Publication Date
November 7, 2018
David B. Kopel
Second Amendment, litigation data, underenforcement, nullification, judicial review
This article is an invited response to Eric Ruben and Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms after Heller, 67 Duke L.J. 1433 (2018). The Ruben and Blocher article collects and analyzes data about Second Amendment court cases from 2008 to 2016.

The response article praises Ruben and Blocher's important quantitative contributions, which provide better understanding of Second Amendment litigation in the post-Heller years. However, the response article challenges Ruben and Blocher's claim that there is no problem of Second Amendment underenforcement in the courts.

A closer look at the Ruben and Blocher data demonstrate a pervasive problem of judicial refusal to enforce the Second Amendment in the Second, Fourth, and Ninth federal Circuit Courts of Appeals. Although the Ruben and Blocher data tables show various "successes" for Second Amendment litigants in these courts, these "successes" were either on preliminary motions, or were subsequently overturned. In the three circuits, only one final opinion on the merits produced even a small success for the Second Amendment.

Moreover, several circuit courts have nullified half the Second Amendment--the right to "bear" arms--by upholding severely restrictive licensing laws that forbid over 99% of the law-abiding adult population from exercise the right to bear arms.

According to the Ninth Circuit, the right to keep arms is not even affected by a law that prohibits having an operable defensive handgun in the home when a person is sleeping, bathing, or changing clothes.

Worst of all is the Second Circuit, which has deviated from the mainstream of federal circuit precedent by creating especially feeble standards of review. Unlike other circuits, the Second Circuit says that some laws that impair Second Amendment rights can be upheld under the "rational basis" test. As for laws that get heightened scrutiny, the Second Circuit's standard is to consider only the government's evidence, and not the citizens' rebuttal evidence.
Recommended Citation
Kopel, David B. and Kopel, David B., Data Indicate Second Amendment Underenforcement (October 15, 2018). 68 Duke Law Journal Online 79 (2018), U Denver Legal Studies Research Paper No. 18-34, Available at SSRN:

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