Bruen, Public Opinion, and Survey Design

  • Date:
  • December 08, 2022

The most recent responses to Marquette Law School’s Supreme Court poll, which ran from November 15-22, indicated that 64% of respondents favored or somewhat favored a Supreme Court decision holding “that the 2nd Amendment right to ‘keep and bear arms’ protects the right to carry a gun outside the home.”  19% of respondents somewhat opposed such a ruling, and 17% strongly opposed it.  The question was phrased as a summary of the holding in Bruen: “In 2022 the Supreme Court ruled that the 2nd Amendment right to ‘keep and bear arms’ protects the right to carry a gun outside the home. How much do you favor or oppose this decision?”  Perhaps predictably, given how the question was drafted, some outlets have reported on the poll as indicating “the popularity of the Bruen decision,” that “64 percent favor the ruling in New York State Rifle and Pistol Association v. Bruen,” and that “most Americans are happy with expanded gun-rights protections” generally.  But there are serious reasons to doubt that the Marquette poll actually supports these broad conclusions.

The poll results shed light on a narrow question: how many Americans favor a ruling by the Supreme Court that extends the Second Amendment right to cover carrying guns in public.  While it’s certainly true that this was part of the holding in Bruen, it was a relatively uncontroversial part: both parties in the case accepted that “the Second Amendment protects an individual right to carry firearms outside the home for self-defense.”  In other words, the issue of whether the Second Amendment protects the right to carry a gun outside the home in some circumstances, which is what the Marquette poll asked respondents whether they favored or opposed, wasn’t actually litigated in Bruen—it was a foregone conclusion that the Court would hold that the right protected public carry in some form, as most Courts of Appeal had already held. 

The actual contested question in Bruen was somewhat different.  The petitioners framed the issue as “[w]hether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”; New York said that the issue was “[w]hether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.”  In each instance, the focus is on the standard a state may use to grant or deny concealed carry applications—there is no dispute that the state must allow public carry, in some form, pursuant to the Second Amendment.

It is possible to believe that the Second Amendment protects the right to carry a gun outside of the home and that states are allowed to require “proper cause,” or a similar strong showing of need.  One might believe that such a right exists, but that either the legislative objective sought by a “proper cause” licensing framework is sufficiently important to satisfy intermediate scrutiny, or that “proper cause” licensing is consistent with historical tradition (New York made both of those arguments in Bruen itself).  It is entirely possible that a large percentage of those who favored or somewhat favored Marquette’s narrow characterization of the holding do not similarly favor the Court’s decision to invalidate New York’s licensing law and/or the text, history and tradition approach the Court adopted for Second Amendment challenges.  To the former issue, a June 2022 Monmouth University poll found that 56% of respondents agreed with the statement “that individual states should be allowed to limit who can carry a concealed handgun by requiring permit applicants to demonstrate that they need the weapon for their work or for protection.”  When compared to the recent Marquette results, that finding suggests that at least 20% of Americans may support extending the Second Amendment right outside of the home but also agree that states can limit concealed carry to those who affirmatively demonstrate a need.[1]

Of course, this just underscores how difficult it is for public opinion polls to capture the nuance of judicial decisions, a problem not unique to the Second Amendment context.  For example, a Harvard/Harris poll conducted from June 28-29, 2022, asked respondents whether they “support or oppose the Supreme Court’s decision to overturn Roe vs Wade, which allows each state to decide its own standards for abortion instead of a set right?”  The poll found that 55% of respondents opposed the decision, when explained, while 45% favored it.  By contrast, Marquette’s November poll asked: “In 2022 the Supreme Court overturned Roe versus Wade, thus striking down the 1973 decision that made abortion legal in all 50 states. How much do you favor or oppose this decision?”  33% responded that they favored or somewhat favored the Dobbs decision (when characterized in that manner), while 67% said they opposed the decision.  That is a 12% swing from the earlier Harvard poll.

Two major problems of survey design and administration often arise in these situations: conceptual misalignment and framing effects.  Social scientists have long observed and studied the fact that “many reporting problems arise [in surveys] because respondents misunderstand the question.”  As Anna Suessbrick, Michael F. Schober, and Frederick G. Conrad have examined, “even straightforward question concepts are prone to variable interpretation”—for example, Suessbrick et al. describe a 1981 study finding that, of those asked the question “How many hours of television do you watch each weekday,” 16% construed the word “you” to include people other than themselves (such as family members who might independently watch TV), and 61% counted days other than the 5 weekdays.  This phenomenon is almost certainly at work in the Marquette survey responses.  Some of the respondents had likely read about Bruen and understood that the decision did more than simply extend the Second Amendment right outside of the home.  Those individuals may have comprehended the survey question as asking either about only that narrow aspect of the holding, or may have assumed the question drafters intended to ask about the holding in its entirety (with which they were already familiar).  Others who heard that the Supreme Court issued some decision on firearms, but had not read much about the details, likely assumed that Marquette’s framing fully and accurately represented the entire holding.  The larger point is that the question, as written, introduced substantial conceptual misalignment and, likely, produced less reliable answers.

A framing effect “occurs when a communication changes a person’s attitude toward an object (e.g., policy) by increasing the weight given to a subset of relevant considerations.”  As Dennis Chong and James Druckman have described, a classic example of the framing effect is that, “when asked whether they would favor or oppose allowing a hate group to hold a political rally, 85% of respondents answered in favor if the question was prefaced with the suggestion, ‘Given the importance of free speech,’ whereas only 45% were in favor when the question was prefaced with the phrase, ‘Given the risk of violence.’”  In the context of Bruen, the framing issue that is most salient is whether the decision is “framed” as expanding individual rights (a positive framing) or limiting state discretion (a negative framing).  Imagine, for example, a corollary to the Marquette question that asked respondents whether they favored or opposed a decision that “that the 2nd Amendment right to ‘keep and bear arms’ restricts the government’s ability to regulate public carry.” While this is the same general question that was asked, the negative framing would, most likely, produce a different result.

To be clear, this isn’t to say that public support for Bruen is (or is not) at the 64% threshold suggested by the Marquette poll.  Popular support for the decision, or certain aspects of the decision, may in fact be that high—but Marquette’s question does not shed any real light on the popularity of Bruen as a whole.  Given the decision’s breadth, measuring public perception accurately in this context likely requires a series of separate questions and, potentially, clarification to survey respondents who struggle with the prompts.  One question might ask about a Second Amendment right to carry a gun outside of the home, a second might ask about the government’s ability to require a showing of need to obtain a concealed-carry permit, and a third might ask about Bruen’s methodological holding that “modern firearms regulations [must be] consistent with the Second Amendment’s text and historical understanding.”

[1] Per Marquette, 64% favor extending the right outside of the home and 36% oppose that step. Even if one assumes that all those who oppose a right to public carry (full stop) also support state laws requiring a showing of need, that would mean that 20% of favorable responses to the Marquette poll would need to also support laws like New York’s “proper cause” requirement, in order to align with the Monmouth findings.