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VIRGINIA LAW REVIEW
ONLINE
VOLUME 110 FEBRUARY 2024 20–51
ESSAY
ONE YEAR POST-BRUEN: AN EMPIRICAL ASSESSMENT
Eric Ruben, Rosanna Smart & Ali Rowhani-Rahbar*
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
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
2024] One Year Post-Bruen 21
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
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 methodology
2
and outcomes.
3
But in New York State Rifle
& Pistol Association v. Bruen, the Supreme Court declared that the
consensus doctrine was wrongheaded,
4
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
Particularly, the Supreme Court
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
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22 Virginia Law Review Online [Vol. 110:20
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
Scholarship has
compared Bruen’s “originalism-by-analogy” with existing originalist
approaches,
7
assessed Bruen’s departure from other constitutional rights
doctrines,
8
critiqued Bruen’s test as underspecified,
9
and taken issue with
Bruen’s reading of the historical record.
10
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
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
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), 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.
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2024] One Year Post-Bruen 23
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
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
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
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
Moreover, codable proxies for
multitudinous concepts such as using the party of nominating president
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).
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24 Virginia Law Review Online [Vol. 110:20
for ideology
16
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
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
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
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
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
And litigants have good reason for alacrity: the
success rate of Second Amendment claims also far surpasses the post-
Heller success rate.
22
But readily apparent fault lines, and widespread
inconsistencies, have also emerged.
23
Judicial ideology is one explanation
for discrepancies, as a statistically significant gap exists between the rate
that Republican- and Democratic-nominated judges grant Second
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.
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Amendment relief.
24
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
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.
I. M
ETHODOLOGY
Our goal was to evaluate every Second Amendment challenge in every
Second Amendment opinion—state, federal, trial, and appellate—issued
between Bruen and Bruen’s one-year anniversary.
26
To do so, we created
searches in Westlaw for opinions including the terms “Bruen” and
“Second Amendment.”
27
Our decision to include state court opinions was
driven by the fact that most Second Amendment litigation before Bruen
occurred in state, not federal, courts,
28
yet most Second Amendment
empirical work focuses solely on federal cases.
29
However, our subset of
24
See infra Section II.D.
25
See infra Part III.
26
Our analysis proceeds at the challenge, not opinion level, given that courts frequently rule
on various challenged policies within a single opinion—upholding some gun-free zone
designations and striking down others, for example.
27
We began coding opinions in mid-March 2023. As a result, to carry our data through to
Bruen’s one-year anniversary on June 23, 2023, we ran a search twice—in mid-March and in
late June. The precise searches were:
advanced: “second amendment” & “bruen” & DA(aft 06-23-2022 & bef 03-14-2023)
advanced: “second amendment” & “bruen” & DA(aft 03-14-2023 & bef 06-23-2023)
To capture opinions that include “Second and Fourteenth Amendments” but not “Second
Amendment,” we ran an additional search for:
advanced: “second #and fourteenth amendments” & “bruen” & DA(aft 06-23-2022 & bef
06-23-2023)
The 2018 study that we use as a reference for comparing post-Bruen case law with post-
Heller case law used a search that differed in some respects, including capturing opinions that
did not include reference to Heller but did include reference to “arms” or “firearm.” Ruben &
Blocher, From Theory to Doctrine, supra note 3, at 1457 & n.111. In part, this was because
the date range for the 2018 study spanned about eight years, and some of the later opinions in
that date range did not reference Heller. We did not anticipate a similar issue for the immediate
post-Bruen opinions, which we assumed would mention “Bruen.”
28
Id. at 1473.
29
See, e.g., Michael P. O’Shea, The Steepness of the Slippery Slope: Second Amendment
Litigation in the Lower Federal Courts and What It Has to Do with Background
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26 Virginia Law Review Online [Vol. 110:20
state trial court opinions was clearly incomplete—just nine opinions, all
out of New York, which was less than the number of state appellate
opinions. As a result, we omitted state trial court opinions from our
analysis.
Our initial data pull was overbroad, so student research assistants
scrubbed the list of opinions for false positives—those opinions that did
not involve a Second Amendment analysis.
30
Deciding on what counts as
a false positive is complicated by the numerous ways in which Second
Amendment questions arise and get decided.
31
Coders deployed an
approach to culling false positives comparable to the approach deployed
in the post-Heller analysis that was our primary comparator.
32
Coders also
passed through the opinions to code basic case-caption and judicial
information, such as whether the opinion was issued by a state or federal
court and, for federal judges, the party of the nominating president.
33
The coders then closely reviewed each opinion to populate other
variables, including whether the case was civil or criminal; if civil,
whether the litigant raising the Second Amendment challenge was an
organizational plaintiff;
34
the category of the challenged policies;
35
the
Recordkeeping Legislation, 46 Conn. L. Rev. 1381, 1410 (2014) (examining post-Heller
litigation in the lower federal courts); Samaha & Germano, supra note 13, at 61–62 (analyzing
the success of Second Amendment challenges in the federal circuit courts); Charles, supra
note 9, at 122 (reviewing lower federal court attempts to apply Bruen).
30
Past scholarship has found law students capable of accurately coding a wide range of
variables, Charles A. Johnson, Content-Analytic Techniques and Judicial Research, 15 Am.
Pol. Q. 169, 182–96 (1987), and we deployed statistical reliability testing to check for
consistency. Moreover, using student coders mitigates social-science critiques of author
coding. See Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial
Opinions, 96 Calif. L. Rev. 63, 111 (2008) (“From a social science perspective, [researchers
coding their own datasets] is the height of unmitigated subjectivism . . . .”).
31
See Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1461–62 (“Judicial
opinions decide Second Amendment questions with varying degrees of definiteness, making
it difficult to craft a set of rules that would encompass every scenario.”).
32
See id. at 1460–62. False positives included cases dismissed on justiciability or procedural
grounds, as well as cases that did not include a Second Amendment analysis for another
reason, such as those remanded for further hearings in light of Bruen.
33
The coders looked for the nominating president for the judge’s post at the time of coding.
34
For civil cases with multiple plaintiffs, we asked whether any of the plaintiffs was an
organization. If the answer was “yes,” we coded the opinion as having an organizational
plaintiff.
35
We split claims into eight categories and 81 subcategories.
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2024] One Year Post-Bruen 27
outcome;
36
and whether the case cited to Heller’s list of “presumptively
lawful” regulations.
37
Intercoder reliability was tested by recoding a 13-percent subset of
opinions initially coded by a different coder. We then compared the
answers, which had greater than 90-percent agreement across all
variables. If inconsistencies became apparent when analyzing the data, we
would ask research assistants to take a second look at the seemingly
inconsistent data points and recode if necessary. In addition, we compared
our list of federal district court “successes” with the similar list created by
Jacob Charles for his analysis.
38
This review revealed substantial overlap.
Coders took a closer look at any discrepancies and adjusted our case
coding if warranted. Even with these processes in place, which go beyond
the precautions customarily taken in empirical legal projects,
39
errors are
inevitable. Our analysis strives for an “appropriate level of modesty.”
