Raymond T. Diamond | Louisiana State University (original) (raw)

Papers by Raymond T. Diamond

The American Historical Review, 1998

The subst ance of modem criminal law and the procedures through which that law is enforced are a ... more The subst ance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of crimin al sanc tions as a means of enforcing schemes of regulation meant to guar antee public welfare.1 By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the crimi nal law.2 As a result, the rights that protect the accused from intru sions by a potentially tyrannical state and from arbitrary decision * This Article was presented as a paper at the Benjamin N. Cardozo School of Law Sympo sium on Bondage, Freedom & the Constitution, in February, 1995.

Chicago-Kent} Law Review, 1995

I know something of the history of this legislation. The original Act of 1893 was passed when the... more I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps.. .. [T]he Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and sawmill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population.. .. [I]t is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute.. .. [T]here has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested. [1] the difficulty of separating diverse racial and other motives behind the enactment of the statutes under consideration, the judicial response to such statutes, and the adoption of Southern precedents in this area in other jurisdictions. I. Arms, Rights, and Race in Early Southern Law and Culture A. A Neglected Jurisprudence The right to keep and bear arms presents something of a paradox in American law. The ownership, and to a lesser extent the carrying, of firearms are indisputably a part of American culture. In this, the last decade of the twentieth century, the United States is one of a handful of modern, industrialized, western nations where firearms ownership is common-roughly fifty percent of American homes are reported to contain at least one firearm. [14] There are also an estimated 20,000 federal, state, and local statutes and ordinances regulating the ownership, possession, carrying, and use of firearms. [15] Finally, there is the Second Amendment to the Constitution and some forty-three analogous state provisions. [16] Despite the prevalence of firearms and legislation directed at regulating firearms, the jurisprudence of the Second Amendment remains amazingly thin. The Supreme Court has pronounced directly on the subject in only three cases, the last occasion over fifty years ago. [17] Second Amendment claims have received rather cursory dismissal in lower federal courts in recent decades, [18] reflecting a combination of judicial hostility [19] and the predominance of Second Amendment claims made by those involved in criminal activity. [20] The Second Amendment has, in recent decades, attracted so little in the way of serious judicial or academic commentary that it has caused one federal appellate judge to call it "the orphan of the bill of rights." [21] Indeed, one leading constitutional scholar has called his discussion of the constitutional provision, "the Embarrassing Second Amendment." [22] B. Antebellum Constitutional and Statutory Enactments arguably makes no difference, [48] but calls into question whether other distinctions might be made between the people or the citizens, on the one hand, and others. Certainly, such distinctions were made. Setting aside the accuracy of Chief Justice Taney's dictum in the Dred Scott case, that persons of African descent were not, at the time of the Revolution and the framing of the Constitution, part of "the people" and thus not citizens of the United States as a nation, [49] it was increasingly apparent throughout the antebellum period that Southern states did not consider even free blacks to be citizens of the states themselves. This was certainly the case in North Carolina, as State v. Newsom, [50] an 1844 case involving the right to bear arms, indicates. In Newsom, the North Carolina Supreme Court decided the constitutionality of a statute requiring a license for free blacks to keep or carry arms. [51] The North Carolina Constitution of 1776 provided in part "[t]hat the people have a right to bear arms, for the defense of the State. .. ." [52] Only a year previous, the court had determined that this right included an individual right. [53] In Newsom, however, the court determined that although this individual right to arms extended to "the people" and thus to all citizens, free blacks were not citizens and were thus excluded from exercising the right.

