In July, the Black Attorneys of Legal Aid and nine public defenders’ offices in New York state filed an amicus brief with the US Supreme Court. It’s hardly remarkable for criminal defense attorneys to file such a brief advocating for a given rule, and when they do, it usually attracts little attention. But this wasn’t just any criminal procedure case. New York State Rifle & Pistol Association v. Bruen is a Second Amendment challenge seeking to strike down a state gun licensing scheme. And the attorneys are taking the same side as a host of libertarian and conservative organizations — including twenty-four Republican senators led by Ted Cruz.
As expected, the brief attracted criticism from progressive commentators. While critics may be right that conservative justices will use the brief as cover against attacks from the Left, this criticism potentially obscures a key point: the brief shines much-needed light on the ways in which US gun control has contributed to mass incarceration and the hyper-policing of marginalized communities, particularly low-income black men. Approaches like New York’s licensing scheme help strengthen institutions of policing and criminal punishment.
The attorneys responsible for the brief spend their days advocating on behalf of some of the most powerless and maligned people in society: poor people charged with crimes. Their argument is a simple one, even if it doesn’t fit neatly into our polarized politics on gun control: laws that criminalize gun possession invite discriminatory enforcement.
Gun violence is a major problem in the United States, and calls for lawmakers to “do something” in response to lives lost are certainly understandable. Unfortunately, “doing something” tends to involve passing more criminal statutes, imposing longer prison sentences, or further empowering police officers. In many jurisdictions, police and sheriffs hold almost unfettered discretion in determining who can obtain a license to own or possess a handgun. Licensing requirements frequently rely on criminal records, which in turn reflect race- and class-based disparities in enforcement.
The tragedy of this common model of criminal gun control is that it disproportionately harms the same individuals and communities that are disproportionately harmed by gun violence. In this respect, criminal legal solutions to gun violence have created problems similar to those created by criminal legal solutions championed by progressives in other areas, from intimate partner violence to violence against marginalized groups.
When confronted with a pressing social problem, progressives have argued for greater state involvement and greater regulation. Unfortunately, the regulatory response too often has come via criminal law.
Academics and advocates have decried the problems of “overcriminalization” and “governing through crime.” Recent accounts have emphasized the ways in which neoliberalism has gone hand in hand with harsh criminal solutions to social problems. As the welfare state has shrunk, the carceral state has come to take its place. In the words of Ruth Wilson Gilmore, “criminalization and cages” have come to function “as catchall solutions to social problems.”
Gun violence is a heartbreaking illustration. In his Pulitzer Prize–winning book Locking Up Our Own, James Forman Jr recounts how black activists in Washington, DC, sought to respond to problems of gun violence and drug addiction in their neighborhoods. They sought a range of social services as well as law enforcement resources. Social services never came or were severely lacking.
Instead, over the latter half of the twentieth century, DC became the site of aggressive policing and extremely harsh penalties for people convicted of gun crimes. And, as Forman explains, the defendants facing those charges were predominantly poor and black.
Sadly, as the stories in the amicus brief drive home, DC is not an outlier. New York City’s much-maligned (and unconstitutional) stop-and-frisk program essentially gave police officers free rein to hassle, stop, and search people they suspected of possessing guns unlawfully. The distributive consequences of the program were not surprising. Stops and frisks were heavily concentrated in black and Latino neighborhoods, adding to the impression of a segregated city where the nonwhite and non-wealthy were unwelcome.
Recent years have seen much-needed attention paid not only to the disparate impact of gun violence on low-income communities of color but also to the similarly disparate impact of criminal enforcement regimes.
Earlier this year, activism from criminal justice reformers, abolitionists, and racial justice advocates stalled proposed Pennsylvania legislation that would impose mandatory minimum penalties for gun-related crimes. DC attorney general Karl Racine, a former public defender, took a strong stand against federal enforcement of “felon in possession” laws because enforcing the laws would “disproportionately harm African Americans in the District, who are more likely than any other demographic to have a prior felony conviction.”
An expansive reading of the Second Amendment will not end mass incarceration. And the Supreme Court and judicial review will not solve deep structural problems of inequality and societal punitiveness.
Nevertheless, the amicus brief raises a critically important issue: reckoning with gun violence and designing solutions requires taking seriously how those solutions will be implemented.
In US political culture, “gun rights” have become the province of the political right and generally conjure up images of white, conservative NRA members. But that doesn’t mean that harsh penalties or restrictive gun control regimes will be enforced against these imagined gun owners. If history is any guide, the result will be just the opposite.