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Excerpted From: Nicholas J. Johnson, Defiance, Concealed Carry, and Race, 83 Law and Contemporary Problems 159 (2020) (51 Footnotes) (Full Document)
In other work I posit that two phenomena, the remainder problem and the defiance impulse, render supply side gun control--sweeping bans on broad classes of firearms technology--unworkable as firearms policy in the United States. My broader and continuing project considers whether context and character make certain firearms regulations more or less vulnerable to defiance. My thesis is that integrating defiance into firearms policy analysis in this way helps us position legal interventions along a spectrum ranging from viable solutions to unworkable policies that might make things worse.
The character of defiance has become more complex over time. My prior work focused on private defiance of gun bans by individual refusnicks--lawful gun owners who refused to surrender items now deemed contraband. This Article integrates a new phenomenon--official defiance. This type of defiance involves local, county, or state government officials who are committed to defying gun regulations of a superior jurisdiction.
While private defiance is a powerful disruptor of gun bans, official defiance has greater potential to disrupt laws governing various other aspects of gun use and possession. This Article examines that problem in the context of concealed carry restrictions and offers an assessment of unintended consequences with a particular focus on race.
Part II of this Article details the defiance phenomenon on which this analysis is based.
Part III examines the questions and issues that arise from integrating the defiance phenomenon into assessments of restrictive concealed carry laws, and contemplates the potential unequal impact of such restrictive laws on minority communities. This Article concludes that defiance could result in racial disparities in the implementation of restrictive carry rules, but that defiance generally is less disruptive of restrictive carry laws than it is of supply controls.
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I have argued elsewhere that defiance is extremely disruptive of firearms and affiliated technology supply controls. While as a general matter defiance may be relatively mild disruptor of restrictions on gun carrying, significant unintended consequences may fall on black and brown populations because of discriminatory applications of law and constitutional protections.
Professor of Law, Fordham University School of Law; J.D. Harvard Law School (1984).
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