By Sherry F. Colb

Most debates over gun rights are either interpretive, about the meaning of the Second Amendment, or empirical, about whether guns enhance or undermine safety. My goal in this essay is to introduce a third factor into the debate: the “imaginary narrative.” When I say “imaginary,” I mean to suggest a narrative that does not reflect typical or common experience. I use the context of guns and domestic violence to illustrate the phenomenon. The pro-gun imaginary narrative, when it comes to domestic violence, involves a victim confronting her abuser. Because she has a firearm, she is able to protect herself from him. But that fantasy does not comport with the reality of intimate partner abuse. I propose here that we acknowledge and interrogate imaginary narratives lest our laws and policies become disconnected from the true needs of our society.

New York: Brennan Center for Justice at New York University School of Law, 2021. 10p.

By Eric Ruben

What is an “arm” under the Second Amendment? The Supreme Court has signaled that arms encompass more than just guns, including less lethal alternatives to guns. But for many Americans, the term signifies guns alone. This essay explores the role of the gun rights movement in equating arms and guns, describes how it reflects neither law nor weapons practices, and contends that it could contribute to unduly expansive gun rights. On the eve of the next big Second Amendment case at the Supreme Court, New York State Rifle and Pistol Association v. Corlett, the time is now to put guns and gun rights into a broader perspective.

New York: Brennan Center for Justice at New York University School of Law, 2021. 9p.

By Susan P. Liebell

Understanding the persistence of public gun violence and resistance to restrictions on firearms requires unmasking a pernicious armed rebellion narrative that masquerades as the “original intent” of the American framers. Promoted by the National Rifle Association (NRA), constitutional scholars of the Second Amendment, public officials, and the conservative press, the narrative insists that guns uphold freedom and rights, maintain order, and prevent tyranny. Wrapped in symbols of the American Revolution, this narrative has been used to justify the January 6 U.S. Capitol insurrection, private-citizen policing during the #BLM protests of 2020, and calls to kidnap or assassinate public officials as tyrants. This article uses John Locke (the 17th-century thinker who inspired American revolutionaries and the Constitution’s writers) to demonstrate how the armed rebellion narrative disrespects “original” understandings and distorts the meaning of the Second Amendment. First, Locke, the founders, and the original understanding of the Constitution do not justify radical individual gun rights, private-citizen policing, or subversion of the government by individual citizens. Our foundational documents insist on redress through institutions like courts and legislatures and create high bars for armed insurrection (based on the views of the majority rather than small groups of individuals). The armed rebellion narrative replaces a collective decision with the views of the individual. Second, this dangerous and distorted lens should not be used to justify false equivalences between #BLM (a mass call for social change with some violence) and January 6 (an armed insurrection with violence at its core). Locke’s ideas about individuals, the public, and the social contract — claimed by both violent insurrectionists and #BLM protesters — clarify the big lie that perpetuates our gun-saturated politics.

New York: Brennan Center for Justice at New York University School of Law, 2021. 8p.

By Bertrall Ross

On January 6, 2021, men and women, some of them armed, stormed the U.S. Capitol to try to undo a fair and legitimate presidential election. For the insurrectionists, the election results meant something more than one candidate winning and another one losing. It represented a tyrannical threat to their racialized conception of American republicanism, one that President Donald Trump promoted and sought to legitimate. For those Americans, guns reemerged as an instrument of self-defense against tyranny, just as guns have throughout U.S. history. Yet those individuals’ actions — ones that they understood as resisting tyranny — in fact threatened to destabilize American democracy through violence.

The racialized conception of American republicanism has historically served as psychological ballast for many poor and working-class Americans, including many of those involved in the insurrection. Underlying that conception is an extreme economic inequality that has left many of the insurrectionists marginalized and alienated — and that itself represents the real tyranny that threatens all poor and working-class people’s ability to participate fully in democratic processes.

This essay explores the economic inequality that lies at the foundational core of American republicanism. It then argues that violent threats to the stability and sustainability of the American republic will persist until we confront economic inequality. Otherwise, extreme economic inequality will lead to a future in which the marginalized increasingly resort to guns and violence, and the government is forced to turn to repression to ensure the republic’s survival.

New York: Brennan Center for Justice at New York University School of Law, 2021. 8p.

By Aziz Z. Huq

This essay identifies and explores the intellectual roots of the Second Amendment as they have been imagined and deployed not just by the U.S. Supreme Court but also by contemporary insurrectionary movements of the right. The Court has recognized but sidelined a political understanding of the Second Amendment in its two main encounters with the amendment’s operative clause. That understanding, however, was on ample display during the January 6, 2021, U.S. Capitol insurrection, where it was featured on banners and performed through the actual possession and threat to use arms. The idea of the armed citizen as a cornerstone of the republic can be traced back to the work of the Florentine scholar-diplomat Niccolò di Bernardo dei Machiavelli. This essay shows that across his three main book-length works, Machiavelli developed a concept of citizenship that was closely tied to the political, and potentially insurrectionary, possession and use of arms. “Good laws” and “good arms” on his account could not be separated. This vision of a politically active populace, one seemingly at odds with its elites and leaders, can be traced forward to the January 6 insurrection. But it also has a left-of-center genealogy that today yields various forms of radically democratizing proposals for institutional reform. The intellectual past, in short, is not just still alive but surprisingly fertile.

