When Guns Threaten the Public Sphere: A New Account of Public Safety Under Heller


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.

Recommended Citation

Joseph Blocher and Reva B. Siegel, When Guns Threaten the Public Sphere: A New Account of Public Safety Under Heller, 116 Nw. U. L. Rev. 139 (2021).

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