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.