The boundaries that have defined the gun debate are fracturing. One demonstration of this is the amicus brief filed by the Black Attorneys of Legal Aid (BALA), the Bronx Defenders and others in New York State Rifle & Pistol Association (NYSRPA) v. Bruen, now before the U.S. Supreme Court. Bruen is a challenge to New York’s expensive and restrictive firearms permitting scheme.
The essence of this brief is that New York’s discretionary permitting scheme for both public carry and simple possession of firearms discriminates against people who are not rich or politically connected and is especially biased against Black and Brown citizens who often have the greatest need for self-protection.
The BALA brief argues that New York’s system disregards the U.S. Supreme Court’s decisions in Heller (2008) and McDonald (2010), as it “deprives everyone of the right to arms, only returning it to those select few” who manage to navigate an expensive ($400 in fees, compared to $20 in nearby Pennsylvania) and highly time-consuming (prohibitively so for many working people) permitting process that ultimately turns on fickle and biased exercises of discretion by the New York Police Department. For people who do not have the resources to navigate the bureaucratic labyrinth, mere possession of a firearm is effectively a “violent felony” that is “punishable by 3.5 to 15 years in prison.”
Not only does New York’s licensing regime render the Second Amendment a “legal fiction,” the BALA brief argues, but also the demonstrated bias in administering the system is an outgrowth of explicit government intent to criminalize gun ownership by racial and ethnic minorities. The brief shows how the 1911 Sullivan Law, which grounds the challenged regulations, was passed in response to establishment paranoia “about organized labor … and hysteria over violence that the media and the establishment attributed to racial and ethnic minorities—particularly Black people and Italian immigrants.”
The brief makes a powerful showing of how hostile governments can rig the game against a disfavored right or a disfavored class. One of the themes in the Heller debate was Justice Stephen Breyer’s dissenting pitch for broad local discretion to account for local circumstances, particularly in “high-crime urban areas” (which, in today’s sensitive environment, some might criticize as code for poor Black neighborhoods). Although the majority rejected Justice Breyer’s interest-balancing approach, lower courts have basically adopted it in the form of means-ends scrutiny analysis borrowed from First Amendment jurisprudence.
The BALA brief shows what can happen when a local government is granted broad discretion over the details of a right to which it is overtly hostile, and how brutally that discretion can be abused against disfavored groups. It presents wrenching examples of lives upended by New York rules that make a mockery of the constitutional right to arms.
The list includes Jasmine Phillips, a decorated combat veteran who brought her legal gun from Texas to New York without realizing that the simple possession of a gun in New York was subject to severe criminal penalties unless one first navigated a forbidding regulatory maze. Another example is Sophia Johnson, who moved to New York from the Midwest and brought her legally purchased gun with her. Several years later, when an abusive partner stole the gun, she reported the theft to New York authorities. She was arrested and prosecuted. Another was Gary Smith, a retired city employee, who was away from home when police appeared at his door and threatened to “bust it down” unless Smith’s friend consented to a search (Fourth Amendment be damned). They found a small handgun in a closed pouch under Smith’s bed and ammunition in a separate pouch. The prosecutors charged him with possessing a loaded firearm with intent to use it unlawfully.
Gary Smith’s case is particularly evocative as a demonstration of the legislative shenanigans enabled by broad discretion in the hands of a hostile state. New York City criminalizes unlicensed possession of a loaded firearm outside of the home or possession of a loaded firearm anywhere else, with the implication that its mere existence carries with it the intent to use it unlawfully. Possession of a loaded gun is a “violent felony” and is punished more severely than possession of an unloaded gun, which New York considers a “non-violent” felony. By legislative fiat, New York considers a firearm “loaded” if a person possesses it “at the same time” they possess ammunition, regardless of whether the firearm is, in fact, loaded.
That’s right, in New York, it is “legally irrelevant” whether the cylinder of your revolver is empty. If you possess ammunition for the gun, New York deems it loaded. If this sort of anti-factual, fiat technique seems familiar, it is basically the same move that legislatures use to convert common firearms finished in a “military style” into evil “assault weapons.”
The pernicious outcome of lower courts’ ceding broad discretion of the right to arms to New York is a system where “the NYPD unilaterally decides whose firearm possession is an unlicensed crime and whose is a licensed right.”
The preferences of the NYPD seem plain. “The NYPD routinely grants licenses to well-guarded and well-resourced celebrities, like Howard Stern and Robert De Niro.” But, the BALA brief makes plain, when “working-class Black and Hispanic families marched through their Bronx neighborhoods, calling for the NYPD to grant them firearm licenses so they could protect their families, the NYPD told them ‘[i]t’s the policy of this department not to give out permits for people who want to protect themselves.’”
The NYPD does take care of its own, though. Former NYPD officers (the ultimate insiders) have application fees waived by statute and, upon leaving the force, receive a special certification—what the NYPD’s licensing division calls a “good-guy letter”—that virtually assures that they will be granted a permit to carry.
Even anti-gun, progressive commentator Elie Mystal acknowledges the power of the BALA brief. Although he ultimately disagrees with the goal of administering the right to arms fairly, Mystal, writing for The Nation, concedes, “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.”
