Hostname: page-component-586b7cd67f-t7fkt Total loading time: 0 Render date: 2024-11-22T15:39:06.396Z Has data issue: false hasContentIssue false
  • English
  • Français

Why Regulate Guns?

Published online by Cambridge University Press:  28 January 2021

Reva B. Siegel  and
Joseph Blocher
Get access Rights & Permissions [Opens in a new window]

Abstract

Courts reviewing gun laws that burden Second Amendment rights ask how effectively the laws serve public safety — yet typically discuss public safety narrowly, without considering the many dimensions of that interest gun laws serve. “Public safety” is a social good: it includes the public's interest in physical safety as a good in itself, and as a foundation for community and for the exercise of constitutional liberties. Gun laws protect bodies from bullets — and Americans' freedom and confidence to participate in every domain of our shared life, whether to attend school, to shop, to listen to a concert, to gather for prayer, or to assemble in peaceable debate. Courts must enforce the Second Amendment in ways that respect the public health and constitutional reasons a democracy seeks to protect public safety. Lawyers and citizen advocates can help, by creating a richer record of their reasons in seeking to enact laws regulating guns.

This inquiry is urgent at a time when the Supreme Court's new conservative majority may expand restrictions on gun laws beyond the right to keep arms for self-defense in the home first recognized in District of Columbia v. Heller in 2008.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue S4: Gun Violence in America: An Interdisciplinary Examination , Winter 2020 , pp. 11 - 16
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

