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Empirically Testing Waiting Period Restrictions to Challenge the Underlying Legal Paradigm

[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.]

Initially, this paper started as a primarily empirical study of the relationship between waiting period restrictions and some outcome variables of interest like per capita suicide and homicide rates. Many states that have a waiting period restriction justify the regulation by arguing that the duration of the waiting period provides a cooling-off period during which someone seeking to acquire a firearm can collect themselves, thereby preventing impulsive acts of violence committed against others or the owner himself. The argument is generally most forceful when discussing the correlation between waiting period restrictions and suicide rates. However, stories of a shooter obtaining a gun on the day of the shooting, like the 2021 Atlanta spa shooter or the mass shooting at a medical building in Tulsa, Oklahoma in June, suggest that there might also be some correlation between waiting period restrictions and homicide rates or other violent crime statistics.

Before the Supreme Court’s decision in Bruen v. New York State Rifle & Pistol Association, most courts applied a two-step framework to evaluate Second Amendment challenges to gun regulations. The framework first asked whether the challenged law fell outside the scope of the Second Amendment’s protections based on a historical inquiry. Then, if the law burdened protected conduct, courts asked how close the law came to the core of the Second Amendment right and the severity of the law’s burden on that right. Most gun regulations were subject to intermediate scrutiny, which requires only that the government shows that the regulation is substantially related to achieving an important government interest. The state has a compelling interest in preserving life, so the question always came down to one of fit: did these laws have any effect in practice?

Many have tried to empirically analyze gun regulations to help courts and legislatures answer this question of fit. Due to problems with the availability of data and the sporadic nature of state experimentation with gun regulation, even those methodologically rigorous tests on gun restrictions relied on quasi-natural experiments from decades ago. These quasi-natural experiments exploited differences in gun regulations across states over time to approximate treatment and control groups, as in randomized control experiments in health and medicine. With Wisconsin’s repeal of its two-day waiting period in 2015 and Florida’s enactment of a three-day waiting period in 2018, there is fresh data with which to conduct new quasi-natural experiments employing popular econometric models like the synthetic control method.

After the Supreme Court’s decision in Bruen, the relevance of this evidence, and thus of the real effects of gun laws on people’s lives, is limited. Bruen diminished the paper’s legal significance, so an empirical legal paper had to become something else. In this case, an empirical paper became more about challenging the story or paradigm underlying the legal rationale. We ultimately found a lack of support for any positive effect of waiting period restrictions for handgun purchases on suicide or homicide rates, which suggests a poor fit between the law and the outcome variables of interest.

From the empirical results, our paper argues that most waiting period restrictions misconstrue the reality on the ground or at least focus on the wrong paradigm, with most gun-related deaths in America in 2020 being suicides (54%). The paper argues that the law would be better served by rejecting the common-law concept of a cooling-off period to prevent impulsive acts, and instead focusing on another paradigm.

Under Bruen‘s historical inquiry, accurately describing the legal problem to be solved or the paradigm underlying the law will be even more critical when trying to find the correct historical comparison. By changing the underlying legal paradigm, future waiting period laws might have a better chance of withstanding scrutiny. To this end, based on the empirical results finding the strongest correlations between ecological or environmental controls associated with mental health factors and suicide and homicide rates, our paper suggests “deaths of despair” as a more apt legal paradigm when enacting waiting period restrictions. Under this paradigm, legislators should focus on addressing underlying socioeconomic factors that create the long-term hopelessness and despair driving gun deaths.  

Finally, our paper raises the question of how to handle a gun regulation that may have historical support and thus be constitutional under Bruen, but would not be constitutional under intermediate scrutiny because it has little to no effect. Although it is doubtful that any waiting period restriction is sufficiently similar to historic gun regulation, at least one state has employed waiting-period-type restrictions since the 1920s.  Our paper raises the question of whether historically supported but possibly ineffectual gun regulations are permissible under Bruen.