Monday, July 11, 2016

When Guns Aren't Outlawed

by Michael Dorf

According to a familiar gun-rights slogan, “when guns are outlawed, only outlaws will have guns.” The slogan is literally true. By definition people who possess guns in violation of the law are criminals. The power of the slogan, however, comes from the fact that such people are criminals not only because they are in violation of the law forbidding gun possession, but also because the sort of person who is willing to possess a gun in violation of the law is also likely to be willing to violate the law in other ways. He is inclined to commit other crimes, aided by his gun. Worse, because law-abiding citizens are unarmed in the world in which guns are outlawed, the gun-toting criminal is more likely to succeed in his various felonious acts because he need only evade the police. Ordinary unarmed civilians are no match for him.

But there is a flip side to the guns/outlaws slogan. It might go like this: “When guns aren’t outlawed, outlaws blend in with ordinary citizens.” As states and localities increasingly allow open carry of firearms in public, it becomes increasingly difficult to detect and apprehend people with felonious intent.

Three sorts of harms may follow. First, law-abiding civilians and police may let down their guard. In a jurisdiction that forbids open-carry, a civilian or police officer who sees someone carrying a firearm has reason to be suspicious and alert. By contrast, in jurisdictions that permit open carry, presumably the mere carrying of a weapon in public does not give rise to the sort of suspicion that police need to stop someone. As a result, a criminal in such a jurisdiction can get a crucial head start. Even a few seconds can be critical, even if, say, the cashier at the convenience store is himself armed.

Second, because of the first dynamic, widespread open-carry will tend to lead to deadly escalation. The cashier who sees the customer with a pistol on his hip or a rifle over his shoulder may think to himself: “He could be a law-abiding citizen just exercising his right to open carry, but he could be planning to hold me at gunpoint while I empty the cash register for him. I better not take any chances. I’ll draw my gun first.” As a segment on The Daily Show illustrated, in a so-called active-shooter scenario, it can be extremely difficult to distinguish between a “good guy with a gun” and a “bad guy with a gun.” Open-carry laws turn virtually every public encounter into just such a potential scenario.

Third, the tendency towards a shoot-first-ask-questions-later mentality that open-carry laws foster will have a strong racial bias. In the split second that legally armed civilians and police officers have to figure out whether the armed individual they see before them is a good or bad guy with a gun, they are likely to fall back on heuristics. Even well-trained police officers who are not conscious racists will likely act in response to implicit racial bias.

The horrific shooting of police officers in Dallas last week was almost even more horrific due to just this sort of dynamic. Before eventually confronting and killing the sniper who carried out the murders, the Dallas police tweeted a photo of Mark Hughes, seeking the public’s aid in apprehending him as a “suspect” in the shooting. It turned out, however, that Hughes was innocent. He had been marching in the peaceful Black Lives Matter protest, while carrying a rifle—as he was legally entitled to do under the Texas open-carry law. When the shooting occurred, Hughes—who is Black—quickly and on his own initiative surrendered his rifle to police for his own protection. After questioning, Hughes was completely cleared of suspicion, although he was apparently subject to horrible treatment on social media.

It could have gone substantially worse for Hughes. He is undoubtedly correct that he “could have easily been shot” had he not acted quickly to show that he was not a threat. Indeed, even having done so, he was at risk. Apparently Philando Castille, who was fatally shot by police in Falcon Heights, Minnesota during a traffic stop last week, notified the police officers that he was lawfully in possession of a firearm as just the sort of precaution that Hughes took, but they shot him anyway.

I recognize the possibility that additional facts could emerge about either of these incidents, but the basic phenomenon is undeniable. As a practical matter, in 2016 laws permitting people to carry firearms in public (whether openly, as in Texas, or concealed, as in Minnesota) permit white people to carry firearms. People of color—especially African American men—can take advantage of these laws only at their peril.


Shag from Brookline said...

Much has been written in the past few years on income inequality. Over at Balkinization in several threads I have tried to extend this discussion to 2nd A inequality, suggesting some assistance with an extension of Herbert Hoover's campaign slogan in 1928: "A car in every garage, a chicken in every pot and a military style automatic rifle in every home." I bring this up because of Mike's closing words:

"I recognize the possibility that additional facts could emerge about either of these incidents, but the basic phenomenon is undeniable. As a practical matter, in 2016 laws permitting people to carry firearms in public ( ... ) permit white people to carry firearms. People of color—especially African American men—can take advantage of these laws only at their peril."

Perhaps leveling the 2nd A "killing fields" might provide a MADD resolution even though one side may have more firepower than the other. To be clear, I am not advocating more 2nd A weaponry availability. I think Heller (5-4) was wrong. But it should be addressed on the basis of some semblance of equality.

