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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

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