Volume 98, Number 6

December 2023

Policing in the Age of the Gun

Brandon del Pozo, Barry Friedman

This Article examines how the rapid deregulation and rampant possession of firearms is likely going to impact policing, and the constitutional law that governs it. For the longest time, lawful gun carry, concealed or open, was exceedingly rare. For a police officer to see a gun was both to see danger, and a crime in progress. This link among guns, danger, and unlawful possession has shaped much of the law of policing. But now, this understanding of the world is in its last stages of unraveling.

In nearly all states, guns are no longer unlawful to own and carry by default. In many, they are barely regulated. Recent Supreme Court Second Amendment decisions like New York State Rifle & Pistol Association v. Bruen serve only to hasten where state laws already were headed. For police, however, the harm guns can do exists irrespective of what the law has to say about the legality of carrying them. As a result, the nation’s gun laws are on a collision course with the practice and law of policing. This Article explores how the constitutional law governing policing is changing and will change in the face of gun legalization.

Part I of this Article explains the ubiquitous role guns play in the life of a police officer, and what actions guns lead police to take. Part II is about the legal doctrine of policing, both before and after firearm legalization. It details how the law shaped what police could do in order to protect themselves and others, and how that law is changing to accommodate legalization. Police now must operate in a terrain that increasingly is uncertain as to their lawful authority, and that in many instances may put them or others in jeopardy. Part III examines how the shifting laws of guns and policing might impact police behavior, likely resulting in ad hoc carve-outs for police authority that—if history is any guide—overwhelmingly will be imposed on Black and Brown communities.