Packed and Loaded: Stanford’s John Donohue on Supreme Court’s Guns Decision

On June 23, the Supreme Court ruled 6 to 3 to strike down New York’s law restricting the right of individuals to carry firearms outside of the home, expanding the scope of the individual constitutional right to keep and bear arms to American public life. The Second Amendment, Justice Clarence Thomas wrote for the majority, protects “an individual’s right to carry a handgun for self-defense outside the home.” Here, Stanford Law School’s John Donohue, an expert in gun law, discusses the decision.

Orlando to Las Vegas: Guns and Law

What is the main takeaway from today’s decision? How does it expand an individual’s right to carry arms outside of the home?

In 2008, the Supreme Court issued the landmark Heller decision striking down the handgun ban of the District of Columbia, while stating that the core of the Second Amendment is the right to protect oneself with a gun inside one’s home.  Today the Court in Bruen expanded the scope of the Second Amendment in striking down a 109-year-old law in New York state that restricted carrying of guns outside the home to those with a particularized need to carry a weapon.  The Court reversed its earlier language by announcing that the core of the Second Amendment is the right to have a gun within reach for self-defense, whether it is inside or outside the home.

Public Policy Data with Prof John Donohue

Based on your research, what are the larger implications of this decision with regard to public safety?

The narrow effect of the decision will be to expand gun carrying outside the home in the relatively limited number of states that have tried to be more restrictive in this dimension, such as New York, California, New Jersey, Massachusetts, etc.  In turning these states into “right-to-carry” states that essentially give anyone (other than a narrow class of prohibited possessors) the right to carry handguns outside the home, the Court determined that its judgment about gun policy trumped the legislative determinations based on strong empirical evidence that promiscuous gun carrying will elevate violent crime.

The conservative justices who supported this new constitutional right referenced a few anecdotes in which something went well when a citizen used a concealed weapon to thwart a crime, ostensibly showing that their ruling reflected a concern for public safety.  The enormous irony of the decision, though, is that these justices entirely ignored – and indeed deemed irrelevant—the evidence that, on balance, violent crime rises when more citizens carry concealed weapons. Today’s decision will increase gun sales and gun carrying in previously restrictive states, but their citizens will largely be wasting money buying guns (and lugging them around) only to result in a higher level of violent crime victims.

Justice Alito wrote a concurring opinion that embarrassingly rehearsed some of the most discredited claims in all of public policy—such as the absurd statement that “defensive firearm use occurs up to 2.5 million times per year.” The research on guns and crime in some ways mimics the research concerning tobacco and smoking where zealots and industry-funded researchers muddied the waters enough to delay a full appreciation of the costs of smoking for decades.

What does the data tell us about public safety in New York and laws allowing individuals to carry guns in public?

While Justice Alito seemed to want to paint New York City as a scary place where only a gun could assure safety, it might have been helpful if he considered data rather than mere anecdotes.  For example, in 1992 New York and Houston had identical murder rates (27 per 100,000), but since then these cities have gone in opposite directions concerning gun policies.  New York’s restrictions left it with a 2020 homicide rate of 5.7 per 100,000, while Houston’s “guns everywhere” approach left it with a 2020 homicide rate three times as high at 17.3 per 100,000.  Obviously, one doesn’t want to rest the analysis with just a simple comparison of two cities (although this is more valuable than Alito’s references to two benign defensive gun uses), but there is an important general point:  New York’s firearm restrictions have clearly reduced violent crime in the city.  Since today’s decision will almost certainly lead to an increase in violent crime (other things equal), how is the Supreme Court enhancing public welfare by telling the people of New York that their democratic decision seeking to promote public safety is less important than the right of a minority to carry weapons in the state?  It hardly needs to be noted that gun carrying in New York or elsewhere is not enhancing the performance of a well-regulated militia that is necessary to the security of a free state.

Listen to Professor John Donohue’s discussion “Money, Guns, and Lawyers: The Uniquely American Epidemic of Mass Shootings” on Stanford Legal on SiriusXM

Did the Court say anything about the types of arms that can be carried? Do handguns and AK47s have equal protection?

The Court did not address this issue, but the Court’s obvious enthusiasm for creating a super-charged Second Amendment raises substantial concerns of what other democratically adopted gun safety measures will also be invalidated.

What does your research say about the challenges that cities, towns, and counties with large, dense populations will face in trying to control gun violence?

A paper to be released on Monday by the National Bureau of Economic research that was written by me, Stanford researchers Matt Bondy and Sam Cai, and Phil Cook of Duke underscores that large cities in the states affected by today’s decisions will experience a noticeable increase in violent crime in the decade following the move to permissive gun carrying.  Our paper highlighted two important costs of gun carrying that have largely been overlooked.  First, there will be a very dramatic increase in gun thefts since guns taken outside of the home are often left unattended in unlocked cars.  Second, police effectiveness in solving crime will be impaired as they have to deal with the abundant challenges of a more armed public.  Road rage incidents will get more dangerous when battles erupt among armed citizens, and criminals will increase their own gun carrying, thereby elevating the dangers of crime to the public.  Some anecdotes will occur that enable supporters of gun carrying to claim that Bruen was a good decision, but on balance violent crime will rise and the public will be less safe.  Of course, there are other measures (besides gun safety regulations) that reduce crime.  If states want to pay for these measures, they could presumably offset the push towards greater firearm violence that Bruen will unleash.  Gun license fees could be imposed to help fund policies that can diminish the increased crime.

