Is it Unethical for Judges to Conduct Independent Historical Research?

In reply to Andrew Willinger’s insightful post about judges undertaking historical research in applying the historical-analogical test set forth in NYSPRA v. Bruen, I would like to add a brief comment about the ethics of judges undertaking independent historical research, as opposed to their competence in doing so (not as legal experts, but as amateur historians).  As Andrew pointed out, the Bruen opinion suggested the parties would submit whatever evidence they want about the historical pedigree of a challenged gun safety law, and judges could rely on the evidence submitted, as is typical in the adversarial process.  In response, some judges have queried whether the court, or the parties, should recruit qualified experts to weigh in on each case, while other judges have seemingly undertaken their own independent historical research.

In 2017, the ABA published Formal Ethics Opinion 17-478.  The opinion concluded that it violates the Code of Judicial Ethics for judges or their clerks to conduct independent factual research, including via the Internet.  As the ABA summarized in the opening abstract for Opinion 17-478,

Easy access to a vast amount of information available on the Internet exposes judges to potential ethical problems.  Judges risk violating the Model Code of Judicial Conduct by searching the Internet for information related to participants or facts in a proceeding.  Independent investigation of adjudicative facts generally is prohibited unless the information is properly subject to judicial notice.  The restriction on independent investigation includes individuals subject to the judge’s direction and control.

In this ethics opinion, the ABA was primarily clarifying the scope of Model Rule 2.9(C) of the Code of Judicial Ethics, which states: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.”  The accompanying Comment [6] to Rule 2.9 explains that the “prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”  The ABA’s 2017 ethics opinion on this issue was apparently a response to a controversy set off two years earlier by Judge Richard Posner, then on the 7th Circuit, who in some published opinions cited his own Google research explicitly (see here and here and here).  Judge Posner had also encouraged judges to do their own Internet research in his 2013 book Reflections on Judging.  Around 2017 or 2018, the Multistate Professional Responsibility Exam (MPRE) began including questions about judges doing independent factual research.

Of course, judges and their clerks may undertake their own legal research, which includes using electronic databases like Westlaw or Lexis to search for case law, statutes, and regulations, including old laws and cases.  The prohibition applies to independent factual research by judges and judicial clerks.  The ethics opinion also explains, in detail, that judges may take judicial notice of non-adjudicative facts – facts not in dispute as part of the litigation. 

Footnote 9 of Formal Opinion 17-478 says that, as of the date of publication (Dec. 8, 2017), “[t]hirty-one states have adopted Model Rule 2.9(C) or language substantially similar in their judicial codes. There is no similar provision in the Code of Conduct for United States Judges.”  Even in the 19 states that have not yet formally adopted the ABA’s Code of Judicial Conduct, the Code operates as highly persuasive authority for many judges and state disciplinary authorities.

Although the ABA’s Code of Judicial Conduct does not apply to federal judges, Canon 3(A)(4) of the Code of Conduct for United States Judges corresponds closely to Model Rule 2.9(A) in the ABA’s Model Code of Judicial Conduct, covering ex parte communications.  Formal Ethics Opinion 17-478 discusses Rule 2.9(A) and suggests that independent factual research by judges also constitutes a form of ex parte communication, thereby violating 2.9(A) (more precisely, Opinion 17-478 then proceeds to say that Rule 2.9(C)’s ban on independent factual research is included in the ex parte rule of Rule 2.9(A)).  Note that the Code of Conduct for United States Judges does not apply to the U.S. Supreme Court, at least traditionally.

Bruen thus presents a potential ethical problem for state judges under Model Rule 2.9(C) of the ABA Code of Judicial Conduct, and arguably for federal judges under Canon 3(A)(4) of their Code.  It is appropriate (that is, not an ethical violation) for judges to research old historical statutes or cases to determine the historical pedigree (or analogs) of certain laws.  But it arguably could be an ethical violation for Judge Benitez to use the Winchester Firearms website to determine a historical fact about what arms were in circulation among civilians in the nineteenth century—a course of action the judge suggested at a recent court conference.  

What about judges reading law review articles about the historical basis for gun laws?  Formal Opinion 17-478 discusses judges reading articles, but the question of historical facts is not discussed.  It appears, based on the discussion of article research, that it would be appropriate for a judge to read law review articles to learn about the historical laws or cases, but not to learn what types of guns were in circulation at earlier times in history, what percentage of the public owned guns or carried guns in public, or what the public believed about guns or gun ownership.  Another question likely to come up in the Second Amendment context is the role of amicus briefs, such as those submitted by historians and other academics.  The ABA did not address amicus briefs in its Formal Opinion, but presumably these do not present the same ethical concerns, because the parties have notice about the filing of amicus briefs and have the opportunity to respond to any arguments that amici raise.

A closing caveat: I am not aware of any judges facing disciplinary actions for conducting independent factual research in violation of Model Rule 2.9(C). It is important to remember that enforcement of the rules of judicial ethics requires someone in the proper position of authority to initiate an enforcement action, and there is a large element of discretion and willpower here.  I should also add that I have not seen any recent empirical studies or anecdotes about how many judges violate the rule or comply with it.

Assault Weapon Bans, Grandfathered Guns, and Market Prices

On July 29, the House of Representatives passed the Assault Weapon Ban of 2022 (HR 1808). The bill would prohibit the sale, import, or possession of new “assault weapons” and large capacity magazines, as defined in the bill.  The definition section includes not only features or components that bring a weapon under the ban, but also long lists of specifically-prohibited and exempt gun models. There is a broad exception for law enforcement entities (including college campus police). The bill also contains a grandfather clause saying that the prohibition “shall not apply to the possession, sale, or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of enactment of the Assault Weapons Ban of 2022.” At the same time, the bill provides that grandfathered weapons already in circulation can be sold only by including a federally-licensed firearms dealer (FFL) in the transaction; the FFL must take physical custody of the weapon and conduct a background check on the prospective purchaser:

(t) (1) Beginning on the date that is 90 days after the date of enactment of the Assault Weapons Ban of 2022, it shall be unlawful for any person who is not licensed under this chapter to transfer a grandfathered semiautomatic assault weapon to any other person who is not licensed under this chapter, unless a licensed importer, licensed manufacturer, or licensed dealer has first taken custody of the grandfathered semiautomatic assault weapon for the purpose of complying with subsection (s). Upon taking custody of the grandfathered semiautomatic assault weapon, the licensee shall comply with all requirements of this chapter as if the licensee were transferring the grandfathered semiautomatic assault weapon from the licensee’s inventory to the unlicensed transferee.

This provision was not included in the 1994 assault weapons ban; it is one of the important differences between the new bill and the previous ban.

It seems very unlikely that the bill will garner enough votes in the Senate to overcome a Republican filibuster, though it is not completely impossible, given the number of Republican Senators who voted for the Bipartisan Safer Communities Act in late June. Even if the assault weapons ban does pass, it is unclear whether such a law would survive a Second Amendment challenge after Bruen—the concurring opinions in that case left a lot of unanswered questions about the fate of assault weapon bans, and these bans were often upheld under intermediate scrutiny (which Bruen rejected). Nevertheless, this post explores what is likely to happen if a ban on certain firearms models were to pass at some point—specifically, a ban structured like HR 1808 that prohibits certain types of new firearms, exempts those already in circulation, and provides that owners of grandfathered guns can transfer them only via an FFL. My reading of HR 1808 suggests that FFLs would still be able to sell grandfathered assault weapons, though they would have to conduct background checks on purchasers as required by federal law.

We start with some observations from “Economics 101” about supply, demand, and prices: if supply decreases while demand remains constant (or increases, which is the most likely result of such a ban), the market price of the item will increase. So, on the one hand, limiting the supply of new assault weapons would be expected to make the millions of grandfathered weapons much more valuable. The supply is now limited to the existing supply in circulation, and specifically to the number that owners are willing to sell.

Price effects may not be that simple, though, because the lag time before a law goes into effect allows for customers to go on a buying spree while the weapons are still legal, and for manufacturers to ramp up production to meet the temporary spike in demand.  This type of run on the gun stores can make prices rise before the ban goes into effect. However, immediately after the ban goes into effect, prices could fall because potential customers have already bought the guns they would want and manufacturers and dealers may attempt to liquidate unsold inventory on the eve of the ban going into effect. A 2002 academic study by Christopher S. Koper and Jeffrey A. Roth observed this price effect surrounding the 1994 assault weapons ban. Prices rose immediately before the ban went into effect, and then fell to pre-ban levels in its immediate aftermath (note the study covered only a 2-year period) because so many more guns flooded the market right before the ban. But this fall in prices did not translate into more guns in the hands of criminals; instead, gun traces for banned weapons retrieved from crime scenes fell significantly after the ban went into effect. Koper and Roth surmised that the rise in prices before the ban made the affected guns unaffordable for many street criminals, and the surplus stock from the pre-ban rush stayed in the hands of collectors and dealers even after the prices returned to their pre-ban levels. 

A similar phenomenon occurred after the ban on new machine guns—the market prices for the grandfathered machine guns (even apart from the special federal licensing fees) went WAY up, into the tens of thousands of dollars, which made them unaffordable to most petty criminals like burglars, muggers, members of street gangs, etc. Note that purchasers of machine guns must also obtain ATF approval, a requirement not included in the new House bill for semiautomatic weapons. A person who is not an FFL will pay well over $15,000 for a machine gun, and have to get special ATF approval, though FFLs can acquire machines guns for significantly lower costs and skip the special ATF application process (see here).

If prices go up as a result of a ban like that contained in the new bill, it could benefit current owners of the covered guns, because their grandfathered guns would have a higher resale or trade-in value. Routing all private sales through an FFL also has a number of secondary effects. FFLs can charge a fee for the service, though this is likely to be modest (FFLs also benefit from the extra traffic into their showroom, as some customers will purchase gun accessories or ammunition while they are in the store). Once the private seller and the buyer are in the FFL’s store, the FFL might be able to offer to beat the price—either offering the seller more than the buyer is willing to pay, or offering the same/similar model to the buyer for less than the private seller is offering, depending on the situation.

A 1995 study by Cook et al. about the correlation between primary retail prices for guns and street prices for privately-sold guns revealed a street markup of 3 to 6 times the FFL price in states that, at the time, imposed various recordkeeping or reporting requirements on dealers (the NICS background system was not yet operational in the study period). That’s a hefty price premium for bypassing FFL requirements like background checks. If the new House bill goes into effect, legal purchasers will have to go to an FFL to consummate a private sale. Unless the private sellers offer lower prices than the FFLs offer for the same model, buyers might as well buy directly from the dealer—there would be no reason to pay a private seller more than the dealer offers. 

I expect that the requirement that an FFL is part of every transfer will incentivize current owners to trade in their guns to the FFL directly rather than go through the inconvenience of finding a private buyer and meeting up at an FFLs location. The rule should give FFLs more bargaining power in what they will pay for trade-ins.

To make an analogy to cars, imagine a hypothetical fuel-economy law that banned the sale or import of all new non-electric SUVs and pickup trucks, but allowed current owners of gasoline-fueled SUVs to keep their cars. And imagine that current owners could sell their grandfathered SUVs at a car dealership—the dealership would have to process the transaction, even if the SUV sale was occurring between neighbors or friends. SUVs are very popular, so cutting off the supply of new SUVs would push all the demand for those cars to the used-car market. The result would be that used SUVs could sell for much higher prices—eventually, as much as several times what the current owner paid for the vehicle, because there would be no competition from new cars coming into the market. On the other hand, as anyone who has sold their used car to a dealership has discovered (including those who used it as a trade-in for a new purchase), car dealerships pay less for your used car than you might get from a private buyer because they have more bargaining power. Applying the analogy to firearms, requiring that private sales involve an FFL would offset some of the expected price increase or added value for currently-owned guns. 

Another phenomenon is also likely to skew prices upward after a ban-with-grandfathering goes into effect: speculators.  When new production halts, individuals or firms with money to invest can go on a rapid buying spree, knowing that the new limit on supply will drive prices, at least initially. The speculation phenomenon itself drives up demand, at least in the short term, making prices rise faster, as happened in the lead-up to the 1994 ban. Koper and Roth thought that the return of prices to pre-ban levels in 1994 was partly due to a flaw in the law that allowed substitute assault weapons to be produced that had only minor cosmetic changes—so, within a year or two, the industry adapted and found ways to work around the law and resume production and sales. The House bill seems tailored to avoid that problem, but it is hard to predict how industries will adapt to new regulatory environments.

Even after the prices stabilize at a new, higher equilibrium, as they did with machine guns (based on the regular demand of individual buyers, the limited supply of grandfathered guns, and the limited supply of legal sellers), it may be possible for successful speculators to manipulate prices further upward by hoarding their supply. Speculation and hoarding are a quirky, unpredictable phenomenon in economics that has received little academic attention, so it is hard to predict just how high speculators in grandfathered guns can drive prices – and whether prices would remain constantly high (like diamonds, the prices of which are stabilized by a few corporate hoarders) or would fluctuate wildly, like some of the precious metal markets (where maverick speculators can disrupt a price equilibrium at any time). In either case, this means that the guns currently owned and grandfathered under a new ban would become much more valuable (current owners could realize windfall profits, in theory), but it also means many people who want to buy a gun in the future would have to pay exorbitant prices, and many would be priced out of the market (again, like buying diamonds or precious metals).

Some final, tertiary effects on prices: as a commodity rapidly increases in price, it attracts not only speculators, but also thieves. A potential thief would rather abscond with diamonds than thumbtacks, so the grandfathered guns in our scenario would become an irresistible target for thieves. This means that owners—and especially speculators and hoarders—would have to invest more time and money in security, and this cost would either be passed through to future purchasers (increasing prices even more) or would have to come out of the profits of the speculators and hoarders. Caveat: Koper and Roth, in their study of the 1994 ban, reported: “In the short-term, this effect does not appear to have been offset by any market adaptations, such as an increase in thefts of [assault weapons].”

How all this affects street crimes depends heavily on one’s assumptions about the financial resources of “criminals.” If we think criminals either have vast financial resources or have a high success rate at theft or finding owners willing to make an illegal sale—the two options for avoiding a background check—and eluding law enforcement, then a disproportionate share of super-expensive grandfathered guns will end up in the hands of criminals and simultaneously be completely unaffordable for almost everyone else. Of course, having to pass a background check will screen out those who already have felony convictions or other disqualifiers, but those without felony convictions or other disqualifiers would still be able to pass a background check in a transaction conducted through an FFL—so their main obstacle to acquisition would be the inflated prices. On the other hand, if we think most criminals are poor, and not very resourceful (not consistently successful in their crimes and/or frequently get caught), then criminals would be disproportionately disarmed by a substantial price increase, at least in terms of the grandfathered guns, and the guns would be mostly in the hands of wealthier law-abiding citizens.  


Synthesizing Bruen, Heller, and NFIB v. OSHA: The Relevance of the Original Version of the Second Amendment

Should the original version of the Second Amendment matter, if it was not the version sent to the states for ratification? The original draft of the Amendment that the House debated and voted to adopt included a clause, omitted from the later Senate version, protecting the rights of those “religiously scrupulous” of bearing arms.  In District of Columbia v. Heller, Justice Scalia called this the “conscientious objector clause,” and sections of the majority opinion and Justice Stevens’ dissent discussed it at some length.  In NYSRPA v. Bruen, the Court held that Second Amendment cases should turn on historical arguments and evidence, not balancing of legitimate state interests and private rights.

