When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller

63 Pages Posted: 20 Jan 2021 Last revised: 13 May 2021

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

Reva Siegel

Yale University - Law School

Date Written: January 12, 2021

Abstract

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protestors who invaded the Michigan legislature in 2020, guns can be used not only to injure but to intimidate. The government interest in regulating guns to promote public safety is not only concerned with preventing physical injuries, but also with preventing weapons threats and protecting the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only to keep members of the polity free from physical harm, but also to enable government to protect their liberties against weapons threats and to preserve public peace and order. We show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Antonin Scalia specifically invokes it as a basis for reasoning about government’s authority to regulate the right Heller recognized.

Today, a growing number of judges and Justices are ready to expand gun rights beyond Heller’s paradigm scene: a law-abiding citizen in his home defending his family from a criminal invader. But expanding gun rights beyond the home and into the public sphere presents questions concerning valued liberties and activities of other law-abiding citizens. Americans are increasingly wielding guns in public spaces, roused by persons they politically oppose or public decisions with which they disagree. This changing paradigm of gun use has been enabled by changes in the law and practice of public carry. As courts consider whether and how to extend constitutional protection to these changed practices of public carry, it is crucial that they adhere to the portions of Justice Scalia’s Heller decision that recognize government’s “longstanding” interest in regulating weapons in public places.

We show how government’s interest in protecting public safety has evolved with changing forms of constitutional community and of weapons threats. And we show how this more robust understanding of public safety bears on a variety of weapons regulations both inside and outside of courts—in constitutional litigation, in enacting legislation, and in ensuring the even-handed enforcement of gun laws. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have equal claims to security and to the exercise of liberties, whether or not they are armed and however they may differ by race, sex, or viewpoint

Keywords: Second Amendment, gun regulation, public safety, common law, equality, democracy, voting, domestic violence, brandishing, intimidation, school shootings, fear, polarization, Heller, policing, armed protest, violence, militia, race, open carry, public carry, Capitol riot, Michigan legislature

Suggested Citation

Blocher, Joseph and Siegel, Reva B., When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller (January 12, 2021). Northwestern University Law Review, Vol. 116, 2021, Yale Law School, Public Law Research Paper Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2021-05, Available at SSRN: https://ssrn.com/abstract=3764258

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

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