The gun lobby’s secret weapon in legal battles

By Mike McIntire and Jodi Kantor, The New York Times Company

Tuesday, June 18, 2024 | 2 a.m.

In the battle to dismantle gun restrictions, raging in America’s courts even as mass shootings become commonplace, one name keeps turning up in the legal briefs and judges’ rulings: William English, Ph.D.

A little-known political economist at Georgetown University, English conducted a largest-of-its-kind national survey that found gun owners frequently used their weapons for self-defense. That finding has been deployed by gun rights activists to notch legal victories with far-reaching consequences.

He has been cited in a landmark Supreme Court case that invalidated many restrictions on guns, and in scores of lawsuits around the country to overturn limits on assault weapons, high-capacity magazines and the carrying of firearms. His findings were also offered in another Supreme Court case this term, with a decision expected this month.

English seems at first glance to be an impartial researcher interested in data-driven insights. He has said his “scholarly arc” focuses on good public policy, and his lack of apparent ties to the gun lobby has lent credibility to his work.

But English’s interest in firearms is more than academic: He has received tens of thousands of dollars as a paid expert for gun rights advocates, and his survey work, which he says was part of a book project, originated as research for a National Rifle Association-backed lawsuit, The New York Times has found.

He has also increasingly drawn scrutiny in some courts over the reliability and integrity of his unpublished survey, which is the core of his research, and his refusal to disclose who paid for it. Other researchers say that the wording of some questions could elicit answers overstating defensive gun use and that he cherry-picked pro-gun responses.

“I have been struck by the enormous attention and influence the William English paper has had,” said Joseph Blocher, co-director of the Center for Firearms Law at Duke University. “It just sort of came out of nowhere, posted online without going through formal peer review, and by a guy most of us had never heard of.”

English’s National Firearms Survey has figured prominently in a broad gun rights campaign that has transformed the law. The effort is driven by litigation and sometimes questionable scholarship, backed with millions of dollars in dark money flowing through nonprofits that often exist only on paper.

The lofty-sounding Center for Human Liberty, created just in time to file a 2021 pro-gun Supreme Court brief jointly with English, has no staff and uses a rent-by-the-hour office provider in Las Vegas. The Constitutional Defense Fund, with a UPS Store in Virginia as its address, has served as a conduit for anonymous donations to Second Amendment groups, law firms and English.

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

The Bruen decision in 2022 upended Second Amendment law by sweeping away any modern-day gun restrictions that could not be tied to a historical antecedent. The ruling led to a surge in firearms cases — to an annual average of 680 today compared with 122 in the decade before. Pro-gun rulings have also risen: The 74 issued last year make up one-quarter of all such rulings since 2000, according to researchers at the University of Southern California. Courts have struck down restrictions on high-capacity magazines in Oregon, handgun purchases in Maryland and assault weapons in California.

While expert research has always played a role in litigation, the demand for it in Second Amendment cases has risen since Bruen, sometimes testing the traditional standards of evidence and argument in the nation’s courts.

A California judge upbraided gun rights plaintiffs in March for seeming to avoid having English testify about his survey, calling it “a clear violation of the federal rules of evidence.” In December, a judge in Colorado accused plaintiffs of trying to “paper over” another firearms expert’s lack of qualifications. Appeals court judges for the 7th Circuit in Chicago last year criticized pro-gun legal arguments by plaintiff’s counsel as illogical, unusual and “pretty weird.”

The Supreme Court itself is confronted with the consequences of its Bruen decision in the pending case of United States v. Rahimi, which considers whether guns can be denied to someone subject to a family violence protective order. The justices are expected to rule this month on whether the absence of such restrictions centuries ago — the test established in Bruen — invalidates them today.

Among those filing briefs on the pro-gun side was English. He cited results of his online survey of gun owners to claim that “guns save many lives each year” and that protective orders could deprive the falsely accused of their right to defend themselves.

The Times made multiple attempts to interview English, who teaches at Georgetown’s business school, but he declined through a university spokesperson. He also did not respond to a list of questions.

