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Crime & Gun Control

Outside the Box: More Guns for Gun Control?

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Outside the Box is a series of articles that proposes unconventional solutions to controversial topics. Their purpose is to attempt to reframe debates that have fallen into ideological ruts and dogmas.

Author’s note: I’m a gun owner, a hunter, and a firm supporter of the Second Amendment. I am also a human being, who deplores the needless death and suffering of children and their families. These should not be mutually incompatible positions.

Another article in the wake of another mass shooting: I feel like the Onion, publishing the same headline time after time and to no effect. But the Las Vegas massacre was spectacularly horrific: in just 9 minutes, the shooter managed to inflict carnage comparable to some small battles[1]. So here is another article discussing the need for gun control. Gun control advocates want to ban many types of weapons and accessories, but this approach to reduce the number of guns in private ownership has always been met by a solid wall of red state opposition, well-funded by the National Rifle Association. True to the unorthodox spirit of “Outside the Box”, I want to argue that gun control advocates have been going about it all wrong; the best way to achieve gun control goals might be to issue more guns. To follow this logic, we have to take a Bill & Ted’esque trip back to America’s post-colonial period.

At the time of the enactment of the Constitution, five of the original thirteen states already had provisions in their state constitutions for the right to keep and bear arms: Vermont (1777), Massachusetts (1780), Pennsylvania (1776), Virginia (1776), North Carolina (1776). New York’s constitution (1777) contained no enunciated right to keep and bear arms, but did declare a positive duty to the state to arm and organize the militia and to citizens to form it and “be prepared to defend it”: thus implying at least a familiarity with arms, if not ownership. Kentucky entered the Union with such a provision in 1792, as did Ohio (1802), Tennessee (1796), Mississippi (1817), Missouri (1820) and Michigan (1835). Connecticut copied the wording of the Mississippi article in an amendment to their constitution in 1818; Maine became independent of Massachusetts in 1819 with this right protected.

Both the Federalist Papers and the Anti-Federalist publications assumed that the public would, of a right, be armed. The Anti-Federalists feared that the new Constitution granted too much power to the new Federal government, especially the power to form a standing army like that of the hated King George. Patrick Henry, in typically dramatic Patrick Henry fashion, argued that freedom was won and would be maintained only by force of arms; that an armed citizenry was not only the necessary and proper shield against foreign invasion, but also the indispensable guardian against domestic tyranny. At that time, gun ownership was so prevalent that the Second Amendment almost didn’t make it into the Bill of Rights – no one thought it was really needed, the right being so self-evident.

It is nonetheless a myth that gun control efforts are a modern phenomenon. Already in the 1830’s writers like Alexis de Tocqueville, Richard Hildreth and H.A. Boardmen[2] had noted the unusual prevalence of arms among Americans: “among young men a Bowie-knife was a universal, and a pistol a not at all unusual, companion.”[3] Travelers to the South noted the frequency of duels of honor among the “genteel society” while poorer Southerners were less circumspect in their violence. Homicide was not confined to the Southern States: Boardmen commented on that “carrying deadly weapons, and avenging affronts, real or imaginary, with instant death” had become a common practice in the cities of the Northeast as well. Whereas the Revolutionary Minute Men had rushed out with their rifled muskets, used principally for hunting, the new generation of Americans were turning to concealable weapons like pocket pistols and sword canes. This caused a growing concern among citizens and legislators of the young Republic. A number of states attempted to pass ordinances against concealed carry of deadly weapons[4]:

  • In 1813, Kentucky passed a law prohibiting anyone but travelers from carrying “a pocket pistol, dirk, large knife, or sword in a cane;”
  • Also in 1813, Louisiana passed an act against carrying concealed weapons and going armed in public places;
  • Between 1813 and 1859, four more states attempted to limit the carry of concealed weapons: Georgia, Virginia, Alabama and Ohio.

