« "Empathy and Remote Legal Proceedings" | Main | "Newspaper Expungement" »

August 3, 2021

Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions

I came across this notable recent commentary by Jeff Jacoby in the Boston Globe titled "The very racist history of gun control: The Second Amendment right to keep and bear arms is indispensable to Black equality."  The piece highlights some of the racialized history of gun control in the US, but it failed to discuss the important modern reality of racially disparities in criminal enforcement of gun prohibitions.  And with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to spotlight how gun control laws are actually enforced in federal and state criminal justice systems.

We can start in New York because the SCOTUS case comes from that state and because the Black Attorneys of Legal Aid caucus and lots of NY public defender offices filed this interesting amicus brief to highlight how gun control enforcement actually operates:

[E]ach year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York’s licensing regime renders the Second Amendment a legal fiction.  Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.  That remains the effect of its enforcement by police and prosecutors today.

The consequences for our clients are brutal.  New York police have stopped, questioned, and frisked our clients on the streets.  They have invaded our clients’ homes with guns drawn, terrifying them, their families, and their children.  They have forcibly removed our clients from their homes and communities and abandoned them in dirty and violent jails and prisons for days, weeks, months, and years.  They have deprived our clients of their jobs, children, livelihoods, and ability to live in this country.  And they have branded our clients as “criminals” and “violent felons” for life.  They have done all of this only because our clients exercised a constitutional right....

In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases.  Non-Latino white people, who made up 70% of New York’s population, accounted for only 7% of such prosecutions.  Black people were also more likely to have monetary bail set, as opposed to release on their own recognizance or under supervision, even when comparing individuals with no criminal record.  When looking at only N.Y. Penal Law § 265.03(3) — which alleges only possession of a loaded firearm — 80% of people in New York who are arraigned are Black while 5% are non-Hispanic white. Furthermore, according to NYPD arrest data, in 2020, 96% of arrests made for gun possession under N.Y. Penal Law § 265.03(3) in New York City were of Black or Latino people.  This percentage has been above 90% for 13 consecutive years.

For another example, consider great recent work by Loyola University Chicago’s Center for Criminal Justice Research, Policy and Practice in recent reports on "Arrests in Illinois for Illegal Possession of a Firearm" and "Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois."  Here is key arrest data from this first report: "Black males between the ages of 18 and 24 had the highest arrest rate statewide; for every 100,000 Black male between the ages of 18 and 24, there were 2,404 arrests....  By comparison, the statewide arrest rate for White males between 18 and 24 was 307 per 100,000, and 1,108 per 100,000 for Hispanic males between 18 and 24."  And case-processing data from the second report details how Black offenders are more likely to be convicted on more serious charges: "[T]he majority (79%) of convictions for Class 2 felonies occurred in Cook County, whereas the majority (59%) of convictions for Class 3 felonies occurred outside Cook County.  Also, while the majority of those convicted of either felony class were Black individuals, a larger share of those convicted of the more serious Class 2 felony were Black (83%), compared to 64% of those convicted of Class 3 felony offenses."

And, lest one think these kinds of racial disparities are unique to state systems, the US Sentencing Commission published in March 2018 this potent report titled "Mandatory Minimum Penalties For Firearms Offenses In The Federal System."  Here is part of that report's "Key Findings" under the heading "Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group" (with my emphasis added):

Of course, the Supreme Court's eventual Second Amendment ruling in the Corlett case, no matter what it holds or says, is highly unlikely to dramatically alter the considerable racial disparities in modern criminal enforcement of gun prohibitions.  But, as debate over Second Amendment jurisprudence and gun control policy heats up in the coming months, I hope everyone keeps in mind the disconcerting demographic realities that consistently define modern criminal enforcement practice in the gun control space.

August 3, 2021 at 05:48 PM | Permalink


The race problem in criminal justice (I might say justice overal) is well expressed by various sources & a defense attorney amicus brief aside, not sure the Second Amendment "supporters" [what that means is the debate] who flag the racism are truly consistent about things here.

(A black writer at the Nation strongly disagreed with the public defender brief.)


Concern that a gun law would violation due process in some fashion was shown to cross ideological lines in the past. See, e.g., Sotomayor joining part of Thomas' dissent in Voisine v. United States.

It is a reasonable concern to flag the inequities of criminal penalties as a whole, including something that is more liable to result in discrimination. As to the wider point, for instance, "stand your ground" laws have been shown to be applied in a discriminatory fashion.

How this should factor into the wider issue of regulation of guns in public spaces is a complicated debate.

Posted by: Joe | Aug 3, 2021 7:35:56 PM

Sorry, but this blog hits a new low if it cites Jeff Jacoby of all people. He's only "notable" for a being a completely delusional reactionary.

