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As demonstrated by the recent accumulation of academic support, as well as

the Fifth Circuit’s decision in Emerson, an individual right interpretation of the

Second Amendment is a distinct possibility for the future. Such an interpretation

would have many implications for the judicial review of challenged gun control

regulations. This appendix has identified some of the issues raised by an individual

right interpretation. First, courts and commentators will be required to attempt a

more concrete delineation of the scope of an individual right. A comprehensive

definition of the amendment’s scope can be used to identify those regulations that

impact constitutionally protected activity and those that do not. Second, once an

area of protected activity is identified, criteria must be developed for determining

when a regulation places so significant a burden on the exercise of the right as to

amount to an “infringement.” Finally, courts will be required to engage in factintensive

balancing tests, weighing the cost of an infringement against the benefits

to the compelling state interest in reducing gun-related crime and violence, to

determine what infringements are “reasonable” and thus permissible.

With regard to the balancing of interests in making “reasonableness”

determinations, courts as well as legislatures will be greatly aided by scientifically

verified empirical studies that test the efficacy of various gun control

measures in achieving their purported objectives. In other balancing

contexts—including First Amendment and dormant Commerce Clause jurisprudence—

the Supreme Court has emphasized the need for more than

just appeals to the public interest. The availability of empirical data will

make this balancing more accurate and reliable.

113See, e.g., Kassell, 450 U.S. at 672-75 (undertaking an extensive review of lower court

findings regarding the economic impact and safety effects of state regulations restricting the

length of vehicles operating on the state’s roads); Southern Pacific, 325 U.S. at 770-79 (undertaking

an extensive review of the lower court findings regarding the impact of train length

regulations on safety and commerce).

Different investigators have obtained conflicting estimates of the effects

of right-to-carry laws on crime. Moreover, the estimates are sensitive to

relatively minor changes in data and the specifications of models. This

paper presents a statistical framework that explains the conflicts and why

there is little likelihood that persuasive conclusions about the effects of

right-to-carry laws can be drawn from analyses of observational

(nonexperimental) data. The framework has two main parts. The first relates

to the difficulty of choosing the right explanatory variables for a

model. The second relates to the difficulty of estimating the relation among

crime rates, the explanatory variables, and the adoption of right-to-carry

laws even if the correct explanatory variables are known.


The effect on crime of having a right-to-carry law in effect at a given

time and place may be defined as the difference between the crime rate (or

its logarithm) with the law in effect and the crime rate (or its logarithm)

without the law. The fundamental problem in measuring the effect of a

right-to-carry law (as well as in evaluating other public policy measures) is

that at any given time and place, a right-to-carry law is either in effect or

not in effect. Therefore, one can measure the crime rate with the law in

effect or without it, depending on the state of affairs at the time and place

of interest, but not both with and without the law. Consequently, one of the

two measurements needed to implement the definition of the law’s effect is