The question is whether the original versions or drafts of the Second Amendment are part of that history – not the whole history, but one part that deserves some attention.  At the beginning of his discussion of the original version of the Second Amendment, Justice Scalia mentions, “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.”  Scalia proceeds to do just that – discussing the deleted provision at length and construing it to support his idea that the Amendment protects an individual right to keep and bear arms for self-defense.

By saying “it is always perilous to derive meaning,” Justice Scalia seems to be referring to a traditional canon of construction that there is a weak presumption of deliberateness when the legislature drops language from an earlier draft version of a bill on the way to final enactment. Courts sometimes draw a dispositive negative inference about verbiage discarded as an enactment moves through the legislative process. One recent example is the 2019 Federal Circuit case Dai Global v. Administrator of USAID.  There, the Civilian Board of Contract Appeals had followed language that had been in the Senate version of the relevant statute, but had dropped out when the bill went through the House (the final conference committee version followed the House wording, and was enacted). The court held: “It is axiomatic that a statute should not be read to implicitly include language specifically rejected by Congress.” (See also  Acosta v. Local Union 26, Unite Here, in which the First Circuit inferred legislative deliberateness, and therefore intent or meaning, from the fact that a clause dropped in the enactment process.)

At the same time, cutting text from draft legislation may signal that the legislators thought the provision was redundant with the remaining verbiage or with existing law.  As the Massachusetts Supreme Court explained in Mercy Hospital v. Rate Setting Commission, “The disappearance of a provision during a legislative journey to enactment does not establish the contrary to be the law, especially when it appears on fair analysis of the final text that the provision would have amounted to surplusage.” 

In the case of the conscientious objector clause in the original version of the Second Amendment, it is purely a matter of speculation whether the Senate omitted the clause because it disapproved of it, or because it thought the same idea was already stated or implied in other parts of the original Constitution or the Bill of Rights, such as the Free Exercise clause of what became the First Amendment (both of these views were expressed by some members of the House when they debated the clause, though the majority of that body voted to keep the language). It is also possible, in theory, that the omission was inadvertent at some key juncture (a scrivener’s error).  My personal view is that the Senate thought exemptions for conscientious objectors could be left to the state legislatures and Congress, as it had become the norm before the War of Independence for colonies to include in their militia acts some kind of exemption for conscientious objectors (often requiring them to pay the cost of hiring a substitute).

At the same time, Justice Scalia overstated his point about this.  This was not a “provision deleted in the drafting process” in the usual sense of a bill markup by a drafting committee, or even a proposed floor amendment that failed to garner sufficient votes during the floor debates (a phenomenon that did, however, occur during the House debates on the Second Amendment, with a proposal to amend or delete the conscientious objector clause).  Instead, this clause was in the final version that the House voted on and approved, after lengthy deliberation about the clause itself.  The fact that the House later acquiesced to the streamlined version the Senate sent back (several of the Amendments, in fact, had their wording tightened up) could have been due to their concern about delaying or disrupting the process once the Senate seemed poised to finally send the still-controversial Bill of Rights to the states of ratification. 

Given the absence of any indication of why the Senate dropped the language, our main window into what Congress was thinking, besides the House debates, is the fact that the House very deliberately, and repeatedly, voted to keep the conscientious objector clause – first in voting down proposed floor amendments, and then in voting to adopt the Amendment with the language included. Nearly all the discussion in Congress focused on this clause, and no one objected that it was off-topic or unrelated to the intent of the rest of the Amendment. Instead, the discussion suggests they indeed thought it created a substantial exception to whatever the rest of the Amendment would accomplish, and they were not sure they wanted this exception to have constitutional status versus being a feature of state statutes.

The Court’s originalist methodology continues to evolve, and one example relevant to this discussion is the Court’s recent “vaccine mandate” case, NFIB v. OSHA. There, the majority opinion twice highlights a resolution, passed by only one house of Congress, that supported the majority’s view and was unfavorable to OSHA: “In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.” Returning to this point later in the opinion, it said, “Indeed, a majority of the Senate even voted to disapprove OSHA’s regulation.” 

This “majority vote of the Senate” was part of an unsuccessful attempt to invoke the Congressional Review Act (CRA) – the legislative veto protocol that replaced the one struck down in INS v. Chadha. The CRA requires a resolution vote by each chamber and signature by the President (this process rectifies the bicameralism and presentment problems Chadha found with the previous legislative veto).  In this instance, the Senators voting for the resolution knew at the time that it would not pass the House, and that President Biden would never sign it (he had asked OSHA to create the vaccine rule in the first place). This made the Senate vote a politically costless opportunity for political theater, an otherwise empty symbolic gesture.  The Senators who voted for the resolution did not have to worry about political accountability if adverse events resulted from their vote, because they knew the resolution would have no real-world effect. 

The Court’s reliance on the Senate resolution in NFIB v. OSHA may signal a shift, as one small part of its evolving originalist jurisprudence, about the relevance of pre-enactment drafts.  If so, the Congressional debates, and the conscientious objector clause itself, may have new importance for Second Amendment cases.  This is not to say that the House version of the Second Amendment is binding – the states ratified the language that emerged from the complete process after the Senate mysteriously shortened it – but it does support the idea that the House version is at least relevant for discussion of the text and history, as there is no historical indication that the Senate disapproved of the clause – they may have thought it was simply unnecessary because it was so obvious.  Of course, it is possible to distinguish an unsuccessful attempt at a legislative veto from a pre-enactment draft of a constitutional amendment. NFIB v. OSHA uses the Senate resolution as evidence of regulatory overreach, not as evidence of the meaning of a statute or law.

It will be interesting to see if the Court’s expanded reliance on legal history for Constitutional questions will include more openness to discussion of the original drafts of the Amendments and what the members of Congress expressed about them.

The Original Version of the Second Amendment: Religiously Scrupulous of Bearing Arms

[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.]

In District of Columbia v. Heller, the Supreme Court relied heavily on (hotly contested) historical evidence about the original meaning of the Second Amendment.  In NYSRPA v. Bruen, the Court doubled down on this approach, rejecting the various two-step intermediate scrutiny approaches adopted by all circuit courts since Heller.  One main takeaway from Bruen is that future Second Amendment cases will turn mostly on historical arguments and evidence, though modern means-and-ends analysis will still be a necessary part of the analogical reasoning the Court contemplates.

The Court’s originalist methodology seems to have evolved in the years since Heller, making it especially important to revisit a specific part of Second Amendment history – the original draft that the House debated and voted to adopt.  This version included a clause, omitted from the later Senate version, stating: “ . . . but no person religiously scrupulous, shall be compelled to bear arms.”  The House debated this clause extensively, and the version of the Amendment it adopted included it.  Then, for reasons lost to history, the clause dropped out when the Amendment moved through the Senate (the Senate lightly edited several of the Amendments in the proposed Bill of Rights, making them more concise).

Justice Scalia spent a section of the Heller opinion (at pp. 589-90) responding to an argument from Justice Stevens’ dissenting opinion about this “conscientious objector” clause, though both opinions in Heller quoted a later version that included some edits proposed in the House debates: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”  Both the majority and the Stevens dissent in Heller called this the “conscientious objector clause,” though this phrase was not in use at the time.

After Bruen, the conscientious objector clause in the original Second Amendment deserves another look, and it could have relevance to firearms policy today.  Both Justice Scalia and Justice Stevens were partly mistaken in their comments in Heller – both about the Quakers and the clause in the original draft of the Amendment.  Justice Stevens overstated the case when he said the exemption proved the entire Amendment was about state militias versus federal standing armies, because the citizen-soldiers who comprised the militias were normally expected to bring the guns they owned when they reported for duty.  Having militias meant having guns, but also implied something about private property rights in guns: privately-held guns were, to some extent, held in a type of quasi-public trust.  Justice Stevens was right, however, that the clause itself, and the Congressional debates about the clause, reveal that the public at the time did not have a clear notion of individual civilian gun ownership that was completely and always distinct from armed military service.

Justice Scalia, on his part, was mostly right in Heller in his assertion that devout Quakers were not merely noncombatants, but would not have used any weapons in personal self-defense. (He was technically incorrect about it being “prohibited” – it was more of a widely-shared group norm than an enforceable rule).  Scalia was also correct that Quakers had a reputation on the frontier for traveling about unarmed – in fact, they had a reputation for being left un-attacked as well, because the indigenous tribes learned early on that Quakers were friendly and always unarmed, and they assumed that anyone traveling in the wilderness unarmed must be a harmless Quaker.

Nevertheless, Scalia’s argument skipped a step.  He argued that the Quaker scruples against arming themselves for self-defense showed that the Second Amendment was not merely about the existence of state militias, but was also meant to protect individual gun ownership for self-defense.  Assuming that is the case – and Bruen doubles down on self-defense as the “core” meaning of the Second Amendment – then what exactly was the Quaker clause supposed to protect?  If the Framers originally intended to provide legal protection (a Constitutional right) for the refusal to arm oneself for self-defense, what does that mean today for those who refuse to participate in the American gun tradition, such as the public carrying of weapons at issue in Bruen? 

I anticipate that some will object that this question is moot, as the Quaker clause dropped out of the final version.  Suppose, hypothetically, that the original version of the Second Amendment had been sent to the states for ratification (with the “religiously scrupulous” the clause intact) – what would that imply today in terms of legal rights for nonowners, for those who have conscientiously disarmed?  I believe the Second Amendment would have been ratified even if the “religiously scrupulous” clause had remained (most of the original states had some history of statutory exemptions from militia service for religious pacifists, usually with a fine-in-lieu-of-service).  This was a well-documented part of the history of the right to keep and bear arms, the other side of the coin from the positive right codified in the Second Amendment.

In terms of relevance for modern gun policy, I have argued, as have Ian Ayres and Fred Vars, for states and/or the federal government to facilitate self-bans, a way for citizens to give up their right to own guns (either for personal safety or for conscientious reasons) and add themselves to the NICS background check databases so that they are unable to buy a gun, at least from sellers who conduct a background check.  Ayres and Vars also propose allowing (via multiparty contracts) gun-free business districts, and it is easy to imagine something similar for distinct residential communities, such as a homeowner’s association or a condominium association.  Joseph Blocher made similar arguments in his article The Right Not to Keep or Bear Arms.

Apart from the clause itself, the decision in Bruen warrants another look at the original Congressional debates about the Second Amendment, which centered around the conscientious objector clause, and specifically the issue of Quakers in the new Republic.  Quakers came up in the First Congress other times as well – when Congress debated the permanent location for the nation’s capital (concerns were expressed about locating it in a place dominated by Quakers), when they debated a militia bill, and when the sect petitioned Congress for the abolition of slavery, prompting explosive tirades by Representatives from southern states.  William Laughton Smith famously exclaimed, regarding the new republic, “We took each other with our mutual bad habits and respective evils, for better, for worse; the Northern states adopted us with our slaves; and we adopted them with their Quakers.”  Quakers even staged a sit-in at the building where Congress met, occupying the second-floor gallery overlooking the Congress as they debated the petition to abolish slavery; they turned out in full force in both New York and Philadelphia (wherever Congress was meeting) to lobby individual members of Congress about exempting them from serving in or supporting any military activities in any way, and about abolishing slavery.  They accosted representatives on the street, visited them in their offices, and so on. 

Each time Congress discussed the Quakers, similar points were made by the same members.  When these other debates from the First Congress are read together with the debate about Quakers and the Second Amendment, it appears that the “right to bear arms” was intertwined with the slavery issue, Indian relations and westward expansion in the territories, taxation and the federal assumption of state war debts, and the supply and retail distribution of guns.  At the time, the Quakers were a large, close-knit, wealthy, and socially influential group, at least on certain issues, and the strong positions the Quakers took on each of these issues (militias, guns, slavery, Indians, taxes, westward migration, etc.) connected them together even more. 

The point of all this is that when the First Congress debated about the Second Amendment, they debated about the Quakers.  They largely did not mention crime rates or criminals, types of guns in common use, rights to carry in public, the Castle Doctrine, or the prevalence of dueling at the time – any of the topics we might expect to come up when elected officials today discuss gun rights.  If we are going to be faithful to the history of the right to keep and bear arms, part of that history was the Quaker angle to the question – which implicated the role of guns in maintaining the institution of slavery, establishing more settlements on Indian lands, taxation for military-related spending, loyalty oaths to the government, and so forth.


Second Amendment Protections and the Court’s Marginal Deterrence Analysis

A few weeks ago, Jake Charles raised an important point here when he compared the recent Eleventh Circuit decision in United States v. Jimenez-Shilon with Justice Thomas’ opinion, released the same day in Shinn v. Martinez Ramirez: in contrast to the Eleventh Circuit’s purist text-and-history approach to the Second Amendment, which precludes the invocation of any balancing tests or tiers of scrutiny, Justice Thomas, and the majority of the Court, approach many constitutional questions by balancing private rights and freedoms against public (i.e., state) interests.  As Jake observed, rather than the Second Amendment being treated as an inferior or second-class right, it seems that many conservative jurists treat the Second Amendment as more absolute than other rights embedded in the Constitution or Bill of Rights.

I want to follow up on this point with a discussion of the Court’s “marginal deterrence” analysis used in many Criminal Procedure cases (especially those involving claims under the Fourth and Fifth Amendments) and connect these to the legal discourse on the Second Amendment.  I previously touched upon “marginal deterrence analysis” in a 2012 article about police asking for (non-informed) consent to search. Marginal deterrence refers to how much additional deterrence against overreach, or additional protection of a lawful right, would accrue for future cases if the court decides to apply or extend the protection in the present case, beyond the deterrence or protections already in place from prior rulings or laws. As an analogy, if you already have four high-quality deadbolt locks on your front door, how much safer would you be against an intruder if you added a fifth lock to the same door?  If you have no locks on your door, adding the first lock makes a big difference in blocking intruders, but with each additional lock you add, it makes less and less difference.  At some point, you would simply be wasting your money if you added any more locks, because each lock costs something.  The Supreme Court has applied a similar logic to measures that protect constitutional rights, as explained below. 

There are three main theories about the purpose of the right to keep and bear arms codified in the Second Amendment: the colonial-state militia idea, the tyranny-resistor idea, and the personal self-defense idea.  Of course, many jurists and legal scholars would say that at least two – if not all three – of these are simultaneously true.  But in each of these approaches to the Second Amendment, or even all three combined, there is a mostly tacit premise that the right to keep and bear arms itself is instrumental or prophylactic: it is really there to protect even more fundamental rights and freedoms.  In other words, Second Amendment proponents consistently say that gun rights are protected in order to protect an even more fundamental right, like the ability to defend oneself against wrongful attacks, the ability to protect one’s community or state against tyranny (government overreach?), or the ability to repel foreign invasions and armed uprisings. The state militia idea also includes serving as a prophylaxis against federal standing armies, as the opening argument of the original Congressional debates about the Second Amendment explained (Eldridge Gerry’s opening statement). Joseph Blocher has discussed the instrumental or prophylactic nature of the Second Amendment in his articles Bans and The Right To and Not To. (A few other writers have also noted the instrumental nature of the Second Amendment – see here and here).

