Facts Still Matter, Even If the Court Signals Otherwise


Oct 4, 2022

Signs proclaiming a gun-free zone at an entrance point to Times Square, in New York City, September 1, 2022, photo by Richard B. Levine/Reuters

Signs proclaiming a gun-free zone at an entrance point to Times Square, in New York City, September 1, 2022

Photo by Richard B. Levine/Reuters

This commentary originally appeared on Newsweek on October 4, 2022.

The Supreme Court's recent decision in New York State Rifle & Pistol Association v. Bruen threatens to render decades of scientific studies legally irrelevant. Do laws that restrict concealed carry of firearms lead to increased violence? Evidence suggests no, but to the court, that doesn't seem to matter. How many times do citizens use guns to defend themselves? We don't yet know, but the question itself, to the court, appears inconsequential. Instead, with its ruling, the court has suggested that the only relevant question is whether a particular regulation has some kind of analog in history and tradition.

For those of us who have spent years studying gun policy, gun violence, and gun use, the Bruen decision initially seemed a calamity. No amount of data, no amount of science, it seemed, would make any difference to this court.

Before June's Bruen decision, the court routinely evaluated gun laws under the Second Amendment using cost-benefit analyses drawing on scientific findings—when available. This approach was embedded in a two-part framework, close to uniformly adopted (PDF) by lower courts, to examine the constitutionality of any given regulation, from limitations on large-capacity magazines to bans on firearms in the hands of undocumented immigrants.

The first part of this historical approach asked whether the activity or regulation fell completely outside the Second Amendment's scope. For example, some kinds of “dangerous and unusual” arms—like bazookas—were found to be categorically outside Second Amendment coverage. If the activity implicated the Second Amendment in some way—a prohibition on possessing a firearm with a defaced serial number, say—then the courts considered the second step of the framework, which was to ask whether the benefits to society or crime control outweighed the potential costs. In the case of the defaced serial numbers: Does the benefit of requiring serial numbers on guns outweigh the costs imposed on individuals in their ability to use guns for self-defense? If the regulation didn't harm Second Amendment activity too much, but did benefit society, then it could be upheld.

The majority opinion in Bruen threw out the second step—the assessment of costs and benefits— replacing it instead with a requirement that regulations affecting Second Amendment activities must be consistent with the “historical tradition of firearm regulation.” This would, at first blush, seem to leave no room for scientific evidence on policy effectiveness—no opportunity to weigh benefits and costs to society while showing, with data, whether regulations succeed or fail at achieving a specific government interest, such as public safety.

Consigning all modern gun regulation to a game of 'What would James Madison have thought of AR-15s' is not the inevitable result of the Bruen decision.

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And yet, consigning all modern gun regulation to a game of “What would James Madison have thought of AR-15s” is not the inevitable result of the Bruen decision. There is still room for research to inform court decisions about firearm regulations. It's just that such scientific information will have to be framed in a different way than before. Call it historical translation.

There is, for example, a long history of preventing dangerous persons from possessing firearms. Granted, during the founding era, African-Americans, Indigenous Americans, and Catholics were all categorized as “dangerous.” But the fact that the framing generation used bigoted stereotypes does not diminish the broader, less odious principle: that dangerous people shouldn't have guns. If we understand the principle at the founding era as prohibitions on dangerousness, then this seems like an area with a clear role for empirical evidence under the historical translation framework. After all, how do you classify a certain group as dangerous without any evidence of their dangerousness? Will dangerousness be determined by perception alone?

Similarly, the Bruen decision recognizes historical precedent for regulating “sensitive places” where carrying firearms is prohibited, but leaves unclear what might constitute a “sensitive place” in the modern era. The historical record indicates that places where educational, social, political, or government activity occurs have a long history of being regulated as “sensitive.” Additionally, although Bruen indicates that public carrying of firearms cannot be universally prohibited, it can be regulated to prohibit public carrying of firearms in places or in a fashion likely to cause “terror to the people.” Again, historical translation could be beneficial, as scientific evidence on where shootings are likely to occur, or where defensive gun use is most effective, will help clarify the meaning of “sensitive places.”

The Bruen decision leaves much unanswered, and its full scope will remain unclear until the Supreme Court accepts new cases that test this new framework. Indeed, new challenges to many existing laws will likely involve use of contemporary scientific studies to establish modern analogues for regulatory tradition on laws as far-ranging as the possession of firearms by dangerous people; the possession of dangerous and unusual weapons; training and competency standards for carrying a concealed weapon; and, of course, the sensitive-places bans, which will inevitably be used by states concerned with the unrestricted proliferation of firearms and the potential threat those guns pose to public safety. Until the highest court in the land decides to weigh in on these new cases, the lower courts will benefit from the insights produced by research on firearm violence and its prevention.

Rosanna Smart is an economist at the nonprofit, nonpartisan RAND Corporation. Darrell A.H. Miller is the Melvin G. Shimm professor of law at Duke University. Andrew R. Morral is a senior scientist at RAND and director of its Gun Policy in America initiative.

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