By: Azrael, Deborah and Blocher, Joseph and Cook, Philip J. and Hemenway, David and Miller, Matthew,

For a paper that has not yet been through peer review or even been formally published, William English’s "2021 National Firearms Survey" has been remarkably prominent in gun rights advocacy and scholarship. As of June 2024, it has been cited in roughly 50 briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.

This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, the draft fails to provide a reliable estimate of the number of defensive gun uses, the stock of AR-15s, or the actual protective value of or frequency with which AR-15 type firearms have been used. The paper should not be used as an authoritative source.

Duke Law School Public Law & Legal Theory Series No. 2024-50

By Terry L. Schell, Samuel Peterson, Brian G. Vegetabile, Adam Scherling, Rosanna Smart, Andrew R. Morral

To understand how rates of firearm ownership may be affected by public policy and how they may affect crime rates or other key outcomes in the United States, researchers need measures of firearm ownership at the state level. As part of the Gun Policy in America initiative, RAND researchers developed annual, state-level estimates of household firearm ownership by combining data from surveys and administrative sources. First, they used a small-area estimation technique to create state-level ownership estimates for each of 51 nationally representative surveys assessing household firearm ownership rates. They then used structural equation modeling to combine these survey-based estimates with administrative data on firearm suicides, hunting licenses, subscriptions to Guns & Ammo magazine, and background checks into the final measure of household firearm ownership. The resulting measure represents the proportion of adults living in a household with a firearm for each state in each year between 1980 and 2016. Other researchers can use these annual, state-level measures to test theories about the relationship between firearm ownership and crime, injury, and public policy.

Santa Monica, CA: RAND, 2020. 78p.

By Saul Cornell

A proper understanding of the founding era concept of police is essential to the future of Second Amendment jurisprudence. District of Columbia v. Heller never addresses the police power and its centrality to early American rights theory or antebellum jurisprudence. The omission is striking because Heller does devote considerable attention to antebellum southern cases addressing the issue of public carry, and this body of law was strongly influenced by police power jurisprudence. A genuinely historical treatment of founding era rights theory — including the right to keep and bear arms — provides scant support for Heller’s dismissal of the right of the people to regulate their internal police in the case of firearms. Nor does the antebellum southern case law that Heller highlights as the key to unlocking the meaning of the Second Amendment support such a claim. Reconstruction did not change these basic facts. If one applies Heller’s professed originalist methodology neutrally, and Justice Scalia is correct that rights are entrenched with the scope that they had when constitutionalized, then the right of the people to regulate their own police, including firearms, must be treated with the same originalist reverence. Judges, including originalist judges, must recognize the awesome power of the people: including the right to regulate arms.

New York: Brennan Center for Justice at New York University School of Law, 2021. 17p.

Joseph Blocher, Reva B. Siegel

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only to keep members of the polity free from physical harm, but also to enable government to protect their liberties against weapons threats and to preserve public peace and order. We show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Antonin Scalia specifically invokes it as a basis for reasoning about government’s authority to regulate the right Heller recognized.

Today, a growing number of judges and Justices are ready to expand gun rights beyond Heller’s paradigmatic scene: a law-abiding citizen in his home defending his family from a criminal invader. But expanding gun rights beyond the home and into the public sphere presents questions concerning valued liberties and activities of other law-abiding citizens. Americans are increasingly wielding guns in public spaces, roused by persons they politically oppose or public decisions with which they disagree. This changing paradigm of gun use has been enabled by changes in the law and practice of public carry. As courts consider whether and how to extend constitutional protection to these changed practices of public carry, it is crucial that they adhere to the portions of Justice Scalia’s Heller decision that recognize government’s

“longstanding” interest in regulating weapons in public places.

We show how government’s interest in protecting public safety has evolved with changing forms of constitutional community and of weapons threats. And we show how this more robust understanding of public safety bears on a variety of weapons regulations both inside and outside of courts—in constitutional litigation, in enacting legislation, and in ensuring the evenhanded enforcement of gun laws. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have equal claims to security and to the exercise of liberties, whether or not they are armed and however they may differ by race, sex, or viewpoint.

116 Northwestern University Law Review 139-201 (2021)

By Joseph Blocher

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

89 University of Chicago Law Review 557-580 (2022)

By Craig Uchida, Marc L. Swatt, Allison Q. Land, Kyle Anderson and Samantha Hock

Denver’s CGIC was conceived as a program that would “focus on gun violence” -- emphasizing shooters and those who commit gun-related crimes (J. Russell, personal communication October 2020). Using data- and forensic-driven approaches, an interagency collaboration was developed between ATF and DPD. Relying on research on gun violence and crime lab forensics, ATF and DPD leveraged the ATF’s National Integrated Ballistics Information Network (NIBIN) to identify critical links between gun casings, gun-related incidents, and those using firearms. NIBIN information and eTrace were used to link ballistics evidence recovered from firearms and casings to other shooting incidents. They showed the ability to identify heretofore unknown perpetrators and generate forensic evidence leading to the arrest and convictions of gun-crime offenders.

Los Angeles: Justice & Security Strategies, Inc., 2020. 102p.