One Year of Bruen’s Reign: An Updated Empirical Analysis

The Bruen decision brought about a sea change for Second Amendment law, and the Supreme Court’s decision to hear the Rahimi case next year brings questions about its methodology to the forefront. Many scholars are writing about the Bruen decision and its effects. My own contribution, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, has now been updated with the results of a review of all the federal court decisions in the Westlaw database that resolved a Second Amendment claim through one full year. In March of this year, I wrote a blog post explaining the results of my review of the cases up to the eight-month mark; Part III.A of my paper has now been updated with the data for a full year, which I’ll also reproduce and briefly discuss in this post. As before, I am including my data here so that other researchers can use it and explore the cases in new or different ways (or correct any errors I made). The excel spreadsheet with all cases is here; the excel spreadsheet with all claims is here.

The numbers are remarkable. Courts were able to resolve an incredibly high number of claims in just 12 months—more than one per day on average. Some of that seems to have come by necessity, like applications for emergency or interim relief or criminal proceedings that require speedy resolution.

My prior post compared the post-Bruen success rates to Eric and Joseph’s study of Heller’s aftermath, and the divergences in one year of data are still stark.

Table 1: Second Amendment Decisions Post-Bruen (6/23/2022 - 6/22/2023)

Table 2: Second Amendment Claims Post-Bruen (6/23/2022 - 6/22/2023)

In this data, more than 80% of the opinions came from criminal cases, but even though they accounted for the large majority of cases, just 11 claims prevailed in those cases compared to 33 in civil cases. Challenges that occurred during criminal proceedings were exceedingly unlikely to prevail. Fewer than 4 percent of those claims succeeded. By contrast, in civil cases (which includes habeas corpus cases), a Second Amendment claim prevailed in more than 40 percent of the cases.

The next chart shows the major types of claims among the 375 total claims and their corresponding success rates. Notably, a full 161 claims concerned the federal felon-in-possession law—18 U.S.C. § 922(g)(1)—representing more than 40 percent of all claims in the data set. Of all these felon-in-possession challenges, one (1) claim prevailed. The percentage of these claims here is higher than some longer-term empirical studies on Second Amendment claims have shown, indicating that the category might be overrepresented in this initial picture. Eric and Joseph, for example, found that 24 percent of the more than 1,100 challenges in their eight-year data set were to the felon-in-possession statute.

Table 3: Claim Categories & Success Rates Post-Bruen (6/23/2022 - 6/22/2023)

As before, let me repeat the cautions and caveats from my last post, all of which still hold true (though I’m slightly modifying the text here because of the new timeframe).

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) that the government action violated the Second Amendment. Only those pre-June 22, 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 slightly 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 every 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.

Last week, Judge Carlton Reeves issued an extraordinary opinion striking down the felon-in-possession ban as applied to an individual convicted of multiple violent felonies. It may be one of the most important Second Amendment cases to date. That case is not in this data set, having been issued more than a year after Bruen, but it marks only the second vindication of a felon-in-possession claim, and the first to occur in a criminal case. (The Third Circuit’s Range case was a civil challenge.) More importantly, Judge Reeves underscored the difficulties that Bruen’s method creates for judges who are not expert historians and yet are forced to decode and decipher historical sources—and strike down laws where government briefing comes up short. My article argues that the Court should revisit Bruen’s method. Judge Reeves makes this point even more forcefully. Combined with his visceral and trenchant critique, the empirical analysis of the results in the more than 300 post-Bruen decisions shows lower courts floundering. And that chaos is not just from the amount of laws struck down (though that it is notable) or the lower courts’ divergence on outcomes (also worth emphasizing), but also from the fundamental disagreement about how even to construe and apply Bruen’s new method.