This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

Chapter 3 reveals how violent individuals and a violent state are structured in the Constitution. Here, violent, White self-determination (the right of White individuals to overthrow government) and liberalism (the systemic differences central to a liberal state) mix with republicanism (a decentralization of authority that privileges violent acts of citizens, a group most often defined as propertied, White men). In Article IV, Section 4, the Second Amendment, and the Fifth Amendment, this chapter reveals the key formulations and tensions of American violence.

Chapter 6 examines the special challenges public carry of firearms pose for public protest. Arming public protests is incompatible with peaceful forms of dissent. It threatens to intimidate protesters and chill protected First Amendment activity in the public square. The chapter proposes several measures that can reduce or eliminate these harms, including prohibitions on public carry at permitted events, bans on armed groups in public places, and place restrictions deemed presumptively valid under the Second Amendment. The Supreme Court has recently issued an expansive interpretation of public carry rights, based on the nation’s historical practice of gun regulation. But there is historical support for at least some restrictions on public carry at or near public protest events. Even if the best that can be done is a ban on open carry, that would alleviate some of the most nefarious effects public carry has on public protest.

Today three forces threaten to limit speech. The first pits guns against words, creating a showdown between the Second Amendment and the First. The second sees powerful speakers invoking their right to speak in order to silence other people’s speech. Third, and perhaps the most subtle, the monitoring of our digital speech by government and business chills our ability to say what we want online. Free speech will survive provided we remain vigilant in defending the speech rights of the minority against what has been called the tyranny of the majority.

Beginning with a look at the January 6 riots at the US Capitol, and concluding with neo-Nazi rallies in support of "white free speech" in Charlottesville, VA, and earlier in Skokie, IL, we discusses how groups are weaponizing free speech to suppress the speech of others.

The clash between the First and Second amendments in the US Constitution – the First guaranteeing free speech and the Second guaranteeing the right to bear arms – leads into a discussion of legal interpretations of the Second Amendment from 1791, when the states ratified the Bill of Rights, to the present. Using a corpus linguistic analysis of the Second Amendment, with a focus on "the right to keep and bear arms," and an examination of the US Supreme Court decision in District of Columbia v. Heller (2008), we see that, just like any other text, whether a literary work, a sacred book, or an everyday communication like a memo or shopping list, legal interpretation is always contingent, always subjective, and and always subject to reinterpretation.

Justice GULASEKARAM delivered the opinion of the Court.1

This case requires us to decide whether there will be justice for the more than seventy colored men who were slaughtered on April 13, 1873 by an army of white supremacists. More broadly, it asks whether the forces of white supremacy who were recently defeated on the battlefield may nevertheless succeed in this legal civil war, currently being waged in our federal courts. Indeed, in this case, the fate of our national project to build a “more perfect union” through emancipation, reconstruction, and equality hangs in the balance.

Since I wrote “The Sandy Hook Effect” in 2012, gun violence has continued to fill the evening news, most notably the massacre in Las Vegas on October 1, 2017. In response to that horrific event I penned an opinion editorial for The New York Times, solicited and edited by the estimable editor Bari Weiss, addressing the argument by pro-gun advocates that guns are a deterrent against tyranny. What follows is an expanded version of that op-ed that includes the problem of copycat mass murders, in which perpetrators seek fame through their murderous acts, and a simple solution to it.