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83 Law & Contemp. Probs. 159 (2020)
Defiance, Concealed Carry, and Race

handle is hein.journals/lcp83 and id is 636 raw text is: DEFIANCE, CONCEALED CARRY, AND RACE NICHOLAS J. JOHNSON* I INTRODUCTION In other work I posit that two phenomena, the remainder problem' and the defiance impulse,2 render supply side gun control-sweeping bans on broad classes of firearms technology-unworkable as firearms policy in the United States.3 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 Copyright © 2020 by Nicholas J. Johnson. This Article is also available online at http://lcp.law.duke.edu/. * Professor of Law, Fordham University School of Law; J.D. Harvard Law School (1984). Author of NEGROES AND THE GUN: THE BLACK TRADITION OF ARMS (2014); NICHOLAS J. JOHNSON, DAVID B. KOPE, GEORGE A. MOCSARY & MICHAEL P. O'SHEA, FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY (2d ed. 2018). 1. The remainder problem describes the fact that gun bans can be effective in stopping the prospective manufacturing of targeted firearms, but wresting previously legal, now banned guns from people who already own them is a different and harder problem. 2. The defiance impulse means the near-universal tendency to defy gun bans. This phenomenon is described in detail in Part II, infra. 3. See generally Nicholas J. Johnson, Imagining Gun Control in America: Understanding the Remainder Problem Article and Essay, 43 WAKE FOREST L. REV. 837 (2008).

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