What recourse do gun safety advocates have?

The decision in Bruen frequently references the rights of “law-abiding, responsible citizens.”  One area that states might explore is whether a more complete exploration of an individual’s background could be used to determine whether an individual is in fact someone who should be characterized in this fashion.  The recent mass shooters in Buffalo and Uvalde were “law-abiding citizens” in the simplistic lexicon of the Court – until they started committing mass murder.  But a detailed and thorough investigation into their backgrounds would likely have raised concerns about the wisdom of allowing them to have guns either for keeping in the home or bearing on the streets.  The Senate has just passed a bill that would move in this direction by requiring (albeit only for ten years) somewhat more complete background checks for gun purchases by 18-20-year-olds, but a more probing inquiry than the Senate bill envisions would be more effective.

States could push further and say that gun rights are stripped from those who have made violent threats (as the Buffalo shooter did) or who have mis-used guns (the 2013 Washington Navy Shipyard killer of 12 had shot out the tires of someone who made too much noise and shot through the ceiling of his apartment when angered by noise from the tenant above) or have lost guns (in Israel, having your gun stolen is a criminal offense leading to incarceration).  Right now, if you commit misdemeanor domestic violence on your wife you are banned from having guns but if you beat up your girlfriend you are still good to go.  The Senate bill would close this loophole – but without universal background checks, prohibited purchasers retain an easy path to purchasing guns through private sales.  The limits of American democracy are sharply revealed when the roughly 90 percent support for universal background checks is insufficient to overcome the power of the gun lobby.

Insurance requirements for gun owners such as those mandated for motor vehicle operators might get the profit motive of insurance companies aligned with measures to induce greater safety.

Read this Legal Aggregate post with Stanford’s John Donohue on Guns, Mass Shootings, and the Law in the U.S.

The majority opinion seems to set a general standard by which courts across the country must now consider when restricting gun rights (The ruling said: “The government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.”) Is this the case?

Since Heller, the dominant view of federal courts has been that restrictions on firearms that were less intrusive on the core Second Amendment right to have a gun in the home for self-defense would be sustained if the state could show that important interests in public safety were advanced by the relevant measure.  The Court in Bruen says this “means-ends scrutiny” is no longer appropriate because public safety issues are irrelevant in determining the constitutionality of gun safety legislation.  Instead, the court offered a vague test about history and tradition that is supposed to solve questions about regulations of firearms that were unknown in 1791.  Most professional historians think that the Supreme Court butchered the history in Heller, so there is great concern that this vague and unworkable test of “history” as a way to resolve the challenges of modern American violence in an age of growing firearm lethality will ultimately lead to significant increases in firearm violence.

Is there anything else you’d like to add?

Supreme Court Justice John Paul Stevens called Heller, written by Justice Antonin Scalia, the worst decision during his 34 years on the Supreme Court.  Textualist and Originalist Scalia had argued one must decide constitutional cases with reference to text, history, and tradition, but Scalia’s opinion then ignored the text of the Amendment (which references the well-regulated militia), as well as the original purpose for the Amendment. I think Stevens is largely correct about Heller, and Bruen only expands the harm by making it explicit that public safety is irrelevant to constitutional decision-making in this domain.

The Court’s use of history has often been selective and inaccurate. Astonishingly, Justice Alito in the current decision noted that there were no police departments in the United States in 1791 so it was important at that time to be able to carry guns.  He entirely missed the point, though, that the lack of police in 1791 would not justify the need for gun carrying today, when all of the country is covered by police forces.  Moreover, no gun available to a citizen in 1791 could kill at the level demonstrated by some of America’s more prodigious mass killers of today using firearms that are increasingly lethal every year.  (In 2017, the Sutherland Springs Baptist Church shooter killed 26 while shooting 254 bullets – from outside through the walls of the Church!)

Bruen has created an unworkable and largely nonsensical standard for evaluating gun regulations based on history when the history has very little to say about wise policy today.  Hopefully, the standard will not be used to invalidate important tools to address gun violence, such as state bans on assault weapons and high-capacity magazines, red flag laws, safe storage laws, waiting periods, and other sensible measures designed to reduce the large social costs of gun violence in America. But the standard is so vague and malleable that this Supreme Court will be able to sustain – or strike down – any of these measures and many more.

John J. Donohue III has been one of the leading empirical researchers in the legal academy over the past 25 years. An economist as well as a lawyer, he is well known for using empirical analysis to determine the impact of law and public policy in a wide range of areas, including civil rights and antidiscrimination law, employment discrimination, crime and criminal justice, and school funding.

Read Professor John Donohue’s paper “More Guns, More Unintended Consequences: The Effects of Right-to-Carry on Criminal Behavior and Policing in US Cities” on NBER