Guns Are a Threat to the Body Politic
America must regulate guns not only to protect life, but to protect its citizens’ equal freedoms to speak, assemble, worship, and vote without fear.
About the authors: Joseph Blocher is the Lanty L. Smith ’67 professor of law at Duke Law School. Reva Siegel is the Nicholas deB. Katzenbach professor of law at Yale Law School.
Updated at 1:03 p.m. ET on March 8, 2021.
Why regulate guns? The standard answer is that gun laws can prevent needless deaths and physical injury. But this is not a complete accounting. As gun-brandishing protesters and armed invasions of legislatures demonstrate, guns inflict more than physical injuries—they transform the public sphere on which a constitutional democracy depends. America must regulate guns not only to protect life, but to protect its citizens’ equal freedoms to speak, assemble, worship, and vote without fear. If legislators and judges do not focus on the freedoms that gun regulation protects, guns will threaten those freedoms.
Is the Second Amendment an obstacle to gun regulation intended to protect the public sphere against weapons threats? In 2008’s District of Columbia v. Heller, the Supreme Court found that Americans have a right to keep and bear a handgun in their home for self-defense. In doing so, the Court assumed a paradigmatic scene of gun use: a “law-abiding citizen” defending his or her household against a criminal invader. But the Court did not address scenes in which guns threaten the exercise of liberties by other law-abiding citizens, whether those threats occur in the home or in public.
Heller’s distinctive focus may well have created a blind spot. The Court—changed by Donald Trump’s appointments—is now poised to expand constitutional protections for gun rights outside the home, but may do so without taking into account how the practice of public carry has changed in the past decade. Over the past 10 years, advocates have sought, with some success, to normalize open carry of firearms in public spaces as they participate in market and political activities. The result is not just lone individuals carrying guns while buying coffee at Starbucks or shopping at Walmart. Open-carry advocates in militia dress amass at right-wing political protests, including in Charlottesville in 2017, at “gun sanctuary” rallies, at anti-lockdown demonstrations, and at Black Lives Matter counterprotests.
This phenomenon raises fundamentally different questions than does the scene on which Heller was premised. These gun owners are not wielding guns against home invaders—they are bringing their guns to public spaces, seeking to dominate those spaces. Though armed protesters may employ a language of self-defense and victimhood, they do so to justify acting against those with whom they disagree. Some of them do not even invoke the self-defense that Heller described, but rather rely on the “insurrectionary theory” of the Second Amendment—claiming they are defending the republic against its enemies.
Public-health arguments for gun control do not fully capture all the harms these incidents inflict. Armed mobs threaten democratic life itself. As the organizers of “Stop the Steal” had hoped, the nation witnessed its leaders crouched under benches in the Capitol, unable to count the electoral vote. Such threats and assaults, and the failure to evenhandedly police those harms, transform the public sphere and elevate some rights and some voices above others. In these and many other circumstances, gun regulation defends the body politic.
Gun-rights advocates have thus expanded practices of gun use, and urge the Supreme Court to extend Heller’s constitutional protections to public carry outside the home. But many advocates of gun regulation focus on threats of physical injury only. Without question, gun regulation is needed to address the mass shootings, intimate-partner violence, suicides, and daily homicides that account for roughly 40,000 deaths and 100,000 injuries every year.* Americans also need their democratic government to work, and that means protecting citizens from intimidation when they exercise their civic rights, and protecting government officials from weapons threats when they are trying to conduct normal business.
Is there a constitutional basis for this argument? Gun-rights supporters claim that constitutional history places the rights of armed citizens above all others. But, as we argue in a forthcoming article, this claim is based on a mistaken understanding of the relevant legal history and of Heller itself. For centuries, the Anglo-American common law has regulated weapons not only to keep members of the polity alive, but to protect their liberties from weapons threats and to preserve public peace and order. William Blackstone himself, the great chronicler of the common law, wrote that “riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land.” The “peace” that the law protected encompassed more than physical safety. As Blackstone made clear, “terrifying the good people of the land”—not just attacking them—was “a crime against the public peace.”
That regulatory tradition has long shaped state and federal law. And as we demonstrate, it grounds the understanding of the Second Amendment in Heller, where Justice Antonin Scalia specifically invoked it as a basis for government’s authority to limit the exercise of gun rights. In the course of recognizing the individual right to self-defense, Justice Scalia emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions” like those “forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Invoking Blackstone and other authorities, Heller recognized the power of governments to regulate weapons so as to prevent terror and preserve the peace.
This understanding of Heller can change what gun laws are enacted, and how they are litigated and enforced. Legislatures can draft laws specifically tailored to preventing intimidation—banning guns at polling places, for example, or tightening restrictions on armed domestic abusers, who, though they sometimes kill, more commonly use guns to coerce and terrorize their victims. Once we appreciate the liberties that public safety secures, we can better hold government accountable for the evenhanded enforcement of weapons laws.
If Americans do not recognize the social dimensions of public safety—the ancient role that weapons laws play in securing peace and public order—the use of guns will come to define America’s constitutional democracy, rather than the other way around.
*This article previously misstated that mass shootings, intimate-partner violence, and homicides account for roughly 40,000 deaths each year. In fact, that figure also includes suicides involving a firearm.