In this sense, the Second Amendment is very much like the exclusionary rule in criminal procedure: a prophylactic rule to protect even more fundamental rights and freedoms like privacy, freedom, fairness of judicial proceedings, and personal autonomy.  For the exclusionary rule, for the last 40 years or so, the Supreme Court (or at least the Republican-appointed Justices) have often taken a “marginal deterrence” approach, rejecting extensions/applications of the exclusionary rule in 4th and 5th Amendment cases due to the additional marginal “costs” of implementing the exclusionary rule that seemed to them to outweigh the additional marginal benefit of the proposed extension of procedural protections. 

This is a different type of cost-benefit analysis (much more subtle) than we usually see in gun cases.  Courts considering Second Amendment challenges usually compare, either expressly or impliedly in their intermediate scrutiny analysis, potential homicides or gun crime against perceived rates of self-defense, crime prevention, or crime deterrence – the costs and benefits of easily accessible firearms.  In other words, intermediate scrutiny has, at least impliedly, looked at endpoint costs and benefits with regard to violence. 

As far as I can tell, the Supreme Court first invoked marginal deterrence or benefit analysis in the 1966 case United States v. Blue, in which the defendant sought to have his case dismissed altogether, rather than merely have illegally-obtained evidence suppressed:

Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.

Justice Harlan revisited the idea in his concurrence in Alderman v. United States in 1969; and economist George J. Stigler popularized the term “marginal deterrence” for academicians who study deterrence theory and criminal law in his widely-cited 1970 article The Optimum Enforcement of Laws.

The Court fleshed out this approach in a pair of important 1976 decisions to which the Justices often refer in this context.  The first is Stone v. Powell:

The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal.  Even if one rationally could assume that some additional incremental deterrent effect would be presented in isolated cases, the resulting advance of the legitimate goal of furthering Fourth Amendment rights would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.

The other related decision was U.S. v. Janis, in which the Court said, “Assuming this efficacy [of exclusionary rules], the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation.”  In 1984, in INS v. Lopez-Mendoza, a case to which I will return below, the Court stated bluntly: “Deterrence must be measured at the margin.”

As a good illustration of how the Court continued to develop this doctrine, consider this section from Pennsylvania Bd. of Prob. and Parole v. Scott (1998):

Likewise, in United States v. Janis, we held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence would outweigh the marginal deterrence benefits, which, we noted, would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches . . . [In the present case, applying] the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches.

Other examples are Illinois v. Krull  (“[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.”); Herring v. United States (“In addition, the benefits of deterrence must outweigh the costs . . . The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free.”); United States v. Leon (using marginal deterrence analysis to craft the “good faith exception” to the warrant requirement); and Hudson v. Michigan (using the approach to decide that a violation of the state’s “knock-and-announce” rule did not automatically require the suppression of all evidence acquired during the subsequent search) (see also Montejo v. Louisiana, and Withrow v. Williams).

Even outside of the Criminal Procedure context, the Court has also applied marginal deterrence analysis in the context of campaign finance regulations (see Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, “Arizona also has stringent fundraising disclosure requirements. In the face of such ascetic contribution limits, strict disclosure requirements, and the general availability of public funding, it is hard to imagine what marginal corruption deterrence could be generated by the matching funds provision.”); and in cases about the regulation of violent video games (see Brown v. Entertainment Merchants Ass’n, “Even if the sale of violent video games to minors could be deterred further by increasing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”).

Importantly, for purposes of applying this approach to Second Amendment cases, the presence of rights-protecting legislation or regulations has moved the Court to refrain from imposing further constitutional protections.  The presence of rules or regulations protecting civil liberties makes the exclusionary rule less necessary.  Returning to the 1984 case INS v. Lopez-Mendoza, the Court there noted existing INS regulations already did part of the job that the exclusionary rule purports to do: “The INS’s attention to Fourth Amendment interests cannot guarantee that constitutional violations will not occur, but it does reduce the likely deterrent value of the exclusionary rule. Deterrence must be measured at the margin.”

The Court could use this approach in Second Amendment cases in one of two ways.  The first would be to ask what additional marginal protection of “the right to keep and bear arms” would result from extending the Second Amendment’s exclusionary force to whatever gun-related statute or regulation is being challenged in the case (some Circuits may already be applying intermediate scrutiny in this way, at least in practice).  The second way this could be applied – closer to what is occurring in the exclusionary rule context – would be to look at the additional marginal protection of the underlying rights and freedoms that the Second Amendment was, instrumentally, supposed to protect. Are citizens still able to defend themselves and their homes even if the challenged government action (say, a ban on large-capacity magazines) is upheld?  What would be the value – at the margin – of striking down the law?  Would citizens be in basically the same position vis-à-vis collectively resisting tyranny, or a foreign invasion or armed uprising, with or without the Court extending Second Amendment protections beyond what they already are?

One difference between marginal deterrence analysis and the balancing of interests used under various “levels of scrutiny” analysis is that the latter typically look at the present situation – the state’s current interest versus the degree of infringement – while the former look forward at future cases. When courts apply marginal deterrence analysis, they look at how the holding in the present case would affect potential parties (state actors and private citizens) in the future.

Based on the approach taken in Lopez-Mendoza, the existing body of statutes protecting gun rights must weigh into the calculus for the marginal benefit of extending the reach of the Second Amendment – and here I am talking about the PLCAA (which protects the supply or availability of new guns on the market), the Tiahrt Amendments (statutory restrictions on ATF disclosure of trace data and other reports), laws that provide a right to carry guns in public (whether open or concealed), “parking lot laws” that protect gun owners’ right to keep guns in their vehicles at work, over their employers’ objections, laws allowing for restoration of gun rights by felons and other disqualified persons, and the new state laws that punish financial institutions if they try to divest from the gun industry, such as SB19 in Texas. As with the INS procedural-protecting regulations in Lopez-Mendoza, these laws – especially in the aggregate – significantly diminish the additional marginal protection that might accrue from extending the Second Amendment beyond the boundaries set by Heller, or even to applying Heller to new cases that are not outright bans on all guns.  One difference between the protections discussed in Lopez-Mendoza and those in future Second Amendment cases is that the former involved a uniform, nationwide regime (immigration law), whereas protections of gun rights vary considerably between states.  Thus, in a Second Amendment challenge to a federal law or restriction, a court should look at the federal protections already in place for Second Amendment rights; for challenges to a state law, both federal protections and additional protections afforded by the laws of that state would be relevant.

Similarly, the “implementation costs” must be part of the analysis, just as they are in the context of the 4th Amendment and 5th Amendment protections provided via the exclusionary rule. Here, we are not talking only about the increase in gun crime and gun violence that might result from striking down a specific gun restriction (whether a statute or regulation).  The Court has included in “implementation costs” the flood of new legal challenges that result from each incremental increase of the exclusionary rule, and this is certainly an issue in the post-Heller world – each new decision striking down a gun law seems to produce an avalanche of new litigation, attempting to apply that case to more laws.  The Court’s “implementation costs” also include the uncertainty, confusion, and resulting hesitancy of law enforcement officers or prosecutors to enforce existing laws that are probably valid – but why take the risk, when one could just let this one slide?  The Court is very aware that each time it extends 4th or 5th Amendment protections via exclusion, there is a tendency for police and prosecutors to steer clear of crossing the new line that the Court has drawn.  In the Second Amendment context, this means that new decisions supposedly protecting gun rights a bit further would inevitably mean that laws about various gun crimes, for example, will be under-enforced – illegal trafficking, threats/brandishing, negligent entrustment, assaults that result in no injuries (the shooter missed the shot), bans on celebratory gunfire in crowds, and so on. The Court has even applied “implementation cost” analysis to the decisions of trial judges – expressing concern that judges will over-enforce the exclusionary rule and suppress valuable evidence that should be permissible, will expend undue judicial resources on additional pre-trial suppression hearings that are not really valuable or necessary, and will unnecessarily increase the works litigants need to do.  It is easy to see how this can apply in the Second Amendment context as well – many unsuccessful and mostly meritless Second Amendment challenges arise in the context of criminal proceedings, such as prosecutions of straw purchasers. This slows down proceedings, decreases judicial economy, expends additional resources for prosecutors and public defenders, and introduces unnecessary uncertainty into cases that should be straightforward.

Von Lossberg v. State: State Liability for Gun Suicides & the Background Check System

The Idaho Supreme Court recently held that the state could be held liable in a wrongful death action for negligently failing to add a name to the database used in gun purchase background checks.  In Von Lossberg v. State, the parents of a young man who committed suicide with a gun sued the state, the state police, and the private vendors who provided the technology involved to the state.  The victim had been the subject of an involuntary commitment for mental illness in late 2016, and the state hospital where he received treatment had discharged him at the end of December that year.  Five weeks later, he purchased a semiautomatic pistol from a pawn shop and used it to commit suicide.  

The victim should not have been able to pass a background check to purchase the gun, because he was a disqualified person under 18. U.S.C. § 922(g)(4). On his background check form, the victim had falsely (or incorrectly?) answered the question about whether he had ever been involuntarily hospitalized for mental health treatment – note that this is a “Y/N” checkbox on the form.  Even so, if his name had been in the database, as it should have been, he would not have been able to pass the background check and consummate that purchase.  Unfortunately, due to some systemic failures in the State’s case management system, the various state agencies involved had not reported the victim’s name and involuntary hospitalization status to the National Instant Criminal Background System (the “NICS”), which they were supposed to do under state law.  For those interested in the mechanics of how the background check system works on the input side, the following explanation from the court is informative:

…[W]hen the State of Idaho processes an order of commitment, it must send the order to a message server known as the “Message Switch.” From there, the orders are processed and delivered to the Idaho State Police and then the NICS. The State of Idaho contracts with Computer Project of Illinois, Inc. (“CPI”), to process and deliver these orders from the Message Switch to the State, the ISP, and the NICS. However, the Von Lossbergs allege that CPI’s system contained a known failure that would not recognize “the naming conventions and document format used by the State of Idaho and Tyler [Technologies] for Bryan’s Order of Commitment.” Consequently, Bryan’s order was never processed or transferred to the NICS database.

All the defendants in the case moved for dismissal of the claim.  The state and the state police claimed statutory immunity from tort actions under the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922(t)(6). The district court agreed and dismissed the case, and the victim’s parents appealed.

The Idaho Supreme Court reversed and remanded the case for further proceedings.  Carefully parsing the words of the Brady Act, the Court concluded that the immunity applied only to local governments and the employees of federal, state, and local government – but not to a state or state agencies themselves.  Side note: the state had not invoked sovereign immunity as a defense, but only statutory immunity under the Brady Act, and the Court explains the only question on appeal is Brady Act immunity, not sovereign immunity (it suggests it is unclear whether the state at this point has waived sovereign immunity by not raising it initially).  The court relied not only on the statute itself, but also a pair of 2019 cases from other courts: Holcombe v. United States and Sanders v. United States, which held that the Brady Act immunity provisions do not apply to the federal government itself.  Included in the Court’s reasoning is a reference to the traditional canon of construction expressio unius est exclusion alterius (“the expression or inclusion of one thing implies the exclusion of others”). 

As Ian Ayers and Fred Vars have argued in their book Weapon of Choice (and also in a series of articles and presentations), background check denials for suicidal individuals can save thousands of lives – many suicidal urges are temporary, so if the person cannot buy a gun the day they feel that suicidal impulse, there is a reasonable chance they never will.  If Mr. Von Lossberg had been turned away from the pawn shop and had to search for and negotiate with a private seller in order to acquire a gun, the hassle and time involved in doing so might very well have been too daunting for someone suffering from severe mental illness, who had only recently been discharged from a mental hospital. If Mr. Von Lossberg had tried to commit suicide by some other means, statistically he was very likely to have survived, whereas suicide attempts with guns are nearly always fatal (Ayers and Vars cite empirical studies demonstrating this inverse relationship).

From a policy standpoint, I think this case, along with Holcombe and Sanders, are positive steps.  The background check system is only as effective as the comprehensiveness or completeness of its database, and for decades, various government entities have been negligently (or intentionally) slow to cooperate and contribute names, and at other times sloppy about it – meaning individuals who are not supposed to have guns (according to statute) are able to pass background checks and acquire them, often with fatal consequences. The threat of liability should help incentivize not only the State of Idaho, but other states and federal agencies, to step up their efforts to submit names to the NICS system that are supposed to be in the database.

Do Mass Shootings Benefit Gun Companies?

Do gun companies benefit in the wake of mass shootings, such as the one last week in Uvalde, TX?  The answer is a qualified “yes” – but it is a little more complicated than it might seem at first. Answering the question of a company (or industry as a whole) “benefitting” depends on several factors, such as the timeframe analyzed, how highly-publicized the shooting is, the number of companies considered, and whether one is asking about profits (sales) or stock prices (share price).  For highly-publicized shootings like the one in Uvalde, sales of guns and ammunition typically rise sharply – the prevailing theory is that gun enthusiasts rush to buy more guns out of fears that they will soon be banned.  The share price question is more complicated, because if investors held the same views as the gun purchasers, they would not buy or might even sell shares in gun companies – if they thought strict new regulations were on the horizon, despite a surge in short-term profits from the sales immediately after the event.  Ironically, if share prices go up, it suggests that investors have the opposite beliefs of the gun buyers – they must expect no significant increase in legal restrictions on guns, so they see the mass shooting as an event that simply generates more sales.

On May 25, the NYT reported that major gun companies saw a jump in their share prices the day after the Uvalde massacre (other news outlets have similar reports – see here and here), and The Street reported a similar phenomenon after the mass shooting in Buffalo a week or so before. Gun company share prices rallied after the 2017 Las Vegas massacre, according to several major news outlets (see here, here, here and here).  Currently, there are two publicly traded gun manufacturers – Sturm Ruger and Smith & Wesson (see here and here); at least two publicly-traded ammunition makers, Vista Outdoors (which owns Remington Ammunition) and Olin; and some major publicly-traded retailers, like Wal-Mart, Dick’s, Sportsman’s Warehouse, and Big Five Sporting Goods (see here).  Many institutional investors – such as index funds or pension funds – have holdings in some of these companies, a point to which I return below.

Academic researchers are more likely to study trends and patterns over time, rather than the next-day market response major news outlets typically report; a next-day bump might be only temporary. When researchers look at long-term effects, the picture becomes more complex. A 2020 article in the Southern Economic Journal found that firearm sales increased nationwide (this article has a nice breakdown by region and characteristics of shooters and victims). Another paper making similar findings in 2016 is here.  Similarly, a 2019 Cornell University thesis submitted for a Master’s Degree in Applied Economics and Management found that mass shootings cause a modest two-step bump (several days apart) in gun company share prices.

On the other hand, a 2019 academic article by James Karan found that some mass shootings hurt stock returns of some gun companies.  And researchers Geoffrey Steeves and Newton da Costa, Jr. wrote in 2017 that when they aggregated events and companies’ returns, there was a modest negative impact on share price.  Steeves and da Costa note, however, “Our results suggest that shareholder response in the form of abnormal returns depends on the magnitude of the mass shooting and whether these events are analyzed individually or aggregated.”

