradition of black gun ownership as a way to fight abuse of government power.

Hosts
Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies
Guests

Nicholas J. Johnson is Professor of Law at Fordham University School of Law. He is a 1984 graduate of Harvard Law School. He is author of two books, Negroes and the Gun: The Black Tradition of Arms and Firearms Law and the Second Amendment; Regulation Rights and Policy.

From Frederick Douglass’s advice to keep “a good revolver” handy as defense against slave catchers to the armed self‐​protection of Monroe, North Carolina, blacks against the KKK chronicled in Robert Williams’s Negroes with Guns, it is clear that owning firearms was commonplace in the black community.

Do blacks have a different view on gun control? Who was Don Kates and how did he fight for the second amendment?

Further Reading:

Negroes and the Gun: The Black Tradition of Arms, written by Nicholas Johnson

Firearms Law & the Second Amendment: Regulation, Rights, and Policy (Aspen Casebook Series), written by Nicholas Johnson, David Kopel, George Mocsary, & Michael P. O’Shea

Guns and Mass Shootings, Free Thoughts Podcast

Abolitionism Was Actually a Free Market Cause, written by David S. D’Amato

Why Aren’t There More Black Libertarians?, written by Jonathan Blanks

Transcript

00:00 Aaron: Hi, this is Aaron. We’ll get to today’s Free Thoughts episode in just a second. But first, I wanted to let you all know that we’ve just launched a brand new redesigned lib​er​tar​i​an​ism​.org. We’ve made it a lot easier to find whatever you’re looking for, whether it’s introductory materials or deep dives into particular topics within the libertarian tradition. I think you’ll really like it. So if you haven’t already, head on over to lib​er​tar​i​an​ism​.org and check it out. And with that, back to Free Thoughts.

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00:35 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Nicholas Johnson, Professor of Law at Fordham University School of Law. He is the co‐​author of the leading casebook on the Second Amendment ‘Firearms Law & the Second Amendment,’ and author of ‘Negroes and the Gun.’ Welcome to Free Thoughts, Nick.

00:52 Nicholas Johnson: Thank you for having me. Glad to be here.

00:55 Trevor Burrus: Given the charge times that we live in, which are even more charged than, when this book came out six years ago, I’d like to first ask, why you used the word ‘Negroes’ in the title?

01:06 Nicholas Johnson: Sure. So at the time I was doing the book, one of the most significant works that existed at the time was the book by Robert Williams, ‘Negroes with Guns.’ And people who know that book and who know the story will appreciate the significance of Williams and Williams’ writing in the context of my broader project. So the title, obviously something I consulted with the publisher about, and I guess, authors have veto power over the title, but don’t entirely control the title, but in conversations with the publisher at the time, Prometheus, and with due consideration for the significance of the work that Robert Williams put in in this area decades before, I tried to sort of chronicle something a little broader. It seemed to me appropriate to have this title as a kind of tribute or least an acknowledgement of the prior work of Robert Williams. And when people look for this book now online, one of the things that you’ll see typically on Amazon or one of the other sources, is that when my book comes up, William’s book comes up, so I think it’s really good company.

02:41 Trevor Burrus: Yeah, I think it definitely… I’m not sure if it’s offensive today, ’cause I’m not sure what is offensive anymore, but it definitely conveys the fact that your book is about a period of time, the majority of the book is about a period of time where that word was the normal word used to describe black people.

03:00 Nicholas Johnson: It was a tough call, but I start during the period of slavery and basically the book moves through essentially the middle of the 20th century and it sort of cuts off at around the end of the 1960s. So the other thing that obviously was going on, was I was trying to suggest that there was a long timeline in which this issue was relevant and developing. Yes.

03:31 Trevor Burrus: Now, given that African‐​Americans politically often vote for democrats, it’s not all, but politically, it’s often true. Is it safe to say that often blacks have a different view on gun control, like even today then the democrats that are often, that they vote for, or maybe at least that they should have a different view on gun control?

03:50 Nicholas Johnson: So this is a complicated piece, and I try to get at it a little bit, and I’ve done some other work on this point. So the first response is that politics makes strange bed‐​fellows, and that people end up voting in ways that compromise maybe a variety of the issues that they care about, but they vote for a party or follow a party for reasons that makes sense to them. So several things. Over the long term, we see black shifting back and forth between Republicans and democrats, obviously the Republican Party is the party of Lincoln. We move through the early part of the 20th century, and I chronicled this in the book. Blacks in… And the NAACP took this position publicly. Blacks had complaints about Republicans in the early part of the 20th century, but still following, for example, Woodrow Wilson’s praise of the film ‘Birth of a Nation.’ We saw James Weldon Johnson basically declaring war against the democrats and aligning with the Republicans. You see blacks moving more closely to the policies of democrats during the period of FDR, “The New Deal.”

