One Year Post-Bruen: An Empirical Assessment

*Eric Ruben, Associate Professor of Law, SMU Dedman School of Law; Fellow, Brennan Center for Justice at NYU School of Law. Rosanna Smart, Senior Economist, RAND Corporation; Affiliate Faculty, Pardee RAND Graduate School. Ali Rowhani-Rahbar, Professor of Epidemiology, University of Washington. We are grateful to Joseph Blocher, Jacob Charles, Darrell Miller, Bill Taylor, and Andrew Willinger, as well as participants in the 2023 Cooper-Walsh Colloquium at Fordham Law School and the 2023 National Research Conference for the Prevention of Firearm-Related Harms, for helpful comments on this project. Megan Haygood, Madeleine Nelson, Jared Rothenberg, and Libby Smith provided superb research assistance. This project was supported by Arnold Ventures.Show More

In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon bans to domestic abuser prohibitions to various limits on publicly carrying handguns. Those opinions can frequently be paired with others reaching the opposite conclusion. The extent to which Bruen shook up the Second Amendment landscape and has caused widespread confusion in the courts is starting to come into focus.

This Essay measures Bruen’s aftereffects by statistically analyzing a year’s worth of Second Amendment opinions. We coded more than 450 challenges for dozens of variables including both case and judge characteristics, resulting in a comprehensive post-Bruen Second Amendment dataset. The findings of our analysis provide an objective basis for assessing the upheaval wrought by Bruen and highlight both unanswered questions and immense challenges for Second Amendment doctrine in the coming years.

Introduction

In District of Columbia v. Heller, the Supreme Court announced that the Second Amendment protects an individual right to keep and bear arms for private purposes like self-defense, while emphasizing that the right—like all constitutional rights—is subject to various forms of regulation.¹ 1.554 U.S. 570 (2008).Show More The Court did not announce any overarching test for evaluating the constitutionality of gun laws but invited such doctrinal development in the lower courts. Thereafter, in well over 1,000 opinions, doctrine took shape and seemed to solidify, with judges achieving near-uniformity regarding both methodology² 2.See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022) (“[T]he Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.”); id. at 2174 (Breyer, J., dissenting) (“[E]very Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating whether a firearm regulation is consistent with the Second Amendment.”).Show More and outcomes.³ 3.Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018) [hereinafter Ruben & Blocher, From Theory to Doctrine] (empirically analyzing post-Heller Second Amendment case law).Show More But in New York State Rifle & Pistol Association v. Bruen, the Supreme Court declared that the consensus doctrine was wrongheaded,⁴ 4.Bruen, 142 S. Ct. at 2127 (“Despite the popularity of this two-step approach, it is one step too many.”).Show More announcing a novel and heavily originalist approach to evaluating modern gun laws. Bruen gave the Second Amendment a second wind, and thus set up a remarkable “natural experiment”: How does a dramatic methodological overhaul affect constitutional litigation and success rates?

Legal scholarship after Bruen has focused primarily on analyzing the Supreme Court’s historical-analogical test. Bruen cast aside a conventional methodological approach that combined textual and historical analysis with consideration of contemporary costs and benefits, instead announcing that Second Amendment decisions should be based solely on textual and historical analyses.⁵ 5.Id. (“[H]ellerand McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”).Show More Particularly, the Supreme Court indicated that the government must point to analogous regulations from the era of the Second Amendment’s enactment in 1791, or from the era of the Fourteenth Amendment’s enactment in 1868, to justify the constitutionality of modern-day gun regulations.⁶ 6.Id. at 2131–34. Justice Amy Coney Barrett wrote a concurring opinion to emphasize that the majority did not resolve the proper temporal focus for Bruen’s historical-analogical test. Id. at 2162–63 (Barrett, J., concurring). Lower court judges have diverged on this point. CompareNat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322 (11th Cir.), reh’g en banc granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023) (“[H]istorical sources from the Reconstruction Era are more probative of the Second Amendment’s scope than those from the Founding Era.”), with United States v. Price, 635 F. Supp. 3d 455, 460 (S.D.W. Va. 2022) (“[The Second Amendment] analysis is constrained by the Supreme Court’s definition of ‘historical tradition’ as the time of the founding and ratification of the Second Amendment in 1791.”).Show More Scholarship has compared Bruen’s “originalism-by-analogy” with existing originalist approaches,⁷ 7.See, e.g., Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 102–03 (2023) [hereinafter Blocher & Ruben, Originalism-by-Analogy] (describing debate).Show More assessed Bruen’s departure from other constitutional rights doctrines,⁸ 8.See, e.g., Timothy Zick, Second Amendment Exceptionalism: Public Expression and Public Carry, 102 Tex. L. Rev. 65, 67 (2023) (rejecting Supreme Court’s claim that Bruen’s approach comports with First Amendment free-speech doctrine).Show More critiqued Bruen’s test as underspecified,⁹ 9.See, e.g., Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67, 76 (2023).Show More and taken issue with Bruen’s reading of the historical record.¹⁰ 10.See, e.g., Andrew Willinger, The Territories Under Text, History, and Tradition, 101 Wash. U. L. Rev. 1, 20 (2023); Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 692 (2023); Saul Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/‌2022/‌06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions [https://perma.cc/HN2Q-H64F].Show More