All these legislative efforts were never so encompassing as what we would today call a “ban”, they nevertheless attempted to restrict the type of weapons that could be carried in certain situations and certain locations. These gun “restrictions” fell afoul of legal challenges, but with a mixed judicial result: Bliss v. Commonwealth in 1822 struck down the Kentucky ordinance as being too restrictive of the individual’s right to carry weapons. But subsequent court rulings were more favorable to certain types of regulation: State of Indiana v. Mitchell and State of Alabama v. Reid both found for the plaintiff, allowing that the constitutional protection was certainly directed at those weapons apt for militia usage (long guns) but that the state could regulate other types of weapons that had little or no military purpose, long knives and handguns. This interpretation was further strengthened by similar judgements in the cases of Aymette v. State of Tennessee and State of Arkansas v. Buzzard. So just before the Civil War, the courts were in broad agreement that long guns, useful for militia service and the common defense, were strongly protected as was the right to carry them openly; whereas excluded from constitutional protection were “those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and assassin,”[5] i.e. handguns and long knives not of common military use.

As long as you were a white man.

This was made evident at the end of the Civil War. The passage of the 13th, 14th and 15th amendments[6] during the war and Reconstruction, made it plain to defeated Southerners that the Yankees were serious about giving their ex-slaves full political rights. That included the right to bear arms; and while the slaves were now free, the old fear of servile insurrection was easily transformed into fears of free blacks seeking revenge against their old masters, or the white race in general, not to mention the old bugbear of black men lusting after white women. Southerners imagined a hundred Nat Turner’s ready to spring up behind every fence and field, if they were given access to guns.  If anything, the elimination of slavery in 1865 gave a new impetus to gun control legislation in old Dixie.

The initial response was for state legislatures to simply update the old antebellum Black Codes with their discriminatory and unconstitutional prohibitions against freed blacks. These freedmen had been legally denied constitutional protections over free speech, peaceful assembly, ownership of firearms, even the right to testify in court against a white person. Mississippi was the first to attempt this legislative solution in 1865, followed by South Carolina, Alabama and Louisiana. The rest of the Old South followed suit in 1866[7]. However, these new Black Codes met with a significant outcry in the Union, where the bitterness of the war was still strong. A radical Republican Congress was returned in 1866 and passed the Reconstruction Acts, placing much of the South under Union Army occupation as well as the 1866 Civil Rights Act, over a presidential veto, establishing that all citizens were equally protected under the law. Thus military governors and the Freedmen’s Bureau were in a position to overturn the most blatantly discriminatory elements[8].

The South responded by introducing firearms limitations and requirements which were ostensibly of equal application to whites and blacks. Suddenly, states which had allowed open and concealed carry of firearms before the war began to prohibit it without a license from local law enforcement. As can be imagined, that license was never forthcoming for a freed black. In Kentucky – a state which had never seceded and which enjoyed wide latitude from the Federal government – the state passed a prohibition against hunting on Sunday; that being the one day off that freedmen were legally allowed to have. White hunters had no trouble exercising their sport during any day of the week, including the Sabbath. States also passed laws preventing criminals from owning firearms: this measure exploited their draconian vagrancy laws, which allowed authorities to fine and lease out any freed person who did not have a recognized work contract with a white person. By utilizing local authorities to apply discriminatory outcomes which were difficult to track in an era when communications were slow and statistics in their infancy, Southern legislators were able to establish a de facto re-enslavement of negroes despite the initial efforts of Reconstruction and the Freedmen’s Bureau[9].

The legacy of this brutal racism and the farcical “Separate but Equal” doctrines remain evident today. The Jim Crow laws were only formally rescinded in 1965 after a century of their application; anti-miscegenation laws were not declared unconstitutional for another two years[10]. Yet racial discrimination remains a defining feature of American law, society and politics; nothing in this country can be understood without looking through that lens.

