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.”

Former President Donald Trump appointed more than 200 judges during his term, the second-highest number of any president in history. “We finished a lot already in the four years, but we have things to do, and we have things to finish, and we’re going to get that done,” he told the NRA convention in 2023.

Trump’s judges have ruled against gun restrictions more often than nearly every other president’s appointees, accounting for 29 percent of the rulings in lawsuits striking down gun laws, The Trace found. His judges are behind only former President George W. Bush’s, whose appointees accounted for 48 percent.

“If the public views judges as politicians wearing robes, it raises the question of why we even need judges to decide these issues versus letting the actual politicians — the legislators — decide these questions,” said Judge Gregg Costa, a former appeals court judge who resigned in 2022. “Judges have always disagreed, but what’s different now is that those disagreements are more often falling along partisan lines than they have in the past.”

Voters will head to the polls in November to select the next president, who may get to nominate hundreds of judges and appoint replacements for the two eldest Supreme Court justices — Clarence Thomas and Samuel Alito — influencing the federal courts for decades.

Case in point: One Bush appointee, Roger Benitez, a federal judge in the Southern District of California, has struck down gun laws in more lawsuits than any other district judge. Over the past two years, he has ruled against California’s assault weapons ban and its background check requirement for ammunition purchases. 

In September 2023, Benitez declared California’s restriction on magazines that hold more than 10 rounds of ammunition “clearly unconstitutional.” He wrote, “There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious. It is extreme.”

Assault weapons on display at Los Angeles police headquarters. In 2023, U.S. District Judge Roger Benitez, a Republican appointee, ruled California’s ban on assault weapons and high-capacity magazines unconstitutional. AP Photo/Damian Dovarganes

State Attorney General Rob Bonta quickly appealed that ruling. Bonta noted that high-capacity magazines have been used in many of the country’s deadliest mass shootings, including high-profile ones in California’s Monterey Park and Half Moon Bay in January 2022. 

The 9th Circuit Court of Appeals — the nation’s most liberal appeals court and least friendly to Second Amendment challenges — took the case, stayed Benitez’s ruling, and is considering the state’s appeal.

Nearly every other court over the past two years has upheld magazine limits. That includes other Republican-appointed judges, among them appointees of Trump and former President Ronald Reagan. One Bush appointee upheld New Jersey’s magazine limits even as he struck down the state’s assault weapons ban.

“There just aren’t a lot of guardrails with Bruen, and it becomes a kind of choose-your-own-adventure situation where judges can decide how to answer very open questions,” said Megan Walsh, a visiting assistant professor and the director of the Gun Violence Prevention Law Clinic at the University of Minnesota. “Bruen provides a wide enough lane to allow a judge to let their internal determinations about the way that they want the result to go to lead the analysis.”

A Subjective Test

The partisan divide underscores how Bruen offers judges opportunities to introduce their own policy preferences. When evaluating a gun law, judges must choose which historical period to compare it against. A gun law that was common in the 19th century may have been nonexistent in the 18th. Judges must also weigh whether a past restriction was common enough to be considered a tradition.

Perhaps most critically, judges have to assess whether a modern law restricts gun rights in a similar way and for a similar reason that a historic one did. But how similar they need to be is still unclear, giving judges a lot of flexibility.

“Saying history and tradition gives less room for interpretation or controversy than other approaches is preposterous,” said Noah Feldman, a constitutional law professor at Harvard. “History and tradition is extremely capable of being subject to uncertainty, even more so than a straight-up history test, because tradition is even less specific than history.”

California Attorney General Rob Bonta has appealed a federal ruling overturning the state’s ban on ammunition magazines that hold more than 10 rounds. Sipa USA via AP

Joseph Blocher, a Duke University law professor, said Bruen forces lower-court judges to piece together historical puzzles without enough information or resources. “Twenty years ago, these questions would have been resolved by a legislature,” said Blocher, who co-founded the Duke Firearms Law Center. “We’re in a world where judges now have to make those determinations, and it’s requiring them to analyze sources and make decisions that are frankly unfamiliar.”

Fogel, the former federal judge, said most judges want to decide cases fairly and apply Bruen correctly, but the test provides too many opportunities for them to inject their implicit assumptions or biases, even unintentionally. “That’s a flaw in the rule,” he added. “There’s just this sense that the Supreme Court isn’t thinking about the practical impacts of some of the pronouncements that it’s making.” 

Bruen has led judges from both sides of the aisle to vent frustration. 

“Judges are simply not historians, and historians seldom agree on history,” Xavier Rodriguez, a Bush appointee in Texas, wrote in May.

Reforms Needed

Several legal experts have called for Bruen to be reworked. In an analysis published in July, three professors from the universities of Southern California and Virginia analyzed Second Amendment rulings and concluded that partisanship had risen markedly since Bruen. They argued that the widening divide reflected younger judges’ efforts to appeal to conservative politicians who may later appoint them to higher posts.

Bruen not only widened partisan divides but also gave license to judges to pursue careerist goals,” the professors wrote. “This is consistent with the view that the Bruen approach increased, not decreased individual judges’ discretion.”

Fogel now leads the Berkeley Judicial Institute, a center at Berkeley Law School that aims to promote an ethical and independent judiciary. He said the Bruen test raises the risk of plaintiffs and defendants cherry-picking historical evidence and could sow public distrust of the system.

“It just leaves room for lots of mischief,” he said. “There’s lots of subjectivity on the part of the decision maker.”

In June, the Supreme Court issued another Second Amendment decision in United States v. Rahimi. Seeking to clarify Bruen, Chief Justice John Roberts wrote that gun laws need not be exact replicas of historical regulations but do need to align with their general principles.

Thomas, who authored Bruen, was the lone dissent.

Larry Alan Burns, a former Bush-appointed judge who served for 20 years in California before retiring in May, said far from clarifying Bruen, Rahimi reinforced the ambiguity by embracing loose analogies over strict historical matches. “When you start talking about principles that underlie a statute, I think there’s going to be a range of opinions about what the principle is,” Burns said. “We’re going to be back in a situation that is kind of untenable. It’s going to lead to a number of inconsistent Second Amendment rulings.”

Fogel is skeptical about the possibility of reducing political influence in Second Amendment cases any time soon. Even the most objective historical analysis, he argued, still risks appearing biased.

 “I don’t think there’s a way to depoliticize these cases. I wish there were, but I think we’re past that,” he said. “I don’t know how you ‘unring that bell.’”