Joseph Blocher and Reva Siegel write:

Why regulate guns? The standard answer is that gun laws can prevent needless deaths and physical injury. But this is not a complete accounting. As gun-brandishing protesters and armed invasions of legislatures demonstrate, guns inflict more than physical injuries—they transform the public sphere on which a constitutional democracy depends. America must regulate guns not only to protect life, but to protect its citizens’ equal freedoms to speak, assemble, worship, and vote without fear. If legislators and judges do not focus on the freedoms that gun regulation protects, guns will threaten those freedoms.

Is the Second Amendment an obstacle to gun regulation intended to protect the public sphere against weapons threats? In 2008’s District of Columbia v. Heller, the Supreme Court found that Americans have a right to keep and bear a handgun in their home for self-defense. In doing so, the Court assumed a paradigmatic scene of gun use: a “law-abiding citizen” defending his or her household against a criminal invader. But the Court did not address scenes in which guns threaten the exercise of liberties by other law-abiding citizens, whether those threats occur in the home or in public.

Heller’s distinctive focus may well have created a blind spot. The Court—changed by Donald Trump’s appointments—is now poised to expand constitutional protections for gun rights outside the home, but may do so without taking into account how the practice of public carry has changed in the past decade. Over the past 10 years, advocates have sought, with some success, to normalize open carry of firearms in public spaces as they participate in market and political activities. The result is not just lone individuals carrying guns while buying coffee at Starbucks or shopping at Walmart. Open-carry advocates in militia dress amass at right-wing political protests, including in Charlottesville in 2017, at “gun sanctuary” rallies, at anti-lockdown demonstrations, and at Black Lives Matter counterprotests.

This phenomenon raises fundamentally different questions than does the scene on which Heller was premised. These gun owners are not wielding guns against home invaders—they are bringing their guns to public spaces, seeking to dominate those spaces. [Continue reading…]