40
After coding the Second Amendment challenges, we conducted
descriptive statistics, bivariate tests, and regression analyses to
quantitatively analyze the results and identify patterns and characteristics
associated with higher likelihood of litigation success. We first provide
distributional information on the characteristics of the provisions that
have been challenged in the first year after Bruen, and those that have
been granted relief in part or in full, using chi-squared tests to assess the
extent to which different characteristics are significantly associated with
differential likelihood of litigation success.
41
We then conduct a series of
36
Similar to our comparator study, we counted as a “success” any outcome by which the
requested Second Amendment relief was granted in whole or in part. See Ruben & Blocher,
From Theory to Doctrine, supra note 3, at 1462.
37
District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008). Heller referred to
these “presumptively lawful” regulations as “longstanding.” Id. To determine if a case cited
to this passage, coders searched each opinion in the dataset for the term “longstanding,” and
then confirmed whether the term “longstanding” appeared in reference to Heller’s discussion.
38
See Charles, supra note 9, at 127.
39
See Hall & Wright, supra note 30, at 112 (observing that fewer than 15 percent of
systematic reviews include statistical testing for intercoder reliability).
40
Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies that Attempt to
Understand the Factors Affecting Appellate Decisionmaking, 58 Duke L.J. 1895, 1966 (2009)
(“In order for empirical scholarship to serve its highest function, it is of the utmost importance
that scholars in this field acknowledge the limits of their research and maintain an appropriate
level of modesty in their claims.”).
41
Statistical significance is reported using probability values, or p-values. A commonly
accepted threshold for statistical significance is p < 0.05. See generally Guido W. Imbens,
Statistical Significance, p-Values, and the Reporting of Uncertainty, 35 J. Econ. Persps. 157
(2021) (describing p-values).
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28 Virginia Law Review Online [Vol. 110:20
multivariate regression analyses to test for significant associations
between claim characteristics and the probability that a challenge is
granted relief.
Finally, given the observed variation in post-Bruen case law outcomes,
we assess the extent to which judge-specific variables have additional
predictive value. For cases heard in federal district courts, we expand our
previous regression to incorporate attitudinal variables such as the party
of the appointing president and the identity of the appointing president, as
well as the judge’s ABA rating. For federal appellate cases, we
disaggregate panel outcomes into judge votes and then focus on
descriptive analysis given the small sample size (n=54), which precludes
meaningful regressions.
II. D
ESCRIPTIVE ANALYSIS
Our final dataset included 326 opinions involving 464 challenges. Of
those challenges, 21 percent (98/464) were successful, meaning that
requested relief was granted at least in part. In this Part, we provide a
snapshot of Second Amendment litigation in the year after Bruen, which
we compare to the most comprehensive post-Heller study.
42
We then
analyze characteristics of successful and unsuccessful challenges. Our
analysis is at the challenge (or claim) level, not the opinion level. When
we report opinion-level data, we make that explicit.
42
Ruben & Blocher, From Theory to Doctrine, supra note 3.
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Table 1. Descriptive Statistics on Challenges
in the First Year Following Bruen
All challenges Federal district Federal appellate
n % granted
relief
Chi-
squared
p-value
n % granted
relief
Chi-
squared
p-value
n % granted
relief
Chi-
squared
p-value
All 464 21% 420 21% 14 21%
Jurisdiction
Federal 434 21%
p=0.537
420 21%
N/A
14 21%
N/A
State 30 17% 0 N/A 0 N/A
Federal circuit (if federal)
1st Circuit 7 0%
p<0.001
7 0%
p<0.001
0 N/A
p=0.087
2nd Circuit 67 57% 67 57% 0 N/A
3rd Circuit 50 62% 48 60% 2 100%
4th Circuit 45 4% 45 4% 0 N/A
5th Circuit 52 15% 50 14% 2 50%
6th Circuit 27 4% 27 4% 0 N/A
7th Circuit 40 13% 37 14% 3 0%
8th Circuit 34 6% 30 7% 4 0%
9th Circuit 63 3% 62 3% 1 0%
10th Circuit 27 15% 26 15% 1 0%
11th Circuit 20 0% 19 0% 1 0%
D.C. Circuit 2 0% 2 0% 0 N/A
Civil or criminal case
Civil 150 55%
p<0.001
138 57%
p<0.001
3 67%
p=0.031
Criminal 314 5% 282 4% 11 9%
Plaintiff (among civil cases)
Organizational 57 63%
p=0.102
54 65%
p=0.115
2 50%
p=0.386
Individual 93 49% 84 51% 1 100%
Trial or appellate
Trial 420 21%
p=0.616
84 51%
N/A
0 N/A
N/A
Appellate 44 18% 0 N/A 14 21%
Cite Heller
Cites Heller 297 19% p=0.175 282 20% p=0.169 6 33% p=0.347
Type of law challenged
Public carry 39 33%
p<0.001
25 32%
p<0.001
0 N/A
p=0.571
Who restrictions 232 6% 215 6% 11 18%
What restrictions 48 23% 47 23% 0 N/A
Where restrictions 81 69% 79 71% 0 N/A
When restrictions 14 0% 14 0% 0 N/A
Purchase restrictions 27 7% 25 8% 0 N/A
Official action 23 4% 15 0% 3 33%
A. Remarkable Pace of Litigation
From October 2022, after an initial ramp-up, through May 2023, the
last full month of our study period, courts issued an average of 32
opinions and addressed an average of 48 challenges per month. This is a
remarkable uptick in litigation compared to the post-Heller period from
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30 Virginia Law Review Online [Vol. 110:20
2009 through 2015, when courts addressed an average of 154 challenges
per year.
43
More Second Amendment claims were addressed in a single
calendar year following Bruen than from 2009 through 2011, the first
three full years after Heller.
44
Federal trial courts addressed 420 claims in
the post-Bruen year, roughly equivalent to the number of Second
Amendment claims addressed by district courts from 2008 through
2014.
45
Our coding did not allow us to measure how many cases leading
to post-Bruen opinions were filed before Bruen (and, perhaps, held
pending the outcome in Bruen) or were prepared in anticipation of the
widely-expected outcome in Bruen. It is also too soon to tell whether the
rapid pace of Second Amendment litigation post-Bruen will decrease if
judicial consensus develops about the strength or weakness of specific
types of challenges.
46
Figure 1. Second Amendment Challenges by Opinion Month
43
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1487.
44
Id.
45
Id. (reporting 423 claims decided in federal trial courts from mid-2008 through 2014).
46
Cf. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J.
Legal Stud. 1, 4–6 (1984) (explaining how litigants price in the likelihood of success when
selecting disputes for litigation).
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
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B. Differential Patterns Across Jurisdictions and Claim Types
Most challenges in our dataset are in federal courts (434; 94 percent),
in particular in federal trial courts (420; 91 percent), and involve criminal
claims (314; 68 percent). The breakdown of civil versus criminal
challenges is consistent with litigation trends after Heller.
47
Drilling down
into the data with an eye toward success rates, however, reveals important
differences.
When considering jurisdiction, a notable trend after Heller was that
litigation was concentrated in the jurisdictions known for stronger gun
laws, like the Fourth Circuit (including Maryland), Ninth Circuit
(including California), and the D.C. Circuit.
48
After Bruen, however, the
deluge of challenges has spread fairly diffusely, with more challenges in
federal courts within the Fifth Circuit (Louisiana, Mississippi, and Texas),
for example, than within the Fourth. While state policies within the Fifth
Circuit are relatively lax,
49
it may be that advocates desiring to challenge
federal policies that withstood judicial scrutiny before Bruen are choosing
to litigate in a conservative court hoping for a favorable audience.
