Why Regulate Guns?

Abstract

In Second Amendment cases, courts regularly ask how effectively gun laws serve public safety — yet typically discuss public safety narrowly, without considering the many dimensions of that interest gun laws serve. 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. It is time to take a full accounting of the reasons gun laws are enacted, so that courts review those laws with attention to the many constitutional values Americans vindicate when they regulate guns. Constitutional precedent, much of it authored by sitting conservative justices, directs courts to protect constitutional rights in ways that respect the prerogatives of democratic self-government. Lawyers, health and public health officials, legislators, and citizen advocates can help, by creating a richer record of the government’s reasons for enacting laws that regulate guns.

Observing the wide range of activities gun laws protect is urgent at a time when federal judges are asserting a more active oversight role and the Supreme Court’s new conservative majority seems poised to expand the right to keep and bear arms. In 2008’s District of Columbia v. Heller, the Court first recognized an individual right to keep arms for self-defense in the home, but said nothing explicit about whether that right extends to public places. In 2020, the Court considered but ultimately dismissed another Second Amendment case, New York State Rifle & Pistol Association v. City of New York (NYSRPA), which concerned the transport of guns. And gun rights advocates are pushing hard for recognition of a right to public carry — that is, to bear a gun outside one’s home. Whenever the Court hears another Second Amendment case, it will almost certainly consider the constitutionality of gun regulations designed to keep people safe in public, either through direct restrictions on public carry or through rules regarding the manufacture, sale, transport, possession, and use of weapons more generally.

This creates a risk: that the Court could begin to extend constitutional protection to the use of guns outside the home without taking account of the full range of reasons why citizens look to their government to regulate guns — as well as the discretion and flexibility government needs to respond to local circumstances and emergency conditions. Whatever framework for reviewing guns laws the Court develops, that framework needs to recognize the many dimensions public life that gun laws protect. But the debate, though robust in so many other ways, has been strangely silent on just this point.