Brett Bass
Brett Bass

Special Guest Contributor

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Summary & Talking Points:

  • Many of our legislators have decried disparate impact on communities of color when describing their bills or positions
    • In op-eds last year, Pedersen & Dhingra disclaim disparate impact of policing on marginalized communities
    • Equity, as Governor Inslee and the supporters of social justice within the state legislature have repeatedly advocated, means to attempt to calibrate policies to eliminate disparate racial outcomes, even when policies are neutral-sounding.
    • Governor Inslee explicitly cited the harmful effects of inequitable disparate impact as they pertained to reformed drug possession laws that he signed into law (SB5044), stating: “[This reform will] help reduce the disparate impact of the previous drug possession statute on people of color.”
  • BUT, politicians have a bizarre cognitive dissonance when it comes to applying the lens of disparate impact to firearms policies
  • Nonviolent possession laws have disproportionate racial impacts-that are being conveniently ignored by politicians
    • There ARE wild racial disparities for nonviolent firearm possession arrests and prosecutions (Duke University, U.S. Bureau of Justice).
      • > 40% of all non-violent firearms possession arrests are of African Americans, which make up only 13% of the US population
      • Increasing homicide disproportionately impacts black and other minority communities
  • Historically, the express intentions of most of the common firearms restrictions are directly and incontrovertibly rooted in explicitly racist aims.
    • The Mulford Act of 1967 was passed in California with the unambiguous intention of disarming the Black Panther Party, which had been engaging in armed community patrols of violence-wracked areas of Oakland, observing the police for misconduct, and demonstrating peacefully while open carrying firearms at the state capitol in Sacramento.
    • In former Confederate states, the KKK’s night riders were able to deny self defense abilities to the blacks within their borders
    • Reverend Dr. Martin Luther King, Jr. was denied a license to carry a firearm by his local police after his his home was literally firebombed.
    • Nearly every sweeping restriction on firearms in America, going all the way back to the 1640 prohibitions on carry by enslaved and free blacks alike in Virginia and the 1712 Act for the Better Ordering of Negroes and Slaves in South Carolina have been constructed to deny the civil right to armed self defense to black people.
    • Only 8% of all carry licenses in Illinois were issued to black residents, living in the most murder-stricken areas of the country; huge majorities of the arrests for unlawful firearm possession were affected against the very same poor blacks.
    • Nonviolent minorities in violence-ravaged communities are overwhelmingly prosecuted for firearms possession crimes.
    • During Clinton’s 1994 Assault Weapons Ban, the incarceration rate for blacks nearly doubled
  • Pushing to give local jurisdictions plenary authority to restrict the carry of firearms without recourse is a disappointingly familiar echo of the 1865 carry bans enacted by corrupt racists in the South and the stunning criminalization of public firearms carry in California during the Civil Rights Movement after African American citizens had the temerity to demand equal and just police protections from the state.
  • There is almost no set of contemporary policies in the United States that so consistently and dramatically produce racially disproportionate harm (as these proposed firearm laws).
  • It is also impossible to try and defend this proposed series of bans after minorities flocked to purchase firearms in unprecedented numbers. The optics, shall we say, are conspicuous.
  • Policymakers should not be shocked when citizens put two and two together and decide that they’re more interested in curbing minorities’ civil rights than genuinely applying foundational concepts of social justice.

It is incredible that social justice-motivated, criminal justice reform supporting politicians in Washington State can simultaneously use racial disparities for nonviolent possession crimes as staples of their policy platforms to liberalize things like marijuana, in light of its disparate impacts in incarceration outcomes while simultaneously supporting firearms possession crimes that have historically resulted in either overtly racist black disarmament and victimization or wildly inequitable racial prosecution outcomes.

It is ironic that the most ardent supporters of the current crop of firearms restrictions in Washington State are also some of the most vocal proponents of the tenets of social justice.

