quired states defending challenged regulations to provide extensive empirical and statistical evidence to support their proffered justifications.113
Resorting to the mere “incantation of a purpose to promote the public health or safety” is an intellectually empty means for a government to justify its challenged gun control regulations. As the Supreme Court has made clear in other contexts, those justifications must and should be supported by scientifically verifiable empirical evidence. If the Second Amendment is ultimately given an individual right interpretation, studies exploring the efficacy of gun control regulations in reducing gun-related crime and violence (or in promoting other compelling state interests) will be needed to accurately balance the true benefits of the regulation against the costs imposed by infringements on the right.
As demonstrated by the recent accumulation of academic support, as well as the Fifth Circuit’s decision in Emerson, an individual right interpretation of the Second Amendment is a distinct possibility for the future. Such an interpretation would have many implications for the judicial review of challenged gun control regulations. This appendix has identified some of the issues raised by an individual right interpretation. First, courts and commentators will be required to attempt a more concrete delineation of the scope of an individual right. A comprehensive definition of the amendment’s scope can be used to identify those regulations that impact constitutionally protected activity and those that do not. Second, once an area of protected activity is identified, criteria must be developed for determining when a regulation places so significant a burden on the exercise of the right as to amount to an “infringement.” Finally, courts will be required to engage in fact-intensive balancing tests, weighing the cost of an infringement against the benefits to the compelling state interest in reducing gun-related crime and violence, to determine what infringements are “reasonable” and thus permissible.
With regard to the balancing of interests in making “reasonableness” determinations, courts as well as legislatures will be greatly aided by scientifically verified empirical studies that test the efficacy of various gun control measures in achieving their purported objectives. In other balancing contexts—including First Amendment and dormant Commerce Clause jurisprudence—the Supreme Court has emphasized the need for more than just appeals to the public interest. The availability of empirical data will make this balancing more accurate and reliable.
See, e.g., Kassell, 450 U.S. at 672-75 (undertaking an extensive review of lower court findings regarding the economic impact and safety effects of state regulations restricting the length of vehicles operating on the state’s roads); Southern Pacific, 325 U.S. at 770-79 (undertaking an extensive review of the lower court findings regarding the impact of train length regulations on safety and commerce).