The Hidden Arm of the Law: Examining Administrative Justice in Gun Carry Licensing

• Published date: 01 June 2017
• DOI: http://doi.org/10.1111/lasr.12263
• Date: 01 June 2017

The Hidden Arm of the Law: Examining

Administrative Justice in Gun Carry Licensing

Jennifer Carlson

Responding to callsto “decenter” American penality beyondthe carceral appa-

ratus, this articleethnographically examines administrative process anddissects

how it interlocks with criminal justice. To do so, it draws on an admittedly

unusual, but theoretically generative, case: administrative gun boards, charged

with issuing,denying, revoking, and suspendinglicenses to conceal carry a fire-

arm. While scholars have examined gunownership and gun carrying as a social

practice,less attention has been paid to gun licensingas a state practice. Drawing

on observations of over 900 cases from gun board meetings in two counties in

Michigan, this pap er examines how a dministrative pro cess mimics,supplements,

and facilitates criminal justice through three mechanisms: procedural pains, in

which administrative process resembles criminal justice; parallel punishment,

in which administrative process supplementscriminal justice throughwithhold-

ing of benefits, entitlements or licenses;and valve-turning, in which administra-

tive process funnels, or threatens to funnel, claimants into the criminal justice

system. Revealing how administrative process and criminal justice become

mutually reinforcing, the findings extendand integrate scholarship that shows

the material, symbolic, and psychic implications of criminal justice contact, on

the one hand, with the increased tendency of administrative contexts to resem-

ble criminaljustice institutions, on the other.

In recent decades, criminologists, sociologists, political scientists,

and legal scholars have interrogated the expansive ramifications

of the U.S.’s penal apparatus. According to the Bureau of Justice

Statistics, by 2015s end, 6.7 million Americans were under correc-

tional supervision, including 2.1 million incarcerated in prisons

and jails (Kaeble & Glaze 2016). Though declining in recent

years, these staggering figures continue to mark penal

I am grateful for insights throughout the development of this project that were provid-

ed by Jennifer Alexander, Randol Contreras, Kelly Hannah-Moffat, Melanie Heath, Val-

erie Jenness, Paula Maurutto, Sally Merry, Josh Page, Poulami Roychowdhury, and

Mariana Valverde. I would like to especially thank Phil Goodman for his generous feed-

back as I developed this manuscript. Generative questions and comments from colloquium

participants at University of Arizona, University of California, Irvine, University of Califor-

nia, Riverside, University of Massachusetts, Amherst, and University of Ottawa also sharp-

ened the analysis. All errors are the author’s. This study was funded by the University of

TorontoConnaught New Researcher Award.

Please direct all correspondence to Jennifer Carlson, Social Sciences 400, P.O. Box

210027, Tucson,AZ 85721-0027; e-mail: jennifercarlson@e mail.arizona.edu.

Law & Society Review, Volume 51, Number 2 (2017)

V

C2017 Law and Society Association. All rights reserved.

346

exceptionalism in the United States. Not only have scholars dis-

sected the carceral state and the impact of incarceration on civic

engagement (Lerman & Weaver 2014), family relations (Comfort

2009), and community ties (Rios 2011; Wacquant 2001), but they

have also examined post-carceral (Pager 2003; Uggen et al. 2014)

and noncarceral punishments such as probation (Phelps 2013)

and misdemeanor justice (Kohler-Hausmann 2013).

Alongside a focus on the carceral state, however, punishment

scholars have increasingly focused attention on broadening the

analytical scope of the contemporary penal complex, characterizing

a much larger apparatus of state control as a “shadow carceral

state,” a “carceral archipelago,” and even a “penal mobile” (Beck-

ett & Murakawa 2012; Foucault 1977; Velloso 2013). As Zedner

(2016: 5) notes, “until we displace the dominance of the prison in

our theorizing to recognize financial and non-custodial penalities

as core cases of punishment, our ability to conceptualize penality

or chart its boundaries is limited.” I extend these interventions by

moving beyond the criminal justice system to ethnographically

examine administrative justice as a mechanism of penality.

