“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.

In performing this obligation, the Court should give no weight to fears of an armed citizenry, which frequently inspire useless or counterproductive infringement on individual liberty. Nor should regulations enjoy a presumption of constitutionality merely because they may promote a net reduction in deaths and physical injuries. The deepest principles on which our legal and constitutional institutions rest, which are reflected in the Second Amendment, are at odds with this kind of narrow cost-benefit calculation.

The right to keep and bear arms, and to use them when appropriate, is a vital element of the liberal order that our Founders handed down to us. They understood that those who hold political power will always be tempted to reduce the freedom of those they rule, and that many of the ruled will be tempted to trade their liberty for promises of security. Those temptations are apt to be especially alluring when widespread criminal violence threatens both liberty and security. They may be even more alluring when such violence takes the form of sustained and repeated mob violence that reflects a serious breakdown of the social fabric.

The causes of these temptations are sown in the nature of man. Our Constitution, including the Second Amendment, is a device designed to frustrate the domineering tendencies of the politically ambitious. The Second Amendment also plays an important role in fostering 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.

Our rulers include the judges charged with protecting our Second Amendment rights, and they are subject to the same temptations as other government officials. As they develop the nascent jurisprudence of this recently rediscovered constitutional provision, 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.