Still other researchers think that there is no long-term effect either way.  A heavily-cited 2017 article by Anand Gopal and Brad Greenwood found that up to 2010, mass shootings hurt gun company stock prices, but that this effect disappeared after that (they speculate investors decided this was the “new normal”); the authors reiterated their findings in an op-ed this week). Two additional studies found no measurable effect of mass shootings on gun companies’ share prices (see also here and here).  

After reviewing these academic papers, it seems that the answer to the question depends whether you are studying an individual massacre and specific companies, or if you aggregate data – and then it is going to depend on your date parameters (how far back in time do you look, and how close to the present moment can you come with reliable data?), how many companies you study, and how many “mass shootings” the researcher includes in the study.

Regardless of what other investors are doing or what trends occur in the market, some investors may want to divest from gun companies, either in hopes they can hurt the firearms industry, or to avoid feeling complicit in the violence that results from the prevalence of firearms.  Personal divestment is a little tricky for those who invest in mutual funds and pension funds. Sites like Weapons Free Guns and Gun Free Funds help investors assess their investment exposure to gun manufacturers and sellers. According to recent reports, the institutional investor with the largest share holdings in publicly-traded firearms manufacturers is BlackRock. Sustainable Investing explains here why it may not be possible for investors in index funds to avoid investing in the gun industry.


Eleventh Circuit Upholds Federal Firearm Prohibitions For Aliens Unlawfully Present

On May 23, in United States v. Jimenez-Shilon, the 11th Circuit rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A), which prohibits firearm use or possession by any “alien” who is “illegally or unlawfully in the United States.”  The holding itself is in some ways unremarkable – it joins every other federal circuit court that has considered the issue (now eight in all, according to the majority) in upholding § 922(g)(5) against challenges since Heller.  There are, however, several noteworthy peculiarities about the opinion, not least of which is the lengthy, heterodox self-concurrence by Judge Newsom, who also wrote the majority opinion for the panel.

Quick factual and procedural background: Ignacio Jimenez-Shilon was a foreign national who had lived in the United States, without a valid visa or residency permit, for more than two decades.  In 2019, he was arrested for brandishing a firearm in a public place – but the indictment charged him with illegal possession of a firearm by a disqualified person under § 922(g)(5), rather than with assault or some other crime related to brandishing. He did not dispute his guilt (most of the incident was caught on surveillance video), but he requested an evidentiary hearing to establish his connections to the United States.  The court denied this request, and proceeded to sentencing.

This brings us to this appeal and decision.  Instead of applying some type of intermediate scrutiny for the Second Amendment claim, as is now the norm in federal courts, Judge Newsom relies entirely on a “text and history” approach.  The “text” part of this analysis looks at the Second Amendment itself, and in this case, just one word: “people.”  The opinion then delves into the question of whether noncitizens or foreigners fell within the Founding era’s public meaning of “the people,” at least when it occurs in the Constitution.  Quoting a wide array of Founding-era documents and contemporary scholarship, the opinion concludes that “the people” included many noncitizens in most sections of the Constitution, but not when it is used in the Second Amendment, because the Amendment “codified” pre-existing common law rights, which excluded most noncitizens.  In other words, according to Judge Newsom, the right to bear arms never applied to noncitizen immigrants like Mr. Jimenez-Shilon, except where they had taken steps to affirm (legally) their association with and support for the new Republic.  On that note, the majority concludes that evidence Mr. Jimenez wanted to present at his hearing – showing personal connections with this country, including a child born here – would not have offset his failure to secure legal permanent residency.

The opinion describes itself as “originalist,” but it is worth noting that it is a 1789-centered “public meaning” originalism, rather than the 1868-centered originalism that has been appearing in the amici briefs and legal arguments of many gun-rights advocacy groups.  A recent trend among gun rights advocates has been to shift, or at least expand, the timeframe for the original meaning of the Second Amendment so that it includes the Fourteenth Amendment, which incorporated previously existing Constitutional rights against the states.  This certainly makes sense when the legal challenge is brought against a state law – incorporation is a necessary step in that case. The current case is about a federal law, so incorporation is not an issue – perhaps that explains why the majority never mentions what the Second Amendment meant when it was channeled through the Fourteenth Amendment.  But some of the “Second Founding” originalists would say there is another reason, besides restricting state powers, to focus on 1868 rather than 1789-92 – it was a time when the Union reinvented itself and reinterpreted its understanding of many of the rights in the Constitution, even as they pertain to the federal government.

At the same time, Reconstruction-era legislative history also provides more material supporting the idea that personal self-defense is a part of the right to bear arms – and most of the litigation over gun rights today is focused on the right to arm oneself for self-defense, rather than a right to serve in the militia or to take up arms against a government that turns despotic.  “Public meaning” originalism discerns original meaning by focusing on the presumed audience of the communication, rather than the subjective intent of the author or speaker; an older form of originalism would have focused on the views or intentions of the Framers themselves.  In any case, this opinion is significant not only for its “text-and-history” approach (replacing the more widely used intermediate scrutiny), but for doubling down on Founding-era originalism.    

One interesting feature of the opinion is that it drops the “tradition” from the “text-history-tradition” (THT) rubric championed by many gun rights advocates (I have discussed THT previously here, and other authors have written about it for this blog here, here, here, and here). The majority opinion starts with “text” (“people” in the 2A), but mostly focuses on “history” in the sense of Founding-era indicia of who was included in “the people” when in the context of gun rights.  Judge Newsom acknowledges Jimenez-Shilon would have been part of “the people” in the broadest sense in which the Framers used the term but says the Second Amendment codified a common-law right to bear arms that would have excluded individuals like Jimenez-Shilon from its coverage.  Missing from the majority opinion is any reference to “tradition” – the final “T” of the THT rubric.

This omission becomes an express repudiation in footnote 2 of Judge Newsom’s self-concurrence:

 . . .[I]t has never been clear to me what work “tradition” is supposed to be doing in the tripartite “text, history, and tradition” formulation.  The duly adopted and ratified text of the Second Amendment, as originally (and thus historically) understood, governs the interpretive inquiry.  To the extent that “tradition” is meant to stand in for the original (i.e., historical) public meaning of the words on the page, it is duplicative.  And to the extent that it is meant to expand the inquiry beyond the original public meaning— say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.

In other words, Judge Newsom discards the “tradition” part of THT, because it is either redundant or anti-originalist.  The self-concurrence also frames text-history analysis as being the same thing as the first step in two-tiered intermediate scrutiny: “I’m on board with step one, which calls for an originalist inquiry of the sort that (I hope) characterizes the majority opinion in this case.” He then proceeds to argue that the next step of intermediate scrutiny is both an inappropriate judicial invention, and a rule too indeterminate (“slippery”) to safeguard an important right. He then argues, for three pages, that the Eleventh Circuit has never actually adopted a means-end scrutiny approach for the Second Amendment in a published opinion.

Presumably, the “tradition” part of THT would refer to entrenched case precedent and longstanding statutes from the time after the Second Amendment made its way into our Constitution. These rules and rulings have stood the test of time, and they must have reflected former generations’ assumptions about the meaning of the Second Amendment itself.  Justice Scalia’s carve-out for “longstanding prohibitions” in Heller probably illustrates the idea behind the “tradition” part of THT; Judge Newsom’s opinion suggests a willingness to reassess and possibly discard “longstanding prohibitions” in light of the common-law rules that the Second Amendment “codified.”

The last three pages of the self-concurrence are more adventuresome.  Judge Newsom moves on to question (attack, really) all balancing tests or means-end scrutiny for constitutional rights, with a focus on Free Speech cases – this is the part of Jimenez-Shilon likely to generate the most academic buzz, as he sets forth the case for a new originalist approach to Free Speech.  The case itself does not involve any First Amendment issues, but Judge Newsom prefaces this section by acknowledging it is “more a bookmark for future reflection and inquiry than anything else.”  It is probably not a coincidence that the Eleventh Circuit published this opinion on the same day as Judge Newsom’s opinion in the landmark First Amendment case NetChoice v. Attorney General of FloridaThe NetChoice opinion follows traditional strict and intermediate scrutiny analysis – the very approach Judge Newsom debunks in his self-concurrence in Jimenez-Shilon.  My hunch is that he played it safe in NetChoice because the case is likely to go to the Supreme Court at some point, and it is more likely that other Circuits will follow his lead in the nearly identical cases pending there.  I think he intended Jimenez-Shilon, or at least his concurrence there, to be a companion case to NetChoice, where he explains what he really thinks about Free Speech.  And, instead of nascent Second Amendment jurisprudence borrowing concepts from other areas of Constitutional-civil rights law (he calls 2A law “virgin territory”), Judge Newsom hopes to use a Second Amendment case to break new ground in Free Speech law and other areas.

One irony of the case is his rhetorical reference to “freedom” in the last paragraph (he calls balancing tests “freedom-diluting”). This conceptualizes “freedom” merely as the absence of government interference or control; it ignores the fact that citizens often experience oppression or loss of autonomy at the hands of one another.  When the government protects its citizens from harm by their peers – bullying, threats, assaults, arson, defrauding, libel, slander, and so on – it must necessarily interfere with the “freedom” of the would-be perpetrators.  This brings us back to how this case started: Mr. Jimenez-Shilon, while intoxicated at a gas station taco stand in Tampa, “pulled a pistol out of his waistband and placed it on a table near another customer,” (with a live round in the chamber) and “then pointed it around the seating area and in the direction of other diners.” (from the Government’s briefs here and here). Rather than charging him with assault or some other crime related to the misuse of a firearm, the government charged him with illegal possession of the gun – a common occurrence, based on my research. (The government may find illegal possession charges easier to prove, or perhaps prosecutors prefer whatever charges would carry the longest sentence). The nature of the charges allowed Mr. Jimenez to reframe the case, and his appeal, around his right to bear arms – impliedly for self-defense purposes under Heller. And the Second Amendment framing of the case allowed the Court of Appeals to treat it as a potential infringement of the right to arm oneself for self-defense and the best jurisprudential approach to protect that “freedom.”

Stepping back from this opinion for a moment, regardless of who could own guns in the pre-1789 common-law era, there are modern policy justifications for § 922(g)(5) – the same justifications I have offered as support for felon-in-possession laws. Interpersonal gun violence disproportionately occurs in vulnerable, poor, and underserved urban neighborhoods and communities.  High crime rates mean many guns stolen from unoccupied cars and dwellings, which in turn resupply black markets for gun that are hard to trace to those who use them in crimes.  While high-crime areas might mean more occasions to engage in lawful self-defense, high population density also makes reckless or negligent behavior by gun owners – like that displayed by Mr. Jimenez-Shilon – more likely to result in injuries and fatalities.

Apart from the pros and cons of §922(g)(5), I have two closing observations about this opinion itself.  First, it highlights a growing division between two ideological groups formerly found together under the big tent of conservative-leaning jurisprudence – constitutional originalists and the law-and-economics crowd.  Judge Newsom makes a compelling case that balancing tests cannot coexist with originalism, but Law & Econ is all about weighing costs and burdens.  Newsom’s strict originalism has no place for Coase, Posner, and Becker.

The second observation is that the language and logic of the opinion would support some types of gun control not currently on the books – such as conditioning gun ownership on taking a loyalty oath to the state and federal government.  The opinion even quotes Adam Winkler for the point that colonial governments limited gun ownership to those who would affirm allegiance to the Crown and/or the local authorities.  While I agree with the Founding-era Quakers that loyalty oaths are abominable, I wondered after reading this opinion if these judges would, hypothetically, uphold a law that required loyalty oaths for gun owners, or even one that disqualified those who refuse to stand for the national anthem or the pledge of allegiance from obtaining a gun permit.  The strict originalist approach to the Second Amendment taken in this opinion could support some gun restrictions as easily as it could invalidate others – including gun restrictions that would not have survived scrutiny under more conventional jurisprudence.

Guns and Banks: New Laws & Policies

When gun manufacturers or dealers face civil liability for misuse of firearms, the liability costs eventually shift to investors (shareholders or owners), liability insurers, commercial lenders, or creditors (the debts they own now carry more risk), and indirectly to future customers, who may face price increases. Financial institutions (which I will call “banks,” though this is an imprecise colloquialism) can have two of these roles in absorbing the liabilities, as their investment funds may hold stock in gun manufacturers or retail chains, and as their commercial lending units may have secured or unsecured business loans or lines of credits extended to manufacturers or dealers.

Civil liability for gun manufacturers can therefore pose losses for banks that invest in these companies or lend to them.  Financial relationships with gun manufacturers can, in theory, result in additional losses if the banks face consumer boycotts, negative scrutiny from the media, or informal shunning by potential commercial partners, such as vendors or co-branded credit cards with large retailers.  Potential losses from boycotts, negative publicity, and loss of corporate partnerships are collectively known as “reputational risks” in the financial industry.  On top of these potential losses, banks can face more scrutiny from bank regulators (more scrutiny often turns into higher legal costs) due to their higher risk portfolios, and in some cases, fines for regulatory noncompliance or even loss of their charter.  In other words, civil liability for gun manufacturers can, depending on its frequency and severity, cast a long shadow over parts of the banking industry.  And there is a long tradition of writers raising moral concerns over the profit motives and money trail of the arms industry, especially the military-industrial complex – the 1934 classic Merchants of Death by H.C. Engelbrecht and F.C. Hanighen is one early example, as is the 1933 book Cry Havoc! by Beverley Nichols.

Legislators and regulators have begun to intervene to address the relationships between financial institutions and gun manufacturers or dealers.  This is occurring at the federal and state levels, and these legal interventions run in two different directions – some attempting to protect the gun industry from banks wanting to divest, and others encouraging banks to divest. At the same time, a cultural trend of corporations being more socially and environmentally self-conscious – simultaneously urged by consumer boycotts and pressure from investors or shareholders, has led a number of large companies, including some financial institutions, to limit or sever their ties with the gun industry.

Bank Announcements: After the horrific mass shooting at a high school in Parkland, Florida in 2018, several large financial institutions (JP Morgan, Citi, Bank of America, etc.) announced plans to curtail lending to manufacturers of certain guns, or at least to require such borrowers to restrict sales of certain products or to younger customers.  The press releases framed these pledges as a reaction to the tragedies themselves.  It is possible, however, that such announcements were in response to public pressure (media scrutiny and threats of boycotts by groups like Guns Down America), or pressure from state treasurers or federal bank regulators – a topic to which I will return below. 

Federal Regulators and Congress:  A few federal agencies regulate different aspects of the banking industry – the Federal Reserve Board (FRB), the Office of the Comptroller of Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the relatively new Consumer Finance Protection Bureau (CFPB).  In late 2020 (after the November election), the Trump-appointed Acting Director of the OCC, Brian Brooks, proposed a rule to prohibit banks from “discriminatory” lending practices (this would have applied to both the firearms industry and the fossil fuel industry).  A new Acting Director took over in January 2021, after the inauguration, and within a week shelved the proposed rule, citing the need to await a new Senate-confirmed Comptroller of the Currency (we are still waiting on this).

A bill proposed in Congress in 2021, S.563 (the Fair Access to Banking Act), would similarly prohibit financial institutions from denying loans or other financial services to would-be borrowers based on their industry; it does not mention the gun industry specifically, but rather applies to any lawful businesses. Introduced by Sen. Kevin Cramer (with 26 Republican co-sponsors), it would simply prohibit banks from discriminating against industries based on their products or services; penalties for noncompliant banks include treble damages. In other words, a bill introduced in Congress would do the same thing that the proposed-but-shelved OCC rule would have done.

