Between guns and liberty by Joseph Blocher

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Between guns and liberty

By Joseph Blocher Illustration by Giorgio Fratini

Although it was ratified in 1791, the Second Amendment has undergone a radical transformation in the fifteen years since I graduated from law school. My introduction to the Second Amendment came in 2007, a few months after starting work at a Washington, D.C., law firm. My boss—former U.S. Solicitor General and future Duke colleague Walter Dellinger—asked me what I knew about the amendment. There was little to say: For more than two centuries, the amendment was overwhelmingly interpreted by courts to protect only the right to keep and bear arms in connection with organized militia service, and no federal case had ever struck down a gun law as violating the Second Amendment.

That fall, though, the case that would become District of Columbia v. Heller (2008) was already working its way up to the Supreme Court, challenging the district’s citywide handgun ban on the basis that it vio-

What about nonviolent felons?

lated the right to keep and bear arms. I helped write the district’s brief defending the gun law; Walter argued the case before the Supreme Court. By a 5-4 vote, the justices agreed with the challengers that the Second Amendment protects an “individual” right to bear arms that encompasses a right to do so for private purposes, including self-defense in the home.

But Heller also emphasized that the right to keep and bear arms, like all constitutional rights, is subject to regulation. The court singled out as “presumptively lawful” those gun laws prohibiting dangerous and unusual weapons, possession by felons and the mentally ill, and carrying guns in sensitive places like schools and government buildings.

Heller also left many other questions open. What about gun possession by minors? By people convicted of misdemeanor crimes of domestic violence? What about nonviolent felons? More fundamentally, how are we to evaluate the constitutionality of such laws? By historical analogy? By contemporary cost-benefit analysis?

I joined the Duke Law School faculty the year after Heller was decided and have spent much of my career trying to work out answers to those questions. One central challenge for current law and scholarship is how to mediate between gun rights and regulations in public places. The plaintiff in Heller simply wanted to have a handgun in his home for purposes of self-defense, and the court’s decision is correspondingly framed around the paradigmatic scene of a person defending his home from a criminal invader.

That paradigm scene doesn’t capture the full universe of gun use, particularly as it has changed in the past ten years with increasing gun displays in shared public spaces. Those

What about gun possession by minors?

By people convicted of misdemeanor crimes of domestic violence?

scenes raise different questions and involve different kinds of harms. Consider that last spring, heavily armed protesters stormed the Michigan state capitol, forcing the temporary suspension of a regular legislative session. Some people sympathetic to the protesters said that no one was harmed in the incident. But that is true only in the narrow sense of there being no bullet-riddled bodies. Reva Siegel (Yale Law School) and I have argued in recent work that the harm was to the body politic itself—to the ability and freedom of others to engage in democratic self-government.

Those intersecting freedoms—in addition to the influence of lobbying groups, cultural differences, and naked partisanship—are part of what make the gun debate so difficult. In a 2010 opinion, the late Supreme Court Justice John Paul Stevens wrote that “firearms have a fundamentally ambivalent relationship to liberty.” He explained that “in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. …Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence.” Justice Stevens was writing in dissent in that case, as he did in Heller, but his observation about the relationship between guns and liberty was undeniably and profoundly correct.

Years later, Justice Stevens sent a letter to me and my law school colleague Darrell Miller, gently chiding us for our recent book, which accepts the legitimacy of Heller. But I continue to believe that gun rights and regulation can coexist, as they have since the founding of the country. Heller itself invokes William Blackstone, the great chronicler of the common law, who wrote that “riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land….” The “peace” that the law protects encompasses more than physical safety; as Blackstone made clear, “terrifying the good people of the land”—not just attacking them— was itself “a crime against the public peace.”

In contemporary terms, that means better enforcement of laws against brandishing and menacing, as might have been done in Michigan (where none of the armed protesters were arrested). And, more broadly, it means giving due weight to all the freedoms implicated by public gun use—not only the rights of gun owners. n

Blocher is the Lanty L. Smith ’67 Professor of law and faculty codirector of the Center for Firearms Law, which he cofounded with Darrell A.H. Miller, the Melvin G. Shimm Professor of law. He and Miller are coauthors of The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Cambridge 2018).