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Joseph Blocher

Professor of Law, Duke University
Chapter Member: North Carolina SSN
Areas of Expertise:

About Joseph

Joseph Blocher's principal academic interests include federal and state constitutional law, the First and Second Amendments, legal history, and property. His current scholarship addresses issues of gun rights and regulation, free speech, the law of the territories, and the relationship between law and violence.

He has published articles on those and other topics in the Harvard Law Review, Yale Law Journal, Stanford Law Review, Duke Law Journal, Yale Journal of International Law, and other leading journals, and has testified before Congressional committees multiple times.


In the News

Opinion: ""MURDER THE MEDIA": Press Freedom, Violence, and the Public Sphere," Joseph Blocher, The Knight First Amendment Institute, March 7, 2024.
Opinion: "A Supreme Court Head-Scratcher: Is a Colonial Musket ‘Analogous’ to an AR-15?," Joseph Blocher (with Darrell A.H. Miller), The New York Times, July 1, 2022.
Opinion: "No, Red-Flag Gun Laws Don’t Violate Due Process Rights," Joseph Blocher (with Jake Charles), The Washington Post, June 7, 2022.
Opinion: "Why Do States Ban “Electioneering” but Allow Guns at Polling Places?," Joseph Blocher (with Alan Chen), Slate Magazine, June 5, 2021.
Opinion: "American Cities Have Always Regulated Guns. Now, Most Can’t.," Joseph Blocher, The Washington Post, March 25, 2021.
Opinion: "Guns Are a Threat to the Body Politic," Joseph Blocher (with Reva Siegel), The Atlantic, March 8, 2021.
Quoted by Robin Bravender in "Big Gun Rights Case Headlines Busy Week at U.S. Supreme Court," NC Policy Watch, December 2, 2019.
Quoted by Robin Bravender in "Big Gun Rights Case Headlines Busy Week at U.S. Supreme Court," NC Policy Watch, December 2, 2019.
Opinion: "Sure, Trump Can Buy Greenland. But Why Does He Think It’s Up to Denmark?," Joseph Blocher (with Mitu Gulati), Politico Magazine, August 23, 2019.
Guest on C-Span, July 18, 2019.
Opinion: "As Durham Turns 150, How Should the Figures of the City’s Past be Remembered?," Joseph Blocher (with Michelle Gonzalez-Green), The Herald Sun, March 4, 2019.
Opinion: "The Second Amendment Allows for More Gun Control than You Think," Joseph Blocher (with Eric Ruben), Vox, June 14, 2018.
Quoted by Raven Clabough in "Anti-Gun Hysteria Drives Rise in Gun Sales, Concealed-Carry Permits," The New American, April 10, 2018.
Quoted by Erin Petenko in "Why N.J. Gun Sales are Rising Again after the 'Trump Slump',", March 29, 2018.
Opinion: "A Gun Debate Compromise: Let Cities and Rural Areas Pass Different Laws," Joseph Blocher, Vox, March 21, 2018.
Opinion: "Trump, Academics and Lawsuits Put Spotlight on Puerto Rico Statehood," Joseph Blocher, The Hill, February 2, 2018.
Quoted by Ray Gronberg in "Upcoming at Duke, a Long Look at What Free Speech Means in Practice," Durham Herald Sun, January 23, 2018.
Opinion: "Puerto Rico's Colonial Status Hinges on a New York Hedge Fund's Greed," Joseph Blocher (with Mitu Gulati), The Hill, November 25, 2017.
Opinion: "The All (Un)important Vote That Cccurred in Puerto Rico," Joseph Blocher (with Mitu Gulati), The Hill, July 8, 2017.
Opinion: "Court-Hacking Comes to North Carolina," Joseph Blocher (with Neil S. Siegel), News & Observer, November 19, 2016.
Quoted by Olivia Li in "Is Merrick Garland Anti-Gun? ‘It’s Impossible To Tell.’," The Trace, March 16, 2016.
Opinion: "Scalia’s Gun Rights Legacy is Likely to Stand, No Matter Who Replaces Him," Joseph Blocher, The Trace, February 17, 2016.
Opinion: "We Can Regulate Guns at the Local Level, Too," Joseph Blocher, New York Times, December 10, 2015.


