The Daily - The Mysterious Gun Study That’s Advancing Gun Rights

Episode Date: June 20, 2024

In the battle to dismantle gun restrictions, raging in America’s courts even as mass shootings become commonplace, a Times’ investigation has found that one study has been deployed by gun rights activists to notch legal victories with far-reaching consequences.Mike McIntire, an investigative reporter for The Times, discusses the study and the person behind it.Guest: Mike McIntire, an investigative reporter at The New York Times.Background reading: Case after case challenging gun restrictions cites the same Georgetown professor. His seemingly independent work has undisclosed ties to pro-gun interests.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Rachel Abrams. This is The Daily. On the previous episode of the show, we talked to a lawyer coming up with creative arguments to get around laws favoring gun rights. Today, my colleague Mike McIntyre on the mysterious study helping to strengthen gun rights around the country and the person behind that study. It's Thursday, June 20th.

So, Mike, welcome to the show. Tell me, how did you first get started with this reporting? So, I've been covering gun issues for quite some time, and since the Supreme Court decision in 2022 in a case called New York State Rifle and Pistol Association v. Bruin, that really changed the landscape of firearms litigation in the country. It was probably the most consequential Supreme Court Second Amendment case in decades. And what it did was it really upended our previous understanding of the Second Amendment by

doing two things. One is it, for the first time, found a Second Amendment right to carry a firearm outside the home. And then secondly, and most importantly, established a new test for gun restrictions and whether or not they're in violation of the Second Amendment. Essentially, Bruin opened a door for litigants to argue that if a gun is commonly used for self-defense, it makes it harder to justify a law that would ban it. We begin with some breaking news tonight out of the courts. A major blow to gun control.

So as a result of the Bruin test that was created, you have seen this tsunami of litigation take place across the country. A Texas judge has ruled that people under felony indictments are allowed to carry guns. A Virginia judge has struck down federal laws banning the sale of handguns to adults younger than 21. indictments are allowed to carry guns. A Virginia judge has struck down federal laws banning the sale of handguns to adults younger than 21. In Washington state, a ban on high-capacity magazines just ruled unconstitutional.

You have many, many court cases happening attempting to knock down these gun restrictions. A federal judge has overturned California's three-decade-old ban on assault weapons. So, you know, in the course of looking at these hundreds of lawsuits, one thing stood out to me, which was somewhat surprising. I started seeing the same name over and over again, which I had not recognized before. It was a university professor named William English who had conducted a survey of gun owners in 2021.

And while we look at the evidence available, and we basically put forward three buckets of evidence to this court. One is that survey has been cited repeatedly in these lawsuits. In the Bill English data, over 60% said they own them for self-defense. His name was showing up over and over again. Professor William English, the Bill English survey data that is... Legal briefs and motions, oral arguments in appellate courts. We've put in the record that 64% of the people who own these Plus 10 magazines have bought them for the purposes of self-defense. Was there a survey?

There was a survey, Your Honor. And I was intrigued, mainly because I had never heard of him before. And what exactly did the study say? What made the study interesting and important was, first of all, the scope of it. It was the largest of its kind in many, many years, probably since the 1990s. He surveyed over 16,000 gun owners and asked several key questions. So one of them was trying to find out how often gun owners use their firearms for self-defense. And then two other questions dealt with whether or not they own AR-15 rifles, commonly referred to sometimes as assault weapons, or high-capacity magazines, which are magazines that hold 10 or more rounds.

And those are kind of the central parts of the survey. And what was the overall finding from the study? Did it tell us how many people were actually using guns, how frequently, how common? So the study found a few things. How common? So the study found a few things. One was that gun owners reported using their guns for self-defense approximately 1.7 million times a year. And in terms of the types of firearms that people like to own, it also found that AR-15s and high-capacity magazines are popular. And just by coincidence, those three areas are ones that are very important

to the gun lobby as litigation campaign. So if you, for instance, are able to show that they are what the court considers to be in common use for lawful purposes, then that also makes it harder to make the claim that they should somehow be banned or restricted. So these lawyers all over the country are citing a study that really bolsters the case that these semi-automatic weapons are common, that they often have high-capacity magazines, that they're basically used over and over again in self-defense, right? Yeah, I mean, it really serves the gun rights arguments pretty well, these findings.

