Good Guys and Good Reasons: Addressing the Constitutionality of Good Reason Right-To-Carry Regulations and the Failures of the “Good Guy with a Gun” Theory
Introduction
When shots rang out in the small Texas town of Sutherland Springs on November 5, 2017, Stephen Willeford was quick to respond.1 Upon hearing a rapid succession of gunshots emanating from the First Baptist Church across the street, a barefoot Willeford quickly loaded his magazine and ran outside with his rifle.2 He exchanged fire with the shooter, Devin Patrick Kelley, striking him at least once and using his truck as cover as Kelley hurled bullets from an AR-15 style rifle in his direction.3 Moments later, Kelley—outfitted with tactical gear and a ballistic vest—fled in his vehicle.4 Willeford flagged down a passing motorist, Johnnie Langendorff, and a high-speed chase ensued.5 The chase ended in the next county, when Kelley violently crashed his vehicle.6 Kelley was found by the police, deceased in his vehicle, with a self-inflicted gunshot wound to the head.7 Notwithstanding the significant actions of Willeford and Langendorff, Devin Kelley’s rampage left twenty-six churchgoers dead and injured twenty others.8
Willeford and Langendorff have appropriately been hailed as heroes.9 Their actions were valiant and selfless, and their intervention is believed by many to have saved lives in what was otherwise another horrific mass shooting.10 Willeford’s actions, specifically, also speak to the National Rifle Association’s (“NRA”) long-touted axiom, that “the only way to stop a bad guy with a gun is with a good guy with a gun.”11 But did Willeford actually stop the shooting?12 In the days following the Sutherland Springs church shooting, the fifth deadliest mass shooting in modern American history,13 that very debate emerged in mainstream American media.14
There is a stark divergence in both the research surrounding the theory that the more guns a populations has, the lower the crime rate,15 as well as a defined split amongst the Federal Circuit Courts as to the precise scope of the Second Amendment right-to-carry outside of the home.16 Whether the Second Amendment protects the right-to-carry a concealed weapon in public as a core component of the right is an unsettled legal issue at the Federal level, involving complex principles of constitutional analysis.17 The research is equally murky.18
This Note has four major sections. The background section outlines the “good guy with a gun” argument (hereinafter “good guy thesis”), and analyzes several empirical studies which support or debunk the concept. The background provides a constitutional backdrop, outlining the sharp split in the Federal Circuit Courts regarding the scope of the Second Amendment. The argument section is comprised of three main arguments. Section one argues that intermediate scrutiny is the appropriate level of constitutional review for the carrying of firearms outside of the home, and that good reason firearms laws are both constitutional and logical.19 Section two argues that Professor John Donohue’s study, Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Date and a State-Level Synthetic Controls Analysis (hereinafter “Donohue Study”), provides a strong factual, data-driven basis for the premise that holstering more law-abiding “good guys” with firearms does not lower violent crime rates. Section three asserts several reasons why good reason firearm laws correctly balance individual Second Amendment rights with the state’s legitimate and compelling interest in public safety.
I. Background
A. The “Good Guy with a Gun” Argument
The United States, with less than 5% of the world’s total population, owns an estimated 35% to 50% of the world’s civilian-owned guns.20 Data shows that, as of 2007, there were approximately 294 million firearms owned by persons in the United States, 106 million of those being handguns,21 a figure which is likely significantly higher today based on suggested trends.22 The United States is—and will likely continue to be—the “runaway world leader for gun ownership.”23 This data suggests an inevitable truth—the gun problem is not going away.24
In 2017, an estimated 15,637 people died from firearm-related causes, a figure which includes police action, firearm accidents, and deaths resulting from various criminal actions.25 Although definitions of what constitutes a “mass shooting” vary both in substance and along political party lines,26 2017 saw two particularly deadly mass casualty events perpetrated through the use of firearms.27 The First Baptist Church shooting in Sutherland Springs, Texas, left twenty-six people dead.28 Just over a month later, Stephan Paddock opened fire with multiple rifles from the thirty-second floor of the Mandalay Bay Resort in Las Vegas, killing fifty-eight attendees of the Harvest Music Festival and leaving scores of others injured.29 However defined, these instances are both tragic and senseless, leaving open significant policy questions regarding the regulation of firearms in the United States under the Second Amendment.30
A week after twenty-seven children and educators were shot and killed at Sandy Hook Elementary School in Newtown, Connecticut, in 2012, current NRA Chief Executive Officer Wayne LaPierre stated “[t]he only thing that stops a bad guy with a gun is a good guy with a gun.”31 The general premise of the argument, however, existed long before the NRA’s press conference following the Sandy Hook shooting and is widely recognized.32 A 2014 study suggests that 63% of Americans believe having a gun in the house makes it a safer place to be, a percentage that has nearly doubled since the year 2000.33
The good guy thesis is a major platform utilized by the NRA and other gun rights activist groups to support their lobbying and legislative efforts.34 It took only a matter of days for this narrative to emerge in the days following the Las Vegas and Sutherland Springs shootings in the mainstream American media.35 Despite the persistence of the good guy thesis and its increasing popularity in the United States, its truth has been fiercely debated.36
B. More Guns, Less Crime
John Lott, in many respects, can be considered the originator and lead spokesperson for the good guy thesis.37 His studies are often cited to support the premise that more guns lead to less crime.38 John Lott and David Mustard’s 1996 paper, published in the Journal of Legal Studies, is credited as having encouraged state legislatures to adopt right-to-carry laws, and has been characterized as arguably “one of the most consequential criminological articles published in the last twenty-five years.”39
Utilizing cross-sectional time-series data for counties in the United States from 1977 to 1992, the study found that allowing citizens to carry concealed weapons deterred violent crimes and had no adverse effect on accidental deaths.40 The Lott and Mustard paper boldly asserted that in 1992, 1,570 murders, 4,177 rapes, and over 60,000 aggravated assaults could have been avoided yearly, if states which had not adopted right-to-carry laws had adopted such laws.41 The study further alleged that when states enacted statutes allowing individuals to carry concealed weapons, murders fell by 8.5% and rapes and assaults fell by 5% and 7% respectively.42 These findings, Lott and Mustard argued, stood for the fact that allowing individuals to carry concealed weapons saved lives.43
C. More Guns, More Crime
Professor Donohue’s 2017 study directly refuted the good guy thesis.44 The study utilized the widely accepted synthetic-state research method.45 The synthetic control methodology facilitates policy comparisons from state to state by combining crime patterns and statistics from several states, which have not enacted right-to-carry laws to create an artificial or synthetic state properly weighted for side-by-side comparison to other states.46 Data from the artificial state can then be readily compared to actual states which have enacted right-to-carry laws, and vice-versa.47 The synthetic state method allows researchers to conduct an accurate, properly weighted side-by-side evaluation of an actual state with an artificial state to analyze the causal effect of right-to-carry laws on violent crime.48 Professor Donohue applied this approach to four previously published data models.49
When applying the synthetic state model to these previously published data models—two of which had previously been offered as evidence of right-to-carry laws reducing crime—the study found that right-to-carry laws “are associated with higher aggregate violent crime rates,” and that the adverse effects associated with the passage of such laws actually increased over time.50 Specifically, the Donohue Study found that for states with rightto- carry concealed weapons laws, violent crime is estimated to be 13–15% higher than in states without such statutes.51The study, which analyzed data from 1977 to 2014, further found that the average right-to-carry state would have to double its prison population to counteract the increased crime rate resulting from concealed carry laws.52
The study’s findings directly rebut the “More Guns, Less Crime” hypothesis pressed by John Lott to come to the conclusion that right-to-carry handgun laws do not lead to a decrease in violent crime but instead lead to a marked increase in violent crime, which is sustained over time.53Professor Donohue’s findings also directly contradict the NRA’s insistence that allowing Americans to carry guns makes communities safer.54Unsurprisingly, critics—including John Lott—were quick to attack Professor Donohue’s study and his methodology.55Nevertheless, the Donohue Study provides the strongest evidence to date repudiating the NRA’s good guy thesis.