Now back to our regular programming... I second (no pun!) what Joe says generally, in particular the point about lack of sincerity on behalf of the gun zealots.

Posted by: kotodama | Aug 4, 2021 12:44:07 AM

As we already know, guns and gun control laws are very complicated issues in American, in no small part thanks to the National Rifle Association, which may be about to be shut down by the New York Attorney General's Office, after the NRA's Texas bankruptcy case was dismissed by the Judge. Start with the fact that there are believed to be more guns (362 million) in America than there are people (340 million). Black men comprise 34% of America's prison population (Hispanics 29% and whites 24%), despite making up only 14% (black men and women) of America's population. So, we can say with some certainty (without factoring in racism) that black men may be prosecuted more often for firearms offenses because they commit more crimes in general than their representation in the population as a whole. Yet, we also know from New York's notorious "stop and frisk" policies that black men are targeted by law enforcement more than white men are. In New York, a Federal Judge found that the targeting was illegal and unConstitutional. I still remember one case Judge Jack B. Weinstein ended up dismissing, where the New York police officer's alleged probable cause for stopping and frisking a black man (who was a felon carrying a pistol) was that he had a construction utility knife clipped in his pocket. Judge Weinstein and his law clerk determined that in the prior year, New York's Home Depot stores alone had sold like 24,000 such utility knives, which are commonly used in the construction trades. Thus, mere possession of such a common tool could not constitute probable cause to stop and frisk the man, so Judge Weinstein dismissed the Federal felon in possession of a firearm charge. By analogy, the Judge wrote that just because drug dealers use cell phones doesn't mean that the police can stop and frisk anyone carrying a cell phone, which most of America carries and uses for perfectly legitimate personal and business reasons every day. On the one hand, racial profiling by the police needs to end, but on the other hand, we as a society need to address the sociological and educational reasons that more black men turn to crime than white men. There are many pieces to this puzzle.

Posted by: Jim Gormley | Aug 4, 2021 9:31:36 AM

Nice thoughts and statistics from Jim, as usual. I agree there can be—and certainly is—a massive helping of racism and racial disparities in policing. One could even argue that's actually baked into the formal job description—oppressing minority populations.

But, that can be true and require serious attention, while still having nothing to do with anyone's fictional 2A "rights" being attacked. Jacoby's piece (no pun) is ... of a piece (no second pun) with all the disingenuous, bad-faith argumentation being vomited out by the death and maiming lobby.

Posted by: kotodama | Aug 4, 2021 9:40:36 AM

I was critical of the to me misguided praise of Trump since a few of his action in some fashion advanced the ends of the blog. So, it is not surprising to me that the op-ed is cited.

Looking at it, it spends much of its time stating that "Second Amendment rights" (translated -- individual right to own a firearm, which to me is a constitutional right, but I would not use the 2A for it in this context) apply to black people too.

Yeah. The issue at hand is not the recognition of an individual right to a firearm. Before Heller, nearly every state clearly recognized that. The U.S Congress repeatedly recognized that.

The issue here is how to properly regulate firearms -- which like speech, voting, the right to reproductive liberty etc. is regulated [well regulated hopefully] -- particularly in public places.

A heavy-handed use of the criminal law is not the best approach. But neither is a free range use of guns in public places.

Posted by: Joe | Aug 4, 2021 10:04:17 AM

While a large number of gun offenders may be minorities; so too are a disproportionate number of gun victims. I have trouble believing, given the sources, that most of these disparate treatment arguments for strict scrutiny on gun regulations is motivated by an actual concern for minorities.

Posted by: tmm | Aug 4, 2021 2:20:27 PM

tmm, exactly.

Speaking of scrutiny, or lack thereof, it gives me quite a sad to see this blog acting as an uncritical conduit for these kinds of spurious arguments.


Posted by: kotodama | Aug 4, 2021 4:08:41 PM

"motivated by an actual concern for minorities"

I think a brief submitted by "Black Attorneys of Legal Aid caucus and lots of NY public defender offices" might have some concern.

I saw a reply to the Nation piece (critical of the brief) from at least one progressive leaning person who had some "actual concern for minorities."

Yes, the victims of guns are also minorities. But, the complication is that it is unclear how useful the criminal policy involved is net. At the very least, even if bad actors selectively cite it, the disproportionate enforcement is problematic.

Thus, I do think it is all very complicated. For instance, MANY criminal justice policies arise with support of the communities that are harmed by crime. But, a lot of words have been written about the problems with the policies. It's all very complicated.