05:22 Nicholas Johnson: And finally, depending on who you talk to, you see people who voted for or blacks who voted for Republicans moving away more earnestly from Republicans after Barry Goldwater or during the period where there was controversy about the Civil Rights Act ’64. Now, back to the thing that I think prompted your question and that is, “Why is it that black folk would align so aggressively with democrats if they also were gun owners?” And we see this tension all over.

06:02 Nicholas Johnson: So I think my book shows and lots of the polling shows that black people own guns, have owned guns for quite a long time, and still continue to vote overwhelmingly for democrats, even though democrats are the party of gun control, and you see similar tensions though between sort of the Democratic party platform and the black church, for example, so you’ll find lots of socially conservative views coming out of lots of black churches, but that doesn’t stop black folk, I think generally, from deciding that they’re gonna vote overwhelmingly for democrats on the view that I think that democrats are at least in the near term better on broader civil rights questions and maybe some social and economic issues that people have concerns about. And the other, I guess, the last piece of this, is that as you started to get the development of a more robust black political class, that group aligned with democrats and found a sort of comfortable home, I think with democrats, and that generated, I believe, other sorts of alliances that continue to endure. So, I think it’s a complicated question, but it’s distilled in the idea that politics makes odd alliances sometimes.

07:37 Trevor Burrus: Well, I definitely have some black friends who have guns, that are heirlooms, that they are deeply priced possessions to them, and they take different views, even though they’re on the left, they take different views on gun control because of what African‐​Americans have experienced in this country, and, in many ways, are still experiencing. So, let’s get a little bit into that. I find one of the more striking parts of your book is all the research into Antebellum resistance, which would seem to be a difficult area to research, probably a lot of reading newspapers and court cases, but slavery was, of course, an institution of violence. You describe it, at one point, as something like a state of war, and there were slaves who did resist, and sometimes they did resist with guns, which kind of surprised me.

08:22 Nicholas Johnson: Indeed, so this, like the reality of most of what we care about, things are way more complicated than our headline depictions, and I did, in fact, at one point in the book, talk about the idea of slavery as a state of war, and I was trying to distinguish between that and what we saw later in this broad tradition, which was the people in the leadership, in the grassroots, trying to make a distinction between political violence, which they were committed to avoiding versus, on the other hand, private self‐​defense, including armed self‐​defense, which was just a crucial resource and was continuously endorsed as legitimate.

09:14 Nicholas Johnson: Now that occurs, and begins to develop after the Civil War, but prior to the Civil War, activists like Frederick Douglass and many others, or more obscure names, basically considered slavery to be a state of war. And they were talking about this in a variety of context. So, one of the most obvious places where you begin thinking about it, is in the scenario where slaves are escaping, and we’ve got lots of cryptic reports of slaves basically either stealing guns, and that was the sort of main source or also acquiring guns through more remarkable and obscure networks that sometimes included free blacks who were living among them.

10:06 Nicholas Johnson: So, you mentioned court records and things like that, and it just reminds me of one of these, really interesting, more detailed scenarios. It’s a court case involving a merchant whose last name was Fleckstein and Fleckstein was charged with the crime of trading with slaves, and he actually sold a gun to a black undercover. So, the complaint was actually lodged by another white merchant, who was complaining about Fleckstein selling to slaves, and this fellow sent his black slave into Fleckstein’s store. Fleckstein sells the slave a gun, and that spinned out into more detail that survives in the form of court records.

11:01 Nicholas Johnson: So, I mentioned that example just as an indication of the fact that our instinct that this was a scenario where slaves were always getting gunned by theft, that instinct doesn’t account for the richness of the scenarios that were unfolding. Now, the Fleckstein case, I think, is unusual, but we’ve got lots of other scenarios where we see slave escapes involving slaves who, one way or another, managed to get access to fire arms. The other aspect of the gun culture, during the same period, really unfolds in more detail in the border states where you had then escaped slaves, but also slave catchers. So, this dynamic, this back and forth between slave catchers and fugitive slaves generates another scenario where there is a clear need for self‐​defense, where there is a kind of continuing contest, low level battles going on between slave catchers and escaped, fugitive slaves, and oftentimes, the fugitive slaves were aided by white abolitionists or helpers, who in many instances were the sources of the firearms that the fugitive slaves were deploying.