50
Success rates, meanwhile, have not been as evenly distributed and
differ from Circuit to Circuit. The highest success rates for federal-court
challenges thus far have been within the Second and Third Circuits, where
sought relief has been granted in full or in part at least 50 percent of the
47
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1478 (showing 64 percent
of claims after Heller were criminal).
48
Id. at 1474–75.
49
See Annual Gun Law Scorecard, Giffords L. Ctr., giffords.org/lawcenter/
resources/scorecard/ [https://perma.cc/G4G3-KZN2] (last visited Nov. 7, 2023) (grading the
gun laws and policies in Texas, Louisiana, and Mississippi as “F”).
50
See Ann E. Marimow, Trump’s Lasting Legacy on the Judiciary Is Not Just at the
Supreme Court, Wash. Post (Jan. 29, 2023, 5:00 AM), www.washingtonpost.com/
politics/2023/01/29/5th-circuit-court-trump-judges-conservative/ [https://perma.cc/HV8R-
H9YJ] (discussing the ideological makeup of the U.S. Court of Appeals for the Fifth Circuit);
Texas Judge Rules Gun-Buying Ban for People Under Felony Indictment Is Unconstitutional,
CBS News (Sep. 19, 2022, 10:43 PM), www.cbsnews.com/news/texas-judge-gun-
buying-ban-people-felony-indictment-unconstitutional/ [https://perma.cc/D5VD-YCFC];
William Melhado, Federal Judge in Texas Rules That Disarming Those Under Protective
Orders Violates Their Second Amendment Rights, Tex. Trib. (Nov. 14, 2022, 8:00 PM),
www.texastribune.org/2022/11/14/texas-judge-domestic-abusers-second-amendment/
[https://perma.cc/3PQQ-ZQCW]; Andrew Willinger, Litigation Highlight: Federal Judge
Enjoins Pistol Brace Rule and Finds Irreparable Harm Based on Likely Second Amendment
Violation, Duke Ctr. for Firearms L. (Oct. 25, 2023), firearmslaw.duke.edu/
2023/10/litigation-highlight-federal-judge-enjoins-pistol-brace-rule-and-finds-irreparable-
harm-based-on-likely-second-amendment-violation/ [https://perma.cc/8YQJ-C3AQ].
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32 Virginia Law Review Online [Vol. 110:20
time. That compares to a 15-percent success rate, for example, within the
Fifth Circuit.
51
The high success rates within the Second and Third Circuits may be
skewed by outlier challenges. For example, one case brought in federal
district court in New York, Antonyuk v. Hochul, challenged over a dozen
provisions of a post-Bruen law passed in New York, the Concealed Carry
Improvement Act.
52
That single case led to two opinions and 49 separate
challenges in our dataset, 34 of which had success.
53
Similarly, in district
court in New Jersey, Koons v. Platkin involved three related opinions and
31 separate challenges to New Jersey’s post-Bruen sensitive places law,
27 of which had success.
54
If we exclude those challenges, variations in
success rates across courts in different federal Circuits are no longer
statistically significant (p=0.14), and the success rate drops from 57
percent to 22 percent (4/18) within the Second Circuit and from 62
percent to 12 percent (2/17) within the Third Circuit.
51
The successes within the Fifth Circuit are highly impactful, however, including the
controversial decision in Rahimi striking down a federal law restricting gun possession by
those subject to domestic violence restraining orders, which the Supreme Court will consider
in the 2023–2024 Term. United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted,
143 S. Ct. 2688 (2023) (No. 22-915).
52
Antonyuk v. Hochul, 639 F. Supp. 3d 232, 257–94 (N.D.N.Y. 2022) (considering
plaintiffs’ standing to challenge, among other things, twenty ‘sensitive places’ provisions).
53
See id. (deciding preliminary injunction motion); Antonyuk v. Hochul, 635 F. Supp. 3d
111 (N.D.N.Y. 2022) (deciding temporary restraining order motion).
54
Koons v. Platkin, No. 22-cv-07464, 2023 WL 3478604 (D.N.J. May 16, 2023); Koons v.
Reynolds, 649 F. Supp. 3d 14 (D.N.J. 2023); Siegel v. Platkin, No. 22-cv-07464, 2023 WL
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
2024] One Year Post-Bruen 33
Figure 2. Post-Bruen Litigation, Criminal vs. Civil
Comparing criminal and civil cases shows a clear divide in success
rates for criminal versus civil litigants, with civil litigants significantly
more likely to be granted relief. Interestingly in light of the overall jump
in success for Second Amendment challenges post-Bruen, the success rate
for criminal cases after Bruen has been just 5 percent, slightly below the
6-percent success rate in criminal cases after Heller.
55
The overall success
rate in civil cases after Heller was 15 percent, with 30-percent, 3-percent,
and 14-percent success rates in federal appellate court, state appellate
court, and federal trial court, respectively.
56
In the year after Bruen, the
overall success rate for civil cases jumped to 55 percent, with 67-percent,
22-percent, and 57-percent success rates in federal appellate court, state
appellate court, and federal trial court, respectively. Our sample size of
civil federal appellate challenges was three, too small for drawing
conclusions regarding that subset.
55
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1478.
56
Id.
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34 Virginia Law Review Online [Vol. 110:20
Figure 3: Post-Bruen Litigation, Individual
vs. Organizational Plaintiff
After Heller, there was a marked difference in success rate depending
on whether a plaintiff was an individual or organization. In the federal
trial courts, individual plaintiffs had a 9-percent success rate, compared
to 28 percent if at least one plaintiff was an organization.
57
The success
rates for individual and organizational plaintiffs rose in the year after
Bruen. Individual plaintiffs in federal trial courts succeeded 51 percent of
the time, a statistically comparable success rate to the 65-percent success
rate when an organization was a plaintiff.
C. Areas of Second Amendment Success and Disuniformity
Not all Second Amendment challenges are created equal; some are
objectively weak. For example, the Supreme Court blessed restrictions on
gun possession by felons in Heller, and there is reason to conclude that
Heller’s blessing carried through to Bruen.
58
Challenging a felon-in-
possession law is thus plausibly weaker than challenging restrictions not
57
Id. at 1480.
58
See infra notes 89–90 and accompanying text.
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2024] One Year Post-Bruen 35
explicitly approved by the Supreme Court. We divided challenges into
eight categories, and then further separated them into 81 subcategories.
59
Figure 4. Post-Bruen Litigation, Policy Type
The largest category of challenges (232/464) was to “who” restrictions:
bans on gun possession by particular categories of people such as those
with felony convictions or who have been involuntarily committed.
Overall, such challenges did not fare well—a success rate of 6 percent—
though that is still better than the 4-percent success rate following
Heller.
60
Within the category of “who” challenges, felons comprised the
largest subcategory (156/232), or 34 percent of the entire dataset
(156/464). That is higher than the comparable ratio from after Heller (24
percent).
61
Challenges to felon restrictions succeeded just once in the year
after Bruen.
