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.
Like any instruments of power, guns and their regulation can be employed for domination or freedom, along lines of race, gender, and class.7 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.8 We show that District of Columbia v. Heller9 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.”10 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.’”11
In this short Essay we address issues raised by the public defenders and others contesting racial bias in gun regulation.12 Like the public defenders, we have emphasized the issue of racial bias in the enforcement of gun laws,13 and we have also objected to courts’ evisceration of equal protection guarantees in the criminal law context.14 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.15 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.16 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.17 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.18 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.19 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.
I. The Public Defenders’ Second Amendmentand Equal Protection Claims
While the public defenders’ brief presents itself as making claims rooted in the Second Amendment, almost every line of argument involves claims about race and law enforcement that seem most naturally rooted in the Equal Protection Clause of the Fourteenth Amendment.
The brief points to racialized patterns in the exercise of government discretion. It describes a regime in which the state grants few gun licenses to people of color and then disproportionately prosecutes people of color for possessing a gun without a license.20 As one of the authors of the brief put it in an article explaining their argument, “New York has total discretion over whether you can possess a firearm at all, anywhere,” and “[w]hat’s actually happening is that the NYPD is marching around the city taking firearms from Black and brown people every single day.”21 The public defenders object that government delivers public safety in a carceral form that is not healthy, dignified, or even safe for their clients in communities of color.22
The natural doctrinal home for this kind of argument would seem to be the Equal Protection Clause, the “central purpose” of which is to address “official conduct discriminating on the basis of race.”23 The constitutional evaluation of a licensing law — like New York’s — that is facially neutral but alleged to be enforced in a race-based manner is not a new problem for Fourteenth Amendment doctrine.24 And yet there is no equal protection claim in Bruen. Why not?
One obvious explanation is that, thanks to doctrinal changes advocated and implemented by conservative Justices, it is nearly impossible to prevail on an equal protection challenge to the enforcement of a facially neutral criminal law like New York’s. The Court first required a plaintiff to prove that enactment or enforcement of the law is motivated by discriminatory purpose25 and then defined the discriminatory purpose standard in terms that are virtually impossible to satisfy.26 Federal courts have been especially resistant to statistical evidence of discriminatory purpose in the criminal law context, where Justices have emphasized that this method of proving equal protection violations could limit prosecutorial discretion.27
Briefs in Bruen suggested that modern statutory regimes that invest government officials with discretion perpetuate race discrimination of the past.28 During oral argument, some Justices were receptive to the claim that government discretion in gun licensing is inconsistent with the protection constitutional rights deserve.29 We would be amazed if these same Justices attacked doctrines that protect prosecutorial discretion in cases alleging selective prosecution on the basis of race or political viewpoint.30
II. Public Safety and Racial Justice
The public defenders are right to shine a spotlight on the inequitable and inefficient carceral system that ensnares so many of their clients. The pattern of law enforcement they depict derails lives and families and undermines public safety rather than promotes it:
It is not safe to be approached by police on suspicion that you possess a gun without a license. It is not safe to have a search warrant executed on your home. It is not safe to be caged pretrial at Rikers Island. It is not safe to lose your job. It is not safe to lose your children. It is not safe to be sentenced to prison. And it is not safe to forever be branded as a “criminal,” or worse, as a “violent felon.”31
Our concern is with the remedy they propose: judicial expansion of Second Amendment rights. Depending on how the Court rules,32 this remedy could provide short-term relief to some, but in a way that imposes substantial costs on others.33 Experience suggests that expanded gun rights have tended to privilege white gun carriers — whether acting in public spaces34 or in self-defense.35 Whether or not this bias persists, expanding Second Amendment rights to favor those who wish to defend themselves with guns necessarily restricts the ability of communities to defend themselves through law.
Communities of color highly value self-defense through law. A recent poll found that “[a]bout eight-in-ten Black adults (82%) say gun violence is a very big problem — by far the largest share of any racial or ethnic group.”36 A different poll found that “[m]ajorities of Black adults (75%), Asian adults (72%) and Hispanic adults (65%) say that gun laws should be stricter, compared with 45% of White adults.”37
Such support is not hard to understand, given that communities of color suffer vastly disproportionate harm from gun violence. Black Americans are ten times more likely than white Americans to die from gun violence.38 In 2017, Black people comprised thirteen percent of the population but fifty-nine percent of firearm-related homicide victims.39 Young Black men are twenty times more likely to die in a firearm homicide than young white men, and Black teenagers and young men (ages fifteen to thirty-four) make up thirty-seven percent of the nation’s gun homicides despite comprising just two percent of the population.40 Losses of this kind make “[f]irearm violence . . . a racial justice crisis”41 for communities of color and make it especially urgent to find approaches to public safety that do not reflexively depend on criminal law enforcement — even if it somehow could be stripped of its many forms of bias.
