CONCLUSION
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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.
CHOOSING THE EXPLANATORY VARIABLES
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