D. Armed Civilian Intervention: The 2014 FBI Study
In 2014, the FBI, in conjunction with Texas State University, released a comprehensive study of active shooter incidents in the United States between 2000 and 2013.56The study focused on active shooter incidents, defined by several U.S. Government Agencies as “an individual actively engaged in killing or attempting to kill people in a confined and populated area.”57Several findings of the FBI Study are relevant here.58
Nearly 70% of the active shooter incidents studied by the FBI ended in five minutes or less, with many ending in two minutes or less, often before police even arrived to the scene.59Furthermore, of the 160 active shooter incidents studied, twenty-one incidents ended after unarmed citizens safely and successfully restrained the shooter.60In five (3.1%) of the 160 incidents studied, armed individuals who were not law enforcement personnel exchanged gunfire with the shooter(s), assisting to end the active shooting incident.61In four out of those five incidents, the intervening civilians were trained and armed security guards.62The majority of the active shooter events studied ended on the shooter’s initiative, and in 28.1% of the incidents studied, law enforcement responded and exchanged gunfire with the shooter, often prompting an end to the shooting or the shooter’s flight or suicide.63
E. The Circuit Split
The Second Amendment expressly states that “the right of the people to keep and bear arms, shall not be infringed.”64Despite the relatively simply worded construction of the Second Amendment, it has been the subject of wildly differing interpretations by litigants, courts, and commentators.65The Supreme Court of the United States held that self-defense is a basic right, applicable to the states through the Fourteenth Amendment, and that this basic right is the central component of the Second Amendment.66In District of Columbia v. Heller, the Court struck down a District of Columbia statute banning handgun possession in the home as an unconstitutional violation of the Second Amendment.67The Court held that the District’s requirement, that lawful firearms in the home be kept inoperable at all times, made it impossible for citizens to exercise the right to self-defense inside the home.68
It is evident that a statute banning handgun possession in the home is presumptively unconstitutional.69The Heller majority noted that the District’s statute would fail constitutional muster under any of the traditionally utilized standards of scrutiny used by the Supreme Court to address enumerated constitutional rights, thereby deciding the case in the absence of a clear constitutional standard.70Without a clear constitutional standard to apply, and with no guidance from the Supreme Court, lower courts have struggled to define the contours and outer limits of the Second Amendment.71The Supreme Court has further noted that the Second Amendment right is not unlimited, and thus the question of the Second Amendment’s scope outside of the home remains an open and sharply divided question amongst the Federal Circuit Courts of Appeal.72
1. Circuit Courts Upholding Good Reason Handgun Laws
In order to obtain a Class A firearm license in Massachusetts, the applicant must meet several statutory requirements, and the licensing authority must further find that the person to be issued such license has “good reason to fear injury to his person or property[.]”73In Hightower v. City of Boston, the plaintiff argued that the Second Amendment secures the right to publicly carry a handgun outside her home for self-defense, and that the statutory scheme requiring a suitability determination by licensing officials violated the Second Amendment.74The First Circuit rejected Hightower’s asapplied challenge, noting that the need for defense of self, family, and property is most acute in the home, and distinguishing the interest in carrying concealed weapons outside the home from the core interest emphasized in Heller.75In upholding the Massachusetts good reason firearms licensing scheme, the First Circuit took care not to apply a particular standard of scrutiny, and did not address how Heller applies to possession of firearms outside of the home.76
Similarly, the Second Circuit upheld New York’s concealed carry statute which requires applicants to demonstrate good moral character and proper cause for the issuance of concealed carry permits.77In Kachalsky v. County of Westchester, the plaintiffs sought to carry handguns outside of the home for self-defense and were denied permits for failing to establish proper cause.78Finding that the Heller decision was not dispositive of the plaintiff’s argument that there is a “fundamental right” to carry firearms in public, the Court reaffirmed that Second Amendment rights are “far from absolute,” and that many handgun regulations are presumptively lawful.79The Court utilized intermediate scrutiny, holding that the proper cause requirement “falls outside the core Second Amendment protections identified in Heller,”80and that public safety interests outweighed the interests in self-defense, based on the dangers firearms pose to society.81
In Woollard v. Gallagher, the Fourth Circuit also applied intermediate scrutiny to a Maryland handgun regulation which conditioned eligibility for a permit to carry a handgun in public on having a “good and substantial reason” to do so.82The Fourth Circuit held that the statute passed constitutional muster under intermediate scrutiny.83In upholding the regulation, the Court readily concluded that crime control and public safety objectives were substantial government interests, and that the requirement advances the objectives of promoting public safety by reducing the number of handguns carried in public, thereby meeting the “reasonable fit” requirement.84
2. Circuit Courts Striking Down Good Reason Handgun Laws
Contrarily, in Moore v. Madigan, the Seventh Circuit addressed two identical appeals targeting an Illinois law which forbade a person from carrying a ready-to-use gun in public.85The Seventh Circuit noted the possible deterrent effect of more law-abiding citizens being armed, and that most murders occur outside the home.86The statute was struck down as unconstitutional, as it essentially banned firearms, with the Court concluding that the state needed to show “more than merely a rational basis” for believing that its sweeping ban was justified by an increase in public safety.87
The District of Columbia Circuit is the latest circuit to join the split regarding the applicability of the Second Amendment outside of one’s hearth and home.88The D.C. Code provision at issue in Wrenn required concealed carry license applicants to show a “good reason to fear injury to their person or property.”89The District argued that self-defense in public falls outside the Second Amendment’s core;90however, the D.C. Circuit Court concluded that the “Amendment’s core” generally covers carrying in public for self-defense.91The D.C. Circuit analyzed the decisions of several other circuit courts facing similar questions and concluded that the rights to keep and bear arms are on equal footing.92Following in the footsteps of Heller, the D.C. Circuit Court of Appeals struck down the statute without applying a particularized standard of constitutional scrutiny, holding that “no tiers-of-scrutiny analysis could deliver the good-reason law a clean bill of constitutional health.”93
II. Why the Gun Problem Will Be Won or Lost at the Local and State Level
The regulation of firearms continues to be one of the most controversial and volatile policy issues in the United States.94Arguably, few state and local-level regulations have a greater and more substantial impact on public safety in the United States, as a whole, than regulations of handgun possession, carriage, and concealment.95State and local legislatures, as well as the reviewing judiciary, give substantial weight to empirical data and statistics when it comes to their analysis of handgun permitting laws.96It is clear that more research needs to be done to assess the causal relationship between handgun ownership, concealed carry, and violent crimes in the United States.97However, it is equally clear that the United States has a unique, persistent, and tragic problem with firearm violence compared to other countries in the world.98
The unfortunate truth is that there may be no easy solution to the United States’ distinctive, pervasive firearms violence epidemic.99However, as the Federal Circuit split demonstrates, the balancing of individual rights and workable gun regulations often occurs at the state and local level.100
In the absence of clear direction from the Supreme Court regarding whether the Second Amendment encompasses the concealed carriage of firearms outside of the four walls of the home, lower courts have struggled to sight in on the precise scope of the Second Amendment right.101 This is made painfully evident by the great variance in the analytical methods used by the varying Federal Circuit Courts, with some Courts taking a textual or historical approach, and other courts applying one of the traditionally accepted levels of constitutional scrutiny to uphold or strike down local right-to-carry laws.102
Much of the research on the subject of firearms regulation and violence is undeniably bi-partisan, but whichever side of the research one chooses to support, state and local legislation regarding the right-to-carry outside of the home has critical implications on public safety in the United States as a whole.103 Arming the wrong person with a license to carry a concealed weapon can have deadly ramifications, and it is far from clear that a sufficient number of armed “good guys” can counteract that threat, despite the NRA’s continued reliance on the good guy thesis.104 Because placing a concealable weapon in the wrong hands can have a substantial impact on public safety at the national level, it is vital that reviewing courts are on target in their analyses of the Second Amendment’s scope outside of the home.105
Analisys
III. Intermediate Scrutiny is the Proper Standard of Review for Second Amendment Cases
In the wake of the Heller and McDonald decisions, lower Federal and State courts have struggled to establish a uniform standard of constitutional review for Second Amendment cases.106 The Second Amendment’s scope beyond the home has been similarly up for debate and the subject of varying interpretations by lower courts, including the federal circuit courts.107 Despite Justice Scalia’s cautionary warning that the Second Amendment right is not unlimited,108 several federal circuit courts have held that the right to self-defense extends beyond the home.109
Based on the pervasive issue of firearm violence in the United States, the lack of a clear standard of constitutional review as applied to Second Amendment issues has a significant impact on public safety.110 While Heller and McDonald established an individual right to keep and bear arms in the home, these cases failed to set a standard for lower courts to apply.111 Justice Scalia, writing for the Supreme Court in Heller, noted the lack of a constitutional standard, stating “[w]e know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”112 Nonetheless, the Supreme Court failed to establish a clear standard of review for the Second Amendment.113
A close reading of Heller, in addition to a comparative analysis of how the Supreme Court has approached other enumerated constitutional rights, should lead lower courts to apply intermediate scrutiny as the appropriate standard of review for Second Amendment cases outside of the home.114
A. Intermediate Scrutiny Analysis for Second Amendment Cases is Consistent with Other Enumerated Rights, Such as the First Amendment
Heller made evident that the core protection of the Second Amendment right is the right to bear arms in one’s home.115 Where a regulation does not burden a core protection of an enumerated constitutional right, the Supreme Court applies intermediate scrutiny, and not strict scrutiny.116 The First Amendment provides an adequate foil for this constitutional comparison.117
The Second Circuit reasoned that applying less than strict scrutiny when a regulation does not burden this core right made “eminent sense” and was consistent with constitutional jurisprudence, comparing the Second Amendment to the First Amendment.118 The Second Circuit likened firearms regulations to regulations on free speech, noting that the Supreme Court has subjected content-based restrictions on noncommercial speech to strict scrutiny, while applying intermediate scrutiny to less restrictive regulations on commercial speech.119 The regulation at issue in Kachalsky, requiring that the applicant demonstrate proper cause for needing a license to carry a handgun concealed outside of the home, therefore, did not impede the core Second Amendment right to self-defense in one’s home.120
This comparison of the First and Second Amendments is both persuasive and logical.121 While the Supreme Court has not provided adequate guidance to lower courts as to what standard of constitutional review should apply to right-to-carry laws outside of the home, it seems wholly logical that the Supreme Court would apply similar standards of review to regulations impacting enumerated rights.122
Assuming, arguendo, that an individual’s right-to-carry a concealed weapon in public is contemplated by the Second Amendment, intermediate scrutiny still provides the appropriate level of review based on the state’s legitimate and compelling interest in promoting public safety.123 The Fourth Circuit applied this very assumption in United States v. Masciandaro, concluding that any law that would burden the fundamental and core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny, however noting that outside of the home, firearm rights have always been more limited based on public safety interests.124