As we emphasized at the outset of this Essay, public safety is a civil rights issue. In a constitutional democracy, public safety protects the public sphere in which all have a right to participate.42 That means designing and enforcing public safety regimes in such a way as to defend all persons’ claims to security and to the exercise of liberty, whether or not they are armed and however they may differ by race, sex, or viewpoint. And when we confront evidence that existing public safety regimes deliver security along lines of race, sex, and class, this same commitment to equal participation makes clear why we need to reimagine and transform those regimes so that they deliver more inclusive forms of public safety that alleviate and do not aggravate status inequality.
The most elemental goal is to end the discriminatory enforcement of the criminal law that federal courts have for too long refused to review and redress. But nondiscrimination in law enforcement is not enough. Nondiscrimination can reduce but by no means eliminate the disparate burdens of the criminal law on communities of color.43 Because enforcement of the criminal law can damage communities in myriad ways — as the public defenders’ brief so vividly emphasizes44 — it is critical for those designing public safety strategies to reduce reliance on the criminal law and to involve other parts of government in implementing policies that prevent violence, with the goal of making criminal law the strategy of last rather than first resort.
This drive to minimize reliance on the criminal law in achieving public safety has already begun to shape efforts to redress and reduce intimate-partner violence with new initiatives “that are not focused on criminal intervention or are focused on a reimagined criminal justice response.”45 There is parallel development in the gun violence prevention context. At the national and local levels, advocates seek fewer prosecutions for gun possession crimes and more resources for background checks or community violence intervention programs, which “have been shown to break cycles of violence by connecting high-risk individuals to wraparound social services,” including violence interruption, counseling, education, and employment opportunities.46 Such programs were pioneered by activists and community groups, and have now — thanks to developing partnerships with the White House’s Domestic Policy Council — become a centerpiece of the Biden Administration’s gun violence prevention plan.
In some cities, progressive prosecutors have campaigned on proposals for combatting gun violence that lead with noncarceral interventions and follow with measured gun-control legislation and enforcement policies.47 San Francisco District Attorney Chesa Boudin demonstrates that many of these prosecutors understand their role constitutionally, as promoting public safety in a way that also promotes equality and procedural fairness.48 Brooklyn District Attorney Eric Gonzalez emphasizes “that the choice between safety and constitutional protections, especially in communities of color, is a false choice.”49 And with this understanding of their role, the prosecutors are exploring new approaches to securing public safety.50 In New York, for example, Manhattan District Attorney Alvin Bragg was elected on a platform that treats gun violence as a “civil rights and equality issue.”51 Philadelphia District Attorney Larry Krasner has issued a remarkable report that over nearly two hundred pages examines the root causes of the city’s gun violence crisis; the report scrutinizes the record of two thousand shootings and sets out evidence-based public safety strategies “with elements of enforcement, intervention, and prevention to achieve both short-term and long-term reductions in gun crimes” that are recommended by different branches of city government.52 The commitment to enforcing constitutional guardrails can spark policy innovation and identify more efficient public safety strategies. It also sparks intragovernmental debate.
There is an accumulating body of evidence that reducing prosecution and incarceration for certain offenses is efficient as well as equitable,53 and cities are weighing these new constitutionally informed approaches to public safety. Because the reforms defy decades of police and prosecution practices, and because the prosecutors are trying to implement the reforms at a time of rising gun violence, the initiatives have provoked backlash from city officials and from electoral campaigns whose financing and basis of support remain murky. Resistance may reflect the reflex of law enforcement and the views of the wealthy few who finance the campaigns; but it may also reflect the anxiety of officials or voters who instinctively want to attack rising gun violence with maximum law enforcement, even if the old ways are inefficient and inequitable.54
In short, government officials are now seeking to coordinate nondiscriminatory law enforcement and transformed, less carceral approaches to public safety and are debating the proper balance between them.55 Whatever the deficiencies of New York City’s reform efforts, a Supreme Court decree enforcing Second Amendment rights is not likely to improve upon these initiatives. Communities need a wide range of resources to combat gun violence, and, critically, they need the democratic authority to experiment with and deliberate about how best to preserve the public safety of all their members, when both human life and the shape of constitutional community are at stake. The question of how to deliver public safety equitably and effectively is likely to vary across communities and over time, and, especially at present, is more likely achieved through democratic politics than 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,56 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.57
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.58 We doubt it. Instead, the Court will take another equal protection case focusing the nation’s attention on affirmative action.59 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,60 not Article III courts, whatever story Carolene Products61 may tell about the courts’ role in protecting minorities from prejudice in the political process.62
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 Amendment63 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. We thank Joshua Aiken, Monica Bell, Khiara Bridges, Jennese Calvo-Friedman, Janet Carter, Jake Charles, Elizabeth Hinton, Duncan Hosie, Doug NeJaime, Tracey Meares, Louise Melling, Darrell Miller, Matt Post, and Laura Portuondo for comments, and Bardia Vaseghi, Danny Li, and Ali Rosenblatt for re-search assistance.