The Future of the Second Amendment in a Time of Lawless Violence

28 Pages Posted: 29 Sep 2020 Last revised: 8 Jul 2021

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: September 28, 2020

Abstract

Reva B. Siegel and Joseph Blocher have focused attention on an underappreciated dimension of the debate about the constitutional right to keep and bear arms. They reject a narrow concept of “public safety” that evaluates regulations solely in terms of physical safety, without adequately recognizing the public’s interest in securing a “a foundation for community and for the exercise of many of our most cherished constitutional liberties.” At this level of generality, I agree. But I do not agree that an appropriately broad conception should widen the discretion of legislatures to impose restrictions on firearms.

The issue that Siegel and Blocher raise is especially important during this time of politically inspired riots and flaccid government responses to mob violence. The most practically important Second Amendment issue that is ripe for Supreme Court resolution concerns the scope of the constitutional right to bear arms in public. The Constitution’s text and history offer little direct guidance, and the Justices will inevitably have to decide how to resolve the conflicts of interest that occur when governments seek to promote public safety by depriving individuals of the means to protect themselves.

The single most foundational principle on which our liberal regime rests is the inherent right of self-defense against violent assaults, whether from common criminals or political activists or tyrannical governments. The Second Amendment’s core purpose is to insulate that right from improper government interference. But protecting the right to keep and bear arms also serves a broader civic purpose. An armed citizenry displays the spirit of courage and self-reliance on which genuine self-government depends. That spirit should be honored and defended more than ever in times of civil unrest, and especially when governments have responded passively or with perverse encouragement to mob violence.

Keywords: Second Amendment, public safety, mob violence

JEL Classification: K1, K10

Suggested Citation

Lund, Nelson Robert, The Future of the Second Amendment in a Time of Lawless Violence (September 28, 2020). Northwestern University Law Review, v. 116, forthcoming, George Mason Legal Studies Research Paper No. LS 20-17, Liberty & Law Center Research Paper No. 20-01, Available at SSRN: https://ssrn.com/abstract=3701185 or http://dx.doi.org/10.2139/ssrn.3701185

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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