Government lawyers tried to talk with him in December, after his research surfaced in a Firearms Policy Coalition lawsuit seeking to overturn Washington state’s ban on assault weapons. But English did not respond to emails, phone calls or a certified letter, and a process server bearing a subpoena could not find him at the university or his home, where someone inside “looked at the door, then turned away,” according to court records.

Faced with efforts to compel his testimony, the pro-gun plaintiffs in the Washington case chose to drop all references to his research.

A Quiet Interest in Guns

On English’s curriculum vitae and websites, there is no mention of guns among his many scholarly pursuits.

He earned degrees in math, economics and political science from Duke and later studied ethics at Oxford. Before joining the Georgetown business school faculty in 2016, English, now 43, was a humanities research fellow at Harvard. His academic focus has been ethical behavior and public policy — among his research interests is “how to lie with data science.”

In his few public comments about firearms, he says he got the idea for his national survey while working on a book. He told The Washington Examiner that “it kind of dawned on me that there’s a real opportunity here just as a scholar to contribute to this literature,” and in a podcast for The Reload, a firearms news site, he said he had “been thinking about this project in some ways for, like, 30 years.”

But his interest in firearms goes beyond writing a book, which he has never published. Although it is not mentioned in his research papers or professional credentials, court records reveal that 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.

In a 2019 deposition in one case, English expressed a personal interest in guns that included sports shooting, hunting and a lifetime NRA membership. He also said he had once brandished a gun to scare off an intruder at his home.

He said in the deposition that, without tenure, he was reluctant to go public with firearms research because it was a subject “some people find controversial.” Asked whether Georgetown administrators had questioned him about it, he said, “They don’t know about my interests in that.”

In another case, plaintiff’s lawyers asked him to survey Vermont gun owners. The lawsuit, backed by the NRA, challenged the state’s ban on high-capacity magazines. The plaintiffs sought to show that such magazines are popular, meeting the Supreme Court’s test of whether a firearm is in “common use” for lawful purposes, making it harder to restrict.

English, who testified that the plaintiffs’ lawyers paid him about $20,000 for his work, wrote a report in 2019 saying that an online questionnaire he devised showed that high-capacity magazines were popular among gun owners and useful for self-defense. The lawsuit was ultimately unsuccessful. But his survey would have far-reaching consequences.

Useful Findings

English’s work emerged at what would be an opportune moment for gun rights advocates. The Supreme Court’s balance shifted in 2018 with the arrival of Justice Brett Kavanaugh, a conservative who had established strong pro-gun credentials as an appellate judge. In the spring of 2020, he encouraged his colleagues to take on a case about how the Second Amendment applies outside the home, writing a concurring opinion as well as a more detailed memo to his colleagues, reviewed by the Times.

In April 2021, the court landed on Bruen, an NRA-backed challenge to a century-old New York law giving the state broad discretion over who could carry a handgun. By then, money was already pouring into gun rights organizations seeking to seize the moment. Much of it was untraceable, flowing through funds that serve as pass-throughs for billions of dollars to tax-exempt organizations every year.

One was Donors Trust, a so-called dark money group supporting conservative and libertarian causes. From 2020 to 2022, the group sent $11.8 million to the Constitutional Defense Fund, a pro-gun nonprofit whose website identifies none of its leaders and has a nonworking email address.

Tax filings show that the fund disbursed almost all the money for “Second Amendment defense,” including $715,000 to the Firearms Policy Coalition, $90,000 to an NRA official and $5.3 million to Cooper & Kirk, a law firm that has teamed up with both groups on gun cases and retained English in the Vermont lawsuit.

Also listed in the defense fund’s tax filings was a $58,750 grant to English at Georgetown. The university said it had no role, adding that faculty can “conduct independent research projects.”

Amid the established Second Amendment groups and experts filing briefs supporting the plaintiffs in Bruen, English soon appeared with his own, prepared by a law firm paid by the Constitutional Defense Fund. He filed it with the Center for Human Liberty, a nonprofit created a couple of months before by The Firearms Policy Coalition.

The coalition is a scrappy and aggressive litigation group, whose leader, Brandon Combs, once suggested that an assault weapons ban would lead to “armed resistance.” It has appeared in more court cases in recent years than the NRA, including through a legal brief cited in last week’s Supreme Court decision overturning a ban on bump stocks. Many of the coalition’s efforts involve English’s work.