Mystal does not consider “private gun ownership as a constitutional right,” but agrees that if you do, “gating access to that right behind a $400 fee and an enormous time sink [the potential for many hours of lost wages fighting through the permitting bureaucracy that is a real deterrent for working-class people] is not something we do for other constitutional principles.”
Even worse, Mystal argues, is the New York requirement for showing “proper cause” for a carry permit, as judged by the NYPD, whose bias against ordinary citizens and favoritism towards elites and insiders is well demonstrated.
Mystal’s grudging concession from the Left reflects a broader fracturing of the anti-gun coalition. This is evident from the work of sociologist Jennifer Carlson, whose recent book, Policing the Second Amendment, includes interviews with police chiefs freed by her guarantee of anonymity to “air sentiments that they could otherwise utter only behind closed doors.”
Carlson shows that many police, even in populated, racially diverse urban jurisdictions, are gun people. Most Michigan police chiefs in both Black and White communities “were comfortable with self-defense by private civilians as part of their overall crime-fighting mission.” More telling is one typical chief’s emphasis on the “ridiculous” presumption that police are adequate protection from criminal endangerment:
I believe that citizens need to be able to protect themselves. We cannot protect them. We just can’t. It’s impossible. Here we have the fastest response times [two minutes] and that’s partly the result of population layout. … How much can you do in two minutes? The government cannot save people from danger. That’s just ridiculous. So people should be allowed to defend themselves.
Carlson’s interviews also reveal that police understand that anti-gun politicians are increasingly hostile to law enforcement. And the police response is not surprising. In California, for example, the divide between police and progressive legislators has produced a subclass of “gun populism” that Carlson calls “anti-elitism,” where police align with armed good guys against legislators who pass what police call “intricate,” “contradictory,” “unenforceable” gun laws to “show that they did something.”
Some California chiefs even doubt the basic competency of these legislators, wagering that many of them “could not even pass a civil exam.” The output from these politicians is a body of gun regulation so complex that, according to one chief, “most officers don’t even know the law at the entry level. They rely on cheat sheets … arrest people and then do the research and the release or charge on the arrest.” Another chief says California gun laws are “an enforcement nightmare that practically require a law degree to understand.” And, when dealing with armed good guys like the rancher who does not realize his gun or magazine is now illegal, “you have officers who see that and they might not bother enforcing it.”
Boundaries blur further when we fold lawful Black gun owners into the mix. Yes, Blacks have voted overwhelmingly for anti-gun Democrats for decades. But Blacks also are the fastest-growing group of new gun owners, and social media has facilitated new Black gun organizations that give Black gun owners a higher profile that is increasingly difficult to ignore.
Bias in policing (justly decried by most and deployed on the Left in pursuit of police abolition and defunding) actually adds to the litany of reasons for Blacks to distrust the state administration of gun laws and exercise of discretion over affiliated rights and privileges. These worries, on top of a pile of longstanding reasons for Blacks and other political minorities to distrust the state, highlight the increasing difficulty of selling the anti-gun narrative to such groups.
The big loser in all this boundary-shifting is the Bloomberg-style anti-gun agenda. Recall Michael Bloomberg, in his brief presidential candidacy, dancing away from the throw them up against the wall, Fourth Amendment be damned policies that he pressed as mayor of New York City. The biased administration of his stop-and-frisk policies is legendary. Investigation by the Center for Constitutional Rights and reporting by The New York Times for one representative year revealed that Bloomberg’s policies resulted in stops and frisks of roughly 490,000 Blacks and Latinos, compared with 53,000 Whites. “But once stopped, the arrest rates were virtually the same. Whites were arrested in slightly more than 6% of the stops; Blacks in slightly fewer than 6%. About 1.7% of Whites who were stopped were found to have a weapon, while 1.1% of Blacks were found with one.”
I have long questioned why people who experience this sort of treatment would then align with the “just trust the government” mantra of Bloomberg’s Everytown. The Black political class buys in because they are embedded in a political alliance dating to the early 1970s when the national gun-control movement and the emerging Black political class joined the progressive coalition. Robert Cottrol, a professor at George Washington Law School, adds that Bill Clinton’s strong-arming of previously pro-gun, red-state Democrats into voting for the 1994 Assault Weapons Ban solidified Democrats as the anti-gun party.
Whatever the roots of the previous alignment between Blacks and the anti-gun movement, the boundaries are manifestly shifting. Alliances of the political class notwithstanding, Blacks are acquiring guns at a record pace. Philip Smith, president of the burgeoning National African American Gun Association, convincingly argues that progressive politicians who want Black votes will increasingly have to demonstrate more balance on firearms issues.
Recent history makes the idea of government replacing the need for self-help increasingly dubious. The turmoil of 2020 shows that the security bureaucracy is truly a bureaucracy. It is no surprise that more and more innocents are unwilling to rest their safety on such fickle and contingent decisions.
Nicholas Johnson is a professor of law at Fordham University and the author of Negroes and the Gun.