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November 29, 2021

Could a SCOTUS Second Amendment ruling undercut onerous and disparate criminal enforcement of gun prohibitions?

I noted in this post back in August, as part of a preview of the major pending SCOTUS Second Amendment case, New York State Rifle & Pistol Association Inc. v. Corlett, the considerable racial disparities in modern criminal enforcement of gun prohibitions.  Helping me to detail how actual gun control laws are actually enforced in federal and state criminal justice systems was this interesting amicus brief filed by the Black Attorneys of Legal Aid caucus and lots of NY public defender offices.  Notably, some of the themes of this amicus brief have been carried forward by its authors and others via an array of interesting commentary this fall (listed here in chronological order):

Via SCOTUSblog, "We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights."

Via Inquest, "Second Class: For public defenders in New York, representing clients unjustly criminalized for gun possession is a matter of principle.  Now, they have the Supreme Court’s attention."

Via The Nation, "There’s No Second Amendment on the South Side of Chicago: Why public defenders are standing with the New York State Rifle and Pistol Association in the Supreme Court."

Via Slate, "A Criminal Justice Reformer’s Case for Looser Gun Laws: Public defenders have found common cause with the NRA at the Supreme Court."

I recommend all these pieces, which have too many interesting elements to highlight in a single blog post.  I will just here flag a few quotes from the new Slate piece, which is an interview with Sharone Mitchell Jr., the public defender from Chicago who authored the piece in The Nation.  

Our offense is called UUW, unlawful use of a weapon.  And there are different types of UUWs.  But the lowest-level felony, the Class 4 felony, 33 percent of the charges statewide come from 11 communities in Chicago, 11 communities in the entire state.   You look at the UUW numbers, you look at how it’s used in Chicago and how it’s used outside of Chicago — and you would think that guns only exist in Chicago.  And you would think guns only exist in a small number of communities.  And that’s not correct.  In other areas of the state, that’s just not the way they approach that situation....

We have this assumption that making things a felony disallows people from performing that act.  And I just haven’t been convinced of that.  At this point in Chicago, folks are not waiting for the government to tell them that they can carry.  And I think too often we overestimate the power of the criminal justice system to solve problems or fix the things that we need.  I think people are living under the assumption that because you’ve got this very complicated scheme for getting licensed, that means people aren’t going to carry. I think what it means is that people aren’t going to carry legally....

If you look at the population of Illinois prisons, there are more people in prison for weapons possession than there are for robbery.  There are more people in prison for weapon possession than there is for kidnapping, more than arson or burglary or DUI or forgery or vehicle hijacking or retail theft.  This is really becoming kind of the new war on drugs, where there’s a real problem, but our solution to the problem doesn’t actually fix the problem.  In fact, it creates way more problems.

A few prior related posts:

November 29, 2021 at 04:59 PM | Permalink


Doug, why would we read this nonsense? Felon in possession laws are good. Why aren’t these idiots acknowledging that gun possession convictions generally don’t come in a vacuum—with apologies of course to Plaxico Burgess.

Posted by: Federalist | Nov 29, 2021 6:49:47 PM

The Legal Aid caucus brief also received a lot of pushback from others who are concerned with racial disparities in the criminal justice system.

Without changing the overall system in place, it is dubious to me a more expansive right to carry guns in public places will net improve racial disparities.

The conservatives on SCOTUS, even if Alito (receiving pushback) says he is so concerned about late night workers going on subways and the like, simply are not TOO concerned about the subset of people here. Even Thomas emphasized the case was not about someone in New York City.

There are a lot of moving parts. More guns in public places will lead to various negative consequences. And, a looser felony rule is a step beyond what the SCOTUS case is about. The same with many of those arrested for illegal guns. The case still would allow licensing and many will be caught w/o an adequate license.

Of course, that is a complicated question, that again, divided those particularly making it their work to worry about these questions.

Finally, I'm quite open to looking at the policies, including weakening various too severe criminal policies. Again, many who support that in the criminal justice policy area are rather dubious about more expansive gun rights.

It is different for the Supreme Court to take discretion out of local government's hands.

Posted by: Joe | Nov 29, 2021 8:17:37 PM

Federalist: the commentaries are speaking to convictions for simply having a gun in public without a license. That is what is at issue in the SCOTUS case, not felon in possession prohibitions.

Posted by: Doug B. | Nov 29, 2021 10:09:31 PM

Hunter is a great example of disparity—Hunter Biden lied on his gun purchase application.

