Striking a Balance

The United States has a horrifying record of gun violence. Its gun homicide rates are 25 times higher than those of comparable countries. Home to only 5% of the world's population, the U.S. has suffered 31% of all mass shootings since 1966. U.S. rates of gun death are around 3.85 per 100,000 people—in striking contrast with the United Kingdom, which experiences only .07 gun deaths per 100,000 people. This alarming data leads us to the unavoidable conclusion that America's gun violence problem is directly linked to its culture of legalized gun ownership, a culture which is virtually nonexistent in the rest of the developed world—the UK has 6.2 guns per 100 people; the US has 88.8.

For decades, conventional wisdom has held that gun control legislation was impossible; the National Rifle Association (NRA) and its allies were considered too powerful to combat, and gun control sentiment too weak to merit broad support. But recently this has begun to change. Gun regulation has moved to the top of the agenda for the Democratic party and the broader Left coalition. Over the last few years, and especially since the Parkland shooting in February, Democrats have been calling with increasing urgency for a ban on assault weapons, along with other measures intended to reduce gun violence. Survivors of the Parkland shooting have spoken out, and students have organized protests nationwide. Republicans and the NRA continue to oppose any significant legislation, but the conversation around guns, and perhaps the political possibilities of gun control, certainly seem to have shifted.

Unfortunately, there are some ways in which the gun control debate has not changed. Gun control discussions are generally framed in terms of the right to own guns vs. the right to be safe from gun violence. Politicians and advocates focused on mass shootings rarely talk about the effects gun control legislation have in the policing of marginal communities. Yet many activists and researchers argue that gun laws have traditionally been used in much the same way as drug laws—to disproportionately harass and imprison poor people of color. Gun control in the United States is desperately needed to prevent incidents like the Parkland shooting and the daily gun violence that occurs in cities and towns throughout our country. But legislators and advocates need to consider policing issues when formulating gun policy, or how more gun control could potentially harm, rather than help, vulnerable communities.

Benjamin Levin, a law professor at Harvard, argues in a 2016 Fordham Law Review article that many of the left critiques of drug laws apply to gun laws as well. While left critics bemoan the lack of gun control laws, the truth is that there are numerous gun control laws in various jurisdictions. Many of these laws make it a crime for certain groups of people—like former felons—to possess guns. As Daniel Denvir, a journalist at the Fair Punishment Project told me, "the gun control regime that currently exists, is not one that limits the production or distribution of guns. What it does is criminalize the possession of guns by people with criminal records who are disproportionately black and poor."

There hasn't been as much research into the effects of gun laws as there has with drug laws, and the NRA's intense political pressure is largely to blame for that. Still, Levin's article presents a wealth of evidence to suggest that gun laws do in fact have a disproportionate impact on people of color. FBI crime statistics show that in 2004, 55 percent of people convicted of weapons crimes in state courts were black, which is even higher than drug offenses (where 46 percent of those convicted were black). New York City statistics were further skewed. In 2012, 73.2 percent of people arrested for weapons charges in the city were black, 21.5 percent were Hispanic, and only 4.2 percent were non-Hispanic white.

Laws which criminalize gun possession, Levin points out, can cause many of the same problems as laws which criminalize drug possession. There is no way to tell without a search whether someone is carrying contraband, so possession laws are de facto enforced by random searches to discourage people from carrying. These searches are often conducted without probable cause on marginalized people. Thus, gun control laws, like drug laws, end up essentially criminalizing specific minorities, who are viewed by the police and justice system as potential criminals because of their skin color. Gun control laws erode protections against unreasonable searches, and contribute to systemic discrimination and injustice.

Again in parallel to drug crimes, Levin points out that the prevalence of mandatory minimum sentencing for gun crimes gives prosecutors enormous power to coerce defendants into plea deals. The Federal Armed Career Criminal Act (ACCA), enacted in 1984, enforces a 15 year mandatory minimum sentence for those convicted of gun possession who have three prior felonies or serious drug offenses. Prosecutors can threaten to charge arrestees under the ACCA, and thus force them to accept longer state sentences via plea deals. The ACCA notably uses gun possession to prosecute people for drug crimes, and vice versa; gun control and drug laws are not just parallel—they reinforce each other.

