Is the Second Amendment a Second-Class Right?

Abstract

In the decade since District of Columbia v. Heller, results for gun rights claimants have been fairly unimpressive. The situation leaves some people concerned that judicial opposition is turning the Second Amendment into a second-class right. This paper takes up empirical elements of the concern. We compare five fields of constitutional litigation in the U.S. Courts of Appeals from 2008 through 2016: gun rights, abortion rights, affirmative action, establishment of religion, and commercial speech. In terms of success rates, we do find significant differences in attracting judge votes across some of these case sets, with gun rights claims at the low end. We are unable to erase or fully explain the relatively poor performance of gun rights claims by introducing several independent variables. Furthermore, judges appointed by Democrats might contribute more to the disparities than judges appointed by Republicans, although neither set of judges seems to support all claims at equal rates. In terms of causes, the situation is far less clear. Plausible explanations are available that do not involve judges disfavoring gun rights, such as relatively assertive claimants and relatively cautious regulators. Existing data cannot rule out those explanations. Nor is it clear that more data will solve the problem of isolating the contribution of judicial preferences to case results across fields of litigation. More fully detailing and explaining the forces at play in all of these fields is a task for future work, a significant part of which will have to be theoretical, historical, and ethnographic.