Arguing that Second Amendment rulings are serving "as a tool of progressive constitutionalism"

This new Slate commentary by Mark Joseph Stern, headlined "Progressive Judges May Have Found a Use for Clarence Thomas’ Terrible Guns Ruling," notes the alignment of judges in the recent en banc Third Circuit ruling in Range (discussed here) and makes some notable claims developing about Second Amendment jurisprudence.  Here are excerpts:

Will progressive judges ever find use for the Supreme Court’s recently expanded and disastrous interpretation of the Second Amendment? A major ruling on Tuesday suggests that they already are.  By an 11–4 vote, the U.S. Court of Appeals for the 3rd Circuit held that some people convicted of felonies retain their right to bear arms. The decision drew support from judges across the ideological spectrum, uniting the court’s most conservative and liberal judges despite — or perhaps because of—its potentially revolutionary implications. This consensus suggests that we may be entering a new era of Second Amendment litigation, one in which left-leaning judges reluctantly embrace gun rights as a tool of progressive constitutionalism....

What’s behind the cross-ideological support for Range?  Probably not a deep certainty that Hardiman’s cursory historical overview and logic were correct, at least on the left flank of the court: In her exhaustive dissent, Judge Cheryl Ann Krause, an Obama appointee, eviscerated the majority’s historical analysis with a mountain of evidence proving that “legislatures have historically possessed the authority to disarm entire groups, like felons, whose conduct evinces disrespect for the rule of law.” (Krause also pointed out that Range’s conduct would have been a capital offense in 1791, and it’s difficult to see how a crime could be punishable by execution but not disarmament.) In Bruen, though, Justice Thomas simply ignored or discredited any evidence that did not fit his preferred narrative, tacitly inviting lower courts to do the same.  We are long past the point of pretending that the actual historical record matters to judges who are eager to bulldoze gun safety laws.

What’s a progressive judge to do?  Public defenders have already offered an answer: employ the Second Amendment in furtherance of progressive constitutional values like equal protection and the rights of criminal defendants.  Because so many high-profile gun cases are manufactured by conservative activists — including this one — it’s easy to forget who’s really on the front lines of the Second Amendment revolution: criminal defense attorneys representing indigent clients charged with firearm offenses.  (It’s telling that one Biden appointee who joined the majority in Range, Arianna Freeman, spent her entire legal career as a federal public defender.)  Public defenders have a Sixth Amendment obligation to provide their clients with a zealous defense, which increasingly includes constitutional challenges to gun restrictions.

That’s why New York City’s public defenders filed a brief in Bruen urging the Supreme Court to strike down nearly all limitations on public carry.  And it’s why the 3rd Circuit’s top public defenders — Freeman’s former colleagues — filed a similar brief in Range attacking the federal felon-in-possession ban.  The Supreme Court’s Second Amendment decisions all envision “law-abiding, responsible citizens” who seek to protect themselves and their families from violence.  But in the real world, the people who have the most to gain from these rulings are criminal defendants facing down years or decades in prison.  Recent decisions establishing a right to scratch out a gun’s serial number and purchase a firearm while under indictment or restraining order all arose out of criminal prosecutions, not NRA-backed test cases.

Like a growing number of public defenders, liberal judges like Freeman, Ambro, Greenaway, and Montgomery-Reeves may think that the Second Amendment can be repurposed as a weapon against over-policing and mass incarceration.  If upheld by the Supreme Court, Range will certainly be a boon to the criminal defense bar, as well as a source of immense confusion for prosecutors.  The majority’s standard is extraordinarily vague: It acknowledges that some people may be disarmed for committing a felony, but a person “like Range” could not.  How can judges tell when someone falls on Range’s side of the line?  The majority didn’t say.  In 2019, then-Judge Amy Coney Barrett took a stab at a clearer standard, asserting that only “dangerous” and “violent felons” may be disarmed.  But which crimes count as “violent”?  Is selling or using cocaine “violent”?  How about possessing child pornography?  Drunk driving?  Burglary? Harassment?  In a 2015 decision, the Supreme Court found it impossible to give the term “violent felony” a “principled and objective” standard.  Why should courts have any more luck today?

This uncertainty would force prosecutors to think twice before bringing felon-in-possession charges, asking first whether they could persuade a court that the defendant is sufficiently “dangerous” or “violent” or “non-law-abiding” to justify disarmament.  And from a criminal justice reform perspective, that’s not necessarily a bad thing.  Plenty of left-leaning commentators have argued that the felon-in-possession ban is disproportionately enforced against people of color, contributing to mass incarceration and persecution of minority communities.  For many progressives, these problems raise concerns about equal protection, unlawful policing, and unconstitutional sentences.  But this Supreme Court doesn’t see them that way; it cares far more about gun rights than traditional civil rights, such as basic civic equality of Black Americans.  So progressive judges may instead seek to use the Second Amendment as a stand-in for constitutional principles that SCOTUS has abandoned.

If that’s the strategy, it carries real risks.  Most obviously, this approach risks legitimizing a sweeping and lethal interpretation of the Second Amendment during an epidemic of gun violence in America.  Liberal support for an expansive right to bear arms could entrench decisions like Bruen, contributing to their status as “settled” precedent that will be harder to overturn in the future.  In 2023, though, progressive judges must take their wins wherever they can find them.  Only they can decide whether the trade-offs are worth it.

A few prior related posts:

• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"?