Gun violence: Three Americas

Many people talk about “gun violence” but they mean very different things. When white people talk about gun violence, they are mostly referring to sporadic mass shooting, especially those that claim a large number of victims: Aurora, Sandy Hook, Charleston, Las Vegas. When African Americans and Hispanics talk about gun violence, they mean the endemic, daily murderousness of narcotics turf wars, gang wars, and revenge killings. They might as well be talking about three different countries. In relation to the gun homicide rate, white people live in a country that is only slightly more violent than Belgium; Hispanics live in Yemen (before the civil war) while African Americans live in the favelas of Brazil or in Mexico. If the white community faced the same gun homicide rate as the African American community does every day, you’d see sweeping arms control regulations pass Congress in less than 48 hours.

Gun ownership: predominantly white and male

If gun violence is a mostly black phenomenon – except for the occasional mass shooting spree in the white community – then gun ownership is a mostly white one. White and male: about half of this demographic said they owned a gun in a recent Pew survey, compared to a quarter of white women and non-white men, and only 16% of non-white women. “Self-defense” tops the list of reasons for gun ownership at 67% of respondents despite the fact that crime rates in America have fallen tremendously in the past 30 years: while the political imagery used today may not be as crude as the South’s “big ol’ buck niggra” coming for the white ladies, the face of crime in America remains black. President George H.W. Bush ran his 1988 Presidential campaign on the accusation that his opponent, Governor Dukakis, was soft on a black rapist. He won overwhelmingly.

The above estimation of firearms ownership by race actually understates the preponderance of white ownership. It assumes that each household owns the same number of guns on average; but it is  well-known that there is a small minority of “super-owners” who have on average 17 guns apiece, and they are overwhelmingly white males. Thus the actual ownership rate is closer to 95%+ of firearms in white (largely male) hands.

The New “Jim Crow” Era

Civil rights activist Michelle Alexander has argued that the “war on drugs” had a discriminatory impact similar to the vagrancy laws of the Jim Crow era. This disproportionality manifests itself in many ways, but the impact on African American communities has been and remains devastating. In any category of law enforcement and justice system outcomes measured, African Americans – most especially males – face a statistically significant bias against them.

  • African Americans are incarcerated at a rate five times higher than white males[11];
  • African Americans convicted of felonies are also disenfranchised at a rate four times higher than non-African Americans convicted of similar felonies at a national level. Nearly 8% of the adult African American population in the United States was disenfranchised as of 2012[12];
  • In Florida, Kentucky and Virginia the rate of disenfranchisement is above 20%[13];
  • African American drivers are stopped at a rate three times higher than white Americans[14];
  • Unarmed African Americans are shot and killed by police at a rate two times higher than white Americans[15];
  • African Americans are excluded from jury duty at a rate two times higher than all other ethnic groups[16];
  • African Americans convicted of the same crime as white Americans receive sentences that are on average 10% longer, even after controlling for relevant factors such as criminal history, severity of crime, arresting agency, judge’s sentencing history…[17]

The result of this bias in outcomes is remarkably similar to the impact of the old Jim Crow vagrancy laws: African Americans could be selectively targeted by authorities who were superficially treating both races in an equal manner. This led to a century of economic enserfment resembling slavery as well as instilling a climate of such effective fear and terror that blacks were almost completely disenfranchised through that 100 year period[18]. Although the situation today is not so blatant or so dire, the African American community lives in situation of legal and economic precariousness leading to political marginalization and practical disenfranchisement of millions of its members. This is the price that is paid for being black in America.

American demographics are moving toward a non-Caucasian majority. Non-Hispanic whites will remain the single largest racial grouping, but sometime between 2040 and 2045 they will cease to be a majority in this country. The growth of income and wealth inequality exacerbates the fear and disquiet of middle class and blue collar whites who face an increasingly uncertain and even insurmountable struggle to maintain themselves, much less progress up the social ladder. It doesn’t matter that Hispanic and Black Americans are even worse off: the imagined threat from the bottom is still viewed as more dangerous than the concentration of wealth at the top.

