//  4/19/17  //  Commentary

The Information Wars Series: Law operates as it is applied to a set of facts.  Policy is likewise made in response to or anticipation of a set of facts.  While facts are often reasonably in dispute, good policy and sound application of the law require a willingness to engage with facts.  Indeed, fruitful debate about legal principles and policy judgments often emerges only when we can agree—or stipulate to—the facts.  Yet the Trump administration has attempted to subvert or conceal data in a range of policy areas: from police violence, to LGBTQ rights and protections, to climate change.  In this series, we analyze the spheres in which the administration is undermining essential data, the prerequisite to sound—and democratically accountable—policymaking and to the protection of fundamental rights.

In three prior posts, we drew some parallels between the Trump administration’s apparent objection to asking LGBTQ-identification questions in federal surveys, the administration’s efforts to roll back federal-led investigations into police violence, and the administration’s attempts to bury climate change data.  These policies, we argued, are part of the administration’s war on information—efforts to deny the existence of a problem by disappearing the (inconvenient) facts. 

In fairness to President Trump, his administration did not invent this tactic.  Rather, the Trump administration’s approach to LGBTQ rights (and police violence and climate change) has been used repeatedly by lawmakers in other areas. Indeed, denying the existence of facts by refusing to investigate them is a key feature of the United States’ policy on gun violence. 

The don’t-investigate-so-you-can-deny policy on gun violence came about as a reaction to a 1993 New England Journal of Medicine article, “Gun Ownership as a Risk Factor for Homicide in the Home.” The article was based in part on some research funded by the Centers for Disease Control and Prevention (CDC). The article presented evidence that “guns kept in the home are associated with an increase in the risk of homicide by a family member or intimate acquaintance.”  That is, the article suggested that even independent of other factors, homes with guns have an increased risk of homicide.

The National Rifle Association (NRA) was not a fan of the article.  So much so that the NRA launched a campaign to punish the agency that had funded some of the research—the CDC.  The NRA lobbied to eliminate the CDC’s National Center for Injury Prevention, which had funded the research.  That campaign failed, but the NRA ultimately obtained a provision in the appropriations bill directing that “none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” Congress “also took $2.6 million from the CDC’s budget—the amount the CDC had invested in firearm injury research the previous year—and earmarked the funds for prevention of traumatic brain injury.”

The ambiguity in the appropriations’ provision, coupled with Congress’s punitive measures, have “kept the CDC from funding researchers that might study gun violence.” A 2012 Journal of the American Medical Association article quoted a doctor as saying:

"Precisely what was or was not permitted under the clause was unclear. But no federal employee was willing to risk his or her career or the agency's funding to find out."

CDC’s online guide for CDC-funded grants similarly states that “CDC interprets the language in the CDC's Appropriations Act to mean that CDC's funds may not be spent on political action or other activities designed to affect the passage of specific Federal, State, or local legislation intended to restrict or control the purchase or use of firearms.”

Congress expanded the limitations on gun-violence-related research in 2011.  The appropriations legislation for the National Institutes of Health (NIH) states that “none of the funds made available in this title may be used, in whole or in part, to advocate or promote gun control.”  That provision was also apparently introduced after the NRA lobbied to punish the NIH for daring to research the relationship between gun possession and violence.  The offending article in the American Journal of Public Health Article, Investigating the link between gun possession and gun assault,” had relied on some NIH-funded research.

The federal government’s inattention to the causes of gun violence affects some populations more than others. As Jane Stoever has written, “nearly one thousand women are murdered by their intimate partners with firearms each year.”  The school shooting that occurred in San Bernardino last week was a case of domestic violence.  The shooter, who had prior arrests for domestic violence, shot and killed his wife before turning the gun on himself.  He also shot and killed an 8-year old boy.

Some organizations, including “Gays Against Guns,” are trying to bring attention to the fact that gun violence disproportionately affects particular communities such as people of color, LGBTQ people, and religious minorities.  And they have highlighted the problems that access to guns has created for those populations.

The federal government’s censorship of research and information that might be used against the government’s agenda is fundamentally antidemocratic.  The research that the government is suppressing doesn’t tell us what the appropriate policy response is.  Rather, one’s views about the appropriate policy response will take in account individual values and preferences.  For example, some might think that gun control isn’t an effective way to lessen gun violence.


In a democracy, that’s a valid policy argument that should be aired.  But it can’t be debated honestly without a firm understanding of the facts, and the relevant information on each side of the scale.  When the federal government hides information from the public, we don’t just lose out on that information.  We lose out on the process of democratic deliberation that depends on that information.

Versus Trump: Two Guns Cases, And More

12/5/19  //  Uncategorized

First, real talk: yes, Versus Trump really did get a shoutout at the impeachment hearings on Wednesday! More on that next week. But on this week’s Versus Trump, Jason and Charlie discuss two guns cases. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Why Regulate Guns?

11/30/19  //  Commentary

When the Supreme Court considers an important Second Amendment case this week, it ought to consider a robust conception of the state's interest in regulating firearms. Properly understood, the state's interest in adopting gun laws includes much more than mere empirical studies about how effective gun laws are at preventing wrongful gun deaths.

Reva Siegel

Yale Law School

Joseph Blocher

Duke Law School

How Many Bullets Do You Need?

9/4/19  //  Commentary

Various jurisdictions that have banned large-capacity magazines define large-capacity differently. So how many bullets are enough under the Second Amendment?

Michael C. Dorf

Cornell Law School