Posted by: Joe | Aug 4, 2021 6:49:11 PM

To me, there are two very different kind of gun violators. I think the punishment, or lack thereof, should depend heavily on the person's criminal history, or lack thereof. Consider two gun defendants:

Defendant A has no criminal history but does not have the appropriate license for their gun. Their only charges are related to their gun.

Defendant B was previously convicted of a crime in which they used a gun to threaten the victim and is a prohibited possessor for that reason.

I would want to see violator A receive little punishment, probably without jail time. I would want the book to be thrown at defendant B. For example, if defendant A received a $500 fine and community service, while defendant B got 25 years with no chance of parole, that would not bother me at all.

If, in addition to the above, defendant A was white and defendant B was black, it would not change my opinion. The most important racial disparity is the disparity in crime victimization. In light of the large amount of black-on-black crime, I expect that keeping B in prison would protect other black people.

That said, the post does not contain enough information to determine whether or not the racial disparities are related to that type of difference.

Posted by: William C Jockusch | Aug 4, 2021 9:11:11 PM

Enjoying this comment engagement, and wanted add on. First, Elie Mystel actually seems to recognize the factual soundness of the defender brief: "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." But Elie goes on to say that liberalizing gun laws is a bad idea because, as he puts it "Guns do not keep people safe—they kill people." Of course, he fails to talk about the fact that the same exact argument is made against liberalizing drug laws: drug prohibitions are often quick to say that drugs "do not keep people safe—they kill people." My main point is to highlight, as said in my title, that there are "considerable racial disparities in modern criminal enforcement of gun prohibitions," and Elie does question this claim. He just seems to think these disparities are worth baring in the name of gun control (just like many believe siminar harms are both baring in the name of drug contol).

Meanwhile, kd, I am not vouching for the motives or goals of Jeff Jacoby (whose work I do not follow). This post was intended just to note that government enforcement of gun prohibitions have always had racial skews and often racialized roots. Many people think that kind of history should inform constitutional/policy debates over non-unanimous juries and/or felon disenfranchisement and/or other legal doctrines with racialized pasts and impacts. To overlook racial realities in this setting would be, in my view, problematic. How we react in jurisprudence and policy is a broader and ever more challenging issue.

Posted by: Doug Berman | Aug 5, 2021 11:34:01 PM

I don't want to prolong this debate further. But I recognize and appreciate that Prof. B. put some time and effort into replying, so I will say a few things in closing.

First, I see no contradiction at all in condemning racist policing and prosecuting on the one hand and vigorously supporting gun control on the other. The former, at its core, is a violation of EP, and can be addressed via EP and similar arguments. I think it's telling that the gun fanatics avoid EP like the plague—we all know reactionaries hate any approach that would bolster EP. That might actually benefit minorities, and we can't be having that. But anyhow it's a complete non sequitur to say that, because gun control laws like FiP and whatever else is being mention *just happen to be enforced* in a racially discriminatory manner, then ipso facto those laws *themselves* also magically violate 2A somehow. Of course, it makes sense from the perspective of the death/maiming lobby. They just want to create a slippery slope to dismantling all gun regulations. Once that's done, they'll happily resume their hobby of terrorizing minorities with assault rifles. If you don't believe me, just ask the McCloskeys. And don't think for a moment that any minorities will be permitted to benefit from the flood of weapons even after they're deregulated. For FiP in particular I suppose you could say there's something about overcriminalization of black folks in general, so that they end up as felons and consequently are denied various civil rights. I agree, but again, it's an EP/voting rights problem at its heart. So get back to me when the gun locos are prepared to help with the task of ending felon disenfranchisement. I won't hold my breath.

Second, the supposed equivalence between the gun and drug laws is way unconvincing. The discriminatory aspect of the latter, as I see it anyway, is *baked into* the substantive law itself. I'm thinking specifically of crack and marijuana. So yes, in that case, regardless of what enforcement fixes you make, you'd still have to modify or repeal the substantive law as well. But that's certainly not true for all drug laws as a blanket proposition. Certainly lots of white folks get arrested and locked up for meth and heroin. It might be a problem say in the latter case with opioids, but there's nothing racist about it. And meth and heroin are in fact quite dangerous. There's nothing inherently racist about recognizing that and wanting to do something about it. It's exactly the same for guns.

Third, I want to dispel any confusion. I didn't accuse Prof. B. of "vouching" for anyone. And of course I'm gratified to hear that he doesn't follow Jacoby's "work" (using that loosely) on a regular basis. But my point about a "conduit" still stands. Jacoby already has a platform on the op-ed section of a major metropolitan newspaper. Unless you're going to offer *some* analysis when you quote him—and I'd even take "vouching" over complete silence—then I don't think he deserves the unearned benefit you give him of simply expanding the reach of his columns.


Posted by: kotodama | Aug 6, 2021 11:33:04 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB