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.
— Mark Joseph Stern in Progressive Judges May Have Found a Use for Clarence Thomas’ Terrible Guns Ruling