District of Columbia v. Heller, 554 U.S. 570, 629 (2008), aff ’d, 478 F.3d 370 (D.C. Cir. 2007).Google Scholar
Bruno, B., “Ninth Circuit Panel Skeptical About California Ban on Big Gun Magazines,” April 2, 2020, Courthouse News Service, available at <https://www.courthousenews.com/ninth-circuit-panel-skeptical-about-california-ban-on-big-gun-magazines/> (last visited August 12, 2020).+(last+visited+August+12,+2020).>Google Scholar
Chappell, B. and Gonzales, R., “Rifle-Carrying Man Faces Terrorism Charge After Causing Panic at Walmart in Missouri,” August 9, 2019, NPR, available at <https://www.npr.org/2019/08/09/749763786/rifle-carrying-man-arrested-after-causing-panic-at-walmart-in-missouri> (last visited August 12, 2020).+(last+visited+August+12,+2020).>Google Scholar
See Heller, supra note 1.Google Scholar
See, e.g., Kopel, D. and Barnett, R., “Supreme Court Should Address Lower Court Nullification of the Second Amendment,” November 20, 2019, SCOTUSBlog, available at <https://www.scotusblog.com/2019/11/symposium-supreme-court-should-address-lower-court-nullification-of-the-second-amendment> (last visited August 12, 2020); Yoo, J. and Phillips, J.C., “The Second(-Class) Amendment,” November 19, 2019, National Review, available at <https://www.nationalreview.com/2018/11/supreme-court-second-amendment-rights> (last visited August 12, 2020).+(last+visited+August+12,+2020);+Yoo,+J.+and+Phillips,+J.C.,+“The+Second(-Class)+Amendment,”+November+19,+2019,+National+Review,+available+at++(last+visited+August+12,+2020).>Google Scholar
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 609 (1982), aff ’d, 632 F.2d 365 (4th Cir. 1980).Google Scholar
Samaha, A. and Germano, R., “Judicial Ideology Emerges, at Last, in Second Amendment Cases,” Charleston Law Review 13, no. 2 (2018): 315-45 (noting, based on empirical study, a growing partisan divide beginning in around 2016). See, e.g., Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting); Ass'n of N.J. Rifle & Pistol Clubs v. Attorney Gen. New Jersey, 910 F.3d 106, 126 (3d Cir. 2018) (Bibas, J., dissenting); Mance v. Sessions, 896 F.3d 390, 396 (5th Cir. 2018) (Willet, J., dissenting, and joined by all other Trump nominees to the Fifth Circuit).Google Scholar
See Brief for March for Our Lives Action Fund as Amicus Curiae, N.Y. State Rifle & Pistol Ass'n v. City of New York, 139 S. Ct. 939 (2019) (No. 18-280).Google Scholar
Walker, C. et al., “10 Years. 180 School Shootings. 356 Victims,” CNN, available at <https://www.cnn.com/interactive/2019/07/us/ten-years-of-school-shootings-trnd/> (last visited August 12, 2020).+(last+visited+August+12,+2020).>Google Scholar
Cox, J.W. et al., “More Than 240,000 Students Have Experienced Gun Violence at School Since Columbine,” January 24, 2020, Washington Post, available at <https://www.washingtonpost.com/graphics/2018/local/school-shootings-database/> (last visited August 12, 2020).+(last+visited+August+12,+2020).>Google Scholar
Graf, N., “A Majority of U.S. Teens Fear a Shooting Could Happen at Their School, and Most Parents Share Their Concern,” April 18, 2018, Pew Research Center, available at <https://www.pewresearch.org/fact-tank/2018/04/18/a-majority-of-u-s-teens-fear-a-shooting-could-happen-at-their-school-and-most-parents-share-their-concern/> (last visited August 12, 2020).Google Scholar
Aronowitz, N.W., “Fake Blood and Blanks: Schools Stage Active Shooter Drills,” February 14, 2014, NBC News, available at <https://www.nbcnews.com/news/us-news/fake-blood-blanks-schools-stage-active-shooter-drills-n28481> (last visited August 12, 2020)+(last+visited+August+12,+2020)>Google Scholar
See Fallon, R. Jr., “Implementing the Constitution,” Harvard Law Review 111, no. 1 (1997): 56–152.Google Scholar
Roberts v. United States Jaycees, 468 U.S. 609, 625 (1984), rev'd, 709 F.2d 1560 (8th Cir. 1983).Google Scholar
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015), aff ’d, 138 So. 3d 379 (Fla. 2014).Google Scholar
Id., at 457.Google Scholar
Virginia v. Black, 538 U.S. 343, 360 (2003), (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)); see also Blocher, J. and Vaseghi, B., “True Threats and the Second Amendment,” Journal of Law, Medicine & Ethics 48, no. 4, Suppl. (2020): 112-118.CrossRefGoogle Scholar
See, e.g., Ayres, I. and Donohue, J.J. III, “Shooting Down the ‘More Guns, Less Crime’ Hypothesis,” Stanford Law Review 55, no. 4 (2003): 1193–1312, at 1216; Donohue, J.J., Aneja, A, and Weber, K.D., “Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis,” Journal of Empirical Legal Studies 16, no. 2 (2019): 198–247.Google Scholar
Rostron, A., “The Dickey Amendment on Federal Funding for Research on Gun Violence: A Legal Dissection,” American Journal of Public Health 108, no. 7 (2018): 865–867.CrossRefGoogle Scholar
Editorial, Why Data On Tracing Guns Is So Difficult To Find (April 3, 2018), WBUR, available at <https://www.wbur.org/hereandnow/2018/04/03/gun-research-trace-data> (last visited August 12, 2020).+(last+visited+August+12,+2020).>Google Scholar
Ruben, E.M., “Justifying Perceptions in First and Second Amendment Doctrine,” Law and Contemporary Problems 80, no. 2 (2017): 149–177.Google Scholar
Hemenway, D. et al, “Firearm Prevalence and Social Capital,” Annals of Epidemiology 11, no. 7 (2001): 484–490.CrossRefGoogle Scholar
See, e.g., Roeder, O., “The Supreme Court Is Allergic to Math,” October 17, 2017, Five Thirty Eight Blog, New York Times, available at <https://fivethirtyeight.com/features/the-supreme-court-is-allergic-to-math/> (last visited August 12, 2020).+(last+visited+August+12,+2020).>Google Scholar
See Williams-Yulee, supra note 15, at 447.Google Scholar
Kelly, Z. and Post, M., “The Supreme Court's Second Amendment Case Is a Matter of Life and Death for Us,” December 2, 2019, Newsweek, available at <https://www.newsweek.com/supreme-courts-second-amendment-case-matter-life-death-us-opinion-1475123/> (last visited August 12, 2020). (last visited August 12, 2020).' href=https://scholar.google.com/scholar?q=Kelly,+Z.+and+Post,+M.,+“The+Supreme+Court's+Second+Amendment+Case+Is+a+Matter+of+Life+and+Death+for+Us,”+December+2,+2019,+Newsweek,+available+at++(last+visited+August+12,+2020).>Google Scholar
MFOL brief, supra note 8, at 25 (citing Lowy, J. and Sampson, K., “The Right Not To Be Shot: Public Safety, Private Guns, and The Constellation of Constitutional Liberties,” Georgetown Journal of Law & Public Policy 14, no. 1 (2016): 187–206).Google Scholar
See Ruben, E. and Blocher, J., “From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller,” Duke Law Journal 67, no. 7 (2018): 1433–1509, at 1472.Google Scholar
Id., at 1484.Google Scholar
Id., at 1473.Google Scholar
McDonald v. Chicago, 561 U.S. 742, 891 (2010) (Stevens, J., dissenting).Google Scholar