Among the most common principles of contemporary social justice advocacy is highlighting impact over intent. The impact of a policy—particularly a criminal policy—is valued over the intent behind it. There is a kernel of wisdom to this concept as it pertains to the passage of legislation because our elected representatives don’t pass intentions, they pass laws. Our law enforcement officers don’t enforce intentions, they enforce laws. Our judiciary doesn’t rule on intentions, they rule on statutes as they are written.

Senators Jamie Pedersen and Manka Dhingra have been explicit in their application of the concept of disparate impact, going so far as a pen op-eds in the Seattle Times in August of last year to articulate their views on the necessity of police reform as a result of the disparate impact that law enforcement policies has had, they say, “…unfortunately exacerbated a deepening distrust by the very communities that the police are sworn to protect and serve.”(1)

In the very recent past, advocates of criminal justice reform have been vocal in articulating that many laws disproportionately affect black, hispanic, and other historically-marginalized communities. In fact, Senator Pedersen has consistently advocated for policies to address the resulting disparate impacts that result from these sorts of policies. In June of last year, he proudly amplified the bills that he supported along these lines. (2)

The concern of Senators Pedersen and Dhingra isn’t unfounded; there is ample data surrounding incarceration in Washington State that shows that there are proportionality questions surrounding race. The Vera Institute of Justice cites U.S. Bureau of Justice Statistics data to note that black Washingtonians are incarcerated at a rate far out of line with their proportion of the overall state population: African Americans account for about five percent of the state’s residents but almost a fifth of the incarcerated population; Native Americans are roughly two percent of the population of Washington but account for five percent of the incarcerated population. In a 2019 fact sheet, Vera expresses a sentiment that has been mainstreamed and amplified by the social justice-minded Democrats in the state legislature: “Discriminatory criminal justice policies and practices at all stages of the justice process have unjustifiably disadvantaged Black people, including through disparity in the enforcement of seemingly race-neutral laws.” (3). Senator Pedersen, in a 25 June 2020 update on the Senate Democrats piece entitled Dismantling Racism in Policing: “It is painful to admit our failure to recognize and actively oppose the oppression of our neighbors…” and, “…I am sorry that it has taken me so long to appreciate the scale of this problem. As chair of the Senate Law & Justice Committee, I am committed to doing my best to addressing it.” (4)

Last year, Governor Jay Inslee signed a bill (SB5044) (5) into law that committed to including equity training that includes disparate racial impact curricula into required training for educators across the state. Equity, as Governor Inslee and the supporters of social justice within the state legislature have repeatedly advocated, means to attempt to calibrate policies to eliminate disparate racial outcomes, even when policies are neutral-sounding. In academic circles, these are ideas that began being popularized by legal theorists such as Roberto Mangabeira Unger, Robert W. Gordon, and Duncan Kennedy—particularly after a University of Wisconsin-Madison legal conference in 1977—and have formed the foundation for much of the social justice lens through which politicians such as Senators Pedersen and Dhingra or House Speaker Laurie Jinkins or Governor Inslee approach the law. In 2021, Governor Inslee explicitly cited the harmful effects of inequitable disparate impact as they pertained to reformed drug possession laws that he signed into law, stating: “[This reform will] help reduce the disparate impact of the previous drug possession statute on people of color.” (6)

With all of this in mind, there is a bizarre cognitive dissonance when it comes to applying the lens of disparate impact to firearms policies. Duke University research recently published research that supports previous analyses of U.S. Bureau of Justice Statistics data in showing wild racial disparities for nonviolent firearm possession arrests and prosecutions. More than forty percent of all firearms possession arrests are of African Americans, despite constituting only thirteen percent of the U.S. population. This huge chasm has been widening in some jurisdictions, even as homicide—which also disproportionately impacts black and other minority communities—has been dramatically increasing. (7)
Worse, while some nonviolent possession laws have wound up with disproportionate racial impacts, few of the contemporary laws that result in these inequities were created with racial intentions. While the scaffolding of impact over intent has little time for such a distinction—social justice proponents such as the politicians cited above explain that the social impacts of policies should be considered rather than the intentions that led to them—the express intentions of most of the common firearms restrictions are directly and incontrovertibly rooted in explicitly racist aims.

