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.”