New York: Brennan Center for Justice at New York University School of Law, 2021. 10p.

By Mary B. McCord

The insurrection at the U.S. Capitol on January 6, 2021, culminated a year of increasing private militia engagement with the public — sometimes in forcible opposition to government policies or, in the case of January 6, in an attempt to “stop the steal,” and sometimes in supposed augmentation of law enforcement’s role to provide protection for persons and property against what the militias deemed “violent anarchists.” These groups, often dressed in military uniforms, armed with semi-automatic assault rifles, and bearing a full accoutrement of military gear, pose a threat to public safety, stifle the constitutional rights of others, and undermine our democracy.

Why have such private paramilitary organizations gone largely unchallenged? The answer lies in part in the widespread mythology that they are protected by the Second Amendment, a mythology promoted by those who attempt to rewrite history to support an insurrectionist view of the Second Amendment. But this view is not supported by history, the text of the Second Amendment, or its interpretation by the Supreme Court. Far from enabling private militias to be a check on a tyrannical government, as modern private militia members would have us believe, the founders intended the militia — all able-bodied men available to be called forth by the governor in defense of the state — to be subordinate to and governed by the state. Indeed, as this essay explains, private militias are not authorized under federal or state law, are not protected by the Second Amendment, and are unlawful in every state.

New York: Brennan Center for Justice at New York University School of Law. 2021. 10p.

By Joseph Blocher, FoNoah Levine

Litigation, scholarship, and commentary about gun rights and regulation tend to focus nearly exclusively on the Second Amendment’s right to keep and bear arms—a constitutional guarantee that was for all intents and purposes legally inert until the Supreme Court’s decision in District of Columbia v. Heller. But to fully understand the landscape of gun litigation, it is important also to account for other constitutional gun rights claims—those that do not derive, at least not directly, from the Second Amendment.

In Part I of this short Article, we highlight some of the most prominent of these claims, including those deriving from the Due Process Clause, Takings Clause, and the First Amendment. Our goal in doing so is primarily to describe and illustrate, not to evaluate, though it is worth noting that some of these claims appear much stronger than others—and perhaps stronger than some courts have credited. Moreover, and perhaps surprisingly, some of these constitutional claims sometimes cut against the interests of gun owners (for example by calling into question the constitutionality of “parking lot” laws that require private business owners to permit guns on their property).

In the second Part of the Article, we address two broad and more speculative questions. First, how do these constitutional claims interact with more traditional Second Amendment arguments? Evaluating that question suggests much about how litigants perceive the relative strength and utility of their rights—for example, whether other rights are a more fruitful basis for gun-related claims. And, going forward, the answers will depend greatly on what the Supreme Court decides in the pending case of New York State Rifle & Pistol Association v. Bruen, which involves the question of whether the right to keep and bear arms extends outside the home.

We conclude by asking what this polycentric constitutional understanding of gun rights illustrates about the constitutional rights and interests of others, including those who support gun regulation as a means to preserve not only their own physical safety, but their freedom to engage in free speech, assembly, worship and other constitutionally salient activities.

77 New York University Annual Survey of American Law 175-198 (2022)

By  Eric Ruben

Gun rights supporters appear to be on the cusp of achieving a decades-long goal: defanging licensing laws nationwide for carrying handguns in public. More than twenty states have removed all licensing requirements for concealed carry, and most of the others now require little more than a background check.  At oral argument in New York State Rifle & Pistol Ass’n v. Bruen, meanwhile, the Supreme Court seemed poised to strike down policies in the remaining states that limit licenses to those who can show a heightened need, or “proper cause,” to carry a gun. If that happens, what comes next?

More people carrying guns in public can have negative consequences. Among other things, additional gun carriers might engage in more serious crimes than they otherwise would and might threaten the public sphere in ways beyond deaths and injuries. Under those circumstances, regulation will remain a priority in much of the country. With strong licensing regimes off the table, a key focal point will be how criminal law otherwise governs gun carry and use.

