By Josh Levine

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when citizens feel safe, they can properly exercise their will. But this tranquility doesn't exist naturally. To achieve it, the government must exercise a monopoly of force and ensure that citizens do not fear other citizens. Only then can people act and express themselves without fear of reprisal.

Yet when civilians openly wield their guns in public, they impose an arbitrary constraint on others that represses others' ability to exercise their will. Armed goers change the risk calculations for their fellow citizens—often forcing them to avoid areas where guns are present or arm themselves in self-defense. As this Note discusses, each of these options begets a compounding harm to our liberty. And the resulting proliferation of civilian defensive arms in the United States—the modern arms race—does not represent peace, only détente.

By this understanding, open carrying itself subverts liberty, and its regulation upholds it. Although an individual's arms may constitute a productive solution to his own fear, the externalities on others are substantial. The state must prevent these costs to the liberty of others by regulating those wielding firearms in public spaces.

18 Duke Journal of Constitutional Law & Public Policy Sidebar–265 (Arlington, VA: National Policing Institute 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 Sounak Chakraborty ,Charles E. Menifield, Ranadeep Daw

Stand Your Ground lethal force laws deepen disparities in the legal system and disproportionately justify the use of violence by people who are white and male against people who are not. In July 2018 at a convenience store near Clearwater, Florida, a 28-year-old man named Markeis McGlockton was shot and killed in front of his longtime girlfriend and their three young children following a minor confrontation with another customer in the parking lot. Security camera footage of the killing showed that McGlockton was at least 10 feet away from the gunman, Michael Drejka, and beginning to turn away when the lethal shot was fired. McGlockton, a Black man, was unarmed. Drejka, who is white, was initially not even arrested, despite the security camera footage, multiple credible eyewitnesses and Drejka’s own known history of threatening violence with a firearm. The reason? The county sheriff announced at a press conference the day after the incident that he believed Drejka shooting McGlockton was “within the bookends of ‘stand your ground’ and within the bookends of force being justified” under Florida law. Being shoved in a parking lot – in an altercation instigated by Drejka – was deemed sufficient grounds for lethal force. (Two weeks later, the sheriff’s office turned the case over to the state attorney’s office, and Drejka was ultimately convicted of manslaughter. This chain of events is common; law enforcement and prosecutors have at least initially cited Stand Your Ground laws in determining not to arrest the killers of Trayvon Martin, Jordan Davis, and more recently, Ahmaud Arbery, to name only a few.) ……. 27 states have enacted Stand Your Ground laws, and eight more have had de facto Stand Your Ground standards established by court decisions. We urge state lawmakers to repeal these laws and overturn these court decisions. We wrote this report to help provide advocates and lawmakers with the facts they need to make it happen.

Giffords Law Center. 2022. 27p.

By The  U.S. Commission on Civil Rights

The shooting death of Trayvon Martin on February 26, 2012, and later that year, on November 12th, the shooting and killing of Jordan Davis triggered a national controversy over the legislated criminal defense called “stand your ground.” These laws expanded the self-defense principles of the castle doctrine to situations and areas outside the curtilage of a home. It also expanded the principle of self-defense to a lesser justification standard than that of justifiable homicide. The United States Commission on Civil Rights opened its own inquiry on the subject in May 2013, and in October 2014, held a hearing in Florida. The transcript of that hearing forms the main body of that report. Unlike other hearings or briefings, the work of the Commission was conceived as an investigation, on a bipartisan vote made possible by the vote of then-Vice-Chair Abigail Thernstrom.  We are here presented with only the testimony heard in Florida five years ago, as well as research and public information subsequent, but that does not prevent members of this Commission to state their observations on an issue that continues to trouble our nation to this day. And so my statement begins. The question we asked then, and we ask now, continues to be: do Stand Your Ground laws have an unacceptable racial bias in their application in the criminal justice system. What we do know, and what we cannot ignore, is that the same racial biases that have permeated our criminal justice system cannot be separated from this issue. When you consider the racial disparities in selective prosecution and sentencing that have been amply documented in the literature is it any wonder that a law like Stand Your Ground, which in effect grants both powers to an individual under the guise of self-defense would suffer similar maladies?

Washington, DC: USCCR, 2020. 386p.

By The Giffords Law Center and the Southern Poverty Law Center

“Stand your ground” laws do not deter crime—in fact, they drive up homicides in states where they are enacted. Since 2005, a majority of states have enacted laws that make it easier to get away with murder. These laws distort the usual standard for self-defense by allowing people to use lethal force even if they could have avoided violence by stepping away from a confrontation. Research has shown that these laws lead to more killing and exacerbate systemic racism. Giffords Law Center and the SPLC Action Fund jointly released a new report, “Stand Your Ground” Kills: How These NRA-Backed Laws Promote Racist Violence, analyzing the failure of Stand Your Ground policies.Stand Your Ground does not offer the promised reductions in crime that the NRA and other proponents promised it would; in fact, Stand Your Ground laws have been proven to increase homicide rates and have been called a “low-cost license to kill” by the American Bar Association.

Giffords Law Center and the Southern Poverty Law Center, 2022. 22p.

Mayors Against Illegal Guns

This report provides a comprehensive review of Stand Your Ground laws and how they have affected public safety and the criminal justice system. It explains how Stand Your Ground statutes have dramatically expanded the circumstances under which people are permitted to use deadly force and have created legal hurdles that make it more difficult for law enforcement to hold shooters accountable. The report also shows that Stand Your Ground states have on average experienced a 53% increase in homicides deemed justifiable in the years following passage of the law, compared with a 5% decrease in states without Stand Your Ground statutes during the same period — an increase disproportionately borne by the black community. Finally, the report provides a state-by-state analysis of each of the 22 state Stand Your Ground laws.

New York: National Urban League, 2013. 28p.