Guns and Drugs

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass incarceration.

Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in this Article, I highlight the ways that the same issues persist in an area—possessory gun crime—that receives much less criticism. Appreciating the broader applicability of the drug war’s critiques should lead to an examination of flaws in the criminal justice system that lessen its capacity for solving social problems.