Policing the Second Amendment

Guns, Law Enforcement, and the Politics of Race

Jennifer Carlson

• Publisher: Princeton University Press
• Year: 2020
• ISBN:
  9780691205861
• Topic: Social Sciences
• Subtopic: Discrimination & Race Relations
• Index: Social Sciences

An urgent look at the relationship between guns, the police, and race The United States is steeped in guns, gun violence—and gun debates. As arguments rage on, one issue has largely been overlooked—Americans who support gun control turn to the police as enforcers of their preferred policies, but the police themselves disproportionately support gun rights over gun control. Yet who do the police believe should get gun access? When do they pursue aggressive enforcement of gun laws? And what part does race play in all of this? Policing the Second Amendment unravels the complex relationship between the police, gun violence, and race. Rethinking the terms of the gun debate, Jennifer Carlson shows how the politics of guns cannot be understood—or changed—without considering how the racial politics of crime affect police attitudes about guns.Drawing on local and national newspapers, interviews with close to eighty police chiefs, and a rare look at gun licensing processes, Carlson explores the ways police talk about guns, and how firearms are regulated in different parts of the country. Examining how organizations such as the National Rifle Association have influenced police perspectives, she describes a troubling paradox of guns today—while color-blind laws grant civilians unprecedented rights to own, carry, and use guns, people of color face an all-too-visible system of gun criminalization. This racialized framework—undergirding who is "a good guy with a gun" versus "a bad guy with a gun"—informs and justifies how police understand and pursue public safety. Policing the Second Amendment demonstrates that the terrain of gun politics must be reevaluated if there is to be any hope of mitigating further tragedies.

CHAPTER 1

GUN POLITICS IN BLUE

Police officers will go through a wall for politicians who have their back.

—James Pasco, Executive Director of the Fraternal Order of Police, commenting on the Trump presidential campaign on National Public Radio’s Diane Rehm Show (2016)

The police will forgive me. The National Rifle Association never forgets.

—Anonymous U.S. Congressman, commenting on the proposed ban of “cop-killer” bullets, Sun Sentinel (1985)

In 1994, then-President Bill Clinton signed into law the Violent Crime Control and Law Enforcement Act with a flank of police officers standing behind him. It was a sweeping “law-and-order” bill: the Act would toughen criminal penalties, expand the federal death penalty, increase the number of police on the streets, establish financial support for investigating and preventing violence against women, and, finally, prohibit the manufacture of legally classified “assault weapons” and cap the capacity of newly manufactured magazines at ten rounds. This last portion of the bill was officially labeled the Public Safety and Recreational Firearms Use Protection Act, but publicly, the moniker assault weapons ban stuck.

Wedging gun control into the broader agenda of law and order, the Act signaled not just Democrats’ embrace of “tough on crime” politics but also the emergence of new, credible allies for them: the police. By 1994, police boldly came out in support of Clinton’s gun control measures, with the Fraternal Order of Police, the International Association of Chiefs of Police, and other law enforcement groups pledging a unified front.

Just a couple of decades later, the presumption that the law enforcement community largely supports gun control would be unsustainable. Today’s surveys of police suggest that law enforcement largely opposes an assault weapons ban, embraces licensed concealed carry, and supports gun rights over gun control.¹ In those intervening decades, the Fraternal Order of Police (FOP) has weakened its embrace of gun control, while other law enforcement groups—e.g., the Law Enforcement Alliance of America and the Constitutional Sheriffs and Peace Officers Association—have emerged to represent the interests of pro–gun rights law enforcement. Although survey data indicate support among police for some gun control measures popular among the general public, such as universal background checks, public law enforcement as a whole can no longer be characterized as allies of the gun control lobby.

The NRA, for its part, has welcomed the law enforcement community with open arms, even though this affinity is rarely noticed in public debates about guns. Writing for The American Rifleman on the fiftieth anniversary of the NRA’s founding of the Law Enforcement Division, Angus McClellan notes, “The NRA is well-known for its efforts in protecting the individual Right to Keep and Bear Arms, but its achievements in helping to train and prepare those to whom we’ve granted the power to enforce the law are relatively unknown to the public at large.”² Starting in 1916 with Frank Kahr’s call for police firearms training in the NRA’s magazine Arms and the Man, the NRA has embraced working with public law enforcement as part of its mandate. Over the years, this has at different times meant providing police with training, funds for police equipment, and expert advice on patrol weapons; brokering gun sales between the federal government and local police agencies; publicly endorsing stiff criminal penalties for illegal gun use; proactively defending police from public criticism; and providing individual police with line-of-duty death insurance and college scholarships for the dependents of fallen officers.

Those who think of the gun rights lobby and police interests as diametrically opposed may be surprised to learn that the NRA has shaped public law enforcement in a variety of ways. Indeed, the organization helped popularize the notion that police needed guns (as opposed to billy clubs or anything else) to competently perform their duties. It pressed the idea that police should “qualify” on their guns as a mark of their professional proficiency. And the NRA espoused the view that police should embrace guns not just on duty as professional tools but also off duty, whether as competitive sporting gear or as means of defense and protection. From its early calls for police to be properly trained with guns³ to its direct support to police departments⁴ to its ongoing training and competitive shooting programs specifically geared at police,⁵ the NRA has had an overt interest in police and their guns for more than a century.

