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Expert Brief

From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller

This article is the first comprehensive empirical analysis of post- Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion—state and federal, trial and appellate—from Heller up until February 1, 2016.

Published: May 2, 2018

Read the full analysis from the Duke Law Journal here

Abstract

As a matter of consti­tu­tional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller , schol­ars, advoc­ates, and judges disagree about (and some­times simply do not know) how to char­ac­ter­ize it.

This Article is the first compre­hens­ive empir­ical analysis of post- Heller Second Amend­ment doctrine. Begin­ning with a set of more than one thou­sand Second Amend­ment chal­lenges, we have coded every avail­able Second Amend­ment opin­ion—state and federal, trial and appel­late—­from Heller up until Febru­ary 1, 2016. The data­set is deep as well as broad, includ­ing dozens of vari­ables regard­ing the content of each chal­lenge, not just whether it prevailed. Our find­ings help provide an object­ive basis for char­ac­ter­iz­ing Second Amend­ment doctrine and fram­ing new schol­arly inquir­ies. This is a partic­u­larly import­ant task now, as the Amend­ment becomes a part of “normal” consti­tu­tional law and increas­ingly suscept­ible to the stand­ard tools of legal analysis.