Mm-hmm. And that caused me to take a closer look at just what the survey was about and who Dr. English was. I had never heard of him before, as I mentioned, you know, because I've written about gun issues for quite some time. And the universe of firearms scholars is actually pretty small. Many of them I talked to were unfamiliar with him as well. So there was just a little bit of a mystery here as to where he came from and what the origins of this survey was. So I started to look more into how the survey was done. And one thing that was curious to me was the survey had not been published in a peer-reviewed journal, which is not required, but it certainly lends credibility and strength to your findings if you were to do that.

Instead, it was uploaded to a website where basically anybody can upload an unpublished academic paper. He also didn't disclose the source of funding for it, which again is not required, but it's pretty standard in academic circles. So at this point, Mike, you're seeing some issues around transparency that are raising some alarm bells, but you're not really sure what to make of it yet, it sounds like. Yeah, I think that's true. I mean, it just raised more questions for me. And so one way to kind of really get a handle on what the survey says and how it was conducted is to look at the raw data. So somewhere there has to be a file with all of the questions that were asked and the responses from people. But he did not post the raw data along with his papers until about two years later. I went looking for it,

and I did manage to locate it and download it and looked at it myself. And what did you find? Well, a couple of things really kind of stood out. One was the questions that were asked of the respondents were phrased differently than how he portrayed them in the papers he wrote about his results so in the papers that he posted to this website explaining the findings of the survey he would describe the question asked as for instance you know have you ever used your gun for self-defense or have you ever owned an AR-15? But the actual questions that were presented to the respondents had a little preamble or an introduction which was not described in his papers. And I'll give you an example.

On the question of have you ever used your gun for self-defense, that was actually preceded by a statement that said many policymakers recognize that a large number of people participate in shooting sports, but question how often guns are used for self-defense. Oh, wow. There was a similar lack of transparency on another question that was asked about high-capacity magazines. And it started out by saying, you know, some have argued that few people actually want or use high-capacity magazines, and answering this will help us establish how popular these magazines are. That phrasing was not included in the papers that he posted describing his survey findings. The reason that's important is because social scientists will tell you that the phrasing of

the questions is crucial to determining how someone's going to answer. And if you start off by sort of giving a little preamble that implies that there are forces out there who might question how often you really use your gun or want your gun, it has a potential to skew the results in a certain direction. And in addition to that, there were just a couple of other things I found curious in looking at the raw data. I mean, one was the very broad definition he used of what it means to defend yourself with a gun. It allowed for, for instance, situations in which somebody didn't even show the gun or maybe even just told someone they had a gun.

And also, it didn't specify what time frame you may have done this. And so typically, if you try to figure out what the current state of events is for defensive gun use, you might ask, have you ever done it in the past year or past two years or whatever? This basically asked if you've ever done it in your lifetime. So you could have somebody who may have used a gun for self-defense back in the 1970s, you know, and that counts. Oh, wow. There was similar phrasing of questions, for instance, about whether you've ever owned an AR-15. And again, it was allowing people to count, you know, whether they had one 10, 20, 30 years ago, but maybe not today.

So what does this say about the actual numbers in the study? So the figure I mentioned of 1.67 million defensive gun uses a year, you know, talking to other experts on this, I mean, that is definitely on the high end of the range. There are other studies that put the number as less than 100,000 times a year. That's quite a range. Right. And this is where the methodology becomes important because the way the survey is conducted, the way the questions are asked, all of that affects the results. So, Mike, you find the study, it's showing up in gun cases all over the country where people are trying to overturn state gun laws. But it also seems like you're seeing some red flags with how the survey was actually conducted. So at this point, tell me what you're thinking. Well, I'm thinking pretty specifically, I need to know a lot more about this survey.

