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One Year of Bruen’s Reign: An Empirical Analysis Extended to Presidential Appointment

  • Date:
  • January 31st, 2024

By: Hannah IsraelMarie

Many scholars have written about the Bruen decision and its effects. A few months ago, Professor Jacob Charles wrote a blog post titled One Year of Bruen’s Reign: An Updated Empirical Analysis, which reviewed all federal court decisions in the Westlaw database that resolved a Second Amendment claim from June 23, 2022 through June 22, 2023.

This post will explore that same data set in a new way: by asking if and how presidential appointment may have influenced Second Amendment case outcomes. The collected data is available in an Excel spreadsheet here, so that other researchers can use it to verify the results and explore the cases in new or different ways. In addition to Professor Charles’ work, other efforts have been made since Bruen to analyze Second Amendment case outcomes through the lens of party appointment. In an article forthcoming in the Virginia Law Review Online, legal and empirical scholars coded one year of post-Bruen decisions and found a 31% gap between Republican and Democratic-appointed district court judges and a 16% gap between Republican and Democratic-appointed appellate judges in terms of when those judges voted to grant relief in Second Amendment cases. (Another study purports to find a 28% gap between Democratic and Republican-appointed judges.) This post contributes to the existing scholarship with a detailed analysis of federal district court decisions on the metrics of partisanship and judicial age. 

The data includes 361 total Second Amendment claims within the one year post-Bruen: 156 claims decided by judges appointed by Democratic presidents and 205 claims decided by judges appointed by Republican presidents. Comparing post-Bruen success rates by presidential appointment yielded the following results:

Table 1: All Second Amendment Claims Post-Bruen, Presidential Appointment

 

Any Invalidation

No Invalidation

Success Rate

Democratic-Appointed Judge

n=156 (43.2%)

5

151

3.21%

Republican-Appointed Judge 

n=205 (56.8%)

37

168

18.04%

Total

n=361 (100%)

42

319

11.63%

This Table indicates that Republican-appointed judges were more likely to grant relief in post-Bruen Second Amendment cases, with claims succeeding in 18% of the cases. By contrast, only around 3% of claims succeeded in cases decided by Democratic-appointed district judges (a gap of around 15%).

The next two tables assess success rates in criminal versus civil cases.

Table 2: Criminal Second Amendment Claims Post-Bruen, Presidential Appointment

 

Any Invalidation

No Invalidation

Success Rate

Democratic-Appointed Judge

n=128 (46.7%)

2

126

1.56%

Republican-Appointed Judge 

n=146 (53.3%)

9

137

6.16%

Total

n=274 (100%)

11

263

4.01%

 

Table 3: Civil Second Amendment Claims Post-Bruen, Presidential Appointment

 

Any Invalidation

No Invalidation

Success Rate

Democratic-Appointed Judge

n=28 (32.2%)

3

25

10.71%

Republican-Appointed Judge 

n=59 (67.8%)

28

31

47.46%

Total

n=87 (100%)

31

56

35.63%

Second Amendment claims brought in civil cases were far more likely to succeed, no matter the political party of the appointing president (the average success rate was over 35% in civil cases, compared to just 4% in criminal cases). However, claims brought in civil cases before Republican-appointed judges were more likely to succeed than civil claims in cases before Democratic-appointed judges (with a gap of about 37%). That said, these numbers are based on a small sample size and, as Professor Charles noted in his earlier survey, they may be disproportionately influenced by a small number of cases in which many Second Amendment claims were raised before the same judge. 

The next three charts break down the success rate of Second Amendment claims even further—first by examining the breakdown for each individual appointing president and then by considering these numbers in context of the entire federal judiciary.