Both the moribund OCC rule and the proposed Fair Access to Banking Act were, at least in part, a reaction to a previous inter-agency initiative called Operation Choke Point.  There are competing histories about what happened with Operation Choke Point, and the extent to which it forged a rift between the national banks and the gun industry.

Operation Choke Point originated with a small task force within the Department of Justice during the Obama Administration.  These DOJ officials coordinated with the federal agencies that regulate banks in an effort to “choke off” the financing of certain industries connected with various illegal activities – but Operation Choke Point manifested itself differently through these agencies.  The FDIC took steps to discourage banks from financing Ponzi schemes, consumer fraud, and (mostly, it turned out) payday loan providers. The FDIC had a special focus on “Refund Anticipated Loans” (RAL), which are high-interest, mostly nonbank loans based on an individual borrower’s anticipated tax refunds.  The FDIC framed its concerns as being about these being risky investments for banks, either due to risks of default or “reputational risks.” The connection to the gun industry arose from a journal article.  The FDIC’s Division of Risk Management Supervision publishes a journal, Supervisory Insights, to promote sound principles and practices for bank supervision. One article from the time period included a table that listed thirty types of “merchants associated with high-risk activities,” and two of these thirty were “ammunition sales” and “firearm sales.” Other industries grouped with guns and ammunition sales on the table were “escort services,” “Ponzi schemes,” and “racist materials.” Note that this was neither a regulation nor an official “guidance document” under the Administrative Procedure Act – but bank officers read the article, and the gun industry reacted strongly.

There followed a series of court challenges (some by banks, some by payday lenders), Congressional investigations, and an audit/report by the Office of Inspector General.  The lawsuits and Congressional hearings painted the FDIC as the primary culprit in an alleged example of organized government overreach.  The OIC audit, however, found little or no involvement by the FDIC in Operation Choke Point (though it acknowledged a few FDIC officials had stepped out of line), and no evidence that any FDIC actions had harmed these industries.  Several gun dealers testified before Congress that banks denied them loans based on their industry being blacklisted by the FDIC.  The FDIC settled its last lawsuit over Operation Choke Point (by payday loan companies) in 2019, though the program ended with the end of the Obama Administration.

The OCC managed to deny publicly any involvement in Operation Choke Point (and largely avoided Congressional recriminations), though bank executives from the era remember the OCC pursuing the Operation aggressively. The OCC, in contrast to the FDIC, approached Operation Choke Point as an anti-money laundering initiative; it pressured banks to cut ties with numerous client businesses it believed were often involved in money laundering for drug cartels and terrorist organizations.  Like the FDIC, however, gun dealers were on its blacklist as clients for banks under its purview, as well as liquor vendors (far more numerous than gun dealers, if one includes restaurants and hotels), ATM operators, and so forth.  It was a co-defendant in some lawsuits with the FDIC, but it continues to deny its  involvement, contrary to stories told by bank execs from the time.

New State Laws: In 2021, the Texas state legislature enacted SB 19 (2021), which forbids state entities or Texas municipalities from contracting with banks (for financing, bond issues, etc.) that “discriminate” against firearm or ammunition manufacturers.  Note that in 2021, the Texas legislature also enacted SB 13, a statute that imposed similar restrictions for banks that boycott or divest from the fossil fuel industry.  Banks stepping away from the gun industry is part of a larger movement of corporate social consciousness, which includes environmentally friendly investing or lending practices, and sometimes includes divestment from Israel.  News coverage of the gun statute, however, connected it with the public announcements of the banks in the prior two years.  The Texas Attorney General announced a policy of strict enforcement for the statute (the statute requires banks to obtain state AG approval of their compliance certification prior to the awarding of any contracts – see here).

Also in 2021, the Wyoming legislature passed HB 0236, which similarly punished banks that “discriminate” against gun manufacturers or dealers.  Instead of cutting those banks off from municipal bond work in the state, this statute created a cause of action for those claiming to be victims of such discrimination (i.e., gun dealers denied a loan based on their line of work), for which they can seek treble damages.  Several other states also have recently enacted or pending bills that would sanction banks for their divestment/boycotts from the fossil fuel industry or Israel, including Arizona and Kansas

Before Texas enacted its statute, Louisiana, via its State Treasurer and relevant committees, excluded JP Morgan from a major municipal bond contract due to its anti-gun-industry policy.  This action by officials in Louisiana was a point of discussion in the Texas legislative hearings about SB 19 before its enactment.

Some states have gone in the opposite direction.  Some state pension funds had already taken steps, often via state treasurer’s policy or advisory boards, to divest state pensions from the firearm industry (as did some large cities like Philadelphia).  Again, this is part of a larger trend of environmental, social, & governance (ESG) policies by large pension funds and some banks.

In 2018, Connecticut’s State Treasurer went a step further, announcing a policy of more rigorous pension fund divestment from the firearms industry (the state Treasurer has some oversight of municipal pensions as well as those on the state level), and now requires banks to disclose ties with the gun industry to get contracts (i.e., loans or lines of credit for cities or state agencies, and bond work). For news coverage, see here and here. The Treasurer’s Office will “weigh” a financial institution’s gun policy as one factor, among many, when approving public contracts for banking and financial services. Connecticut appears to be the first state to adopt such measures.  The Treasurer’s announcement of this policy connected it with potential civil liability for gun manufacturers:

From an investment perspective, civilian gun manufacturers face significant legal and reputational risks that have an impact on company profitability and long-term shareholder value. Often a volatile investment, these securities present unnecessary financial and business risks associated with the products manufactured.  The U.S. Supreme Court’s decision to allow the families of Sandy Hook victims to proceed with their claims against Remington Arms underscores these risks . . . As State Treasurer, the costs and risks of gun violence are a matter of significant financial concern, and the business of guns is becoming an increasingly risky proposition. (emphasis added)

The Connecticut Treasurer teamed up with Rhode Island’s Treasurer in December 2021 and filed a shareholder proposal with Mastercard asking the board to stop processing sales transactions for “ghost guns” – home-assembly gun kits (see press release here).

Municipal bond work is a $4 trillion industry for banks in the United States.  It is also extremely lucrative for law firms that do the underlying legal work, which prompted the American Bar Association to adopt Model Rule 7.6 as part of the Model Rules of Professional Conduct (see detailed history here), which prohibits firms from making campaign contributions to state or municipal officials in order to obtain contracts related to bond work. In the 1990’s, the chair of the Securities and Exchange Commission had requested that the ABA do something to end these commonplace “pay-to-play” scenarios.

During legislative debates about Texas SB 19, opponents raised concerns that excluding several of the largest banks from the Texas bond market would end up hurting municipalities in the state, who would find it more difficult or more expensive to find a bank to handle their future bond issues.  It is not completely clear what effects will result from these laws in Texas, Wyoming, or Connecticut.  It depends partly on how competitive the bond market is—a highly competitive market will see minimal price increases even with the exclusion of several banks.  On the other hand, if the exclusion of these banks does result in price increases for Texas bond work, it would suggest that these firms have been enjoying monopoly/oligopoly rates up to now, which is a separate, but important, concern.  The impact of these newfangled bank bans will also depend on cross-affiliate application of the law – the Texas statute, for example, is silent on this point.  Large, national banks like Citi and Bank of America have dozens of subsidiaries and affiliates that are separate legal entities operating under different charters – some specialized regionally, some specialized by the type of banking services they offer (think consumer savings accounts and home mortgages versus commercial loans or bond issues). And even though news outlets reported that the big banks were backing away from the Texas bond market in the wake of SB 19, Citi was awarded a Texas bond contract just a few months after SB 19 passed – it was able to certify its compliance with the Texas law, despite its prior announcements about cutting ties with the gun industry.  Even if the law does not produce higher bank rates for bond issuance, the process of certifying compliance means additional work for the bank’s lawyers (see discussion of ABA Model Rule 7.6 above) and for bond rating agencies.

Complicated History: The National Shooting Sports Foundation – the official trade association for gun manufacturers – published policy papers and testified at the Texas legislative hearings about SB 19, referencing Operation Choke Point, discussed above, as the source of its concerns about the banks slowly strangling the gun industry.  Bill analysis within the legislative history of SB 19 also identifies Operation Choke Point as the impetus for the bill. The bill’s sponsor claimed that 75% of gun dealers in TX had faced financial discrimination.

A spokesman for the NSSF testified in a hearing that when Operation Choke Point “ended in 2016,” the same policies were “privatized” by banks, insurers & tech companies.  This has become a standard narrative – the proposed Fair Access to Banking Act (S.563) includes as one of its findings:

the privatization of the discriminatory practices underlying Operation Choke Point by banks represents as great a threat to the national economy, national security, and the soundness of banking and financial markets in the United States as Operation Choke Point itself

The banks saw themselves as victims of Operation Choke Point (the regulatory initiatives were, after all, imposed on them, in hopes of indirectly defunding certain targeted industries), so it must come as a surprise to hear that they have now “privatized” Operation Choke Point with their ESG policies.

Regardless of their specific focus or target, ESG policies by banks have many detractors across the political spectrum who think it is bad business to mix political or moral agendas with lending.  At the same time, bank reputational risk is emerging as a niche area of academic study. And there are cases where private-bank boycotts, even when politically motivated, can garner broad bipartisan support, as with the recent financial sanctions and private-bank divestment from Russia in response to its invasion of Ukraine.  The perceived legitimacy of such banking practices seems to depend on the popularity of the cause.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

Range v. Lombardo: Is the Third Circuit’s Approach to As-Applied Challenges Too Messy?

In the recent case Range v. Lombardo, a federal district court in Pennsylvania rejected an as-applied Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. §922(g)(1). The case is significant for understanding the Third Circuit’s evolving approach to Second Amendment challenges; it also highlights the conceptual quagmire of applying Second Amendment protections (or not applying statutory prohibited person status) to those with convictions for nonviolent felonies or misdemeanors. The teacher in me loves this case because it is clear enough to be useful for teaching law students about how courts wrestle with multi-factor tests, tiers of scrutiny, shifting burdens of proof, and 50-state statutory comparisons to ascertain a “consensus” view – sometimes all at once.  Note that this case was an action for declaratory judgment rather than a criminal prosecution.

Bryan Range is what lawyers call a “sympathetic plaintiff.” In 1995, he pled guilty to one charge of making a false statement (an omission, in fact) on an application to receive food stamp assistance.  At the time, Range was supporting his wife and three children by mowing lawns (earning ~$300/week).  His wife applied for food stamps, a need-based government assistance program, but when she completed the application form, she did not include her husband’s meager income from mowing lawns.  Both spouses signed the application, though Mr. Range later claimed he did not read it before signing it.  Nevertheless, when the government agency discovered the omission, Mr. Range accepted responsibility and acknowledged that it was wrong to understate the family’s income.  The state charged Mr. Range, but not his wife, with Pennsylvania’s version of welfare fraud, which at the time was a first-degree misdemeanor carrying a potential sentence of 5 years imprisonment.  As part of his plea agreement, the court sentenced Range to three years’ probation and nearly $3000 in restitution, fines, and costs (but no jail time).  The judge did not tell Range that he would be ineligible to own a firearm as a result.  In the years since, Range had no other criminal history apart from minor traffic and parking infractions and an overdue fee on his fishing license. 

At some point, Range tried to buy a firearm from a licensed dealer, but the background check system denied the purchase; the store employee guessed that it must be a “computer error” and suggested he try again another day.  Instead, his wife, who had no criminal record, bought a hunting rifle, and gifted it to her husband.  A few years later, Range again tried to buy a gun from a local dealer, again failed the background check, and received the same explanation (“…probably a computer error…”) from the store employee.  This time, he looked into it and discovered that his misdemeanor conviction from the 1990’s barred him from purchasing any firearms.  He sold the one firearm he then owned and brought suit to challenge his firearm disability.  (Alan Gura, who argued the Heller case before the Supreme Court, is one of the attorneys representing Range).  The court’s opinion from August 30, 2021 is a ruling on cross-motions for summary judgment; the court sides with the government.

The court begins its analysis by mentioning that Heller left several unanswered questions, but overall requires a “delicate” balancing test in Second Amendment cases. It then proceeds to Third Circuit precedent.  The Third Circuit, in Binderup v. Attorney General, broke from the majority of circuits on how to handle as-applied challenges to the federal felon-in-possession law, especially as it applies to state misdemeanor convictions (the statute includes those with (most) state misdemeanor convictions that carry a potential sentence of more than two years as a bar to gun possession).  Binderup created the impression, I think, that the Third Circuit is more favorable to those with nonviolent criminal convictions who seek to challenge the firearm prohibition in their individual case.  The opinion in Range, however, casts some doubt on this idea, and illustrates how complicated the Third Circuit’s approach really is.

Judge Pratter then observes that Binderup had multiple opinions, and no clear majority.  Following the Supreme Court’s 1977 decision in Marks v. United States, courts should follow the “median” position in a case where none of the opinions garner a majority of the appellate panel. For Binderup, this means following Judge Ambro’s opinion.  The court then proceeds with a complicated series of steps for analyzing a Second Amendment challenge.

First, the court applies the two-step (or two-tiered) approach from United States v. Marzzarella to determine if a the conviction was for a “serious” crime.  If the crime was indeed “serious,” then (under Marzzarella) the Second Amendment does not even apply – the individual is outside the scope of protection of the Amendment, because the individual is an “unvirtuous citizen.” On the other hand, if the conviction was for a “non-serious” misdemeanor or felony, the question is whether the law impermissibly infringes on the individual’s Second Amendment rights.  Judge Pratter notes that this inquiry involves burden shifting – if the challenger succeeds at the first step, the burden shifts to government to justify law under (some form of) heightened scrutiny. 

Marzzarella adopted a four-factor test to determine if crime is “serious”: (1) whether the conviction was classified as a misdemeanor or a felony, (2) whether the criminal offense involves violence or attempted violence as an element, (3) the sentence imposed, and (4) whether there is a cross-jurisdictional consensus as to the seriousness of the crime.”  The Third Circuit’s subsequent decision in Holloway v. Attorney General added a fifth: “the potential for physical harm to others.”  The government conceded in this case that Range wins on four of the five factors – all except the “consensus of other jurisdictions.”  The parties also agreed that around 39 jurisdictions consider food stamp fraud a felony, under a variety of statutory approaches.  Range had the burden to show that there is not a consensus among jurisdictions that his crime is “serious.”

Range tried to overcome this unfavorable ledger by arguing that the court should use as comparison only those states that specifically criminalize “false statement regarding food stamps,” rather than including it under general theft or fraud statutes; this would have removed 15 of the 39 unfavorable states, leveling the comparison from his perspective.  He could offer no legal authority to support such a move, but instead argued from the standpoint of fairness, compassion for the poor, etc.  The court expressed sympathy with this idea, but explained:

But under our system of government it is within the prerogative of every state to choose between having a more complex criminal code that defines its statutes narrowly, and more general criminal statutes that are accompanied by a greater range of possible punishments.  Nothing in Binderup, or any opinion applying its multifactor test, provides that a state’s choice to classify conduct like Mr. Range’s as a felony is irrelevant merely because the drafters of the laws in any given state choose to define crimes with more general language.