A Question of Distribution

Which brings us back to the original hypothesis: perhaps our gun problem is not one of absolute numbers, but of distribution. What if the African American community were as heavily armed as the white community? What if African Americans practiced open carry with the same eagerness as white supporters of these laws? What if another 8 million AR-15 rifles were made available to eligible black households through Federal auctions of seized firearms? Would this change attitudes towards gun ownership, open carry and stand your ground laws?

It is impossible to say with certainty, but two anecdotes might provide some illumination on the legislative response.

  • In 1966, in response to accusations of rampant police violence against Oakland’s African American community, the Black Panthers organized armed patrols of black neighborhoods. Within weeks, Republican assemblyman Don Mulford introduced a bill that bore his name which would repeal the right to open carry in the state of California. It received substantial bipartisan support as well as the endorsement of the NRA and was signed into law by Governor Ronald Reagan in July 1967. The Governor said he saw “no reason why on the street today a citizen should be carrying loaded weapons;”
  • In July 2016, the New Black Panther Party announced that it planned to carry firearms at the upcoming Republican National Convention in Cleveland. Ohio is an open carry state; but within days, the Governor of the state, the Secret Service[19] and the Cleveland city fathers had all emphasized that no firearms would be allowed anywhere near the convention.

Would more guns equal more gun control? Probably not; but eliminating the roots of racial injustice, providing a better social safety net, reducing the monumental disparities in income, wealth and opportunity might reduce much of the fear and hatred that are tearing us apart. And the need for sensible, common sense gun control will remain unaddressed until the next tragedy.


Sources and Notes

[1] The famous Battle of Trenton in 1776, which arguably kept the American Revolution from falling apart that Winter, had a casualty count of 24 killed and 88 wounded on both sides. The bloodier Battle of Princeton had approximately 100 killed and 105 wounded. Las Vegas saw 58 killed and over 500 wounded (I don’t – ever – count the shooter).

[2] Saul Cornell, “The Early American Origins of the Modern Gun Control Debate: The Right to Bear Arms, Firearms Regulation and the Lessons of History,” Stanford Law & Policy Review, Stanford Law School, June 2006

[3] Frederick Law Olmsted, “A Journey through Texas; or a Saddle-Trip on the Southwestern Frontier”,

1857

[4] See note 2 above

[5] Aymette

[6] 1865, 1866 and 1869

[7] Clayton Cramer, “The Racist Roots of Gun Control,” Kansas Journal of Law and Public Policy, 1995

[8] Joseph Ranney, “In the Wake of Slavery: Civil War, Civil Rights and the Reconstruction of Southern Law,” Greenwood Publishing Inc., 2006

[9] Which only lasted until the Compromise of 1877 and which were waning even before then as the North faced increasing “occupation fatigue”.

[10] Loving v. Virginia (1967)

[11] U.S. Bureau of Justice Statistics

[12] Christopher Uggen, Sarah Shannon, Jeff Manza, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010” The Sentencing Project, May 2012

[13] Ibid

[14] The Washington Post

[15] See note 11

[16] Barbara O’Brien, Catherine M. Grosso, “Report on Jury Selection Study,” 2011

[17] Sonja B. Starr, M. Marit Rehavi, “Racial Disparity in Federal Criminal Charging and its Sentencing Consequences,” Working Paper No. 12-002, University of Michigan Law School, 7 May 2012

[18] The experience of Louisiana was not uncommon. From an African American electoral roll of 130,334 in 1896, the white-dominated state legislature passed so many voter suppression laws that within four years only 5,320 African Americans remained on the rolls. By 1910, only 730 were registered to vote, less than 0.5% of the eligible African American population. Richard H. Pildes, “Democracy, Anti-Democracy, and the Canon”, 2000

[19] Of course, the Secret Service does have the statutory authority to restrict the presence of people with firearms in areas deemed sensitive.

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