"Originalism-by-Analogy and Second Amendment Adjudication" (with Eric Ruben). Yale Law Journal 133, no. 1 (2023).

Explains and criticizes the Supreme Court's reliance on "text, history, and tradition" to evaluate the constitutionality of modern laws, especially those involving guns. Proposes solutions such as defining principles of similarity between historical and modern laws, addressing differences between past and present contexts, and recognizing judicial limitations in historical inquiry and regulatory changes.

"Originalism and Historical Fact-Finding" (with Brandon Garrett). Georgetown Law Journal (Forthcoming).

Explores how the Supreme Court increasingly relies on historical facts in constitutional litigation, driven by the rise of originalism and similar interpretative methods. Suggests that while originalism claims to resolve constitutional questions based on historical facts, these facts are often not litigated in accordance with standard practices for fact-finding (introduction at trial, expert testimony, adversarial testing, deference on appeal, etc.).

"When Guns Threaten the Public Sphere: A New Account of Public Safety Under Heller" (with Reva B. Siegel). Northwestern University Law Review 116, no. 1 (2021).

Argues that the traditional view of gun regulation focusing solely on preventing physical harm is incomplete and skews constitutional analysis of gun rights. Highlights how guns can also be used to intimidate and threaten, necessitating government regulation to protect public safety and the democratic public sphere. Emphasizes that recognizing these broader societal impacts of gun regulation is essential for ensuring equal security and liberties in a diverse constitutional democracy.

"Constitutional Implications of Firearm Restrictions for Veterans with Fiduciaries" Administration and Policy in Mental Health and Mental Health Services Research 45, no. 4 (2018): 684-686.

Explores implications of federal policy that places certain restrictions on gun ownership for veterans.

"From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller" (with Eric Ruben). Duke Law Journal 67 (2018): 1433-1509.

Analyzes over one thousand court opinions on the Second Amendment since the DC v. Heller case was decided in 2008. Establishes empirically the nature of legal opinion on the Second Amendment in a changing constitutional environment.

"The Positive Second Amendment: Rights, Regulation, and the Future of Heller" (with Darrell Miller) (Cambridge University Press, 2018).

Summarizes and analyzes the history of constitutional theory behind the Second Amendment, in the aftermath of the 2008 DC v. Heller Supreme Court case.

"What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment" (with Darrell Miller). University of Chicago Law Review 83 (2016): 295-355.

Analyzes "gun neutral" law and cases in civil and criminal law where firearms are an incidental part of alleged conduct.

"Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment" Duke Law Journal 62 (2014): 1423-1481.

Analyzes the constitutional basis for "nonsense" speech acts in the context of First Amendment protections. Finds that meaningful and meaningless speech are intertwined, and that how words are used are important, not just how they relate to concepts beyond the words themselves.

"Firearm Localism" Yale Law Journal 123, no. 1 (2013).

Argues that Second Amendment doctrine can and should incorporate the longstanding and sensible American tradition of regulating guns more strictly in cities than in rural areas.

"The Right Not to Keep or Bear Arms" Stanford Law Review 64 (2012): 1-54.
Argues that the Second Amendment should be read to encompass both the right to keep and bear arms for self-defense AND the right to protect oneself by avoiding them altogether, and shows what implications the latter right may have.
"Popular Constitutionalism and State Attorneys General" Harvard Law Review Forum 122 (2011): 108-115.
Argues that the State Attorneys General who advocated incorporation of the Second Amendment against the states owe more to popular constitutionalism than to federalism.
"Categoricalism and Balancing in First and Second Amendment Analysis" NYU Law Review 84 (2009): 375-434.
Uses free speech law to describe and predict what Heller’s categoricalism means for Second Amendment doctrine. Argues that the Court’s categorical line drawing creates intractable difficulties for Second Amendment doctrine and theory and that the majority’s categoricalism neither reflects nor enables a clear view of the Amendment’s underlying values, whatever they may be.