62
59
One category of firearm regulation, “how” restrictions like safe storage requirements, did
not garner any Second Amendment opinions during our date range, and is thus not included
in Figure 4. See infra note 86 and accompanying text (discussing the surprising omission of
opinions addressing “how” restrictions).
60
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1481.
61
Id.
62
Nonetheless, this trend requires qualification. Range v. Attorney General, 69 F.4th 96 (3d
Cir. 2023) (en banc), opened the door to successful as-applied challenges to the federal felon-
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36 Virginia Law Review Online [Vol. 110:20
In June 2023, as noted above, the Supreme Court granted certiorari in
United States v. Rahimi.
63
A unanimous panel of the U.S. Court of
Appeals for the Fifth Circuit declared unconstitutional the federal law
disarming those subject to domestic violence restraining orders,
64
an
outcome also reached by district court judges in Texas and Kentucky.
65
Those three successes can be paired with seven decisions denying relief
under the Second Amendment for an overall success rate of 30 percent
(3/10). Though this success rate is low, it is nonetheless notable given that
every court to consider this policy found it constitutional before Bruen.
66
The Fifth Circuit’s Rahimi opinion may raise questions about a related
subcategory of “who” restrictions: bans on gun possession by domestic
violence misdemeanants.
67
Some scholars have questioned whether
disarming someone convicted of a domestic violence misdemeanor, as
opposed to a felony, is consistent with the American regulatory tradition
that is at the center of the post-Bruen analysis.
68
In Rahimi, the Fifth
Circuit cited to such scholarship in the course of explaining its
reasoning.
69
Challenges to prohibitions on gun possession for domestic
violence misdemeanants overwhelmingly failed after Bruen, with a
success rate of 9 percent (1/11). The sole case marked as partially
successful involved a defendant winning a motion to withdraw a guilty
plea and reset the matter for a new trial because it was at least “plausible”
after Bruen that the federal bar on gun possession for domestic violence
misdemeanants was unconstitutional.
70
In the same opinion, however, the
in-possession law within the Third Circuit after our study period. See, e.g., United States v.
Quailes, No. 21-cr-00176, 2023 WL 5401733, at *1 (M.D. Pa. Aug. 22, 2023). We have also
seen successful challenges to the felon disqualifier outside the Third Circuit. See, e.g., United
States v. Bullock, 18-cr-00165, 2023 WL 4232309, at *2 (S.D. Miss. June 28, 2023).
63
See supra note 18 and accompanying text.
64
See United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023).
65
See United States v. Perez-Gallan, 640 F. Supp. 3d 697, 698 (W.D. Tex. 2022); United
States v. Combs, 654 F. Supp. 3d 612, 614–15 (E.D. Ky. 2023).
66
See Blocher & Ruben, Originalism-by-Analogy, supra note 7, at 106–07.
67
See, e.g., 18 U.S.C. § 922(g)(9).
68
See, e.g., David B. Kopel & Joseph G. S. Greenlee, The Federal Circuits’ Second
Amendment Doctrines, 61 St. Louis U.
L.J. 193, 244 (2017) (“[T]here is simply no tradition—
from 1791 or 1866—of prohibiting gun possession (or voting, jury service, or government
service) for people convicted of misdemeanors or subject to civil protective orders.”).
69
See Rahimi, 61 F.4th at 460 n.11 (citing scholarship casting doubt on the historical legacy
of disarming domestic violence misdemeanants).
70
United States v. Bernard, No. 22-cr-00003, 2022 WL 17416681, at *4 (N.D. Iowa Dec.
5, 2022) (“The question here is whether he can make a plausible challenge to the
constitutionality of the statute of conviction. His argument is plausible, especially given the
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
2024] One Year Post-Bruen 37
court denied the defendant’s motion to dismiss the charge, “join[ing]
every other court thus far in addressing Section 922(g)(9) in finding it
constitutional,” even after Bruen.
71
Other “who” restrictions that stand out after Bruen are those based on
age, which account for five challenges in our dataset. Such restrictions
typically bar carrying or possessing a firearm for those younger than 21
years of age, and litigants generally attempt to vindicate the rights of
disarmed young adults—those between 18 and 20 years of age. Sixty
percent (3/5) of those challenges had success, compared to a 0-percent
success rate after Heller.
72
Perhaps no category of law has attracted more scrutiny after Bruen than
sensitive places restrictions. In Bruen, the Supreme Court struck down a
concealed carry permitting policy, but in the course of doing so the
majority emphasized the continued constitutionality of “modern
regulations prohibiting the carry of firearms in new and analogous
sensitive places” to those that existed historically.
73
Shortly after the
opinion came down, New York responded with the Concealed Carry
Improvement Act that established twenty categories of places as gun-free
zones.
74
In addition, the law provided that private property is
presumptively gun-free unless the property owner or lessee has expressly
permitted guns.
75
In due course, the new restrictions were challenged and
many of them were declared unconstitutional. As we write, that litigation
remains pending in the Second Circuit Court of Appeals.
76
New Jersey,
following New York’s example, enacted their own sensitive places laws,
seemingly shifting grounds of constitutional interpretation, particularly as it applies to the
Second Amendment.”); id. at *8 (resetting the matter for a new trial).
71
Id. at *8. This opinion reflects the judgment calls inherent in characterizing litigation
“success.” Bernard could have been coded as a straight “failure,” but because the court granted
part of the requested relief—withdrawal of a plea agreement and a new trial—on Second
Amendment grounds, our methodology treats this as having an outcome of “relief granted in
part.”
72
See Ruben & Blocher, From Theory to Doctrine, supra note 3, app. C at xxiv,
dlj.law.duke.edu/wp-content/uploads/sites/2/2018/04/Ruben-and-Blocher-App-C-1.
pdf [https://perma.cc/BUN4-P5F6].
73
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
74
2022 N.Y. Sess. Laws ch. 371, § 4 (codified at N.Y. Penal Law § 265.01-e) (enacting the
Concealed Carry Improvement Act).
75
Id. at § 5 (codified at § 265.01-d).
76
See Docket, Antonyuk v. Hochul, No. 22-2908 (2d Cir.).
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
38 Virginia Law Review Online [Vol. 110:20
prompting yet more litigation that is pending in the Third Circuit Court of
Appeals.
77
In the years after Heller, sensitive places policies made up a tiny
fraction of the overall litigation—just 4 percent.
78
After Bruen, however,
such challenges account for 17 percent (81/464) of the dataset. Moreover,
while the challenges in this category succeeded 18 percent of the time
after Heller, they succeeded 69 percent (56/81) of the time in our post-
Bruen dataset. As described above, this figure is partially explained by
voluminous litigation in New York and New Jersey.
79
Another area of public carry litigation involves permitting policies.
Challenges to permitting policies had a 33-percent success rate (13/39)
during the study period, compared to a 9-percent success rate in the years
after Heller.
80
Four of the 13 successes were to good or proper cause
requirements of the sort struck down in Bruen. Excluding those
challenges, the success rate drops to 26 percent (9/35). No court held that
public carry permitting was per se unconstitutional, which is consistent
with guidance in Bruen that “shall-issue licensing regimes are
constitutionally permissible.”
81
Nor did any court strike down training or
character reference requirements. In contrast, one court granted relief
regarding requirements that applicants disclose their cohabitants and
social media accounts.
