Safe Storage Laws and Self-Defense from Heller to Bruen

Authors

Joseph Blocher, Duke Law SchoolFollow

Document Type

Article

Publication Date

2024

Abstract

This short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking whether such a requirement would make it too hard to use a gun in self-defense, but rather by insisting that the safe storage requirement—unlike most generally applicable rules and also unlike Founding-era laws—did not contain a self-defense exception.

The first part of the Essay unpacks the Justices’ treatment of the safe storage requirement in Heller, first at oral argument and then in the opinions. The second part explains why the refusal to recognize a self-defense exception was so significant and what that refusal illustrates about the Court’s recent approaches to constitutional doctrine more broadly. The Court dodged an important and genuinely hard question—whether safe storage requirements impermissibly burden armed self-defense—by manufacturing an easier one: whether a city can ban “functional firearms.” This move exemplifies both the Court’s failure to grapple with the relationship between the Second Amendment and self-defense, and its broader tendency to defer to what it sees as the wisdom of the past (when safe storage laws all had implied self-defense exceptions) but not of today. The final part shows how New York State Rifle & Pistol Ass’n has transformed that tendency into a constitutional rule, effectively codifying the doctrinal trend that Heller’s worst holding exemplified. If only Walter were still here to lawyer a way out of the mess.

Citation

Joseph Blocher, Safe Storage Laws and Self-Defense from Heller to Bruen, 102 North Carolina Law Review 1353-1380 (2024)