In addition to being logical in light of the Supreme Court’s application of constitutional standards to other enumerated rights, this comparison is also consistent with the Supreme Court’s analysis in Heller.125 In Heller, the Supreme Court dissected each clause of the Second Amendment and compared the express language to interpretations given to other clauses in the Bill of Rights, namely the First and Fourth Amendments.126 Through this detailed linguistic analysis, the Supreme Court was able to discern the meaning of the Second Amendment and arrive at its holding that the Second Amendment protects the right of individuals to carry guns in their homes.127 This Amendment-to-Amendment analysis supports the proposition that courts should apply similar levels of scrutiny to regulations that similarly burden enumerated rights.128
The Seventh Circuit accurately stated that “[t]he Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right.”129 In accordance with traditional constitutional analysis, a severe burden on a core constitutional right should require strong justification.130 But, where good reason right-to-carry laws do not infringe on the core Second Amendment right to defend one’s hearth and home, established in Heller, the appropriate standard of review is intermediate scrutiny.131
B. Treating the Home as a Special Place is Not Unique to Firearms Regulations
Crucial to several of the Circuit Court decisions defining the scope of the Second Amendment is the distinction between carrying guns inside the home versus concealed carry in the public sphere, outside of the home.132 Where the statute at issue in Heller effectively banned handgun possession in the home,133 good reason handgun laws and regulations apply outside of the home, where the public safety stakes are higher and the government is afforded greater latitude in their ability to circumscribe a given activity.134
The premise that the Government may impose greater regulations outside of the home is not unique to handgun laws.135 The sanctity of the home “permeates individual rights jurisprudence.”136 The Supreme Court has repeatedly repelled states’ efforts to regulate conduct in the home or unnecessarily intrude into the privacy of the home, while recognizing that the same conduct, done in public, may very well be unprotected.137 Thus, the state’s ability to regulate firearm possession and carriage inside of the home is limited not only by Heller but also by a plethora of cases, not limited to the subject matter of firearms, which place clear limits on the government’s ability to regulate any conduct within one’s home.138
Outside of the home, firearm rights have always been more limited based on legitimate public safety concerns.139 There is a robust history of states limiting the individual ability to carry weapons in public, dating back to the founding era.140 More contemporary statutes limiting the individual right to carry concealed weapons (including New York’s Sullivan Law, enacted in 1911 and still in place today) were specifically enacted in response to increases in violent crimes associated with concealable firearms.141 The City of Boston justified a similar good reason handgun regulation requiring a suitability determination based on the public health and safety concerns associated with the carriage of concealed, large capacity weapons.142
Limitations on the concealed carriage of firearms do not implicate the core Second Amendment right of self-defense in the home.143 Further, “[t]he historical prevalence of the regulation of firearms in public demonstrates that while the Second Amendment’s core concerns are strongest inside hearth and home, states have long recognized a countervailing and competing set of concerns with regard to handgun ownership and use in public.”144 Based on the history and tradition of firearms regulation in the public sphere, and the fact that good reason handgun laws regulate the concealed carriage of guns in public rather than in the home, intermediate scrutiny should apply to good reason concealed carry laws.145
C. Good Reason Handgun Laws Satisfy Intermediate Scrutiny and Strike the Appropriate Balance Between Individual Rights and Public Safety Interests
A statute or regulation generally passes constitutional muster under intermediate scrutiny if it is substantially related to the achievement of an important government interest.146 Other formulations of the standard require the state to demonstrate that the challenged statute is reasonably adapted to a substantial governmental interest.147 Strict scrutiny, on the other hand, would require a gun regulation to be narrowly tailored to achieve a compelling government interest.148
The first step in the intermediate scrutiny analysis is determining whether the governmental interest advanced is substantial.149 The federal circuit courts upholding good reason firearm regulations have readily concluded that the preservation of public safety and the prevention of crime are substantial, compelling government interests, fully within the police powers of the state.150
In Woollard v. Gallagher, the Fourth Circuit cited several factors supporting Maryland’s good reason law, including the increase in the number of violent crimes in Maryland, the fact that a high percentage of violent crimes committed in the state involved the use of handguns, and that additional regulations on the “wearing, carrying, and transporting of handguns were necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.”151 The court readily concluded that the measures aimed at protecting public safety and preventing crime are substantial governmental interests.152 The Second Circuit similarly held that New York had a compelling governmental interest in public safety and crime prevention, citing similar legislative findings.153
Once a compelling interest is established, the government must demonstrate that the challenged statute or regulation is substantially related to that interest.154 New York’s handgun statute was enacted based on legislative findings that regulating handgun possession would have an appreciable impact on public safety and crime prevention.155 Maryland’s good reason statute was similarly enacted based on public safety concerns, such as decreasing the availability of handguns to criminals via theft, and averting the confusion and “potentially tragic consequences” of armed civilian intervention during a confrontation between the police and a criminal suspect, among others.156 A constitutional analysis that considers the government’s interest in public safety as well as a substantial fit between the regulation and the interest advanced is thus wholly appropriate as applied to good reason concealed carry laws.157
The moderate approach used by jurisdictions which have enacted good reason laws are constitutionally sound and easily survive intermediate scrutiny analysis in that they do not constitute an outright ban on the carrying of firearms in public.158 Indeed, these statutes are specifically tailored to comport with the Second Amendment while considering the legitimate public safety concerns advanced by state legislatures.159
Even the good reason statute in Wrenn, which was struck down by the D.C. Circuit, did not constitute a total ban on the concealed carry of firearms—it simply predicated the issuance of concealed carry licenses on the applicant putting forth a good reason for the need to carry a concealed handgun.160 The statute provided several alternative avenues for obtaining a concealed carry license, including an applicant’s need to carry cash or valuables as part of his or her job, or the need to provide protection to a close relative who is unable to meet his or her own special needs for selfdefense. 161
Several other statutes, ordinances, and regulations involving firearms or firearm accessories have been upheld using an intermediate scrutiny standard of constitutional review.162 The Fourth Circuit Court of Appeals upheld a statute prohibiting carrying or possessing loaded weapons in motor vehicles within national park areas using an intermediate scrutiny analysis.163 The First Circuit similarly upheld a statute prohibiting the possession of firearms by persons convicted of a misdemeanor crime of domestic violence, again utilizing a less-than-strict scrutiny standard of review.164
The common thread between all of the above-cited cases is the state’s legitimate interest in preserving public safety and preventing criminal activity and the regulation’s substantial relation to that interest.165 If strict scrutiny were to apply to regulations on concealed carry, a number of logical, common sense handgun regulations would be foreclosed upon in the name of the Second Amendment.166 Intermediate scrutiny applied to good reason concealed carry laws appropriately accounts for the government’s interest in public safety and the individual right to bear arms under the Second and Fourteenth Amendments.167 As carrying in public is not a core Second Amendment right, intermediate scrutiny is the appropriate level of constitutional review for Second Amendment cases.168
IV. Empirical Data Suggests That Increasing Concealed Carry Does Not Lead to a Decrease in Crime
In addition to being constitutionally permissible, empirical data supports the notion that limiting the issuance of concealed carry licenses to those who can show a good reason for needing such a license promotes public safety.169 The Donohue Study provides the strongest statistical evidence to date to refute the "more guns, less crime" theory articulated by John Lott.170 Professor Donohue’s synthetic controls analysis concluded that “[t]here is not even the slightest hint in the data that RTC [right-to-carry] laws reduce violent crime,” a result which uniformly undermined the “more guns, less crime” hypothesis.171
John Lott championed the “more guns, less crime” theory through a panel data statistical analysis.172 Through his research, Lott concluded that allowing citizens to carry concealed handguns reduces violent crimes and that the reductions coincide very closely with the number of concealedhandgun permits issued.173 Lott’s study further found no crime-reduction benefits from other gun-control measures, such as state-mandated waiting periods and background checks.174 Lott’s overall conclusion is that criminals tend to behave rationally and that when crimes become more difficult to successfully complete, less crime is committed.175 The potential that a citizen may be carrying a concealed weapon, Lott argues, has a deterrent effect on criminals seeking to commit a crime, and ultimately leads to their choosing another target or electing to commit a crime with less of a probability of direct contact with victims.176 The deterrent effect of concealed carry laws therefore results in a shift from violent crimes to property crimes.177 Lott argues for the widespread benefit of concealed carry laws, claiming that even people who choose not to carry a concealed weapon benefit from those who do, and stating that “[c]itizens who have no intention of ever carrying concealed handguns in a sense get a ‘free ride’ from the crime-fighting efforts of their fellow citizens.”178 Preventing law-abiding citizens from carrying handguns, Lott argues, merely makes victims more vulnerable to attack.179
Lott’s theory is intriguing, but has been widely criticized.180 First, Lott’s study used county-level information.181 Using county-level statistics and information in itself creates a larger set of data, thereby increasing the chances that the analysis will produce statistically significant results, while not simultaneously increasing the possibility that the analysis will produce practically significant results.182 Furthermore, the study had several “coding errors,” meaning that it used inconsistent definitions of some terms such as the dates when “must-issue” laws went into effect.183 Lott conceded to these errors but argued that even several coding errors did not affect the overall validity of his study.184
More significantly, critics of the Lott study cite the enormous crime reductions that his study associated with right-to-carry laws.185 One of Lott’s statistical models found that adopting a must-issue concealed carry law caused murder rates to go down by eight percent, rape by five percent, and assaults by seven percent.186 These numbers correlate to staggering reductions in violent crimes per year: 1,414 fewer homicides, 4,177 fewer rapes, and over 60,000 fewer assaults.187 Critics of the Lott study characterize these numbers as “implausibly high.”188 The National Academy of Sciences Committee replicated the Lott study using his own data and further found that the results differed substantially, finding that must-issue statutes actually led to an increase in overall crime rates.189
Lott’s findings are further weakened by troubling allegations that he falsified data.190 At the outset of his book, Lott cites national surveys which indicated that ninety-eight percent of the time merely brandishing a weapon broke off an attack on individuals carrying concealed weapons.191 While he cited “national surveys,” Lott eventually referred to a survey he conducted himself, but was unable to provide any evidence whatsoever that a survey had actually been conducted.192 The appearance of Mary Rosh on blogs and websites supporting Lott’s theories casts an additional dark shadow on the validity of Lott’s results, as Mary Rosh turned out to be a pseudonym for Lott himself.193