This Essay highlights two intersections between criminal law and public carry beyond licensing: the “he was going for my gun” defense invoked in several recent, high-profile trials and the deadly weapon doctrine. These intersections show how criminal law can both grant legal benefits to and erect legal hurdles for those who chose to carry a gun in public. On one hand, the “he was going for my gun” defense advantages armed defendants with greater legal leeway to use deadly defensive force, lest they be disarmed. On the other hand, the deadly weapon doctrine disadvantages such defendants by allowing juries to infer requisite mens rea for murder from the use of a gun in a homicide. If the ability to restrict public carry directly through meaningful licensing regimes becomes politically or constitutionally infeasible, judges, policymakers, and scholars will need to consider the propriety and efficacy of criminal law mechanisms like these to achieve optimal outcomes in a world where many more people will be armed.

Harvard Law Review, VOLUME 135. ISSUE 8. JUNE 2022

By Robert VerBruggen

  The past 40 years have seen nothing short of a revolution in Americans’ right to carry a concealed firearm in public. In 1980, the vast majority of states either did not grant concealed weapon permits or offered them only on a “may-issue” basis, meaning that authorities retained discretion to deny applications. Since then, many states have adopted “shall-issue” laws, under which anyone who meets certain objective requirements—such as passing a background check, paying a fee, and getting some training—is guaranteed a permit. In recent years, more than 20 states have decided not even to require permits, though restrictions based on age, criminal history, etc., still apply. And earlier this year, in New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court ruled that the Constitution protects the right to public carry while striking down New York’s requirement that permit applicants demonstrate a special need to carry, but allowing states to continue to require objective criteria. Now that right-to-carry (RTC) is becoming universal, the purpose of this brief is to ask what the policy’s consequences for crime rates have been thus far. In many ways, it is the perfect “natural experiment.” One by one, most of the states throughout the country decided to make it much easier to carry guns in public; if either side of the gun debate is correct, these policy changes should have led to sizable shifts in crime rates. In theory, measuring such shifts should be easy because during times when some states were changing their laws, others were not— and the latter may serve as a handy control group for the former. With so many experiments running for so many years, the results should be clear by now, both in the raw data and with the aid of modern statistics. That is not how things have played out. Twenty-five years after the first rigorous studies on RTC were published, social science has not resolved the issue…

New York: The Manhattan Institute, 2022. 22p.

By John J. Donohue, Abhay Aneja and Kyle D. Weber

This paper uses more complete state panel data (through 2014) and new statistical techniques to estimate the impact on violent crime when states adopt right-to-carry (RTC) concealed handgun laws. Our preferred panel data regression specification, unlike the statistical model of Lott and Mustard that had previously been offered as evidence of crime-reducing RTC laws, both satisfies the parallel trends assumption and generates statistically significant estimates showing RTC laws increase overall violent crime. Our synthetic control approach also strongly confirms that RTC laws are associated with 13-15 percent higher aggregate violent crime rates ten years after adoption. Using a consensus estimate of the elasticity of crime with respect to incarceration of 0.15, the average RTC state would need to roughly double its prison population to offset the increase in violent crime caused by RTC adoption.

Cambridge, MA; National Bureau of Economic Research, 2018. 126p.

By Abhay Aneja, John J. Donohue III and Alexandria Zhang

For over a decade, there has been a spirited academic debate over the impact on crime of laws that grant citizens the presumptive right to carry concealed handguns in public – so-called right-to-carry (RTC) laws. In 2004, the National Research Council (NRC) offered a critical evaluation of the “More Guns, Less Crime” hypothesis using county-level crime data for the period 1977-2000. 15 of the 16 academic members of the NRC panel essentially concluded that the existing research was inadequate to conclude that RTC laws increased or decreased crime. One member of the panel thought the NRC's panel data regressions showed that RTC laws decreased murder, but the other 15 responded by saying that “the scientific evidence does not support” that position.

We evaluate the NRC evidence, and improve and expand on the report’s county data analysis by analyzing an additional six years of county data as well as state panel data for the period 1979-2010. We also present evidence using both a more plausible version of the Lott and Mustard specification, as well as our own preferred specification (which, unlike the Lott and Mustard model presented in the NRC report, does control for rates of incarceration and police).

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  While we have considerable sympathy with the NRC’s majority view about the difficulty of drawing conclusions from simple panel data models and re-affirm its finding that the conclusion of the dissenting panel member that RTC laws reduce murder has no statistical support, we disagree with the NRC report’s judgment on one methodological point: the NRC report states that cluster adjustments to correct for serial correlation are not needed in these panel data regressions, but our randomization tests show that without such adjustments the Type 1 error soars to 22 - 73 percent.

  Our paper highlights some important questions to consider when using panel data methods to resolve questions of law and policy effectiveness. We buttress the NRC’s cautious conclusion regarding the effects of RTC laws by showing how sensitive the estimated impact of RTC laws is to different data periods, the use of state versus county data, particular specifications (especially the Lott-Mustard inclusion of 36 highly collinear demographic variables), and the decision to control for state trends.

Cambridge, MA: National Bureau of Economic Research, 2012. 109p.