We’ve already seen the Third Circuit Court of Appeals rule that a Pennsylvania man convicted of a non-violent misdemeanor punishable by five years in prison should not be prohibited forevermore from owning a gun, while the Fifth Circuit has opined that those subject to a civil domestic violence restraining order cannot be barred from possessing a firearm, but a federal judge in Mississippi is now going a step further in casting doubt on the federal prohibited persons statute; siding with a man convicted of manslaughter in 1992 who was charged by the Justice Department with being a felon in possession of a firearm.
In his decision, U.S. District Judge Carlton W. Reeves (an Obama nominee who’s served on the federal bench since 2010) said the question posed in U.S. v. Bullock appears to be a simple one: has the government demonstrated that, as to Mr. Bullock, the federal felon‐in‐possession ban is consistent with America’s “historical tradition of firearm regulation”? As Reeves opined, while the DOJ says the answer is a simple “yes,” pointing to 120 other post-Bruen decisions, “the government’s citation to the mere volume of cases is not enough,” adding that in none of those cases did the government attorneys actually produce any real historical record to justify the modern-day prohibition.
To be clear, Reeves isn’t a big fan of the Bruen decision itself. In fact, I wrote about this case last year when Reeves issued an order in the Bullock procedings asking both parties whether he should appoint an historian to help him determine the constitutionality of the felon-in-possession statutes and taking a swipe at SCOTUS at the same time.
“This court is not a trained historian,” Reeves wrote in an order released last week.
“The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued.
“And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.
Reeves took another shot at the Supreme Court in his opinion issued Wednesday exonerating Jessie Bullock from the federal charges he was facing, calling the Court’s Second Amendment jurisprudence methodologically flawed and accusing the Court of engaging in “law-office history”; in his words “history selected to fit the needs of people looking for ammunition in their causes—in Constitutional interpretation.”
Nevertheless, Reeves says he dutifully followed the Supreme Court’s text, history, and tradition test and came to the conclusion that the Justice Department’s argument deserves a failing grade.
The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amend‐ ments were ratified. The government’s brief in this case does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarma‐ ment of tens of millions of Americans who seek to keep fire‐ arms in their home for self‐defense.American history might support state‐level felon disarma‐ ment laws; that at least would align with principles of feder‐ alism. It might support disarmament of persons adjudicated to be dangerous—as Justice Barrett found when she sat on the Seventh Circuit. And it likely does support disarmament of persons convicted of death‐eligible offenses. The power to take someone’s life necessarily includes the lesser power to disarm them.The government’s arguments for permanently disarming Mr. Bullock, however, rest upon the mirage of dicta, buttressed by a cloud of law review articles that do not support disarming him. In Bruen, the State of New York presented 700 years of history to try and defend its early 1900s‐era gun licensing law. That was not enough. Bruen requires no less skepticism here, where the challenged law is even younger.
I have to say that after reading Reeves’s bit of SCOTUS-directed snark, I expected that his opinion would be written to ridicule Heller, Bruen and the very idea that the current felon-in-possession laws could be called into question. I’m sorry to say that I wasn’t disappointed. Reeves contends that “‘an overwhelming majority of historians’ reject the Supreme Court’s most fundamental Second Amendment holding—its 2008 conclusion that the Amendment protects an individual right to bear arms, rather than a collective, Militia‐based right.” I’m not going to re-litigate Heller here, but you can check out this Twitter thread by Second Amendment attorney Kostas Moros, or just enjoy this quote from James Madison in Federalist 46:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
Not distrust the people to form a militia, but afraid to trust the people with arms.
Anyway, however many issues Reeves may have with the Heller and Bruen decision, he also takes the DOJ to task for blithely assuming that the current federal felon-in-possession ban is a longstanding tradition that courts should almost automatically uphold. When Reeves asked both DOJ and the public defender representing Jessie Bullock if he needed to appoint an historian to comb through the record, both sides agreed that was unnecessary; the plaintiffs correctly pointed out that under the Bruen test it’s up to the government to find any historical analogues justifying a modern gun control statute, while the DOJ asserted “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record,” though it subsequently brought to the judge’s attention more than 100 cases decided since Bruen upholding the statute.
