Lawyers are good at many things. Okay, not many, but spinning baseless arguments into rational sounding positions designed to prevail in the face of ignorance is one of our strengths. That was the position in which Judge Carlton Reeves found himself when the case before him argued that the felon in possession statutes, 18 U.S.C. § 922(g)(1), was unconstitutional under the Supreme Court’s recent decision in Bruen.
As courts have realized, after Bruen, adjudicating the issue presents certain difficulties.1 Bruen instructs courts to under‐ take a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2130. In fact, Justice Alito commends the majority for its “exhaustive historical survey.” Id. at 2157 (Alito, J., concurring).
Sounds easy enough, but for one fairly glaring problem. What is the historical tradition, and how are judges supposed to figure it out?
From the mile-high perspective, it seems easy enough to argue that back then, people had to go out with their guns (muskets, at the time) and shoot a bunny if they wanted to eat dinner that night. That said, denying a felon a gun would have meant starving him and his family, and who wants to starve sweet, innocent Felon, Jr.? A perfectly reasonable argument in favor of what seems entirely reasonable history. Of course, I just pulled the argument out of my butt because I’m no historian, the judge is no historian, so how would anybody know if this perfectly reasonable sounding argument was accurate?
But historical consensus on this issue is elusive. As the Seventh Circuit put it, “scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms.”
The Bruen Court acknowledged only that “historical analysis can be difficult.”
That is an understatement.
And if it’s not within the purview of lawyers or judges, wouldn’t historians know better?
This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. See id. at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians.”).
While it’s obviously true that neither lawyers nor judges have the training to accomplish the task the Supreme Court requires courts to do, the notion that playing “ask a historian” will end the query has issues as well.
And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.
While it’s unfortunate that Judge Reeves felt it necessary to take note of the founding fathers being “white, wealthy, and male property owners,” injecting some trendy passive-aggressive ad hominem into the mix for kicks, his assertion begs the question. Did all of them agree on the issue at hand, or was there a mix of views and a compromise? Did all of them agree on anything? Did they even think about it or was this one of myriad issues that was taken for granted or not important enough to make it to the front burner when they were hashing the details of how to form this nation’s Constitution?
Who knows?
It appears that historian scholars disagree, which no doubt is as shocking to you as it is to me, about the meaning of the Second Amendment.
One expert on the Second Amendment called the Court’s historical analysis “an ideological fantasy.” Saul Cornell, Cherry‐picked history and ideology‐driven outcomes: Bruen’s originalist distortions, ScotusBlog (June 27, 2022). Another historian noted the “growing number of strictures on what [the Court] counts as historical evidence. There is no method to it, nothing but inconsistency and caprice.” Jill Lepore, The Supreme Court’s Selective Memory, The New Yorker (June 24, 2022). These critiques support an increasingly common attack: that the Court simply “cherry‐picked” the historical record to arrive at its ideologically‐preferred outcome. Mark Joseph Stern, Clarence Thomas’ Maximalist Second Amendment Ruling Is a Nightmare for Gun Control, Slate (June 23, 2022).
Granted, it’s very hard to take Judge Reeves’ doubts seriously when he cited to Slate’s Mark Joseph Stern, a writer who has never let facts get in the way of ideology, and yet his point here is well-taken. Historians disagree and the “answer” becomes largely dependent on which historian you ask.
Not wanting to itself cherry‐pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter. See Fed. R. Evid. 706. This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.
Given the command of the Supreme Court to decide these cases in accordance with “our Nation’s historical tradition, and the scholarly limits of judges and lawyers, what’s a judge to do? Then again, does this mean the judge is merely a rubber stamp for a historian? Does this mean that the choice of historian, recognizing that scholarly disagreements exist, dictates the outcome? Is there a historian, or group of historians, who are so trusted as honest brokers that their word is gospel? And what of the lawyers, who are duty-bound to argue their client’s cause but are now constrained to stand on the sidelines while some eggheads decide whether the defendants walks or goes to prison for life plus cancer?
An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions.
Or it may not. Neither the judge, the lawyers nor anyone else will ever really know what the founding fathers had in mind, if anything.
