Amendment right. Nonetheless, courts have upheld such regulations as reasonable: the asserted state interest in protecting the public from individuals who may not have the capacity or judgment to possess and use a firearm properly clearly outweighs the extent of the infringement.


The balancing common to the various methods of heightened judicial scrutiny discussed above is only enhanced by empirical analysis of how well a challenged regulation actually does or does not achieve its purported state interest. The alternatives to relying on empirical data are either to trust the intuitions of judges or to completely defer to the judgments of the legislatures that enact the gun control measures. Both alternatives are unsatisfactory.

The Supreme Court has noted the importance of empirical data in resolving challenges to First Amendment restrictions. In Nixon v. Shrink Missouri Government PAC (2000), the Court noted that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised…. We have never accepted mere conjecture as adequate to carry a First Amendment burden….”109 In Renton v. Playtime Theatres (1986) another First Amendment case, the Supreme Court noted that, “The First Amendment does not require a city, before enacting … an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies on is reasonably believed to be relevant to the problem that the city addresses.”110

Empirical data are also important in the context of the dormant Commerce Clause balancing test. The Supreme Court has stated that state-imposed burdens on the free flow of interstate commerce cannot be justified by “simply invoking the convenient apologetics of the police power.”111 On another occasion the Court warned that “the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack. Regulations designed for that salutary purpose nevertheless may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid.”112 The Court has often re-


528 U.S. 377, 391-92 (2000).


475 U.S. 41, 51-52 (1986) (emphasis added).


Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 779-80 (1945) (quoting Kansas City S. Ry. v. Kaw Valley Dist., 233 U.S. 75, 79 (1914)).


Kassell v. Consol. Freightways Corp., 450 U.S. 662, 670 (1981).

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