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Technology, Tradition, and 'The Terror of the People'

Abstract

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging "historical tradition of firearm regulation" to meet constitutional muster. Some despair that that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically-grounded policy solutions badly misread the opinion. Empirical studies can still inform meaningful gun policy, but the boundaries that make such studies legally significant are now set by Bruen’s text, history, tradition and analogy-only approach.

This article uses an original survey experiment to measure the "chill" caused by public weaponry, and connects those experimental findings to the longstanding tradition of regulating weapons to protect the peace and to prevent "the terror of the people." The article shows that, far from being irrelevant, modern empirical data can help bridge the gap between modern problems and technology and the historical record of gun rights and regulation.

Keywords

firearms, Second Amendment, mass shooting, empirical evidence, data, surveys, historical tradition, constitutional interpretation

Suggested Citation

Miller, Darrell A. H. and Filindra, Alexandra and Kaplan, Noah J., Technology, Tradition, and 'The Terror of the People' (July 25, 2023). Notre Dame Law Review, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2023-41, Available at SSRN: https://ssrn.com/abstract=4521030

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