Whose Second Amendment Is It?

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S1: There’s a case in front of the Supreme Court this year that haunts me a little bit, partially because it’s about the place I live. New York

S2: justices today heard oral arguments in the most important gun

S3: rights case in more than a decade.

S1: The case centers around, it was argued a couple of weeks back. This case is about whether it is too hard to get an unrestricted gun license in New York state. The plaintiffs say they should be able to carry their firearms wherever they want, not just a work or the gun range. And I think I got really invested in the outcome of this case because of the way the justices talked about my city. They seemed scared.

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S3: Can I explore what that means for ordinary, law abiding citizens who feel they need to carry a firearm for self-defense?

S1: This is Justice Samuel Alito. He’s grilling New York’s solicitor general.

S3: So I want you to think about people like this. People who work late at night in Manhattan might be somebody who cleans offices, might be a doorman at an apartment, might be a nurse or an orderly, might be somebody who washes dishes. None of these people has a criminal record. They’re all law abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home, by subway, maybe by bus when they arrive at the subway station or the bus stop. They have to walk some distance through a high crime area, and they apply for a license. And they say, Look, nobody has told them has said, I’m going to mug you next Thursday. However, there have been a lot of muggings in this area and I am scared to death. They do not get licenses. Is that right? That is in general, right? Yes. If there’s nothing particular to them, that’s right. How is that consistent with the core right to self-defense, which is protected by the Second Amendment

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S1: after this argument wrapped up? It was clear what the justices wanted to do. They wanted to loosen gun restrictions. But I’ve got to say the idea of people arming themselves in the subway kind of terrifies me. I used to ride the subway home after overnight shifts. I would nod off as the train rattled through Canal Street. The idea of being trapped in a speeding metal tube with a bullet ricocheting around. No thanks. Add to that the fact that gun sales have spiked since the pandemic and Kyle Rittenhouse was just found not guilty even after shooting three people in the middle of a public street. It all makes me uneasy, and I’m not alone. If the court strikes down New York’s strict law on concealed carry, we could have a lot more people walking around armed, thinking about doing harm to people just because they’re mad. But today on the show, you’re going to hear a different point of view, an argument that what the Supreme Court seems set on doing in this case might write a tremendous wrong. This perspective, it demands that you consider who gun control is controlling. I’m Mary Harris. You’re listening to what next? Stick around. If you dig around the case docket for New York State Rifle and Pistol Association versus Brewin, that’s the case making its way through the Supreme Court. You’ll come across an amicus brief that might surprise you. It’s authored by a bunch of legal aid attorneys who’ve thrown their lot in with the Second Amendment types who want to loosen the rules around guns. Their argument goes like this restrictive licensing combined with the police force, it’s eager to charge black and brown people with weapons. Possession adds up to mass incarceration. They list off one sad story after another, like the story of Jasmine Phillips, who lawfully owned a gun in Texas but got prosecuted for unlicensed possession while visiting family in New York or the story of Sam Little. He survived a face slashing. But then he got prosecuted after he carried a gun to defend himself and his young son. Sharon Mitchell, a public defender in Chicago. He’s got a lot of stories like these.

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S2: You know, I see the people that were prosecute, right? I think about the young man that I defended who had a gun in his bag that was licensed in another state and he accidentally took it to a bar. And, you know, his life was over like that wound, right? Losses, job losses, housing. And, you know, we had to go to trial and that ruined his life. I think it is understandable to look very early on at this approach and say, of course, we should get people felonies for not possessing guns in the correct way. But when you really look at the results and you look at what’s actually happening on the ground, it’s tough to hold that same thought.

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S1: What would have happened to him if he was? White and somewhere rural in Illinois.

S2: Put your gun back in your car. Come back. That’s it. We ended up winning the jury trial. We still went to jail. Right. The jury looked at this is it. Hey, this was a mistake. I don’t think this is felonious conduct.

S1: But but they made him fight for it.

S2: He lost a lot, the system made him fight for it. And too often, mistakes or bad judgment is treated one way in one place. And another way, another place,

S1: Sharon wrote an article in support of the New York based defenders. He called it There’s no Second Amendment on the south side of Chicago. He says you can see the disparate impact of gun laws, not just in who gets ensnared by them, but where the enforcement occurs.

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S2: Origins is called U.W. Unlawful use of a weapon, and there are different types of yudof use. But the one type like the lowest level felony, the class for a felony. Thirty three percent of the charges statewide come from a living community in Chicago. Eleven communities, the entire state. You look at the UW numbers, the unlawful use of a weapon. You look at how is used in Chicago and how its use outside of Chicago. And you would think the guns only exist in Chicago and you would think guns only exist in a small number of communities, and that’s not correct. You know, one of the reasons why the story was that role is the Second Amendment doesn’t exist on the south side because in other areas of the state, that’s just not the way they approach that situation.