Where did it come from? Who financed it? And who is Dr. English? We'll be right back. So, Mike, what did you find out about Dr. William English? So, he's a political scientist and economist at Georgetown University. He was a research fellow at Harvard for a few years before joining Georgetown in 2016. He had a fairly established track record of published papers on issues of social science, the humanities, ethics, and public policy.

His studies have focused a lot on behavioral issues and what incentives are for people to behave in certain ways. And that's part of what his academic background is. So it doesn't sound like he has much of a track record on gun issues specifically. Right. At least publicly, there's nothing which indicates he had done research on guns, which made his debut with his survey just a little bit unusual. So, you know, I wanted to find out more about how he got involved with that. And the most obvious way to do that is to try to talk to him. So I emailed him. I didn't hear anything back, so I emailed him again.

I got no response. I tried calling his office at Georgetown. I found his cell phone number. Yeah, hi, Bill. This is Mike McIntyre at the New York Times. Called that, left a message. I've been trying to get a hold of you. I'm just working on a story about Second Amendment litigation. Nothing. I texted him. I didn't get a response. Maybe you can point me in the right direction. I was trying to get in touch with Professor Bill English.

I visited his office at Georgetown University. He wasn't there. And I finally decided just to visit his house. And so I walked up to the front door, rang the bell, waited, but there was no response. Wow. And, you know, I wasn't the only one having difficulty getting him to talk about the survey. I discovered in court records that the state of Washington,

who they were being sued by a gun rights group, which had cited Dr. English's survey, and lawyers for the state had tried to talk to him as well about the survey. They emailed him, they tried to call to him as well about the survey. They emailed him. They tried to call him. They sent a certified letter. And eventually, they issued a subpoena to try to get him to respond. And at some point, faced with the possibility that the court was going to compel his testimony,

the plaintiffs in that case agreed to withdraw all references to his research from their case in order to not have him submit the questions. This was starting to seem very strange to me. I mean, you've rarely heard of an academic who isn't eager to talk about their work. And in this particular case, especially, it was something that was gaining such influence and traction in the world of litigation. such influence and traction in the world of litigation. So there are just sort of a lot of things which were raising questions in my mind about why is he so reluctant to talk about this.

So at this point, it sounds like you're kind of at a reporting dead end, at least when it comes to getting Dr. English to explain his work to you and how he conducted the survey. Yes, we did find one instance where Dr. English did discuss his work publicly. It was on this podcast called The Reload, which is a firearms news site. Can you just tell people a little bit more about yourself before we begin? Yeah, Stephen, thank you for having me. So I'm a professor at Georgetown in our business school. And on the podcast, he says that his survey was part of research he was doing for a book project. You know, where are the most interesting differences in our assessment of sort of

current gun use, current gun abuse, gun ownership trends, gun... He hasn't published the book yet. He does talk about his methodology. If anything, I think this is a conservative estimate because... Right. Yeah. Actually, let's talk about that real quick. Actually says he thinks his estimate for self-defense may be a bit conservative. Thank you so much for joining us. And again, we'll have to have you back on once you're closer to publish date on that book. Great. Well, thank you, Steve, for having me. Great to have this conversation. But one thing I didn't talk about was how the research was funded. And it's a pretty standard

thing in social science research to disclose that, you know, because studies like this are not cheap. So I kept digging into the records I could find, and looking at case files, I discovered something which I had not previously known and was not widely publicly known, which is that Dr. English had served as a paid expert witness for pro-gun plaintiffs in at least four cases before he'd done the survey. So he might not actually be as impartial of a researcher as he presents himself to be. Well, you know, it's not uncommon for academic scholars to serve as witnesses in lawsuits for one side or the other. But here, with these cases, he was serving as a paid expert

