Thoughts on Judge Carlton Reeves’ Critique of Text, History, and Tradition

On June 28, District Judge Carlton Reeves issued a decision in United States v. Bullock granting a motion to dismiss by a criminal defendant charged with possessing a firearm as a convicted felon.  Judge Reeves found that the government had failed to offer sufficient historical support for the federal ban on felon gun possession (as applied to this particular defendant) and dismissed the charge.  The decision is notable in part because the defendant had multiple prior violent felony convictions on his record—for manslaughter and aggravated assault—distinguishing him from the defendants in cases like Range and Binderup whose past convictions were not for violent crimes.  But perhaps the bigger story is Judge Reeves’ forceful criticisms of Bruen, historical analogy as a mode of constitutional interpretation, the Supreme Court’s past Second Amendment jurisprudence, and originalism writ large.

Judge Reeves previously issued an order in Bullock directing the parties to brief the issue of whether he should appoint a professional historian as a neutral expert in the case (similar to how special masters are occasionally appointed by district judges to assist with certain technically challenging or complex matters).  We covered that earlier order here.  Neither party agreed to the judge’s proposal—with each side arguing that it should prevail under Bruen without the need for any expert input.  In his opinion granting Bullock’s motion to dismiss, Judge Reeves expressed concern about the utter lack of expert testimony in the case and doubt about whether Second Amendment cases can be effectively resolved based on the adversarial process without any amicus briefs or expert submissions.  He observed that, while the “[t]he justice system ordinarily operates like a pyramid [with t]housands of disparate factual records [] created in the trial courts” and filtering up toward the Supreme Court, “[i]n Second Amendment cases . . . the pyramid is turned on its head.”  Because amicus briefs and expert submissions are generally reserved for the appellate and Supreme Court level, district courts are left to decide complex historical questions on an inadequate factual record.

Judge Reeves ultimately declined to follow other post-Bruen decisions that have relied on Heller’s endorsement of the felon ban in 18 U.S.C. § 922(g)(1) as “presumptively lawful,” finding that he could not “honor an advisory opinion on an issue that was not before the Supreme Court” in that case.  Reading the phrase “the people” broadly to include all members of the political community and not only “law-abiding” members, the judge also found that Bullock’s conduct implicated the Second Amendment and required a historical analysis.  Judge Reeves dismissed various historical arguments for a virtue-based theory of disarmament, including proposals from state ratifying conventions and the fact that some felons were subject to the death penalty in the Founding era.  The judge further found that the government failed to prove “that there is a historical tradition of disarming either the violent or the dangerous” and observed that a felony-by-felony dangerousness-based standard is likely unworkable:

We already use the categorical and modified categorical approaches to determine whether a defendant’s past conviction is “for a violent felony” for purposes of the Armed Career Criminal Act. And the methodologies are not well‐liked.

Because he determined that the government failed to meet its burden of establishing a historical tradition to support disarming someone previously convicted of a violent felony but who is not currently dangerous, Judge Reeves granted Bullock’s as-applied challenge to 922(g)(1). 

In closing, Judge Reeves observed that, “[i]In breathing new life into the Second Amendment, . . . the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights” such as the right to a speedy trial and the right to vote.  And the judge levied a forceful critique against originalist jurisprudence generally, writing that “[m]any of our Nation’s finest moments came when we rejected the original public meaning of a Constitutional provision.”

I won’t spend much time in this post addressing the substantive outcome in Bullock, which I think is likely to be reversed on appeal.  For one, I believe that—even under the analysis in Range—a defendant with a relatively recent conviction for assault can be disarmed consistent with historical tradition.  I also think that Bullock likely represents an instance of what Jessica Bulman-Pozen and David Pozen label “uncivil obedience”: “challenging a legal or policy scheme by adhering, in methodical yet unexpected ways, to its formal provisions.”  And I also won’t delve into Judge Reeves’ broader critiques of originalism (some, but not all, of which I agree with).  Rather, I’d like to turn back to the issue Judge Reeves identified in his earlier order in the case: whether a historical-analogy test necessitates the input of expert historians and, if not, how trial court judges are supposed to resolve Second Amendment cases under Bruen. 

Bruen is relatively clear that, in theory, its methodology does not require courts to “resolve historical questions in the abstract” because of “the principle of party presentation.”  But I think Judge Reeves’ observation about the “reverse pyramid” that currently exists in Second Amendment cases is a useful way to conceptualize the problems with this approach.  Normally, relying on party presentation would be unobjectionable because, as Judge Reeves notes, “error‐correction and harmonization” occur as the case works its way up based on the trial-court record.  While amicus briefs may inform higher levels of the court system and influence judges’ thinking, they contain legal arguments based on the same evidence the trial court judge considered.  When that pyramid is inverted and additional historical facts are introduced through experts and amici at the appellate and Supreme Court levels, the process puts the trial court judge in a nearly impossible situation.  How is he or she supposed to render a decision that can withstand appellate scrutiny, a completely normal objective for any trial court judge, when the underlying record is likely to change in substantial ways after the case goes up on appeal? 

If the history changes because additional laws are introduced (or unearthed) as the case works its way up, then the factual basis for the decision may also change or evaporate.  Professors Will Baude and Stephen Sachs argue that “law often handles historical evidence in an artificially limited way” and that, therefore, a modern lawyer “may properly ignore a substantial amount of information about the past.”  But that view doesn’t necessarily hold if appellate judges are not similarly willing to be limited by adversarial presentation and the evidence originally submitted in a given case.  And appellate judges or Supreme Court justices may choose to pursue a much more probing historical inquiry (perhaps even independently) for any number of reasons, including that they have the resources available to conduct this research, feel the need to engage more deeply with history so that the resulting decisions will appear more legitimate or be better received by academics, and so on.  The result, as Judge Reeves notes, is an odd system of adjudication where developing a historical record occurs primarily at the appellate and Supreme Court levels, and only later filters down to district and state courts. 

We’re already seeing some signs of this: the Supreme Court has felt the need to take another Second Amendment case just one year after Bruen, and the Third Circuit’s decision in Range seems to signal the advent of felony-by-felony dangerousness determinations similar to ACCA cases (where one appellate judge observed that “perhaps no other area of the law has demanded more of our resources”).  Judge Reeves’ suggestion that the government hire expert historians for Second Amendment cases holds some merit, I think, but ultimately I doubt that the government will choose this route as opposed to devoting more resources to presenting its best historical case at the appellate and Supreme Court levels.  Ultimately, a larger shift to historically focused legal tests may require a reevaluation of stare decisis, as some scholars have argued.  For example, courts may need to embrace a theory under which appellate court judges can disregard any “demonstrably erroneous” conclusion about historical facts.  But, at that point, I think it’s worth asking what value the initial trial-court litigation really has.  If Bruen has in fact turned Second Amendment jurisprudence into an inverted pyramid compared to how other areas of constitutional law operate, the best way forward is likely to try and correct that imbalance by gradually facilitating greater access to historical sources and materials at the trial court level.