Posted by: Federalist | Nov 29, 2021 10:37:53 PM

So, federalist, are you now agreeing with a main sentiment of these pieces --- despite first calling them "nonsense" written by "idiots" --- which are making the point that certain privileged persons are not subject to the same type of criminal enforcement of gun laws as certain less privileged persons?

Posted by: Doug B. | Nov 29, 2021 11:37:21 PM

Enforcement of gun prohibitions is another area where balance is sorely needed. Consider three defendants:

Defendant A has no criminal record and failed to get a permit for his gun. There is no evidence that he was involved in criminal activity, other unlicensed firearms.

Defendant B was convicted of a $20k fraud one time, eight years ago and for that reason is not allowed to have a gun. He has not been convicted of anything in the interim.

Defendant C has been convicted of three robberies, a rape, fleeing police on two separate occasions, and assault with a deadly weapon. He is caught with a gun.

I would be content to see A, B, and C get no time, three months, and 25 years, respectively.

Instead, we probably have some prosecutors who will try to give A 10 years, and others who will try to give C 6 months or even less. Both are insane.

This is also a bad area to worry about racial disparities in punishment. If C is black, a lengthy sentence will likely protect innocent black people from C. Failure to give C a lengthy sentence would increase the racial disparity in crime victimization.

Posted by: William C Jockusch | Nov 30, 2021 1:09:47 PM

Defendant A above should say "other than". I wish the platform allowed comment editing.

Posted by: William C Jockusch | Nov 30, 2021 1:16:16 PM

If there are racial disparities in prosecutions and punishments for gun crimes, those should be addressed, certainly. What I truly don't understand is what makes possible racial disparities in this particular area so unique or different from disparities in other criminal areas. It doesn't follow in the slightest that just because racial disparities may be happening in the gun crimes area, the underlying prohibitions are bad, unwise, or violate anyone's purported (I say that because the true, conservative, "originalist" interpretation doesn't contain any kind of freestanding individual right) 2A rights. You can address any gun crimes racial bias in the same, obvious, and typical way it's addressed in all other areas: Equal Protection.

I can at least understand where the PDs are coming from in that they just want to get their clients off without being too concerned about the means for accomplishing that. But (1) that just reflects the individual, proprietary interests of their clients, whereas the public interest w.r.t safety isn't furthered by nullifying gun prohibitions (of course, eliminating racial bias in their enforcement certainly would be in the public interest) and (2) if you lie down with diseased, mangy dogs like the NRA et al., eventually you wake up with a killer case of fleas.

Posted by: kotodama | Nov 30, 2021 1:36:26 PM

Just to clarify above, I'm not saying such laws couldn't be facially invalid as violative of Equal Protection. But 2A (under the correct reading)? Not a chance.

Posted by: kotodama | Nov 30, 2021 1:48:48 PM

First, Doug, I’d have to know the particulars of the cases, not just the criminal judgments before I believe that many of these cases weren’t pled down. Take frank Clark—how in the world is he getting over?

Second, Hunter Biden is an example of the rot of the DOJ and evidence that Merrick Garland is a thug. How in the world can anyone with any shred of decency preside over an organization that tolerates this kind of connected justice. It is shocking to me that law professors aren’t outraged. As for disparities, start showing us all the non-minorities getting away with gun possession.

Posted by: Federalist | Nov 30, 2021 2:21:46 PM

" You can address any gun crimes racial bias in the same, obvious, and typical way it's addressed in all other areas: Equal Protection."

This is an ideal approach but the reality comes out in the Whren v. United States case. Equal protection is left open as a possibility. But, in practice, not so much.

So, the approach tried, it seems, is to completely erase the field in some sense. You see that in the #AbolishPolice and so forth movements too. The system is inherently discriminatory so even if non-people of color are helped (as they surely are), the movement comes off as a racial justice movement.

But, net, I don't know how useful that is here, though to be clear, I'm sympathetic to major changes in the system.

I also am reminded of certain accounts that argue the 2A is basically applied in racist ways -- one book starts with the suggestion it was particularly put in place to arm slave patrols.

The idea that constitutional rights are selectively honored and state power is used against powerless groups (see also the 1st Amendment) seems present across the board here. Equal protection has to be dealt in the end. If it is not being applied fairly now, just focusing on the right to carry etc. is not enough.

Posted by: Joe | Nov 30, 2021 4:02:36 PM

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