About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

116 Nw. U. L. Rev. 139 (2021-2022)
When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation under Heller

handle is hein.journals/illlr116 and id is 145 raw text is: Copyright 2021 by Joseph Blocher & Reva B. Siegel Printed in U.SA Vol. 116, No. 1 WHEN GUNS THREATEN THE PUBLIC SPHERE: A NEW ACCOUNT OF PUBLIC SAFETY REGULATION UNDER HELLER Joseph Blocher & Reva B. Siegel ABSTRACT-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 139

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most