Nicholas J. Johnson

Monday, December 1st, 1997

Nicholas J. Johnson, Associate Professor of Law at Fordham University School of Law in New York, is the designated recipient of the CCRKBA Gun Rights Defender of the Month Award for December.

In nominating Johnson for the Award, John Michael Snyder, CCRKBA Public Affairs Director, said that “as the struggle to preserve the individual right of law-abiding American citizens continues, it becomes more and more evident that we need a solid scholarly background upon which to base our positions in public debate. Scholars such as Nicholas Johnson, through their research and writing, enable all of us to establish and maintain that background and, for that reason, the pro-gun rights movement owes many thanks to him and to others like him.”

Johnson is a graduate of Harvard Law School, and West Virginia University, Magna Cum Laude. He has published a number of articles dealing with constitutional issues. His articles on firearms ownership include “Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment,” (24 RUTGERS LAW JOURNAL 1-81, 1993) and “Shot Across No Man’s Land: A Response to HCI’s Richard Aborn,” (22 FORDHAM URBAN LAW JOURNAL 441, 1995).

In late October, Johnson participated in a scholars conference on “Fact v. Fiction on Firearms in America” sponsored by American Firearms Council, Inc.

On that occasion, Johnson, himself an African-American, presented a paper on “Minorities and the Erosion of the Second Amendment.”

He charged that the gun control “debate is, at its core, one about disarmament of the American citizenry.”

Johnson declared that “one of the indications that our debate is decidedly one about disarmament is the bad gun regulatory formula. So far our primary regulatory approach has been to target or restrict ‘bad guns’ — small guns, semiautomatic guns, guns with pistol grips. The justification for this formula is that these are the weapons criminals prefer. But it is silly to suggest that the formula offers a limiting principle that protects certain guns owned by decent people. Criminals prefer guns that shoot. Any gun can fit this bill. Using portrayals of criminal preferences as the test, the bad gun formula is a recipe for creeping disarmament of good people.

“Another indication that we are ultimately debating disarmament is the anti-gun lobby’s creeping interpretation of the Second Amendment. This suggests the amendment only protects an amorphous state right to arm state militias.

“As Steven Halbrook and Professor Van Alsytyne recount, the anti-gun lobby’s interpretation of the Second Amendment was the best kept secret of the 19th Century, as there is no surviving statement from the framers or their contemporaries supporting the view that it is a right of states rather than the people. This does not prevent Handgun Control, Inc., for example, from declaring to anyone who will publish the statement, that the individual rights view of the Amendment is a fraud concocted by the NRA.

“This tactic seems calculated to set us on the same path as the British. As Dr. Joyce Malcolm explains, the once vital English right to arms ‘has been so gently teased away from public use that most Britons have no notion of when or how it came to be withdrawn.’

“Moreover, regardless of what we think about the wisdom of the Second Amendment, this effort to simply construe it out of the Bill of Rights is fundamentally antidemocratic, and something that should worry all of us…

“We are sitting in the jurisdiction with the most restrictive gun laws in the country. Handguns, except for a very small number grandfathered in by being registered before 1976 are illegal in the District (of Columbia). Long guns kept in the home must be kept disassembled.

“Whatever else it may be, this is a public policy geared to eliminate armed self-defense by victims of crime. In several settings I have witnessed public statements by representatives of the anti-gun lobby to the effect that the laws of the District (of Columbia) reflect their ambitions nationwide. Members of the anti-gun lobby have taken this position in print as well. Sen. Diane Feinstein’s statement on national television – ‘If I could have gotten the votes for an outright ban – Mr. and Mrs. America turn them in…’is also illustrative.”

Professor Johnson argued that “gun bans create a perverse result in which government employees (ostensibly servants of the citizenry) enjoy a peculiarly enhanced level of security from armed public employees, while common people get something much less.

“This problem is symbolized by a recent story from the NEW YORK DAILY NEWS. It reports a precinct sized security force guarding the fortress that houses the city’s political elite. On the same page is a report of the plight of a hapless 911 operator (a black man) whose only recourse against a knife attack was to call 911. This man was stabbed to death, while one of his fellow operators listened to him die.

“It is offensive, at least to me, to hear politicians, who are protected by armed employees, and police executives (who carry concealed weapons, although not directly involved in apprehending criminals) suggest that the rest of us, and particularly those who live in dangerous neighborhoods, should rely on generic police services and hope for the best.

“Will failed gun bans lead to other curtailments of freedom? Arguably this already has occurred. Consider President Clinton’s initiative to require tenants in public housing to agree to allow their apartments to be searched as a condition for keeping or acquiring apartments in public housing projects.

“Having already been forced to sacrifice one liberty (keeping arms), we see good people being told that they now must give up their Fourth Amendment protections; that they can only retain their public housing by permitting police to randomly sweep search their homes. The message is clear: once we sink into total dependency on the state, for our personal security, anything can be demanded of us and we are in no position to object.”