Why Regulate Guns?

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. 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 common sense accounting of the reasons gun laws are enacted, so that courts review the laws with attention to the many constitutional values Americans vindicate when they regulate guns. Constitutional precedent, much of it authored by sitting conservative justices, suggests ways courts can protect constitutional rights while respecting the prerogatives of democratic self-government. 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 federal judges are asserting a more active oversight role and 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. In 2020, the Court considered but ultimately dismissed another Second Amendment case, New York State Rifle & Pistol Association v. City of New York, which Justice Alito in dissent described as involving “the same core Second Amendment right, the right to keep a handgun in the home for self-defense.” But in coming years as judges assert their prerogative to oversee the legislature’s role in enacting gun laws that protect activities outside the home, will they do so in ways that take 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?

Too often, the gun debate is presented as if there are constitutional rights on one side (that of gun owners) and only nebulous policy “interests” on the other. But that frame misses precisely what is hard about the gun debate, and on which our account of the state interests focuses. In enacting gun laws, the government acts for a majority of citizens who believe not only their families’ physical safety, but their communities’ fundamental freedoms—to travel, to speak, to learn, to pray, and to vote without fear or intimidation—are at stake. Both sides feel urgently that they must do all they can to keep themselves and their children safe from gun violence. Both sides can appeal to constitutional values.

Gun owners regularly point to the reassurance they feel in owning or carrying guns, even knowing that only a small fraction of them will ever use a gun in self-defense. That feeling of security is part of the argument for a broad right to keep and bear arms. We have tried to show that the argument goes both ways: advocates of gun regulation seek the same freedom and security through democratic politics. There are constitutional values and interests on both sides, and articulating them is an increasingly crucial task.