Connecticut Law Review, 2013

(recounting the national gun control movement in the 1960s and 1970s that embraced the progressiv... more (recounting the national gun control movement in the 1960s and 1970s that embraced the progressive program of supply-side gun control as an answer to crime and civil unrest). 2 See, e.g., LANCE HILL, THE DEACONS FOR DEFENSE: ARMED RESISTANCE AND THE CIVIL RIGHTS MOVEMENT 2 (2004) (detailing the history of the Deacons for Defense and Justice, an armed self-defense organization formed in southern black communities in the 1960s to protect African-American communities and civil rights workers from the Ku Klux Klan and other violent racist groups). Another indication of growing interest in the topic among civil rights historians was the panel entitled "Armed Self Defense during the 1950s and 1960s: The Other Side of the Southern Civil Rights Movement" held at the

SSRN Electronic Journal, 2020

SSRN Electronic Journal, 2013

American Historical Review, 1998

Chicago Kent Law Review, 1995

The Yale Law Journal, 1995

Joyce Lee Malcolm's timely study, To Keep and Bear Arms: The Origins of an Anglo-American Right,2... more Joyce Lee Malcolm's timely study, To Keep and Bear Arms: The Origins of an Anglo-American Right,2 brings the insights of a student of early modern English political history to the contemporar y debate over the Second Amendment .3 Through an examination of statutes and cases, of English constitutional thought, and of the political, social, and cultural background of English history and law from the seventeenth century to the twentieth, Malcolm does more than simply outline the history of the English right to arms. As her subtitle promises, Malcolm brings into sharp relief the origins of the right to arms not only in English ideological and constitutional thought, but in American constitutionalism as well. Malcolm's study traces the transformation of the traditional duty of the English population to have arms for the common defense into the notion of a political right to arms to resist potential excesses of the Crown. She fi rst focuses on the political turmoil that was seventeenth-century England, a unique century in modern English history. A Scottish family occupied the Eng lish throne.4 A King, Charles I, was beheaded. A most un-English experiment, eleven years of republican rule, the Protectorate, was attempted. And by the end of the century, the English exacted a Declarat ion of Rights from their new rulers, William and Mary. That declarat ion included the right to arms. Then, Professor Malcolm takes her study beyond the seventeenth-century background that helped produce a formal recognition of the right to arms. She examines the subsequent history of the right to arms in England and how it became a virt ual nullity in the twentieth century. This Review examines Malcolm's st udy. Part I explores the modern American debate over the Second Amendment-the quality of which will be greatly improved by Malcolm's contribution of To Keep and Bear Arms. Part II examines Malcolm's treatment of seventeenth-century English constitutionalism and how the right to ar ms became part of English constitutional thinking. Part III traces the social and cultural developments that led to the ultimate ev isceration of the right to arms in the United Kingdom in the twentieth century. Part IV concludes by discussing the signifi cance of Professor Malcolm's history of the English right to arms for late-twentieth century Americans concerned both with guns and violence and with arms and rights. 2. JOYCE L. MALCOLM, To KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994) [hereinafter To KEEP AND BEAR ARMS]. 3. "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. 4. Historian _ R�ger Lockyer suggests that the friction between the English and their Stuart Kings that started at the begmnmg of the seventeenth century may have been rooted in the more authoritarian tradition of Scottish law, which, unlike the common law of England, was rooted in Roman law. See generally