In relatively recent history, the Mulford Act of 1967 was passed in California with the unambiguous intention of disarming the Black Panther Party, which had been engaging in armed community patrols of violence-wracked areas of Oakland, observing the police for misconduct, and demonstrating peacefully while open carrying firearms at the state capitol in Sacramento. Shamefully, the underlying grievances of the Black Panthers were true: The United States of the late 1960s, lurching through enormous turmoil of the Civil Rights Movement, was rife with nakedly racist policing, frequent state violence against protesters, and unequal legal protections for whites and blacks. When black neighborhoods began organizing to support the Black Panthers’ armed “cop watching” patrols to prevent monopolized state force being used for oppression, one of their number, Bobby Seale, famously said: “The American people in general and the black people in particular must take careful note of the racist California legislature aimed at keeping the black people disarmed and powerless Black people have begged, prayed, petitioned, demonstrated, and everything else to get the racist power structure of America to right the wrongs which have historically been perpetuated against black people. The time has come for black people to arm themselves against this terror before it is too late.” Seale, inspired by Malcom X, was right: Racists such as Representative Don Mulford moved rapidly to criminalize the open carry of firearms in the most populous state in the Union. That law remains in effect to this day, and it is still disproportionately African Americans who are arrested, charged, prosecuted, convicted, and incarcerated for simple firearms possession crimes. Affluent members of society—mostly white—monopolize California’s heavily restrictive ’may issue’ regime of carry license issuance, which invites corruption such as that which led to a grand jury indicting the Undersheriff of Santa Clara County (and others) in a bribery-for-carry-licenses scheme in late November of 2020; an echo of a nearly identical corruption scandal that has been recurring for decades (8).

This is a recurring format: The very concept of licensing the carry of firearms has its origins in post-Civil War attempts by former Confederate states to sidestep the constitutional protections of the 13th and 14th Amendments, which established that, “[a]ll persons born or naturalized in the United States…” including formerly enslaved blacks, “…and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” By sneeringly applying a veneer of due process to the licensing of the individual right to keep and bear arms, naturally at the “may-issue” discretion of local authorities, the ex-Confederates, most notoriously the KKK’s night riders, were able to deny self defense abilities to the blacks within their borders. (9) Worth noting, in the mid-1950s, the practice of abusing ‘may issue’ veneers of governmental legitimacy still obtained, and Reverend Dr. Martin Luther King, Jr. was denied a license to carry a firearm by his local police after his his home was literally firebombed. Nearly every sweeping restriction on firearms in America, going all the way back to the 1640 prohibitions on carry by enslaved and free blacks alike in Virginia and the 1712 Act for the Better Ordering of Negroes and Slaves in South Carolina have been constructed to deny the civil right to armed self defense to black people.

More contemporary examples abound: Only eight percent of all of the issued carry licenses in Illinois were issued to black residents by 2014, with inner-city blacks—who live daily in one of the most murder-stricken areas of the country—were systematically denied carry licenses even while huge majorities of the arrests for unlawful firearm possession were affected against the very same poor blacks. (10) Data from the Bureau of Justice Statistics shows that possession charges are almost always dropped in plea bargaining for those arrested for violent crimes such as murder or assault with a deadly weapon; it is overwhelmingly nonviolent minorities in violence-ravaged communities who are prosecuted for firearms possession crimes.

