Abstract
The Supreme Court has linked the concept of stare decisis to the protection of judicial legitimacy. In Dobbs v. Jackson Women’s Health Organization, Justice Alito’s majority opinion set forth five factors that called into question the legitimacy of Roe v. Wade, and found that they required an abandonment of the 49 year-old privacy right, for the sake of the rule of law. The next day, however, in New York State Rifle & Pistol Association v. Bruen, the same Court enhanced gun rights by articulating a new methodology for evaluating the validity of gun regulations, relying on a search for centuries-old historical analogues of present-day gun restrictions. We now have data by which to examine how Bruen’s new test has fared in the lower courts, through the lens of the Dobbs factors. Those factors examine the nature of the prior court’s error, the quality of its reasoning, the workability of its rule, the degree to which the prior case has disrupted other areas of law, and the degree of reliance it has invited. We collected and analyzed lower federal court decisions in Second Amendment-related litigation from 2000 to 2023. It turns out that the test announced in Bruen has created a space for judicial discretion that has led to partisan polarization in its application. Considering all five of the Dobbs criteria in light of our empirical findings, we conclude that Bruen poses a threat to the stability, objectivity and determinacy necessary to the rule of law: If Roe had to go, so must Bruen.
Volume
39
Issue
3
Page
283
Year
2024
Recommended Citation
Rebecca Brown, Lee Epstein & Mitu Gulati,
If Roe Had To Go…So Must Bruen,
39
Const. Comment.
283
(2024).
Available at:
https://scholarship.law.umn.edu/const-comment/vol39/iss3/1
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License
Publication Abbreviation
Const. Comm.