for the pro-gun side of the litigation. And there was one case in particular which became important. And there was one case in particular which became important. It was in 2019 in Vermont, and an NRA-backed group was challenging a state ban on high-capacity magazines. And they wanted to do a. And he produced an expert report for them saying that high-capacity magazines are popular and commonly used for self-defense. thousand dollars to do the survey in the Vermont case. The reason that's important is because when he produced his national survey in 2021, he described that earlier Vermont survey as proof of concept for the national survey. What he doesn't say is that Vermont survey was actually commissioned by pro-gun plaintiffs in an NRA-backed lawsuit. That's a pretty important point to note, but that's not explained in his national survey, which he did later. So now you're starting to form a real picture of where some of Dr. English's funding is coming from. Yeah, it still didn't help me

understand, though, how the national firearm survey that he did was funded. And so to try to get a better understanding of that, I went back to the court record and looked at one of the filings that Dr. English did with a group called the Center for Human Liberty. It was an organization that joined with him in filing a court brief. And I just was curious about what that organization was. It sounds like a very lofty goal, the Center for Human Liberty. It turns out that this thing was funded and created by the founders of the Firearms Policy Coalition, which is a very aggressive litigation group behind a lot of the lawsuits that we see in courts trying to overturn gun restrictions. And that got me into the world of what's often referred to as dark money. The world of non-profit advocacy groups whose funding sources are often very opaque or anonymous.

And in digging into this, I eventually discovered yet another group called the Constitutional Defense Fund, which is, again, a type of group that seems to have come out of nowhere. It's not clear who runs it. Its address is a UPS store in Virginia. But looking at its tax filings, which are public, I was able to see that it received big infusions of money from somewhere in the lead up to the Supreme Court's Bruin case and dispersed that money as payments to a number of interesting recipients. The law firm that had paid Dr. English for his Vermont survey work, a board member of the NRA, the Firearms Policy Coalition, and interestingly, a grant to Dr. English himself for $58,000. Wow.

That was a very interesting revelation because this is a pro-gun group, the Constitutional Defense Fund. It lists one of its causes as Second Amendment defense. And here it was paying money to Dr. English right around the time that he was doing his national survey. Now, because he's not talking to me, I can't ask him anything about that, but I did go to Georgetown University to see if they had any knowledge of it.

They said they didn't, but they did make the point that as a faculty member, he can do research projects on his own. So, Mike, you're finding all of these connections, some of which seem kind of indirect, maybe a little bit obfuscated between Dr. English and some of these gun groups. But do we know if the money helped to actually fund Dr. English's national survey? It's unclear whether it played a direct role in the survey. And it's important to point out, of course, that the source of funding by itself doesn't necessarily mean there's anything wrong with the survey. But let's face it, there's a reason why you'd want to know who paid for it.

I mean, whenever you do a survey like this, there are assumptions and choices that are made about the framing of questions, the order in which they're asked, how the sample of respondents is selected, the methodology used to make sense of the findings. And even the smallest decisions one way or the other on those types of issues can skew the results. Right. There's a reason why researchers, academics typically disclose the source of their funding in papers or reports or other things that they put out. Right. And there's one other thing that we do know about the funding, and that is that among the payments that this pro-gun group had made was an $80,000 payment to a law firm that helped write and file an amicus brief in the Supreme Court's Bruin case for Dr. English. And it's important because, you know, an amicus brief is what they call a friend of the court

filing. And it's, in this case, designed to support the legal arguments being made by the plaintiffs before the Supreme Court. And this was the first time that his national firearm survey appeared in a court proceeding. Now, there are lots of amicus filings in Supreme Court cases. I don't think anyone can say that an amicus brief by itself has ever turned the tide in a Supreme Court decision. But the scholarship and the legal arguments in these briefs are paid attention to and given weight. In the case of Dr. English, it did carry a lot of weight because it was cited in at least five briefs that were filed in that case.