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S1: Sharone says the ironic thing about the selective enforcement of gun laws is that it’s precisely the people in communities who get crack down on who may have the most justified concern for their personal safety. For them, oftentimes owning a gun is part of a terrible downward spiral. Unsafe communities make people seek out weapons for self-protection. Then they get caught up in the justice system on a possession charge. Meanwhile, the police arresting them haven’t done very much to actually make these neighborhoods safer.

S2: If these are the communities where you see an uptick in violence, those seem to be the people who have a reason to carry. That’s not something I particularly would do. That’s not something that I do. I live on the south side of Chicago, but it’s understandable and I see it every day when I talk to our Chinese that people are scared. They turn on the news every single day and they hear a carjacking, robbery, murder, robbery, carjacking. And people are choosing to protect themselves. We had this assumption that making things a felony to bars people from performing that act and just having to convince them 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 license, that means people are going to care. I think what it means is that people aren’t going to carry the.

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S1: I agree with what you’re saying about the systemic harm that you’re seeing from possession laws. And I think you’re right that when these laws exist, it’s black and brown gun owners that get crack down on. But I can’t help but wondering if making it easier to have a firearm. We’ll keep people safer from physical harm from a gun.

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S2: I guess I get you, but I just reject the idea that we’re making it easier to own a firearm because that’s not the reality of what’s happening in my communities, even though we’re sending tons of people to prison. All right. People still have easy access to guns. And even though BP will take 12000 guns off of the city streets. There are 100000 guns that haven’t been discovered. So I think that’s that’s that’s my issue. One issue is. I agree with folks who support. The need for safety and want to use the government’s power to maintain safety. But that doesn’t mean I’m unwilling to be critical of the actual solution.

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S1: You’re saying we can’t be safe because the zone is flooded with guns, and so that’s like problem one.

S2: And that the solution that we’re offering. And I’m talking about my community right now, I’m talking about my, my community and the clients that I see with neighbors eyes. I don’t think the current scheme makes it hard to get grants. It makes it harder to legally possess a gun. That’s true. But in the end, if somebody decides somebody just got shot in front of my house or every time I watch the news, I’m getting beaten over the head that I live in a hellscape. Well, I’m going to possess a gun, whether the government tells me I can or not. And the question is, how do we respond to that? Again, I just think the way we’re doing it in a way that is very targeted on a particular type of people who live in a particular type of place and people who the numbers suggest they’re not going to harm anybody are being thrown into prison and be given these felony background. They’re going to follow them forever. You know, 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 possession. There is for kidnapping more than arson or burglary or DUI or forgery or vehicular hijacking or arson or retail theft. This is really becoming kind of the new war on drugs where there is a real problem. Right? But our solution to the problem doesn’t actually fix the problem. In fact, it creates way more problems.

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S1: I want to talk about your analogy to the war on drugs, because I think it’s really interesting, but I also feel like there’s a place it breaks down for me where when I think about possession of guns versus, say, possession of heroin, the difference to me. Is that? There’s very little chance that your opioid is going to accidentally discharge on the street and kill someone. You don’t use a drug to defend yourself or to hurt someone else. It’s like a self-directed harm,

S2: so you can only kill yourself with drugs.

S1: It’s just endangering other people to carry a gun in a different kind of way.

S2: Yeah, I think you’re right. I mean, I think that is drugs and guns aren’t the same. I think market prices is what we’re seeing is identification of a problem and a solution offered that has very little success at fixing the problem. And it is something that’s really it’s exploded, you know, from 2014 to 2019. Emissions to ideals, the Illinois Department of Corrections gun possession went up twenty seven percent. Everything else went down 38 percent. Right. Gross were down. Crime was down as a result, more worsening. Less people to prison. But at that same time, the only offense that was going up was gun possession.

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S1: Did it have any impact on, say, the murder rate or suicide rate?

S2: Yeah. And that’s and see, that’s the thing, right? Despite every single year increasing the amount of people that we put in prison or covering guns, the murder rate continues to go up. And that’s because people are scared. So my solution isn’t like we should turn a blind eye to gun violence and let what happens happens. You know, I think I’m saying, should we be giving people felonies for this? Should we be only enforcing this law in certain communities? And should we be thinking about solutions that are much more proactive than actually identify folks or at risk of harm or risk of being shot and actually give them what they need to keep community safe?

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S4: We’ll be right back.

S1: I wonder if you think at all about the strange bedfellows, especially in the Supreme Court case, where there was an amicus brief filed by the Bronx defenders and others talking about their clients and how, you know, they are denied access to guns that they want, but they’re teaming up in this case with the kinds of litigants who. Otherwise might not have their best interests at heart. How do you think about that? Like, do you worry that? The black and brown people who agree with this argument that’s being made at the Supreme Court are being used.

