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.
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References
1.
District of Columbia v. Heller, 554 U.S. 570, 629 (2008), aff ’d, 478 F.3d 370 (D.C. Cir. 2007).
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).
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A.Samaha and R.Germano, “Judicial Ideology Emerges, at Last, in Second Amendment Cases,”Charleston Law Review13, 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).
8.
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).
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J.J.Donohue, AAneja, and K.D.Weber, “Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis,”Journal of Empirical Legal Studies16, no. 2 (2019): 198–247.
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MFOL brief, supra note 8, at 25 (citing J.Lowy and K.Sampson, “The Right Not To Be Shot: Public Safety, Private Guns, and The Constellation of Constitutional Liberties,”Georgetown Journal of Law & Public Policy14, no. 1 (2016): 187–206).
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See E.Ruben and J.Blocher, “From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller,”Duke Law Journal67, no. 7 (2018): 1433–1509, at 1472.
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29.
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McDonald v. Chicago, 561 U.S. 742, 891 (2010) (Stevens, J., dissenting).
