Since 1988, I have been writing for the Independence Institute, a Colorado think tank. Last year, I became a Senior Fellow at the Firearms Research Center. A strength of both organizations is that they always tell the truth. This is evidenced by how courts use our scholarship.
Following the U.S. Supreme Court’s June 23, 2022, Bruen decision, my scholarship has been cited in six opinions from the U.S. Circuit Court of Appeals, seventeen from U.S. District Courts, and five state and territorial courts. This brings my lifetime judicial cite figure to ninety-four, including seven Supreme Court cases. The citing opinions are about evenly split between opinions that declare a particular gun control to be unconstitutional versus opinions that uphold a particular control.
Consider, for example, my coauthored textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The coauthors are professors George Mocsary (Director of the Firearms Research Center), Nicholas Johnson, Gregory Wallace, and Donald Kilmer. A few weeks ago, the Eighth Circuit denied a petition for en banc rehearing in a case about whether a person can bring an as-applied challenge to 18 U.S. Code § 922(g)(1). The federal statute imposes a lifetime gun ban on anyone convicted of a felony or of a misdemeanor for which the maximum possible sentence could be longer than one year. The Eighth Circuit majority denied the petition. Four Judges, led by Judge David Stras, dissented. The dissent cited our textbook thrice. United States v. Jackson, No. 22-2870 (8th Cir. Aug. 30, 2023) (Stras, J., dissenting from denial of rehearing en banc).
Several weeks earlier, an en banc panel of the Third Circuit addressed the identical issue. There, the majority ruled in favor of the as-applied challenge. One of the dissenting opinions was written by Judge Cheryl Ann Krause. That opinion cited our textbook seven times. Range v. Attorney General United States of America, 69 F.4th 96, 122 n.51, 124 n.66, 68-71, 125 n.86 (3rd Cir. 2023) (en banc) (Krause, J., dissenting).
Similarly, my work has been cited in one case that held a ban on so-called “assault weapons” to be unconstitutional, and another case that upheld such a ban. Both cases were from U.S. District Courts in Illinois. Barnett v. Raoul, 2023 WL 3160285, at *9 (S.D. Ill., Apr. 28, 2023) (ban is unconstitutional); Bevis v. City of Naperville, 2023 WL 2077392, at *10 n.14 (N.D. Ill. Feb. 17, 2023) (ban is constitutional).
Likewise, I was cited in New York and New Jersey cases striking laws that made most of those states off-limits to licensed handgun carry, by declaring almost all the state to be “sensitive places” where carry is prohibited. Koons v. Platkin, 2023 WL 3478604, at *78, 106-07 (D.N.J. May 16, 2023); Christian v. Nigrelli, 2022 WL 17100631, at *9 n.19 (W.D.N.Y. Nov. 22, 2022); Hardaway v. Nigrelli, 2022 WL 16646220, at *11 (W.D.N.Y. Nov. 3, 2022).
Conversely, my work has been cited by courts in New York, Maryland, and the Virgin Islands in cases upholding various “sensitive places.” Maryland Shall Issue v. Montgomery County, Maryland, 2023 WL 4373260 *15-16 (D. Md. July 6, 2023); Goldstein v. Hochul, 2023 WL 4236164, at *11 & n.12 (S.D.N.Y. June 28, 2023); United States v. Walter, 2023 WL 3020321, at *6-7 (D.V.I. Apr. 20, 2023).
In a challenge to the campus gun ban at the University of Michigan, the state Supreme Court remanded the case for further consideration by the lower court; a concurring opinion by Justice Viviano, casting doubt on the constitutionality of the ban, cited me. Wade v. University of Michigan, 981 N.W.2d 56, 58 n.3 (Mich. 2022) (mem.) (Viviano, J., concurring). Then when the intermediate Court of Appeals redecided the issue, they upheld the ban and also cited me. Wade v. University of Michigan, 2023 WL 4670440, slip op. at 8 (Mich. App. July 20, 2023).
Because the U.S. Supreme Court’s Bruen decision cited my Charleston Law Review article on “sensitive places,” that article gets cited a lot by lower courts these days. But the courts don’t use me just for one important article; the post-Bruen cases have cited 15 different sources by me, including the Firearms Law textbook, congressional testimony, and various law review articles.
Judges pick and choose what they want to use. Sometimes I don’t agree with the outcome a particular opinion in which my work is cited. That’s okay. I write accurate articles, and judges use them as they see fit. Unlike some authors, I don’t trim inconvenient facts from my articles; I tell the whole truth.
Besides writing articles, I also write amicus briefs that argue for a particular outcome in a given case. In legal scholarship, however, the most important job is not to convince the reader of a point of view. The top objective is to help courts, other scholars, and the general public accurately understand a given topic. That requires presenting all the relevant facts and legal history, and not just the parts the author finds most congenial. It’s the right thing to do, and it is one of the reasons that Independence Institute and the Firearms Research Center have so much credibility across the philosophical spectrum.