Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen

November 1, 2022

This new CNN article, headlined “Federal judge blasts the Supreme Court for its Second Amendment opinion,” alerted me to a notable new opinion emerging from new challenges to federal felon in possession laws in the wake of the Supreme Court’s new Second Amendment standards set forth in Bruen. Here are the basics from the press piece:

A federal judge based in Mississippi has released a scorching order expressing frustration with the Supreme Court’s Second Amendment opinion issued last summer and ordered the Justice Department to brief him on whether he needs to appoint an historian to help him decipher the landmark opinion.

The opinion in New York State Rifle & Pistol Association v. Bruen changed the framework judges must use to review gun regulations. Going forward, Justice Clarence Thomas said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulation.”

Judge Carlton Reeves — who is considering a case concerning a federal statute prohibiting felons from possessing firearms — said he is not sure how to proceed. “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. The Bruen decision, he said, requires him to “play historian in the name of constitutional adjudication.”

Reeves, who sits on the United States District Court for the Southern District of Mississippi, ordered the parties, including the Justice Department, to brief him on whether he should appoint a historian within 30 days. “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,” he said.

The challenger to the felon possession law, Jesse Bullock, says the regulation cannot withstand the Supreme Court’s latest decision interpreting the Second Amendment. “Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Bullock argued.

The full six-page order in US v. Bullock is available at this link. Here are a few passages:

Bruen instructs courts to undertake 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).

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.” United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (collecting authorities); see also United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) (“scholars disagree about the extent to which felons — let alone misdemeanants — were considered excluded from the right to bear arms during the founding era.”)….

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.”). 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….

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. An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions.

As many of the readers of this blog surely know, the author of this interesting order is not just a federal district judge, he is also the new Chair of the US Sentencing Commission. Interesting times.

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