We will hear argument this morning in case 2843, New York State... And Dr. English and his research were invokes during oral arguments. I think that people of good moral character, who start drinking a lot, can get pretty angry at each other. And if they each have a concealed weapon, who knows? Justice Stephen Breyer, who is one of the court's liberal justices, raised the concern that by eliminating these restrictions, it's going to lead to more violence on the streets. What are we supposed to say, in your opinion, that is going to be clear enough that we will not produce a kind of gun-related chaos? So, Justice Breyer, I would sort of point you to two things

that maybe... And the plaintiff's attorney referred him to Dr. English's brief as a counterpoint. If you want to look at the empirical evidence, and I know, Justice Breyer, you asked about this, please also look at the English brief on the top side, because it's a very rigorous statistic.

And it also was cited by Justice Samuel Alito in his concurring opinion. So it's inarguably an instance in which this particular amicus filing did get the attention of people involved in that case. Why do you think that the court failed to give this study and Dr. English the kind of scrutiny that you did? Well, you know, my colleague on this story, Jody Cantor, has looked into this as well. And there really is no mechanism in the Supreme Court to vet things like this. And there's a couple of reasons for that. One is that there's a presumption that by the time a case gets to the Supreme Court level, evidentiary issues have already been worked out somewhere in the

lower courts. But that's not the case with amicus briefs. Amicus briefs could contain opinions and information from almost anybody. And there really is no system in the high court to analyze that, to vet it and figure out how legitimate it is. But, you know, after the ruling and after the study was cited by a Supreme Court justice, we do see a big increase in the number of times Dr. English's research shows up in lower court cases. So I think that the attention that was given to his work in the Supreme Court case helped propel his findings into the litigation campaign that followed the Bruin case. to the litigation campaign that followed the Bruin case. So this kind of seems like it's bringing us full circle. This study that has these issues that you've uncovered is helping gun advocates overturn gun laws all over the country,

not by working its way up through the court system and all these smaller cases, but by actually walking through the front door at the Supreme Court, the highest court in the land, and getting the rubber stamp from one of the justices even. That's right. So I'm curious, Mike, at the end of the day, where does the responsibility lie for keeping a study like this out of the courts and potentially becoming integral to changing gun laws? Well, I think in the end, the story of Dr. English and his survey is really the logical culmination of a decades-long effort by the gun lobby to change our understanding of the Second Amendment in such a way that it allows for this kind of litigation to proceed, knocking down gun restrictions across the country.

Because of Bruin, courts are having to make these decisions based on things like historical precedent and statistical analysis. And since, you know, judges aren't experts on these things, they turn to scholarship. And some of this scholarship, it turns out, has ties to pro-gun interests. And so you have courts making their decisions based on information of uncertain providence, if you will. And all of it is the product of this decades-long campaign by gun advocacy groups. So you're likely to see more and more of these kinds of academic papers and research and legal arguments being made because that's sort of the new territory of where we find ourselves. So there might be more studies like this and more gun scholars like Dr. English in the future.

Most definitely. Well, Mike, thank you so much. Thank you. We'll be right back. Here's what else you need to know today. Russian President Vladimir Putin and North Korean leader Kim Jong-un signed a mutual assistance pact. The deal revives a Cold War-era agreement that requires each country to defend the other against outside aggression. And it's the strongest signal yet that the agreement among the world's strongest nuclear powers to curb North Korea's nuclear program has fizzled.

And... Here's a pitch to Willie. Swung on in, deep to left. That one is way back. Way back. Way back. And, the legendary Giants center fielder Willie Mays died on Tuesday at age 93. Known as the Say Hey Kid, he was among the first generation of Black players to play in Major League Baseball in the 1950s. He was brilliant at every part of the game, at the plate, in the field, rounding the bases.

Some even said he was the greatest baseball player of all time. The game of baseball has been great to me. I have just about everything I need. The only thing that I'm looking for out of baseball now is that I can teach other kids to be as great an athlete as I was in my day. Today's episode was produced by Will Reed, Nina Feldman, and Claire Tennisgetter, with help from Michael Simon-Johnson.

It was edited by Michael Benoit, contains original music by Marian Lozano, Alicia Baetube, Rowan Nimisto, and Dan Powell, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Rachel Abrams. We'll see you tomorrow.