In a section of the opinion that I would find useful as a teaching tool in the classroom, the court then discusses a perennially thorny issue with multi-factor tests: whether one factor can outweigh all the others (“a set of elements that all petitioners must meet”), or if the factors constitute a balancing test, such that courts should weigh how the factors line up in a given case.  On this issue, Judge Pratter clarifies that even though the original Binderup plurality described this as a “balancing test,” more recent Third Circuit decisions in Holloway and Folajtar v. Attorney General allowed the government to prevail by winning on just one of the factors, thus making a single factor dispositive.  In a sense, this is the classic “rules-versus-standards” problem with judge-made law; through the lens of that rubric, the court here concludes that the five factors are rules, not standards.

Finally, Range argued that even if one factor could cancel out all the others, that factor should be Pennsylvania’s own classification of the original crime as a felony or misdemeanor, as the court did (in the government’s favor) in Folajtar.  The court again disagrees; even though the Folajtar majority found this one factor dispositive enough to reject a Second Amendment challenge, it did not address whether this was because the factor was singularly important compared to the others, or if the plaintiff simply needs to prevail on all five factors – as this court concludes.  In the end, the court decided that Range’s previous crime puts him outside the protection of the Second Amendment, so the firearm disqualifier applies.

The treatment of the factors as elements – that is, each one being independently dispositive – is a significant step in the development of Second Amendment doctrine in the Third Circuit, if the Court of Appeals upholds it.  A second significant doctrinal development in this case is the recognition of a sixth factor (inferred from Folajtar): “And it is not merely each state’s determination of a statute’s seriousness that the Court is considering. Congress has also determined that the conduct in question was sufficiently serious to justify disarmament.  This fact operates as a powerful “sixth factor” present in every case, weighing in favor of the Government.”  The difference between Range and Folajtar is that the latter involved a felony conviction for violating a federal law, so it was possible to read the language in Folajtar about Congress designating the crime as “serious” as relating to federal criminal statutes, but not necessarily state law violations.  Range involves a prior conviction under Pennsylvania state law.  The “Congress-says-it’s-serious” language in Range refers to the felon disarmament statute itself, even as applied to state-law convictions.  If nothing else, Range crystalizes the rule in Folajtar in a way that seems to make as-applied challenges to §922(g)(1) inoperative in the Third Circuit, at least for felony convictions.

I argue in a forthcoming article (discussed on this blog here) that analyzing these cases based on whether an individual’s conviction was for a “serious” crime or a “crime of violence” is an unworkable approach requiring overly-complex cross-jurisdictional statutory comparisons, and this case seems to illustrate my point nicely.  The arguments raised by Range – and the rebuttal points by the government and Judge Pratter – are reminiscent of the arguments that arise in cases under the ACCA, §924(c), and the sentencing guidelines for classifying offenses as “crimes of violence,” with often inconsistent and counter-intuitive results.  The ambiguity in the text and difficulty in the task are among the reasons the Supreme Court has struck down the so-called residual clauses in ACCA and §924(c) in recent years.  The district court here had to apply a two-step process under Marzzarella to get to a five-factor test, one of which requires a 50-state comparison of statutes, with wide variation in how states structure their criminal codes.  Some codify crimes in standalone code sections, while many others include a range of possible offenses under general headings like “theft” and “fraud.”  States have incompatible systems for both gradation of offenses (e.g., “Class A” or “Class B” versus “First Degree” or “Second Degree”) and classification of felonies versus misdemeanors.  For this reason, I am skeptical about jurisprudential attempts to narrow, or find exceptions for, the federal prohibited person laws under §922(g).  In the end, even an arguably sympathetic petitioner like Range will often fail to obtain the desired relief, but the courts must wander through an analytical maze to reach the same conclusion that it would have reached by simply accepting and applying the federal statute at face value – and relying on Heller’s presumption that longstanding prohibited person laws are valid under the Second Amendment.

Sir John Clonvowe & Social Norms of Bearing Arms in 1391

The original public meaning of texts like the Second Amendment, or of the 1328 Statute of Northampton, includes the social context, and social norms, of the relevant period.  The semantic meaning of the words in these legal texts must be situated within the context of norms that people took for granted.  The crucial role of social norms in understanding legal behavior has been the subject of earlier work by legal scholars, such as Robert C. Ellickson in his 1991 book Order Without Law: How Neighbors Settle Disputes, or Tom Tyler in his 2006 book Why People Obey the Law.

Jonah Skolnik’s recent post on this blog sheds some light on how later medieval and early modern legal writers understood the Statute of Northampton, which on its face seems to prohibit bearing arms in public places like “fairs, markets, or the presence of the justices or ministers.” Here, I want to introduce a non-legal cultural text from just a few years after the Statute of Northampton that may shed some light on the social norms and mores about carrying weapons in public.

Sir John Clonvowe (c.1341-1391) was a chamber knight of Richard II, and a close friend of Chaucer and Sir William Neville.  He died of the plague on military campaign in Byzantium (modern Istanbul) and was buried in an elaborate tomb there next to Neville.  A few literary works by Clonvowe survived, mostly of interest to scholars of medieval literature.  Clonvowe is an interesting figure for historians, however, because of his association with John Wycliff and the Lollard movement, the proto-Protestant reformers, who were eventually condemned by the church of the era as heretics.  The Wycliff-Lollard movement attracted some adherents among the gentry in the 1300s; today it is mostly remembered for its emphasis on translating the Bible and other religious texts into the language of the people (that is, Middle English) rather than Latin. Educated Lollards produced an impressive corpus of literature, therefore, in the dialect of the common people of their day.  Clonvowe’s religious writings suggest he was a Lollard knight, and apparently some of the later heresy trial records and historical chronicles confirm this.

One of Clonvowe’s religious essays, The Two Ways, composed shortly before his death in 1391, survived in two old manuscripts.  The Two Ways reads like a medieval sermon, encouraging readers to be more devout, prayerful, and rigorous in their pursuit of personal holiness.  Of interest for discussing the public meaning of “bearing arms” and the surrounding social norms, Clonvowe makes a comparison at the end of the fourth paragraph/beginning of fifth paragraph between sinners who refuse to repent and “fools” who are so attached to being armed – all the time – that no inducement could persuade them to go anywhere unarmed.  Here is a modern translation of the passage:

…Truly, [those who do not repent of their sins] are [even] greater fools than those who will not give up their weapons for all the king’s treasure.

For a weapon is an instrument that is made out of something worth little, with which a fool beats other men, and with which other men often beat him in return, so that he both beats and is beaten with it.  And though it serves no other purpose, yet a fool will always have it near him and will not give it up for any reason.  And men say that when a fool loves his weapon this much, then that is proof that he is a natural fool.[1]

(Translation note: the Middle English word translated as “weapon” is “babel,” which means in the context “a scourge with spiked balls on thongs,” though the same word was sometimes used for “a trinket” (i.e., the precursor of our modern word “bauble”); the writer may have been making a play on words to emphasize his spiritual point that weapons are not worthwhile objects.)

The takeaway here is that the writer, like many writers of religious devotional literature through the ages, wants to compare the folly of living in sin with something the readers will easily recognize as foolish or stupid.  His example is the fool who always wants to have his weapons near him, who cannot be persuaded to leave them at home, etc.  The point about the weapons not being particularly valuable is that that they are not priceless items that someone might want to safeguard carefully at all times – instead, they are just instruments that people end up using to hurt each other in day-to-day interpersonal disputes.  Clonvowe assumes his readers will 1) know the type of person he is talking about, and 2) agree that everyone else looks down on these weapons enthusiasts.  He says everyone in his day called these people “natural fools,” that is, someone who has always been foolish, impulsive, or unintelligent, not, for example, someone who merely has a momentary lapse of irrationality or a single character flaw.  His writing implies, in other words, a strong social norm against being armed all the time, a strong enough norm that everyone made fun of people who did that.  He uses this to support his main spiritual point is that people who continue living in sin are being even more foolish than those people.

Note that John Clonvowe was not a pacifist – he was a knight, apparently close to Richard II, and died on a crusade. He bore arms in battles.  That is what makes this passage so striking – his disparaging comparison of those living irrationally in self-destructive indulgent behavior to people who carry weapons everywhere they go. 

To the extent that the Statute of Northampton is relevant to understanding the text, history, and tradition of the Second Amendment, non-legal writings from the same period can help us understand the social context of the prohibitions.  The social norms about carrying weapons in public are part of the history and tradition of the English laws and rights of bearing arms.  When English law later recognized a legal right to have arms, the social norms and customs of the time were boundaries for how everyone would have understood this right, at least operationally.  The social context of the Statute of Northampton was that most people did not bear arms in public often – in fact, it appears that most people made fun of the few who did.

[1] This translation is from Sir John Clonvowe, The Two Ways, in J. Patrick Hornbeck II, Stephen E. Lahey, and Fiona Somerset, eds., Wycliffite Spirituality 166 (2013). For the Middle English original text, see V. J. Scattergood, The Two Ways – An Unpublished Religious Treatise of Sir John Clonvowe, English Philological Studies 10 (1967) 33-56; for the scholarly dating of the text, see John Scattergood, The Date of Sir John Clanvowe’s “The Two Ways” And The ‘Reinvention of Lollardy’, 79 Medium Ævum 116 (2010).  See also John Scattergood, The Works of Sir John Clanvowe: The Boke of Cupide and The Two Ways (1975)(a typewritten dissertation).

The Ayres/Vars Proposal for Unlawful Possession Removal Petitions

Ian Ayres and Frederick Vars, Weapon of Choice (Harvard Univ. Press, 2020)

Ian Ayres and Fred Vars set forth several innovative proposals for firearms regulation in their 2020 book Weapon of ChoiceThe first part of the book sets forth and expands upon the authors’ proposals for “Libertarian Gun Control,” i.e., self-imposed legal restrictions on gun purchases, which they have set forth previously in a series of articles which this blog has previously featured here.  I have argued for something similar here.  The discussion below, however, focuses on one of their newer proposals, explained near the end of the book.

The last two chapters of the book propose legislative initiatives to permit third party Unlawful Possession (UP) petitions – that is, to allow others to petition for gun removal from prohibited persons, including felons.  Currently, a major barrier to enforcing the felon dispossession laws is how difficult it is to know who possesses firearms illegally, unless law enforcement officers search the person or their property pursuant to an arrest or investigation of another crime.  Ayres and Vars propose harnessing private information to increase enforcement. (pp. 122-25).  Many prohibited persons who possess firearms are known to relatives, acquaintances, and neighbors, and the proposed legislation would allow such individuals to file a petition in court to have the firearms removed and/or have the individual arrested.  Unlike a tip directly to the police (who often ignore such tips), this would come before an impartial judge, who would make a judicial evidentiary determination whether the individual is, in fact, ineligible to have firearms, and has firearms nonetheless.  The court would then issue an order for firearm removal that the police could carry out.  For Ayres and Vars, this would also help address the massive under-reporting (mostly by states) of prohibited persons to the NICS database (p. 128-32).  Based on statistics about drug use and hospital admission for mental health problems, they estimate that there are tens of millions of individuals who cannot possess guns legally (p. 132), of whom hundreds of thousands nationwide probably possess firearms anyway. (p. 139) Police normally view illegal firearm possession by itself as a low-priority item for enforcement, they posit, but would give higher priority to gun removal if someone filed a petition for this in court.  (p. 126).

Ayres and Vars explain the variety of ways in which prohibited individuals end up in possession of firearms, even though it is illegal for them to purchase them.  Some purchase their guns from licensed dealers and pass the background check because their name is not in the NICS database, due to underreporting.  Some who are in the NICS database bypass the background check system through private (unlicensed) sellers, such as internet sales, acquaintances, and some gun show sales. Still other prohibited persons receive guns as gifts or inheritances from friends or relatives, and some obtain them through theft.  Importantly, many individuals who bought and owned guns legally become ineligible for gun ownership, and simply keep the guns they already have.  (p. 134) More than 300,000 people in 2020 failed background checks when attempting to buy guns from a licensed dealer (an all-time high, almost doubling from the previous year), because their name is in the NICS database, and very few (around .01%) of these individuals face federal prosecution for attempting to buy guns illegally.  Ayres and Vars report that only three states – California, Connecticut, and Nevada – have laws expressly requiring individuals to provide “proof of compliance to courts or law enforcement verifying they relinquished their guns after conviction.” (pp. 135-36).  Based on California’s extensive efforts to locate and confiscate illegally possessed firearms, Ayres and Vars believe police can conduct such removals with a minimal risk of violence. (p. 151) (For a new report on the pros and cons of California’s gun removal program, see here.)

If this sounds like a turn toward more heavy-handed enforcement (or not very “libertarian”), Ayres and Vars also include large categorical exceptions in their proposed legislation.  Unlawful possession petitions would not apply for those whose ineligibility is due solely to being marijuana users, undocumented residents, citizenship renouncers, and (importantly) nonviolent felons and violent felons twenty years post-conviction (pp. 143-44).  They do not define “violent” versus “nonviolent” felonies.  These categories of individuals, they explain, show little empirical evidence of posing a danger to others, a point that the Third Circuit countered in its Folajtar opinion last year. Ayres and Vars acknowledge that simply tracking with the federal categories without exceptions would be likely to reduce the overall number of guns, including illegally owned guns, and would probably save lives, but they believe “political prudence and justice” weighs against allowing unlawful possession petitions against individuals they deem non-dangerous. (p. 144).

Anticipating a few objections, they believe that their exceptions will mitigate or eliminate the problem of racial disparity in enforcement of their proposed law. (pp. 148-52) Their proposal also includes sanctions for those who file removal petitions in bad faith to address the potential for misuse of the system.  (p. 152)

Ayres and Vars follow this proposal with a chapter on incentivizing enforcement by paying cash bounties for UP petitions that result in the removal of illegally owned firearms (p. 155), and mandatory reporting requirements (with threat of fines and tort liability) for employers and universities that know someone poses a threat and should not have firearms.  They also propose ratcheting up the existing rewards and punishments of federal funding to states based on their performance in reporting prohibited persons to the NICS database. (pp. 164-65) (For up-to-date reports on existing incentive programs for reporting to NICS, see here and here).

I agree with Ayres and Vars that underreporting to NICS continues to be a serious problem, and that there would be significant benefits to fixing this.  One way to do this is to expand the range of who can report to the NICS database (for example, any court personnel who are aware of a felony conviction or even a no-gun order in bail hearings, probation sentences, some child custody cases, and non-marital restraining orders – this rarely happens now), and to have citizen petitions that could either flag someone already in the NICS system who has illegal firearms, or flag individuals for inclusion in the NICS database if their prohibited status can be easily verified, as with convictions or involuntary confinement in a mental health treatment facility.

