As you would expect, this Supreme Court case has generated the usual briefs from gun rights advocates: the N.R.A., gun clubs, libertarian scholars, Republican politicians. What is strange, and disheartening, is that the petitioners have also received support from a group of prestigious and seasoned New York public defenders, who argue that the New York law should be overturned — not really on Second Amendment grounds, but because of the way the law is enforced against their clients, Black and brown, poor defendants who need to carry guns for self-defense. The public defenders argue that, historically, permits have been issued unevenly, and that still today, in many places, it is easier for whites and members of the middle class to get permits than it is for people of color and the poor. And they argue their clients should have guns just like other Americans do. In other words, the progressive left has met far right in describing dangerous streets and the need to be armed on them.
Theirs is not a legal argument, but a political one, and is unlikely to sway a Supreme Court focused on the text and original meaning of the Constitution (though the court may find it a useful fig leaf if it decides against New York). It is meant to shock, and it does, in its nihilism — a nihilism that echoes the far right champions of the men we have seen on trial. Instead of taking guns out of the hands of the Rittenhouses and McMichaels of the world, these progressive public defenders want to level “up”— to make guns more readily available to their clients, to all of us. Their vision, if realized, would make the self-defense claims of Mr. Rittenhouse and Mr. McMichael unremarkable, not only in red states, but across the country.
The audacious position taken by these New York public defenders should give pause to anyone tempted to understand, and maybe even discount, the Rittenhouse and McMichael defenses as essentially conservative arguments playing to conservative juries in conservative states. If we start to think of guns only as a problem in the hands of the Other (white supremacists, the far right, criminals), we will miss the simple fact that unregulated guns escalate violence across ideological lines. Their presence tends to create a need for self-defense on both sides of the trigger, about which the law has very little to say. If Mr. Rosenbaum and Mr. Arbery did indeed reach for those guns, weren’t they, no doubt, acting in self-defense? More guns, no matter in whose hands, will create more standoffs, more intimidation, more death sanctioned in the eyes of the law.
Tali Farhadian Weinstein (@talifarhadian), a former federal and state prosecutor in New York, is a Legal Analyst on NBC News and MSNBC.