12:29 Nicholas Johnson: And the book chronicles a variety of these scenarios where, essentially, slaves were being armed by white allies, abolitionists. We’ve got scenarios in Washington DC where two fugitives were aided by a white congressman, end up in a shoot‐​out with local authorities, lots of examples in the border states. And in one of the big volumes from the period, the chronicles, the underground railroad, we see a variety of these scenarios unfolding where slave catchers are coming as… This is the middle of from 1840, basically to the beginning… Or 1830 through the beginning of the civil war. Lots of good documentation suggesting that slaves on the run were coming sometimes with arms, and certainly by the time they got to free territory, were managing to get their hands on firearms with the recognition that they might have to fight off slave catchers who were in pursuit.

13:37 Trevor Burrus: Now, one of the characters… One of the figures in your book, and of course, one of the important figures in American history was Frederick Douglass who began as a slave named Bailey. And of course, he writes about in his autobiography, his experience physically altercation with a slave driver. After he got out of slavery, what was his position on guns and what black folks should do regarding guns and resistance to slavery?

14:06 Nicholas Johnson: Sure. So Douglass evolves, and yeah, he starts under the influence and tutelage of a pacifist abolitionist, but as he develops, becomes a sort of more independent thinker, he… To the chagrin of, I think, some of those who were his early sponsors, he becomes much more, I guess we would say militant on this point. And so there are a variety of… One of the most famous quotes from Douglass is something like, “A good revolver is the best response to the slave capture,” and here he’s talking about laying criticism on the second fugitive slave law, which there’s lots of detail about this in the book. What Douglass is advocating that escaped slaves and free people, both north and south, should defend themselves against the sort of inherent violence of the era, and by referencing the revolver, significant to appreciate both the time and the way that the technology was evolving, the revolver was the state‐​of‐​the‐​art repeating technology at the time that Douglass made this comment.

15:43 Nicholas Johnson: So what he was suggesting was not just that free people and fugitives and I suppose, slaves themselves, arm themselves where they could against the surrounding threats, but that they get access to the best available repeating technology given the source of the types of threats that they were likely to face. So these were often gonna be scenarios where the issue was not just self‐​defense in the context of some little one‐​on‐​one dispute, he was recognizing that the people to whom he was giving advice were likely to be facing or could be facing multiple assailants, potentially mobbers, and the utility of the repeating technology was something that was evident in that most famous quote from Douglass.

16:45 Trevor Burrus: Yeah, that strikes me, all the instances you talk about in the book where the single‐​shot pistol ended up not being useful or counterproductive in front of a mob, where you could only shoot it once, and then that struck me as sort of interesting commentary on magazine restriction debates that we currently have.

17:04 Nicholas Johnson: Yeah, I try to be careful about suggesting any sort of hard and fast lessons moving across centuries and especially in the context of our modern conversation, I’m also trying to be, as I talk with people, careful and to use as sort of moderate a tone as I can. Now, with that preface, I think it is clear that the concerns that Douglass was talking about, went beyond just the worry about the single assailant. And the book is filled with scenarios where you’ve got outnumbered individuals, you got a scenario where people are facing mobs, and you see this story, your observation rings true, not just in the context of those problems and issues and violence that Frederick Douglass was talking about, but we see the same thing running through the commentary and observation of Ida B. Wells who urged famously that the Winchester rifle deserves a place of honor in every black home.

18:39 Nicholas Johnson: And we see similar sorts of concerns moving forward into the… My screen just went off and I’m sorry. So moving forward into the 20th century, and we’ve got a similar set of concerns that appear in the OC on suite case, and moving into the modern civil rights era where you see stalwarts of the black community deploying multi‐​shot technology again against mobbers and night riders and other sorts of terrorist activity.

19:21 Trevor Burrus: Well, you point out in a footnote, someone who influenced both of us, Don Kates, who is sort of one of the donors of Second Amendment Scholarship, lifelong, very deep in the whole civil rights activist, and that’s where he learned about the… Well, the way he told it to me, and I think to you, too, that’s where he learned about the value of a gun. And he traveled when he was in the South in the ‘60s with three guns because of those kind of concerns.

19:48 Nicholas Johnson: So I’m glad that you mentioned Don Kates. I was talking with someone about him recently.

19:56 Aaron: Wonderful man.

19:57 Nicholas Johnson: Wonderful man, he died recently. He was one of the first people who sort of embraced my scholarship as I was sort of moving around in the early stages, trying to gain my footing in this work. And Don Kates, he’s… It’s too bad that one doesn’t have a photograph of him. He was about 5’3. We affectionately, over time, started to call him Papa Smurf because he was bearded and had a kind of gruff disposition, but ultimately, he was an incredibly kind and incredibly intelligent man whose work on the Second Amendment began, as you said, with work that he was doing as a law student. He was, I think, still at Yale Law School, spent the summer working for William Kunstler in North Carolina, representing a series of black plaintiffs who were pushing for the fulfillment of a variety of the statutory initiatives that were supposedly ushering in civil rights.

