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

77 Pages Posted: 24 Apr 2018 Last revised: 11 Jun 2018

See all articles by Eric Ruben

Eric Ruben

New York University School of Law; Brennan Center for Justice

Joseph Blocher

Duke University School of Law

Date Written: April 18, 2018

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.

Keywords: Second Amendment, keep and bear arms, Heller, gun control, constitutional interpretation, content analysis, empirical methods, legal method

Suggested Citation

Ruben, Eric and Blocher, Joseph, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms after Heller (April 18, 2018). Duke Law Journal, Vol. 67, No. 7, 2018; Duke Law School Public Law & Legal Theory Series 2018-35. Available at SSRN: https://ssrn.com/abstract=3165011

Eric Ruben (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Brennan Center for Justice ( email )

120 Broadway
New York, NY 10271
United States

Joseph Blocher

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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