A Capitol Police patrol car parked on Capitol Hill in Washington, D.C.
A Capitol Police patrol car parked on Capitol Hill in Washington, D.C. / Stephen Gutowski

Analysis: How Strict Enforcement of Strict Gun Laws Begets Discrimination [Member Exclusive]

Washinton, DC, has been accused of using unconstitutional and discriminatory tactics to enforce its gun laws.

Last week, a federal judge ruled a class-action suit against city officials over alleged targeting of Black men in poorer sections of the city for unwarranted scrutiny can move forward. The lawsuit claims police would use pre-texts to stop the men without probable cause to believe they’d committed a crime and then search them without permission or a warrant. This was all done in pursuit of getting guns off the street.

It’s a familiar story. Infamously, Michael Bloomberg instituted an even more aggressive version of this “stop and frisk” strategy during his time as New York City mayor. At least until it was ruled unconstitutional for targeting minorities. The scandal surrounding Baltimore, Maryland’s Gun Trace Taskforce reached new lows using similar methods, combined with outright corruption, in their own pursuit of racking up gun seizures.

But these enforcement schemes all have something in common beyond a blatant disregard for the Fourth Amendment rights of their victims: they’re the result of gun laws that are nearly impossible for many to actually comply with.

And that’s no coincidence. It’s the intended design of many of the laws in question. But it’s also the part of the story that often goes unexamined.

Understandably, a lot has been made about the uneven nature of enforcement in these situations. However, there is little discussion of how the strict gun laws being enforced create incentives for unfair enforcement, often against people who aren’t actually dangerous.

Take the gun-carry laws of Baltimore and New York when “stop and frisk” and the Gun Trace Taskforce were at their height. Both had particularly onerous “may-issue” permitting laws. That meant it was nearly impossible for anyone who wasn’t wealthy or connected enough to obtain a permit to legally carry a gun since officials could, and almost always did, reject applicants for any reason they saw fit.

So, most normal people couldn’t legally carry a gun on them.

At the same time, officials and police want to reduce gun crime. So, they focus resources on low-income neighborhoods where gun crimes happen most.

Naturally, residents of those areas are often highly-motivated to carry a gun for their protection. But, since it’s impossible to do so legally, many choose to do so illegally.

Inevitably, these competing incentives result in the arrests of many people who may not be dangerous. When combined with a view from officials that anyone with a gun was a potential threat to the community, which was often the case, the ends for getting any and all firearms “off the streets” are viewed as justifying the means by which that’s accomplished.

This all remains true even in DC, where the courts have forced them to adopt a “shall issue” permitting regime. Because even though officials can’t reject applicants for any reason they want anymore, the city has adopted an application process that costs hundreds of dollars and takes upwards of six months to complete. And it combined that with a mountain of restrictions on where you can carry, including a prohibition on all public transit.

The result is a process that is possible to complete but highly impractical for those same residents who live in low-income, high-crime sections of the city.

Of course, due to factors stretching back generations, those areas are generally minority neighborhoods. Thus, even though officials and officers–many of whom are themselves minorities–aren’t trying to enforce laws in a racially discriminatory way, that’s the result regardless. And, as New York public defenders argued in Bruen, it means that many urban minorities routinely have their Second Amendment rights violated.

In fact, DC’s current permitting system may make enforcement even more inequitable. At least before it was nearly impossible for anyone to get a permit. Now, the onerous but completable process makes it more likely that affluent applicants will have the time, money, and mobility to get approved. Their less-affluent neighbors are less likely to do so.

That means areas of the city where people are illegally carrying a gun, whether to further a criminal act or just to protect themselves without first obtaining a permit, will skew even more toward poor, minority neighborhoods. Ensuring police prioritize protecting the Fourth Amendment rights of all city residents will go a long way to offsetting that outcome. But it probably won’t solve the problem in the long term.

The reality is that making it extremely difficult for law-abiding residents of any income level to legally defend themselves will always result in some people who aren’t a danger to the community.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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