Scholarship Highlight: The Second Amendment and the Judiciary
The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.
We previously highlighted an article from Professors Rebecca Brown, Lee Epstein, and Mitu Gulati examining the partisan divide in Second Amendment cases since Bruen. In Guns, Judges, and Trump, now published in the Duke Law Journal Online, the authors argue 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 attribute much of this divide to Trump-appointed judges who, in the authors’ view, may be auditioning for promotion within the judiciary.
The Duke Law Journal Online also recently published two short essays responding to Guns, Judges, and Trump. First, Center faculty director Joseph Blocher highlights the importance of judicial rhetoric (in addition to case outcome) and how the “levels of generality” problem is a key factor in licensing judicial discretion. Second, Professor Brannon Denning takes issue with the “auditioning” hypothesis and argues that younger judges appointed by President Trump “would have been among the first exposed to professors and scholarship vigorously advocating the individual right reading of the Second Amendment.”
Rebecca L. Brown, Lee Epstein, and Mitu Gulati, Guns, Judges, and Trump, 74 Duke L.J. Online 81 (2025)
Abstract:
The Second Amendment landscape is widely perceived to have changed as a result of two cases, District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen. But how much did it change and in what ways? Empirical work on these questions has been sparse. This Essay reports on a preliminary look at the data. Although this is a developing story, the impact of these cases appears to have been substantial, and not only by increasing the sheer number of gun cases in the courts. More significant is the way that the Court’s new historical test for assessing gun regulations has provided lower courts with so little guidance that enforcement of gun rights has displayed a significant degree of partisanship. The data calls into question the Court’s claim to have reduced the discretion of judges in enforcing the Second Amendment.
Joseph Blocher, Bruen in a Changing Judiciary, 74 Duke L.J. Online 139 (2025)
From the Introduction:
Inasmuch as Bruen’s legitimacy is predicated on being administrable and judge-constraining, it is both fair and important that it be evaluated on that basis. In that respect and many others, Rebecca Brown, Lee Epstein, and Mitu Gulati have made an enormous contribution with “Guns, Judges, and Trump.” They show empirically that Bruen has unleashed not only an increase in Second Amendment litigation, but a significant increase in partisan outcomes, at least among Trump-appointed judges—and especially among young Trump-appointed judges who might be auditioning for elevation to a higher court.
Their project was undertaken before the 2024 Presidential election and would have been significant regardless of the result. But Donald Trump’s reelection makes their Article not only a retrospective on where Second Amendment law has been for the past few years, but a projection of where it might be going after another round of Trump appointments. Speaking at the National Rifle Association during his first term, Trump declared, “You came through for me, and I am going to come through for you.” Brown et al.’s study suggests that he followed through on that promise, and he seems likely to do so again. Following an assassination attempt on then-candidate Trump during the 2024 campaign, an advisor announced, “We’ll see a continuation of supporting and defending the Second Amendment, and really where that comes into play is, you know, the judiciary.”
Against this backdrop of doctrinal and political transformation, this short response highlights a few issues that—while empirically hard to measure—help contextualize Brown et al.’s findings and perhaps point the way to future studies, empirical and otherwise.
Brannon P. Denning, Judges, Guns, and MAGA, 75 Duke L.J. Online 153 (2025)
Introduction:
Professors Brown, Epstein, and Gulati have done yeoman’s work in compiling empirics about the federal courts’ treatment of Second Amendment cases since the beginning of the twenty-first century. Among their findings are that following New York Rifle & Pistol Association, Inc. v. Bruen, Trump-appointed judges rule in favor of gun rights claims in nearly half of the cases they hear. They speculate that this is because those judges are auditioning for promotion by Trump by signaling support for his agenda. In this brief Response, I will summarize their findings, discuss the conclusions they draw from the data and suggest some alternative explanations. I take particular issue with their audition hypothesis—that the judges ruling in favor of gun rights claimants are doing so because they are seeking higher judicial office. I argue that an equally likely explanation is that the cohort on which they focus—“judges 55 and younger”—are the first generation of law students to have been exposed in law school and after to professors and scholarship that took the individual right reading of the Second Amendment as a given, as opposed to earlier generations of lawyers and judges, Republican and Democratic alike, who did not.