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Gun extremists, whose grasp of constitutional law and American history is typically as firm as their grasp on empathy and decency, have been telling us for some time that a well-armed populace is necessary to keep tyranny at bay. The recent announcements that white police officers would not face trial for shooting unarmed black men would seem to provide a good opportunity for these anti-oppression patriots to protest governmental abuse.

Sure, armed white private citizens have been conspicuously absent from the struggle against actual governmental oppression in U.S. history Native American genocide, Jim Crow, womens subjugation, Japanese internment camps but things might be different this time, right?

After all, Open Carry Texas recently planned to educate the black residents of Houstons Fifth Ward about their gun rights by marching with semiautomatic rifles and a bullwhip through their residential streets, and gun rights activists frequently inform us that their struggle for guns everywhere is just like the struggle for black civil rights, because endangering the public with loaded firearms is, apparently, just like not being white.

So how did gun extremists react to the news that Darren Wilson would not face trial for killing an unarmed fellow citizen? Lets first turn to CJ Grisham, the head of Open Carry Texas whose Facebook profile photo shows him being arrested after he baited the police into a confrontation over a toy gun at the Texas Capitol, and who recently opined that three cop cars at the mall parking lot on Black Friday shows that America is a police state.

Racists will most likely begin rioting, wrote Grisham after the grand jury announcement. This is one of those instances I would stand in arms at the side of the police.

Meanwhile, Kory Watkins, Grishams fedora-sporting protg and head of Open Carry Tarrant County, marked the occasion of the Ferguson announcement by going cop-blocking, his new, crowd-funded freedumb hobby in which he monitors a police scanner, then shows up to pester the police with a camera and his gun, for which, notably, the police have never shot him. On the night of the Ferguson announcement Watkins and his well-regulated militia took to the streets of Arlington to warn misbehaving drivers of speed traps. Then, on his way home from fighting the oppression of traffic laws, Watkins was hit by a drunk driver and his car was totaled. Although he longs for a libertarian utopia in which all policing is performed by vigilantes, he called the police anyway and was slapped with a $300 ticket. I have no DL, he explained to his groupies. I dont ask permission to drive a car I paid for on a road I paid for, he said, before his acolytes opened a charity page to pay for his car.

Some hatriots actually showed up at protests around the country with guns predictably, they were there to menace protesters rather than to stand in solidarity against governmental oppression. Jumping at the possibility of hunting black people, Oath Keepers went to St. Louis and stood on rooftops threatening to shoot looters. In Dallas, the armed open carry group Come and Take It stalked protesters as they marched against the non-indictment, claiming to be protecting private property against riots, despite the fact that the marchers were peaceful and that nobody gave Come and Take It the legal authority to use lethal force to protect strangers property. This didnt stop right-wing media like Intellihub from claiming that the vigilantes prevented a looting free-for-all and race war on the streets of Dallas.

Other guns-everywhere patriots took to social media to post racist memes, swapping photos of monkeys swarming cars, doctored photos of Mike Browns body, and cops dispersing a crowd by dropping job applications on them generally relishing the fact that an armed agent of the government had gotten away with killing someone, and that a militarized police force was tear-gassing their fellow citizens. When a video showing a car barreling through nonviolent protesters went viral, liberty lovers in gun rights groups responded predictably: FUCK THEM!

I LOVE IT! FUCKING WORTHLESS MUNKEES wrote a gun extremist whose profile photo is a skull and whose cover photo is a picture of the baby Jesus. I was hoping youd see the windshield get holes from the inside out, commented the secret groups admin, who has aspirations to be a cop. Whats the difference between a deer in the road and black rioters? Nothing, you hit the gas for both, commented another. Later a news story broke about a pregnant black woman who was a passenger in a car in St. Louis and lost an eye when police shot her in the face with a beanbag. Commenters who regularly expose their children to guns said, Dont feel for the bitch at all. Call CPS endangerment of a child and Her pregnant ass should have been at home.

Ferguson provides us with yet more evidence that what gun extremists mean by freedom is really the freedom to insist on the special social and economic supremacy of armed white men its not about fighting oppression, its about violently intimidating a nation with changing demographics into recognizing the continued special status of white conservative men. When gun extremists see Wilson and Brown, they dont care about oppression because they dont see themselves as the oppressed party. They identify with the white man with the gun, because, for them, now as always, white and might make right.

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Gun nuts racial duplicity: How Ferguson and Garner undermined their Second Amendment crusade

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Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences, based on the constitutional right to bear arms. Note that the government has appealed the district courts decision in Binderup v. Holdercited in note 8, discussed here a few weeks ago. Binderup is acivil rights action in which the court held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation. This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.

Alan Gura, who represents Mr. Binderup and argued both Heller and McDonald v. City of Chicago in the Supreme Court, has promised to give us a comment about the Binderup appeal and other pending Second Amendment challenges to felony dispossession laws involving people with dated non-violent convictions. The tricky and fascinating question presented by these as-applied challenges is what criteria should be used to test whether an individual with a criminal conviction is within the class historically barredbarred from Second Amendment protections or is no more dangerous than a typical law-abiding citizen. U.S. v. Barton, 633 F.3d 168, 174 (3d Cir. 2011).Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, should keep an eye on this space. (I was told several years ago that a substantial percentage of the requests for full pardon pending in the Justice Department are from people seeking restoration of firearms privileges. It strikes me as exceedingly strange that people with dated non-violent federal convictions should have to petition the president to regain what we may soon learn are their constitutional rights, but that is the situation the Supreme Court left us with their dubious 1995 decision in Beecham v. U.S.).

2:36. Firearms restrictions Second Amendment challenges to felony dispossession laws

In 2008, the Supreme Court held in District of Columbia v. Heller[1] that the Second Amendment confers a personal, fundamental right to possess a firearm, thus opening an entirely new basis for defending against the application of statutes making it a crime for convicted felons to possess firearms.[2]Heller itself anticipated and sought to deflect constitutional challenges to conviction-based firearms restrictions by declaring them to be longstanding and presumptively lawful[3]but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.[4]

While every federal court to have considered the issue post-Heller has rejected a Second Amendment challenge to the federal statute barring convicted felons from possessing firearms,[5] three federal courts of appeal have suggested that categorical firearms bans may not survive rational basis review as applied to individuals convicted of nonviolent felonies.[6]

In U.S. v. Barton, the Third Circuit noted that a successful as applied challenger

must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.[7]

The first case to sustain an as-applied challenge to the federal felon-in-possession statute relied upon this language from Barton in finding that an individual convicted of a non-violent sex offense and sentenced to probation sixteen years before could not be prosecuted under it.[8] Earlier, the North Carolina Supreme Court relied upon the right to bear arms provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, whose firearms rights had been restored under an earlier law, and who had long since demonstrated his rehabilitation.[9]

[1] District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

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