My main concern about this is that their exception for “nonviolent” felonies would prove as indeterminate and unworkable as “crime of violence” has been for the last few years in the context of the Armed Career Criminal Act (ACCA), provisions of 18 U.S.C. § 924(c), and the federal sentencing guidelines.  Deciding in each individual case whether a specific conviction was for a crime of violence has become extremely labor intensive for the judiciary, fraught with uncertainty and inconsistencies.  Other scholars have decried its unfairness, its indeterminacy (noting discrepancies in whether state manslaughter charges constitute “violent” crimes), and its inappropriateness for non-jury determinations. Adopting a limitation on felon-in-possession laws based on dangerousness or “violent felonies” would import these same problems and burdens into the context of our most frequently enforced firearms law. The Third Circuit made a similar point in footnote 10 of the recent Folajtar opinion (referencing a more thorough argument along these lines in Judge Fuentes’ partial concurrence in Binderup v. Attorney General), analogizing to the unworkability of the now-defunct statutory scheme for felons to petition for restoration of gun rights in 18 U.S.C. § 925(c), which Congress defunded in 1992. In the context of the ACCA and the sentencing guidelines for “crimes of violence,” the Supreme Court avoided the overly-subjective factual inquiry that had unraveled the restoration-of-rights statute, and adopted a “categorical” approach – looking at whether the statute under which the felony conviction occurred included an element of use or threat of violence (force). This requires an exercise in complex statutory interpretation rather than a review of the facts of the crime committed or the felon’s present dangerousness.  The categorical approach, in turn, has forced lower courts to parse numerous state statutes, reaching the inconsistent and counterintuitive results delineated in the commentary mentioned above.  In the end, distinguishing “violent/dangerous” felonies from nonviolent/non-dangerous ones will require one or the other approach – either a factual inquiry into the felon’s original crime or a categorical-statutory approach, and neither of these has worked well in answering this same question in other areas of criminal law.

Moreover, it would be infeasible for local police to make the complex legal determinations of whether a conviction was for a “crime of violence” that have become requisite for this same legal term of art in the arena of the ACCA and sentencing.  There are recent examples of police making good faith errors in determining whether a suspect’s prior convictions constituted misdemeanors or felonies for purposes of making an arrest under the felon-in-possession law – and this would add new layers of complexity and uncertainty to the inquiries that must precede routine warrant applications and arrests.

I was surprised that the Ayres and Vars proposal did not include eliminating long prison sentences for unlawful possession of firearms and replacing prison time with simple gun forfeiture (via streamlined asset forfeiture proceedings) and possibly subjecting the individual thereafter to administrative searches. In the context of regulatory enforcement, warrants for administrative searches (such as the audits and inspections that now happen for licensed gun dealers) require less supporting evidence than search warrants in the criminal context – for example, if individuals or enterprises are subject to monthly inspections, all that is required for officials to obtain a warrant is evidence that the last inspection or search occurred more than 30 days prior.  While I think the felon-in-possession statute is good public policy, it has contributed significantly to the problem of mass incarceration and the troubling racial disparities inherent in the carceral system.  Simply removing (confiscating/forfeiture) the guns might serve the purpose of ensuring public safety just as well, without the need for subjecting violators to long prison terms. (Note: in 2017, the Texas Supreme Court held in Tafel v. State that unlawfully carrying a weapon in a prohibited location did not constitute “use” of the weapon and therefore the gun was not subject to forfeiture under the relevant statute).

A growing body of literature advocating for prison abolition has made a strong case for finding alternatives to incarceration that would still ensure public safety.  Firearm bans combined with gun forfeitures and periodic inspections/searches, at least for those who commit serious crimes, will have to be part of the package for moving away from mass incarceration.  The Ayres/Vars book presents many thought-provoking, innovative proposals for addressing gun violence in ways that minimize intrusion on the rights of lawful gun owners, and I was surprised they did not include some suggestions for replacing prison terms with simple gun removal orders and periodic inspections.

Thoughts on Greer v. United States

In its June 14 decision in Greer v. United States, the Supreme Court addressed the mens rea requirement for the federal felon-in-possession law at 18 U.S.C. § 922(g)(1) (also called the “felon prohibitor”).  (The Court consolidated the Greer case with a similar case, Gary v. United States, on appeal from another Circuit).  This opinion was a natural follow-up to the Court’s 2019 decision in United States v. Rehaif, where the Court clarified for the first time that convictions under any section of § 922(g) require that the prosecution prove the defendant was aware of his or her status that implicates one of the nine statutory prohibitions.  In Rehaif, that meant the defendant (an immigrant) needed to know that his expired student visa meant he was unlawfully in the country in order to “knowingly violate” the statute; in Greer/Gary, this meant the defendant needed to have knowledge that he was a convicted felon. The case was about a gun control statute (I will argue below our primary gun control law), but the case was not a Second Amendment challenge to the statute.  Somewhat surprisingly, the decision was nearly unanimous, with 8½ Justices agreeing on the outcome (Justice Sotomayor concurred in part and dissented in part).  Justice Kavanaugh wrote the majority opinion.

A quick note of clarification: the mens rea requirement for § 922(g), according to these decisions, is that the prosecution would have to prove as elements of the offense that the defendant 1) knew he possessed a firearm or ammunition, and 2) knew he was a felon, or an immigrant in the country unlawfully, or dishonorably discharged from the military, or a current user of illegal narcotics, etc.  It does not require knowledge of the firearm prohibition itself – the Court does not require proof that the defendant knew his felon status would bar him from owning a gun.  Knowledge of the underlying or predicate status is required, but not knowledge of the firearm law itself.

Greer and Gary were both convicted and sentenced of being felons in possession before the Rehaif decision came out, and at that time many courts were not requiring proof that the defendant knew he was a felon, or admission of this on the record from the defendant in a plea colloquy, so both of them were seeking reversals so they could either have a new trial or renegotiate their plea deal.  The question the Court answered was therefore a technical point of appellate criminal procedure: whether this was “plain error” review rather than “harmless error” review, and if the former, whether the defendant showed (or needed to show) that he would have presented evidence at trial to show he did not know he was a felon.  The Court held that “plain error” appeals under Rehaif require showing that the defendant would have put on evidence at trial to show they were unaware of their relevant status, such as being a convicted felon.  Neither Greer nor Gary had done that, so their convictions stand.

The Court also mentions in passing several times that most felons know they are felons – proving this is usually a mere formality for prosecutors.  Justice Sotomayor’s partial dissent sets forth a few relatively commonplace scenarios where someone might misunderstand their status, such as juvenile offenders or those who plead guilty to a felony but serve little or no jail time, being sentenced instead to probation. Most of her dissent, however, emphasizes that the rules are different for appeals of “harmless error” (more favorable to defendants).

The technical procedural question before the Court helps explain the consensus among Justices who normally would disagree about Second Amendment rights and gun control laws.  The decision is consistent with other recent decisions about “plain error review,” requiring a defendant show on appeal “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.”  Note that this is a significant obstacle for defendants, and it means even when there was a plain error at trial, in most cases the conviction will be upheld.  This is also consistent with several other types of appellate review for errors at criminal trials, such as ineffective assistance of counsel claims or claims the prosecutor hid evidence that might exonerate the defendant.  In these cases, the defendant also must show (with varying amounts of evidence) that the outcome of the trial would have been different but for the prosecutorial misconduct or incompetence by defense counsel.  In that sense, the holding in Greer is not surprising at all.

As mentioned above, the opinion does not mention the Second Amendment (nor did the lower court opinions in the cases), it appears that none of the advocacy groups for gun rights (NRA, GOA, SAF, NSSF, or FPC) filed amicus briefs, and the decision seemed to escape notice on the popular gun rights blogs.  Justice Kavanaugh, who authored some of the circuit court opinions in Heller II, wrote for the majority.  So in one sense, this was not a big decision in the field of gun rights or firearm policy.  The “new” requirements imposed on prosecutors in Rehaif and Greer for bringing charges under § 922(g) amount to little more than a technicality, and Greer torpedoes nearly all of the post-Rehaif appeals from defendants sentenced before that case was decided. From a practical standpoint, Rehaif and Greer changed very little for prosecutors or defendants in these cases.

On the other hand, there are several reasons that Greer matters a lot.  The statute itself has been the target of numerous Second Amendment challenges, in several of which the Court has denied certiorari (including a few this term), leaving in place circuit court decisions upholding the statute.  The felon prohibitor is, at least in terms of legal challenges and cert petitions, a “hot” issue in the Second Amendment arena.  Justice Barrett, while on the Seventh Circuit, wrote a much-discussed dissent arguing that the statute is unconstitutional as applied to non-violent felonies, and other conservative Justices have expressed in dissenting and concurring opinions in recent years the desire to address more Second Amendment issues.  Even though the petitioners in the case had not brought Second Amendment claims before the Court, it was surprising that none of the Justices (especially Justice Barrett) would write a dissent or concurrence in this case arguing that the prosecutors should also have to prove the present dangerousness of the felon or that the prior conviction was a for a violent felony.  In theory, the Court could have requested briefing on the issue and included a Second Amendment section in the opinion, narrowing the statute by requiring prosecutors to prove the defendant poses a danger.  Greer could have been a Second Amendment case, and though it’s risky to argue from silence, the Court’s repeated denials of cert in the challenges to the statute, combined with seemingly sidestepping the issue in this opinion, could be a signal about the Justices’ views about the outer bounds of the Second Amendment.

A number of commentators have written about the issues with the statute: Jake Charles has an excellent article exploring whether the Second Amendment excludes felons from its coverage, or if it covers felons but merely permits some restrictions on their rights.  Other commentators have argued that permanently dispossessing felons of firearms lacks historical (Founding Era) pedigree (see here and here).  Benjamin Levin has discussed how the felon prohibitor rule is a major contributor to mass incarceration, disproportionately punishes minorities, and gives police and prosecutors too much discretion and power.

Levin’s concerns are well-founded, but as he acknowledges, the law might be necessary or beneficial despite these problems.  In practice, § 922(g) is the centerpiece of firearm regulation in this country.  The gun purchaser background check system (NICS) is built around § 922(g).  Arguably, § 922(g) is one of the two main functions of the gun dealer licensing system (violating § 922(g) by selling to prohibited purchasers is the most common basis for license revocations).  With a longstanding political gridlock preventing the passage of new gun laws, § 922(g) may be all we have for the foreseeable future – if we want to limit gun violence by limiting who can get a gun, § 922(g) is, in practice, the only way we do it. It may be the only type of modest gun regulation that garners bipartisan support.

The conservative Justices seem to agree (with the possible exception of Barrett, but after Greer even that is in doubt).  As Justice Alito stated in his dissent in Rehaif:

And § 922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.” (Rehaif at 2201).

Most of Justice Alito’s dissent in Rehaif was about the prospect of appeals like the one in Greer, and the Greer decision addressed most of the concerns he expressed about Rehaif.  Contrast this with his dissent in NYSRPA v. City of New York, where his absolutism about the Second Amendment might have led readers to think he would be more sympathetic to challenges to the felon prohibitor.

Indirectly, the felon prohibitor rule helps reduce the flow of guns into vulnerable communities – impoverished neighborhoods with elevated rates of gun violence. (Most of our nation’s gun violence is concentrated in urban areas).  While the felons themselves may not pose a danger or engage in gun crimes, any guns they have become more easily accessible to neighborhood thieves, borrowing by roommates and nearby relatives, and so on.  Some published social science research about gun violence has found that most guns used in crime are borrowed/shared (sometimes stolen), which means geographic proximity of the guns matters. The supply of guns flowing into vulnerable communities can impact rates of gun violence, even if the guns are brought there initially by owners who do not perpetrate the crimes. (RAND Corp has a meta-survey of the literature about the correlation between gun prevalence and gun violence – including some of the contradictory studies).

The Second Amendment challenges to the felon prohibitor argue that released felons need guns for self-defense, but it is not clear that incidents of legitimate (lawful) defensive gun use by felons matches the number of guns borrowed or stolen from felons, and sometimes used by felons in committing new crimes.  I am not sure it matters whether the felon’s conviction was for violent crime, drug possession (a large proportion of felonies), or a clearly nonviolent crime like fraud, embezzlement, or insider trading, from the standpoint of bringing more guns into vulnerable communities.  And if a nonviolent felon returns to the same type of nonviolent crimes – say, fraud – and they keep a gun for self-defense against their victims (who may seek revenge or repayment by force) – then we’ve set the stage for more foreseeable gun violence.  That said, I agree with other commentators that the sentences for § 922(g) seem unreasonably long, and significantly contribute to the mass incarceration problem.  Gun forfeiture with supervised release (including periodic inspections for guns) would seem to achieve the same social goals.  It is also worth mentioning that there is a federal statutory framework for felons to petition, after a period of some years, to have their gun rights legally restored, but for many years Congress has blocked the ATF from using any funds for this on the federal level.  Some states have functioning, streamlined processes for restoration of gun rights after a state felony.  This seems like a simple fix for Congress to make – the statutory and adjudicative framework is already in place for a restoration of gun rights by those who can demonstrate they no longer pose a danger to society.

Sixth Circuit Breaks from Other Circuits and Invalidates the Bump Stock Ban

In a break with other circuits, on March 25 the Sixth Circuit issued a decision  in Gun Owners of America v. Garland, holding that the ATF’s 2019 ban on bump stocks is invalid.  Previously, the DC Circuit and the Tenth Circuit have upheld the ban (more precisely, have rejected preliminary injunctions with opinions that effectively reject the challenges to the ban), and the Supreme Court denied a cert petition in the DC case.  (I discussed the latest decisions in these cases, for this blog here – including a quick explainer about bump stocks, the ATF ban, and the flurry of litigation that ensued to challenge it).

The Sixth Circuit reached the opposite result, also on a preliminary injunction appeal, thereby creating a circuit split on the bump stock ban’s validity and making it more likely that the Supreme Court will have to take the case(s).  Of course, if Congress enacts a statutory ban in the meantime, which is possible, the cases could be moot, as these are preemptive challenges to the rule, not defenses against prosecutions for violations.

As with the other circuit court opinions about the bump stock ban, the new Sixth Circuit opinion does not even mention the Second Amendment – the entire opinion is about Chevron deference for ATF’s newly-adopted interpretation of the National Firearms Act, and the majority’s contrary reading of the same statute.  The majority, in fact, claims it is not creating a circuit split, because there was already a circuit split on the Chevron issues (the Chevron issues here are the same addressed by the DC Circuit and the Tenth Circuit in their opinions on the bump stock ban, and the majority’s arguments echo the dissenting opinions in the other circuit cases).   A dissenting opinion by Judge White mostly restates, albeit more clearly, the arguments of the majority opinions in the other circuits.

The Sixth Circuit’s decision focuses on fewer issues than those of the other circuits, distilling the entire matter down to whether Chevron deference applies to regulations that may carry criminal penalties for violations.  As I explained in my previous post about the other bump stock cases, there is a split of authority on this question, even from the Supreme Court, and the most important long-term effect of the bump stock litigation would be if the Supreme Court decided to settle this question, which could have far-reaching implications for all other federal firearm regulations promulgated by ATF or other agencies.  The Sixth Circuit majority claims to be bound by circuit precedent to answer this question in the negative but acknowledges that the other circuits that reached a contrary result were following a different line of precedent in their circuits (note that Judge White’s dissent asserts the majority is mischaracterizing their own circuit precedent, citing cases that seem to go the other way).  Once the majority concludes that Chevron does not apply, it undertakes its own de novo construction of the National Firearms Act and concludes that the most plausible reading of the statute would not include bump stock-equipped rifles in the definition of “machine gun.”

