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The Second Amendment’s Racial Justice Complexities


The relationship between the Second Amendment and racial justice is complicated. That’s because the relationship between pe- nal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New York’s concealed carry licensing law to further racial justice, while a group of civil rights organizations argued that the law should be upheld to further racial justice. What the briefing revealed is that Black people have an interest in being free from racially disparate policing and prosecution of all criminal laws, including gun laws. But Black people also have an interest in being safe from gun violence, which they are disproportionately victims of—both at the hands of private citizens and police. Bruen ignored these interests when it announced a “history and tradition” test for judging the constitutionality of gun laws, a test that disempowers Black people by tying the constitutionality of gun regulation to a time when Black people were not fully part of the polity. In so doing, the Court frustrated another racial justice interest: the democratic interests of communities of color to regulate firearms in a manner they best see fit. When “aiming for answers,” we must acknowledge the racial justice complexities that arise in the context of gun regulation, and propose solutions that promote Black people’s interests in liberty, safety, and self-governance.