When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety

What can armed protest teach about the case for gun regulation?  Reva Siegel and I have just posted our article, When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety, which is forthcoming as part of the Northwestern Law Review symposium the Center co-sponsored this past fall. Here is the abstract:

Today, the gun debate focuses on how regulation can reduce the staggering number of Americans who are wounded or killed by guns every year. This Article widens that focus beyond injury-prevention, beyond the horrors of Sandy Hook, Parkland, and constant daily shootings, to examine cases where guns threaten and intimidate without inflicting physical injury—for example, when armed masses flood the legislature (Washington D.C. or Michigan), or when individuals pull guns on citizens in a protest march (St. Louis), or when people use guns to assert coercive control over intimate partners (everywhere).

Guns shape the ways we live together. As we show in an account of the armed protesters who flooded the Michigan legislature, weapons can be used not only to injure but to intimidate. For this reason, the government interest in regulating arms to promote public safety is not only concerned with preventing physical injuries, but also with preventing weapons threats. 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 an equal claim to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint. We draw on this principle in developing one of the first accounts of the public safety interest in regulating weapons.

In the wake of the January 6 riots in the United States Capitol, we have updated the Article to show how the assault on the Michigan legislature is connected to violent challenges to the 2020 election. These events, as well as many others from daily life, illustrate the character, scope, and stakes of public safety in a constitutional democracy.

All agree that there is a public safety interest in regulating guns, yet few agree about its scope. Some advocates of public carry are beginning to argue that preventing physical injury is the only legitimate reason for regulating guns.  Other advocates, judges, and scholars claim that the Constitution restricts a democracy’s ability to legislate in the interest of public safety and privileges the claims of citizens who rely on guns, rather than gun laws, to respond to fears of violence.

To counter these arguments, we demonstrate that a different understanding of public safety is deeply rooted in our history. For centuries, the Anglo-American common law has regulated weapons not only to keep members of the polity alive, but to protect their liberties against weapons threats and to preserve public peace and order. That regulatory tradition has long shaped state and federal law. Critically, we show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Scalia specifically invokes it as a basis for reasoning about the regulation of guns.

Guided by core principles of our constitutional democracy and by traditions informing the Second Amendment itself, government can enact and enforce gun laws that secure public and private spaces for equal enjoyment by all citizens. We dispute scholars who assert that the Constitution privileges the security claims of the armed over the unarmed, or allows the redress of physical but not social injury. We show how concern for the even handed enforcement of gun laws is a core part of the public safety interest. Given the commitments that define our constitutional democracy, government can regulate weapons to ensure that all persons 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.