The Donohue Study took Lott’s own data and applied it to the synthetic controls analysis, in which right-to-carry states are compared with nonright- to-carry states to produce accurately weighted comparisons, and found the opposite to be true.194 Donohue noted that Lott’s study had an obvious omission in that it failed to control for the levels of policing and incarceration in each state, even though this factor is well known to have a large impact on crime.195 The Donohue Study found that right-to-carry laws are associated with higher aggregate crime rates, and that the negative impact of right-to-carry laws actually increases over time.196 The Donohue Study further noted that the culture of carrying guns can promote confrontations, citing the Trayvon Martin case as an example in which George Zimmerman likely would not have followed, hassled, and eventually shot Trayvon Martin had he not been armed with a gun.197 Additionally, Donohue noted that individuals who carry guns around are a constant source of arming criminals.198 In 2015, for example, a tourist was shot and killed on a city pier in San Francisco with a gun stolen from the vehicle of a lawful gun owner.199 Donohue also described the possibility that as a result of right-to-carry laws, more criminals may arm themselves to be able to thwart armed resistance from potential victims, and the burden rightto- carry laws impose on police forces having to deal with armed citizens.200
The Donohue Study directly rebuts the good guy thesis and provides the strongest statistical evidence to date that arming more law-abiding citizens leads to an increase in violent crime.201 While an outright ban on the concealed carriage of firearms outside of the home would likely run afoul of the Second Amendment, good reason laws strike an appropriate balance in ensuring that concealed carry licenses are issued to people who can demonstrate a need to carry a concealed firearm.202 Donohue’s findings suggest that limiting the amount of concealed carry licenses through good reason firearm statutes would have an appreciable reduction in violent crime in the United States.203
V. Good Reason Handgun Laws Promote the State’s Important Interest in Public Safety
Professor Donohue’s study demonstrates that the potential that a civilian may be armed does not have the deterrent effect on criminal activity suggested by proponents of the good guy thesis, including John Lott.204 In addition to limited statistical evidence supporting this deterrent effect, the use and concealed carriage of handguns by individuals unable to demonstrate a good reason for the need to carry has significant deleterious effects on public safety.205
A. Lawful Concealed Carry Holders Often Unwittingly Arm Criminals Through Theft
Professor Donohue noted that individuals who lawfully carry weapons on their person and in their vehicles are a constant source of arming criminals.206 In 2016, a total of 18,394 firearms were reported lost or stolen from federal firearm licensees.207 A recent study indicates the number of privately owned firearms stolen per year is substantially higher, between 300,000 and 600,000.208 There are numerous examples of stolen guns being later utilized in violent crimes, and stolen weapons often find their way into the “Iron Pipeline,” migrating north up the I-95 corridor from southern states with more lax gun laws, to northern states where firearms—and firearms licenses—are generally more difficult to obtain.209
The ATF has acknowledged that lost and stolen firearms pose a substantial threat to public safety and to law enforcement.210 The connection between an increase in concealed carry of firearms and a coinciding increase in firearms theft is not tenuous—many cities where gun theft from cars has increased in recent years are located in states where it is easier for individuals to buy and carry guns.211 In addition to potentially arming criminals, gun owners and concealed carry license holders who carelessly store their weapons may also place firearms in the hands of children.212 On average, 2,737 children and teens die of firearm-related deaths each year, approximately 110 of which are the result of unintentional firearms accidents.213 It is further estimated that nearly 4.6 million children live in a home with an unlocked, loaded gun.214
By limiting concealed carry licenses only to those who can demonstrate a legitimate need to carry a concealed weapon, good reason handgun laws reduce the number of handguns in the public sphere, thus limiting the potential that lawfully armed citizens will unwittingly arm a criminal actor or child.215
B. Guns Lawfully Carried by Private Citizens Are Rarely Used in a Socially Useful Manner
The FBI’s 2014 Study of Active Shooter Incidents demonstrates that civilian intervention in mass shooting events is a rare occurrence.216 Armed civilians intervened in mass shooting events in only 3.1% of the events studied, and in four of those five incidents the intervening individuals were armed security guards who were employed, positioned, and equipped specifically to respond to such incidents.217 The use of firearms in selfdefense of other crimes is also exceedingly rare.218 A Harvard University analysis of data from the Federal National Crime Victimization Survey found that people defended themselves with a gun in roughly 0.9% of crimes committed over the period studied by the survey and that the use of firearms in self-defense did not typically lead to better outcomes for victims.219 Criminal homicides with firearms also far exceed defensive firearm use.220 In 2014, for example, there were only 224 justifiable homicides involving a private citizen using a firearm reported to the FBI’s Uniform Crime Reporting (UCR) Program.221 That same year, there were 7,670 criminal gun homicides reported to the UCR.222 Studies have additionally found that most self-reported, self-defense gun uses may well be illegal and against the interests of society.223
This research demonstrates that while the majority of gun owners in the United States cite protection as their primary reason for owning a gun,224 guns often do not seem to protect even those who possess them.225 Furthermore, placing more guns in the hands of law-abiding citizens may have the inverse effect of deterrence, and may instead lead more criminals to arm themselves in preparation for the commission of a crime.226 While the NRA has claimed that firearms are used defensively more than two million times a year, this number has been categorized as both outrageous and implausible.227 In a nation of more than 300 million guns, guns are rarely used in self-defense, and “[t]he number of justifiable homicides that occur in our nation each year pale in comparison to criminal homicides, let alone gun suicides and fatal unintentional shootings.”228
These statistics further weaken the good guy thesis and instead support the premise that reasonable restrictions on the carrying of concealed weapons, such as good reason laws, are sound public policy.229 By limiting concealed carry permits only to those who can demonstrate an actualized need for carrying, good reason laws limit the needless introduction of firearms into the public sphere, while still allowing those in “palpable need of self-protection” to arm themselves in public places.230 These laws achieve the proper balance between ensuring access to concealed carry permits for those who need them while preventing a “greater-than-necessary proliferation of handguns in public places that . . . increases risks to public safety.”231
C. The Average Armed Citizen Lacks the Training Necessary to Safely and Effectively Neutralize an Armed Threat and May Cause Unnecessary Harm and Danger to Bystanders
In Woollard v. Gallagher, the Fourth Circuit cited, as one of its many reasons for upholding Maryland’s good reason handgun law, the public safety interest in averting the confusion and “potentially tragic consequences . . . that can result from the presence of a third person with a handgun during a confrontation between a police officer and a criminal suspect.”232 The Court accurately noted that civilians without sufficient training in the use and control of their weapons may pose a threat to officers and other civilians in stressful situations, as well as the potential for confusion as to what side a permit holder is on.233 Public carrying inherently complicates the relationship between the police and law-abiding citizens.234
Furthermore, despite comprehensive firearms and tactics training, even police officers with years of experience dealing with stressful and often dangerous situations struggle to hit their targets in stressful use-of-force encounters.235 In 2008, for example, data showed that the New York City Police Department’s hit ratio was roughly 34%.236 In highly stressful, life-ordeath gunfights, police accuracy can drop to as low as 13%.237As a result of limited police accuracy during shootings, bystanders are sometimes accidentally shot.238 An armed civilian encountering an armed gunman with minimal or no firearms and/or sophisticated tactical training is unlikely to fare better, and in fact may pose a greater risk to bystanders and responding law enforcement than an unarmed citizen who simply flees, shelters in place, or uses another means of self-defense.239
The July 7, 2016 ambush and shooting of multiple Dallas police officers provides a patent example of the complicated relationship between lawfully armed civilians and police officers.240 It also tragically demonstrates the shortfalls of the good guy thesis.241 As police officers provided security for a large rally in downtown Dallas, Micah Xavier Johnson began shooting at police officers with an AK-47 style rifle.242 In the course of his rampage, Johnson killed five highly trained and equipped police officers and injured seven more.243 A large, multi-agency response of “good guys”—police officers, many of them SWAT officers armed with long guns, were unable to stop Johnson’s ambush using traditional force-on-force measures.244 Police eventually put an end to the rampage and ensuing standoff by using a police robot equipped with explosives to kill Johnson.245
Complicating the law enforcement response to the Dallas shooting was the presence of several civilians lawfully and openly carrying rifles in protest.246 The presence of armed civilians during active shooter events causes confusion for responding law enforcement in distinguishing “good guys” from “bad guys,” and in the case of the Dallas shooting, led police to initially believe they were under attack from multiple shooters.247 The Dallas shooting provides a tragic example of the failures of the good guy thesis, as well as the complications that can arise from the lawful carrying of firearms by civilians during emergencies.248
Similarly, amidst the Las Vegas shooting, amateur video taken showed a civilian pestering law enforcement personnel for a firearm.249 The officers refused as they took cover behind a jersey barrier, while the shooter continued to rain bullets down on concertgoers.250 Well-intentioned civilians, armed or unarmed, should let police officers do their jobs during emergencies.251 The introduction of additional guns in the hands of minimally trained individuals during shootings is not in the public interest and is unlikely to yield better results.252
Conclusion
“Nothing in the constitution says that the right to bear arms is an absolute right, and nothing in the Second Amendment prevents reasonable regulation of the right.”253 Good reason handgun laws are a reasonable regulation of the right-to-carry concealed weapons outside of the home under the Second Amendment.254 While good reason laws may burden individual Second Amendment rights, the burden is both constitutionally permissible and logical.255 Further, because good reason handgun laws do not burden the core Second Amendment right of self-defense in the home, intermediate scrutiny is the proper mode of constitutional analysis that appellate courts should adhere to.256
Good reason handgun laws are also consistent with empirical data which debunks the good guy thesis asserted by the NRA and the gun lobby.257 While Stephen Willeford’s actions in confronting the Sutherland Springs church shooter were heroic and selfless, research indicates that successful armed civilian intervention in mass shooting events is the exception to the rule.258 The Donohue Study asserts that expanded right-tocarry laws do not lead to a decrease in crime, but have the opposite effect of increasing violent crime.259 Therefore, by limiting the issuance of concealed carry permits to those who can demonstrate a good reason for needing to carry a concealed weapon, good reason laws promote the state’s legitimate interest in public safety and crime prevention.260 Statistical evidence also shows that gun owners rarely use their weapons in a socially useful manner, as in stopping a threat or thwarting a criminal act, and rather often unwittingly arm criminals or complicate police responses to emergencies.261
Americans willingly accept and submit to requirements to get a driver’s license and to buy liability insurance on their vehicles.262 Federal agencies monitor and enforce regulations on prescription drugs, food, transportation, and other industries.263 And yet, reasonable regulations on the carrying of deadly weapons are hotly contested.264 One commentator asserts that “[t]he misconstruction of the Second Amendment as an unlimited right not connected with any responsibility or civic duty has cost many more American lives than terrorism has.”265 Good reason laws are sensible and reasonable regulations on the right-to-carry firearms in public for selfdefense, and they promote public safety by limiting the issuance of concealed carry permits to those who actually need them.266
Unyielding ideological rigidity should not dictate judicial interpretation of the Second Amendment.267 Public safety and common sense should factor into court’s decisions when addressing reasonable restrictions on the Second Amendment right-to-carry.268 Good guys with guns are not going to save us from the next massacre perpetrated through the use of firearms.269 Common sense gun laws, however, may.270
* Juris Doctor, magna cum laude, New England Law | Boston (2019); B.A., cum laude, Merrimack College (2011). Former federal law enforcement officer, currently serving as a judicial law clerk at the Massachusetts Appeals Court. I would like to thank the New England Law Review staff and professors who helped me prepare this Note, as well as my family for their support.