The Yale Law Journal, 1995

Lee Malcolm's timely study, To Keep and Bear Arms: The Origins of an Anglo-American Right, 2 brin... more Lee Malcolm's timely study, To Keep and Bear Arms: The Origins of an Anglo-American Right, 2 brings the insights of a student of early modern English political history to the contemporary debate over the Second Amendment. 3 Through an examination of statutes and cases, of English constitutional thought, and of the political, social, and cultural background of English history and law from the seventeenth century to the twentieth, Malcolm does more than simply outline the history of the English right to arms. As her subtitle promises, Malcolm brings into sharp relief the origins of the right to arms not only in English ideological and constitutional thought, but in American constitutionalism as well. Malcolm's study traces the transformation of the traditional duty of the English population to have arms for the common defense into the notion of a political right to arms to resist potential excesses of the Crown. She first focuses on the political turmoil that was seventeenth-century England, a unique century in modern English history. A Scottish family occupied the English throne.' A King, Charles I, was beheaded. A most un-English experiment, eleven years of republican rule, the Protectorate, was attempted. And by the end of the century, the English exacted a Declaration of Rights from their new rulers, William and Mary. That declaration included the right to arms. Then, Professor Malcolm takes her study beyond the seventeenth-century background that helped produce a formal recognition of the right to arms. She examines the subsequent history of the right to arms in England and how it became a virtual nullity in the twentieth century. This Review examines Malcolm's study. Part I explores the modern American debate over the Second Amendment-the quality of which will be greatly improved by Malcolm's contribution of To Keep and Bear Arms. Part II examines Malcolm's treatment of seventeenth-century English constitutionalism and how the right to arms became part of English constitutional thinking. Part III traces the social and cultural developments that led to the ultimate evisceration of the right to arms in the United Kingdom in the twentieth century. Part IV concludes by discussing the significance of Professor Malcolm's history of the English right to arms for late-twentiethcentury Americans concerned both with guns and violence and with arms and rights. 2. JOYCE L. MALCOLM, To KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RoT (1994) [hereinafter TO KEEP AND BEAR ARMS]. 3. "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. 4. Historian Roger Lockyer suggests that the friction between the English and their Stuart Kings that started at the beginning of the seventeenth century may have been rooted in the more authoritarian tradition of Scottish law, which, unlike the common law of England, was rooted in Roman law. See generally

$Research paper thumbnail of No Call to Glory: Thurgood Marshall\u27s Thesis on the Intent of a Pro-Slavery Constitution$

Loyola Journal of Public Interest Law, 2011

undoubtedly true that police stop people all the time. So the question is: What is different abou... more undoubtedly true that police stop people all the time. So the question is: What is different about this particular burden, that when a person is lawfully stopped and police have a reasonable suspicion that a person is not in the country legally, that they should investigate that suspicion? What is different is that such persons must be prepared to prove their status, and/or to be arrested when they cannot do so, and that this burden will likely fall on a class of individuals in the main, and almost exclusively, to be distinguished by race and national origin. 2 This burden is racial. Police will make their determinations as to reasonable suspicion on the basis of appearance, on the basis of accent. They are making a determination of reasonable suspicion on the basis of national origin, something that the framers of the Fourteenth Amendment considered to be coincident with race. 3 So it seems to me that this burden is not only racial, it is an invidious piece of racial discrimination, and the question that we have is whether the state can undertake this investigation and these arrests consistent with a compelling interest. SB 1070 maintains that the state has a compelling interest "in the cooperative enforcement of federal immigration laws throughout all of Arizona." 4 As I will relate by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlaw f ully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released." (emphasis added)). 2. See, e.g., Alicia E. Barron, Truck Driver Forced to Show Birth Certificate Claims Racial pro f iling, AZ.FAMILY.COM, Apr. 21 , 2010 , http://www .azfamily.com/news/91769419.html (television news account of an Hispanic man stopped days before Arizona's governor signed SBI070 into law, arrested, transported to immigration authorities, and forced to provide a birth certificate before being released). As the Supreme Court explained in United States v. Brignoni Ponce, 422 U.S. 873 (1975), the "single factor [of] apparent Mexican ancestry," as was apparently the case in this incident, "would [not] justify ... a reasonable belief of' of alienage. Id at 885-86. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them arc aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it docs not justify stopping all Mexican-Americans to ask ifthcy arc aliens. Id. at 866-87 (emphasis added) (footnote omitted). 3. See e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (discussing the Fourteenth Amendment "[t]hese provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws"). 4. 2010 Ariz. Sess. Laws 113 ("The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work 'tear one thousand eight hundred and eight, but a Tax or duty may be imposed on such lmportat1on, not exceeding ten dollars for each Person.").

The American Historical Review, 1998

Chicago-Kent} Law Review, 1995

Connecticut Law Review, 2013

SSRN Electronic Journal, 2020

SSRN Electronic Journal, 2013

American Historical Review, 1998

Chicago Kent Law Review, 1995

The Yale Law Journal, 1995

$Research paper thumbnail of No Call to Glory: Thurgood Marshall\u27s Thesis on the Intent of a Pro-Slavery Constitution$

Loyola Journal of Public Interest Law, 2011