Duke Center for Firearms Law
Duke Law logo

Northwestern University Law Review Symposium Essays Published

By on September 1, 2021 Categories: ,

I am especially happy to announce that the essays are now published from our fall 2020 symposium with the Northwestern University Law Review, The Second Amendment’s Next Chapter. The journal was terrific to work with—for both the symposium itself (which can be viewed here) and during the editing process for these essays. Below are the essays, with links to the full pieces, along with the abstracts.  

The Supreme Court’s animus doctrine has proven surprisingly adaptive. The Court has employed the doctrine not just in the typical equal protection context from which it arose, but also to claims that religious conduct or beliefs are the target of legislative hostility. Animus law and scholarship are flourishing after several invocations of the doctrine in the high Court’s recent Terms. Coinciding with these developments, gun-rights advocates and other supporters have increasingly railed against the hostility with which they believe government officials are treating the Second Amendment. This Essay connects these developments, mapping three types of gun-supporter claims that sound in an animus register: claims about hostility toward guns, gun owners, and gun rights. It argues, however, that Second Amendment doctrine should not incorporate the blossoming animus rationale into its methodological framework. Typical gun laws are not likely to arise from legislative hostility toward guns, their owners, or gun rights, and the customary Second Amendment framework employing motive-blind means–end scrutiny is sufficient to weed out any anomalous laws that may arise from improper motive.

 

In debates over the Second Amendment, the conventional view is that the government ought to possess a monopoly of legitimate force, subject to the right of individuals to act in emergency self-defense. Many treat the nondefensive circumstances in which our system decentralizes force as holdovers from the days of nonprofessional police and soldiers. When it comes to the Second Amendment, many believe that the only legitimate reason individuals may bear arms today is for individual self-defense against isolated criminal violence (e.g., to resist a home invasion).

This Symposium Essay attacks the monopoly-of-force account, justifying the continued relevance of American law’s decentralization of legitimate force. This Essay argues that decentralization of force remains important for three reasons. First, despite the rise of professional police, American law enforcement still enforces core crimes below desirable levels, particularly in disadvantaged and rural communities and during times of civil unrest. Decentralization of force mitigates this underenforcement problem. And decentralization may be a better solution than providing more police because many areas where law is underenforced also (paradoxically) suffer from the effects of overcriminalization. Second, American law has a mismatch between public duties and private rights. Providing effective law enforcement is only a public duty. Individuals have no private claim that the government adequately enforce the law or protect them against unlawful violence. Self-help and private law enforcement are the best remedies when governments undersupply needed levels of police protection. Third, even if the government has a monopoly of force, it does not follow that government officers are the only ones in whom the government’s monopoly may be vested. The “government” is an incorporeal entity whose power must be exercised by human agents. Agents do not perfectly carry out the tasks of their principals; some government officers commit malfeasance and nonfeasance. The decentralization of force provides a remedy for such abuses of office.

Ultimately, this Essay concludes that the individual right to bear arms still has relevance for public defense and security. This fact should warrant consideration when determining the scope of the right, including that the arms protected by the Second Amendment should continue to include those arms that are primarily useful for public security.

 

Professors Reva B. Siegel and Joseph Blocher have focused attention on an underappreciated dimension of the debate about the constitutional right to keep and bear arms. They reject a narrow concept of “public safety” that evaluates regulations solely in terms of physical safety, without adequately recognizing the public’s interest in securing “a foundation for community and for the exercise of many of our most cherished constitutional liberties.” At this level of generality, I agree. But I do not agree that an appropriately broad conception of public safety should widen the discretion of legislatures to impose restrictions on firearms.

The issue that Professors Siegel and Blocher raise is especially important during this time of politically inspired riots and flaccid government responses to mob violence. The most practically important Second Amendment issue that is ripe for Supreme Court resolution concerns the scope of the constitutional right to bear arms in public. The Constitution’s text and history offer little direct guidance, and the Justices will inevitably have to decide how to resolve the conflicts of interest that occur when governments seek to promote public safety by depriving individuals of the means to protect themselves.

This Essay argues that the single most foundational principle on which our liberal regime rests is the inherent right of self-defense against violent assaults, whether from common criminals or political activists or tyrannical governments. The Second Amendment’s core purpose is to insulate that right from improper government interference. But protecting the right to keep and bear arms also serves a broader civic purpose. An armed citizenry displays the spirit of courage and self-reliance on which genuine self-government depends. That spirit should be honored and defended more than ever in times of civil unrest and especially when governments have responded to mob violence with passive acceptance or with perverse encouragement.

 

This Essay argues on textual, historical, doctrinal, and normative grounds that there is no constitutional right of armed assembly. It rejects the proposition that the First Amendment right to assemble and the putative Second Amendment right to public carriage of firearms in nonsensitive places combine to create a right to armed assembly. While acknowledging that in some circumstances the courts recognize a hybrid right that is greater than the sum of its parts, this Essay finds no basis for concluding that the First and Second Amendments add up to a right to armed assembly.

 

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 protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and 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 paradigmatic 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 evenhanded 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.

 

Is an armed citizenry consistent with a carceral state? Throughout the twentieth century, the Second Amendment cast no shadow on the U.S. Supreme Court as the Court crafted the constitutional doctrines that license America’s expansive criminal legal system. Under the Court’s

interpretation of the Fourth Amendment, the fact or mere possibility that an individual is armed can generate broad powers for police officers, including the power to disarm. But since the Court embraced an individual right to bear arms in 2008, a few scholars and lower courts have begun to worry that this right contradicts contemporary understandings of police authority. In this Essay, I acknowledge these apparent doctrinal contradictions but argue that Fourth and Second Amendment doctrines actually share a common conceptual foundation: carceral political theory. Carceral political theory divides people into “criminals” and “law-abiding citizens” and does so according to intuitions about natural criminality rather than through positive law. The supposed distinction between the criminal and the law-abiding is used to rationalize unequal distributions of political power, social goods, and exposure to violence. In the United States, the naturalized conception of criminality has long been racialized. Unless we identify and reject the carceral assumptions that underlie both Fourth and Second Amendment doctrine, the new (or newly recognized) right to bear arms is likely to further exacerbate racial inequality in the United States.

 

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although this Essay recognizes factors that make Second Amendment equilibrium-adjustment distinctive and challenging, the theory may nonetheless allow courts and scholars to get some purchase on the problem of change in Second Amendment adjudication and provide a vocabulary to explain the objectives of the emerging doctrine for the right to keep and bear arms.

 

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And they often have difficulty understanding judicial instructions and complicated scientific or mathematical evidence.

Second, and more broadly, there are important differences between substantive and procedural rights. Substantive rights such as the Second Amendment have a core that can be interpreted and protected, regardless of the type of legal system. But specific procedural rights such as the Seventh

Amendment are wholly dependent on the surrounding procedural system for their significance. Changes in the rest of the procedural system can easily subvert a specific procedural right, as we have seen with both criminal jury trials and civil jury trials. Substantive rights are potentially resilient; specific procedural rights are inherently fragile. Unfortunately, procedural rights, even when they have become almost obsolete, can thwart efforts to develop a more accurate and efficient method of adjudication.