The So-Called Series-Qualifier Canon

By: Adam G. Crews

When Guns Threaten the Public Sphere: A New Account of Public Safety Under Heller

By: Joseph Blocher & Reva B. Siegel

Second Amendment Animus

By: Jacob D. Charles

The State's Monopoly of Force and the Right to Bear Arms

By: Robert Leider

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

By: Nelson Lund

When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments

By: Michael C. Dorf

The Second Amendment in a Carceral State

By: Alice Ristroph

Second Amendment Equilibria

By: Darrell A.H. Miller

The Resilience of Substantive Rights and the False Hope of Procedural Rights

By: Renée Lettow Lerner

Unlocking Accommodations for Disabled Students in Private Religious Schools

By: Campbell Sode

Zones of Discretion at Common Law

By: James E. Pfander

(Im)mutable Race?

By: Deepa Das Acevedo

When Guns Threaten the Public Sphere: A New Account of Public Safety Under Heller

By: Joseph Blocher & Reva B. Siegel | August 29, 2021

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only to keep members of the polity free from physical harm, but also to enable government to protect their liberties against weapons threats and to preserve public peace and order. We show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Antonin Scalia specifically invokes it as a basis for reasoning about government’s authority to regulate the right Heller recognized.

Today, a growing number of judges and Justices are ready to expand gun rights beyond Heller’s paradigmatic scene: a law-abiding citizen in his home defending his family from a criminal invader. But expanding gun rights beyond the home and into the public sphere presents questions concerning valued liberties and activities of other law-abiding citizens. Americans are increasingly wielding guns in public spaces, roused by persons they politically oppose or public decisions with which they disagree. This changing paradigm of gun use has been enabled by changes in the law and practice of public carry. As courts consider whether and how to extend constitutional protection to these changed practices of public carry, it is crucial that they adhere to the portions of Justice Scalia’s Heller decision that recognize government’s “longstanding” interest in regulating weapons in public places.

We show how government’s interest in protecting public safety has evolved with changing forms of constitutional community and of weapons threats. And we show how this more robust understanding of public safety bears on a variety of weapons regulations both inside and outside of courts—in constitutional litigation, in enacting legislation, and in ensuring the evenhanded enforcement of gun laws. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have equal claims to security and to the exercise of liberties, whether or not they are armed and however they may differ by race, sex, or viewpoint.

The Second Amendment in a Carceral State

By: Alice Ristroph | August 29, 2021

Is an armed citizenry consistent with a carceral state? Throughout the twentieth century, the Second Amendment cast no shadow on the U.S. Supreme Court as the Court crafted the constitutional doctrines that license America’s expansive criminal legal system. Under the Court’s interpretation of the Fourth Amendment, the fact or mere possibility that an individual is armed can generate broad powers for police officers, including the power to disarm. But since the Court embraced an individual right to bear arms in 2008, a few scholars and lower courts have begun to worry that this right contradicts contemporary understandings of police authority. In this Essay, I acknowledge these apparent doctrinal contradictions but argue that Fourth and Second Amendment doctrines actually share a common conceptual foundation: carceral political theory. Carceral political theory divides people into “criminals” and “law-abiding citizens” and does so according to intuitions about natural criminality rather than through positive law. The supposed distinction between the criminal and the law-abiding is used to rationalize unequal distributions of political power, social goods, and exposure to violence. In the United States, the naturalized conception of criminality has long been racialized. Unless we identify and reject the carceral assumptions that underlie both Fourth and Second Amendment doctrine, the new (or newly recognized) right to bear arms is likely to further exacerbate racial inequality in the United States.

The State’s Monopoly of Force and the Right to Bear Arms

By: Robert Leider | August 29, 2021

In debates over the Second Amendment, the conventional view is that the government ought to possess a monopoly of legitimate force, subject to the right of individuals to act in emergency self-defense. Many treat the nondefensive circumstances in which our system decentralizes force as holdovers from the days of nonprofessional police and soldiers. When it comes to the Second Amendment, many believe that the only legitimate reason individuals may bear arms today is for individual self-defense against isolated criminal violence (e.g., to resist a home invasion).

This Symposium Essay attacks the monopoly-of-force account, justifying the continued relevance of American law’s decentralization of legitimate force. This Essay argues that decentralization of force remains important for three reasons. First, despite the rise of professional police, American law enforcement still enforces core crimes below desirable levels, particularly in disadvantaged and rural communities and during times of civil unrest. Decentralization of force mitigates this underenforcement problem. And decentralization may be a better solution than providing more police because many areas where law is underenforced also (paradoxically) suffer from the effects of overcriminalization. Second, American law has a mismatch between public duties and private rights. Providing effective law enforcement is only a public duty. Individuals have no private claim that the government adequately enforce the law or protect them against unlawful violence. Self-help and private law enforcement are the best remedies when governments undersupply needed levels of police protection. Third, even if the government has a monopoly of force, it does not follow that government officers are the only ones in whom the government’s monopoly may be vested. The government is an incorporeal entity whose power must be exercised by human agents. Agents do not perfectly carry out the tasks of their principals; some government officers commit malfeasance and nonfeasance. The decentralization of force provides a remedy for such abuses of office.

Ultimately, this Essay concludes that the individual right to bear arms still has relevance for public defense and security. This fact should warrant consideration when determining the scope of the right, including that the arms protected by the Second Amendment should continue to include those arms that are primarily useful for public security.

Nw. U. L. Rᴇᴠ.

COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation

May 5, 2020

There has been much press coverage on the Navajo Nation’s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in responding to the pandemic, including a high population of people […]