The appeal of guns and gun rights to police, as to the public, reflects the broader contours of the politics of crime. Although police may have straddled both sides of the gun debate over the course of the twentieth century and into the twenty-first century, their embrace of gun rights and gun control alike have centered on particular notions of crime, policing, and criminal justice often informed by popularized tropes of disorderly, unruly, and criminally inclined black and brown delinquents. A historical look at the gun debate from the perspective of police reveals the heightened impact of the racial politics of crime in shaping police attitudes on guns, and it also shows how the NRA has harnessed these racial politics to reshape the meanings attached not just to guns in the hands of civilians but also to guns in the holsters of police. Over time, it has courted public law enforcement by blending together two frames for talking about the proper place of legitimate violence in society: gun militarism, which emphasizes aggressive gun law enforcement against armed criminals, and gun populism, which embraces law-abiding civilians (including police) as enhancing, rather than detracting from, the fight against crime. Placing public law enforcement at the center of debates about gun politics—that is, viewing “gun politics in blue”—clarifies how “law and order” politics has deeply shaped the politics of guns, and it also helps make sense of how officers sustain a politics of guns that entails both an embrace of aggressive enforcement and an openness to civilian gun access.

In addition to a lobbying group aimed at influencing interest groups adjacent to its gun rights platform (such as police), the NRA can also be understood as a broker, given its focus on building the political foundations of the alliance between gun rights proponents and police interests.⁶ This chapter examines the relationship among the NRA, public law enforcement, and gun politics, tracing how the racial politics of crime shapes the intersection of gun politics and the politics of the police—and the role that gun control and, especially, gun rights lobbies have played in that process. Understanding that the racial contours of legitimate violence are rooted in historically situated social practices and institutions, this chapter starts with a brief history that delineates the early, inchoate forms that U.S. policing took in the eighteenth and nineteenth centuries. It then turns to the early twentieth century as the starting point for unraveling the relationship between gun politics and the politics of the police, highlighting the unique role the NRA has played as a broker in shaping legitimate violence across the state and society. Over the course of the twentieth century, the NRA learned a crucial lesson: that police officers are the kind of political ally that the NRA can ill afford to lose. And in acting on that lesson into the twenty-first century, the NRA has helped to shape—to the organization’s own advantage—the personal and professional interests of public law enforcement in gun policy and gun politics.

FROM POLICING TO PUBLIC LAW ENFORCEMENT

Criminologists—especially those with a historical long view—point out that the apparent “police monopoly on policing” of the second half of the twentieth century may, in fact, be a blip:⁷ historically, police have not monopolized policing, and today, this waning monopoly is visible in the proliferation of private policing, neighborhood watch groups, home security systems, and private gun ownership.⁸

The earliest forms of public law enforcement in the United States looked less like institutionalized public law enforcement and more like private action undertaken in pursuit of expulsion, extermination, and containment. Compared to the taken-for-granted nature of today’s institutionalized and permanent police forces, early policing prerogatives could be short-lived, amorphous, and, at the same time, expansive. With no such thing as a “police officer,” early white Anglo-Saxon American men (and some women) responded to the “hue and cry,” served on night watch, formed militias for an array of acute and generalized issues of public order, and took it upon themselves to exercise police power where they saw fit. As early as the seventeenth century, when both Anglo-Saxons and Africans were subject to conditions of indenture and slavery, any colonist could stop strangers to demand that they identify themselves; once slavery depended entirely on black labor, slave codes emerged that allowed white colonists to police blacks—free or enslaved—by demanding identification and physically assaulting and even killing them if they did not adequately “comply.”⁹ As the police historian Martin Alan Greenberg notes, “during much of the seventeenth century, slave patrols did not exist. The control and discipline of slaves were considered the responsibility of any free and responsible citizen.”¹⁰ By the eighteenth and into the nineteenth centuries, however, slaveowners’ agitation over runaway slaves and slave rebellions led to a form of policing that extended the coercive power of the plantation: the slave patrol. Eventually, these brutal slave patrols worked alongside, and to some degree became institutionalized as, some of the earliest public law enforcement entities in the United States, including the New Orleans Police Department in 1853. In the second half of the nineteenth century, public law enforcement in the South developed alongside virulent white supremacist militias that emerged in the aftermath of the Civil War.¹¹ The Ku Klux Klan (KKK) largely resembled the slave patrols of the antebellum period; though the Klan did not enjoy the formal legal immunity that earlier slave patrols did, white and black Southerners alike treated them as interchangeable, given “the straightforward adoption of [slave patrol] methods by the Ku Klux Klan and other vigilante groups of the postwar period.”¹² This was convenient for Southern institutions—such as public law enforcement—looking to reinforce racial order while also complying with Northern demands. As the historian Sally E. Hadden notes,

The more random and ruthless aspects of slave patrolling passed into the hands of vigilante groups like the Klan. The KKK provided an outlet for the racial aggression that white Southerners could no longer legally inflict through patrolling or slave ownership. Both the methods and the targeted victims of Klan violence—denounced by federal officials—were secretly approved of by many white Southerners who came to see the Klan as the South’s true “law enforcers.” Meanwhile, policemen in Southern towns continued to carry out those aspects of urban slave patrolling that seemed race-neutral but that in reality were applied selectively.¹³

Thus, the KKK and other white vigilante groups provided beneficial (to adherents of white supremacy) opportunities for collusion amid pressures on police to “appear … racially unbiased.”¹⁴ This arrangement illustrates not just a lack of state monopoly on policing in the period leading up to and during the Jim Crow era; it also illuminates how the coordination across different private and public arenas provided a means for legitimate violence to reinforce racial domination and white supremacy, despite legal formalities putatively requiring otherwise.¹⁵

The relationship between racial control and early policing forms took different form in the North. There, policing was characterized by early “watch and ward committees” composed of unpaid volunteers¹⁶ before ...