Why Are Public Defenders Backing a Major Assault on Gun Control?

Why Are Public Defenders Backing a Major Assault on Gun Control?

Why Are Public Defenders Backing a Major Assault on Gun Control?

In the name of Black gun owners, a coalition of progressive attorneys has thrown its weight behind an explosive attempt to eviscerate gun regulations.


In its next term, the Supreme Court is scheduled to hear a controversial Second Amendment case that is poised to blow a hole in what remaining gun regulations we have in our violent nation. The case, called New York State Rifle & Pistol Association Inc. v. Corlett, attacks the authority of states to issue and require licenses for ownership and carrying of firearms. The New York State Rifle and Pistol Association argues that the state’s licensing laws—which require gun owners to show “proper cause” before carrying a concealed weapon outside their home—violate the constitutional protections the Supreme Court has given to ammosexuals.

Last week, the gun group got a major assist from criminal defense attorneys. Specifically, the Bronx Defenders, the Brooklyn Defender Services, and the Black Attorneys of Legal Aid. All of these groups represent indigent people accused of criminal conduct, who are often Black or Latinx citizens living in densely populated urban environments. The lawyers joined together to file an amicus brief supporting the position of the mostly upstate and rural interests of the Rifle & Pistol Association and arguing that New York State’s gun licensing requirements should be struck down as unconstitutional under the Second Amendment.

In a decent world, upstate white people and downstate Black people would agree about, I don’t know, the fundamental equality of all peoples, or the dignity of labor, or WAP, or literally anything else. The fact that these two interest groups have found common cause in obliterating state gun regulations is just a depressing example of why we can’t have nice things.

What’s even more depressing is that the public defenders make an excellent case. They argue that New York’s gun licensing requirements unconstitutionally deprive poor people of their rights to bear arms and give law enforcement an excuse to harass and incarcerate otherwise law-abiding Black and brown citizens, severely penalizing them for the kind of minor misconduct white people routinely get away with.

They’re not wrong. The public defenders calculate that it costs around $400 to get a gun permit in New York, plus a whole lot of time that is disproportionately difficult for the working poor to find. I don’t tend to think of private gun ownership as a constitutional right, but if you do, gating access to that right behind a $400 fee and an enormous time sink is not something we do for other constitutional principles.

The argument public defenders make against gun laws is exactly the same as the argument I and others have made against drug laws. Law enforcement over-punishes Black and Latinx gun owners, and uses the mere suspicion that gun laws are being violated to instigate stops, frisks, harassment, brutality, and murder. Everything that has been said about the need to liberalize drug laws is being said by the public defenders about the need to liberalize gun laws. And the statistics totally back them up. The brief reports: “In 2020, while Black people made up 18 percent of New York’s population, they accounted for 78 percent of the state’s felony gun possession cases. Non-Latino white people, who made up 70 percent of New York’s population, accounted for only 7 percent of such prosecutions.”

The brief goes on to cite numerous examples of real people who were arrested or incarcerated for gun ownership, many in situations where a white gun owner would not have been stopped or questioned in the first place.

And then there’s the issue at the heart of Corlett: who gets to determine “proper cause” for getting a permit to carry a gun outside the home. In New York City, that decision is largely left to the NYPD. Somewhat obviously, the NYPD has a poor history of granting permits to Black people (the brief cites an example of a 1969 march of working-class Black and Latinx Bronx residents demanding to be licensed to carry firearms, a proposition the NYPD “scoffed” at), while being notably less restrictive with celebrities or other well-connected people seeking a carry permit. The NYPD even waives the licensing fee for (wait for it) former cops who still want to walk around with guns.

According to the public defenders, the solution to all of these (entirely legitimate) concerns is to do away with the New York “proper cause” requirement and allow gun owners to walk the state with their firearms without a permit.

Unfortunately, that solution is misguided and destined to lead to more gun deaths generally, and more Black and brown deaths at the hands of law enforcement specifically. It is, frankly, ass-backwards to reform the regulations on when Black and brown people can have a gun without first reforming when cops are allowed to shoot Black and brown people suspected of having a gun.

Right now, in this country, it is functionally impossible to convict a cop who shoots an armed Black person. It doesn’t matter what that person was doing, doesn’t matter whether the person had a gun license. If a cop shoots a Black person to death and that person is belatedly found to have had a weapon anywhere near their grabbable area, the cop will not be charged with a crime, much less convicted. We could ask Philando Castile about his thoughts on this brief if he hadn’t been gunned down in his car trying to show his license. His murderer, or course, was acquitted of all charges.

