Heller’s distinctive focus poses a threat because the Court — changed by Trump appointments — is poised to expand constitutional protections for gun rights outside the home, without taking into account how the practice of public carry has changed in the last decade. “Open carry” advocates have sought, self-consciously and with some success, to normalize the presence of firearms in public spaces, from Starbucks to Walmart. (The National Rifle Association initially called this movement “downright weird,” but quickly backed down.)
Heavily armed right-wing groups, many explicitly invoking gun rights rhetoric, have dominated public spaces in scenes ranging from the Bundy ranch protests in 2014 to Charlottesville in 2017 and, more recently, a growing number of “gun sanctuary” rallies, Covid-19 lockdown demonstrations, and Black Lives Matter counterprotests. Law enforcement officials have broadly deferred to the firearms displays of these massed crowds dressed in paramilitary gear, leading observers to highlight the unequal enforcement of gun laws along racial and political lines.
These scenes raise different questions than the scene of home defense on which Heller focused. In this new class of cases, law-abiding Americans are not wielding guns against criminals invading their homes. Though armed protesters may speak Heller ’s language of home defense, armed protesters invading Charlottesville or the Michigan legislature, massing in gun sanctuary demonstrations, or “patrolling” Black Lives Matter protests are bringing their guns to public spaces inhabited by others with whom they disagree, often with the specific intention of claiming and dominating those spaces.
Some subscribe to the “insurrectionist theory” of the Second Amendment, casting themselves as defending the republic against its enemies. But many simply read public life — including disagreement in democratic politics — through Heller ’s lens: threats, however an individual identifies them, authorize self-defense, and that in turn means guns.
Public health arguments for gun control do not fully capture all the harms these incidents inflict. Following the same script as the armed protesters who forced Michigan’s legislature to temporarily shut down in the spring of 2020, Stop the Steal protesters invaded the U.S. Capitol in January of 2021, and the nation witnessed its leaders crouched under benches to avoid attack, unable to count the electoral vote.
These threats and assaults— and the failure to evenhandedly police them — transform the public sphere. The escalating threat of violence under which we are living grows out of and exacerbates political mistrust and polarization. Weapons caught in this cycle no longer threaten individual lives only, if they ever did. Gun regulation becomes a defense of the body politic.
— Joseph Blocher and Reva B. Siegel in Guns and Democracy