The most common mode of reasoning goes like this: Heller protected only the Second Amendment rights of “law‐abiding, responsible” citizens.Heller said that “nothing in our opinion should be taken to cast doubt on longstanding prohibi‐ tions on the possession of firearms by felons and the mentally ill.” McDonald said the same thing. Bruen didn’t overrule either case. Because the defendant is a felon, under Heller, McDonald, and Bruen, their motion to dismiss fails.
Reeves claims he’s unconvinced, and that his concerns are both “procedural and substantive,” including the lack of any historical analogues presented by the DOJ and a lack of amicus briefs by third parties that might have helped to flesh out the historical record. But Reeves also acknowledged that the government’s reliance on the argument that the Second Amendment only protects gun ownership for “law-abiding citizens” has also been called into question by multiple courts, and used this to once again throw some judicial shade at both Heller and Bruen.
Writing in a Second Amendment case last year, Judge David Counts made another essential point:[Step One] is where Bruen conflicts with Heller. Heller called proscriptions against felons possessing guns “presumptively lawful.” In contrast, because possession is covered by the Second Amendment’s plain text, Bruen makes a felon’s possession of a firearm “presumptively constitutional.” Bruen is the controlling standard, but this conflict—the presumption of constitutionality—is what places the heavy burden on the Government.In any event, Bruen’s first step asks a strictly textual question with only one answer: the Second Amendment’s plain text covers possession of a firearm. Because the Constitution presumptively protects possessing a firearm, § 922(g)(1)’s constitutionality hinges on whether regulations prohibiting felons from possessing a firearm are consistent with the Nation’s historical tradition of firearm regulation.
Reeves agreed with Counts’ rationale, and then turned to step two: whether or not § 922(g)(1) is historically analogous to 18th (and perhaps 19th) century restrictions; or rather, he used step two to launch another diatribe blasting the Supreme Court’s Second Amendment jurisprudence before concluding that because the government had failed to provide any real historical analogues to the modern day prohibition on all felons possessing firearms, the government’s case against Jessie Bullock should be dismissed… but not before one last broadside to the Court.
Many of our Nation’s finest moments came when we rejected the original public meaning of a Constitutional provision. Brown v. Board of Education rejected the original interpretation of “equal protection,” which had led to “separate but equal” schools.The original understanding of the Fourteenth Amendment limited women “to fulfil the noble and benign offices of wife and mother.” It had to go. Earlier Americans might not have understood the notion of “due process” to include marriage equality. But future generations did. “We changed.”Hewing to outdated ideas no longer served “We the People.” Hewing too closely to the past reduced our ability to make America “more perfect.” As a result, “new constitutional principles . . . emerged to meet the challenges of a changing society.” And in this way, “the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent cen‐ turies of our own making, and a life embodying much good fortune that was not.”Let’s be clear about what this means for originalism. The next generation will have its own conceptions of liberty. It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable. And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.
I find this last passage deeply ironic given that Reeves previously endorsed the idea that the Second Amendment originally applied only to service in the militia, not an individual right to keep and bear arms. Even if that were the case (and I don’t think history backs up that claim), there are more than 100-million gun owners and more than 400-million privately owned firearms in the United States. More than half the country has adopted permitless carry laws, while only Washington, D.C. and the city of Chicago enacted a handgun ban in the decades before the Supreme Court ruled that an unconstitutional violation of our Second Amendment rights. More than 40 state constitutions protect the right to keep and bear arms as well, and as recently as last November voters in Iowa overwhelmingly approved an amendment to the state constitution requiring courts to use “strict scrutiny” when determining the validity of any particular gun control statute.
Even under a “living Constitution” theory, then, the right to keep and bear arms is alive and well; not only exercised by a huge portion of the American citizenry but protected by a majority of state legislatures. Reeves finds that distressing and hopes for a sea change in both public opinion and the law, and even though Second Amendment supporters may be pleased that he reached the conclusion that he did, it’s clear to me that this opinion was written as a direct challenge to Bruen and the Supreme Court, not as an actual defense of whatever Second Amendment rights Jessie Bullock may possess.