21:22 Nicholas Johnson: The words were not actually enforced as vigorously as one would hope, and some of the work that Kates and others did was instrumental in pressing forward on the implementation of those federal statutes. And Don tells, or would tell, in lots of detail how he was agnostic on the question of firearms until he got into a community representing mainly black plaintiffs where he was quite clear that reliance on the state for personal security was just an absurdity. And the idea that he carried not one but three guns was, in his telling it and yeah, I’ve heard from, I’ve spent or did spend… I had the pleasure of spending a good amount of time with Don over the years, and he commented on papers and when I was working on this book, I talked with him again in detail, and his comment about multiple firearms was just a reflection that sometimes he would get to a client’s location, there would be surrounding threats or the hint of some terrorist activity or some worry by people that if they were to travel to a deposition and got delayed, they’re coming back late, they wouldn’t feel safe.

23:00 Nicholas Johnson: So, he was not just worried about protecting himself, but he was also thinking about being in scenarios where he would have to lend a firearm to someone who was either a client or someone who was assisting him. And all of that, those lessons, I think, were a source for him of knowledge and experience that allowed him to appreciate the significance of having a tool that allowed one to deal with imminent deadly threats. And this is something that I just wanna emphasize about the book and about the distinction between political violence and self‐​defense that runs throughout the book and runs throughout the tradition of arms.

23:48 Nicholas Johnson: So, what one finds certainly after the Civil War developing and appearing in a very robust fashion during the 20th century is a commitment by black folk to the idea of self‐​defense. But, when people say that or when one says self‐​defense, sometimes I hear people immediately start criticizing and utilizing terms like vigilantism, and there’s a very important distinction here. Vigilantism is punishment, where people take the law into their own hands. Self‐​defense on the other hand, is the law’s recognition that in certain scenarios, individuals will face threats that are so imminent that the government cannot intervene. So, this is a window within which private violence is authorized, and it’s a very limited window, it doesn’t allow people to behave like police. And it’s one of the things that I think is incredibly important as a distinction for people to appreciate, that was emphasized by the leadership at the time, and I think it’s an important distinction in the context of the conversations we’re having today.

25:06 Nicholas Johnson: So Don, back to the original question, Don’s commitment in this area was born out of a recognition that there were lots of scenarios that he faced where relying on the state, not only was impractical because you were in a rural area where police could not arrive, police couldn’t even be called, you’re dealing with people out in the country who didn’t have telephones, and beyond that, there were scenarios where the state itself was a threat, was a menace. And those two situations generate for us a recognition of the need for individuals to have a tool to deal with those scenarios where they’re facing that kind of threat that the government is not prepared to deal with on their behalf.

26:01 Trevor Burrus: Yes, in my conversations with Don, it also got me thinking about what Thurgood Marshall would maybe have decided if he would have decided Heller, because Thurgood Marshall experienced something very similar when he was going around the South defending black men accused of rape and other spurious charges that he had to be armed, and he had to have armed people around him to even do that.

26:24 Nicholas Johnson: Well, so Thurgood Marshall is, it’s almost a name anyone of significance during that period, and there are some reference to this issue. The stories about Thurgood Marshall, there are probably four or five instances in the book. One of the best, most indicative ones, I think, is actually, it’s about Marshall, but the quote comes from Judge Constance Baker Motley who eventually rose to be a judge on the Second Circuit Court of Appeals. Motley talks about how would she and Thurgood were litigating one of the desegregation cases. They stayed at the home of a fellow local NAACP official named Arthur Shores, and that surrounding Shores’ home and in his garage were scores of men armed with rifles and pistols, and that Motley and Thurgood Marshall received an armed escort to and from the courthouse on, basically, a daily basis, because they had been obviously threatened. They were staying at Shores’ house because there were no hotels that they were allowed to stay in. And the significance of that story is, that it’s repeated in a variety of scenarios. During the Emmett Till trial, we see a similar story surrounding the Mississippi Delta activists, TRM Howard, and lots of references to the fact that the investigations that went forward during that period could not have occurred had it not been for Howard, and Howard was prodigiously armed as were most of the men, his neighbors in the surrounding community.

