NEW YORK — On April 23, the Institute to End Mass Incarceration published a forum essay arguing that the ambiguous and racialized categorization of people with felony convictions, and their exclusion from possessing firearms, is unethical.
The piece argued that although the term “felon” carries life-changing and potentially life-threatening consequences, it remains loosely defined, enabling stigma and broad punishment. People with felony convictions may have committed violent or nonviolent offenses, and conduct considered a felony in one jurisdiction may be treated as an infraction in another.
“There is no essential attribute or internal coherence to the category felony,” stated legal scholar Alice Ristroph. If convicted of a felony, the state may, when authorized by law, take away a person’s ability to vote, work, serve on a jury, own firearms, secure housing and pursue education.
The essay argued that this categorical incoherence is closely tied to America’s racist history of systemic subjugation. Transitioning from the Black Codes to the era of Jim Crow, firearm regulations evolved to become less explicit in their racial prejudice and introduced “procedural constraints that would disproportionately encumber African Americans.”
The 1911 Sullivan Law was enacted during Jim Crow and now serves as a foundation for contemporary American firearm regulations, requiring people to navigate a largely white law enforcement system in order to obtain a concealed-carry license.
After the legislative end of Jim Crow, federal gun governance formalized “hierarchical categories of citizenship,” affirming that “law-abiding citizens” stood at the top while “felons” were placed at the bottom. Individuals convicted of felonies are disproportionately overpoliced and low-income, a phenomenon the essay linked in part to the historic overpolicing of Black communities and the proliferation of race-neutral policy interventions. African Americans and Latinos, it argued, are overrepresented in the felony category.
The essay further contended that legislatures continue to fail to consider accurate assessments of an individual’s risk for violence and personal circumstances. The Gun Control Act barred certain groups from possessing firearms, including people with felony convictions, whose prohibitions were tied to the length of punishment rather than the severity of the crime or the individual’s disposition. The Bureau of Justice Statistics found that firearm misuse is characteristic not of all people with felony convictions, but of “a smaller subset of people convicted of violent crimes.”
Rearrest rates are significantly higher for people with violent priors, although the essay argued that even recidivism is an invalid measure of future dangerousness. It stated that arrest risk is shaped by surveillance and policing strategies, as well as obstacles to reentering society that substantially burden overpoliced and low-income communities. It also argued that recidivism statistics often combine technical violations with violent crimes, obscuring individual behavior and reinforcing punitive associations with the legal system.
The essay noted that most mass shooters are overwhelmingly white men who obtained their weapons legally. Over a 50-year period, the National Institute of Justice studied mass shootings in the United States and concluded that many gunmen had been considered “law-abiding citizens” before attacking public spaces. The essay argued that the nation’s selective expansion of armed self-defense perpetuates violence and death that white men have long been permitted to cause.
“A rigorous Urban Institute analysis of FBI data found that in SYG states, white-on-Black killings were ten times more likely to be deemed justified than Black-on-white killings,” said the Urban Institute. The essay argued that Stand Your Ground laws not only shield some people from consequences for killings committed in the name of self-defense, but also reveal racial and gender disparities in who is granted that privilege.
As firearm restrictions ease and more states expand the use of lethal force, the essay argued that the felony classification ensures that people most exposed to violence are among those least able to engage in armed self-defense because of the risk of returning to prison. If lifetime exclusions from the right to bear arms are to remain, it said, they should include a restoration process that is timely and tailored to the individual.
The categorical felon-in-possession model, the essay concluded, “collapses a person into a stigmatized label…distributes risk along racialized lines…and excludes criminalized populations from armed citizenship in spaces where the state cannot or will not protect them from actual violence.” It argued that the categorization of people with felony convictions must be amended, if not overturned, to protect an individual’s right to bear arms in self-defense.
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