Scholarship Highlight: Post-Bruen Judicial Partisanship and Immigration Restrictions

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new draft posted to SSRN, Rebecca Brown, Lee Epstein, and Mitu Gulati empirically analyze the partisan divide in gun-rights cases since Bruen.  They generally find that “Bruen appears to have left sufficient discretion to lower court judges such that the Democratic judges were able to uphold gun rights less often while Republicans were able to champion gun rights.”  They also argue, with regard to judges appointed by former President Donald Trump, that “Bruen may have amplified careerism, in the form of promotion effects.”

Alan Mygatt-Tauber, in a new article, takes an in-depth look at restrictions on undocumented immigrants possessing firearms.  Mygatt-Tauber focuses on whether historical analogues might support laws targeting undocumented immigrants and argues “that lawfulness of status is irrelevant to the question of a noncitizen’s rights under the Second Amendment.”

Rebecca L. Brown, Lee Epstein & Mitu Gulati, Guns, Judges and Trump, posted to SSRN

Abstract:

This Essay reports data on the impact of Bruen and its predecessor, Heller, on gun rights cases. Put mildly, the impact was substantial, not only in terms of the number of cases in the courts but also the partisanship displayed in the application of Bruen. And that partisanship increase was particularly large on the part of Trump-appointed judges. The Supreme Court has now decided Rahimi, its first opportunity to apply Bruen. While the Court's new decision blunted some of the sharpest concerns raised by Bruen, it did not eliminate the key concern, recommitting itself to a test that places considerable unguided discretion in judges, inviting partisan bias. The revolution that the Court wrought through Bruen and Heller may have only just begun.

Alan Mygatt-Tauber, The Second Amendment Rights of Undocumented Immigrants, posted to SSRN

Abstract:

In 2008’s District of Columbia v. Heller, the Supreme Court, for the first time, held that the Second Amendment protects an individual right to bear arms. Challenges to various federal gun control laws immediately followed, including challenges to 18 U.S.C. § 922(g)(5)(a), which prohibits possession by an undocumented immigrant. Between 2008 and 2022, courts faced with challenges to 922(g)(5)(a) universally upheld it. Then the Court decided New York State Rifle and Pistol Association v. Bruen, in which it discarded the means-end balancing tests the courts of appeals had adopted, instead preferring a test focused on “history and tradition.” Under Bruen’s test, if a regulation was targeted at conduct protected by the Second Amendment, it was presumptively invalid, unless the government could identify an analogous law from the time of the Founding. New challenges were filed. Many courts have continued to uphold the constitutionality of 922(g)(5)(a), but others have found that it is unconstitutional. And at least two circuits have upheld the statute on the ground that undocumented immigrants are not part of “the people” protected by the Second Amendment.

This article is the first in-depth look at the application of Bruen’s test, as modified by the Court’s June 2024 decision in United States v. Rahimi, that addresses both the question of whether undocumented immigrants are part of “the people” entitled to Second Amendment protections and, if so, whether any of the historical analogues identified by the government serve to justify 922(g)(5)(a)’s complete ban on gun ownership. It concludes 1) that undocumented immigrants are part of “the people” because status is irrelevant to the question—it is physical presence in the United States that matters; and 2) none of the purported analogues support a categorical ban on undocumented immigrants possessing firearms. Instead, they support an individualized analysis where only the dangerous may be disarmed.