Race and Guns, Courts and Democracy

14 Pages Posted: 9 Feb 2022 Last revised: 22 Jun 2022

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

Reva Siegel

Yale University - Law School

Date Written: February 27, 2022

Abstract

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 and Pistol Association 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.

In this 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 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.

Keywords: Second Amendment, Equal Protection, race, racial justice, courts, policing, prosecution, public safety, public health, community violence, nondiscrimination, Heller, Bruen, public defender, discriminatory purpose, noncarceral, guns and race, prosecutorial discretion

Suggested Citation

Blocher, Joseph and Siegel, Reva B., Race and Guns, Courts and Democracy (February 27, 2022). Harvard Law Review Forum, Forthcoming, Yale Law School, Public Law Research Paper Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2022-16, Available at SSRN: https://ssrn.com/abstract=4012146

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

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