Duke Center for Firearms Law
Duke Law logo

Breaking Down the Respondent’s Amicus Briefs in Bruen

By on October 20, 2021 Categories: , , ,

In a previous post, I discussed the question at issue in New York State Rifle & Pistol Association Inc. v. Bruen, the two dimensions of particular importance in the case, and the initial amicus briefs filed in support of the petitioner and in support of neither party. Approximately two months later, the remainder of the amicus briefs have been filed. As of September 23rd, 2021, amicus briefs in support of respondents totaled 35. With a total of 49 filed on behalf of petitioners and neither party, the total amicus briefs at the merits stage is 84.

The amicus briefs covered a wide array of topics, and there was not a general sense of agreement for how the Court should answer Bruen’s questions. Overwhelmingly, the briefs did not take on key questions – such as “Is the Second Amendment right limited to the home?” or “Was Heller wrongly decided?” – explicitly. Many of the briefs took unique angles. For example, one argued the right was limited to the militia; one introduced corpus linguistics; another asserted that gun violence is a public health problem. One trend emerged: ten briefs argued that gun regulations protect racial, religious, or other minority groups. The following table highlights the breakdown of amicus briefs arguing for certain positions or invoking certain arguments.

 

Briefs that argued…

Amount that used…

(out of 35)

Heller should be overturned

1

3%

The Second Amendment right is limited to the home

2

6%

Gun regulations protect racial, religious, or other minority groups

        10     

29%

The Center’s work, or that of its affiliates, was cited in 21 of the briefs. Two briefs cited posts on this blog. Nineteen briefs cited scholarship from the Center directors. Four cited Center affiliates. Scholarship from Center-sponsored events, such as the 2020 edition of Law and Contemporary Problems or the 2021 edition of the Northwestern Law Review, were cited in eleven briefs.

While Bruen’s 84 amicus briefs is an impressive haul, it did not overcome the record set by Bostock with 94 briefs. However, Bruen’s briefs greatly surpassed the average of 16 amicus briefs per case at the merits stage during the Court’s 2019-2020 term.

Given the sheer number of briefs filed, it should be no surprise that the arguments were varied. Most of the briefs on behalf of petitioners and neither party argued for an approach of “text, history, and tradition” or strict scrutiny. Though respondent’s briefs were not as cleanly categorized, many touched on the same thematic argument: the Second Amendment’s rights are not absolute.