Excerpted From: Andrew J. Arden, Mass Incarceration, Deprivation of Rights, and Racial Subordination: U.S. V. Gary, The American Gun Control Narrative, and Ugly Truth Behind 18 U.S.C. 922(g), 2 North Carolina Civil Rights Law Review 141 (Spring, 2022) (147 Footnotes) (Full Document)


felonygunrights01America's history of white supremacy has influenced every facet of our legal system--gun control legislation is no different. Regulation of the right to bear arms has been highly racialized since the days of chattel slavery, when slaveowners sought to disarm and dominate Black Americans to prevent insurrection. After the ratification of the Thirteenth Amendment, facially racist Black Codes were justified with openly racist rhetoric. Following the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment, Black Codes openly denying Black Americans their Second Amendment rights gave way to more facially neutral policies, but the intent to disarm and dominate Black Americans remained the same. In the past half century, the criminalization of gun ownership has disproportionately affected poor and Black Americans. As this paper demonstrates, although the methods of domination and oppression have changed, from chattel slavery to mass incarceration, the effect, oppression and maintenance of white supremacy through disarmament of Black Americans, remains unchanged. In many federal court districts, 18 U.S.C. § 922(g) contributes more to the incarceration of disproportionately poor and Black Americans than any other federal statute.

This recent development explores United States v. Gary, a recent Fourth Circuit case interpreting § 922(g), and places it squarely in the context of this racialized history. Section 922(g) criminalizes possession or attempt to possess a firearm by a number of classes of individuals, including felons, those addicted to a controlled substance, those convicted of a misdemeanor domestic violence offense, and those with an active domestic violence protective order against them. The vast majority of defendants charged under § 922(g) are charged under § 922(g)(1), for their status as a felon. In Gary, the Fourth Circuit Court of Appeals held that when a court fails to confirm that a defendant is aware of their relevant status, that court has committed a structural error that isn't amenable to plain error review, and the case must automatically be remanded. This decision contradicts the nine other circuit courts to address the issue, which have held that a court's failure to confirm a defendant's awareness of their qualifying status is not a structural error. A motion for the court's en banc review was denied. In a concurrence with the denial of an en banc hearing, Judge Wilkinson suggested that the panel's decision was “so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour.” A petition was filed with the Supreme Court, which heard the case in April, 2021, consolidated in Greer v. United States. The Supreme Court ultimately sided almost unanimously with Wilkinson--save for a partial concurrence and partial dissent by Justice Sotomayor--overturning the Fourth Circuit panel decision.

This recent development argues that the Fourth Circuit panel was right in determining that failure to confirm relevant status is a structural error, particularly given the racialized context of § 922(g) and the racialized history of U.S. gun control legislation generally. Part I of the piece provides background by exploring the racialized history of gun control legislation in America, as well as the racialized narrative that has repeatedly been used to justify gun control legislation. Part II discusses how modern gun control legislation, particularly 922(g)(1), contributes to the mass incarceration of Black and indigent defendants. Part III then examines the Fourth Circuit's holding in Gary and the circuit split that case created on structural error in § 922(g) cases. Part IV next considers Gary in light of a history of racially motivated gun control legislation to demonstrate why the Fourth Circuit panel was correct in identifying Gary's guilty plea as a structural error. It posits that, more broadly, the Supreme Court's denial of plain error review in cases where a defendant does not know about their § 922(g) status will disproportionately harm Black and indigent defendants. A failure to recognize this error as a structural one only compounds the disproportionate impact of § 922(g) on Black and indigent defendants' Second Amendment rights.

[. . .]

Few issues in American political discourse are as divisive as gun control. America no doubt has a gun violence problem to reckon with--Americans have more firearms per capita and suffer more deaths from gun violence than any other high income, populous nation. Thirty-nine thousand Americans die every year from gun violence, or an average of 100 per day. Mass shootings have repeatedly shaken and devastated the country; there were over 400 in 2019. Gun violence also disproportionately impacts communities of color. Black men make up 52% of all gun homicide victims in the United States, despite comprising less than 7% of the population.

While these devastating statistics fuel an ongoing debate about imposing stricter gun control policies, lawmakers and gun control advocates must be careful in constructing regulations to ensure that the impact is not racially disparate, further contributing to the disarmament and mass incarceration of Black Americans. It is also critical that gun control advocates recognize the racialized narrative surrounding gun control in America and the racialized history of such statutes as they craft policy that protects Americans from gun violence through non-carceral solutions. Examination of existing gun control statutes, such as § 922(g), and the ways that these laws have been racially motivated is critical to rewriting the American gun control narrative and moving toward effective, common-sense, gun control policy that does not inflict further harm on Black Americans. Addressing structural errors when defendants charged with these statutes are deprived of their constitutional rights is a part of rewriting that narrative.

J.D. Candidate, University of North Carolina School of Law, 2022.