The New York Times’ Baseless Attack against a Second Amendment Advocate

By Charles C. W. Cooke

Thursday, June 20, 2024

 

On Tuesday, the New York Times published a remarkably long piece about a man named William English, who, despite being “a little-known political economist at Georgetown University,” has supposedly become “The Gun Lobby’s Hidden Hand in the 2nd Amendment Battle.” In their now-familiarly conspiratorial tone, the work’s authors, Mike McIntire and Jodi Kantor, reported that “one name keeps turning up in the legal briefs and judges’ rulings” within the gun-rights realm. That name is “William English, Ph.D.,” and it has now “been cited in a landmark Supreme Court case,” been referenced “in scores of lawsuits around the country,” and “figured prominently in a broad gun rights campaign that has transformed the law.”

 

Message: Reader, it’s his fault.

 

I must confess to being a little perplexed by all this. I do not mean this as a slight against Dr. English, who I’m sure is a pleasant and intelligent man, but as a keen student of this area of the law, I am baffled by some of the Times’ descriptions of the controversies that he’s supposedly swayed. To make their case, McIntire and Kantor focus in on English’s “largest-of-its-kind national survey that found gun owners frequently used their weapons for self-defense,” which, they claim, “has been deployed by gun rights activists to notch legal victories with far-reaching consequences.” But almost none of the rulings that they name revolved in any way, shape, or form around that research. What gives?

 

Of particular interest to McIntire and Kantor is the 2022 Bruen decision, about which they note:

 

The Firearms Policy Coalition, the busiest litigant of gun cases in the country, has made extensive use of Dr. English’s survey, including introducing it in the Supreme Court case New York State Rifle & Pistol Association v. Bruen. Dr. English’s work was cited in multiple briefs in that case, as well as in oral arguments and Justice Samuel A. Alito Jr.’s concurring opinion.

 

Literally understood, that is true. But it is also irrelevant, given that Bruen’s majority opinion did not rest upon empirical claims — let alone contemporary empirical claims — and that, insofar as English’s numbers played any role in that case, it was in a concurring opinion by Justice Alito that dismissed their relevance to the matter at hand. Alito began that concurrence with the observation that “much of the dissent seems designed to obscure the specific question that the Court has decided” and proceeded without interruption from that premise. The holding in Bruen, Alito confirmed, was that, under the Second Amendment and the Fourteenth Amendment that incorporated it,

 

A State may not enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding residents from carrying a gun for this purpose. That is all we decide.

 

More broadly, Alito confirmed that the Court’s majority had imposed a “history and tradition” test that required modern gun restrictions to have an analog at the time of the Founding or the Reconstruction Amendments. That being so, he explained, he had chosen to write separately to express his puzzlement at the intrinsically statistical arguments that had been offered up by the dissent. Here, for reference, is the section in which William English’s work is linked to by Alito:

 

The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1). 1

 

And here, for reference, is the footnote:

 

1 The dissent makes no effort to explain the relevance of most of the incidents and statistics cited in its introductory section (post, at 1–8) (opinion of BREYER, J.). Instead, it points to studies (summarized later in its opinion) regarding the effects of “shall issue” licensing regimes on rates of homicide and other violent crimes. I note only that the dissent’s presentation of such studies is one-sided. See RAND Corporation, Effects of Concealed-Carry Laws on Violent Crime (Apr. 22, 2022), https://www.rand.org/research/gun-policy/analysis/concealedcarry/violent-crime-html; see also Brief for William English et al. as Amici Curiae 3 (“The overwhelming weight of statistical analysis on the effects of [right-to-carry] laws on violent crime concludes that RTC laws do not result in any statistically significant increase in violent crime rates”); Brief for Arizona et al. as Amici Curiae 12 (“[P]opulation-level data on licensed carry is extensive, and the weight of the evidence confirms that objective, non-discriminatory licensed-carry laws have two results: (1) statistically significant reductions in some types of violent crime, or (2) no statistically significant effect on overall violent crime”); Brief for Law Enforcement Groups et al. as Amici Curiae 12 (“[O]ver the period 1991–2019 the inventory of firearms more than doubled; the number of concealed carry permits increased by at least sevenfold,” but “murder rates fell by almost half, from 9.8 per 100,000 people in 1991 to 5.0 per 100,000 in 2019” and “[v]iolent crimes plummeted by over half”).

 

It is extraordinarily misleading for the Times to imply that this throwaway had much to do with the decision that Alito joined — let alone that it “carried weight” or “buttressed the pro-gun position in the Bruen case.” Alito’s points here were (a) that “the dissent makes no effort to explain the relevance of most of the incidents and statistics cited in its introductory section” and (b) that, if the dissenters are going to go down that road despite its legal insignificance, they ought to acknowledge that there are as many findings on the other side of the ledger as on their own.

