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District Judge Considers Appointing an Expert Historian to Evaluate Arguments under Bruen

  • Date:
  • November 9th, 2022

By: Andrew Willinger

In a six-page order issued on October 27, Judge Carlton Reeves of the Southern District of Mississippi directed the parties in a case challenging the constitutionality of the federal felon-in-possession ban to submit briefs on the issue of whether the court “should appoint a historian to serve as a consulting expert.” 

Judge Reeves noted that the parties disagree on whether there is a historical tradition of disarming felons and that “historical consensus on this issue is elusive.”  Observing that he is neither a “trained historian” nor an “expert[] in what white, wealthy, and male property owners thought about firearms regulation in 1791,” the judge concluded that Bruen nevertheless requires him “to play historian in the name of constitutional adjudication.”  Judge Reeves noted that historians frequently criticize historical analysis by judges and lawyers.  To avoid accusations of cherry-picking from the historical record, the judge proposed appointing an expert historian to assist him with the case.  Specifically, the order noted:

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.

One likely response to Judge Reeves’ order is that Bruen itself addressed and resolved concerns about judicial capacity to engage in historical analysis.  For example, in his recent decision granting in part the plaintiffs' motion for a preliminary injunction of New York's post-Bruen gun law in Antonyuk v. Hochul, Judge Glenn Suddaby wrote:

As for how to interpret these laws, in this Court’s experience, what would be most helpful in properly applying the NYSRPA standard is not a court-appointed expert historian under Fed. R. Evid. 706 (who the losing party might argue was more like a court-anointed expert historian). . . . What would be more helpful to this Court is the testimony of opposing historians with expertise in the time periods and regions that produced the laws. 

The majority opinion in Bruen similarly responded to Justice Breyer’s argument that a historical test will prove unworkable in practice because judges lack historical expertise by pointing to “our adversarial system of adjudication, [where we] follow the principle of party presentation.”  The majority stated that “[c]ourts are thus entitled to decide a case based on the historical record compiled by the parties” without having to “resolve historical questions in the abstract.”  For this point, the majority cited a 2019 law review essay by Professors William Baude and Stephen Sachs.  Professors Baude and Sachs argue that, “at its core, originalism demands no more of the past than ordinary lawyering does,” but rather “simply reflects a decision by today’s law to grant continuing force to the law of the past.”  In their view, “originalism involves a highly limited version of the historical inquiry—one that uses limited evidence in limited ways, and one that can resolve controversies even in the face of occasional uncertainty.”

But even accepting the Baude and Sachs position that “our legal system contains a wealth of shortcuts, default rules, and burdens of proof to resolve disputed questions when we lack certainty about the actual answers,” is there anything inherently problematic with involving expert historians?  For one, even if judges do not independently examine the historical record, they still must—as Judge Reeves observes—resolve disputed historical questions that arise through party presentation.  It’s one thing to say, as Bruen does, that we can rely on our adversarial system of party presentation to decide disputed historical facts.  But that does not obviate the burden on judges to actually adjudicate between different versions of history.  And, to do so, judges should feel free to rely on expert historians—although getting the parties to agree on a single expert historian may prove challenging given deep divides among Second Amendment historians on how to parse the historical record.  Indeed, Professors Baude and Sachs cite a 2013 law review note by Joshua Stein that evaluated the historian’s role in jurisprudence and endorsed an approach where “historians can be appointed just as special masters might be . . . [to] submit their interpretations or recommendations directly to the Court.”  Stein also observed that the judicial branch “could [] create a new institution of historical research, akin to the Congressional Research Service.”

There’s no reason to shy away from these suggestions, and the legal profession should not presume that adversarial presentation and burdens of proof are a complete substitute for the input of expert historians.  In other words, historians can and should be involved in this inquiry, notwithstanding that the legal system requires a determinate answer even when history cannot always provide one.

However, concerns may arise with Judge Reeves’ proposed approach.  The historian’s role would be similar to the Supreme Court’s past use of special masters in original-jurisdiction state boundary disputes.  As Anne-Marie Carstens described in a 2002 law review article, “the Court has delegated greater pockets of its fact-finding and its legal decision-making authority in original jurisdiction cases to Special Masters,” often in state-versus-state border disputes such as the 1990s dispute between New York and New Jersey over Ellis Island.  And the Court often adopted or agreed with special master recommendations in those cases.  Carstens is generally critical of the Court’s reliance on special masters in this context to determine historical and legal questions, both because of concerns about lack of accountability and the lack of guidance provided to special masters by the Court.  She suggests as a primary solution “adoption of a set of procedures that would increase consistency and reduce incongruous results among and within cases.” 

Similarly, if expert historians are retained directly by judges to sift through historical sources as part of the Bruen analysis, the judge must still clearly articulate the bounds of the historian’s inquiry and answer questions such as:  What is the universe of evidence the historian may consider?  Is the historian limited only to the historical laws and evidence proffered by the parties, even if the historian may themselves be aware of additional or contrary facts or sources?  And how should the historian weigh historical sources other than laws themselves, such as enforcement records or secondary-source commentary like historical treatises?

Judge Reeves’ order also raises a recurring critique of originalism: that it limits judges to white male views because only white men (and, in some instances, only those who owned a certain amount of property) could participate in the political process in the Founding Era.  Jake previously summarized an Ohio state court judge’s dissent that touched on this issue.  As the late Duke professor Jerome Culp, Jr. observed:

Blacks were not consulted by the “Founders” nor were their concerns considered relevant by the drafters. Jefferson wrote the Declaration of Independence and Madison wrote the preliminary draft of the Constitution-Frederick Douglass did not. Black people cannot enter the dispute about how to define essential terms because they were not present. “Defer to the past” is the implicit message. Listen to the wiser and greater (and whiter) founders.

This is a critique that naturally leads to the Bruen’s majority’s statement that its analogical test “requires judges to apply faithfully the balance struck by the founding generation to modern circumstances” and that “20th-century evidence . . . does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.”  While scholars have written extensively in recent years about the racist origins of many early American gun laws, anyone who emphasizes this must also account for the fact that the process of drafting, approving, and ratifying the Constitution and Bill of Rights (the “balance struck” by the Founding generation) was also thoroughly racist in that it almost entirely excluded Blacks, women, and other minority groups.