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Do Some Courts Underenforce the Second Amendment?

Data show problems in several Circuits

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This Fall, the Duke Law Journal held a symposium Heller at Ten: A Symposium on From Theory to Doctrine. All of the articles are, at least partially, responses to an article Eric Ruben and Joseph Blocher that analyzed data for all post-Heller cases, from 2008 until early 2016. From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018). Examining data from 1,153 cases, Ruben and Blocher presented a wealth of interesting findings. For example: pro se plaintiffs rarely succeed; Second Amendment claims have a better chance of success claims in civil cases than in criminal ones; and lower courts rarely use historical sources (only 29 from before 1791, and only 42 from 1791-1868).

All of the response articles, including mine, praised the Ruben & Blocher article, and deservedly so. It is a major contribution to the scholarly literature.

My article, Data Indicate Second Amendment Underenforcement, did take issue with Ruben & Blocher's claim that their data prove that the Second Amendment is not underenforced in the lower courts. First of all, Ruben & Blocher have a broad definition of "success," which includes winning on a preliminary motion. So if a plaintiff defeats a motion to dismiss, and later loses on the merits, Ruben & Blocher score the MTD decision as a Second Amendment success. With this broad definition, they find that Second Amendment claimaints succeed 12% of the time, and therefore there is no underenforcement problem. Ruben & Blocher code ten cases collectively from the Second, Fourth, and Ninth Circuits as Second Amendment successes. Yet only a single one of those cases involved a final decision on the merits.

According to Ruben and Blocher, the highest rate of Second Amendment successes have come in right to carry cases. Indeed, the Seventh Circuit, the Illinois Supreme Court, and the D.C. Circuit have all struck laws that prohibited the vast majority of law-abiding adults from carrying handguns for lawful protection. Illinois and D.C. now have fair systems for adults to obtain carry permits after passing safety training and background checks. Yet decisions in other jurisdictions have nullified the right to bear arms in three states or allowed nullification by local governments in part of five more states. When the exercise of a constitutional right is prohibited for tens of millions of Americans, that does indicate an underenforcement problem in at least some jurisdictions.

Ruben & Blocher's datacentric article was not meant to analyze doctrine. But when one does look at doctrine, underenforcement (indeed, nullifcation) becomes apparent in some courts. Contrary to Heller, the Second Circuit uses rational basis in some Second Amendment cases. When the Second Circuit does apply heightened scrutiny, the court examines the sufficiency of the government's evidence, but does not examine whether the other party has rebutted that government evidence.

When applying intermediate scrutiny, some courts do apply the standard rules, such as considering whether there are substantially less burdensome alternatives to the regulation at issue. But some, including the Second Circuit, skip this part of intermediate scrutiny when the Second Amendment is involved.

Other articles in the symposium were by Michael Dorf (pondering former Justice Stevens' proposal to repeal the Second Amendment); Sanford Levinson (criticizing the Supreme Court's "Sphinx-like inscrutability" on important post-Heller issues, including the federal ban on arms possession by illegal aliens); Darrell A.H. Miller (noting the reluctance of lower courts to use originalist methodology); George Mocsary (critiquing the claim that there is no underenforcement problem; noting much lower win rates under heightened scrutiny Second Amendment contexts than for other rights); Adam M. Samaha & Roy Germano (presenting their own study showing that judges vote in favor of gun rights claims at a far lower rate than they vote for other rights: commercial speech, Establishment Clause, anti-affirmitive action, and abortion rights); and Ronald F. Wright & Mark A. Hall (praising Ruben & Blocher's datacentric methodology).