How a SCOTUS Decision on Concealed Carry Could Undo 150 Years of Racism

For the first time in a decade, the Supreme Court has agreed to hear a major 2nd Amendment issue. In New York Rifle & Pistol Assoc. v. Corlett, the argument presented will be whether or not the State has the authority to issue permits, or curtail the right to bear arms outside of the home. This will have a significant impact on gun rights, perhaps even more than DC v Heller.

Permit-seeking citizens are required to prove two points: that they have a need for a firearm for self-defense, and that they are not a threat to the community. Few other essential rights in America receive such scrutiny, or place such a burden of proof on the citizen. 

The opponents of permit reform make odd bedfellows; law enforcement unions, worried mothers and parent groups, political insiders, and religious leaders. Even the National Rifle Association has supported infringements of civil rights. But few members of these groups understand the ugly history of permit laws, or the institutionalized prejudice they perpetuate. Wealthy elitists see an armed society not as an equitable state, but as a threat to their sovereignty. Like fines and poll taxes, permits create class-based barriers. Permits serve to reassure middle-class suburbanites at the expense of the safety of historically vulnerable communities.  

Carry Permits are a Jim Crow holdover

Immediately after the Civil War, many states implemented ‘Black Codes’ to restrict the rights of liberated freedmen. Chief among them were laws specifically intended to disarm and harass Black gun owners. Alabama passed the first race-based ban on firearms in 1866. Other southern states quickly followed suit. Lawmakers created tariffs to restrict the sale of affordable new firearms, and simultaneously banned Black civilians from owning military weapons– the ‘assault rifles’ of the era. Loopholes in language and phrasing left white landowners (many of them veterans with privately owned military arms) exempt from these restrictions.  

The Black Codes were overturned by the 14th Amendment, only to be replaced by legal fictions that preserved their function. Complex laws on open and concealed carry created a pretext for arresting minorities. Permits for the sale and carrying of firearms were not equitably issued to all citizens. Law enforcement turned a blind eye towards lynch mobs or even willfully assisted them by disarming Black communities (p. 289). The threat of violence tacitly permitted by the state had a chilling impact on African-Americans attending the polls well into the Civil Rights era.  

This overt racism reached urban centers, too. New York City passed the Sullivan Laws in 1911, requiring citizens to obtain police permission before owning a firearm. Permits were routinely denied to ‘unwelcome’ minorities. The 1934 National Firearm Act was drafted with the intent of curtailing Italian and Irish ownership of pistols. Laws such as California’s Mulford Act, the Illinois Firearm Owner ID Program, the Federal Gun Control Act of 1968 and even ‘Stop and Frisk’ were created with implicit intentions of enforcing gun control against armed minority groups– particularly those protesting for social reform. .

“May Issue” versus “Shall Issue”

‘Shall Issue’ requires that a permit be issued to a citizen unless the government can prove the applicant is a risk to themselves or others. A state that ‘May Issue’ a permit leaves this entirely to the discretion of a sheriff or chief of police. Applicants are placed under close scrutiny with vague qualifiers such as ‘not convicted of serious offense’ or ‘good moral character’. New York State’s intrusive review process requires character witnesses, employment records, proof of ID, and disclosure of mental health history.         
This is problematic for people who are unwilling to disclose intimate details of their personal life. For many citizens, ’serious crimes’ is a laughably broad term. The complex patchwork of city, state, and Federal laws makes it possible to commit several felonies every day (and as Shaneen Allen found, wholly inadvertently). Even databases can be abused. Police in Pennsylvania and Hawaii cross-referenced their registry of medical marijuana users with concealed weapons licensees. Mass mailers went out ordering citizens to surrender their weapons or medicine, or face criminal charges.

These patchwork regulations have let ‘May Issue’ states effectively disarm their citizens. In New York City, permits are so rare that they are more status symbol than community safety measure. The system is rife with corruption. Of the 8.5 million residents, there are only about 4,000 permits issued. The majority of permit holders are retired law enforcement, security guards, government officials, and celebrities. Los Angeles County goes one step further; in one of the densest metropolitan areas in America, only 50-60 people are permitted to carry a firearm for self-defense.

