Publication Date
December 4, 2018
George A. Mocsary
Second Amendment, Bayes, Belief Formation, Prior, Prior Knowledge, Personal Probabilities, Subjective Probabilities, Bayesian Probabilities, Process Majoritarianism, Majoritarianism, Case Assignment, Precedent, Defiance, Heller, McDonald, Arms
This invited Comment examines the quantitative analysis of post-District of Columbia v. Heller common law performed by Professors Eric Ruben and Joseph Blocher in From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller. Their groundbreaking and provocative work seeks to advance Second Amendment scholarship in two important ways. First, it aims to describe Second Amendment doctrine by quantifying aspects of that constitutional provision’s common law. Second, it challenges the view that lower courts have deliberately and systematically undercut both the right to bear and the right to keep arms as articulated by the U.S. Supreme Court in Heller and officially declared fundamental and applicable to the states in McDonald v. City of Chicago.

Professors Ruben and Blocher present a “distant reading” of post-Heller Second Amendment doctrine: An examination of Heller’s impact — and the particular proposition that courts are defying that landmark decision — based on scientific analysis of aggregate hard data on judicial rulings, rather than a parsing of the language of individual opinions. Scholars and practitioners alike would do well to pay close attention to the authors’ descriptive findings. They perform a valuable service by both confirming conventional wisdom and upending common misapprehensions.

But the authors’ secondary, albeit generally tentative, implication that courts are not under-enforcing Heller requires further analysis. This conclusion is driven primarily by the authors’ decision not to measure the final outcomes of Second Amendment challenges. It is heightened by the limitations of empirical studies, the knowledge that judges with even a modicum of self-control are capable of masking their hostility to arms rights, and my desire for information to complement that which is reported in the study. Professor Ruben and Professor Blocher’s study also presents evidence of judicial defiance that merits further investigation.
Recommended Citation
Mocsary, George A., A Close Reading of an Excellent Distant Reading of Heller in the Courts (September 1, 2018). Duke Law Journal Online, Vol. 68, No. 41, 2018, Available at SSRN:

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