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
Date Written: January 12, 2021
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
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