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

Joseph Blocher and Reva Siegel 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 “without full consideration of what is encompassed in that concept—freedom from intimidation, for example, not just physical pain.” 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 questions that Blocher and Siegel raise are 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 conflict of interests that occur when governments seek to promote public safety by depriving individuals of the means to protect themselves. This paper argues that the Second Amendment reflects a broad concept of public safety. It includes the protection of the fundamental individual right to self-defense. But the Second Amendment also fosters the kind of civic virtue that resists the cowardly urge to trade liberty for an illusion of safety. Armed citizens take responsibility for their own security, thereby exhibiting and cultivating the self-reliance and vigorous spirit that is ultimately indispensable for genuine self-government. As the Supreme Court develops the nascent jurisprudence of the Second Amendment, they have an opportunity to show that they understand how a robust right to keep and bear arms serves both individual freedom and civic virtue. If they fail to do that, they will help the nation take significant step toward the soft despotism to which Tocqueville feared we would succumb.