Abstract

Excerpted From: Nicholas J. Johnson, The Modern Orthodoxy Is a Failed Experiment: Toward a Race Sensitive, Hard Look at Firearms Policy and the Black Community, 14 UC Irvine Law Review 1209 (October, 2024) (291 Footnotes) (Full Document)

This Article extends the work on firearms and the Black community through an expanded critique of Black allegiance to the progressive gun control agenda. In prior work, I argued that this “modern orthodoxy” is at odds with the longstanding justifications for Black distrust of the state. A trustworthy state that supplants the need for self-help is a core assumption of the gun control agenda that the modern orthodoxy endorses. My prior work focused on the historical case for Black distrust of the state and chronicled the corresponding Black tradition of arms. That work acknowledged that the modern orthodoxy might be explained by the argument that with growing Black access to political power “things have changed” enough to warrant the sort of trust in the state that the modern orthodoxy demands.

This Article expands the critique of the modern orthodoxy through an examination of contemporary gun law enforcement and the demonstrated limits of the gun control agenda. It argues that the “things have changed” argument does not hold up and that the modern orthodoxy is a failed experiment. Three themes drive the critique.

First, the case for distrust of the state is now bolstered by observations that much of modern gun regulation is infected by racist enforcement and open to the same types of criticisms leveled against the war on drugs and enforcement practices that fuel mass incarceration.

Second, the marginal efficacy of various gun regulations, many of which also impose substantial racial costs, counsels skepticism of those regulations rather than the reflexive support dictated by the modern orthodoxy.

Third, the expected payoff of the modern orthodoxy--that gun control would thwart crime in the Black community by banning crime guns--has not materialized. Moreover, developments over recent decades virtually guarantee that it will not materialize. Crime guns are and always have been mainly handguns. The gun control agenda explicitly aimed to ban them. But recent developments have eliminated the possibility of a handgun ban. The Supreme Court has declared handguns explicitly constitutionally protected and forty-four state constitutions bolster that protection. Lawful concealed carry of handguns is a practical and constitutional norm, and Americans have embraced handguns as a core category of the 450 million guns now in circulation.

This Article positions the critique of the modern orthodoxy within the broader criticism of bias in criminal law enforcement. Biased gun law enforcement is a subset of biased criminal law enforcement. But criticism of enforcement bias has been far less robust in the context of firearms regulation. This article deploys the emerging concept of Second Amendment Frame both to explain that disparity and to critique the modern orthodoxy.

The Second Amendment Frame blithely distills gun policy debates into blunt questions of support or opposition to guns. This framing can obscure pathologies of the criminal justice system and cause us to lose sight of the racial costs and marginal efficacy of particular gun regulations. The Second Amendment Frame presents gun regulation as a battle between progressives (including Blacks) and the Second Amendment constituency of rural, white, male conservatives. But that framing obscures the reality that the typical targets of gun law enforcement are urban people of color, not the Second Amendment constituency. The Second Amendment Frame distracts us from the fact that, in practice, the crusade against guns translates into criminal statutes enforced in racially targeted and racially biased ways.

The ultimate prescription of this Article is measured. It does not predict or prescribe wholesale abandonment of Black support for gun regulation. Rather it argues that Blacks should replace the modern orthodoxy's reflexive support of gun control with a hard-look approach that considers the practical realities of firearms policy, the dangers of enforcement bias, the demonstrated limits of gun regulation, and the private self-defense interest of Blacks within a system that guarantees the right to keep and bear arms.

This Article proceeds in five parts. Part I supplements the case for distrust of the state with a critique of racial bias in the enforcement of contemporary gun regulation. It argues that biased implementation of gun laws, as well as bias in the willingness of state agents to protect and serve Blacks, cuts against the modern orthodoxy. Part II engages recent scholarship arguing that racist administration of gun laws should prompt Blacks to abjure the right to arms rather than to insist upon it. Part III examines the efficacy of tough-on-crime gun initiatives that have disproportionately targeted minorities, as well as several metastudies of gun regulation efficacy. Part IV argues that the promise of the modern orthodoxy is vastly diminished by the declining fortunes of the gun control movement. Part IV shows how the expansion of gun ownership and gun rights has drastically reduced the potential of the gun control agenda to deliver on the promises that fueled the modern orthodoxy. Part IV shows how the core agenda of the gun control movement (i.e., constricting the gun supply through gun bans) has been so diminished by constitutional, political, and social developments that it is no longer viable either in practice or in theory. Part V presents the hard-look alternative to critique the modern orthodoxy and offers two examples of what a hard-look approach might yield in practice.

This Article concludes that the combination of the racial costs of gun regulation and the vastly diminished promise of the gun control agenda counsels abandonment of the modern orthodoxy. Instead, Blacks (and particularly the Black political class) should evaluate firearms policy with a case-by-case, hard-look approach that accounts for the demonstrated limits and racial costs of gun regulation. Neither supporters nor opponents of any particular firearms policy should take Black support or opposition for granted.

[. . .]

Contemporary gun regulation presents significant racial costs and marginal efficacy. The promise of a handgun ban that prompted the modern orthodoxy has withered. These developments counsel against the modern orthodoxy and in favor of a case-by-case, race sensitive hard look at the impact of gun regulation on the Black community. Neither proponents nor opponents of any particular gun regulation should take Black support or opposition for granted.

Professor of Law, Fordham University School of Law.