The Volokh Conspiracy
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Revisiting the Right to Bear Arms after Summer 2020 Rioting
The final version of my article, The Right to Armed Self-Defense in the Light of Law Enforcement Abdication, published in the Georgetown Journal of Law and Public Policy, is now available for download.
The basic theme of the article is that the inability or unwillingness (often under standdown orders from politicians) of law enforcement to protect life and property during the summer 2020 riots and looting in cities across the country undermines the claim of opponents of the right to keep and bear arms that individual firearms ownership is obsolete given the existence of modern police forces.
One contribution the article makes is to document the scope of the lawlessness last summer, which was largely ignored by the media. The article did not attempt to be comprehensive, but it may still be the most thorough discussion of the extent of the unrest, the lack of police response, and of efforts by citizens to protect themselves with firearms.
Meanwhile, I just came across a strange response to my article, and articles with similar themes, by Duke Law professor Joseph Blocher and Yale Law professor Reva Siegel. They write,
Advocates for guns have seized on the events of the past year — especially racial justice protests — as occasion to argue for an expanded right to keep and bear arms.20 Some scholars argue that the state has no monopoly on tools of violence, "especially in times of emergency and civil unrest;"21 they contend that armed self-defense is critical "in a time of lawless violence"22 and that "in the absence of a viable, effective police presence, [it is] in practice the primary mechanism citizens have to protect themselves, their businesses, their employees, and their property from violence"23 or from "tyrannous factions."24 Such arguments effectively read the racial justice protests through Heller's law and order lens, coding them as crime rather than speech or assembly. Doing so obscures the harms to public life that public carry can inflict, and it privileges the claims of citizens who rely on guns — rather than gun laws — to respond to fears of violence.
Citing my article for this point is academic malpractice. I don't think my article could be any clearer that I was writing in response to looting, rioting, shootings, arson, and other mayhem and violence, not to "racial justice protests." I even pointed out, explicitly, that "it appears that the vast majority of BLM protestors were peaceful, and many of the looters and rioters were doing so opportunistically, not because they believed it furthered 'the cause.'"
For reasons that escape me, progressives have been unwilling to distinguish between peaceful racial justice protesters and those who engaged in wanton violence that claimed a dozen or so lives, caused billions of dollars of property damage, and left residents of American cities, often members of minority groups, begging for police intervention that was not forthcoming. From the article:
In Minneapolis—a city hit especially hard by recent rioting—the summer of 2020 saw groups of armed residents protecting property and life from law breakers. In the city's Lake Street neighborhood—which was at the heart of recent riots—restauranteur Cesia Baires formed Security Latinos De La Lake, a group of gun-toting locals dedicated to protecting the area's Latino community. Baires' group was one of many armed neighborhood watches that sprung up in the Twin Cities.224 "It's not something that I would want," Baires told MPR, "but . . . we were left alone. . . . There were no cops that would come around. So what are we to do? Just stand there and do nothing?"225 The local NAACP chapter also organized groups of armed residents to guard local businesses during this summer's wave of rioting.226 In the city's predominantly-Black Folwell neighborhood, "it became . . . apparent . . . that the police weren't available to help. . . . [w]hen protests and ransacking of businesses erupted" in May.227 As a result, residents "banded together to protect themselves[,] . . . . sitting outside businesses with guns to make sure outside groups didn't attack."228 After several Black-owned businesses were destroyed during demonstrations, City Councilman Jeremiah Ellison (son of Minnesota Attorney General Keith Ellison) organized his own group of mostly-Black armed citizens.229 The group was formed to protect businesses in a neighborhood "considered [to be] the heart of the city's black community."230 In one incidence of armed self-defense during the rioting in Minneapolis, video footage shows armed volunteers standing outside a tobacco shop to help the storeowners defend the premises against rioters and looters.231 One gun-toting volunteer explained that while "we definitely don't agree with the looting, but we do agree with the cause for protests."232