"The tradeoff isn't a tradeoff between a right to have a gun and public safety," Levin told me. "The tradeoff is between safety and Fourth Amendment rights. We need to think about what sorts of practices are going to be required to enforce these gun laws, like stop-and-frisk and other policies."

The author and grassroots organizer Kelly Hayes of Lifted Voices Collective painted the issue in even starker terms. "We know these gun laws are unevenly applied," she told me. "People who are pushing for gun legislation are either uninformed about the racist implementation of gun laws—or worse, they don't care, or perhaps see the racist nature of the system as a back burner issue. Throwing black and brown people under the bus for the sake of a major political objective has always been a bipartisan affair."

Not only does criminalizing possession harm marginalized people, but it has been broadly ineffective—as ongoing gun violence in the U.S. demonstrates. "Criminalizing illegal gun possession among a subset of people who have been deemed criminals doesn't stop people from getting guns, because our country is already awash in guns," Denvir told me. "It's not hard to get a gun through a third party in this country precisely because there are so many guns, and no crackdown on straw purchases or illegal gun possession is going to really move the needle significantly on that."

Denvir emphasizes that he supports gun control. However, a fact he isn’t hesitant to address is that the failure of gun possession laws to restrain gun violence are especially felt in the same marginalized communities that bear the brunt of gun control policing. African-Americans comprise more than half of gun murder victims, even though they represent only 13% of the population. In Chicago between 2002 and 2012, there were more than 5,000 homicides—mostly concentrated in poor neighborhoods, even as crime rates in the rest of the city continued to fall.

So how can the U.S. reduce gun violence without targeting and harassing marginalized people? There are a number of approaches to gun control that are more promising than criminalizing possession.

Bans on manufacturers, Denvir says, would be more just, and more effective in reducing gun violence, than regulating gun possession has been. Banning assault weapons might reduce the death toll from mass shootings, but "moving beyond what's politically practical at present, I would love for there to be a handgun ban," Denvir told me. "Those kill a lot more people than assault weapons. But the emphasis has to be taken off of criminalizing illegal possession to curtailing distribution and production."

Another possible avenue for regulation, according to Levin, is tort law. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, a law which prevented lawsuits against the firearms industry when guns are used to commit crimes. Prior to 2005, a number of cities and municipalities had brought suits against gun manufacturers for facilitating distribution systems that led to illegal sales, and even for deceptive advertising suggesting that guns kept homeowners safe, despite overwhelming evidence to the contrary. If the law were to be repealed, cities and individuals could pursue these legal avenues again. Levin noted that even without the Lawful Commerce in Arms Act, winning judgments against gun manufacturers would be difficult. But being forced to defend against such suits could make gun manufacturers more careful with how they distribute and market their products.

While regulating gun manufacturers or allowing people to sue the manufacturers might help slow the proliferation of guns, Hayes argues that putting an end to the gun violence epidemic requires the alleviation of both economic inequality and social injustice throughout our society. "The best gun control I can imagine is the creation of a culture of care, wherein people aren't treated as disposable," Hayes says. "We all know where most violence is incubated and why. If we look at where we see far less violence—areas where violence is almost seen as unthinkable—we are talking about places where people's needs are met. If politicians admitted the real math, that social neglect breeds despair, and despair breeds violence, they would have to be accountable for the violence they facilitate by treating some groups as less worthy of the very basics of survival, or any sense of safety."

Gun control debates tend to center on spectacular violence perpetrated in places where violence is seen as incongruous or unusual. Shootings in white, well-off school districts draw a great deal of attention; violence in less affluent areas is less noticeable to the mainstream eye. But it's important to keep the less affluent areas firmly in mind when developing gun control policy. If we don't, we will get the worst of all worlds—more people dead because of gun violence, and more people of color harassed on the street or thrown in prison. Gun control is vital, but efforts needs to be focused on actually reducing gun violence, not on policing marginalized people and their communities.

Noah Berlatsky is a freelance journalist and author, his most recent book is Chattering Class War: Punching Pundits from Chait to Chapo and Brooks to Breitbart