Are Gun Laws Racist

Host: Joel Cohen
Guest: Professor Daryl Miller, Duke Law School

Joel Cohen: Hello and welcome to Talks on Law. I'm Joel Cohen. Today I'm joined by a constitutional law scholar, Daryl Miller, a professor at Duke Law School and the co-director of the Duke Center for Firearms Law. Daryl, thanks for having me in your office.

Professor Daryl Miller: Welcome.

Joel Cohen: It's a pretty heavy question I started with in the intro, right? But I'll ask it again, are gun laws racist?

Professor Daryl Miller: Well, without question, there are some regulations historically that specifically identify African-Americans in particular, and require special requirements of various kinds or prohibit gun ownership from African-Americans altogether. So to that extent, yeah, that's clearly a racist law. It gets really much more difficult when we talk about questions about, well, what about purpose or about present inequitable effects when we're talking about gun regulations that don't talk about race specifically.

Joel Cohen: Professor, why don't we look at some laws that are just on their face racist? And unfortunately, there's, am I right to say, that there's a few to choose from?

Professor Daryl Miller: Yeah, there's definitely a few to choose from, especially before the Civil War, and even shortly thereafter. But I think it's a little bit more nuanced than just, is gun control racist? If you scratch the surface of almost any kind of regulation in its history in America, you're going to find either some racially inequitable intent or language or purpose or effect. So let me give you a concrete example: the Black Codes that were passed after emancipation in 1865. Many of these regulations made it difficult for free persons of color to have guns, but in those same passages, there were also different kinds of licensing requirements for African-Americans for things like skilled trades or for professions. So the real question when we say is gun control racist isn't about the history, but like, what do we do about this potentially inequitable history of gun regulation? Some people would say, well, it means all gun regulations should be prohibited, but I think that proves too much because the same passages also required licenses for plumbers or for carpenters. Or for, would say that all plumbing laws are racist just because there's a history of racist use of licensing for things like plumbing or the provision of medical services doesn't mean that we should therefore say that we shouldn't have licenses for doctors or we shouldn't have licenses for plumbers anymore.

Joel Cohen: You spoke to some of the truly shameful laws that go back to the time of slavery or reconstruction. You also mentioned that there are a number of laws that might have had a racist or clearly racial intent but didn't actually hardwire those terms into the language of the law. What are you talking about there?

Professor Daryl Miller: Right, so those would be like facially neutral laws that are applied in some sort of inequitable manner. Again, it could be, for example, that a licensing rule didn't say anything about race, but because the authorities had unfettered discretion, would use that discretion in a racist fashion or discriminatory fashion. The question is, what do we do with that risk? The same type of persons that would, you know, prohibit African-Americans in their discretion from possessing a firearm might have been the same persons that would prevent African-Americans from practicing law or working as a pipe fitter. That doesn't necessarily mean that we say that the licensing, the concept of licensing, is itself discriminatory. It's really about concerns about inequitable application of these racially neutral on their face regulations.

Joel Cohen: Professor, I understand, and correct me if I may be wrong here, that some laws, gun laws, were passed partly in reaction to black groups, militant black groups such as the Black Panthers. And in some ways, it's not far to say that those laws had some race-related purpose.

Professor Daryl Miller: Yeah, so the law that you're referring to, something that was known as the Mulford Act, which was actually passed by, signed into law by then-Governor Ronald Reagan, and had to do with what was known as copwatching that was going on by the Black Panthers in the city of Oakland and its environs in California in the 1960s. And so what the Black Panthers Party was doing was essentially monitoring police misconduct in the cities and were arming themselves. The State of California ended up passing a prohibition on open carry. Now, this was obviously triggered by the Black Panthers, but its application was race-neutral. So it didn't matter if you were a black person, an Asian person, a white person, the prohibition was totally race-neutral. And so even though it was prompted by concern of seeing African-American men in public with firearms, the actual regulation itself did not have a race component to it expressly.

Joel Cohen: Interesting. So this is kind of another nuance to the story where, you know, some laws had racial language, some laws had the, you know, some type of racial application, and here it might have been a law that came with some perhaps fear of armed black men in particular that led to movement in that way in terms of regulating open use of guns.

Professor Daryl Miller: It's fair to say that this was a politically salient event and probably helped precipitate the passage of the act. But it's also important to realize that when we talk about a multi-member body like a legislature, it's really hard to ascribe specific reasons to the entire legislature. Some of them might have had, you know, in their heart of hearts, a racist reason for passing this act, some of them might have been concerned for the safety of law enforcement and thought that it was really dangerous to have law enforcement being surveilled by armed groups. And so when we talk about a multi-member body like a legislature, it's really dangerous to say that there was one reason that was motivating everyone because, as they say, a legislature is a they, not an it.

Joel Cohen: Professor, how about the argument that gun laws or gun control has a racist impact or disparate impact on certain racial groups?

Professor Daryl Miller: Right, so this is again a really important and difficult question. So it's pretty clear that gun regulation, especially if it's inequitably applied, is going to have racially disparate impacts. Even a neutral rule could have racially disparate impacts to the extent that, for example, training or other kinds of licensing requirements serves as a barrier to persons based on income, and income in some ways is correlated with race. But the issue that I think we have to be aware of is that it's disparate impact in every direction. So in America, if you are a young black man, you are 20 times more likely to die from gun violence as you are as a comparable white young man. And so when we think about the desperate impacts of gun regulation, especially when we think about issues like mass incarceration, we also have to factor into the calculus that gun violence is not suffered by all racial groups equally either.

Joel Cohen: Professor, given the complexity of this history in America between race and gun laws, how would you say this race impacts modern gun regulation?

Professor Daryl Miller: Well, I think one thing that we have to be careful about is not to, you know, overread the history. Without a doubt, there is a racist history to some gun regulation. But to say that that taints all kinds of regulation today is to prove too much. You know, as I said, many times in here and other places, if you scratch the surface of almost any regulation in American history, you're going to find somebody who has enacted it for a racist reason or is going to find some kind of racially disparate effects. So the danger is that you read the history too much into what we might think of as regulations that are addressing modern problems. The second issue to think about when we talk about race and gun regulation is to understand that it's a cost in every direction. That is, there are costs to having gun regulations that can have racially disparate impacts. There are costs to not having gun regulations that can have racially disparate impacts. And so if we're going to make good policy decisions, we have to understand both the costs of doing something and the costs of doing nothing.

Joel Cohen: Professor Daryl Miller teaches constitutional law at Duke Law School and is the co-director of the Duke Center for Firearms Law. Daryl, thank you for your time.

Professor Daryl Miller: Thank you.