I don’t think gun owners were ever going to be jumping for joy over any of the candidates on Joe Biden’s short list to replace the retiring Stephen Breyer as an Associate Justice on the Supreme Court, but Ketanji Brown Jackson, a judge who was confirmed to her current position on the Court of Appeals for the D.C. Circuit just last year, might actually have the potential to side with the right of the people to keep and bear arms, at least in certain circumstances.
Now, don’t misunderstand me. I don’t think that Jackson is the second coming of Antonin Scalia, and if she’s confirmed as a Supreme Court justice I would expect her to generally adopt a Breyer-esque view of the Second Amendment that allows for all kinds of restrictions, regulations, and even infringements on the right to keep and carry a firearm for self-defense. Jackson hasn’t really dealt with many gun-related cases while serving on the D.C. Court of Appeals, and her testimony during her confirmation hearing for that position doesn’t shed much light on how she views the issue, but as the New York Times notes, during the several years she spent as a U.S. District Judge in D.C., her rulings were generally what you’d expect from a progressive member of the judiciary.
But Jackson also spent several years as a public defender as well as being appointed to the U.S. Sentencing Commission, which gave her an opportunity to see firsthand how gun control laws disproportionately impact lower-income and minorities who live in high-crime neighborhoods. Public defenders see the failures of gun control regulations on a daily basis, and some of the most eloquent and effective arguments against these types of laws have come from public defenders who’ve sided with the Constitution; including New York public defenders who filed an amicus brief in the Bruen case urging the Supreme Court to toss out New York’s “may issue” carry laws.
The chief public defender in Cook County, Illinois has taken a similar stance when it comes to Illinois’ gun control regime, arguing not long ago in the pages of The Nation that “there is no Second Amendment on the south side of Chicago”.
As the leader of the Cook County Public Defender’s Office, which represents the majority of people accused of criminal offenses in Chicago and its suburbs, most of whom look like me, I stand with those defender offices. While I support policies that actually stem the flow of guns, prevent violence, and heal those who have been harmed, I also support ending the way we criminalize gun possession. I do this because there is no Second Amendment on the South Side of Chicago.
Despite the Second Amendment’s claimed protections—that have only expanded in the last 60 years—Black and brown men in New York, Chicago, and other localities around the country aren’t protected like white gun owners: We’re arrested, prosecuted, and warehoused in prisons. The questioning by Supreme Court Justices in the oral arguments underscores a major reason why: Guns in the hands of Black and brown people are seen as a threat to public safety, while in the hands of white gun owners they are viewed as an essential means of self-defense—a constitutional right. Embedded in the justices’ inquiries—full of racially coded language and myths about “high-crime areas” and “muggings”—was a false assumption that police keep communities safe and a dangerous distinction between “these people with illegal guns” (read: Black people living in cities) and “ordinary hardworking people” who have to commute home every night (read white people in the suburbs).
This isn’t the type of pro-2A argument that you’re likely to hear from the stage at CPAC, but I’d argue that it could and should resonate with a justice like Jackson if she’s ultimately confirmed as the newest member of the Court. Given her previous experience as a public defender (as well as seeing her uncle sentenced to life in prison for a non-violent drug offense, I’d like to think that Judge Jackson would more amenable than your average progressive in recognizing that the case for the Second Amendment can be made on liberal as well as conservative grounds, because she’s seen firsthand the damage that is done when the right of the people to keep and bear arms is curtailed and criminalized against the people with the most pressing need to have a gun in self-defense.
Maybe this is too optimistic a take and Jackson will prove to be a reliable ally for gun control activists and someone who ends up voting to uphold any and all gun control laws that come before the Court. That’s still the most likely outcome, to be honest. But of all of the names on Biden’s short list of candidates, I still think that Ketanji Brown Jackson has the greatest potential to buck expectations and at least occasionally side with those citizens hoping to decriminalize their right to keep and bear arms.