Bans with Blocher

Professor Joseph Blocher talks about his recent article, Bans. He argues that, in certain areas of constitutional law, judges are particularly skeptical of laws that can be described as bans. For instance, some courts have held that laws that ban an entire “class of arms” are not subject to the usual means-ends balancing tests, but rather are automatically invalid. But, as Professor Blocher explains, figuring out when a law bans something is harder than it seems. Imagine a law prohibiting the sale of pink guns. Is that a general gun regulation, or a ban on pink guns? Professor Blocher describes three approaches to defining bans (functional, formal, and purposivist), and says, at least in Second Amendment doctrine, a functionalist approach is the best way for courts to resolve these issues.