Empirical Evidence, the Second Amendment, and the Courts

I often talk to lawyers who bring gun rights cases and there is one bone of contention. They frequently shy away from mentioning any empirical evidence, saying that legal cases on guns should just involve what the constitution says. I am sympathetic and undoubtedly in a perfect world when the Bill of Rights says "Congress shall pass no law" or "shall not be infringed" those points seem pretty clear. But facts make a difference for a couple reasons. 1) At the simplest level, Justices or judges won't make rulings that they think will end up hurting people. If they think that gun ownership will harm people, they will rule restrictively. 2) The courts over time have adopted balancing tests of different levels. The First Amendment is read by the courts as really saying "Congress shall pass no law unless they have a good reason." How good of a reason depends on the level of "scrutiny" that the court requires.

Take the Oral arguments in the Heller case, a case where the court's majority decision explicitly did not point to empirical evidence on the gunlock part of their decision. Yet, they did want to know some empirical answers:

CHIEF JUSTICE ROBERTS: So how long does it take? If your interpretation is correct, how long does it take to remove the trigger lock and make the gun operable. . . .

JUSTICE SCALIA: You turn on, you turn on the lamp next to your bed so you can -- you can turn the knob at 3-22-95, and so somebody -- . . .

CHIEF JUSTICE ROBERTS: So then you turn on the lamp, you pick up your reading glasses --

CHIEF JUSTICE ROBERTS: . . . I'd like some idea about how long it takes.

Justice Alito also had questions on this. Possibly they weren't interested in this for themselves, but they felt that there was some Justice or Justices for which the answer to these questions mattered. It is a mistake to continue ignoring these empirical issues. We lucked out in the Heller decision on gunlocks, but don't expect that to always be the case.