The Problematic Nexus of Gun Control and Mass Incarceration

After yet another horrific mass shooting, this time in Sutherland, Texas, gun control is back in the news. Justice demands that we do more as a society to prevent gun violence. But I’ve said it before, and I’ll say it again until I’m hoarse: liberals/progressives/gun control advocates should be very careful that in passing new gun laws, we don’t inadvertently contribute to the problem of mass incarceration.

In our criminal justice system, it is all but guaranteed that any law which creates new frontiers of criminal behavior is going to be disproportionately enforced on poor and working class communities of color. We’ve seen this happen over nearly fifty years of a “War on Drugs”, but it applies to nearly every level of government punishment of individual behavior, from the severity of criminal sentencing to basic interactions with law enforcement to school discipline for children. You don’t need to be a Second Amendment firebrand to anticipate that any new law punishing individuals for, e.g. failing to register a firearm will bring the hammer down hardest on those who can least afford it.

To add a wrinkle to a common comparison, look at the havoc that vehicle registration laws have wrought on poor and working class Americans of color. More than 4 million Californians have a suspended driver’s license, and with it, hundreds if not thousands of dollars in court-ordered debt. Penalties are disproportionate to the offense to society because the money is used to fund the courts themselves and other programs. This creates a two-tiered system of justice where wealthy people can simply buy their way out of the system, whereas poor people accumulate massive financial liabilities they will never be able to pay off.

In addition, vehicle registration offenses are often used as an excuse to justify heavy-handed and often unconstitutional police conduct, such as illegal searches and seizures.  Philando Castile, the legal firearm owner who was shot and killed by Jeronimo Yanez of the Twin Cities Police Department for no reason whatsoever, had been pulled over 49 times in 13 years and was fighting a multitude of vehicle-related infractions.

The vehicle context differs in important ways from the firearm context, of course. For example, the economic impact of being unable to use a firearm is significantly less than the impact of being unable to drive a motor vehicle. And in many states which already heavily restrict open carry, such as California, the risk of opportunistic police behavior around firearm regulation is not nearly as perverse as it is for vehicles. However, the cost of noncompliance with firearms can be higher than it is for vehicle laws. While failing to register a motor vehicle in California is merely an infraction (and will not go on a criminal record), failing to register previously owned firearms within 60 days of becoming a resident of the state is a misdemeanor, which does create a criminal record and can interfere with eligibility for education, employment, military service and other benefits.

Regardless, even if a case is never brought against someone, it is not difficult to imagine scenarios in which new firearm regulations could create a pretext for unlawful discrimination and harassment on the basis of race or class. And even if registration and/or licensure violations are treated as mere infractions, the associated fines and fees, if not implemented equitably, could be crippling – 47% of Americans lack the liquidity to cover an emergency expense of just $400. And at the end of the day, while we should certainly do our best as a society to prevent mass shootings, such heinous violence nevertheless makes up a tiny portion of total gun deaths (107,141 deaths and injuries in 2013), 60% of which are suicides and only a third of which are intentional homicides. We must push our government to create a more effective, just, and constitutional firearms regulation regime. However, in doing so, we must learn lessons from the War on Drugs and other well-intentioned but failed government projects, and make sure that we are not simply creating a new pit of criminal liability that only punishes the poor and disenfranchised.