But Bruen also offers a unique opportunity for empirical legal analysis. Within days of Bruen, on Westlaw, red flags accompanied nearly every post-Heller Second Amendment case, a warning that those decisions were no longer good law.¹¹ 11.See Blocher & Ruben, Originalism-by-Analogy, supra note 7, at 114 n.80.Show More And litigants ranging from individual gun owners to criminal defendants to gun rights advocacy groups heeded that signal, bringing challenge after challenge, leading to 326 Second Amendment opinions ruling on 464 claims in the span of one year. Bruen effectively restarted the Second Amendment litigation clock, and the resulting opinions make up a discrete data source.

This Essay analyzes that data to take an initial measurement of the post-Bruen world.¹² 12.We join one other published empirical analysis conducted after Bruen. See Charles, supra note 9. Our results corroborate Charles’s excellent qualitative analysis and build on it by including state opinions, additional variables including attitudinal variables, and more advanced statistical analysis. As with any comparison of empirical studies, it is important to keep in mind methodological differences. One worth mentioning because it affects our overall claim count is that we separated claims more granularly, for example, by separately counting each challenge to different sensitive places within a single opinion. Cf. id. at 124 n.346 (grouping claims by topic rather than separating out each individual provision).Show More Doing so at this early stage has a key benefit of capturing judicial work from first principles. Many empirical legal analyses focus solely on appellate cases.¹³ 13.See, e.g., Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right?, 68 Duke L.J. Online 57, 59 (2018).Show More But we see value in providing a snapshot of the first judicial attempts to implement Bruen, before appellate precedent builds up and stare decisis crowds out the sort of historical-analogical reasoning Bruen mandates.¹⁴ 14.As Justice Benjamin Cardozo put it, precedent “fix[es] the point of departure from which the labor of the judge begins.” Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921); see also Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 1 (2016) (“Precedent poses a notoriously difficult problem for originalists.”).Show More Bruen places novel and, in many ways, extraordinary demands on trial courts, including the evaluation of centuries of historical evidence. Now is a good time to take stock of the consequences of announcing such a new Second Amendment test by assessing the relationship between case characteristics, judge characteristics, and success rates, and then comparing our findings with pre-Bruen statistics.

Of course, empirical legal analysis has well-known limitations and cannot answer all questions about evolving Second Amendment doctrine. Setting outcomes as the dependent variable and omitting deeper consideration of the reasoning judges provide for those outcomes omits a key aspect of the judicial process.¹⁵ 15.See H. Jefferson Powell, A Response to Professor Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 Duke L.J. 1725, 1727 (2009) (observing the importance of considering “[t]he form and content of the judicial opinion” in addition to outcomes).Show More Moreover, codable proxies for multitudinous concepts such as using the party of nominating president for ideology¹⁶ 16.See generally Adam Bonica & Maya Sen, Estimating Judicial Ideology, 35 J. Econ. Persps. 97 (2021) (assessing strengths and drawbacks of different measures of judicial ideology).Show More or using a binary “relief granted at least in part” for “success” overlook finer distinctions. And, of course, stopping our data collection at the one-year mark after Bruen necessarily omits developments after that cut-off point. Similar drawbacks inhere in all legal empirical projects, and ours should be qualified accordingly.

We nonetheless believe empirical legal studies are valuable for raising questions about constitutional litigation, and Second Amendment litigation in particular, even if they do not always point to obvious answers. They can “help[] inform litigants, policymakers, and society as a whole about how the legal system works.”¹⁷ 17.Theodore Eisenberg, Why Do Empirical Legal Scholarship?, 41 San Diego L. Rev. 1741, 1741 (2004).Show More And this is especially so in the Second Amendment context in light of Bruen’s extraordinary doctrinal upheaval and the pending Second Amendment case before the Supreme Court, United States v. Rahimi.¹⁸ 18.United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915).Show More An express rationale in Bruen for prescribing a new test of historical analogy was to make the doctrine “more administrable” than conventional means-ends scrutiny.¹⁹ 19.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022).Show More The majority dismissed as “unpersua[sive]” the dissent’s complaint that historical analogy would be difficult to apply by lower court judges, who would, at worst, rely on their policy preferences to make decisions.²⁰ 20.Id. at 2130 n.6; id. at 2179–80 (Breyer, J., dissenting).Show More Analyzing post-Bruen outcomes in similar cases is one way to test whether the early returns support the Bruen majority’s rejection of the dissent’s concerns.