82
Restrictions on weapon categories, one of the most contested policy
areas since Heller, comprised 10 percent (48/464) of the dataset and had
a 23 percent (11/48) success rate. This outpaced the 13-percent success
rate from the years after Heller.
83
Judges granted requested relief in
challenges to assault weapons bans 33 percent (2/ 6) of the time, compared
77
See Docket, Koons v. Att’y Gen. N.J., No. 23-1900 (3d Cir.). Other states have followed
suit after our study period. See, e.g., Brian Witte, New Maryland Laws Take Effect; Injunction
Blocks Gun Safety Law, WBAL-TV (Oct. 1, 2023, 5:13 PM), www.wbaltv.com/
article/new-laws-maryland-october-2023-gun-control/45359976# [https://perma.cc/6T2S-X5
RX].
78
See Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1483. Moreover, the
post-Heller litigation included several zoning lawsuits in addition to litigation over gun-free
zones. Id. app. C at xxvi, dlj.law.duke.edu/wp-content/uploads/sites/2/2018/04/Ruben-
and-Blocher-App-C-1.pdf [https://perma.cc/BUN4-P5F6].
79
See supra notes 52–54, 76–77 and accompanying text.
80
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1485.
81
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2162 (2022) (Kavanaugh, J.,
concurring); id. at 2138 n.9 (majority opinion).
82
See, e.g., Antonyuk v. Hochul, 639 F. Supp. 3d 232, 307–11, (N.D.N.Y. 2022); Antonyuk
v. Hochul, 635 F. Supp. 3d 111, 136 (N.D.N.Y. 2022).
83
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1482.
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2024] One Year Post-Bruen 39
to a 0-percent success rate after Heller.
84
Similarly, 25 percent (2/8) of
challenges to large-capacity magazine restrictions experienced success
after Bruen. Restrictions on ghost guns—a category of law that has
become more common in response to changes in technology and crime
patterns in the post-Heller era
85
—accounted for two challenges, of which
one experienced at least partial success.
“Purchasing restrictions,” which included both seller and buyer
requirements like background checks and insurance mandates, comprised
6 percent (27/464) of the database and had a success rate of 7 percent
(2/27). The only successes within this category were challenges to
insurance mandates, which experienced success in one out of two
challenges, and false statements, which experienced success in one out of
eight challenges.
The final categories of claims that we coded challenged “when”
restrictions, including restrictions on gun possession while committing a
crime; “official action,” including sentencing enhancements and police
seizures; and “how” restrictions, like safe storage requirements. None of
the 14 challenges to “when” restrictions succeeded. “Official action”
restrictions had a success rate of just 4 percent (1/23). Our database
included no challenges to “how” restrictions—a surprising omission in
light of the fact that safe storage laws are passionately opposed by some
gun rights organizations.
86
Our data collection primarily focused on characterizing the types of
challenges resulting in opinions after Bruen and the outcomes of those
challenges, not the content of the opinions.
87
However, we did code for
one content-related variable, whether post-Bruen cases cited to Heller’s
paragraphs on presumptively valid regulations, to assess a major question
84
Id. at 1482–83 (observing that no challenges to assault weapons bans had clear success
during the study period).
85
See Cara Tabachnick, Ghost Gun Use in U.S. Crimes Has Risen More Than 1,000% Since
2017, Federal Report Says, CBS News (Feb. 2, 2023, 9:01 PM), www.cbsnews.com/
news/ghost-gun-use-crimes-1000-percent-rise-since-2017-atf-report/ [https://perma.cc/BU9
N-NUQP].
86
See John Woodrow Cox & Steven Rich, Gun Owners Favor Requiring Parents to Lock
Up Weapons. It’s Lawmakers Who Don’t,” Wash. Post (Jan. 26, 2023, 7:00 AM),
www.washingtonpost.com/dc-md-va/2023/01/21/gun-owners-lock-up-weapons-laws/
[https://perma.cc/VB5Y-8VPQ]. This category of challenges made up 1 percent of post-Heller
litigation. See Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1484.
87
In this respect, our focus was more limited than the 2018 study that was our primary
comparator. Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1437.
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
40 Virginia Law Review Online [Vol. 110:20
after Bruen: whether there will be continuity between pre- and post-Bruen
case law.
Figure 5. Post-Bruen Litigation, Citation to
Heller’s Presumptively Lawful Regulation Paragraph
In the years after Heller, Heller’s caution that it did not “cast doubt on
longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms,”
88
was central to
litigation in the lower courts. Indeed, 60 percent of challenges in the 2018
database included explicit reference to that discussion.
89
The Bruen
majority did not repeat Heller’s reassurance about “longstanding
prohibitions,” but concurring opinions signed by three of the Justices in
the six-Justice majority did.
90
Some judges after Bruen have continued to
88
District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). In a footnote, the Heller
majority cautioned that it “identif[ied] these presumptively lawful regulatory measures only
as examples; our list does not purport to be exhaustive.” Id. at 627 n.26.
89
Ruben & Blocher, From Theory to Doctrine, supra note 3, at 1488.
90
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2157 (2022) (Alito, J.,
concurring); id. at 2162 (Kavanaugh, J., concurring).
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2024] One Year Post-Bruen 41
rely on the Heller discussion of “longstanding prohibitions,”
91
and thus
we wanted to see how frequently that language was invoked.
Our data suggests that Heller’s cautionary language may not be
exerting as much influence in the lower courts after Bruen as it did after
Heller. While judges assessing 64 percent (297/464) of the challenges in
our database cited Heller’s paragraphs on presumptively valid
regulations, there was no statistically significant difference in success
rates between those and the opinions that did not cite those Heller
paragraphs.
A major theme after Bruen is not just what makes for a successful
challenge, but how consistently courts are agreeing on the answer to that
question. Our results signal that though success rates have risen, there is
broad disagreement about outcomes. If we isolate each of the
subcategories of regulations for which there were two or more
challenges—44 out of the 81 subcategories
92
—we can then assess
whether the challenges within those subcategories are uniform, i.e.,
whether courts have uniformly either denied relief or granted it. Out of
those 44 subcategories, 25, or 57 percent, had divergent results, with at
least one opinion granting requested relief and another denying requested
relief.
93
This data invites an obvious question: What is causing such variation
in post-Bruen case law? One possibility, which highlights a limitation of
empirical legal research, is that different fact patterns drive variations. In
an as-applied Second Amendment challenge to the federal felon-in-
possession law, for example, some litigants are more sympathetic than
others because they present less of a danger to society. Our categorization
of claims can only drill down so far before it loses its empirical
usefulness, and we did not capture nuanced factual differences between
cases.
91
See, e.g., United States v. Hoover, 635 F. Supp. 3d 1305, 1325 (M.D. Fla. 2022) (“[T]he
Supreme Court’s holding in Bruen did not overturn D.C. v. Heller, in which the Court
recognized the importance of ‘the historical tradition of prohibiting the carrying of dangerous
and unusual weapons.’”) (quoting Heller, 554 U.S. at 627) (internal quotation marks
omitted)); United States v. Daniels, No. 03-cr-00083, 2022 WL 5027574, at *4 (W.D.N.C.
Oct. 4, 2022) (“Nothing in the Bruen decision . . . casts doubt on ‘the longstanding
prohibitions on the possession of firearms by felons.’” (quoting Heller, 554 U.S. at 626–27)).
