On November 16, Judge Aleta Trauger of the Middle District of Tennessee issued a decision rejecting a Second Amendment challenge to 18 U.S.C. § 922(n), which prohibits receipt of a firearm while under felony indictment.
Judge Trauger first summarized Bruen and its doctrinal framework. She observed that:
The modern world is different from the world of the founding, not just in the facts of everyday life but also in the basic norms and assumptions that underlie policymaking. Moreover, the available evidence of founding-era attitudes is, at best, an incomplete snapshot of the constitutional expectations of the era. The court’s investigation, therefore, cannot be so simple as just comparing the modern law under review with the laws of a couple of centuries ago, like a redline comparison in a word processing application.
Judge Trauger also wrote that “a list of the laws that happened to exist in the founding era is, as a matter of basic logic, not the same thing as an exhaustive account of what laws would have been theoretically believed to be permissible by an individual sharing the original public understanding of the Constitution.” This is because, in the judge’s view, “[n]o reasonable person would, for example, think that the legislatures of today have adopted every single hypothetical law capable of comporting with our understanding of the Constitution, such that any law that has not yet been passed simply must be unconstitutional.” Thus, she interprets Bruen to require more nuanced consideration of not just “what earlier legislatures did, but . . . what they could have imagined.”
Turning to the initial “plain text” inquiry, the judge determined that “[e]ach of th[e] activities [regulated by 922(n)] involves exercising physical control over a firearm,” conduct within the plain text of the Second Amendment. Next, Judge Trauger considered whether 922(n) is consistent with historical tradition. The judge observed that neither party had submitted comprehensive historical analysis or expert testimony, which made it necessary to decide the case “based on the arguments of non-historian lawyers, citing cases by non-historian judges, who relied on arguments by other non-historian lawyers, and so on in a sort of spiral of ‘law office history.’” While she noted the possibility of court-appointed expert historians playing a role in Second Amendment cases, Judge Trauger “doubts that [such a system] can be scaled to the level that would be required by the federal courts’ massive docket of gun prosecutions.”
Judge Trauger briefly addressed the decision in Perez-Gallan, which we summarized here and which struck down the federal ban on possessing a firearm while subject to a domestic-violence restraining order. She asked whether the absence of similar historical prohibitions “actually reflect[s] historical attitudes regarding firearm regulation, or is  instead a feature of historical attitudes regarding the role of the state in policing violence between intimate partners?” One outstanding question, in Judge Trauger’s view, is whether “legislators [are] free to pass laws that reflect changes in attitudes other than those involving the right to bear arms.” She noted that similar issues exist with regard to felony-based restrictions, and highlighted the risk of “attempting to reconstruct past constitutional understandings through a litigation-driven process of keyword searches” when fundamental underlying beliefs may have been different at an earlier time.
Judge Trauger ultimately found that 922(n) is supported by a “common law tradition of gun regulation [which] permitted the disarming of certain classes of individuals based on questions regarding whether those individuals had been ‘peaceable’ and/or ‘law-abiding.’” She noted several additional factors that she found supported the government’s position: (1) Bruen’s general endorsement of objective disqualification criteria, (2) the temporary nature of 922(n)’s removal of firearm rights, and (3) “a constitutionally meaningful government interest in safeguarding [criminal] proceedings that is sufficient to justify at least some temporary curtailments of even the most important individual rights.” The opinion asserts that Bruen should not be read to prohibit “supplemental common sense reasoning”—such as judicial consideration of the duration of a restriction—and that “depriving judges of the ordinary tools of reasoning that they have employed throughout the common law tradition would itself seemingly violate the text and original meaning of the Constitution.”
The judge noted the Western District of Texas decision in United States v. Quiroz (which Jake summarized here, and which struck down the same federal provision at issue in Kelly). While she reached the opposite result and upheld the regulation, Judge Trauger “s[aw] no glaring flaws in that court’s analysis—just different judgment calls on reasonably contestable, highly abstract questions of historical analogy.”
One important point to highlight here is Judge Trauger’s observation that “a list of the laws that happened to exist in the founding era is, as a matter of basic logic, not the same thing as an exhaustive account of what laws would have been theoretically believed to be permissible by an individual sharing the original public understanding of the Constitution.” Nelson Lund has similarly observed that “[t]he absence of a regulation does not necessarily imply the absence of a power to adopt that regulation.” One aspect of Bruen that has caused confusion and consternation in the lower courts is that the decision appears to assume, in certain places, that historical state legislatures always regulated to the maximum extent permitted by the Constitution (otherwise, why would the existence of the same societal problem, accompanied by a lack of historical regulation, be determinative of constitutional meaning?) But that’s almost certainly not true. There could be any number of non-constitutional reasons why a legislature chose not to regulate in a certain way, and it will often be the case that historical legislation did not even approach the outer bounds of what the legislators believed they were permitted to enact under the relevant constitutional provision.
A corollary of this point is that “mere non-regulation” also should not be viewed as an affirmative sign that certain conduct was constitutionally protected. For example, Aaron Tang observes in a forthcoming Stanford Law Review article regarding the Dobbs decision that:
It cannot be the case that the mere non-regulation of some act by state legislatures in 1791 or 1868 automatically raises that act to the status of a fundamental liberty interest. It that were true, surprising constitutional rights would be everywhere around us: we’d have constitutional rights to drink through straws, jump rope, and write in cursive, all because no lawmaker banned any of those acts two centuries ago. There are, in short, lots of things that lawmakers haven’t criminally prohibited, not because they are fundamental rights but rather for the more mundane reason that no one ever thought to regulate them.
A final observation about Kelly: the opinion illustrates how, in many instances, the disparate outcomes we have seen at the lower-court level post-Bruen are due primarily to confusion about how to implement the doctrinal test (rather than some form of partisan resistance to the decision). Judge Trauger found “no glaring flaws in [the] analysis” by Judge Counts in Quiroz reaching the opposite result on an identical challenge; rather, in her view, the disparity in outcomes is the result of “different judgment calls on reasonably contestable, highly abstract questions of historical analogy.” Guidance from the appellate courts about how to conduct nuanced analogical reasoning in non-straightforward cases is needed to produce greater consistency at the lower-court level.