COVID Lays Bare the Need for Attending to Second Amendment Theory

COVID Lays Bare the Need for Attending to Second Amendment Theory

As angry protesters, some clad in tactical gear and armed with semi-automatic rifles, storm state capitols to decry COVID-related orders, it’s worth asking why the Second Amendment resides in our Bill of Rights. In District of Columbia v. Heller, the Court held that it was there because the founding fathers wanted to protect the existence of citizen militias. But the reason for codifying the right, said the five-Justice majority, did not confine its substantive scope—of law-abiding citizens “to keep and bear arms” unconnected to service in the militia. The right gives the American people authority to keep and carry firearms, at least within their homes for self-defense purposes. But even a decade after that transformative opinion, courts, scholars, advocates, and activists lack a coherent theory about the animating purposes of that individual right. The global pandemic has laid bare why this matters so much.

Three primary theories have emerged as contenders for that animating value: (1) the personal defense theory, (2) the tyranny deterrence theory, and (3) the autonomy theory. The defense theory—the theory that Heller whole-heartedly endorses—finds in the Second Amendment protection for an individual’s right to use deadly weapons in defense of herself or others. Yet Heller muddied those waters from the start. As Professor Eric Ruben has persuasively shown, the doctrine Heller creates is hard to square with the common law self-defense right it purports to vindicate. Traditional self-defense doctrine, as Professor Ruben explains, permits force only when necessary and proportional to the threat, creating hard questions Heller leaves unexplored about, for example, less lethal alternatives, preemptive arming, and public carry.

The tyranny prevention perspective faces its own crushing objections. When, on this view, does the Second Amendment justify killing a cop, as my colleague Professor Darrell Miller asks? And how would this right justify restrictions the Supreme Court in Heller permitted on dangerous and unusual weapons, and (separately) on bringing guns into government buildings?

Finally, the third view seems hard to square with doctrine or common sense. An unencumbered right to one’s choice of lethal weaponry threatens to destabilize a multitude of other rights and interests. Autonomy values lack the same purchase when applied to deadly machinery in public—where conflicting interests come most fully into view—that they have when applied to protect, for example, private, consensual sexual activity. All three theoretical justifications, in short, lead to fairly unsatisfactory conclusions.

To be sure, these three views are not necessarily mutually exclusive. A complete understanding of the values that Second Amendment rights serve likely incorporates some elements from all three. But the theories do point in different directions when some important line-drawing questions come into view. That brings us to COVID. Consider two sets of issues spurred by the current moment: (1) gun shops claiming special exemptions to neutral, generally applicable closure orders, and (2) armed protestors defying state orders and agitating for fewer restrictions. Though gun rights talk fuels both of these arguments, they generally appeal, at least implicitly, to different animating values. And, as a result, vindication of the rights these proponents claim may force us to choose between competing frames.

First, take the challengers arguing that the Second Amendment forbids business closure orders that fail to exempt gun stores. These litigants often appeal to the need for law-abiding citizens to obtain weapons to defend themselves during a time of crisis. Although tyranny rhetoric laces some of these lawsuits, the overriding concern is with the individual’s ability to defend herself from crime or disorder. As the NRA said in a lawsuit challenging New York’s closure order, after pointing out that self-defense is a “core purpose” of the right, “[t]he current public health emergency does not justify impeding the exercise of Second Amendment rights, especially during a time when many New Yorkers have valid concerns about the ability of the government to maintain order—and criminals are being prematurely released from jails.” When it comes to gun store closure orders, advocates see the possibility of crime, unrest, and an absent government highlighting the need for the fundamental self-defense value served by the Second Amendment.

On the other hand, the protestors wielding lethal weapons to bolster their political agitation against COVID-related stay-at-home orders do not cite concerns over personal safety as a rationale for arms-bearing in that venue. They don’t bring guns to a rally because they fear physical harm. Their complaints come in a different register. One recent protestor “likened [the Michigan governor’s] recent extension of the stay-at-home order to a ‘tyrannical takeover.’” Yet efforts to exercise a tyranny-infused right quickly butt up against other deeply held ideals about political participation and democratic deliberation. As Professor Greg Magarian argues, “an embrace of constitutionally sanctioned insurrectionism under the Second Amendment would threaten our commitment to uninhibited political debate under the First Amendment.” The presence of guns at a charged political protest can impede the reasoned discourse and peaceful disagreement that are the hallmarks of a democratic society. Political scientist Robert Spitzer is surely right that, whatever the subjective intentions of the gun-carriers at these events, their actions serve to intimidate their interlocutors and squelch debate. For some of the protestors, that result is no doubt a feature, not a bug.

The choice to emphasize one of these competing frames—personal defense or tyranny in these examples, or autonomy in others—matters a great deal. It is worth considering, for example, what the world would look like if Second Amendment rights were ultimately grounded in notions of tyranny prevention. If a relatively tame version of the theory means guns escape regulation at heavily-attended protests and in legislative hallways, what does that portend for laws criminalizing resisting unlawful force from a police officer or banning civilian possession of certain types of particularly lethal firearms or explosive devices? Such questions could be multiplied. Each of the other frames similarly carries with it doctrinal and practical implications that might affect a wide swath of case law.

These questions are not going away. The ongoing pandemic only highlights the degree to which the debate over what values motivate the Second Amendment right remains undertheorized. Because these value questions drive doctrinal answers, finding some resolution is both important and necessary. In short, we need a more robust theory about what the Second Amendment right is fundamentally for. As the Supreme Court appears poised to weigh in once again, the Second Amendment increasingly demands attention to theory.

Jacob D. Charles is a Lecturing Fellow & Executive Director of the Center for Firearms Law at Duke University School of Law.

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