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Excerpted From: Joseph Blocher and Reva B. Siegel, Race and Guns, Courts and Democracy, 135 Harvard Law Review Forum 449 (June 21, 2022) (63 Footnotes) (Full Document)


BlocherAndSiegelIs 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, it is especially prominent in the brief of legal aid attorneys and public defenders 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.

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. 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. 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. 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.

Like any instruments of power, guns and their regulation can be employed for domination or freedom, along lines of race, gender, and class. In prior work we locate government's interest in promoting public safety in this social field. Regulation that promotes public safety not only enables physical security but also the very preconditions of collective life. We show that District of Columbia v. Heller recognizes the government's prerogative to protect members of the public from weapons threats, and we argue that government must promote public safety in such a way as to protect the public sphere on which a constitutional democracy depends. “Given the commitments that define our constitutional democracy, government can regulate weapons to ensure that all persons have equal claims to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint.” Our account of public safety “does not necessarily require enacting more gun laws,” but highlights why “concerns about racial and political evenhandedness should be a central part of all conversations about the passage and enforcement of gun laws and about killings in 'self-defense.”’

In this short Essay we address issues raised by the public defenders and others contesting racial bias in gun regulation. Like the public defenders, we have emphasized the issue of racial bias in the enforcement of gun laws, and we have also objected to courts' evisceration of equal protection guarantees in the criminal law context. But we part ways with the public defenders when they turn to the courts to expand gun rights in response. The decision in Bruen might provide interim relief from New York's licensing regime, but it will not address racial bias in the criminal justice system, and most importantly, it will secure whatever relief it does at high cost by restricting the democratic authority of communities to seek freedom from gun violence through law. We favor responses that protect a community's democratic competence to experiment with the most inclusive approaches to public safety. We argue that, despite their many limitations, democratic actors can do more than federal courts can or will, and that the best current path to advance and coordinate racial justice goals is through democratic politics. We analyze the relevant constitutional values and institutions best suited to vindicate them as follows.

In Part I, we demonstrate that the public defenders' Second Amendment arguments present claims of structural racism that sound most naturally in equal protection. But because of the ways that federal courts have interpreted the Equal Protection Clause, federal courts are not likely to provide relief from the forms of bias that the public defenders describe. For this reason, the public defenders have apparently concluded that the conservative Justices are more likely to grant their clients gun rights than equality rights.

This is a dangerous bargain. The public defenders argue that the Second Amendment prohibits all gun licensing, advancing an even more expansive claim than the petitioners make and the Court is likely to grant. As importantly, the public defenders call for the elimination of gun licensing for public carry, nationwide, through judicial decree, not through politics. Whatever Second Amendment victory they help achieve will restrict the democratic authority of communities to protect themselves through law, including minority communities most ravaged by gun violence. As we see it, democratic competence is exactly what is needed to pursue and coordinate racial justice goals. The question isn't whether democratic actors are always choosing or properly coordinating these ends. Rather, the question is whether to continue the conversations now ignited or to invite federal courts to expand gun rights in ways that take control of decisionmaking out of democratically responsive institutions.

Few would dispute the public defenders' core claim: communities seeking relief from gun violence should not have to accept public safety regimes rife with racial bias. Constitutional values should guide protection of the public sphere. In Part I, we identify equal protection principles that should constrain public safety law but for the exceedingly narrow ways that federal courts have enforced them in the last several

decades. But all government actors, not only judges, should enforce the Constitution--and actors in representative government can do so with institutional resources that judges lack. In Part II, we show that democratic actors can do what federal courts won't and much more than federal courts can to advance equality in the course of protecting public safety. Actors in representative government vindicate equality as courts might when they seek evenhandedness in the enforcement of the law. But legislators, executives, administrators, and prosecutors are able to vindicate equality values in different ways than judges can. They can prevent gun violence by a range of noncarceral strategies, and, responding to their constituencies, they can debate the balance of noncarceral and criminal law means. In closing our Essay, we offer a glimpse of this practice of democratic constitutionalism, which, however limited, nonetheless offers a more robust dialogue about the meaning of equal protection in the criminal justice system than do decades of conversation in the federal courts.

[. . .]

It has been decades since the Supreme Court has demonstrated leadership in the pursuit of racial justice. The Court is ready to denounce racism of the past, but when it comes to the forms of inequality afflicting minority communities in the present, the Court too often interprets the Constitution to license inequality and to obstruct efforts to dismantle it.

It is possible that the Justices who find government discretion in gun licensing an intolerable threat to Second Amendment rights will act consistently and find the cases requiring deference to prosecutorial discretion in the criminal justice system an intolerable threat to equal protection rights. We doubt it. Instead, the Court will take another equal protection case focusing the nation's attention on affirmative action. Though many are slow to recognize it, in recent years it is the democratic process that has produced initiatives seeking racial justice in our criminal justice system, not Article III courts, whatever story Carolene Products may tell about the courts' role in protecting minorities from prejudice in the political process.

The public defenders' brief in Bruen has undoubtedly helped focus attention on concerns of Americans who for too many years have been marginalized in courts and politics. But, the public defenders' appeal to the deregulatory Second Amendment is a vote for expanding the authority of the Supreme Court and for restricting the authority of democracy. We are concerned that the Supreme Court may use claims of racism to justify expanding gun rights in ways that do not redress underlying claims of racial injustice and instead restrict the community's authority to respond to gun violence. There is a role for courts in promoting democracy; but the Roberts Court's decisions on guns and race are not democracy promoting. They embody the very forms of judicial overreach against which Carolene Products warned.

Lanty L. Smith '67 Professor of Law, Duke Law School.

Nicholas deB. Katzenbach Professor of Law, Yale Law School.

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