28:29 Trevor Burrus: Yeah, it’s fascinating that I bring this up a lot going from say… Let’s just say after the Civil War, so slavery is of course an institution of violence, but from reconstruction up through the ‘60s into the ‘70s in the South, and many instances there was great fear, especially if you’re working in the causes that we’re talking about. And that’s the kind of fear of tyranny that’s interesting because people often make fun of Second Amendment advocates who say the Second Amendment is partially about resisting the government. They say, “Oh, well, you could never resist the United States military.” Like, one person’s gonna stand off against the military. But that’s not the point. It’s what the experience, especially of African‐​Americans for a hundred years of living in a situation where they had a reason to fear the government.

29:17 Nicholas Johnson: Well, I recently have still got it in draft. I’ve got a piece that I’ve been working on. And one of the things that I try to do, again, with using is… It’s hard to use calm language and to be reserved, talking about violence obviously. But one of the things that I say is that in the search for tyranny, that some people scoff at, what we find in the experience of black folk over the period from reconstruction through certainly the 1960s, and we could move forward in terms of that timeline, I think, as well.

30:03 Aaron: Yeah, to date to some extent, yeah.

30:08 Nicholas Johnson: This is small scale tyranny. This is people who have a reason to worry about how the power of government is being utilized against them at either the state or the local level, and the period following reconstruction, after the end of reconstruction, I’ve got a chapter that’s called the Nadir, which is the low point, many would say, of the black experience moving into the sort of aggressive lynch era of the early 20th century. Where you find countless episodes of people who are endangered, who are terrorized, and one of the sources of that terror is government officials operating sometimes in their official capacity, sometimes in sort of an ambiguous way but at the state and local level, this continuous enterprise where the power of government is utilized to the violence that government is authorized to engage in is deployed in pernicious ways against individuals. And that is, it seems to me, a better example of the sort of tyranny that any civil libertarian would worry about than anything that occurred in the 1780s.

31:43 Nicholas Johnson: So, I know we have this conversation at the root of the Second Amendment debate, and people conjure up images of red coats and then tea party, or tea party vandalism. But the low‐​grade continuous abuse of government power that has been deployed against blacks over a good part of our history strikes me as a set of indicators and suggestion of tyranny that people should, if they’re thinking about this question, give more consideration. It is a different image of the tyranny story.

32:39 Nicholas Johnson: And the next part of it is, often when people have this conversation about the lack of utility of firearms against the government… Yeah, there were some politician recently who said, “Well, the government’s got nukes and all you have is your rifle,” and that trivializes what I think is a much more important aspect to the debate. And that is, that in lots of the stories that we see, certainly as you move through the latter part of the 19th century through the middle of the 20th century, it is not as if armed blacks are engaged in some kind of pseudo red coat activity and achieving political goals using violence, the importance of the guns that are deployed by people in many of these stories to deal with the scenarios of tyranny is that they simply allow people to survive the next day, the next week, and hopefully get themselves to a point where they can deploy the tools of politics and democracy to try and protect themselves and move on to a better spot.

33:57 Nicholas Johnson: And that’s the ideal. So if you’re facing, again, this kind of imminent abuse of government power, you need to get out of that situation, and sometimes, and many times, we see in the stories that I try to chronicle, black plaintiffs in litigation have this prior story where they ended up fighting off some abusive government actor, and they finally, at long last, get vindication. But to get that vindication, you gotta survive through the immediate attack.

34:38 Trevor Burrus: Well, and that’s the interesting thing too, about the current crisis of which there’s at least two we’re experiencing: Protest against police violence, which is a long‐​standing thing against African‐​Americans in particular, and of course, the pandemic. And I had many friends contact me. At least three who are generally anti…Well, that’s the interesting thing too about the current crisis of which there’s at least two we’re experiencing. Protests against police violence, which is a long‐​standing thing against African Americans in particular, and of course the pandemic. And I had many friends contact me, at least three who are generally, anti‐​gun, to ask me about what gun they should purchase in a time of uncertainty about what the government can do, will do to you, and whether or not you can protect yourself from possibly other citizens. And that’s… Again, I said to them many times, “This is how, especially African‐​Americans, felt for a long, long time, especially in the south.” And it’s not the same thing being in a pandemic and in this unrest, but that moment that you feel that maybe the cops won’t protect you, or maybe something might be worth protecting is the moment where you say, “A gun isn’t so bad anymore.” And I wanna go back again to reconstruction because you mentioned this… It was the nadir, it absolutely was. How does the 14th Amendment and what we learned about the sort of debates over the 14th Amendment, how does that sort of reconceptualise, or inform our view of the Second Amendment and what it means?

