In a recent case pending before the Ohio Supreme Court, State v. Philpotts, a majority of the justices sua sponte ordered the parties to file supplemental briefs addressing Bruen’s effect on the case. The challenged Ohio law in that case bars those under indictment for violent felonies from possessing firearms pending the disposition of the indictment. The lower courts upheld the statute under intermediate scrutiny pre-Bruen. Bruen was about public carry, not categorical prohibitions on gun possession, but its transformation of the methodology for Second Amendment challenges may mean that even some prohibited possessor laws will be reexamined. The court’s supplemental briefing order isn’t all that noteworthy on its own—judges have ordered supplemental briefing in many cases that were either pending when Bruen was decided or remanded post-Bruen. What is noteworthy is the opinion dissenting from that order.
Justice Jennifer Brunner’s dissent raised a number of issues with both the court’s order and how to conduct the test Bruen articulated. I don’t think the whole dissent is necessarily persuasive or compelling, but her concerns do raise fundamental questions about how to implement Bruen. First, she questioned the propriety of the court’s supplemental briefing order given the nature of the Bruen test. That test, she argued, turns on factual questions about “the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws” that “should be developed in and determined by a trial court, not an appellate court.” Because history requires finding facts and drawing inferences from facts, she concluded: “Fundamentally, no appellate court should be the fact-finder in determining the tradition of gun regulations during different eras of our nation’s history, including how and why guns may have been regulated.” These observations seem right, but I’m not aware of courts that have treated an originalist-driven historical inquiry as a factual one—i.e., a finding that must generally be made by a jury and is subject to deference on appeal. Then again, the Supreme Court rendered the Second Amendment sui generis in constitutional adjudication, so litigants may raise this issue in the future.
Second, Justice Brunner registered her “concerns about how ‘history’ or historiology can become part of a legal analysis, as this court embarks on the legal equivalent of asking whether a modern translation of the Bible accurately conveys the teachings of the original texts.” I’m not sure the specific analogy she uses makes much sense, but she does intervene in a debate that’s recently come to the fore as originalism becomes the reigning ideology at the U.S. Supreme Court. Jack Balkin’s article, Lawyers and Historians Argue about the Constitution, explores some of these tensions. They have also been debated between legal scholars defending originalism (e.g., Randy Barnett, here, and Will Baude & Steve Sachs, here) and historians critical of originalists’ uses of history (e.g., Jonathan Gienapp, see here and here for example). The lawyers often concede that they aren’t doing history the way historians might, but are instead looking to history for a different purpose and with different goals. In doing so they rely, as Baude & Sachs put it, and Justice Thomas quoted with approval in Bruen, on “various evidentiary principles and default rules,” like burdens of proof and party presentation. In her dissent, Justice Brunner noted that professional historians describe revising historical interpretations over time as new evidence becomes available as part of their core mission, and that a historian’s work inevitably involves interpreting—and not merely collecting—data.
Finally, in an attack that could apply beyond the question of Bruen, she challenged what’s missing in our historical traditions:
Importantly, the glaring flaw in any analysis of the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws is that no such analysis could account for what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations. How would this problem be addressed in any modern analysis of historical gun regulations? It cannot simply be ignored. And even if a court tries to take the views of women and nonwhite people into account, are there sufficient materials on their views available to enable reliable conclusions to be made?
Justice Brunner was seemingly unable to convince any colleagues to join her dissent. It’s not clear how persuasive her points will be to the court’s ultimate resolution of Philpotts (the Ohio Supreme Court consists of 4 Republican justices and 3 Democratic ones). But whether they play a role in this case or not, her questions about the use of history in Second Amendment cases will continue to recur as lower courts work to implement Bruen.