1✕Saeed Ahmed, Doug Criss & Emanuella Grinberg, ‘Hero’ Exchanged Fire with Gunman, Then Helped Chase Him Down, Cnn (Nov. 7, 2017, 8:39 AM), https://perma.cc/4XWR-NK4C.
2✕Id
3✕Id
4✕Sutherland Springs: Men Chased Texas Church Shooting Suspect, BBC (Nov. 6, 2017), https://perma.cc/7GEM-J2X5.
5✕Id
6✕David Montgomery, Christopher Mele & Manny Fernandez, Gunman Kills at Least 26 in Attack on Rural Texas Church, New York Times (Nov. 5, 2017), https://perma.cc/P9GB-QQUQ.
7✕Sutherland Springs: Men Chased Texas Church Shooting Suspect, supra note 4.
8✕Montgomery, supra note 6.
9✕See Ahmed, supra note 1.
10✕ See Ahmed, supra note 1.
11✕ Emily Rupertus, A Good Guy with a Gun, Nra Blog (July 20, 2016), https://perma.cc/G8BRXPNQ (describing several anecdotal instances in which a lawfully armed individual scared off alleged criminals or used force to stop a shooting or other crime in progress).
12✕ See Ahmed, supra note 1 (noting that Langedorff engaged the shooter as he was leaving the church, after having already shot twenty-six people inside the church).
13✕ Saeed Ahmed, 2 of the 5 Deadliest Mass Shooting in Modern US History Happened in the Last 35 Days, Cnn (Nov. 6, 2017, 9:44 AM ET), https://perma.cc/753K-LVK5.
14✕ See Andrew O’Reilly, Texas Church Shooting Not the First Time a Good Guy With Gun Takes Down Mass Shooter, Fox News (Nov. 8, 2017), https://perma.cc/QY4H-L77P.
15✕ See John J. Donohue et al., Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Date and a State-Level Synthetic Controls Analysis, 16 J. EMPIRICAL LEGAL STUD. 198 (2019) [hereinafter Donohue Study]; See also John R. Lott, Stanford Law Prof Gets it Wrong on Guns - - Right-to-Carry Reduces Crime, not the Other Way Around, Fox News (July 10, 2017), https://perma.cc/5CZL-JVKZ; The Flawed and Misleading Donohue, Aneja, & Weber Study Claiming Right-to-Carry Laws Increase Violent Crime, Crime Prevention Research Center (July 9, 2017), https://perma.cc/L382-XES6 (characterizing Donohue’s synthetic control test as arbitrary and claiming that the vast majority of peer-reviewed studies suggest right-to-carry laws reduce violent crime rates) [hereinafter CPRC Article].
16✕ Compare Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017) (striking down the District of Columbia’s Good Reason handgun law), and Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (concluding that an Illinois Statute which generally prohibited the carrying of guns in public violated the Second Amendment right to bear arms outside of the home), with Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (applying intermediate scrutiny to Maryland’s “goodand- substantial-reason” firearms law and finding a reasonable fit between the regulation and the State’s objectives of protecting public safety and preventing crime), Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (applying intermediate scrutiny in upholding New York’s “proper cause” requirement for obtaining concealed-carry permits), and Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012) (upholding a Massachusetts good reason statute and noting that Second Amendment rights are not unlimited).
17✕ See generally Justine E. Johnson-Makuch, Statutory Restrictions on Concealed Carry: A Five- Circuit Shoot-Out, 83 Fordham L. Rev. 2757 (2015) (addressing the unsettled legal question of how the Second Amendment applies beyond the home).
18✕ See Melinda Wenner Moyer, More Guns Do Not Stop More Crimes, Evidence Shows, Scientific American (Oct. 1, 2017), https://perma.cc/Q3W2-2B5B (noting that approximately thirty studies have suggested that more guns are linked to more violent crimes); Maura Ewing, Do Right-to-Carry Gun Laws Make States Safer?, The Atlantic (June 24, 2017), https://perma.cc/D9SK-A9AU (discussing the question of whether armed citizens deter violent crime or exacerbate it, and noting conflicting studies which continue to polarize the argument).
19✕ See Concealed Carry, Giffords Law Center, https://perma.cc/86FG-HKVE (last visited Oct. 21, 2019) (defining generally good reason and “shall issue” firearms laws, as well as other statutory schemes for issue of concealed carry permits). This Note will focus primarily on the contrast and differences between good reason and “shall issue” firearms laws and the constitutional implications of each legislative scheme.
20✕ See Jonathan Masters, U.S. Gun Policy: Global Comparisons, Council On Foreign Relations https://perma.cc/AK83-N8J3 (last updated Aug. 6, 2019).
21✕ See William J. Krouse, Gun Control Legislation, C.R.S. Report No. RL32842 at 8 (2012).
22✕ Id. (noting significant rises in gun ownership in America in data collected for the years 1994, 1996, 2000, 2007, and 2009).
23✕ Tom McCarthy, Lois Beckett, & Jessica Glenza, America’s Passion for Guns: Ownership and Violence by the Numbers, The Guardian (Oct. 3, 2017, 2:00 AM EDT), https://perma.cc/98CN- 52RW (noting also that the United States suffers mass shootings at more than 11 times the rate of any other developed country).
24✕ Id. (estimating that more than 30,000 Americans are killed with guns each year, and that Americans are 25 times more likely to be murdered with a gun than people in other developed countries).
25✕ Past Summary Ledgers, Gun Violence Archive, https://perma.cc/7Z6Y-2BVC (last visited Oct. 19, 2019) (excluding approximately 22,000 annual suicides).
26✕ See William J. Krouse & Daniel J. Richardson, Mass Murder With Firearms: Incidents And Victims, 1999-2013, C.R.S. REPORT NO. R44126 at 4–6 (2015); See also Callum Borchers, The Squishy Definition of ‘Mass Shooting’ Complicates Media Coverage, The Washington Post (Oct. 4, 2017), https://perma.cc/26ZR-YGHP; Chris Wilson, Why Are There So Many Conflicting Numbers on Mass Shootings?, TIME (Oct. 2, 2017), https://perma.cc/JG37-QWMV.
27✕ See Ahmed, supra note 13.
28✕ Ahmed, supra note 13.
29✕ Ahmed, supra note 13.
30✕ See generally Nicholas Kristof, How to Reduce Shootings, New York Times (Nov. 6, 2017), https://perma.cc/E66M-ZQMP (offering several options for more effective regulation of firearms and identifying the Public Health Approach as a better means of regulating firearm ownership in the United States).
31✕ Mark Memmot, Only 'A Good Guy with a Gun' Can Stop School Shootings, NRA Says, NPR (Dec. 21, 2012, 10:45 AM ET), https://perma.cc/G9ZF-BEEZ.
32✕ See generally Matt Valentine, The Myth of the Good Guy with the Gun, Politico Magazine (Oct. 5, 2015, 7:18 PM ET), https://perma.cc/U6KT-R3YF (arguing that “the canard of the armed civilian mass-shooting hero is perpetuated by exaggerations and half-truths”).
33✕ Justin McCarthy, More Than Six in 10 Americans Say Guns Make Homes Safer, GALLUP (Nov. 7, 2014), https://perma.cc/5QWL-ZRXK (outlining a Gallup poll in which a record-high percentage of people in the United States believed that guns make homes safer).
34✕ See Armed Citizen Stories, National Rifle Association Institute For Legislative Action, https://perma.cc/R89B-EN8C (last visited Oct. 21, 2019) (providing an up-to-date list of examples in which lawfully armed citizens stopped crimes and/or defended themselves while exercising their Second Amendment rights); Gun Controllers Choose to Ignore Cases of Good Guys with Guns, National Rifle Association Institute For Legislative Action (Nov. 17, 2017), https://perma.cc/26ZJ-8X54 (criticizing Democratic Senator Chris Murphy’s tweet in which he stated “let’s be clear–nobody ‘stopped’ this shooting” and characterizing his dismissal as another case in which gun control activists actively ignore cases where armed civilians have put a halt to mass violence).
35✕ See Ryan Bort, When to Talk About Gun Control? Trevor Noah Blasts FOX News and Sean Hannity For Las Vegas Coverage, Newsweek (Oct. 4, 2017, 10:56 AM ET), https://perma.cc/LZU2- FRLZ (describing late night comedian Trevor Noah’s response to Sean Hannity’s assertion that he may have been able to stop the Las Vegas shooter).
36✕ See Center for American Progress, Myth vs. Fact: Debunking the Gun Lobby’s Favorite Talking Points, American Progress (Oct. 5, 2017), https://perma.cc/R4U4-56NM (citing numerous studies that have found that gun ownership increases the risk of both gun-related homicides and suicides); Brandon Curtis, Some Say “Good Guy with a Gun” Argument Invalid After Vegas Shooting, Concealed Nation (Oct. 6, 2017), https://perma.cc/UX8H-FESS (conceding that it is likely an armed citizen could not have stopped the Las Vegas massacre, but supporting Wayne LaPierre’s premise that a “good guy with a gun” is the best solution for stopping an armed gunman seeking to do harm).
37✕ See generally John R. Lott Jr., More Guns, Less Crime: Understanding Crime And Gun Control Laws (1998); John R. Lott, Jr., About/Board of Academic Advisors, Crime Prevention Research Center, https://perma.cc/JHJ4-MGDM (last visited Oct. 21, 2019) (describing the CPRC, of which Dr. John R. Lott Jr. is the founder and president. The stated goals of the CPRC are to “advance the scientific understanding of policing as well as the relationship between laws regulating the ownership or use of guns, crime, and public safety.”).
38✕ See generally Lott, supra note 37.