92
We excluded the “other” subcategories when counting which subcategories experienced
two or more challenges.
93
As far as we are aware, no similar analysis was conducted for pre-Bruen challenges.
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
42 Virginia Law Review Online [Vol. 110:20
Another possibility is Bruen’s under-specificity,
94
which has granted
lower courts broad discretion when trying to implement Bruen’s
methodology. For example, courts are free to set a higher or lower level
of generality for construing history when conducting Bruen’s historical-
analogical exercise, and the level-of-generality choice a judge makes will
influence the outcome. Or judges could be disagreeing regarding the
continued validity of Heller’s presumptively-lawful-regulation
paragraphs, which again could lead to discrepancies.
Our data does not permit us to evaluate, or control for, these
possibilities. But we did code for a different and potentially related
explanation for the incongruous outcomes: judicial ideology.
95
The next
Section assesses that possibility.
D. Variations Based on Judicial Ideology
Some commentators have opined that an increasingly conservative
federal judiciary is to blame or credit (depending on how one views the
issue) for Second Amendment successes and the resultant variability of
Second Amendment outcomes.
96
This account is often expressly or
implicitly about the appointments of Donald Trump, who made frequent
ideological promises about his judicial selections. In response to a
question shortly after his 2016 election about the judges he would
nominate, Trump responded, “[I]n terms of the whole gun
94
See Charles, supra note 9, at 95–110.
95
Judicial ideology is potentially related to issues of under-specificity because of the
possibility that Bruen’s open-endedness makes it easier for judges to reverse-engineer
justifications for their desired outcomes.
96
See, e.g., Amy Davidson Sorkin, Guns, Trump, and the G.O.P., New Yorker (May 21,
2023) www.newyorker.com/magazine/2023/05/29/guns-trump-and-the-gop [https://pe
rma.cc/M3DL-GN7E]; Jacob Gershman, Judges Across U.S. Expand Gun Rights, Taking
Cues From Supreme Court, Wall St. J. (Oct. 10, 2022, 4:58 PM), www.wsj.com/
articles/judges-across-u -s -expand-gun-rights-taking-cues-from-supreme-court-11665432175
[https://perma.cc/Q2BJ-P6SP ]; Matt Cohen, Trump-Appointed Judges Are Already Handing
Huge Wins to the NRA, Mother Jones (Aug. 17, 2020), www.motherjones.com/
politics/2020/08/trump-appointed-judges-are-already-handing-huge-wins-to-the-nra/
[https://perma.cc/8MHH-E44X]; Amy E. Swearer, A Second Amendment Grade for President
Trump So Far, Federalist Soc’y (Aug. 14, 2020), fedsoc.org/commentary/fedsoc-
blog/a-second-amendment-grade-for-president-trump-so-far [https://perma.cc/TG29-LPN4];
Don Thompson, Gun-Control Backers Concerned About Changing Federal Courts, PBS News
Weekend (Aug. 11, 2019, 3:39 PM), www.pbs.org/newshour/politics/gun-control-
backers-concerned-about-changing-federal-courts [https://perma.cc/2D47-RAGQ].
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2024] One Year Post-Bruen 43
situation . . . they’re going to be very pro-Second Amendment.”
97
During
a press meeting about the nomination of Neil Gorsuch to the Supreme
Court, the National Rifle Association’s CEO, Wayne LaPierre, sat next to
Trump.
98
Shortly thereafter, during the National Rifle Association
convention in April 2019, Trump promised, “You came through for me,
and I am going to come through for you.”
99
And, according to a recent study, many of Trump’s 54 appointees to
the federal courts of appeals and 174 appointees to federal district
courts
100
had distinctive ideological affiliations.
101
With respect to guns,
four times as many of Trump’s judicial appointments were members of
the National Rifle Association than the general public.
102
Before Bruen was decided, Adam Samaha and Roy Germano
empirically evaluated the role of ideology in Second Amendment
litigation. Their initial studies, which focused on civil decisions in the
federal appellate courts between 2008 and early 2016, found no
significant ideological divide between judges voting in gun rights
cases.
103
In their subsequent study of civil gun rights cases in federal
appellate courts from 2016 and 2018, however, Samaha and Germano
observed an ideological divide. In particular, they “estimate[d] a 21-point
gap between Republican and Democratic appointees in the probability of
97
Lesley Stahl, President-Elect Trump Speaks to a Divided Country, CBS News (Nov. 13,
2016, 6:54 PM), www.cbsnews.com/news/60-minutes-donald-trump-family-melania-
ivanka-lesley-stahl/ [https://perma.cc/J7AE-CAL6] (transcript).
98
NRA, Wayne LaPierre, President Trump: Side-by-Side at White House Meeting,
YouTube (Feb. 1, 2017), www.youtube.com/watch?v=ro44BJzN_3Y [https://perma.
cc/BQ86-28D8].
99
Michael D. Shear, Trump Tells N.R.A. Convention, ‘I Am Going to Come Through for
You,’ N.Y. Times (Apr. 28, 2017), www.nytimes.com/2017/04/28/us/politics/donald-
trump-nra.html [https://perma.cc/DG9F-YZWK].
100
See Admin. Off. U.S. Cts., Judgeship Appointments by President (Dec. 31, 2022),
www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-
president [https://perma.cc/GJ3Z-8HZB]. This compared to 49 federal appellate judges and
268 federal district judges over Barrack Obama’s eight years. Id.
101
Stephen J. Choi, Mitu Gulati & Eric A. Posner, Trump’s Lower-Court Judges and
Religion: An Initial Appraisal 10–14 (June 22, 2023) (unpublished manuscript),
papers.ssrn.com/sol3/papers.cfm?abstract_id=4488397 [https://perma.cc/22DE-UG
M2].
102
Id. at 11–12.
103
See Adam M. Samaha & Roy Germano, Are Commercial Speech Cases Ideological? An
Empirical Inquiry, 25 Wm. & Mary Bill Rts. J. 827, 865 (2017); see also Samaha & Germano,
supra note 13, at 67–68 (carrying data forward to the end of 2016).
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
44 Virginia Law Review Online [Vol. 110:20
supporting a claim.”
104
Samaha and Germano queried whether a future
Supreme Court opinion “will unsettle or extend these trends.”
105
Post-
Bruen court outcomes are consistent with an extension of the trend
Samaha and Germano observed between 2016 and 2018.
1. Federal District Judges
The dataset includes 392 observations of judge votes in the federal
district courts for which we have judge-specific information.
106
Two
times as many challenges were decided by Republican-appointed district
judges (261) than Democratic-appointed district judges (131). Of the 95
Republican-appointed district judges in our dataset, most were appointed
by President George W. Bush (45 judges, associated with 158 challenges),
followed by Trump (38 judges, 84 challenges), Ronald Reagan (6 judges,
10 challenges), George H. W. Bush (5 judges, 7 challenges), and Nixon
(1 judge, 2 challenges). Most of the 80 Democratic-appointed district
judges were appointed by Barack Obama (50 judges, 89 challenges),
followed by Bill Clinton (23 judges, 32 challenges), Joe Biden (6 judges,
12 challenges), and Jimmy Carter (1 judge, 1 challenge).
