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Is the Handgun America’s ‘Most Popular’ Self-Defense Weapon? It’s a Crucial Question at the Supreme Court

A landmark 2008 gun-rights decision relied on an unsupported assumption about handgun popularity.

November 5, 2019

In Decem­ber, the Supreme Court is slated to hear oral argu­ments in a major Second Amend­ment case. The Court is eval­u­at­ing the consti­tu­tion­al­ity of a New York City restric­tion on trans­port­ing licensed hand­guns to homes or shoot­ing ranges outside city limits. (The law was recently repealed but the case is still moving forward.) The fact that the case involves hand­guns in partic­u­lar is signi­fic­ant because in 2008, the Supreme Court placed hand­guns atop the Second Amend­ment hier­archy of “arms” because of their supposed popular­ity for self-defense. A closer look suggests that was a thin reed on which to rest a consti­tu­tional hold­ing.

In the case, District of Columbia v. Heller, the Supreme Court struck down two Wash­ing­ton, DC, laws because they denied the right to keep hand­guns in the home and render them oper­able when needed for self-defense. An import­ant aspect of the Court’s reas­on­ing was that hand­guns receive maximal protec­tion because they are “the most popu­lar weapon chosen by Amer­ic­ans for self-defense in the home.” With few excep­tions, that sweep­ing asser­tion has evaded close scru­tiny.

Heller’s emphasis on the hand­gun’s appeal was unam­bigu­ous and consequen­tial. The hand­gun, accord­ing to the major­ity, is the weapon “over­whelm­ingly chosen by Amer­ican soci­ety for [lawful self-defense]” and the “quint­es­sen­tial self-defense weapon” accord­ing to “the Amer­ican people.” That supposed popular­ity, accord­ing to the major­ity, insu­lated hand­guns from prohib­i­tion, no matter the strength of the govern­ment’s regu­lat­ory rationale or even whether the law allowed the posses­sion of altern­at­ive fire­arms, not to mention non-fire­arm weapons.

And yet, nowhere did the Heller major­ity cite stat­ist­ics to support its conclu­sion about relat­ive weapon owner­ship. Instead, the justices cited the lower court opin­ion, which in turn cited a contro­ver­sial 1995 article by crim­in­o­lo­gists Gary Kleck and Marc Gertz about the preval­ence of defens­ive gun uses, not gun owner­ship. In their article, Kleck and Gertz suggest that Amer­ic­ans used guns to defend them­selves as many as 2.5 million times annu­ally — a number that far exceeds other estim­ates, which place the figure closer to 100,000. Indeed, data collec­ted by the federal govern­ment suggests that only a tiny frac­tion of people enga­ging in self-defense use hand­guns, and an even smal­ler frac­tion of hand­guns are ever used in self-defense.

The Court’s endorse­ment of a contro­ver­sial empir­ical study was either imprudent or inad­vert­ent. More signi­fic­antly, however, it was a red herring. The total number of defens­ive gun uses tells us noth­ing about how many Amer­ic­ans own hand­guns relat­ive to other defens­ive weapons.

In fact, avail­able data on hand­gun owner­ship suggests a very differ­ent conclu­sion than the one assumed by the Heller opin­ion. Hand­guns are no doubt “popu­lar” in some ways — many millions are owned by Amer­ic­ans — but most eligible Amer­ic­ans do not possess hand­guns for self-defense or any other purpose. Indeed, the percent­age of house­holds that own any fire­arm is drop­ping, from 47 percent in 1980 to 31 percent in 2014. On an indi­vidual level, only 22 percent of Amer­ican adults own a fire­arm. Among the minor­ity of Amer­ic­ans who own a fire­arm, hand­guns have become more popu­lar over time, now compris­ing 60 percent of new purchases. But that rise in popular­ity among gun owners is insuf­fi­cient to declare hand­guns “the most popu­lar weapon chosen by Amer­ic­ans for self-defense in the home.” Instead, the data suggests that “the most popu­lar” self-defense weapon might not be a gun at all: the roughly 80 percent of Amer­ican adults without a fire­arm are opting for a differ­ent self-defense plan — often another weapon (knives, for example, or ordin­ary house­hold items like base­ball bats that can be used as a weapon) in conjunc­tion with other precau­tions, like alarm systems.

As a matter of consti­tu­tional meth­od­o­logy, the major­ity’s decision to peg consti­tu­tional protec­tion to a contem­por­ary weapon’s popular­ity is misguided. For example, by quickly regu­lat­ing new weapons tech­no­logy, the govern­ment can suppress markets and render a weapon “unpop­u­lar.”

The weapons industry, mean­while, can influ­ence weapon popular­ity in the oppos­ite direc­tion. Less than 20 years ago, one-fourth of gun owners said they possessed their guns for self-protec­tion. Today, half cite protec­tion. It may be no coin­cid­ence, then, that the shift­ing rationale tracks the gun lobby’s market­ing strategy — away from sport and towards self-defense.

And what happens as a weapon’s popular­ity rises and falls? Does its consti­tu­tional status rise and fall as well? Weapon popular­ity is a highly malle­able, unstable proxy for consti­tu­tional doctrine.

If popular­ity is nonethe­less going to be the proxy, it should at least be groun­ded in solid empir­ics. The justices may be temp­ted to repeat Heller’s confid­ent asser­tions about the hand­gun’s status as the “quint­es­sen­tial self-defense weapon” in the New York City case currently pending before the Supreme Court. Hope­fully, they’ll instead rest their decision on more solid ground.

Eric Ruben is an assist­ant professor of law at SMU Dedman School of Law and a Bren­nan Center fellow.