39✕ Donohue Study, supra note 15, at 2 (noting the importance of the Lott and Mustard paper, but acknowledging that several subsequent reviews of the paper have been skeptical of his findings, and that the empirical data has produced largely mixed results); See also John Lott & David B. Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns (1996) (Coase- Sandor Institute for Law & Economics, Working Paper No. 41), available at https://perma.cc/2YVW-LNQ3.
40✕ See Lott & Mustard, supra note 39, at 1.
41✕ Lott & Mustard, supra note 39, at 1.
42✕ Lott & Mustard, supra note 39, at 16 (claiming additionally that more accidental deaths took place in states without concealed carry handgun laws).
43✕ Lott & Mustard, supra note 39, at 16.
44✕ See generally Donohue Study, supra note 15, at 1 (finding that right-to-carry laws increase overall violent crime and/or murder).
45✕ But See CPRC Article, supra note 15 (criticizing the Donohue Study and the synthetic state statistical analysis).
46✕ Milenko Martinovich, States with Right-to-Carry Concealed Handgun Laws Experience Increases in Violent Crime, According to Stanford Scholar, Stanford News (June 21, 2017), https://perma.cc/SAQ4-LHDW (explaining Professor Donohue’s analysis and the synthetic state model).
47✕ Id.
48✕ Id.
49✕ Id. (noting that the four data sets used previously demonstrated conflicting results with respect to the question whether right-to-carry laws increase or decrease crime).
50✕ See Donohue Study, supra note 15, at 200 (noting that there were also positive but not statistically significant effects on property crime and murder).
51✕ Donohue Study, supra note 15, at 198.
52✕ Donohue Study, supra note 15, at 198.
53✕ Donohue Study, supra note 15, at 200 (noting that the Donohue Study actually utilized the data sets from the Lott and Mustard paper in coming to its conclusion that right-to-carry handgun laws actually increase violent crime).
54✕ Michele Gorman, Guns Make Us Safe? NRA Theory Debunked in New Stanford Analysis, Newsweek (June 29, 2017), https://perma.cc/87TR-WZBF (quoting Professor Donohue as saying “[t]here is not even the slightest hint in the data that RTC laws reduce overall violent crime” and noting that the “more guns equal less crime” theory is one of the most deeply seeded and prominent in the gun-rights movement).
55✕ See Lott, supra note 15 (noting that two-thirds of published, peer-reviewed studies find that right-to-carry laws reduce violent crime, and criticizing Donohue’s methods and statistical analysis); AWR Hawkins, Stanford Professor: ‘Right to Carry’ for Law-Abiding Citizens Increases Violent Crime, BreitBart (July 10, 2017), https://perma.cc/WEW5-DJKM.
56✕ Pete J. Blair & Katherine W. Schweit, A Study of Active Shooter Incidents, 2000–2013, FBI (2014), https://perma.cc/TF7C-F5SN [hereinafter FBI Study].
57✕ Id. at 5 (defining an active shooter incident in accordance with the FBI, Department of Justice, and several other federal government agencies, and noting that implicit in the definition of “active shooters” is the use of firearms).
58✕ See generally Id.
59✕ Id. at 11
60✕ Id.
61✕ Id.
62✕ FBI Study, supra note 56, at 11.
63✕ FBI Study, supra note 56, at 11 (finding that 56.3% of active shooter instances ended due to the shooter’s own actions, such as committing suicide, stopping shooting, or fleeing).
64✕ U.S. Const. amend. II.
65✕ See D.C. v. Heller, 554 U.S. 570, 576 (2008).
66✕ McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).
67✕ Heller, 554 U.S. at 635 (holding unconstitutional a law which totally bans handgun possession in the home, and requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times); See also McDonald, 561 U.S. at 778 (holding that the Second Amendment is fully applicable to the states by virtue of the Fourteenth Amendment).
68✕ Heller, 554 U.S. at 630.
69✕ See McDonald, 561 U.S. at 750 (holding unconstitutional a law that effectively prohibited registration of most handguns in Chicago based on a city ordinance that required individuals possessing firearms to have a valid registration certificate for the firearm. The petitioners in that case argued that possession of a firearm would make them safer, based on escalating crime and murder rates in the city of Chicago. Several of the petitioners had actually been the targets of threats and violence.); Heller, 554 U.S. at 635 (concluding that the District’s ban on handgun possession in the home as well as the provision requiring inoperability are unconstitutional, and that Heller must be permitted to register his handgun and must be issued a license to carry the handgun in the home).
70✕ Heller, 554 U.S. at 628–29 (noting that the District’s handgun ban would fail under any level of scrutiny); See also Stephen Kiehl, Comment, In Search of a Standard: Gun Regulations after Heller and McDonald, 70 MD. L. Rev. 1131, 1133 (2001) (acknowledging that courts have struggled to adopt a clear standard of review for Second Amendment cases and arguing that intermediate scrutiny should be the standard applied to gun regulations which are short of absolute bans on possession).
71✕ See Kiehl, supra note 70, at 1133.
72✕ See Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017);; Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012) (exemplifying cases illustrative of Federal Circuit Court split); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).
73✕ Hightower, 693 F.3d at 67 (including the “good reason” language within a longer description of the circumstances in which the licensing authority may grant a Class A firearms license); See also Mass. Gen. Laws ch. 140 § 131 (2018) (allowing the license holder to carry a concealed weapon).
74✕ Hightower, 693 F.3d at 71.
75✕ Id. at 71–72 (noting that the court found the statute constitutional, despite Hightower’s attack on the “suitability” requirement).
76✕ Id. at 74.
77✕ Kachalsky v. County of Westchester, 701 F.3d 81, 84 (2d Cir. 2012) (providing a comprehensive statutory history of New York gun laws and noting that New York’s “proper cause” statute was enacted specifically to combat increasing gun crime rates).
78✕ See Id. at 83–84 (requiring that the applicant “demonstrate a special need for selfprotection, distinguishable from that of the general community or of persons engaged in the same profession”); See also Moore v. Gallup, 59 N.E.2d 439 (N.Y. 1944) (noting that New York courts have also held that a generalized desire to carry a concealed weapon does not meet the proper cause requirement, nor does living in a high crime area). See generally Martinek v. Kerik, 743 N.Y.S.2d 80 (N.Y. App. Div. 2002).
79✕ Martinek, 743 N.Y.S.2d at 88–90 (arguing that New York cannot constitutionally require them to demonstrate proper cause to exercise their Second Amendment right, with the court concluding that Heller offers no categorical answer to the plaintiff’s argument).
80✕ Id. at 93–94 (reasoning that applying less than strict scrutiny since the regulation did not burden the core protection of self-defense in the home made logical sense and was consistent with jurisprudence analyzing other enumerated rights, including the First Amendment).
81✕ Id. at 94–95 (noting the “critical difference” between the regulation of firearms inside the home versus in public and emphasizing that the Heller court left open several other avenues of regulation of firearms, including categorical bans on firearm possession in certain public locations).
82✕ See Woollard v. Gallagher, 712 F.3d 865, 868 (4th Cir. 2013).
83✕ Id. at 875 (citing several legislative findings supporting the fact that regulations on the carrying of handguns were necessary to preserve peace and tranquility in the state).
84✕ See Id. at 877–80 (citing as additional reasons buttressing the State’s interest in regulating the concealed carrying of handguns outside of the house as decreasing the availability of handguns to criminals via theft, averting the potentially tragic consequences that can result from the presence of a third person with a handgun during a confrontation between a police officer and a criminal suspect, and lessening the likelihood that basic confrontations would turn deadly).
85✕ Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012) (noting that Illinois was the only state that maintained a flat-out ban on carrying ready-to-use guns outside of the home).
86✕ Id. at 937 (arguing that one “one doesn’t need to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home,” and citing multiple academic and statistical studies indicating that an increase in gun ownership causes an increase in homicide rates, but distinguishing ownership from concealed carriage of firearms).
87✕ Id. at 940, 942.
88✕ See Wrenn v. D.C., 864 F.3d 650, 655 (D.C. Cir. 2017) (emphasizing the puzzles constitutional challenges to gun laws create for courts).
89✕ Id.
90✕ Id. at 657 (arguing that regardless of the precise scope of the right-to-carry, the Second Amendment does not protect carrying in densely populated or urban areas like Washington, D.C., noting the massive concentration of government agencies, monuments, and other facilities in the district).
91✕ Id. at 659 (conceding that legal regulations of possession or carrying are longstanding and reflect limits to the preexisting rights protected by the amendment).
92✕ Id. at 663.
93✕ Id. at 666.
94✕ See generally Wrenn v. D.C., 864 F.3d 650, 667–68 (D.C. Cir. 2017).
95✕ See generally John J. Donohue, Guns, Crime, and the Impact of State Right-To-Carry Laws, 73 Fordham L. Rev. 623, 638–39 (2004).
96✕ See generally Woollard v. Gallagher, 712 F.3d 865, 876–80 (4th Cir. 2013).
97✕ See generally Joseph D. Spate, To Have and To Hold: Factors to Consider Before Divorcing South Carolina From the Concealed Weapons Permit Requirement, 68 S.C. L. REV. 597, 611–15 (2017) (citing multiple studies regarding right-to-carry and violent crime and acknowledging that more accurate research must be conducted in these areas).
98✕ See Jen Christensen, Why the US Has the Most Mass Shootings, Cnn (Oct. 5, 2017, 11:36 AM ET), https://perma.cc/7XCS-39UG.
99✕ Id. (characterizing the gun violence problem in the United States as “tragically exceptional,” and noting that there are more public mass shootings in the United States than in any other country in the world).
100✕ See Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017) (striking down the District of Columbia’s Good Reason handgun law); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (applying intermediate scrutiny to Maryland’s “good-and-substantial-reason” firearms law and finding a reasonable fit between the regulation and the State’s objectives of protecting public safety and preventing crime); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (concluding that an Illinois Statute which generally prohibited the carrying of guns in public violated the Second Amendment right to bear arms outside of the home); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (applying intermediate scrutiny in upholding New York’s “proper cause” requirement for obtaining concealed-carry permits); Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012) (upholding a Massachusetts good reason statute, and noting that Second Amendment rights are not unlimited) (outlining the various circuit court interpretations of the Second Amendment as applied to state and city handgun regulations and ordinances).
