Public Defenders' Brief Causing Headaches, Heartburn For Gun Control Fans

AP Photo/David Goldman

The legal aid attorneys and public defenders in New York who’ve filed an amicus brief with the Supreme Court in support of the challenge to the state’s restrictive and subjective concealed carry permitting system have left many gun control-supporting progressives scrambling to address the brief and its arguments; New York’s licensing system was implemented more than 100 years ago in an attempt to deny black Americans and immigrants the ability to lawfully carry a firearm in self-defense, that the statute is still leading to racially disparate results today, and that the law itself does more harm than good by saddling defendants with a “violent felony” conviction for merely possessing a firearm without a license.


Over at Slate, writer Mark Joseph Stern has quizzed author Carol Anderson about her views on the new brief. Anderson’s recent book “The Second” is based on the theory that the Second Amendment itself has its origins in racism, so what does she think about the defense attorneys’ argument that New York’s gun control laws are causing irreparable harm to black residents?

Mark Joseph Stern: What was your reaction to the public defenders’ brief?

Carol Anderson: The amicus brief really speaks to the conundrum of anti-Blackness in American society. When Black people are defined as the default threat in American society—when you have this architecture of laws and of policing that comes into being to control that Black population—it means that Black people are vulnerable when they are armed, and vulnerable when they’re unarmed.

In Dying of Whiteness, Jonathan Metzl wrote about whites in Missouri who have suffered gun violence in the family talking about gun safety laws but say: “They are absolutely not going to take my gun. Those people from St. Louis will come down here and take everything we have and we will be left defenseless.” Even though, in their community, white folk were killing white folks, they didn’t say: “I’ve got to keep my gun because I’m in this poor rural community where we kill each other.” There’s this innocence of whiteness that is also bedrock foundational in this society.


Now, that was a pretty good attempt at avoiding a straight answer, but Stern continued to press her to get more specific about her thoughts on the law and the public defenders’ brief, and I don’t think gun control activists are going to like where Anderson eventually landed.

If you were a judge assessing the constitutionality of this law, how would you rule?

The facts of this case—seeing the disparate, unconstitutional way that the law has been applied—frankly I would probably kick it back to New York to revise the statute.

So you would kick it back and say, “there’s a serious constitutional problem here and you need to fix it”?

Yes. A state does have a responsibility for providing safety. The way this law has been implemented doesn’t do that.

How would you advise that the statute be revised?

It would be, for instance, removing the automatic “cops get to waive their $400 licensing fee” and they get the “good character” clause. Particularly if we’ve had biases in the way that police have been hired into the department. The implementation of it is what has become so problematic.

Anderson is clearly no fan of the Second Amendment, or of gun ownership in general. She firmly subscribes to the belief that having a gun makes a person less safe, and if she could unilaterally repeal the right to keep and bear arms, I have no doubt she’d do so.

However, Anderson at least recognizes that New York’s gun control law violates the constitutional rights of residents, even if she’s not a fan of the constitutional right in question. That should terrify gun control activists whose ideology is based on the idea that the right to keep and bear arms isn’t a real right at all (and therefore, any and all restrictions on gun ownership fit squarely within the Constitution).


For over a year now, I’ve been pointing out the Left’s internal conflict between their support for more gun control laws and their objections to heavy-handed policing, but most Democrats have successfully managed to avoid addressing the inherent contradiction. The public defenders’ brief (and the New York carry case itself) is now forcing the Left to confront that conflict head on, and it’s clear that gun control activists don’t have any real answer for the arguments presented by the public defenders and legal aid lawyers. In fact, to the best of my knowledge gun control groups like Everytown for Gun Safety, Brady, and Giffords haven’t said anything about the brief even as left-leaning outlets like The Nation and Slate try to wrestle with the implications of the arguments it puts forth.

Regardless of how woke these groups try to present themselves, the fact remains that they’re advocating for policies that not only infringe on a civil right of all Americans, but end up having a disparate impact on racial minorities and those on the lower end of the socio-economic spectrum by turning them into “violent felons” for merely possessing a gun without a permit; a government-issued permission slip that, by the way, that the average resident of New York has little chance of obtaining. The gun control lobby has been running away from these facts for awhile now, but thanks to the amicus brief by these public defenders, anti-gun activists can no longer hide how their agenda is causing harm to the very people who most acutely want and need to exercise their Second Amendment right of armed self-defense.


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