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This problem arises in many other cases, especially if they involve tech, or medical issues, or risk. Especially when the issue involves risk calculations that are based of calculations and data that are not transparent at all.
And the, of course, none of them are biologists, and are therefore completely unqualified to decide what a man or a woman is.
But this post isn’t about what is a man or woman, is it? FOCUS.
In court, man and women are defined as what the law says they are.
Similarly, in court, history is defined as what the law says it is.
Judge Reeves appears annoyed that he is one of the front line judges who has been tasked with defining history.
This even though Judges are frequently required, in the course of qualifying experts, to determine what is good science.
Determining history seems comparatively easy–at least if you define easy as ‘something you can appear competent doing without expending too much effort because it is impossible to be conclusively proven wrong.’
Bruen strikes me as the ultimate constitutional cosplay — and, if I may be so bold, you do an excellent job of pulling creative arguments out the okole.
Taken at face value, Bruen simply held that all 50 states must use objective criteria when issuing concealed carry permits. Of course, if that was all SCOTUS wanted to do, why throw in the “historically accurate test” (or words to that effect)? What, after all, did concealed carry look like in 18th century America? A musket being a long gun, it is highly unlikely that John Adams had one hidden inside his voluminous pantaloons, ready at a moment’s notice for self-defense so long as his putative assailant would wait for him to spend however long it took him to load, light, and fire the damn thing.
And Bruen was focused on self-defense, not feeding Felon Jr., unless of course you’re defending yourself with your musket from a killer rabbit (and you don’t have ready access to the Holy Hand Grenade of Antioch).
It’s almost as if some in SCOTUS are toying with the public.
But that’s not your point. Your point is that lawyers are great ate pulling threads out of their asses and weaving them into great–ok barely-wearable–sweaters. Like the argument that felon in possession is now illegal because of Bruen. I’ve seen similar arguments regarding Bruen. Some courts seem to buy the argument, hook, line, and stinker. Others have been less accepting to such, um, creative arguments.
It’s all fun and games until some felon in possession kills a school full of kids.
“It’s almost as if some in SCOTUS are toying with the public.”
Nope. It was the lower courts toying with the public for nearly a decade since Heller and McDonald, to the point that judges were declaring assault weapon bans constitutional because all it took was that people “felt safer”. See Illinois Supreme Court and Dearfield Park.
Like DeNiro yelling at Stallone, they had they’re chance and they blew it. And maybe that’s why Bruen was written the way it was.
No sympathy; Fuck ’em. I waited patiently.
Felon in possession of a firearm and not committing a crime? I’ll take my chances; give them all their rights back.
This would have been thought to be a state or local issue at the time, so maybe the answer lies in checking the laws of the original colonies/states at the time the constitution was adopted.
Would it? Says who?
It’s inherent. There couldn’t be federal law before there was a federal government, so at constitutional creation, there was only state law, then the second amendment limiting possible federal law.
Why assume there was any law about it?
I looked, and there were some colonial laws in existence as early as 1643. It looks like the first federal foray into firearms law was in 1934. Because old laws are documents of record, lawyers should be able to compile a survey, without the need to consult historians.
FWIW, the first federal gun law was likely the “Militia Acts of 1792”, passed by the same Congress that passed the Bill of Rights.
More to the point, I think you’re conflating colonial ordinances w/ state laws. I’m not sure that follows.
A “gun law” in the sense of requiring a segment of the population to own a rifle or musket and small amount of ammunition. Perhaps that would be adequate to establish as a matter of tradition that people in the mandatory ownership class of that day cannot be denied ownership of a rifle or musket and twenty or so rounds of ball ammunition. It may take many decades for the Court to flesh out how the old traditions are going to be applied to the modern question.
I read the link.
As a layman, I don’t understand why the judge didn’t tell the parties to get their own historians and have the subject matter experts argue it out like they do in other cases.
On what basis would Judge Reeves side with one or the other give his inability to judge the accuracy of disputed historical scholarship?
But isn’t that essentially what judges do anyway? Decide which story in front of them they think is more accurate, since the judge wasn’t there when it happened (otherwise he’d be a witness, not the judge).
