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 not 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 the 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 Reeve’s 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.
No comments:
Post a Comment