And, indeed, our analysis demonstrates Bruen’s seismic impact. The pace of litigation after the opinion has far surpassed the tremendous pace of litigation after Heller.²¹ 21.See infra Section II.A.Show More And litigants have good reason for alacrity: the success rate of Second Amendment claims also far surpasses the post-Heller success rate.²² 22.See infra Section II.B.Show More But readily apparent fault lines, and widespread inconsistencies, have also emerged.²³ 23.See infra Section II.C.Show More Judicial ideology is one explanation for discrepancies, as a statistically significant gap exists between the rate that Republican- and Democratic-nominated judges grant Second Amendment relief.²⁴ 24.See infra Section II.D.Show More Other factors, such as the type of law being challenged, also matter, with challenges to sensitive place restrictions having a particularly high likelihood of success.²⁵ 25.See infra Part III.Show More Still, our findings suggest that Bruen has not meaningfully constrained judges—indeed, judicial ideology is predictive of outcomes after Bruen, even when taking into account other case characteristics.

This Essay proceeds in three Parts. Part I describes our methodology. Part II presents our data and offers a descriptive analysis. Part III reports the results of our regression analysis.

1.  554 U.S. 570 (2008). ↑
2.  See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022) (“[T]he Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.”); id. at 2174 (Breyer, J., dissenting) (“[E]very Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating whether a firearm regulation is consistent with the Second Amendment.”). ↑
3.  Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018) [hereinafter Ruben & Blocher, From Theory to Doctrine] (empirically analyzing post-Heller Second Amendment case law). ↑
4.  Bruen, 142 S. Ct. at 2127 (“Despite the popularity of this two-step approach, it is one step too many.”). ↑
5.  Id. (“[H]eller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”). ↑
6.  Id. at 2131–34. Justice Amy Coney Barrett wrote a concurring opinion to emphasize that the majority did not resolve the proper temporal focus for Bruen’s historical-analogical test. Id. at 2162–63 (Barrett, J., concurring). Lower court judges have diverged on this point. Compare Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322 (11th Cir.), reh’g en banc granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023) (“[H]istorical sources from the Reconstruction Era are more probative of the Second Amendment’s scope than those from the Founding Era.”), with United States v. Price, 635 F. Supp. 3d 455, 460 (S.D.W. Va. 2022) (“[The Second Amendment] analysis is constrained by the Supreme Court’s definition of ‘historical tradition’ as the time of the founding and ratification of the Second Amendment in 1791.”). ↑
7.  See, e.g., Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 102–03 (2023) [hereinafter Blocher & Ruben, Originalism-by-Analogy] (describing debate). ↑
8.  See, e.g., Timothy Zick, Second Amendment Exceptionalism: Public Expression and Public Carry, 102 Tex. L. Rev. 65, 67 (2023) (rejecting Supreme Court’s claim that Bruen’s approach comports with First Amendment free-speech doctrine). ↑
9.  See, e.g., Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67, 76 (2023). ↑
10.  See, e.g., Andrew Willinger, The Territories Under Text, History, and Tradition, 101 Wash. U. L. Rev. 1, 20 (2023); Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 692 (2023); Saul Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/‌2022/‌06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions [https://perma.cc/HN2Q-H64F]. ↑
11.  See Blocher & Ruben, Originalism-by-Analogy, supra note 7, at 114 n.80. ↑
12.  We join one other published empirical analysis conducted after Bruen. See Charles, supra note 9. Our results corroborate Charles’s excellent qualitative analysis and build on it by including state opinions, additional variables including attitudinal variables, and more advanced statistical analysis. As with any comparison of empirical studies, it is important to keep in mind methodological differences. One worth mentioning because it affects our overall claim count is that we separated claims more granularly, for example, by separately counting each challenge to different sensitive places within a single opinion. Cf. id. at 124 n.346 (grouping claims by topic rather than separating out each individual provision). ↑
13.  See, e.g., Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right?, 68 Duke L.J. Online 57, 59 (2018). ↑
14.  As Justice Benjamin Cardozo put it, precedent “fix[es] the point of departure from which the labor of the judge begins.” Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921); see also Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 1 (2016) (“Precedent poses a notoriously difficult problem for originalists.”). ↑
15.  See H. Jefferson Powell, A Response to Professor Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 Duke L.J. 1725, 1727 (2009) (observing the importance of considering “[t]he form and content of the judicial opinion” in addition to outcomes). ↑
16.  See generally Adam Bonica & Maya Sen, Estimating Judicial Ideology, 35 J. Econ. Persps. 97 (2021) (assessing strengths and drawbacks of different measures of judicial ideology). ↑
17.  Theodore Eisenberg, Why Do Empirical Legal Scholarship?, 41 San Diego L. Rev. 1741, 1741 (2004). ↑
18.  United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915). ↑
19.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022). ↑
20.  Id. at 2130 n.6; id. at 2179–80 (Breyer, J., dissenting). ↑
21.  See infra Section II.A. ↑
22.  See infra Section II.B. ↑
23.  See infra Section II.C. ↑
24.  See infra Section II.D. ↑

25.  See infra Part III. ↑