A 31-percentage-point gap separated Republican and Democratic court
appointees across combined civil and criminal challenges. Two percent
(3/131) of challenges heard by Democratic-appointed judges had success,
compared with 33 percent (86/261) of challenges heard by Republican-
appointed judges. The spread remains significant if we focus just on civil
claims, for which Democratic appointees granted relief in 11 percent
(2/18) of challenges, compared to 65 percent (75/116) of challenges
before Republican appointees.
Despite the attention paid to Trump appointees, overall, judges
appointed by W. Bush granted Second Amendment relief more frequently
than judges appointed by Trump in the post-Bruen year. In particular,
challenges before W. Bush district judge appointees succeeded 42 percent
(66/158) of the time, compared to 21 percent (18/84) for Trump
appointees.
104
Adam M. Samaha & Roy Germano, Judicial Ideology Emerges, at Last, in Second
Amendment Cases, 13 Charleston L. Rev. 315, 315 (2018).
105
Id. at 320. The authors had New York State Rifle & Pistol Association v. City of New York
in mind at the time, a case subsequently declared moot. N.Y. State Rifle & Pistol Ass’n v. City
of New York, 140 S. Ct. 1525, 1526–27 (2020). But their question would equally apply to
Bruen.
106
This count excludes magistrate judges who are not appointed by presidents.
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
2024] One Year Post-Bruen 45
A closer look suggests a more complex picture. Two sets of cases
involving challenges to a broad number of sensitive places restrictions in
New York and New Jersey account for a disproportionate number of the
George W. Bush appointee challenges. In particular, Antonyuk in New
York involved 49 separate challenges heard by District Judge Glenn T.
Suddaby,
107
who granted relief in 34 of them, and the consolidated
Koons/Siegel litigation in New Jersey involved 31 separate challenges
heard by Chief District Judge Renée Marie Bumb,
108
who granted relief
in 27 of them. If those cases are removed, the overall ratio of successful
challenges for Republican-appointed district judges drops from 33
percent to 14 percent (25/181). Meanwhile, among W. Bush-appointed
district judges, the percentage of successful challenges drops from 42
percent to 6 percent (5/78), well below the 21-percent success rate for
Trump’s district court appointees, but still more than double the success
rate for Democratic-appointed judges.
2. Federal Appellate Judges
We evaluated federal appellate judge ideology by disaggregating panel
outcomes into judge votes. Doing so resulted in 54 observations and 48
unique judges, compared with 392 observations for the 175 unique district
judges. Like the district judge breakdown, roughly two-thirds (35/54) of
appellate judge votes were cast by Republican appointees, compared to
one-third (19/54) by Democratic appointees.
Overall, Republican-appointed judges voted for relief 37 percent
(13/35) of the time and Democratic-appointed judges voted for relief 21
percent (4/19) of the time. Looking solely at civil cases, Republican-
appointed judges voted for relief 83 percent (10/12) of the time and
Democratic-appointed judges voted for relief 44 percent (4/9) of the time.
Drilling down suggests that the ideological spread might be even wider
but for case selection. All four of the votes for relief by Democratic-
appointed judges occurred in Range v. Attorney General,
109
a civil case
that blended questions of criminal justice reform and gun rights. Range
had been convicted of a felony-equivalent crime for making false
107
Antonyuk v. Hochul, 639 F. Supp. 3d 232, 251 (N.D.N.Y. 2022) (describing
complaints); Antonyuk v. Hochul, 635 F. Supp. 3d 111 (N.D.N.Y. 2022).
108
Koons v. Platkin, No. 22-cv-07464, 2023 WL 3478604 (D.N.J. May 16, 2023); Koons
v. Reynolds, 649 F. Supp. 3d 14 (D.N.J. 2023); Siegel v. Platkin, No. 22-cv-07464, 2023 WL
1103676 (D.N.J. Jan. 30, 2023).
109
69 F.4th 96 (3d Cir. 2023) (en banc).
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
46 Virginia Law Review Online [Vol. 110:20
statements to obtain food stamps and was permanently barred from
possessing a firearm as a result.
110
Range’s case thus dealt with lifelong
collateral consequences of a nonviolent conviction on the one hand, and
gun rights on the other, and thus was especially likely to blur ideological
lines. As appellate decisions are filed in other Second Amendment cases,
it will be interesting to watch whether more of a gap opens up between
Democratic-appointed and Republican-appointed judges.
Nine of 17 Trump-appointed appellate judge votes were to grant relief
on these challenges, compared with 3 of 11 W. Bush-appointed appellate
judge votes. Two out of 4 of Biden-appointee votes were for relief,
compared with 1 out of 11 for Obama-appointee votes. For civil claims,
all seven Trump-appointee votes and all three W. Bush-appointee votes
were to grant relief. Our small sample size for federal appellate votes
limits drawing strong inferences from these observations.
III. R
EGRESSIONS
While the prior descriptive analyses provide some indication about
which variables are statistically associated with successful Second
Amendment challenges post-Bruen, analyzing each variable separately
risks misattributing the cause of success. For example, if civil cases are
more likely to be successful ceteris paribus, but they are also more likely
to involve challenges to types of firearm laws that are more likely to be
overturned, failing to account for this correlation could lead to overstating
the relationship between civil litigation and success.
To address this shortcoming of bivariate analysis, we conducted a
series of multivariate regressions. The multivariate regression models
provide information on the association of particular claim characteristics
with likelihood of litigation success, controlling for other aspects of the
claim.
111
110
Id. at 98; see also 18 U.S.C. § 922(g)(1) (setting out the relevant law at issue in Range).
111
The multivariate regressions are estimated as linear probability models. We present
results from a parsimonious model specification, determined through a series of iterative
exploratory regression analyses to identify the best-fitting model based on Akaike Information
Criterion (“AIC”). The AIC is a goodness-of-fit measure that can be used to compare the
prediction quality of various models relative to their complexity. See Hirotugo Akaike,
Information Theory and an Extension of the Maximum Likelihood Principle, in 2nd
International Symposium on Information Theory 267–81 (B. N. Petrov & F. Csáki,
eds., 1973). Standard errors are clustered at the opinion level. For more explanation of this
method of multivariate regression analysis, see generally Joshua D. Angrist and Jörn-Steffen
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
2024] One Year Post-Bruen 47
Table 2 shows results from these analyses predicting the probability
that a challenge was granted relief at least in part based on the full sample
of challenges (n=464). Across columns, we show a subset of the iterative
regressions run to determine the model with the best fit, shown in column
4.
Across all analyses, controlling for other claim characteristics, civil
cases are significantly more likely than criminal cases to be successfully
litigated, with significantly higher probability for civil cases involving an
organizational plaintiff. Holding other case characteristics constant at
their average values, civil cases involving an organizational plaintiff are
1.6 times more likely to be granted relief compared to civil cases
involving an individual plaintiff, and they are nearly five times more
likely to be granted relief compared to criminal cases.
There are also consistent, significant differences in how the category
of law being challenged relates to probability of relief. Adjusting for other
claim characteristics, challenges related to official actions or “when”
restrictions are least likely to be successful, with significantly lower
probability of being granted relief relative to “who” restrictions, public
carry provisions, and sensitive place restrictions. Relative to any other
type of law, challenges related to public carry provisions and sensitive
place restrictions are significantly more likely to be successful. The
difference is particularly marked for sensitive place restrictions. Holding
other case characteristics constant at their average values, challenges to
sensitive place restrictions are 1.6 times more likely to be granted relief
than other public carry restrictions and more than 3.5 times more likely to
be granted relief than other types of challenges.
