From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms after Heller

By Ruben, Eric; Blocher, Joseph | Duke Law Journal, April 2018 | Go to article overview

From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms after Heller


Ruben, Eric, Blocher, Joseph, Duke Law Journal


ABSTRACT

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion--state and federal, trial and appellate--from Heller up until February 1, 2016. The dataset is deep as well as broad, including dozens of variables regarding the content of each challenge, not just whether it prevailed. Our findings help provide an objective basis for characterizing Second Amendment doctrine and framing new scholarly inquiries. This is a particularly important task now, as the Amendment becomes a part of "normal" constitutional law and increasingly susceptible to the standard tools of legal analysis.

TABLE OF CONTENTS

Introduction

I. The Second Amendment Comes of Age

      A. From Should to Is: Why Claims about Second Amendment
         Doctrine Matter
      B. Characterizing Second Amendment Doctrine
         1. Overall Characterizations
         2. Claims About the Content of the Law
      C. Measuring Doctrine

II. Methodology

      A. Data Selection
      B. Survey Construction
      C. Defining Variables
      D. Coding and Reliability Review
      E. Caveats and Lessons

III. The State of the Second Amendment: Empirical Findings

      A. Characterizing Second Amendment Challenges
         1. Where Is the Second Amendment Action?
         2. Who Is Bringing Second Amendment Challenges?
         3. What Types of Laws Are Being Challenged?
      B. Trends in the Evolving Second Amendment

IV. What Makes for a Successful Second Amendment
      Challenge?
      A. High-Level Observations
      B. Doctrinal Observations
      C. Regressions

Conclusion

INTRODUCTION

For at least a generation, the predominant--nearly sole--question for Second Amendment law and scholarship was whether the right to keep and bear arms extends beyond the organized militia. In District of Columbia v. Heller, (1) the Supreme Court resolved that question: As a matter of constitutional doctrine, the right protects keeping and bearing arms for private purposes like self-defense against crime. (2)

In the decade since Heller, Second Amendment law, scholarship, and advocacy have moved on to new battlefields. (3) Disputes about the underlying purposes and themes of the Second Amendment remain important and, in significant ways, unresolved. (4) But most of the important, timely, and difficult questions involve determining what kinds of regulations are consistent with the individual right to keep and bear arms. An entire field of constitutional doctrine is being built from the ground up--a rare challenge and opportunity for judges, lawyers, and scholars.

The maturation of the Second Amendment debate has simultaneously required and generated a new set of legal tools. Throughout the first generation of the Second Amendment debate, many scholars and advocates argued that the right to keep and bear arms must be taken seriously as an individual constitutional right. (5) The underlying materials supporting this argument were not drawn primarily from case law--indeed, with the exception of a district court opinion that was later overturned, no federal court prior to Heller had ever struck down a gun regulation on Second Amendment grounds. (6) Instead, the argument was essentially one from constitutional first principles, and it correspondingly made heavy use of constitutional text, history, and the like. (7)

Those tools are still useful and important. But now that the individual right to keep and bear arms is regularly invoked in court--generating more than one thousand Second Amendment opinions since Heller--those involved in the gun debate must also account for evolving precedent. …

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