S2: No, I don’t worry about that. I worry about the safety of our communities. I worry about the people that I represent, whose lives are being derailed by this scheme. I worry about the people who are victims and the families who are victims of gun violence. The strange bedfellows argument. It’s a complicated issue. I think that often we try to look at issues. With red and blue glasses. And we tried to figure out, is this, you know, what side is, is the conservative side, what side? The liberal side? And where do you fit? But there are just some issues that are so complicated that it’s not. And while I acknowledge that there are going to be people who hold different political views to me that may be on the same side of our fellow defenders, I believe that we’re on the right side. And are there other people that choose to be on that side as well? Then that’s what they’ve chosen to believe

S1: and notice that Chicago came up in the oral arguments. Yeah. I mean, Justice Elena Kagan called it the world’s worst place when it came to gun violence.

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S2: Yeah, and I think I would also, you know, I think it’s the world. It has one of the world’s worst strategies when it comes to gun violence. Ninety five and ninety four, ninety six percent of the money that we spend here in the region is focused on responses to gun violence, right? So police, prosecutors, defense attorneys, sheriffs, people that show up after the arm. Right. And four to six percent of the spending goes toward prevention. Right. It goes toward actually stopping the harm or trying to stop the harm before it happens. You know, we have models. We have examples of actually reducing violence in a nontraditional way. But we’re so enamored with this traditional idea of rounding people up, scene that they have guns, putting them in prison, putting them on probation, taking their guns away. And we’re just addicted to this idea that it’s going to do something. And again, we go after week after week after week, we see its failures. Hmm.

S1: In your ideal world, what is the legal framework around guns look like?

S2: I think it’s a framework that doesn’t include the criminal system. This idea that we criminalize possession of guns. I just don’t think it’s a working model. I think when somebody presents to the justice system, especially young people in communities that are experiencing high levels of violence, I just don’t think that putting them in prison. Is it effective response to that risk? We’ve seen models, interrupter models, violence prevention models where people are identified to be at the highest level for shooting or being shot. They’re paired with people that can be a positive technology. They’re giving the counseling they need to make rational decisions, and they are offered opportunities for real economic future. You know, I feel like that approach is a much more approach than indiscriminately sending people to prison and hoping it gets better when it hasn’t gotten better for years after years of four years. You know, as a person who was on the south side who are in communities that suffer from harm. I want people to be held accountable for harm. But more important, more important than that is what the harm to stop happening. So I’m willing to just settle for, oh, we’re holding people accountable if it’s actually not keeping us safer.

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S1: Can I tell you my fear when we start talking about loosening the rules around guns? My fear is what just happened in Kenosha with Kyle Rittenhouse, where you have a teenager who wants to carry a gun wants to defend property. Goes out into the world. Other people have guns. And the jury essentially seems to have said, well, everyone had guns, so it’s hard to tell really who is the aggressor. And I worry that we’re setting ourselves up for much more of that, if we’re loosening the restrictions around who can have guns and where they can take them.

S2: I don’t fully understand us looking at the Rittenhouse case and trying to draw deeper conclusions about it. But the sad reality of the situation is that the vast majority of cases do not include a 17 year old white teen going to a protest and deciding he wants to play cop for day. And I think there’s a real danger in taking a case like that and drawing conclusions of the whole legal system, because that’s is such an outlier. Yeah.

S1: The Supreme Court seems to have a pretty good chance of taking the side of the gun and rifle folks in this case. But I wonder what’s going to change in Chicago, if anything, if this case succeeds?

S2: You know, I think we’ll have to see what the ruling is. Well, my hope is, is that we start to pull away a little bit from these traditional approaches that have not kept us safe, that we really think about these violence interrupter models that really identify folks who are in trouble and try to resolve the situation. Because for me, the thing that I feel I think most strongly about is I see folks that are in trouble, right? In the system is not giving anything but more bad. Sticking somebody in prison for two, three, four years, putting them on probation and then sending them right back to the same communities that they’re in danger is doing nothing to fix the problem. And we spend a fraction of our dollars on some of those interventions to actually get at the solution. So I’m hoping that something will happen, that some people will see as drastic that we would take the time to be like, OK, we’ve got to redo this thing. What is the best way to spend our limited dollars, not just to see politically cuts, but actually provide safety for those that are literally under the gun?

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S1: Sharon, thank you so much for making the time to speak with me.

S2: Thank you so much, and it’s a really great conversation. I know these conversations are incredibly difficult, so if you are not all the way there with me, I completely understand. But I appreciate you giving me the opportunity to speak of peace.

S1: Sharon Mitchell Jr. is the chief defender for the Cook County public defenders, and that’s the show. What next is produced by Danielle Hewitt Mary Wilson, Elaina Schwartz, Carmel Delshad, and for this one, last time we’re produced by Davis Land. He is heading off to do a great new project all his own. We are so excited to see what he does next, and we’re so grateful for the time he worked with us. We’re led by Alison Benedict and Alicia Montgomery. Then I’m Mary Harris. If you want to see what I ate over Thanksgiving, you can follow me on Twitter. I’m at Mary’s desk. I hope you have a great holiday. Thank you for listening. I’ll catch you back here on the other side of the weekend.