Technology, Tradition, and “The Terror of the People”

Darrell A.H. Miller,* Alexandra Filindra** & Noah Kaplan***

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can still inform meaningful gun policy, but the boundaries that make such studies legally significant are now set by Bruen‘s text, history, tradition, and analogy–only approach.

This Article uses an original survey experiment to measure the “chill” caused by public weaponry, and connects those experimental findings to the long-standing tradition of regulating weapons to protect the peace and to prevent “the terror of the people.” The Article shows that, far from being irrelevant, modern empirical data can help bridge the gap between modern problems and technology and the historical record of gun rights and regulation.

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© 2024 Darrell A.H. Miller, Alexandra Filindra & Noah Kaplan.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Melvin G. Shimm Distinguished Professor of Law, Duke University School of Law.

**Associate Professor, Political Science and Psychology, University of Illinois Chicago.

***Clinical Assistant Professor of Political Science, University of Illinois Chicago.  Our thanks to Joseph Blocher, Jake Charles, Eric Ruben, and Andrew Willinger, who reviewed drafts of this article.  Thanks also to the workshop participants at Northwestern Pritzker School of Law for their engagement and suggestions for revision.  Thanks to Sydney Colopy for her great research assistance.