blog/show

By the Numbers: How Disruptive Has Bruen Been?

  • Date:
  • March 27th, 2023

By: Jacob Charles

I try to answer that question with a new data set that I compiled and have now incorporated into my forthcoming Duke Law Journal article, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History (current version available here; prior version with the data from this blog post available here).

The short answer is that the decision has been extremely disruptive, with courts declaring more laws invalid under the Second Amendment in the eight months after Bruen than they did in the first few years after Heller. (For comparisons, I relied on Joseph Blocher and Eric Ruben’s excellent empirical study of approximately 8 years of lower court precedent in the wake of Heller.) Below I present several charts exploring the different ways to look at the lower court decisions. And, cognizant of the fact that I may have made a mistake in classification (and given that my paper is still in draft form), I’m posting the data set that I compiled here. I am more than happy to receive any feedback about the coding, though some choices were irreducibly subjective, as I discuss more fully in the piece. If you find any coding errors, feel free to reach out to me at jacob.charles@pepperdine.edu. I’m hopeful that this can also help folks who want to slice the data in other ways, such as charting successes by geographic region, circuits, party of the appointing president, etc.

First, below are the three charts I made showing the cases, claims, and type of challenges in which a federal court issued a decision opining on the constitutionality of gun laws. After these charts, I’ll provide some caveats and details about the process I used to generate them.

Table 1: Second Amendment Decisions Post-Bruen (6/23/2022 - 2/23/2023)

 

Any Invalidation

No Invalidation

Success Rate

Civil Cases

n=38 (21.8%)

12

26

31.6%

Criminal Cases

n=136 (78.2%)

9

127

6.6%

Total

n=174 (100%)

21

153

12.1%

Table 2: Second Amendment Claims Post-Bruen (6/23/2022 - 2/23/2023)

 

Invalidation

No Invalidation

Success Rate

Civil Claims

n=50 (23.6%)

22

28

44%

Criminal Claims

n=162 (76.4%)

9

153

5.6%

Total

n=212 (100%)

31

181

14.6%

Table 3: Claim Categories & Success Rates Post-Bruen (6/23/2022 - 2/23/2023)

Claim Types

Number of Claims

Success Rate

Age Restriction

2

50%

Carry Licensing

3

100%

Ghost Gun

4

50%

Bail Conditions

5

0%

Obliterated Serial Number

5

20%

Private Property Default Switch

5

100%

Sentence Enhancement

5

0%

Assault Weapon/LCM

6

33.3%

National Firearms Act

8

0%

Unlawful Gun Use

9

0%

Felony Indictment Prohibition

11

36.4%

Miscellaneous

12

16.7%

Sensitive Place

13

53.8%

Commercial Regulations

14

0%

Federal Possession Prohibition

110

3.6%

TOTAL

212

14.6%

 

I compiled these cases using Westlaw search results for all federal cases that cited Bruen and then narrowing down from there. I removed cases that did not involve Second Amendment issues and cases that provided no relevant insight, such as orders remanding cases to lower courts. I then categorized the type of claim at issue and determined whether the court vindicated that claim, such as by ruling (or, in some small subset of cases, stating in a non-binding way)[1] that the government action violated the Second Amendment. Only those pre-February 23 cases in the Westlaw database at the time I most recently updated the results (March 13, 2023) were included, which means that there may be some federal district court orders issued that were not part of this analysis. I also did not analyze state court decisions applying Bruen.

In grouping claims where a civil lawsuit raised multiple different challenges, I did not generally separate out every single statutory provision a plaintiff challenged as a different claim. Rather, when there were numerous provisions challenged, I most often grouped them by topic. So, for example, even though plaintiffs challenged numerous individual places that New York and New Jersey designated as a sensitive place, I grouped all “sensitive place” challenges raised in the same lawsuit together as one claim. It is also worth noting that among the successful claims, one case may be skewing results. The Antonyuk case had three rounds of decisions with three sets of claims each time, all considering at least some provisions within each category of the challenged laws unconstitutional. That single case therefore constitutes nine of the successful civil claims. In addition, the challengers claimed many different places New York designated as “sensitive” were unconstitutional, but because of how I grouped them all together as a single “sensitive place” claim, the fact that the court did not invalidate every single provision is not reflected in the list showing that the sensitive-place claim prevailed.

I am not claiming that these are the only ways to classify or categorize the cases. One could, for example, break apart each statutory provision challenged in each case. That would lead to more total claims, but also more total successful claims (so it might be a wash in terms of overall success rates). One could also include state cases to provide a more comprehensive picture about Bruen’s effect. One could also exclude habeas cases (which uniformly rejected challenges in this set) or include only final orders, and exclude interim relief, vacated decisions, or non-binding opinions. There are many different ways to assess the effects of Bruen in the lower courts. In the article, I also provided a lengthy qualitative analysis of how and on what points lower courts are disagreeing about how to implement the test. The biggest, and to me undeniable, takeaway from the cases so far is that Bruen has been more impactful, more quickly, than Heller. But as to what exact win percentage the cases generate, that all depends on how one chooses to make judgment calls about the categories.

As Joseph and Eric’s work shows, successful claims after Heller trickled in like a stream, with only a small handful of wins even a year-and-a-half out from the decision; Bruen, by contrast, has come on like a tidal wave. On the one hand, that’s surprising because Heller marked a significant turning point in federal constitutional law. Prior to June 26, 2008, individuals had no cognizable Second Amendment claims in court (outside the 5th Circuit, which had held similar to Heller in 2001). After that date, all manner of Second Amendment claims were viable. So one might have expected significant doctrinal changes. On the other hand, Heller described its holding narrowly and carved out a set of presumptively lawful laws that covered the bulk of the most frequently invoked firearm regulations. And Heller didn’t incorporate the Second Amendment against the states either. Still, I think these data show that it wasn’t so much Bruen’s holding that the Second Amendment protects a right to carry in public that generated such monumental shock waves, but (like many of us predicted) the sweeping new test. That test was, as the district court called it in United States v. Alaniz, “a revolutionary constitutional framework.”

With the government’s request that the Supreme Court review the Fifth Circuit’s holding in Rahimi, the Court might soon have a chance to offer more guidance to the lower courts.

[1] I included magistrate report and recommendations and, in one instance, a court decision that dismissed the case on standing grounds because the judge spent more than a dozen pages explaining why he would have found the laws unconstitutional (as he later did, once standing was established): Antonyuk v. Bruen, No. 22-CV-0734GTSCF (N.D.N.Y. Aug. 31, 2022).