101✕ See Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012); Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012).
102✕ See, e.g., Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017) (striking down the District of Columbia’s Good Reason handgun law); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (applying intermediate scrutiny to Maryland’s “good-and-substantial-reason” firearms law and finding a reasonable fit between the regulation and the State’s objectives of protecting public safety and preventing crime); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (concluding that an Illinois Statute which generally prohibited the carrying of guns in public violated the Second Amendment right to bear arms outside of the home); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (applying intermediate scrutiny in upholding New York’s “proper cause” requirement for obtaining concealed-carry permits); Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012) (upholding a Massachusetts good reason statute, and noting that Second Amendment rights are not unlimited).
103✕ See Russell Blair, Democratic Governors form ‘States for Gun Safety’ Group, Governing (Feb. 23, 2018), https://perma.cc/6ARC-DTWM.
104✕ See Rupertus, supra note 11 (claiming the “good guy with a gun” argument proves to be truer and truer with each passing day).
105✕ See The Threat to Public Safety if ‘Concealed Carry’ Goes National, N.Y. Times (Dec. 1, 2016), https://perma.cc/5DVP-AG5M [hereinafter Threat to Public Safety].
106✕ Kiehl, supra note 70, at 1133.
107✕ Johnson-Makuch, supra note 17, at 2775–79 (providing several perspectives on whether the Second Amendment extends outside of the home).
108✕ D.C. v. Heller, 554 U.S. 570, 594 (2008).
109✕ See Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (noting that a right to “bear” arms implies a right-to-carry a loaded gun outside the home).
110✕ See Kiehl, supra note 70, at 1170; See also Threat to Public Safety, supra note 105.
111✕ See generally McDonald v. City of Chicago, 561 U.S. 742 (2010); Heller, 554 U.S. at 570. 112 Heller, 554 U.S. at 634.
113✕ Kiehl, supra note 70, at 1141.
114✕ See Heller, 554 U.S. at 582 (comparing the Second Amendment’s language to that of the First Amendment and other enumerated rights); Woollard v. Gallagher, 712 F.3d 865, 868 (4th Cir. 2013) (upholding Maryland’s good reason right-to-carry regulation under strict scrutiny); See also Drake v. Fillo, 724 F.3d 426, 440 (3d Cir. 2013) (upholding New Jersey’s “justifiable need” concealed carry law using an intermediate scrutiny analysis); Kiehl, supra note 70, at 1141 (noting that the trend is towards intermediate scrutiny).
115✕ See Heller, 554 U.S. at 628 (holding that the need for defense of self, family, and property is most acute in the home, however not reaching the question of how far outside of the home this right extends).
116✕ See Kachalsky v. County of Westchester, 701 F.3d 81, 94 (2d Cir. 2012).
117✕ Id.
118✕ Id. at 93–94.
119✕ Id. at 94; See also U.S. v. Playboy Ent. Group, Inc., 529 U.S. 803, 813 (2000) (applying strict scrutiny to a federal statute which required cable operators to scramble sexually explicit channels or limit programming on such channels to certain hours because the restriction was content based); Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (applying intermediate scrutiny to a Florida Bar rule which prohibited lawyers from using direct mail to solicit personal injury or wrongful death clients within 30 days of an accident).
120✕ Kachalsky, 701 F.3d at 96.
121✕ See Id. at 94.
122✕ See Id.
123✕ See U.S. v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (stating that applying a strict scrutiny analysis would foreclose on a number of regulatory measures, limiting the legislatures’ ability to prevent armed mayhem in public places, and holding that intermediate scrutiny applies to laws that burden any right to keep and bear arms outside of the home).
124✕ Id. at 470 (noting that public safety interests often outweigh individual interests in selfdefense).
125✕ D.C. v. Heller, 554 U.S. 570, 579 (2008).
126✕ Id.
127✕ See Id. at 635.
128✕ See Id. (dismissing Justice Breyer’s dissenting argument that an “interest balancing” approach should be used for Second Amendment cases, noting that both the First and Second Amendments are “no different” in light of the fact that they were the very product of an interest balancing by the people).
129✕ U.S. v. Skoien, 587 F.3d 803, 813 (7th Cir. 2009), vacated, 614 F.3d 638 (7th Cir. 2010).
130✕ See U.S. v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (quoting U.S. v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)).
131✕ See Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012).
132✕ See Id. at 94.
133✕ D.C. v. Heller, 554 U.S. 570, 635 (2008).
134✕ See Woollard v. Gallagher, 712 F.3d 865, 879–80 (4th Cir. 2013) (declaring that as we move outside of the home, firearm rights have always been more limited, and listing multiple ways in which the state has demonstrated that the good-and-substantial-reason requirement advances the objectives of public safety).
135✕ See Kachalsky, 701 F.3d at 94.
136✕ Id.
137✕ See, e.g., Lawrence v. Texas, 539 U.S. 558, 579 (2003) (holding that a Texas statute criminalizing sex between two persons of the same sex in the home was unconstitutional); Kyllo v. U.S., 533 U.S. 27, 40 (2001) (characterizing the government’s use of a thermal imaging device to scan a residence suspected of hosting a drug operation as a search, presumptively unreasonable without a warrant); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the in-home possession of obscene materials could not be criminalized, even though a public display of that same obscenity was not protected). See generally Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (striking down as unconstitutional a statute forbidding the use of contraceptives and recognizing the “sanctity of a man’s home and the privacies of life.”).
138✕ See generally Griswold, 381 U.S. at 484.
139✕ Kachalsky, 701 F.3d at 94.
140✕ See generally Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 CLEV. ST. L. REV. 1, 31 (2012) (noting that the founding generation “commonly understood the Statute of Northampton as prohibiting the carrying of arms among the concourse of the people to preserve the public peace.”).
141✕ Kachalsky, 701 F.3d at 84–85 (noting that the New York legislature enacted the Sullivan Law based in part on a finding that concealed handguns are “the handy, the usual, and the favorite weapon of the turbulent criminal class”).
142✕ Hightower v. City of Boston, 693 F.3d 61, 85 (1st Cir. 2012).
143✕ See Kachalsky, 701 F.3d at 96.
144✕ Id. (noting that “the state enjoys a fair degree of latitude to regulate the use and possession of firearms in public”).
145✕ Id.
146✕ Id.
147✕ Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013).
148✕ D.C. v. Heller, 554 U.S. 570, 688 (2008).
149✕ Woollard, 712 F.3d at 876.
150✕ See generally Id.
151✕ Id. at 877.
152✕ Id.
153✕ Kachalsky v. County of Westchester, 701 F.3d 81, 97–98 (2d Cir. 2012).
154✕ Id.
155✕ Id. at 98.
156✕ See Woollard, 712 F.3d at 879–80 (citing additional reasons lessening the likelihood that basic confrontations would turn deadly, curtailing the presence of handguns during routine police-citizen encounters, and reducing the number of “handgun sightings” that must be investigated by police).
157✕ See Id.
158✕ See, e.g., Id. at 881 (noting that the good-and-substantial approach survives intermediate scrutiny).
159✕ Id.
160✕ Wrenn v. D.C., 864 F.3d 650, 656 (D.C. Cir. 2017).
161✕ Id.
162✕ See generally Id. at 661–64.
163✕ See U.S. v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011).
164✕ U.S. v. Booker, 644 F.3d 12, 25-26 (1st Cir. 2011); See also Heller v. District of Columbia, 670 F.3d 1244, 1261–64 (D.C. Cir. 2011) (applying intermediate scrutiny to a prohibition on the individual possession of magazines with a capacity of more than 10 rounds of ammunition); United States v. Marzarella, 614 F.3d 85, 97 (3d Cir. 2010) (applying intermediate scrutiny to a statute prohibiting the possession of firearms with obliterated serial numbers).
165✕ See Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013).
166✕ Masciandaro, 638 F.3d at 471.
167✕ Woollard, 712 F.3d at 882.
168✕ See Id. (acknowledging that Woollard’s Second Amendment right is burdened by the good-and-substantial-reason requirement, but concluding that such burden is constitutionally permissible under intermediate scrutiny).
169✕ See generally Donohue Study, supra note 15.
170✕ See Id. at 32.
171✕ Id. at 35. 172 Id.
173✕ Lott, supra note 37, at 20.
174✕ Id. at 21.
175✕ Id. at 20.
176✕ Id. at 20–21 (noting that not all crime categories showed reductions, as allowing people to arm themselves causes criminals to turn to property crimes such as motor vehicle theft, where the probability of a direct confrontation is small).
177✕ See Lott & Mustard, supra note 39, at 21.
178✕ Lott, supra note 37, at 165.
179✕ Id. at 168.
180✕ Marv V. Tushnet, Out Of Range: Why The Constitution Can't End The Battle Over Guns 89 (2007).
181✕ Id.
182✕ Id.
183✕ Id.
184✕ Id.
185✕ Id. at 91.
186✕ Tushnet, supra note 180, at 88–89 (noting that property and car crimes increased, consistent with his theory that the potential for a confrontation with an armed citizen leads criminals to commit crimes that are less likely to result in direct contact with a potentially armed individual).
187✕ Tushnet, supra note 180, at 89.
188✕ Tushnet, supra note 180, at 91.
189✕ Tushnet, supra note 180, at 92–93 (finding that Lott’s minor changes to his model caused substantial changes to his results).
190✕ See Tushnet, supra note 180, at 97; See also Steven D. Levitt And Stephen J. Dubner, Freakonomics: A Rogue Economist Explores The Hidden Side Of Everything 122 (2005) (stating that “regardless of whether the data were faked, Lott’s admittedly intriguing hypothesis doesn’t seem to be true”).
191✕ Lott, supra note 37, at 3.
192✕ Tushnet, supra note 180, at 96–97 (citing the conspicuous absence of evidence such as a research proposal, a grant awarding money for the survey, or research assistants, and Lott’s excuses that his computer crashed and he could not remember the names of his volunteer undergraduate research assistants).
