PUBLISHED:November 15, 2023

Blocher tells legislators the historical record supports common-sense gun regulations, rebukes insurrectionist theory


Blocher spoke with legislators Monday about the confusion in the lower courts over applying Bruen's historical analogy test for gun laws. He also repudiated the notion that the Constitution allows or tolerates armed rebellion against the government.

Joseph Blocher Joseph Blocher

Professor Joseph Blocher told a Capitol Hill audience on Monday that the Second Amendment, properly interpreted, clearly permits the kind of reasonable gun regulation that is favored by a vast majority of Americans. 

He also strongly repudiated insurrectionist theory as a "wrong and dangerous" notion with no basis in any reading of the Constitution's text or its framers' views.

Blocher spoke during a Nov. 13 Congressional roundtable on the epidemic of gun violence in the United States. The discussion, titled “Thoughts and Prayers—With Actions and Change: Practical Solutions to End Gun Slaughter in America,” was hosted by U.S. Rep. Jamie Raskin (D-MD), the ranking member of the House Committee on Oversight and Accountability, and Reps. Maxwell Alejandro Frost and Jared Moskowitz.

Along with Blocher, speakers included community leaders and policy experts who addressed the impact of gun violence in schools and communities and discussed realistic reforms to prevent the loss of life. The livestreamed panel discussion can be viewed on Facebook.

Blocher, the Lanty L. Smith ’67 Distinguished Professor of Law and co-director of the Duke Center for Firearms Law, noted that the vast majority of Americans favor reasonable gun regulations, but said the Supreme Court had caused considerable confusion for lower courts assessing gun laws with its June 2022 ruling in New York State Rifle and Pistol Association v. Bruen.

The Bruen majority established a new historical-analogical framework for judging the constitutionality of gun laws but failed to provide guidance on applying it, resulting in wildly inconsistent rulings depending on judges’ readings of hundreds of years of sometimes-conflicting precedent and few direct analogs to modern technology and circumstances.

“Quite simply, it is hard to draw meaningful connections between modern laws and their historic predecessors, given the enormous changes in both weapons technology and society more broadly,” Blocher said.

“Is the current prohibition on guns in the Metro relevantly similar to medieval weapons restrictions in ‘fairs and markets’? Is the modern AR-15 relevantly similar to a black powder musket? For that matter, are domestic abusers relevantly similar to the groups that were disarmed at the founding?

“Answering those questions involves a great deal of judicial discretion. We have seen some judges require regulation closely to resemble laws of the distant past  – even as they define the scope of the right expansively so as to protect weapons whose lethality the framers could not possibly have imagined.”

Last week, in the first Second Amendment test since Bruen, the Court heard oral arguments in United States v. Rahimi, a case challenging the constitutionality of the 1994 federal law prohibiting gun possession by people subject to certain domestic violence restraining orders. Nearly half of all women murdered in the U.S. are killed by a current or former intimate partner, and more than half of those intimate partner homicides are by gun, Blocher noted.

“There is sufficient historical evidence to support the modern domestic violence prohibitor, and what the Constitution requires, even after Bruen, is not that modern gun laws have historical twins, but that they are consistent with the Constitution’s enduring principles,” Blocher said, quoting then-appellate judge Amy Coney Barrett as saying, “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”

Polls consistently show that a strong majority of Americans support strengthening certain regulations related to gun purchases and access.

In an April 2023 Fox News poll, 87% of respondents said they support criminal background checks for everyone purchasing a gun and 80% said they support mental health checks. In addition, 77% said they back a 30-day waiting period for purchasing guns and 81% would support raising the minimum age for gun purchases to 21.

Four out of five respondents also said they support "red flag laws" that empower police to take guns from those found to be a danger to themselves or others, while three out of five said they support a ban on assault rifles and semi-automatic weapons.

Blocher said he expected the Court to uphold the federal domestic violence restraining order law challenged in Rahimi, but predicted it would not walk back the historical test introduced in Bruen.

“We should expect to see some continuing incoherence and division in the lower courts with regard to the kind of gun laws that really do matter for keeping Americans safe,” he said.

Separately, Blocher addressed a question by Raskin on whether, as proponents of insurrectionist theory believe, the Second Amendment gives citizens the right to overthrow a government it views as tyrannical.

Blocher called insurrectionist theory “not just wrong and dangerous ... but it is profoundly ahistorical, unconstitutional, and frankly, undemocratic.” The framers contemplated armed rebellion by the citizenry and included in the Constitution numerous safeguards, he said, citing several passages that give government powers to suppress or punish rebellion. Those include Article III, which contains the only crime defined in the Constitution – treason.