Most of the problems highlighted in the public defenders’ brief stem not from racist gun laws but from racist police and their selective enforcement of those laws. The brief closes with a flourish about how dangerous it is for a law-abiding gun owner even to be questioned by a cop. Which is true. But it never explains how revoking New York permit laws will make those encounters safer, and it certainly doesn’t explain how preventing the cops from asking to see a gun license will make them less trigger-happy or “fearful” when they think they see a gun. Decreasing the number of forms Black people have to fill out before an officer is functionally allowed to shoot us to death does us no favors.

And that privilege to shoot people of color isn’t just extended to law enforcement. It’s already very difficult to convict a white person who shoots an unarmed minority. When white citizens shoot armed people of color to death, it doesn’t even make the news, unless the white vigilante is to be treated as some kind of hero.

While we’re here, I’ll add that I have no more sympathy for the Black vigilante than I do for the white one. The brief includes a number of heartbreaking stories about minority gun owners, often women and survivors of violent crime, who purchased weapons for purely defensive reasons but were harassed or arrested by law enforcement. The public defenders argue that these people are the true victims of New York’s gun regulations. These are powerful emotional and moral arguments, but they are deployed to support two principles that I believe are flatly wrong: the idea that guns keep people safe, and the idea that owning one for the purpose of personal self-defense is an inviolable constitutional right.

Many people who live in high-crime areas think that owning a gun will keep them safe. Those people are wrong. The statistics say they are wrong. Guns do not keep people safe—they kill people. Sometimes they kill their intended target; often they don’t. Too often, they kill children or domestic partners. Most often, they kill the owner of the gun in a suicide. The solution to crime is not more cops, or more guns. It’s not for everybody to cosplay Snake Plissken in Escape from New York and hope for the best. The solution is to provide the kind of opportunities that make crime less lucrative, and provide the early intervention needed to keep crime from escalating and mental health problems from spiraling. We will not shoot our way to safety.

Indeed, one recent study indicates that a loosening of permit laws leads to increased Black homicide rates, not lower ones. The solution, self-evidently, is not more guns but fewer. We should be working toward getting guns out of the hands of “bad guys,” not putting more firepower in the hands of “good guys.” The public defenders are essentially arguing that the state does a terrible job at distinguishing “good guys” from “bad guys,” and instead reduces the difference to “white guys” versus “brown guys.” Again, the public defenders are not wrong. But to fix that, we must demand that the state do better, not throw up our hands and consign ourselves to a Hobbesian state of nature, powered by Beretta.

Reasonable people can disagree about the best way to keep our streets safe, but I have a deeper conceptual disagreement with the arguments in this brief. The public defenders assume, uncritically, that Republicans have been right all along, and the Second Amendment confers a proactive right to private gun ownership for self-defense. This is ground that I would not cede, even in the name of racial equality and fairness. The government must have some authority to regulate private arsenals in order to carry out its essential function of keeping people safe. A permit requirement is a minimal exercise of such authority. I completely support forcing the state to exercise its authority fairly and without racial bias, but doing away with the authority altogether is just going to get more people, specifically Black people, killed. I want racial justice, but I also don’t want to be shot to death in a crossfire of “liberty.”

Unfortunately, the arguments made by the public defenders are likely catnip for the conservatives on the Supreme Court. I can imagine the normally reticent Clarence Thomas cackling out his approval as he reads this brief. Arguing that excessive regulation saps Black people of the strength and ability to defend themselves is his entire jam.

Thomas, along with Samuel Alito, Neil Gorsuch, and alleged attempted rapist Brett Kavanaugh, was likely already on the side of New York State Rifle & Pistol in this case. These justices have long been skeptical of any gun regulation whatsoever. But those horsemen of the apocalypse will only get the conservatives to four votes in this case. Where I fear this brief will do the most harm is with Chief Justice John Roberts and new justice Amy Coney Barrett. This argument will give those two a peg to hang their agenda on. Reinterpreting the Second Amendment so as to prohibit gun permitting is a big leap, but it’s made easier if they can pretend that they’re “helping” law-abiding Black gun owners in the process.

I hope the people behind this brief, who do critical work and are bringing an important issue to light, can live with the consequences of lying with these bedfellows. If they win, they will have made it easier for some of their clients to purchase firearms and take them out on the streets without being questioned by police. But when these public defenders come crying to the Supreme Court because cops decide to shoot their clients first and ask questions later, they’ll find their new upstate friends are nowhere to be found.

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