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Book Mini-Symposium Part II: The Expressive Second Amendment

By on August 1, 2019 Categories: ,

People keep and carry weapons for all sorts of reasons. What kind of reasons should the law respect? Governments regulate the keeping and carrying of weapons for all sorts of reasons. What kind of reasons should the law reject?

At first, this question seems trivial. In District of Columbia v. Heller, the Supreme Court said self-defense was the “central component” of the Second Amendment.

But the Second Amendment described in Heller and as discussed in American culture and politics doesn’t neatly converge on self-defense as the sole purpose of the Second Amendment. Incarcerated felons, for example, have no right to keep and bear arms, although they retain moral (and it is presumed) legal rights to self-defense. Short-barreled shotguns are essentially illegal because of their frequent use by Prohibition-era bootleggers, even though they could be an ideal weapon for someone with impaired or poor marksmanship.

Clearly, some element other than the costs and benefits of armed self-defense influences decisions about gun rights and policy. I think an additional element is the expressive component of the Second Amendment – the signaling and symbolic nature of gun use and regulation.

People own and carry guns for reasons other than personal protection. Blind citizens have obtained carry permits to demonstrate their independence. Youth have carried guns as symbols of maturity, respect and power. Others own or carry firearms to betoken membership in a select or self-conscious cultural group, or to assert their integration into a wider political community.

Correspondingly, governments may want to regulate guns for expressive reasons. They may want to express disapprobation, quite aside from the actual risk a person may present (prohibiting non-violent felons from gun possession for life would be an example of this). They may want send signals to avoid dangerous norm-cascades (prohibiting carrying weapons during a state of emergency, for example, to prevent armed citizens from descending on the one working gas station).

What does the Second Amendment have to say about these expressive issues? As an initial matter, it is apparent that there is nothing facially unconstitutional about government using law for expressive purposes. Constitutional rights are often regarded as “trumps,” in the words of Ronald Dworkin. Individuals use them to gainsay majoritarian choices about good policy.

But, as many scholars acknowledge, the rights-as-trumps model does not accurately reflect American constitutional practice. Rights are, at least in part, created to allow individuals and groups to produce public goods, broadly conceived, and to facilitate development and maintenance of institutions to supply these goods. Some of those goods may be safety, common defense, education, functioning markets, responsive politics, etc.

The Second Amendment shields individuals from rules that prevent development of these kinds of public goods, or from rules whose effects are so severe that society cannot organize to produce these kinds of goods. Put another way, the expressions the Second Amendment are meant to forbid, and the expressions the Second Amendment are meant to protect, are inextricably linked with the kinds of common goods and institutions the right is meant to generate and to accommodate.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]