Nicholas Johnson: So there’s a rich scholarship about the 14th Amendment, there’s a rich scholarship about covering the original intent of the Second Amendment and just in terms of the timeline. So the Second Amendment is a creation of the 18th century. So we get a Constitution in 1787, we get a Bill of Rights in 1789, and then we we move, basically, almost another century, before we encounter the 14th Amendment. And just to summarize what I think is the general view, I’ll try to be objective about this, I’ve been involved and done some of the scholarships, so I wanna try not to get a short shrift to people who in the details will disagree with me. So in the Heller case, we saw the court coming to the conclusion that the aim of the Second Amendment was to protect an individual right, but we got this language that some will say is a sort of riddle. And the language talks a lot of… Has this Militia prefatory clause. So there’s no doubt that conversations about the federal power over the Militia appear in the debates about the Constitution and that whole 17th century conversation has more of a Militia cast to it.

Nicholas Johnson: By the time you get to the 14th Amendment, what we find there is some of the strongest historical evidence of the intention, or the aim of the framers and the ratifiers, and when I say “ratifiers”, I should use an asterisk because some will… Many will argue that the southern states were coerced into ratifying the 14th Amendment, that’s a separate story. But as one looks at the evolution of the 14th Amendment, it comes out of the set of concerns that the freedmen, once the war was over, were being essentially abused and through the mechanisms of the black codes and administration of the law by the former confederate states, and that the responses to that abuse were at least threefold. So one, is the development of the Freedmen’s Bureau through the Freedmen’s Bureau Act, the other Civil Rights Act of 1866, and then finally, the 14th Amendment. So as you look at the details of the Freedmen’s Bureau Act, it explicitly talks about one of the aims being to protect the freedmen in the exercise of their constitutional rights, including, and I talk about this explicitly in the book, the right to keep and bear arms. This was not talking about Militias, this is a recognition that the freedmen needed firearms to defend themselves against racist terrorism, and against the sort of racist administration of the law through the Black codes.

Nicholas Johnson: We see similar language appearing in the Civil Rights Act of 1866 and in the precursor to, or the selling of the 14th Amendment, we see the sponsors, for example, of the 14th Amendment talking about… There’s this is a famous quote, “The great aim of the 14th Amendment is to guarantee to the freedmen the benefits of the individual rights guarantees in the Bill of Rights.” And then one of the most famous quotes ticks them off, and includes explicitly the right to keep and bear arms. And all of the surrounding commentary there appreciated that we were talking, not about Blacks or anybody else participating in a Militia. This was a very individual rights‐​focused conversation and the historical context makes it quite clear why the right to arms was essential to be protected. Because we had people who previously were slaves now in the same environment dealing with individuals who were chafing under a result that transformed the status of these now free people. And violence was… Imminent violence that the state either could not or would not deal with was a daily sort of concern for that group.

Trevor Burrus: Well, in some sense, you could actually argue that the first KKK was partially a gun control organization, correct?

Nicholas Johnson: Oh, absolutely. The Black codes were… So these were explicit… Or these were laws passed in a quasi‐​legitimate way that were explicitly racist. So the idea was that if you’re gonna dominate a people, if you’re gonna re‐​enslave them in another form, you have to disarm them in order to ensure that they can’t fight back. And this was obviously a greater concern after the Civil War, because you had black men who had served as soldiers who brought back many of them their service weapons. Blacks in the general population had now greater access to firearms, so they were less easily intimidated, and one of the aims of the renewed attempt at subjugation was to disarm this group.

Nicholas Johnson: So when people talk about there’re several articles, scholarly articles out there that track what some of the authors call, “The racist roots of gun control,” but what they’re talking about is this era where one finds in the post‐​war south, a variety of state laws that had the aim basically of disarming black people, and as we move forward from that period into the early 20th century, all the way up through the 1960s, we see other more subtle renditions of a similar kind of thing. So what we’re talking about after the Civil War, prior to the 14th Amendment, were these de jure, these formal, formally racist statutes. What happens as time goes on, is that we see racially neutral laws being implemented, or that’s supposedly that normally apply to everyone, gun control standards, that supposedly apply to the entire population, but as a matter of practice, many of those in the south were administered against Blacks in an overtly racist way.

Trevor Burrus: And that’s sort of, we see that, some of those are left around today in the form of what are called, “May‐​issue laws.” Laws that determine whether or not you can carry a gun based on the subjective determination of a sheriff, for example, those were used widely to disarm African‐​Americans, correct?

Nicholas Johnson: Yes. So we’ve got good evidence of that in the… I talk about some of this good evidence of that in the 1950s, 1960s, as you move into the 1970s, and the research here gets slipperier, as you move into 1970s, 1980s, you see similar sorts of criticisms. And one source of that criticism is the impulse for the scenario that we find ourselves in today, that is where most states have adopted shall‐​issue concealed carry. But the shall‐​issue concealed carrying movement, according to scholarship that I think is sound.

