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Do Some Courts Underenforce the Second Amendment?
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.
More at ...
Do Some Courts Underenforce the Second Amendment?
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.
More at ...
Do Some Courts Underenforce the Second Amendment?
