Theory that gun restrictions must align with nation’s history and tradition generates pattern of partisan decisions

 In 2011, a federal appeals court voted 2-1 to uphold Washington, D.C.’s assault weapons ban. The lone dissent came from then-Judge Brett Kavanaugh, who argued that a gun restriction could only be constitutional if it fit with the nation’s history and tradition of gun regulation. Such a test, he wrote, would be “much less subjective,” preventing judges from injecting their personal ideologies. 

Eleven years later, in June 2022, Kavanaugh and his Republican-appointed allies on the Supreme Court incorporated that test into their decision in New York State Rifle & Pistol Association v. Bruen, reshaping the right to bear arms and setting off a flurry of legal challenges to gun regulations.

But a new analysis by The Trace of more than 1,600 Second Amendment rulings filed in the wake of Bruen found that, instead of limiting judges’ discretion as Kavanaugh and the other conservative justices predicted, the decision has made federal courts even more of a political battleground, where gun laws rise and fall along partisan lines.

The Trace’s analysis identified 150 lawsuits seeking to overturn state assault weapons bans, age limits on buying firearms, licensing rules, and other gun restrictions. In these cases — many of which were brought by the National Rifle Association and other gun rights groups — Republican-appointed judges sided with plaintiffs 48 percent of the time. 

That is four times the rate of Democratic appointees, who did so in 13 percent of the cases they heard.

The remaining 1,450 rulings reviewed by The Trace involved criminal defendants, many of whom were using Bruen in an attempt to have their charges or convictions thrown out. In these cases, some Democratic judges have been sympathetic to arguments that gun regulations not only have little historical support but also disproportionately affect marginalized groups.

Democratic appointees have sided with gun rights claims in 30 out of the 525 criminal cases they’ve heard, or 6 percent. Two judges — Robert Gettleman and Staci Yandle, both in Illinois — alone issued 17 of those 30 rulings. By comparison, Republican-appointed judges ruled in favor of defendants in 22 out of 748 criminal cases, or 3 percent. (The remaining criminal cases were heard by nonpartisan magistrate judges.)

“You’ve got the same Supreme Court decision, yet you’re getting this ideological difference in how the same rule is applied by all these different people,” said Jeremy Fogel, who served as a federal judge in California for 20 years before retiring in 2018. “It undermines trust when people think that judges are just deciding cases based on their policy preferences.”

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