Preferably while keeping within the rules of the game and doing their best to avoid the problems created by personal bias.
History is simply the fable agreed upon. Its not exactly rocket science, is it.
Thank you for your scholarly view.
Gun rights advocates would not like this inconvenient fact. Gun control efforts in New York began with the Dutch in the 1650’s. The government restricted settlers to older matchlock guns while banning the more modern flintlock weapons. Sort of like banning high capacity rapid fire weapons like the AR-15 and allowing bolt actions hunting rifles today.
The government also banned the sale of weapons to a disfavored population: Indians. The penalty for trading guns to Indians was death. A lawyer today could argue and a judge accept that in New York gun control is valid historically.
This worked as well as banning drugs and using drastic sentences does today with drugs. Soon both settlers and Indians were well armed and shooting at each other.
Are you that old that you say this from personal knowledge or did somebody say so and you choose to believe?
“Guns in American Society” Two Volume set. Gregg Lee Carter Editor. Available on Amazon. No link per policy. Facts were from there. Opinion was my own.
Sometimes I think I need to use smaller words.
I suspect that Thomas in Bruen was trying to do for the Second Amendment what US V. Stevens did for the First. Stevens, you will recall, declined to have the Court invent new exceptions to the First Amendment using some ad-hoc balancing test, limiting it to those exceptions that are historically established.
But when Stevens was decided, there was a large and mature body of First Amendment law that had been litigated and re-litigated for over a hundred years, such that trial courts usually had a pretty good idea what those historical exceptions were and where their boundaries sat. Prior to Heller and MacDonald, however, many legal commentators would have insisted the Second Amendment didn’t forbid ANY gun control action the government thought salutary.
A mathematician would point out that the Supreme Court made the logical error of not proving that “the Nation’s historical tradition of firearm regulation” is something that exists.
Wait! It gets worse. What if the history is fraudulent? To put it in a different, better way, can you con someone who wants to be a mark?
Because gun rights have been a political issue for at least fifty years, historians with political viewpoints have an incentive to put their thumbs on the scale and massage the data, or even just make it up. See Arming America: The Origins of a National Gun Culture by Michael Bellesiles. Bellesiles made extensive claims in his book that there was minimal firearm ownership in early America and presented a mass of archival data that everyone eventually learned was made up out of whole cloth.
I think that Judge Reeves should appoint a panel of historians, and to paraphrase H.L. Mencken, supply them with unlimited victuals and alcohol until they arrive at a conclusion satisfactory to Judge Reeves.
A Nightmare for Gun Control is exactly what we need. The second amendment is unambiguous. “the right of the people to keep and bear Arms, shall not be infringed.”
Liberal judges have whittled away at this clear prohibition of gun control for centuries. The restoration of those infringed rights is a good thing.
I’m as ardent an advocate for the right to bear arms as you’re likely to find, and I’m glad that decades of nonsense that pretended the 2nd Amendment means basically nothing at all are finally getting the treatment they’ve always deserved from the courts.
But Bruen is a giant mess for trial courts. Whereas Scalia’s inkblot in Heller left district judges with no rule for determining what restrictions would pass constitutional muster, Bruen leaves them with a rule they’re not equipped to apply with any consistency. So what are we likely to get? Historical analysis of widely varying quality, plus a heap of motivated reasoning, which the Supremes will either have to sort out case by case, or else ignore for years like they did with post-Heller cases.
This looks like an excellent way to create jobs for Historians. We all know History majors have it hard. Let both parties hire their expert historians and have a battle of experts to divine original intent.
I’ve been letting my thoughts crystalize all day and here’s what I’ve got:
1) There are plenty of situations where judges have to take evidence in order to rule on the constitutionality of a statute. Some involve heavy expert testimony, like cases evaluating redistricting statutes (granted, SCOTUS tried to tell federal judges to stay away from those). When has a need for expert testimony ever made judges “unequiped” to rule on the constitutionality of a statute.
2) Should district court judges be [complaining] this much in an order?
“History is written by the victors” as Winston Churchill was or was not the first to say (an uncertainty that pretty much makes the point).