Table 4: Appointing President & Success Rates of Second Amendment Claims Post-Bruen

 

Any Invalidation

No Invalidation

Success Rate

Carter

n=1 (.3%)

0

1

0%

Reagan

n=10 (2.8%)

1

9

10%

George H. W. Bush

n=7 (1.9%)

0

7

0%

Clinton

n=34 (9.4%)

1

33

2.94%

George W. Bush

n=101 (28.0%)

23

78

22.77%

Obama

n=104 (28.8%)

1

103

.96%

Trump

n=88 (24.4%)

13

75

14.77%

Biden

n=16 (4.4%)

3

13

18.75%

Total

n=361 (100%)

42

319

11.63%

 

Table 5: Judges Deciding Second Amendment Claims Post-Bruen by Appointing President

Appointing President

Number of Judges

Percentage

Carter

1

.51%

Reagan

6

3.08%

George H. W. Bush

5

2.56%

Clinton

22

11.28%

George W. Bush

48

24.62%

Obama

58

29.74%

Trump

45

23.08%

Biden

10

5.13%

TOTAL

195

100%

 

Table 6: Appointing President, Nationwide Federal Judiciary

Appointing President

Number of Judges

Percentage

Carter

19

1.82%

Reagan

68

6.52%

George H. W. Bush

56

5.37%

Clinton

167

16.01%

George W. Bush

199

19.08%

Obama

249

23.87%

Trump

171

16.40%

Biden

108

10.35%

TOTAL

1037

100%

Interestingly, in this data, litigants have the highest success rates when bringing Second Amendment claims before judges appointed by George W. Bush (22.77%), then Joseph Biden (18.75%), and then Donald Trump (14.77%). Compare these rates with judges appointed by Barack Obama, for example, who make up over 28% of the sample but where the success rate is below 1%. As with the data above, it is important to qualify these results as potentially unrepresentative—in part because they may be skewed by a small number of cases containing many Second Amendment claims that happen to have been decided by George W. Bush appointees (specifically, ongoing legal challenges to locational firearm restrictions in New York and New Jersey).   

Looking specifically at Tables 4, 5, and 6 above, the sample included 88 Second Amendment claims brought before district judges appointed by Donald Trump, representing a total of 45 individual judges (some of whom issued multiple Second Amendment decisions). This means that Trump-appointed judges represent 24.4% of the total claims in the sample and 23.08% of the total judges in the sample. By contrast, Trump-appointed judges make up 16.40% of federal district court judges nationwide. That gap of 6.68% is about the same as the gap for Obama-appointed judges (5.87%), and it’s not surprising these judges would constitute a higher percentage of post-Bruen decisions because they are younger and less likely to have taken senior status, and thus presumably have higher caseloads. While based on a small sample, perhaps the most interesting takeaway here is that Biden-appointed judges appear less likely to decide Second Amendment claims (with those judges constituting over 10% of the federal judiciary as a whole but only about 5% of post-Bruen Second Amendment decisions). 

Finally, these next two charts break down success rates by age range of the deciding judge.

Table 7: Age Range of Judge & Success Rates of Second Amendment Claims Post-Bruen

 

Any Invalidation

No Invalidation

Success Rate

36-45

n=21 (5.8%)

2

19

9.52%

46-55

n=55 (15.2%)

7

48

12.73%

56-65

n=135 (37.4%)

9

126

6.67%

66-75

n=119 (33.0%)

12

107

10.08%

76-85

n=27 (7.5%)

2

25

7.41%

86-95

n=4 (1.1%)

0

4

0%

Total

n=361 (100%)

42

319

11.63%

 

Table 8: Age Range of Judge, Second Amendment Claims Post-Bruen

Age Range

Number of Judges

Percentage

36-45

13

6.67%

46-55

26

13.33%

56-65

68

34.87%

66-75

66

33.85%

76-85

19

9.74%

86-95

3

1.54%

TOTAL

195

100%

While it is difficult to draw conclusions based on only a year’s worth of data, the highest success rate was in the 46-55 age range where 12.73% of Second Amendment claims succeeded (those judges are, one would suspect, primarily Biden and Trump appointees). 

The same cautions and caveats from Professor Charles’ earlier post hold true here as well, but I will briefly expound upon them:

I compiled these cases using Professor Charles’ dataset and my own Westlaw search results for all federal cases that cited Bruen and then narrowed down from there to only substantive Second Amendment decisions. I added 31 additional cases to the existing dataset and removed 45 cases from the existing dataset that were decided by magistrate judges (no appointing president) or at the circuit level. This kept my dataset to federal district court decisions only. I 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. I then gathered information regarding the deciding judge’s name, appointing president, appointing presidential party, and age range. Only decisions issued prior to June 22, 2023 were included.