Permit me to bring up the TX campus carry law. I have tried to prod Sandy Levinson on this at Balkinization for his views. I taught a non-controversial tax course in a graduate program in the 1970s, early '80s. I also recall the movie and TV "The Paper Chase" and the classroom methods of a law professor and the reactions of students. Constitutional law involves ideology, politics, controversy. With TX campus carry, what will be the impact on a law professor in particular in a ConLaw course? Expand the campus carry to more and more states. Expand carry to churches, public assemblies, legislatures, court rooms. That seems to be the goal of 2nd A absolutists.

Yes, Heller (5-4) and McDonald (also 5-4) have the dicta on 2nd A limitations. But some legislatures don't abide by some of the limitations, perhaps limiting the ability of the Court per the dicta under federalism principles. Heller (5-4) may be a haunting legacy for the late Justice Scalia.

Joe said...

First, the reference to "killing fields" brings to mind that the journalist Sydney Schanberg has recently died.

Second, personally, I think there is a right to own a gun in this country. But, this doesn't necessarily make Heller and McDonald correct. I think Justice Breyer's dissent in Heller, e.g., a way to go -- assume a right to own a firearm (something widely accepted over the years to the degree I think it's a fundamental right) but leave open more regulations and avoid the faux originalism (I rather Kennedy to have wrote the opinion).

The majority itself provided an incomplete advisory discussion of acceptable regulations. It also noted (a bit curiously given the purpose of a "militia") that the core of the individual right is ownership in the home. It also assumed concealed carry could be banned. But, open carry isn't exactly ideal (if anything, it very well seems worse). A question for the future is how much regulation, including in public, is allowed.

Finally, though Dallas police/community relations reportedly have been relatively positive, one a core issue here is distrust between the police and the community. I have long wondered if a "militia" approach would benefit things. Have a well representative militia, not a select group of police, in charge with keeping the peace especially in special occasions such as for protests (see reported problems in Baton Rouge). People from the community might help things here. At least, that was the idea behind the 2A.

Shag from Brookline said...


"It [Heller] also noted (a bit curiously given the purpose of a 'militia') that the core of the individual right is ownership in the home."

and others' curiosity may be explained in the papers of the Justices on Heller. Perhaps the majority was reached mainly for not going more broadly or absolute with the decision; why go beyond the minimum required by the facts in the case before the Court. There is no specific reference to an individual's right of self defense in the Constitution. But the majority determined that there was such an individual right relative to certain types of guns. Of course, a need for self defense is not limited to the home. If the majority had gone so far to base the individual right on self defense more broadly, like anywhere, the dicta might not have served its intended purpose. Heller was a significant change in interpreting/construing the 2nd A. Perhaps Scalia could not have held a majority in Heller with such a broad or absolute view. In any event, self defense evolved in common law and subsequently in statutory law but not in a uniform manner in all the states. Perhaps the law of self defense may continue to evolve. The Court has yet to grant cert - even before Scalia's demise - for a 2nd A case post-Heller, with states serving as laboratories regarding the extent to which the dicta is availed of. Congress might have the power to deal with dicta limitations but it's politically dysfunctional.

As to Joe's "militia" reference vis-a-vis the Dallas situation, there have been recent reports that private groups would like to re-establish militias with them as members. Wasn't there something like that in the past? Of course the members would be good guys with guns only.

Joe said...

My suggestion has a "republican" or "civic" view in mind, not private militias be it the Guardian Angels or people who hang out in the wilds of Idaho or something.

Shag from Brookline said...

I undertand your view. I was merely identifying recent efforts of some private militia groups to creep into the Constitution's concept of the militia clause and did not intend this as contesting your view. But may I assume your "well representative militia" would be "well regulated" per the militia clauses. Query: only the state or the feds as well be involved with your suggestion?

Shag from Brookline said...

CORRECTION: In my 8:48 AM comment yesterday, I had intended to reference MAD (Mutual Assured Destruction re: nuclear weapons) rather than MADD (Mothers Against Drunk Driving). Each has been effective in addressing their issues/challenges.

Shag from Brookline said...

Regarding my reference in an earlier comment to the TX campus carry law, I note at Daily Kos a post on a law suit by some UTX faculty seeking an injunction, and providing this quote:


The professors — Jennifer Lynn Glass, Lisa Moore and Mia Carter — are asking a federal judge to grant an injunction that would block the law before the first day of class. In the suit, professors say they teach courses that touch emotional issues like gay rights and abortion. The possibility of guns on campus could stifle class discussion, which is a violation of the First Amendment, the suit says.

"Compelling professors at a public university to allow, without any limitation or restriction, students to carry concealed guns in their classrooms chills their First Amendment rights to academic freedom," the lawsuit says.


Should there be dueling between the 1st and 2nd As?