 

Alas, this does not deter McIntire and Kantor, who fixate on Alito’s mention of English’s work as if it were sorcery. Not only do they end the piece with an attempted mic-drop quote — ‘See also Brief for William English et al, he wrote” — but, despite having conceded that “there is no suggestion that Dr. English’s work alone tipped the balance,” they nevertheless try to insinuate otherwise by relating in the concluding four paragraphs that Justice Thomas’s draft of the majority opinion was not immediately persuasive to his colleagues and then citing Alito’s concurrence as if it had made all the difference.

 

It didn’t.

 

As for Dr. English himself, I am at a loss to see what he has done wrong. As the dissent in Bruen illustrates, there are still a good number of judges in this country who believe that Second Amendment cases ought to be decided by constitutionally unmoored cost-benefit analyses rather than by the historical, textual, or structural analyses that can be found in Heller, MacDonald, and Bruen. That being so, it ought to come as no surprise that Dr. English’s work “keeps turning up in the legal briefs” and at oral argument, or that judges keep citing and discussing that work — even if just to make the point that it is not materially important. To my knowledge, the Times has never complained about the introduction or consideration of studies showing the infrequent defensive use of firearms. Why here? Presumably, if one case is to be made in our nation’s adversarial judicial proceedings, the other will naturally follow.

 

Nor is the brief against Dr. English himself particularly clear. The Times confirms that “on Dr. English’s curriculum vitae and websites, there is no mention of guns among his many scholarly pursuits,” but then reports that he has said that “without tenure, he was reluctant to go public with firearms research because it was a subject ‘some people find controversial.’” (An approach the Times’s article ratifies.) The Times notes that “Dr. English served as an expert for pro-gun litigants in at least four lawsuits from 2018 to 2020, often charging $250 to $350 an hour.” Okay, and? Do his equivalents within the gun-control movement work gratis? The Times reports that “Donors Trust, a so-called dark money group supporting conservative and libertarian causes” sent nearly $12 million to “the Constitutional Defense Fund, a pro-gun nonprofit”; that (surprise!) it “disbursed almost all the money for ‘Second Amendment defense’”; and that some of that money went to “Cooper & Kirk, a law firm that has teamed up with both groups on gun cases and retained Dr. English in the Vermont lawsuit.” This might seem like a lot of cash, but it is small potatoes compared with, say, Michael Bloomberg — who, as the Times’ own reporting shows, “has underwritten the gun control movement with a total of $270 million since 2007,” who ushered in “a stark shift in culture and a rigid new command structure . . . that left some activists feeling they were pawns in matching red T-shirts,” and whose Everytown group filed an amicus brief in Bruen that was cited twice by the dissent.

 

As for the merits of Dr. English’s survey, his estimate of “1.67 million” defensive gun uses (DGUs) per year is certainly on the high side, but as the Times records, the “estimates range widely” in this area — from “below 100,000” all the way up to 2.5 million. Predictably, the Times quotes some caustic criticisms of Dr. English’s work from researchers who have come to different conclusions. And yet, far from squaring the circle, these assessments revivify the obvious question — which is why Dr. English, rather than anyone else who is involved with data used in Supreme Court cases, has been subjected to such a detailed takedown in America’s self-professed paper of record. I am not alone, I imagine, in suspecting that the answer is political, or in noticing that the Times’ treatment of academic work in this dimension is uneven at best and deceitful at worst. It is telling that the Times happily notes that the highest estimate of DGUs on record has been described by the RAND Corporation as “not plausible” but repeats the lowest number in that report without comment despite RAND having determined that it “almost certainly underestimates the true number.” Telling, too, is that the Times also ignores that, far from being some shoddy outlier, Dr. English’s work shares the same characteristic as every other DGU estimate in that we have absolutely no idea whether it’s even close to being correct. Ultimately, the RAND-authored meta-analysis to which the Times links concludes that:

 

The fundamental issues of how to define DGU and what method for obtaining and assessing those measurements is the most unbiased have not been resolved. As a result, there is still considerable uncertainty about the prevalence of DGU.

 

The result of which is that:

 

the existing evidence for any causal effect of DGU on reducing harm to individuals or society is inconclusive.

 

Reading these, one might well think that such uncertainty makes a strong case against figures such as Dr. English being used as dispositive sources in contemporary Second Amendment litigation. Well, here’s the good news: They’re not.