Jurisprudence

Does the Progressive Case Against New York’s Concealed Carry Ban Hold Water?

Law enforcement officials hold a rifle and stand over a table of handguns.
New York law enforcement officials display guns turned in during a buy-back event. Spencer Platt/Getty Images

In its coming term, the Supreme Court will hear a challenge to New York’s restrictive concealed carry laws, which effectively ban most civilians from carrying a concealed weapon in public. Many conservative organizations and Republican politicians have filed amicus briefs urging the justices to strike down New York’s stringent regime as a violation of the Second Amendment. Not everyone opposed to the state’s gun laws, however, are on the right. An amicus brief filed by a coalition of traditionally progressive public defender and legal aid groups—including Bronx Defenders, Brooklyn Defender Services, and the Black Attorneys of Legal Aid—asked the Supreme Court to legalize concealed carry as a matter of racial justice. Citing police abuse of Black and Hispanic individuals who possess firearms, these groups wrote that New York law enforcement seeks to “criminalize gun ownership by racial and ethnic minorities,” adding: “The consequences for our clients are brutal.”

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Many conservatives eagerly welcomed their new bedfellows, while the reaction on the left was mixed. Writing in the Nation, Elie Mystal acknowledged the disparate impact of gun restrictions on Black Americans but pointed to studies showing that more permissive gun laws are “going to get more people, specifically Black people, killed.” To better understand the impulses behind the brief, as well as the historical intersection of racism and gun control, I spoke to Carol Anderson, a renowned scholar and professor of African American Studies at Emory University. Anderson’s most recent book, The Second, argues that the Second Amendment was motivated by white fear of Black Americans. Our conversation has been edited for length and clarity.

Mark Joseph Stern: What was your reaction to the public defenders’ brief?

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Carol Anderson: The amicus brief really speaks to the conundrum of anti-Blackness in American society. When Black people are defined as the default threat in American society—when you have this architecture of laws and of policing that comes into being to control that Black population—it means that Black people are vulnerable when they are armed, and vulnerable when they’re unarmed.

In Dying of Whiteness, Jonathan Metzl wrote about whites in Missouri who have suffered gun violence in the family talking about gun safety laws but say: “They are absolutely not going to take my gun. Those people from St. Louis will come down here and take everything we have and we will be left defenseless.” Even though, in their community, white folk were killing white folks, they didn’t say: “I’ve got to keep my gun because I’m in this poor rural community where we kill each other.” There’s this innocence of whiteness that is also bedrock foundational in this society.

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We know that states with laxer gun laws, including permissive concealed carry regimes, typically have higher rates of gun violence, especially against Black men. Implicitly, the brief seems to argue that more Black deaths from gun violence might be a worthwhile tradeoff because New York’s current gun regime is so infected by racism that it cannot stand. What do you think of that tradeoff?

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They’re not wrong. I mean, that’s the thing. The application of the law toward Black people is so disparate. That’s what you saw with stop and frisk, where the bulk of the folks who were stopped and frisked were Black and brown. Your Blackness automatically makes you inherently criminal. That language comes out of the 1740 Negro Act in South Carolina. This is built into American society, and it’s what has to be dismantled. When you are seeing this disparate policing, you are seeing anti-Blackness.

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That is what they are laying out in that first part of that brief: the anti-Blackness that courses through policing that criminalizes Black folk for doing what white folk do. So what they’re asking is to stop the criminalization of that activity. But that leads to greater access to guns. And greater access to guns has not made Black folks secure. It is the Gordian knot, the conundrum that says: You’re either going to be criminalized by the NYPD or you’re going to face the vulnerability of knowing that there are so many people walking around you with guns that the least little thing can get you shot. Road rage. Bumping into somebody wrong on the subway. We know that folks are raw right now. More guns doesn’t make us safer.

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It sounds like there’s no solution: We either have permissive gun laws, which lead to more Black deaths from gun violence, or restrictive gun laws, which lead to more police abuse against Black people.

This anti-Blackness in American society has provided Black people with a Hobson’s choice. If you bear arms, you run up against the policing that criminalizes you and sees you as an automatic threat. You run up against individuals who define you as an automatic threat and believe that they have the right to gun you down. This is what we see with “stand your ground” laws. When whites kill Blacks under “stand your ground,” they’re ten times more likely to walk than when Blacks kill whites.

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What do you make of progressive lawyers, groups like legal aid, adopting an argument that originated from the right wing and the conservative legal movement?

I think that it is a history that is rightfully suspicious of laws that are disparately targeted toward Black folk that criminalizes them and leaves them without recourse. One of the things we often think of in this society for safety is the police. But you see in that brief that the police are not bringing safety. So what brings safety? Cops don’t make us safe. OK, what will make us safe in this environment, in this society? And so the argument is, being strapped, having a gun, will make us safe. But the data are clear: It does not.

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If you were a judge assessing the constitutionality of this law, how would you rule?

The facts of this case—seeing the disparate, unconstitutional way that the law has been applied—frankly I would probably kick it back to New York to revise the statute.

So you would kick it back and say, “there’s a serious constitutional problem here and you need to fix it”?

Yes. A state does have a responsibility for providing safety. The way this law has been implemented doesn’t do that.

How would you advise that the statute be revised?

It would be, for instance, removing the automatic “cops get to waive their $400 licensing fee” and they get the “good character” clause. Particularly if we’ve had biases in the way that police have been hired into the department. The implementation of it is what has become so problematic.

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If this law is struck down, would you deem that a victory for racial justice?

If the broader access to concealed weapons leads to more Black folks getting killed, no. I didn’t think the Supreme Court’s McDonald and Heller decisions were a victory for racial justice. What I saw were those cities really trying to figure out how to deal with the homicide rates that were just destroying Black lives.

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It sounds like, to you, the cycle can’t just be broken by passing more gun laws. The cycle has to be broken by purging anti-Blackness from the system—not just the political system, but also law enforcement. Only then can we have a real conversation about who gets to defend themselves and why, because under the current rules of the game, whatever the law says, Black people are always going to disproportionately bear the burden.

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Yeah. I mean, look at Philando Castille, who had a license to carry a gun. And he alerted the police officer that he had this weapon with him when the cop asked to see his ID, and the cop shot him dead. Philando Castille wasn’t brandishing the weapon. He wasn’t threatening anybody with it. But the fact that he had a gun was more than enough to kill him.

And Castille’s killer was acquitted of all charges at trial.

Now look at Kyle Rittenhouse, who had an illegally obtained AR-15 that he sashayed across state lines to Kenosha, Wisconsin with. And the cops welcomed him: “We really appreciate you guys being here.” “Hey, it’s hot out here, you want some water?” Look at Jonathan Ferrell in North Carolina, the Black man who was in a car accident. He went to get help; a white woman was afraid that he was a burglar so she called the cops. He sees the police, he thinks they’re there to help him, and they shoot him dead. He is unarmed. But what they said was: We were afraid. We felt threatened.

The problem goes much deeper than gun laws.

The racially discriminatory application of these laws is unconscionable. But we know that flooding our nation with guns has not made us safe and secure. It has made us vulnerable. And we are making that trade-off because of anti-Blackness.

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