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In Context: Sometimes it Comes Back to Bite ’em in the Ass

May 26, 2014



On February 13, 2013, a three-judge panel of the U.S. Ninth Circuit Court of Appeals entered a ruling in favor of the plaintiffs in Peruta v. County of San Diego, a suit challenging the latter’s authority to arbitrarily constrain or deny the right of citizens to carry concealed handguns. In rejecting the criteria employed by San Diego County to govern its occasional issuance—or, more accurately, its routine denial—of concealed carry permits as being unconstitutionally narrow,  Peruta takes its place among a cluster of recent judicial opinions—notably District of Columbia v. Heller (2008), McDonald v. City of Chicago (2010), and Moore v. Madigan (2012)—that serve to undercut the government’s sustained effort to incrementally disarm the populace in the face of policies not only equipping the police and related entities with a continuously expanding and more lethal array of weaponry, but an ever-broader license to use it.


Of particular interest in Peruta is the court’s observation that it was “not holding that the Second Amendment [to the U.S. Constitution] requires the states to permit concealed carry,” but rather that it “does require that the states permit some form of carry for self-defense outside the home [emphasis original].” Since the open carrying of firearms is prohibited under California law, the judges reasoned, concealed carry is left as the only alternative. That being so, the imposition of any literal or de facto prohibition of concealed carry is rendered unconstitutional. In the alternative, the prohibition of open carry might have been declared unconstitutional—one senses that this would have been the judges’ preference, had the issue before them allowed such a ruling—but under no circumstances can both open and concealed carry be prohibited.


Needless to say, the ruling has already generated quite a lot of chatter, most of it from the usual sources and giving voice to an equally predictable range of sentiments, from boilerplate professions of dismay from self-styled “progressive commentators” to open gloating by the National Rifle Association (NRA) and other such fixtures of the “libertarian” right. Although neither was party to the original suit, and thus lack discernible legal standing upon which to do so, both the California attorney general and the Brady Campaign to End Gun Violence quickly filed for an en banc hearing by the full Ninth Circuit in hopes of having the Peruta opinion reversed, a maneuver that has yet to be addressed by the court itself. To date, no one has mentioned what stands to be the most ironic aspect of the whole case, however.


By and large, the earlier-mentioned prohibition under California law of openly carrying firearms in public has been treated in discussions of Peruta as if it were given, something that has always existed. That is simply not so. Throughout most of its history—from September 9, 1850, the date on which it was admitted to the Union, until June 28, 1967—open carry was perfectly legal in California. On the latter date, the state legislature passed the so-called Mulford Act, a measure named in honor of its principle sponsor, representative Don Mulford, an openly racist Republican whose East Bay district included the city of Oakland.


Explicitly intended to outlaw the practice adopted by the recently formed and Oakland-based Black Panther Party for Self-Defense of conducting armed street patrols to “police the police,” which the Panthers quite accurately characterized as an all but exclusively white “occupying army” long notorious for its routine infliction of violence upon and otherwise systematically violating the rights of those living in the city’s sprawling black ghetto, the Mulford Act cannot be rationalized as an attempt to reduce social violence, as such, whether real or potential. To the contrary, since the Panthers’ patrols, far from precipitating an uptick in ghetto violence, had demonstrably forced a marked and rapid drop-off in its gratuitous dispensation by the Oakland PD to residents in that part of the city, it was plainly meant to serve a very different purpose.


Bluntly put, the Act was in every respect akin to the Klan-endorsed and -enforced Black Codes effected by the former Confederate states during Reconstruction for purposes of disarming and thereby re-subjugating free blacks. The substance of both was/is to sanction certain modes of official and quasi-official violence, the institutional function of which was/is to keep African Americans—and, by extension, other communities of color—in the places collectively assigned them at or near the bottom of America’s sociopolitical-economic hierarchy, while simultaneously criminalizing/precluding the assumption of any viable defensive posture by those communities. At base, such laws form an essential structural component of white supremacy in the U.S. (and elsewhere, for that matter). In their absence, no system of racial domination can be stabilized, much less sustained in perpetuity.


Viewed in this light, the real motives prompting California’s virtually all-white legislature to vote overwhelmingly in favor of the Mulford Act are transparently obvious. So too, those underlying then-California governor/later U.S. president/now grand “conservative” icon Ronald Reagan’s much-vocalized support for the bill, which he signed into law immediately after its passage. It should be emphasized, moreover, that among the right’s strongest organizational proponents of the Act was none other than the NRA. So much for the Association’s pretense that its typically vociferous opposition to gun control is in any sense a principled defense of the rights of citizens guaranteed by the Second Amendment. While this may be true as regards white citizens, or at least the certifiable Good Americans among them, when, as with the Mulford Act, gun control serves the purpose of disarming “militants” bent upon empowering blacks and other peoples of color to successfully reject the white supremacist status quo, the NRA has been and remains all for it.


For their part, California’s white progressives—which is to say, its liberals—proved no less enthusiastic in their embrace of the Mulford Act than did the Cro-Magnons to their right. Unlike their more radically minded counterparts on the genuine left, those of the “responsible” variety willingly made common cause with the state’s most racist and reactionary forces, in no small part as an expedient to “removing guns from the process of social change,” or so they claimed. In this, they might be credited with evincing at a least some degree of sincerity, however hopelessly naïve, had their prescription for taking guns out of the equation included the least acknowledgment that this would necessarily require disarmament of the police as well as the Panthers (and colored folk more generally). But of course it did not, and still does not, not even to the extent of opposing the build-up of police armaments, proliferation of SWAT units, and so on, already underway in 1967.


No better illustration comes to mind of how most whites, irrespective of the stylistic, rhetorical, class, and usually superficial ideological differences seeming to divide them among themselves, invariably find consensus in defending the privileges attending their whiteness when confronted with serious challenges to the existing order. That California’s white liberal establishment now finds itself hoisted on its own petard as the result of one such maneuver gives cause for a measure of bitter mirth. The more so, since the reactionaries with whom the liberals so willingly linked arms in an effort to neuter the Panthers back in 1967 clearly outfoxed them, shortly amending the Mulford Act so that open carry of rifles and shotguns was allowed in rural—read, predominately white and conservative—areas of the state.


Cynical chuckles aside, where all this leads is anybody’s guess. Among the more hopeful prospects, however, is that Peruta and the related opinions cited above signal an unraveling of the deeply contradictory logic underpinning the mandatory imposition of “enhanced” sentences for conviction of offenses committed while in possession of a firearm. The mechanism in question has of course applied mainly to drug-related cases, themselves still subject to Reagan-era mandatory minimums and long notorious for the vastly disproportionate rates of incarceration inflicted on young African American, Latino, and—in some locales—American Indian men. The sheer cost of warehousing the results, even under conditions of outright slave labor, has already triggered a significant rethinking of the relevant statutes, accompanied by signs that increasing numbers of “nonviolent drug offenders” may see early release over the next few years. A comparable rethinking with respect to sentences arbitrarily lengthened by firearms possession stands to heighten the effect considerably.


Translated, this could ultimately mean that the outflow of dark-skinned bodies from behind the walls might finally exceed the influx for the first time in living memory. If so—and it must be admitted that any such projection is wildly optimistic—we will have ample reason to celebrate just as wildly. If not, as seems far more likely, we should—and therefore will—make good use of every gain we can register along such lines, both tactically and strategically. However things turn out in this regard, much work will obviously remain to be done. The struggle will continue.

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