193✕ Tushnet, supra note 180, at 97.
194✕ See Donohue Study, supra note 15, at 8–9.
195✕ Donohue Study, supra note 15, at 8–10.
196✕ Donohue Study, supra note 15, at 1 (noting that violent crime is estimated to be thirteen to fifteen percent higher in right-to-carry states).
197✕ Donohue Study, supra note 15, at 37.
198✕ Donohue Study, supra note 15, at 38.
199✕ Donohue Study, supra note 15, at 38.
200✕ See Donohue Study, supra note 15, at 38–39.
201✕ See Donohue Study, supra note 15, at 35–36.
202✕ See Woollard v. Gallagher, 712 F.3d 865, 881 (4th Cir. 2013).
203✕ See Donohue Study, supra note 15, at 35–36.
204✕ See Donohue Study, supra note 15, at 38.
205✕ See Donohue Study, supra note 15, at 37–38.
206✕ See Donohue Study, supra note 15, at 38
207✕ ATF Releases 2016 Summary of Firearms Reported Lost and Stolen from FFLs, ATF.GOV (Apr. 11, 2017), https://perma.cc/5JGH-KZ9T.
208✕ Brian Freskos, Up To 600,000 Guns Are Stolen Every Year in the US – That’s One Every Minute, The Guardian (Sept. 21, 2016, 7:30 AM ET), https://perma.cc/Q898-X7LS.
209✕ See Id. (citing several examples of crimes being committed with stolen weapons); Aaron Smith, How The Iron Pipeline Funnels Guns Into Cities With Tough Gun Laws, Cnn Money (Jan. 19, 2016, 1:31 AM ET), https://perma.cc/C34U-ZC5V (noting the ease with which guns cross state lines, and citing former President Barack Obama’s executive actions to stop the flow of firearms up the Iron Pipeline); See also Craig R. Whitney, Living With Guns: A Literal's Case For The Second Amendment 177 (2012) (citing the 2010 Mayors Against Illegal Guns report which used ATF data to show that a disproportionately high number of guns used in crimes nationwide had originally been sold in states with lax gun laws).
210✕ 2012 Summary: Firearms Reported Lost and Stolen, ATF.GOV 2 (June 17, 2013), https://perma.cc/3T4W-MH24.
211✕ See Freskos, supra note 208.
212✕ Jacqueline Howard, Guns Kill Nearly 1,300 US Children Each Year, Study Says, Cnn Health (June 19, 2017 9:52 PM ET), https://perma.cc/X7XX-T3DS.
213✕ Brady Campaign to Prevent Gun Violence, Key Gun Violence Statistics, Brady United Against Gun Violence, https://perma.cc/7Y3G-UZF5 (last visited Oct. 22, 2019).
214✕ Id.
215✕ See Donohue Study, supra note 15, at 37.
216✕ See FBI Study, supra note 56, at 11.
217✕ FBI Study, supra note 56, at 11.
218✕ See Harvard T.H. Chan School of Public Health, Gun Threats and Self-Defense Gun Use, Harv. Inj. Control Res. Center, https://perma.cc/F5RJ-L5R3 (last visited Oct. 22, 2019).
219✕ Christopher Ingraham, For Every Gun Used in Self-Defense, Six More are Used to Commit a Crime, WASH. POST (June 14, 2016), https://perma.cc/ZJ2B-SCYX (noting that the likelihood of injury when there was a self-defense gun use was approximately 10.9 percent, basically identical to the likelihood of injury when the victim took no action at all).
220✕ See Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use, Violence Pol'y Center 1, 7 (May 2017), https://perma.cc/V9LS-JMMW (noting that this figure is contained in the unpublished Supplementary Homicide Report).
221✕ Id.; See also FBI, Justifiable Homicide by Weapon, Private Citizen, 2010–2014, FBI: UCR, https://perma.cc/2DL5-H245 (last visited Oct. 22, 2019) (identifying 229 justifiable homicides, defined as the killing of a felon during the commission of a felony, by a private citizen).
222✕ Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use, supra note 220, at 1.
223✕ See, e.g., D. Hemenway, D. Azrael & M. Miller, Gun Use in the United States: Results from Two National Surveys, 6 Inj. Prevention 263, 265 (2000) (describing the methodology of an anonymous study in which civilian respondents’ accounts of self-defense firearm use were submitted to multiple criminal court judges, who found that fifty-one percent of the defensive gun uses were “probably illegal”).
224✕ Ruth Igielnik & Anna Brown, Key Takeaways on Americans’ Views of Guns and Gun Ownership, Pew Res. Ctr. (June 22, 2017), https://perma.cc/35C8-5686 (stating that sixty-seven percent of gun owners cite protection as a major reason for owning a gun).
225✕ See generally Amicus Curiae Brief of Brady Center to Prevent Gun Violence in Support of Appellees District of Columbia and Cathy L. Lanier, 19–20, Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017), July 20, 2016, ECF No. 1:15-cv-00162-CKK.
226✕ See Donohue Study, supra note 15, at 38.
227✕ Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use, supra note 220, at 4.
228✕ Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use, supra note 220, at 7.
229✕ See Statistics on the Danger of Gun Use for Self-Defense, Giffords L. Ctr. To Prevent Gun Violence, https://perma.cc/8VJR-X456 (last visited Oct. 22, 2019).
230✕ See Woollard v. Gallagher, 712 F.3d 865, 880 (4th Cir. 2013).
231✕ Id.
232✕ Id. at 879.
233✕ Id. at 880.
234✕ Brief of the District of Columbia and Metropolitan Police Department Chief Cathy Lanier, 51, Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017), July 8, 2016, ECF No. 16-7067.
235✕ See Al Baker, 11 Years of Police Gunfire, in Painstaking Detail, N.Y. Times (May 8, 2008), https://perma.cc/GBT6-B7ZG.
236✕ Id. (noting that the “hit ratio” is calculated by comparing the number of bullets fired by each officer involved in a shooting to their accuracy).
237✕ Let the Teachers Teach, N.Y. Times (Feb. 22, 2018), https://perma.cc/CBM2-8AWC (opposing the idea of arming teachers pressed by several politicians and the gun lobby in the wake of the February 14, 2018 shooting at the Marjory Stoneman Douglas High School in Parkland, Florida. While this note focuses on handgun legislation, it is equally clear that assault rifles pose a serious risk to public safety, and that common sense legislation is needed to restrict the widespread availability of such weapons.).
238✕ See Julia Dahl, Empire State Building Shooting Sparks Questions About NYPD Shot Accuracy, CBS NEWS (Aug. 30, 2012, 11:32 AM), https://perma.cc/338B-9K6W (describing an officerinvolved shooting in which police fired sixteen rounds, hitting the armed suspect ten times, but injuring nine bystanders).
239✕ See Let the Teachers Teach, supra note 237.
240✕ See generally Editorial Board, So, About That ‘Good Guy’ with a Gun, Wash Pst. (July 11, 2016), https://perma.cc/8CJT-R687.
241✕ See Id.
242✕ Faith Karimi, Catherine E. Shoichet & Ralph Ellis, Dallas Sniper Attack: 5 Officers Killed, Suspect Identified, Cnn (July 9, 2016, 1:37 AM), https://perma.cc/423K-ZGS6.
243✕ George Skelton, Dallas Tragedy Proves a Good Guy with a Gun Shouldn’t be the Only Thing that Stops a Bad Guy with a Gun, L.A Times (July 11, 2016, 12:05 AM), https://perma.cc/6B33- 6MHH (noting that twelve “good guys” were unable to stop Johnson).
244✕ See Todd L. Davis & Scott Friedman, Lone Gunman Laughed, Sang During Standoff: Sources, NBC Dallas FOrt Worth (July 8, 2016, 9:43 AM), https://perma.cc/RQC4-DSKX.
245✕ See Sam Thielman, Use of Police Robot to Kill Dallas Shooting Suspect Believed to be First in US History, The Guardian (July 8, 2016, 12:31 EDT), https://perma.cc/DU3V-YJVE.
246✕ See Ernest Scheyder, Dallas Police Chief Says Armed Civilians in Texas ‘Increasingly Challenging,’ Reuters (July 10, 2016, 2:20 PM), https://perma.cc/Z2RC-YC8C.
247✕ Id. (quoting the Dallas Police chief as saying “[i]t is increasingly challenging when people have AR-15s (a type of rifle) slung over, and shootings occur in a crowd. And they begin running, and we don’t know if they are a shooter or not.”).
248✕ Skelton, supra note 242.
249✕ See Brockton Hankins, Las Vegas Shooting Dan Bilzerian Asks Police For Gun, Youtube (Oct. 7, 2017), https://perma.cc/2DBP-2JK8 (showing a civilian, believed to be Dan Bilzerian, asking police for a gun. The police responded with expletives, stating “you know better than that.”).
250✕ Id.
251✕ See generally Linley Sanders, Guns in America: Armed Civilians Complicated Cops’ Job By Getting in the Way of Police Investigations, Newsweek (Nov. 3, 2017, 1:22 PM), https://perma.cc/VCC2-R6P9 (describing the confusion that resulted from several armed civilians who drew guns during a shooting in a Colorado Walmart).
252✕ Id.
253✕ Whitney, supra note 208, at 214.
254✕ Woollard v. Gallagher, 712 F.3d 865, 880–81 (4th Cir. 2013).
255✕ See Id. at 882.
256✕ See Kachalsky v. Cty. of Westchester, 701 F.3d 81, 94 (2d Cir. 2012).
257✕ See Donohue Study, supra note 15, at 35.
258✕ See generally FBI Study, supra note 56.
259✕ Donohue Study, supra note 15, at 35.
260✕ Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013).
261✕ See supra section V.B.
262✕ But cf. Whitney, supra note 208, at 214.
263✕ See generally Whitney, supra note 208, at 214.
264✕ See Whitney, supra note 208, at 214.
265✕ See Whitney, supra note 208, at 250.
266✕ Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013).
267✕ See Whitney, supra note 208, at 250. 268 See Whitney, supra note 208, at 250.
269✕ Center for American Progress, supra note 36.
270✕ See Center for American Progress, supra note 36.