Major Gun Rights Case Before Supreme Court This Week

Duke experts in law, psychiatry discuss ramifications of case

DURHAM, N.C. -- The U.S. Supreme Court will hear a Second Amendment case Nov. 3 bringing massive implications for the decision-making process used to decide whether a person can carry a gun in public.

It will be the first major Second Amendment case at the nation’s highest court since the landmark District of Columbia vs. Heller case in 2008, when the court struck down a Washington, D.C., ban on handgun ownership in the home.

Three Duke experts spoke Monday about this week’s case, New York State Rifle & Pistol Association v. Bruen, its implications for the ability of states to regulate guns, and the possibly shrinking role evidence-based research might play in gun-permitting decisions.

The three scholars spoke to journalists in a virtual media briefing. Watch the briefing on YouTube.

Here are excerpts:

On the importance of the upcoming Supreme Court case

JOSEPH BLOCHER, law professor, co-director, Center for Firearms Law

“The proper balance of gun rights and regulation is a genuinely complicated question calling for nuanced solutions. It’s not just about being for or against gun rights or regulation, but about thinking hard about a whole suite of possible targeted, effective and constitutional solutions. Which, in the end, I think is going to come down to a combination of things like background checks, extreme-risk protection order laws, restrictions on particular classes of people and particular classes of weapons and so on.”

“What I worry about the most is that the court will unnecessarily restrict the range, the reach of democratic politics in trying to find those solutions.”

DARRELL MILLER, law professor, co-director, Center for Firearms Law

“It really is the case that gun rights advocates have been waiting on for over a decade. In 2008, for the first time the Supreme Court of the United States held that you could have a gun in your home for personal purposes like self-defense, but unrelated to one’s participation in an organized militia, but the Supreme Court really hasn’t heard directly a Second Amendment case since that time.”

“At issue is one of the many open questions that were left in the District of Columbia vs. Heller cases, and an important one, which is: ‘Under what circumstances can a person carry a firearm off his or her property and under what conditions?’ That case was not directly presented in the Heller opinion.”

“It will impact those states that have ‘may issue’ permitting schemes. It’s not that it’s a big number of states, but it’s a number of states that have large populations, and large concentrated populations in urban areas. It might affect up to 80 million people.”

On impact of a potential Supreme Court change to gun-permitting to adopt ‘text, history and tradition’ test

JEFFREY SWANSON, psychiatry and behavioral sciences professor

“It’s a really interesting what-if. If the decision were to change the entire methodology for deciding Second Amendment jurisprudence … it would really narrow the door through which you could bring in research evidence as the deciding factor.”

“There’s a pretty good consensus – 10 or so peer-reviewed journal articles – on the effects of right-to-carry laws. … When a right-to-carry law is passed, it results in a 13 to 15 percent increase in violent crime.”

“If the state says that you have the right to walk around in the community with a handgun in your pocket, more people are going to do that. If the state can’t exercise discretion in saying who is going to get to carry a gun, you’re going to have a broader range of people, including more who engage in risky behavior, who are carrying a gun.”

On how this new court may lean on gun rights

JOSEPH BLOCHER

“The fact that the court has changed as much as it has certainly portends changes to the way the Second Amendment will be interpreted and applied going forward. Heller, from 2008, was a deeply divided, 5-4 decision. For a long time after that, the Supreme Court basically stayed away. As soon as the Trump appointees (to the courts) started to become confirmed, the courts developed an appetite for taking Second Amendment cases again.”

On gun violence writ large in the U.S.

JEFFREY SWANSON

“In 2019 … we averaged 109 gun deaths per day on average. The majority of those gun fatalities, some people are surprised to learn, are suicides. Fifty nine percent were suicides, and 37 percent were homicides.”

“On the day of a horrific mass casualty shooting that gets so much attention … 100 other people die all over this country on that same day in gun suicides and gang shooting and domestic incidents and arguments gone bad.”

“That’s very different, by the way, than the situation in most of our peer high-income countries in the western Europe and the UK and Canada and Australia and Japan. There they’ve kind of decided the idea that people should be able to walk around with handguns is too dangerous so they broadly limit that.”

On the gun rights debate outside the courtroom

DARRELL MILLER

“A lot of the action on guns rights is not actually happening at the Supreme Court. It’s happening in legislatures, it’s happening in state houses across the nation. It would be an incredible boon for those that believe in a fairly unfettered right to carry firearms for the court to end up ruling that the right to keep and bear arms includes a fairly relaxed idea about being able to carry it [outside] the home. It will put enormous pressure on other kinds of regulatory devices like training requirements. Some states don’t require any training at all to carry a pistol outside the home.”

“If you have more people carrying more guns in more places, then day care centers and hospitals and other folks are going to want to know, ‘Am I in a sensitive place?’ So even a fairly narrow ruling could have an incredible amount of political significance.”

Faculty Participants:

Joseph Blocher
Joseph Blocher is a law professor at Duke University who studies the balance between the rights of individual gun owners and the rights of citizens to be free of gun violence. He co-directs the Center for Firearms Law at Duke Law School.

Darrell Miller
Darrell Miller is a Duke law professor whose study of constitutional law includes interpretations of the Second Amendment. He also co-directs the Center for Firearms Law at Duke Law. His scholarship on the Second Amendment has been cited by the U.S. Supreme Court.

Jeffrey Swanson
Jeffrey Swanson is a professor in psychiatry and behavioral sciences at the Duke School of Medicine. He is a social scientist researcher who works to reduce firearm-related violence and suicide. He is also a faculty affiliate of the Center for Firearms Law.

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