NYSRPA V. Bruen: Weaponizing Race

Abstract

While the Supreme Court has weaponized race—particularly America’s history of anti-Black racism—to expand the reach of the Second Amendment, it has not sought to ensure Black people have equal access to the right to bear arms now that the right is broader than ever before. More pointedly, the Court has not seemed keen on revisiting its Fourth Amendment policing doctrines that make public carry for Black people particularly precarious.

As this essay explains, itinerant invocations of racial justice are inadequate and potentially harmful. While, as some argued, the total elimination of gun licensing regimes may result in the reduced prosecution of Black people for gun possession, it also creates a whole new racial justice threat from law enforcement. Without serious revisions to Fourth Amendment policing doctrines, along with a real reckoning with the anti-Blackness endemic to America (but not only to America), Black people will never bear arms the same as white people. Or put differently, if a Black person does decide to carry a gun as freely as a white person, it will be at their peril. Bruen invokes racial justice without considering the full picture of America’s racial injustice.

Keywords: Race and the Law, Criminal Procedure, Second Amendment