Administrative justice involves decision-making processes in

administrative contexts, such as welfare hearings (Garland 1981;

Gustafson 2011; Lens 2009; Lens et al. 2013), disability hearings

(Mashaw 1983), municipal boards (Valverde 2012), driver’s license

hearings (Earl 2008), immigration hearings (Bosworth & Kaufman

2011; Gilboy 1988), and gun boards (the present a nalysis). While

administrative justice constitutes a penal field (Page 2012) that

complements criminal justice mechanisms (Beckett & Murakawa

2012; Velloso 2013; Zedner 2016), administrative mechanisms are

conceptually, practically, and legally distinct. Administrators oper-

ate in a realm of “quasi-penal measures” (i.e., welfare benefits,

driver’s licenses, or gun licenses lack de jure status as penal sanc-

tions but may function as such de facto; Zedner 2016: 8). Because

administrative procedures fall under less strict due process

requirements as compared to criminal procedure (see Goldberg v.

Kelly [1970] and the due process revolution), administrative justice

can be accomplished by means distinct from criminal justice.

While existing scholarship often mobilizes legal and theoreti-

cal approaches to unpack the administrative-criminal justice nex-

us, this article contributes an ethnographic lens in order to clarify

the microlevel mechanisms by which this nexus is achieved and

sustained. I examine administrative gun boards in Michigan.

Staffed largely by officials drawn from public law enforcement,

these boards were charged with issuing, denying, revoking, and

suspending licenses to conceal carry a firearm, known as Con-

cealed Pistol Licenses (CPLs). In most U.S. states, residents can

legally carry firearms under so-called “shall-issue” laws.

Carlson 347

According to these laws, licensing officials are required to issue

licenses if licensees fulfill statutory requirements. Roughly 13 mil-

lion Americans are licensed by their state to carry a concealed

gun (Burnett 2016). Scholars have explored reasons why Ameri-

cans own and—by extension—carry firearms, including concerns,

often racialized, about crime and police inefficacy (Smith &

Uchida 1988; Young 1985; Young et al. 1987); status anxieties,

particularly among white working class men, about declining

political, economic and social power (Burbick 2006; Melzer

2012); and conservative cultural dispositions toward risk (Kahan

& Braman 2003). Gun owners and gun carriers themselves over-

whelmingly assert they are motivated by self-defense and person-

al safety (Carlson 2015; Swift 2013). Finally, the CPL also

functions as an employment credential for members of the pri-

vate security industry. Thus, the stakes for prospective licenses

can be wide ranging: an ideological assertion of identity, a desire

for protection from crime, and a concrete means of financial

security. As my analysis shows, gun board claimants typically

voiced concerns regarding crime and employment.

While scholars have examined gun ownership and gun carry-

ing as a social practice, less attention has been paid to gun licens-

ing as a state practice (be see Ewald 2016; Dubber 2001). To that

end, I analyze observations of 936 cases from gun board meet-

ings in two counties—one lower-income, predominantly African-

American urban county and one middle-to-upper-income, pre-

dominantly white suburban county. At the time of my research,

gun boards in Michigan provided a public forum dedicated

exclusively to hearing complaints regarding CPL decisions. That

said, a note about generalizability should be made upfront: While

a handful of states maintain similar systems (Rose 2013), most

states have no public board dedicated to this purpose; instead,

claimants must file a court appeal (as is now the case in Michigan)

or submit a written administrative appeal. In this article, there-

fore, my goal in using gun board observations is not to make a

general argument about gun licensing as much as to use gun

boards to understand how administrative process and criminal

justice reinforce one another.

Drawing on gun licensing procedures, I examine three mech-

anisms through which administrative justice mimics,supplements,

and expands criminal justice. First, I show that administrative jus-

tice resembles criminal justice to the extent that it mobilizes the

tactics and techniques usually associated with the procedural

punitiveness of misdemeanor justice (Feeley 1979; Kohler-

Hausmann 2013). I use the term “procedural pains” to capture

how administrators mobilize paperwork and bureaucratic hurdles

as a penal mechanism as claimants move through the licensing

348 The Hidden Arm of the Law