This discrimination has prompted activists to call for the end of permit systems in favor of Constitutional Carry. Activists contend that owning and carrying a firearm is an essential human right.  They argue that criminals ignore permits, and responsible citizens are not obliged to purchase their rights back from the state. If there is no need for a permit, there is no need for law enforcement review. If there is no law enforcement review, there is no opportunity for infringement.

Articulable Need for Protection

Some lawmakers who were unwilling to dismantle the permit system tried to objectively define who ‘needs’ a firearm. This helped address the racial inequity but created significant new hurdles as the definition of ‘need’ was narrowed down. Affluence and fame have become the most prominent justifications, and an attorney is often needed to help navigate the dizzyingly complex application process. For blue-collar workers, a permit will only be issued if there is a credible and documented possibility of serious injury. Threats, and even actual violence, do not always rise to this standard.      

The wait time in Maryland can take up to ninety days to approve. For regular citizens, the significant delays in obtaining a permit can have lethal consequences. There is limited evidence that waiting periods for picking up a firearm could reduce suicides and homicides for first-time gun buyers. Carol Bowne was stabbed to death by a deranged ex-boyfriend while she was waiting for New Jersey to approve her licenses. This is another example of the individual’s immediate risk of victimization being overshadowed by a hypothetical instance involving someone else. Perhaps if she had been a New York billionaire, an actor, or  a musician, she could have afforded a professional fixer to expedite the process.  

One group that has been particularly disenfranchised by these standards of need is the LGBTQ+ communities. These citizens are at significantly higher risk of both targeted and random violence than most other communities. This is more problematic in states with strict gun laws. Articulating an ‘immediate threat’ requires a great deal of personal disclosure. In order to justify their permit to the state, queer gun owners have to out themselves, their medical history, their friends or family, or their neighbors as part of the fact-finding process.

More Gun Control = More Law Enforcement

There is currently a very vocal nationwide discussion about the role law enforcement plays in community policing and public safety.

Overlooked by many gun control advocates is the impact of enforcing new gun laws in minority communities. Enforcement requires more funding, more officers, and more prison services. More laws means more uniformed personnel and more potentially hostile encounters with them. Gated hillside communities will not see the same level of enforcement as the urban sprawl. These procedures continue to grow the size and scope of the police state. Gun control groups fail to see the hypocrisy of demanding fewer cops on the street while also insisting on more laws and heavier policing.  

In cities with large drawdowns of police authority, safety becomes the responsibility of the individual. Police response to major crimes average around ten minutes nationwide. During riots and disasters they may not respond to crimes at all. As self-defense instructors are fond of saying, ‘There’s no one coming to save you’. Citizens in these circumstances are either forced to submit to criminals who readily flout the law, or must become criminals themselves for the sake of their own safe-keeping. Lawmakers sincerely concerned for their constituents must ensure  citizens have no barriers to their tools for self-defense.

Permits, And The Path of Good Intentions

Civil authorities and elected officials insist that permits are a necessary tool for regulating gun ownership. But there is little evidence that concealed permits reduce crime or injury in any way. Firearms offenses by permitted carriers are literally one-in-a-million events, even less frequent than law enforcement. Permits do put a significant burden on people facing financial hardship. Even just the act of lawfully carrying a firearm can lead to negative outcomes. Convoluted and overlapping laws make gun ownership a perilous choice even for citizens making all earnest efforts to comply.

In New York, California, and Maryland, the actual cost of complying with the permitting process can exceed $500 (not to mention lost days of work and travel for the mandatory 16 hours of training). This red tape leads to unacceptable delays that put survivors of violence at great risk. Much like a poll tax, these absurdly high fees gatekeep a basic civil liberty on the basis of wealth and influence.

Permits curtail an essential human right: to keep and bear arms. The permit system is ineffective; it puts individuals at risk; it is racist and classist; it creates tools for suppression and steals revenue from underpaid workers. But above all else, permits treat the safety of the individual in America as a privilege, not a right. Such systems make it clear that blue-collar workers and minority groups must give up their right to personal security for the hypothetical well-being of their affluent neighbors– even if those gated communities fail to protect urban citizens from lawless criminals.