Controlling for other claim characteristics, we detect no statistically
significant differences in the probability of being granted relief for claims
heard in federal versus state courts, or for challenges that cited versus did
not cite Heller’s paragraphs on presumptively lawful regulations.
Pischke, Mostly Harmless Econometrics: An Empiricist’s Companion (2009) (discussing
multivariate regressions and other tools for empirical research).
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
48 Virginia Law Review Online [Vol. 110:20
Table 2. Association of Challenge Characteristics
with Probability of Being Granted Relief
(1) (2) (3) (4)
Case Type
Criminal Ref. Ref. Ref. Ref.
Civil, organizational plaintiff
0.429
*
(0.089)
0.429
*
(0.088)
0.431
*
(0.089)
0.431
*
(0.088)
Civil, non-organizational plaintiff
0.223
*
(0.061)
0.226
*
(0.061)
0.226
*
(0.063)
0.228
*
(0.062)
Category of Law Challenged
Who Ref. Ref. Ref. Ref.
Public carry
0.180
(0.058)
0.188
*
(0.056)
0.161
*
(0.060)
0.171
*
(0.057)
What restriction
-0.021
(0.062)
-0.011
(0.060)
-0.020
(0.062)
-0.011
(0.060)
Where restriction
0.374
*
(0.069)
0.374
*
(0.069)
0.372
*
(0.069)
0.371
*
(0.069)
Other restrictions
a
-0.081
(0.032)
-0.077
(0.032)
-0.085
*
(0.031)
-0.081
(0.032)
Jurisdiction
State Ref. Ref.
Federal
0.057
(0.063)
0.049
(0.062)
Cite Heller
No Ref. Ref.
Yes
-0.029
(0.046)
-0.026
(0.046)
N 464 464 464 464
AIC 248.9 247.7 247.7 246.3
Adjusted R-squared 0.41 0.41 0.41 0.41
P-value test for organizational plaintiff 0.021 0.020 0.023 0.021
Notes: Results with dummy variables for specific federal circuit courts not shown
as these had poorer model fit (AIC=253.3) than specification (1). Standard errors in
parentheses clustered at the opinion level. p<0.10, p<0.05, p<0.01.
a
Based on exploratory initial modeling, collapsing when, purchase, and official
action restrictions into one category improved model fit; thus, these are collapsed
into an “other restriction” category here.
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2024] One Year Post-Bruen 49
We then restrict our sample to challenges heard by judges in federal
district courts for which we obtained information on the president who
appointed the judge (n=392). Replicating our prior analysis with the full
sample (Table 2, column 4) to this new sample (Table 3, column 1),
findings on the relationship between outcomes and claim characteristics
are highly similar. Compared with the full sample, results for civil versus
criminal claims and organizational versus non-organizational plaintiffs
are similar in magnitude and precision. Similar findings also emerge for
the category of law challenged, with the exception that the difference in
the probability of a successful challenge to public carry provisions and
restrictions on who can possess or purchase a firearm are no longer
statistically significant.
In columns 2–4, we additionally adjust for measures reflecting the
appointing president’s party (column 2), the appointing president (column
3), and the judge’s ABA rating (column 4). Even when accounting for
differences in case characteristics, judges appointed by Democratic
presidents are significantly less likely than those appointed by Republican
presidents to grant relief. Accounting for differences in claim
characteristics, on average, judges appointed by Republican presidents
are 1.8 times as likely to grant relief as judges appointed by Democratic
presidents. With respect to the appointing president (column 3), Trump
appointees show the highest probability of deeming a challenge
successful, although this difference is only statistically distinguishable
from decisions by Democratic-appointed judges. Finally, when
examining judge qualifications, ABA rating is not statistically associated
with case outcomes.
112
112
Results are substantively similar when dropping potential outlier cases (Antonyuk or
Koons). These results are on file with the authors.
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
50 Virginia Law Review Online [Vol. 110:20
Table 3. Association of Challenge and Judge Characteristics
with Probability of Being Granted Relief, Federal Trial
Court Cases Only
(1) (2) (3) (4)
Case Type
Criminal Ref. Ref. Ref. Ref.
Civil, organizational plaintiff
0.374
*
(0.097)
0.354
*
(0.099)
0.349
*
(0.098)
0.357
*
(0.101)
Civil, non-organizational plaintiff
0.170
**
(0.083)
0.158
*
(0.080)
0.160
*
(0.083)
0.150
*
(0.080)
Category of Law Challenged
Who restrictions Ref. Ref. Ref. Ref.
Public carry provisions
0.154
(0.103)
0.136
(0.095)
0.142
(0.098)
0.134
(0.096)
What restrictions
0.022
(0.062)
0.006
(0.066)
0.012
(0.067)
0.007
(0.066)
Where restrictions
0.470
*
(0.078)
0.436
*
(0.084)
0.444
*
(0.090)
0.435
*
(0.085)
Other restrictions
a
-0.076
(0.030)
-0.078
(0.032)
-0.077
(0.032)
-0.008
(0.031)
Appointing President Party
Republican Ref. Ref.
Democrat
-0.121
(0.048)
-0.124
(0.049)
Appointing President
b
Trump Ref.
W. Bush
-0.034
(0.070)
Other Republican
-0.091
(0.100)
Democrat
-0.146
**
(0.060)
ABA Rating
Well-qualified Ref.
Qualified or not qualified
-0.019
(0.036)
Missing
-0.098
(0.103)
N 392 392 392 392
AIC 188.8 189.7 192.1 192.5
Adjusted R-squared 0.46 0.47 0.47 0.47
P-value test for organizational plaintiff 0.020 0.016 0.018 0.016
Notes: In column (3), for the categorical variable of appointing president, we
collapse together some presidents associated with a small number of challenges.
Standard errors in parentheses clustered at the opinion level. *p<0.10, p<0.05,
*p<0.01.
COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION
2024] One Year Post-Bruen 51
a
Based on exploratory initial modeling, collapsing when, purchase, and official
action restrictions into one category improved model fit; thus, these are collapsed
into an “other restriction” category here.
b
For similar reasons, we collapse appointing presidents such that “Other
Republican” includes judges appointed by Nixon, Reagan, or H. W. Bush and
“Democrat President” includes judges appointed by Obama, Clinton, Carter, or
Biden.
CONCLUSION
The Supreme Court’s decision in New York State Rifle & Pistol
Association v. Bruen transformed Second Amendment litigation by
prescribing a novel doctrinal test. During the following year, courts
decided hundreds of challenges across a range of issues that exposed both
the remarkable impact of the Supreme Court’s methodological shift and
a substantial amount of confusion about how to apply Bruen’s historical-
analogical test. This Essay provides an empirical account of Bruen’s
impact in the courts. We have charted the remarkable increase in rate of
litigation after Bruen compared to after Heller; increased success rates
across categories of challenged policies; and widespread discrepancies.
We hope our analysis will lead to and facilitate more study, including
qualitative analyses, to further supplement our understanding of Bruen’s
consequences.