Similar disparities persisted during the Clinton Administration’s infamous Crime Bill, which has been credited by libertarian and progressives alike as significantly contributing to America’s wild over-incarceration problems. A key part of the legislation was a now-defunct series of prohibitions on certain firearms and magazines, often referred to as the 1994 “Assault Weapons” Ban. Despite repeated congressional and independent third party reviews of this policy of arresting people for possessing magazines that held more than ten cartridges and certain rifles that bore cosmetic similarities to machine-guns for a full decade, a plethora of studies found no clear public safety benefits. The most charitable summary being from UPenn study: “We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.” (11) (12)

Plenty of young African American men and women were incarcerated, though. The incarceration rate for blacks nearly doubled as a result of, or at least in conspicuously high correlation with, this policy, according to data from the Bureau of Justice Statistics published by Statista. (13) (14)

In light of all this, it is incredible that the same logic that social justice-motivated, criminal justice reform supporting, impact-over-intent sympathetic politicians in Washington State can simultaneously use racial disparities for nonviolent possession crimes as staples of their policy platforms to liberalize things like marijuana, in light of its disparate impacts in incarceration outcomes (15) while simultaneously supporting firearms possession crimes that have historically resulted in either overtly racist black disarmament and victimization or wildly inequitable racial prosecution outcomes.

The exact same policies that are being adamantly pushed by ostensibly progressive Democrats in Olympia have universally resulted in unequal applications of incarceration between affluent (and overwhelmingly white) residents who can rely on reliable and well-funded private security and police protection and the economically depressed minorities who are at vastly higher risk of murder. Pushing to give local jurisdictions plenary authority to restrict the carry of firearms without recourse is a disappointingly familiar echo of the 1865 carry bans enacted by corrupt racists in the South and the stunning criminalization of public firearms carry in California during the Civil Rights Movement after African American citizens had the temerity to demand equal and just police protections from the state.

Meanwhile, Washington’s political class is moving full-steam ahead on criminalizing the possession of magazines that hold “too much” ammunition and semiautomatic rifles; an almost hilarious pantomime of the failed firearms prohibitions that were a key component of the 1994 Crime Bill that resulted in a doubling of the black incarceration rate in America. With no consensus that there was any public safety benefit, no less. What a bargain.

While it would be churlish and uncharitable to ascribe overt racism to the intentions of the politicians currently assaulting the Article 1, Section 24 rights of Washingtonians, we have to return to the consistent application of principles. If these policymakers genuinely cared about inequitable outcomes and the importance of weighing impact as opposed to intent, as they claim to justify all of their other social justice statements, they would have to directly and seriously grapple with the fact that there is almost no set of contemporary policies in the United States that so consistently and dramatically produce racially disproportionate harm. Instead, we are routinely visited with astonishing displays of paternalism from overwhelmingly white, usually female, upper class politicians from safe neighborhoods tut tutting that systematically enacting policies that will disarm minorities is “actually” for their own good. After all, the police—shielded by qualified immunity that isn’t available to private citizens—can and will protect them. And to do so, they can buy machine-guns, armored vehicles, 4th Amendment-skirting warrantless surveillance drones, and all of the other technological wonders of a permanent surveillance state. And the next time an African American man is hurt or killed by this leviathan? Well, we can take solace while the social justice reformers make speeches, join in demonstrations, and then vote to invent new crimes to replace those poor minorities’ self-defense rights.

That this isn’t recognized as astonishingly tone-deaf hypocrisy is among the great mysteries of our current historical moment.

Where the government has proven itself either unwilling or unable to defend the lives and the property of Negroes, it’s time for Negroes to defend themselves.