English’s 2021 brief in the Bruen case debuted his “National Firearms Survey,” one of two gun studies he had posted just days earlier on the Social Science Research Network site, where virtually anyone can upload unpublished academic papers. In its introduction, he mentioned the Vermont survey, calling it a pilot that “served as a proof of concept for the national version,” but he described it simply as “part of a research project.”

He did not say it arose out of expert witness work in a pro-gun lawsuit, nor how the national survey was paid for, a standard disclosure in academic research.

In English’s findings, roughly one-third of 16,708 gun owners responded to an online questionnaire that they had used a firearm in self-defense; 30% reported having owned an AR-15-style rifle; and 48% said they had owned magazines holding more than 10 rounds. Together with the other paper he posted, asserting that carrying firearms in public did not increase crime, his work buttressed the pro-gun position in the Bruen case.

Questioning the Survey

English extrapolated from the survey responses that guns are used in self-defense 1.67 million times a year, a high figure that has resonated in the courts: A federal judge last year cited it as he invalidated California’s assault weapons ban.

Some experts consider it to be vastly overstated. In 2018, the Rand Corp. analyzed a similar claim from a 1990s study widely cited by gun rights activists, and concluded it was “not plausible.” Other estimates range widely, with several putting the annual number below 100,000.

The professor’s definition of self-defense was broad: Almost one-third of those who answered yes in the survey said they may have “verbally told someone” they had a gun, without showing one. In addition, the survey asked people if they had defended themselves with a gun ever in their lifetime, rather than during a defined period.

Dr. Matthew Miller, part of a team at Northeastern and Harvard universities that for years has conducted its own firearms survey, said some of English’s findings on self-defense “strain credulity” and his methodology yielded “absurd” estimates. Another researcher, Louis Klarevas of Columbia University, has criticized English’s work in expert reports for states defending against gun lawsuits and said he has not followed standard ethics practices for revealing funding sources.

“Disclosing survey sponsorship is vital to assuring that the survey was not designed or conducted to further the political or economic interests of particular entities,” Klarevas wrote last month in an Illinois case.

Other issues have also been raised. English did not detail how the online respondents were chosen or why they are representative of the country. And an examination of the raw data reveals that in reporting results, he omitted prefaces to survey questions, whose wording, according to some polling experts, essentially invited respondents to rebut supposed misconceptions about guns.

Elsewhere in his findings, English quotes about 30 gun owners attesting to the usefulness of large-capacity magazines for self-defense — but only two reported actually firing a gun, both at animals. He did not quote any of the hundreds of negative responses from gun owners, including: “There is no reason to have a magazine like that unless you’re fighting in a war.”

Turning Point

During oral arguments in Bruen, after Justice Stephen Breyer worried that creating a sweeping right to carry firearms in public could increase deaths of innocent people, the lead plaintiff’s lawyer, Paul Clement, a former U.S. solicitor general, referred him to English’s work as a counterpoint.

“The English brief, I think, is really worth taking a look at,” he said.

There is no suggestion that English’s work alone tipped the balance in the justices’ deliberations, which included input from many experts and legal scholars. But his credentials and findings carried weight. At least five briefs cited his research.

The draft opinion that Justice Clarence Thomas circulated to his colleagues in February 2022 was sweeping, with the potential to outlaw many common gun-control measures. The majority was slow to sign on. Chief Justice John Roberts and Kavanaugh requested modifications, according to people familiar with the deliberations, who requested anonymity because that process is intended to be secret.

By May, Thomas still had not mustered the five votes needed. Mass shootings that month in Buffalo, New York, and Uvalde, Texas, galvanized public attention anew on gun violence. It was not until June that his opinion prevailed, when Kavanaugh signed on but wrote his own more moderate concurrence, joined by the chief.

Alito’s concurrence went the other way: dismissing the significance of the Buffalo shooting, noting the New York law being overturned did not prevent it, and faulting Breyer for focusing only on research that concluded more guns in public contributed to more crime. There are other studies, Alito said, that suggest the opposite.

“See also Brief for William English et al,” he wrote.

This article originally appeared in The New York Times.