New Study Reveals Bruen's Impact on Federal Judiciary

Supreme Court IMG_1062

The good news? There's been a 300% increase in the number of federal lawsuits successfully challenging various gun control laws in the two years since the Bruen decision came down. 


The bad news? In nearly 9-in-10 cases, judges are still rejecting the arguments of 2A plaintiffs and upholding the gun control laws in question. 

The numbers come from a new paper from three law professors who aren't exactly big fans of the Bruen decision. Rebecca Brown, Lee Epstein, and Mitu Galati also take issue with what they see as an increase in "partisan" decisions by Trump-appointed judges, who the professors claim are more likely than their counterparts to declare gun laws unconstitutional. 

By the numbers: Federal courts handed down 865 gun-rights decisions in 2023, up from 121 in 2021.

  • In the post-Bruen era, 11% of cases have come down in favor of gun rights, up from just 3% before the Supreme Court decided District of Columbia v. Heller in 2008.
  • Republican appointees are slightly more likely to find in favor of gun rights: They now do so in 14% of decisions, compared to 8% for Democratic appointees.

What they found: Judges appointed by President Trump are much more likely to find in favor of gun rights. That's especially true if they're under the age of 55 and deciding cases that will be "reported" — that is, published in a regional or federal book of cases.

  • Judges under 55 are considered to be "auditioners" — that is, they're looking to receive promotions. In reported cases, they find in favor of gun rights a whopping 61% of the time.

Keep in mind that the huge increase in 2A-related cases over the past few years isn't only the result of more lawsuits being filed by groups like the Second Amendment Foundation, Firearms Policy Coalition, Gun Owners of America, and the NRA. Most of these cases are being brought by public defenders, and their clients often don't make for great plaintiffs. Still, the fact that almost 90% of cases are still found in favor of the government and various gun laws shows just how far we have to go before the Second Amendment is no longer treated as a second-class right in the federal judiciary. 

One of the few bright spots in the study is the fact that younger judges appear to be far more supportive of 2A challenges than older jurists. The anti-Bruen law professors who authored the study may see that as a sign that judges are auditioning for a slot on an appellate court or even SCOTUS, but I'd argue that these judges, many of whom have only been appointed in the past few years, may simply view the Heller, McDonald, and Bruen decisions in a different light than those who were appointed to the bench long before Heller was decided in 2008. 

We know that there's been a lot of resistance to the Court's "text, history, and tradition test", with many appellate courts completely disregarding the test and adopting a two-tiered interest balancing approach instead; similar to how First Amendment jurisprudence has developed over the decades. Most younger judges, including those appointed by Donald Trump, were appointed after the Heller decision came down fifteen years ago, and might not have the same ideological opposition to the test that many senior judges bring to the table. 


Of course, it could also be that Trump's judicial appointments simply have a more positive view of the right to keep and bear arms than their older counterparts, especially those appointed by Barack Obama or Bill Clinton. I'm sure that's horrifying to the law professors who came up with this study, but it's also a strong selling point for Trump to make on the campaign trail: if you want to protect your Second Amendment rights, you can't have Joe Biden filling the judiciary with anti-gun judges for another four years. 

Join the conversation as a VIP Member