Malcom X

It would behoove the legislators in Olympia to remember Malcom X: “I must say this concerning the great controversy over rifles and shotguns. The only thing I’ve ever said is that in areas where the government has prove itself either unwilling or unable to defend the lives and the property of Negroes, it’s time for Negroes to defend themselves. Article Number Two of the constitutional amendments provides you and me the right to own a rifle or a shotgun. It is constitutionally legal to own a rifle or a shotgun.” It would at least be nice if they would have the decency to say to their constituents that they were very passionate about banning the very rifles protected by the very Bill of Rights to which Malcom X appealed in his comments that inspired the “cop watching” patrols of Oakland. It would at least be polite if they could tell the African American, Hispanic, and immigrant residents of criminally overrun areas awash in violence that the very police that they just spend the last year+ excoriating for racism would be in charge of snatching up all of the troublesome minorities that just bought historic numbers of firearms to defend themselves and didn’t have the foresight to buy the ones that the people who can whistle up security details in Olympia decided that they didn’t like. (16) Their fears of racist violence were all overblown and they were just too stupid to know it. (17) Or not. (18) And so what if record numbers of African Americans were embracing their individual rights to own firearms for self defense in light of uncertainty about mass civil unrest and understandable mistrust of the police? There can’t be anything deeply disquieting and painful about resigning oneself to the sentiment that, “I’d rather go to trial than go to the cemetery,” (19) as some African Americans have resigned themselves to accept. We should just all be glad that the (mainly white) policymakers decided that the trial was the best cast scenario because the gun that he bought was too modern or held too many rounds or was too scary looking.

Legislators should be willing to confront the unintended-yet-inevitable consequences of their good intentions fallacy, particularly in light of their ideological commitments to evaluating impact over intent and attempting to apply principles of equity to racial disparities. But instead, there is condescending white paternalism on display.

We live in a multiracial, diverse, and pluralistic society. We will inevitably have serious, good-faith disagreements with each other on matters of serious policy. But unless we can engage with philosophical consistency, our attempts to form a more perfect union will be stunted and crippled by stupid partisan rancor. Unfortunately, the selective application of social justice concepts to the issue of Washingtonians’ rights to own firearms, explicitly enumerated in both the state and federal constitutions, forces us to apply the logic that they champion on their own stance on other prohibition policies. It is impossible to reconcile liberalizing some possession laws to improve equity outcomes while simultaneously passing laws to criminalize nonviolent firearms possession laws. It is also impossible to try and defend this proposed series of bans after minorities flocked to purchase firearms in unprecedented numbers. The optics, shall we say, are conspicuous. Policymakers should not be shocked when citizens put two and two together and decide that they’re more interested in curbing minorities’ civil rights than genuinely applying foundational concepts of social justice.

1. https://www.seattletimes.com/opinion/police-accountability-will-require-leadership-courage-and-follow-up/
2. https://senatedemocrats.wa.gov/pedersen/2021/06/10/legislature-acts-on-justice-reform-in-2021-session/
3. https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-washington.pdf
4. https://senatedemocrats.wa.gov/pedersen/2020/06/25/dismantling-racism-in-policing/
5. https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Senate%20Passed%20Legislature/5044-S.PL.pdf?q=20210505174831
6. https://www.usnews.com/news/politics/articles/2021-05-13/new-washington-state-law-makes-drug-possession-a-misdemeanor
7. https://firearmslaw.duke.edu/wp-content/uploads/2022/01/Olson-Illegal-Firearm-Possession.pdf
8. https://www.mercurynews.com/2011/12/10/santa-clara-county-sheriff-draws-legal-fire-for-way-she-hands-out-concealed-gun-permits/
9. David Babat, “The Discriminatory History of Gun Control,” University of Rhode Island, 2009
10. Kelly Riddell, “Data Divulges Racial Disparity in Chicago’s Issuance of Gun Permits,” The Washington Times, 2014
11. https://www.ojp.gov/pdffiles1/nij/grants/204431.pdf
12. https://www.tandfonline.com/doi/abs/10.1080/13504851.2013.854294
13. https://bjs.ojp.gov/library/publications/list
14. https://www.statista.com/chart/18376/us-incarceration-rates-by-sex-and-race-ethnic-origin/
15. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2561263/
16. https://news.yahoo.com/gun-ownership-among-people-color-222538056.html
17. https://nextshark.com/asians-buying-guns-response-to-coronavirus-xenophobia/
18. https://nextshark.com/guns-asian-americans-protect-families-against-violence/
19. https://www.npr.org/2020/09/27/911649891/some-black-americans-buying-guns-i-d-rather-go-to-trial-than-go-to-the-cemetery