Trevor Burrus: In the ‘90s.

Nicholas Johnson: Yeah, was prompted in part by complaints that the shall‐​issue, sorry, the complaints that the discretionary issue process was dominated by what I’ll call cronyism, and so when I said that the research get slipperier, if one looked at the results of the discretionary carry regimes, what one found was that the population of people who had been granted permits to carry fire arms, was a population that looked like the sheriffs office. That is, mainly white males, it was privileged white males, it seemed as if the denials were concentrated among women and outsiders. So it was another situation where the results looked discriminatory.

Nicholas Johnson: It’s harder to find the smoking gun, harder to say that there was an overtly racist kind of agenda. So the researchers who have looked at this piece, have talked about this as… Or talked about the discretionary permitting system as a kind of male‐​dominated, crony, favoring scenario, and one that was a kind of criticism that gave fuel to the development of the shall‐​issue movement, which has resulted in what we find today where in the overwhelming majority of US states, if one can lawfully own a firearm, one also can get a permit to carry. And in the few places where the discretionary system still applies, there was certainly a period, for example, in New York City where the list of people who were granted permits to carry, was notoriously filled with privileged folks. So basically, if you were rich or if you were an insider, that is people who could already afford private security, but if you were an ordinary person, whose life was made dangerous by any number of circumstances, you were deemed to be outside the realm of someone who could be granted a carry license. So there’s no rich interesting literature with regard to those two regimes of licensing or permitting concealed carry, and I think it traces back to the world where we saw favoritism and ultimately overt racism.

Trevor Burrus: Yeah, re‐​reading your book, ’cause I did read it six years ago, but re‐​reading it in light of the current situation of, I already mentioned, unrest protests about police violence and a pandemic, it struck me that in some sense, there’s a sense that to use the parlance of our times, gun control is white privilege, or at least it’s the privilege to believe that you’re protected by other forces to the point that you don’t have to protect yourself, is something that white people take for granted, and maybe that sort of ultimately the point that African‐​Americans should look. We should understand that situation that African‐​Americans have generally been in.

Nicholas Johnson: Yeah. So this is a place where I’ll try to be careful and think through what I wanna say before I put it out there into the Internet world. But…

Trevor Burrus: I understand that, yes.

Nicholas Johnson: I have… On a couple of occasions… So, I did a couple of the NPR interviews years ago, where the result of our conversation was one of the interviewers saying basically what you have said. I did not use the term white privilege, but the interviewer used something like it at the end of a conversation where I describe the following. So as one traces the origin of the modern gun control movement, one of the early players who was significant in the development of what was then called the Handgun Control Inc, was a man named Pete Shields. And Pete Shields had endured the tragedy of his son being killed by a criminal who was wielding a gun. And he, along with others, coalition that, I think initially started as the Coalition to Ban Handguns. They developed the… They were the impulse for the sort of powerful development of the modern gun control movement, and this was 1972 or so. And Pete Shields’ advice at the time was, “You don’t need a gun. If you have an altercation, just give them what they want, or run.”

Nicholas Johnson: And in 1994 or so, I was writing one of my first pieces of work in this area, one of the things that I said, and nobody was using the term white privilege at the time, one of the things that I said was, “Well, what if they want you dead or maimed?” And what I was trying to conjure up was a kind of spectrum of threats. And what I was suggesting, and what I suggested to the NPR reporter was that some of… It seemed to me at the time, and I guess still does, that some of the thinking that drives the gun control movement is from the perspective of a kind of affluent suburbanite, who anticipates that the threats he or she is likely to encounter are gonna be threats from some deprived person, who basically wants your wallet. And I guess if that were my situation and my experience, I would agree. If my choice were to carry a gun in defense of my wallet or just hand over my wallet to some person who is desperate enough to use violence, I can see, I guess, that approach.

Nicholas Johnson: But as I talked later with women who were saying, “Well, what if they wanted me dead or… ” So you think about the other kinds of threats that people face. Women worried about sexual assault, or blacks who are in… Who got this history that we’ve been talking about. What if someone wants me dead or maimed or injured, and it’s not just obviously a race issue, because Don Kates and I had this conversation, and I think he would say sort of the same thing. But there is, it seems to me, at the root of some policies that are aimed at… Control… Some gun control policies, there is a kind of threat narrative that reflects a very limited kind of experience. And I suppose that I will say that I agree with the notion that people whose threat narrative is pretty narrow and who have high confidence that when they call 911, that police will arrive quickly and will not perceive them to be the threat when they arrive, and all the other things that I think black people have historically worried about when they called the authorities.

