By Leo Wolfson, State Politics Reporter
An African American Second Amendment scholar is bringing a perspective challenging many of the mainstream narratives that firearms increase crime in America. Instead, he believes gun control laws exacerbate racial bias in the criminal justice system.
“We need to take a harder look at those programs, rather than pursuing what we call the modern orthodoxy,” said Nicholas Johnson at the University of Wyoming’s Firearm Research Center on Thursday night. “The community would be better if we took a case-by-case policy look. We need a hard-look approach that is pursued with rigor.”
He questions gun control laws from a perspective he acknowledges many will find uncomfortable, showing a connection to racial and criminal justice questions. He said those who believe bias pervades the criminal justice system should also be opposed to the modern gun control movements, where he says the same biases translate into gun law enforcement.
In his "A Race-Sensitive Hard Look at Firearms and the Black Community" presentation, Johnson explains that studies show many of the same laws leading to disproportionate incarceration of African Americans and other minorities are interconnected with gun control laws that Democrats and many of the same people impacted by the policies support.
“The conservative tough on crime policies cross paths with the liberal paths to solve gun control at all costs,” he said. “Conservatives and liberal progressives have tried to outdo each other to be progressively punitive.”
The Fordham University School of Law professor wants lawmakers to consider firearms regulation from a new lens.
More Gun Control Leads To More Prosecution
In his presentation, Johnson mentioned a 2022 University of Pennsylvania study analyzing nine decades of federal gun laws. The study found that prosecutorial power is magnified when it comes to gun control, due to the prevalent ownership of firearms in America and criminal activity throughout the country.
The UPenn study found that this “both permits broad federal jurisdiction and allows prosecutors to use their equally broad discretion to leverage severe sentences to obtain plea bargains.” When charging penalties and mandatory minimums start high, Johnson said this leads directly to plea bargains likely to end in incarceration.
According to the study, as of 2016, about 15% of all people in federal prisons were convicted of gun offenses carrying a mandatory minimum penalty.
One of the most common gun offenses in America is illegal possession of a firearm by a felon, amounting to nearly ⅔ of all felony gun charges.
Johnson said there are also racial disparities in the prosecutions of gun laws, with studies showing African Americans are much more likely to be charged with this crime than other groups of people and twice as likely to be charged for mandatory minimums as white people.
“Harsh gun laws ended up being utilized as fodder in the prosecution,” he said.
Benjamin Levin said in the Fordham Law Review the same policies used in America’s “war on drugs” are also being used to address the ownership of firearms. Levin argues that the same critique of these policies and mass incarceration should also extend to gun laws.
Johnson cited the example of his home of New York City, which has particularly strict gun laws. To own a handgun in NYC, you need a valid city handgun license and to possess a rifle or shotgun, you need a city-issued permit.
Johnson argues these restrictions have had a disproportionate effect on working class residents of the city, who have a difficult time understanding the “Byzantine” laws and taking time off from work if they have appear in court on gun charges, leading to further legal problems.
“People who are poor or on the bottom half of the economic scale, it’s simply harder to work through the legal process,” he said.
Johnson also brought up a few instances of people traveling to NYC with firearms and being charged with crimes they had no idea they would be committing beforehand.
Yale Law professor James Forman Jr., has questioned whether the bias in modern gun laws is worth tolerating because of the perceived benefits.
In 2019, the United States had the second highest rate of firearms deaths in the world and in 2020, more Americans died of gun-related injuries than in any other year on record, according to the Pew Research Center.
Cost Benefit Analysis
The Rand Corporation determined in 2018 and 2020 insufficient data exists to determine whether firearms protections lead to fewer gun-related deaths, except for isolated incidents related to gun storage laws.
Johnson said a “supply side ideal” exists among gun control supporters, many of whom believe by shrinking the number of firearms owned, gun violence will correspondingly decrease in America to rates seen in other countries. In 2018, America ranked eighth out of 64 for homicides by firearm, a rate 23 times higher than Australia, which has extremely strict gun laws.
“How does that dynamic play into modern orthodoxy?” Johnson questioned.
Johnson said gun control laws started becoming much stricter in the 1960s and 1970s, and by the 1980s, the first municipal bans on handguns emerged, aimed at addressing the problem by restricting supply.
“The modern gun control movement says fix it with banning handguns,” Johnson said. “It was a plausible idea. But that’s becoming less and less and less plausible.”
He said when state legislatures fell short in controlling firearms, gun control advocates usually turned next to public referendums. One such referendum held in California in the 1980s failed by roughly ⅔ of the vote.
Flaws In The Narrative
Johnson brought up a few different examples of major African American civil rights figures who, despite advocating for peaceful change, were surrounded by supporters bearing firearms or were themselves doing so.
Johnson said there is a realization developing in minority communities that traditional gun control efforts are not working. He wants people of these communities to think critically on this issue before they stake a claim of allegiance to a certain politician.
“Let’s not have an automatic allegiance with people like (former New York City Mayor) Michael Bloomberg,” he said.
Johnson believes that by effectively studying this topic, neither supporters or opponents of gun control would be able to take African American support for granted in the future. He said there are various studies showing Second Amendment support is growing steadily in African American communities, approaching 50% in a few. There are also a number of African American pro-gun organizations that have developed in recent years.
“As we sharpen the critique, the modern orthodoxy doesn’t have as great a hold as we previously think,” he said.
Johnson said “de facto” alliances between African American progressives and tough on crime conservatives have led to over policing.
Michael Nutter, the second African American mayor of Philadelphia from 2008-2016, instituted a stop and frisk program that Johnson said led to more discriminatory arrests than in other urban cities.
“This suggests an uncritical embrace of traditional gun control may be incompatible in the broader interests of the community,” he said.
Author and historian Carol Anderson has argued that the Second Amendment was designed to benefit slave owners and to keep African Americans vulnerable and powerless. In her book, she mentions the 2016 murder of Philando Castile, a legally armed African American man who was killed by a police officer when he found out Castile had a gun in his possession.
Although he does believe there are flaws in modern policing, Johnson does not agree with Anderson’s conclusion, calling it “reflexive orthodoxy” and saying no law can lead to perfect results.
“Using an episode like Castille as a foundation for making a broad poltical assessment that the Second Amendment has no promise for Blacks is wrong empirically,” he said. “Guns are crucial resources for the Black citizen.
“It's folly to make a sort of limiting decision on your future resources based on something horrible that happened to someone else.”