Judicial Ideology Emerges, At Last, In Second Amendment Cases
13 Charleston Law Review (2019, Forthcoming)
32 Pages Posted: 24 Apr 2019
Date Written: April 2019
Americans seem increasingly divided along party lines when asked general questions of value regarding gun policy. Partisan divides are sometimes smaller for relatively specific policy questions, interestingly, but gaps can be found either way. One might also expect ideological divides when judges decide constitutional claims to gun rights. Those claims are not governed by any rigid and comprehensive doctrine. And yet, in an earlier study of federal circuit court cases decided from 2008 through early 2016, no ideological divide between judges was apparent.
With more recent data, however, we cannot as easily suggest that judges are special in the struggle over gun policy. For 2016–2018, three different proxies for judge ideology are significant predictors of judge votes in civil gun rights cases. We estimate a 21-point gap between Republican and Democratic appointees in the probability of supporting a claim during that timeframe. Moreover, the gap appears to result primarily from Democratic appointees becoming less likely to support gun rights claims over time. The explanation for this shift does not appear to be new judges, however. On average, President Obama’s appointees do not seem to vote differently from other Democratic appointees.
The best explanation for the change is not yet known. Possibilities include new judicial attitudes, new issues arising from post-Newtown firearms regulation, and a new political environment initiated by the 2016 presidential campaign. In any event, judicial review in gun rights cases is beginning to look more like larger disagreements in this country over concrete gun policy proposals—disagreements with which we are quite familiar.
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