Nicholas Johnson: For someone who doesn’t have that set of worries, it seems to me that it is easier to embrace the idea that one should rely on the government. But if your worry is, “Well, I’m not sure I can trust the government, I’m not sure that they will show up on time, even if they could show up within the few seconds after which the threat sparks. You naturally are going to have, I think, different views about firearms policy and policing, depending on first your experience, but more over, it’s not just experience that we’re talking about here, everybody is making projections about the future and you make those projections based partly on your experience, partly on your history, partly on what people in your sub‐​culture are experiencing, and we all have very different stories that are fueling our perceptions about the future and our sense about the risks that may or may not justify our decision to own a firearm or want to carry a firearm.

Trevor Burrus: Yes, I didn’t mean to imply that gun control, the only argument for gun control would be based in that type of privilege, but I agree with you that it’s too often ignored, which is one reason why your book is so valuable to resurrect that history of people had thought about that relationship. Now, of course, today, we’re seeing some of the same issues come up, what you describe as the sort of the debate over political violence and the self‐​defeating political violence that is perceived to sort set the cause back. Given that and also what’s going on with the police, and I have seen some articles and some upticks about black ownership of guns becoming relevant again, do you think that the gun control debate has sort changed today and maybe gone back to the kind of debates that we had over the time period of your book?

Nicholas Johnson: So the honest answer is that we’re in the middle of it, and I have things that I’m observing that I think are happening. Proving it in the way that you would hope to do as a scholar, I think takes more time and more data, and I think we’ve gotta come out the other end of sort of this period of turmoil that we were in before one can draw really plausible conclusions about what’s happening, but I will say that I’ve observed certain things, one is that in the sort of mainstream media reporting, there is a greater recognition of the possibility that you described that is that there’s a greater recognition of the reasons why black people, white more often today, choose to own firearms, but having said that, when my book came out, probably… So I did lots of interviews with The New York Times around 2015, 2016. The Times ran a front page above the fold story on black gun ownership and the narrative then was something about Trump‐​ism, I guess. The other thing that I will say is that over the last several months, I’ve gotten more, lots more press inquiries.

Nicholas Johnson: And I think part of it is that if you’re a young producer that this can be a kind of hot story and people suddenly discover it, it’s not clear to me that, that this is that new, but I think it’s something that for mainstream journalists to pick up, it’s becoming more of a legitimate concern, or a legitimate story. The other thing that I see is that with social media, there is a greater opportunity for marginalized groups, organizations to get their story out, so there’s a new, a couple of new groups, but one significant, the National African‐​American Gun Association, and over the last probably three, four, five years, their membership has really grown in dramatic ways and that has generated some additional coverage, and I think that fits into a kind of narrative that people can understand. So I’m rambling about it because I think there are a bunch of… There are a variety of inputs that are affecting the answer to your question and we’re sort of in the middle of it, and I’m right now, sort of up in the air about whether if something really new is happening or whether we’re just better at communicating, it’s easier for black gun owners to get together and say, so years ago, I was talking with Roy Innis, who was, you know, who was famously pro‐​gun and we were on some dias basically talking about the same thing.

Nicholas Johnson: And he started, he looked over at me at the beginning of his speech and said, “Well, this is great, I was feeling like the lone ranger for a while.” And what he was talking about was how for a fairly long period, it was difficult to find black leaders or scholars or anyone who would say sort of pro‐​gun things in public, in a public way, and I have been doing this work for about 25 years and certainly in the early stages of it, people would… Colleagues and other scholars would look at me with with curiosity, wondering what’s going on here? And it really wasn’t until I did the precursor, the scholarly precursor to Negroes And The Gun that I laid it out fully, I talked about the worry about or the worry of trusting the state and in vague terms, and in my early scholarship did not really wanna make this sort of entirely race‐​driven kind of commentary. The race commentary has been very powerful though, when I think, to circle back to your actual question, I think we’re in a place where people are thinking harder and more empathetically about the set of concerns that their fellow citizens have and how that translates into policy positions, including policy positions on the question of gun control.

Nicholas Johnson: So I think we’re at a spot where the receptivity to the kind of story that appears in Negroes And The Gun and the kind of story that fuels the development of the National African‐​American Gun Association and a whole host of other online groups whose numbers I can’t really cage. I think people appreciate that more so now, because the examples of the different threat scenarios that might fuel different kinds of positions on firearms policies, those examples are appearing on their news feed, appearing on their Facebook page. So I think there’s something about where we are now that makes this a very key moment for the development of this conversation.