Race and Guns, Courts and Democracy

By Joseph Blocher & Reva B. Siegel  

  Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle & Pistol Ass’n v. Bruen, 1 it is especially prominent in the brief of legal aid attorneys and public defenders2 who employed their Second Amendment arguments to showcase stories of racial bias in the enforcement of New York’s licensing and gun possession laws. Because this Second Amendment claim came from a coalition on the left, it was widely celebrated by gun rights advocates.3 This Essay argues that the racial justice concerns the public defenders highlight should be addressed in democratic politics rather than in the federal courts. We show that problems to which public defenders point are partly attributable to the Court’s decades-long abdication of equal protection oversight of the criminal justice system — its transformation of equal protection into an instrument for protecting majority  rather than minority rights.4 Actors in democratic politics can enforce equal protection in ways that courts have not and they can enforce equal protection in ways that courts cannot, by coordinating multiple racial justice goals, seeking freedom from gun violence in nondiscriminatory law enforcement and transformed, less carceral approaches to public safety.5 Only democratic actors have the institutional competence to integrate these race-egalitarian aims and to experiment with strategies for achieving them. We highlight jurisdictions where there is debate about the best toolkit to achieve inclusive forms of public safety in an era of rising crime.6 None of this is possible if the Court expands Second Amendment rights in ways that deprive communities of the democratic authority they need to coordinate these various compelling public ends 

Harvard Law Review Forum,  Vol. 135:449  2022.