It wasn’t Judge Carleton Reeves’ of the Southern District of Mississippi first rodeo. He’s made clear his views that the Supreme Court’s Bruen decision is an unworkable mess, and that neither judges nor lawyers are in any position to provide meaningful answers to Justice Clarence Thomas’ mandate that only “dangerous and unusual” guns as understood from an originalist perspective are prohibited under the Second Amendment.
But Judge Reeves, for better or worse, did a judge’s duty and applied the law as best he could, holding that Justin Brown’s possession of a machinegun in his home was protected under the Second Amendment.
Most of the government’s citations for these arguments are judicial decisions that predate Bruen. Many of its remaining claims, which focus on the benefits to public safety of a machinegun ban, are policy arguments entitled to no weight. Bruen held that “the Second
Amendment does not permit . . . judges to assess the costs and benefits of firearms restrictions under means-end scrutiny.”
Pre-Bruen precedent no longer matters. Policy no longer matters. Only history and tradition matters, and the government’s effort on that front fell short.
The government does ultimately turn to history. Its recitation begins with the 1328 Statute of Northampton, which “made the offense of ‘rid[ing]’ or ‘go[ing] armed’ punishable by forfeiture of the offender’s ‘armour.’” The government cites colonial American authorities for the proposition that a colony could incarcerate persons who “ride or go armed offensively, to the fear or terror of the good citizens.” And it points to post-founding sources showing that a state could punish persons “going armed with dangerous or unusual weapons,” as it would be “a crime against the public peace.”
Cool story, government, but what does any of this have to do with Justin Brown?
These examples might support the prosecution of a person charged with terrorizing others with a machinegun. Yet they provide no support for the prosecution of Mr. Brown. The government does not allege that he did anything against the “public peace.” Mr. Brown was not “armed offensively,” nor was he attempting to terrorize the “good citizens.” He wasn’t going or riding anywhere.
Still, there remains the Bruen admonition against guns that are “dangerous and unusual.” Judge Reeves made quick work of the dangerousness prong. Guns are dangerous, and there are numerous examples of terrible mass shootings with guns, none of which involved a machinegun. If dangerous guns are still protected, the prong has little meaning. Guns are dangerous, but the law requires that they be dangerous and unusual. Are they also unusual?
The Morgan case raised by Mr. Brown says there were more than 740,000 machineguns lawfully possessed in the United States in 2021. (citing ATF data). The government has not pointed to any other number. The Court accepts it as true.
Seven hundred and forty thousand is no small number. The government presents no argument or explanation for why such a large figure is somehow not common.
And with that, Judge Reeves is constrained to conclude that the machinegun possessed by Brown in his home was protected and dismissed the case. But Judge Reeves had a little bit more to say on the matter.
Bruen specifically requires judges to follow “history and tradition,” evaluate whether new laws are “relevantly similar” to past laws, and determine whether certain firearms are “dangerous and unusual.” These tests are deeply concerning to many. They will continue to generate “confused and confusing lower court precedent.”
But step back from that for a moment.
Judge Reeves recognizes Bruen as a reaction to the Court’s view that lower courts failed to respect its Heller and McDonald decisions, which was indeed the case, the Court tried a novel route to compel courts to get on board: History and tradition.
The ultimate irony is that the version of history endorsed in these (and other) decisions
has itself been deemed untrustworthy by actual historians. The experts don’t think lawyers and judges have gotten it right. And, unfortunately, the lack of trust inherent in these decisions cannot be untangled from the public’s declining trust in Article III itself.As one of those tasked with applying these new tests, this Court understands the confusion. It feels the frustration. But its doubts and the discourse, no matter how serious or justified, cannot deter it from faithfully applying the law, even if that application is later found to be erroneous.
Judge Reeves can’t be faulted for doing his job and faithfully applying the precedent established by the Supreme Court in Bruen. But then, he also can’t be faulted for pointing out that the standard is unworkable, nonsensical and, ultimately, another nail in the coffin of Article III trust, without which the legitimacy of the Court fades away.
The discussion of “party presentation” near the bottom of page 3 ends up being very important to the decision. The only argument the government made about machine guns being unusual was that the 2016 case Hollis v. Lynch from the 5th circuit was binding law. But the judge here writes (page 9) that before briefing this case the 5th circuit had said it had “”give[n] up” and “withdrawn[n] from” enforcing that precedent. … To the extent further confirmation is necessary, a Fifth Circuit decision issued after after the briefing closed says Hollis was “abrogated””. That left the government with zero evidence or arguement about unusualness in this this case.
They also did not do a great job on the dangerous side. I recall (but can’t quickly find) another case decided in the past few months where a judge analyzed what could make a weapon so dangerous and unusual as to merit restriction. That analysis boiled down to weapons for which any wielder cannot control the targeting well enough to hit only what they intend in a self defense situation. My memory is that in that case at least some machine guns were a cited example of such a weapon.
So let me understand this.
Just shy of a century ago, I could walk into a hardware store, plunk down cash, and walk out with a machinegun. Civilization did not collapse into a Mad Maxian dystopia.
The State then legislates to make them both expensive and difficult to obtain due to the paperwork involved. Fifty years after that, legislation is passed that freezes the supply of machineguns available to We The People.
Now, 90 years later, they want to say that the things are “unusual.” After being the agent that went far out of its way to make them unusual.
Lotta murderous orphans pleading for mercy from the court here, it seems.
The standard is only “unworkable” if the State is seeking justification to ban some or all classes of firearms.
Oh, and of course weapons are dangerous. If they weren’t, they wouldn’t be weapons. But even a Red Ryder BB Gun can shoot your eye out….
Sincere thanks and appreciation for the headzup, Benevolent Host. I was wondering when a machinegun case might start up the pipeline.
So few comments on such a controversial post? Is that because so few people had anything to add or so many of the commenters were gun nuts who wanted to give their views on what the 2A covered?
As a non lawperson, what I can’t wrap my head around is how to create a legal consideration of the founders thinking to something that didn’t exist when they wrote the constitution.
It would seem to require an interpretation/extrapolation/sheer-guess, and if so, then what was the point of the exercise?* That would no longer be the founders clear will, but a modern interpretation of it.
* I get the originalism approach from SCOTUS is bad faith bullshit that allows them to continue to call balls and strikes on every topic they wish to protect instead of creating a clear standard; I’m talking about the practical application of their standard by any rational human being.