The opinions by the majority and the dissent lay out rather nicely the standard arguments for and against applying Chevron to agency interpretations of criminal statutes, citing precedent and explaining the policy concerns (Rule of Lenity, etc.).  The practical impact of a no-Chevron rule would be significant: all ATF regulations interpret criminal statutes to some extent, sometimes on mundane licensing matters for gun dealers, and sometimes with more controversial rulings, like classifying bump stocks as machine guns, or rules for what counts as a “user of a controlled substance” for purposes of enforcing the firearm prohibitor in 18 U.S.C. §  922(g)(3). If none of these interpretive regulations receive any deference from courts, many substantive federal gun regulations (as opposed to statutes) could be found to have no legal effect, but will merely serve as general announcements of agency enforcement policies or priorities.  Unless a court independently came to the same conclusion as the agency about the meaning of the statute, which seems unlikely in cases of statutory silence and gap-filling by an agency, violations of the rules would not constitute a crime.  Except in cases where the Supreme Court adopts a specific interpretation of the statute, there would be no uniformity between circuits about which weapons and accessories are legal and which are contraband.  Circuit splits (and splits among courts within circuits) about the meaning of various terms in the National Firearms Act or the Gun Control Act, in turn, would create problems with weapons and firearm accessories (such as sound suppressors or stabilizing braces for short-barrel guns) transported across state lines into another circuit.

Though not discussed in the opinions, I suspect that migrations in the ATF’s location on the federal agency org chart are contributing to the current confusion in the courts about whether it should receive Chevron deference.  The NFA originated mostly as a tax-and-registration scheme for machine guns (the tax was exorbitant in 1934 dollars) and silencers, enforced by the Treasury Department, so interpretations the statute originally would have come in the familiar form of IRS Treasury Regulations, as with other taxation statutes.  ATF originally was a subdivision of the Treasury Department (the Alcohol Unit, enforcing alcohol taxes), and received statutory authority to enforce federal gun laws in 1941 (see ATF historical timeline here); a series of enactments and statutory amendments gradually transferred more responsibilities to ATF, such as gun tracing.  The 2002 Homeland Security Act transferred ATF from the Treasury Department to the Department of Justice, its current home.  Chevron deference did not apply to tax interpretations until 2011, when the Supreme Court decided (in Mayo Foundation v. United States) that Chevron should apply uniformly to all federal agencies, including the IRS.  This may be one of the reasons that the Chevron issue did not come up regarding early ATF regulations. There were also far fewer preemptive challenges to ATF rules by gun-rights groups during this period as well – the challenges to ATF rules usually arose arise as defenses to criminal prosecutions.  Now that ATF is situated within the DOJ, it is easier to frame its regulations as DOJ rules, which are easier to case as “criminal.”  Historically, the DOJ did not receive Chevron deference for its favored interpretations of criminal statutes.  On the other hand, other statutes that potentially impose criminal sanctions have been at issue in cases where agencies received Chevron deference, though these were not cases where the non-government party was defending against criminal charges.  As Judge White’s dissent points out, even the original Chevron case involved an air pollution statute that carried both civil and criminal penalties.

New ABA Resolution: Opposition to Guns in Polling Places

In late February 2021, the American Bar Association adopted Resolution 21M111, “Opposition to Guns In Polling Places,” which is short enough to insert as a single block quote:

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to enact statutes, rules and regulations to prohibit the possession and display of firearms by persons other than governmentally authorized military, law enforcement or security personnel in and around buildings and at meetings where legislative debate is conducted, or where ballots are cast, received, processed, or counted, in order to prevent violence, avoid impacts on public health and safety, and ensure that armed intimidation does not disrupt or discourage open, robust debate on public issues or interfere with the electoral processes critical to the functioning of our democracy.

[Note: this blog has covered litigation over gun restrictions at polling places here, here, and, more recently, here. And Luke Morgan published a great article in 2018 on guns at protests]. This new ABA Resolution was co-sponsored by the ABA Standing Committee on Gun Violence, the Commission on Hispanic Legal Rights and Responsibilities, the Commission on Sexual Orientation and Gender Identity, the Standing Committee on Election Law, the Section of Civil Rights and Social Justice, and the Criminal Justice Section.  Since 1965, the ABA has adopted 28 formal resolutions about firearm policy – some urging the adoption of certain policies or amendments to existing legislation, and some model acts, similar to those published by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws), that can serve as off-the-shelf bills for legislators to introduce. I highly recommend the ABA resolutions on firearm policy to scholars researching in this area, because the supporting reports are excellent – a treasure trove of useful historical background, surveys of existing state or federal statutes or court precedent, and careful legal analysis.  For legislators, the model acts in this collection are an under-appreciated resource for off-the-shelf legislation – carefully drafted, restrained in their reach, and clear in their terminology.

The five-page report that accompanies the new resolution (Guns in Polling Places) begins with an account of the arrests of a dozen or more men in October 2020 who had planned to kidnap Governor Whitmer of Michigan – and how a few these same individuals had participated in the armed protest-occupation of the Michigan State Capitol a few months before to protest COVID closure orders. It then proceeds with a background section that chronicles armed protests in legislative buildings, at polling places, and at public marches and demonstrations in the last five or six years, including armed protests following the November 2020 election.  Missing is any mention of the Capitol riot in Washington, D.C. on January 6, 2021, though it would have been an obvious example to include – the writing of the Report may have predated that incident.  The background section also includes an insightful discussion of armed militia and paramilitary groups and their public activities.  A particularly interesting point that runs through this report is that public displays of firearms are being used not merely for self-expression or safety, but to intimidate legislators, voters, and peaceful protesters exercising their First Amendment rights.

One disturbing example from the ABA report is from Virginia, where in 2020 authorities cancelled previously approved peaceful protests advocating for more gun regulations because pro-gun advocates announced they would counter-protest with weapons:

The open-carry protest movement reached Richmond, Virginia on Martin Luther King Day on January 20, 2020. More than 20,000 armed protesters gathered outside the state capitol. And while bloodshed was avoided, in light of the obvious risks to public safety, police were forced to cancel a rally and lobbying day in support of gun safety measures that had been planned for the same day. The cancelled rally and lobbying day were a tradition stretching for more than two decades, begun by advocates for strengthening Virginia’s gun laws after the mass shooting at Virginia Tech. Thus, the rally of open-carry protesters forced gun safety advocates to abandon their rights to demonstrate and petition their government by holding their traditional rally and lobbying day in the state capitol. In effect, the open-carry protesters used an armed heckler’s veto to silence their political opponents.

The collision of Second Amendment and First Amendment rights is a point discussed in a terrific recent article by Gregory Magarian; Tim Zick has a good recent piece on armed protests here, and Mike Dorf has a piece in progress here.   One of the current unresolved issues with gun rights is armed protests, which highlight the blurry line between intimidation of political opponents (implied threats, but not rising to the level of a criminal threat) and legitimate political expression or self-protection while protesting for a controversial position.

Bump Stock Ban Litigation Developments

In the last few weeks, we have had two new decisions in the litigation surrounding the ATF’s 2019 ban on bump stocks – a Feb. 23 decision granting the ATF’s summary judgment motions in the Guedes case in the D.C. district court, and a March 5 order by the Tenth Circuit in the Aposhian case vacating its prior grant of en banc review (as improvidently granted) and reinstating the panel decision in the case. One striking feature of the bump stock litigation is the absence of references to the Second Amendment – neither decision (including four dissenting opinions in Aposhian) mention the Second Amendment even once.

Instead, these two cases have focused exclusively on thorny administrative law issues. The bump stock cases highlight the deep divides in the federal judiciary about the current status of Chevron deference and some unsettled questions of law about whether Chevron applies when statutes can carry criminal penalties, whether the government can waive Chevron deference in litigation, and the relationship between Chevron (which defers to the government’s interpretation of ambiguous statutes) and the rule of lenity (which construes statutory ambiguity in favor of criminal defendants, and generally against the government).  Other administrative law issues in these cases are the Vacancies Reform Act (whether the official who promulgated the regulation was legally in that office), “hard look” review, regulatory reversals, the nondelegation doctrine, and federal-state powers and preemption.

The D.C. court’s decision is a win for the government and the future of the regulation, but it mostly reiterates points from its earlier decision, and the Circuit Court’s affirmance, on the plaintiff’s motion for a preliminary injunction. These points are mostly about whether Chevron deference applies even if the agency purportedly waived such deference at one point in the litigation, whether Chevron should apply to statutes carrying criminal penalties, and even if Chevron applies, whether the rule survives either prong of Chevron analysis.   This motion was the subject of the cert petition that the Supreme Court rejected a year ago, with a “statement” from Justice Gorsuch. Gorsuch’s quasi-concurrence breezed through the Chevron points: 1) whether the government can, and did, waive Chevron in this case; 2) whether Chevron applies when imprisonment is at stake for regulatory violations; and 3) whether Chevron should apply when an agency has reversed its policy on a matter, as it did regarding bump stocks. (As an aside, the agency acknowledged and explained the policy reversal in its proposed rule, and this is the first time the agency has undertaken notice-and-comment rulemaking about bump stocks). Gorusch agreed with the majority, however, that granting cert was premature at the preliminary injunction stage, and that a Final Ruling in the case would be a more appropriate occasion to take up these issues.

The D.C. district court’s analysis appears unchanged, though one major issue from the earlier decisions is missing from the new opinion – the Appointments Clause challenge to the rule, which took up more than a third of the D.C. Circuit’s opinion in 2019. This challenge had focused on legal irregularities in the appointment of Acting Attorney General Whitaker, who signed the bump stock Final Rule, though William Barr quickly ratified the rule after his procedurally proper appointment and confirmation as Attorney General. The trial court and the D.C. Circuit held that this ratification cured any possible problem in this regard, and also thought the problem was a non-issue anyway. This component of the litigation has fallen by the wayside, either because the Presidential election made it moot, or the plaintiffs abandoned the argument.

The Tenth Circuit’s Aposhian order is more surprising. A panel decision in May 2020 denied the plaintiff’s motion for a preliminary injunction (similar to the Guedes case) to enjoin enforcement of the ban. In September 2020, the Circuit granted en banc review and requested additional briefing from the parties.  After holding oral arguments, a majority of the en banc panel (6-5) voted that the rehearing was improvidently granted and issued an order to vacate the en banc hearing and reinstate the May 2020 decision, which was favorable for the ATF. Four judges wrote dissenting opinions, and all five dissenters joined each dissenting opinion.

All four opinions focus on the applicability of Chevron deference to the ATF for the bump stock ban, and the opinions overlap considerably.  They also overlap with the dissent in the D.C. Circuit’s Guedes decision in 2019, and Justice Gorsuch’s “statement” last year.  There are three main Chevron points here. First, the dissenters maintain that the underlying statute (the NFA) is unambiguous in two key phrases operative here: “single function of the trigger” and “automatically” – which would mean the agency loses at Chevron step one. Not only is the NFA clear in these terms, but it clearly does not include bump stocks, so the agency receives no deference and has adopted a plainly erroneous interpretation.

Second, the ATF/DOJ has itself taken the position that Chevron does not apply – they have attempted to waive Chevron deference – arguing instead that the statute itself clearly prohibits bump stocks (in other words, they agree with the dissenters that the statute is clear but think it clearly says the opposite of what the dissenters think).  There is a split of authority about whether courts can, or must, apply Chevron deference when the government has waived it. This case is different from previous Chevron waiver cases, however, in that the ATF expressly invoked Chevron deference in the rule that it published in the Federal Register, then took a contradictory position in litigation, confusingly. (Note there is another doctrine in administrative law, unrelated to Chevron, that prohibits agencies from advancing arguments for the first time in litigation when they’re defending a regulation – agencies are normally held to what they said at the time they promulgated the rule).

The third main Chevron issue concerns its applicability to regulations, like the bump stock ban, which carry potential criminal penalties – again, there are arguably contradictory precedents on this point even from the Supreme Court, and it remains an unsettled question in the lower courts.  Some of the dissents in the new Aposhian order want a categorical rule – Chevron never applies to regulations that impose criminal penalties (a way of narrowing Chevron to civil-penalty regulations).  An alternative approach, argued in some of the dissents, is that the rule of lenity, which construes statutory ambiguity in favor of defendants, is mutually exclusive with the idea of deferring to the government’s interpretation of an ambiguous criminal law.  The problems with applying the rule of lenity here are 1) this is not a criminal prosecution, but rather a preemptive challenge to a regulation’s legality, where the rule of lenity normally would not apply, and 2) if the basis for applying the rule of lenity is that the citizenry lacks notice about what the law prohibits, that doesn’t apply here, where the government’s interpretation has been promulgated in advance through notice-and-comment rulemaking, and applies going forward, not retroactively.  This point has significant implications for future gun regulations by the ATF or other agencies, such as the contemplated ban on “ghost guns” or “80 percent” self-assembly kits.

It is worth noting that one of the dissenting opinions (Judge Hartz) advocates a novel theory of Chevron deference that would mark a significant contraction or rollback of the doctrine.  Hartz (joined by the other four dissenters) claims that Chevron should apply only where Congress states expressly in a statute that an agency has authority to set policy on a specific question (not the case with the NFA), or where the statute required specialized technical expertise to interpret technical or scientific knowledge that most judges lack. The ATF’s published rationale for fitting bump stocks under the prohibitions in the NFA was intelligible to judges, the argument goes, so judges should have been interpreting this statute, not the agency.

Background: Bump stocks are attachments (replacement stocks) for semiautomatic rifles that harness the recoil from firing the gun to discharge more rounds for as long as the shooter depresses the trigger.  Using a bump stock simulates, or approximates, the effect of a fully automatic machine gun.  That, in fact, is the point of the new regulation – ATF decided that bump stocks are, at least functionally, an attachment for converting a legal semiautomatic rifle (e.g., an AR-15) into an illegal machinegun.  The National Firearms Act of 1934 bans converter attachments to turn other firearms into machineguns. The regulation was expressly a response to the 2017 mass shooting in Las Vegas, in which the shooter used bump-stock-equipped rifles to send a 15-minute fusillade of bullets into a crowd of concert attendees on the ground below.

Litigation related to the bump stock ban arose on three fronts: the challenges to the regulation itself, some takings claims by manufacturers and owners, and wrongful death actions against the manufacturers by the families of the Las Vegas victims.  The main takings case was covered on this blog here, though there have been some other unsuccessful takings claims as well.  As far as I can tell, there is still one “live” takings claim – a class action by bump stock owners – pending in federal district court in Dallas, and the judge has signaled hostility to the ATF’s regulation (the opinion decries the notion that the federal government has any “police powers” under the Constitution, though other courts around the country have relied on this very power in rejected challenges to the regulation). The two tort actions are still pending, as far as I can tell, and have survived an initial round of motions to dismiss under the PLCAA and, ironically, the bump stock ban (the promulgation of the ban highlights that the bump stocks were completely legal at the time of the massacre).

There were two other noteworthy decisions on other fronts of the bump stock litigation last November (in federal courts in Texas and Kentucky) that involved challenges to the rule itself, as in Guedes and Aposhian. These were clear-cut wins for the ATF and the rule.

Michigan Legalizes Marijuana, Loses Its “Permanent Brady Permit” Status With ATF

In twenty-two states, ATF allows licensed firearm dealers (FFL’s) to accept a state concealed carry license or permit (in Michigan, the terminology is Concealed Pistol License, or CPL) in lieu of a federal background check, because those states have concealed carry permit requirements at least as stringent as the federal background check requirements (see the ATF Permanent Brady Permit Chart, so-named because the state’s permit or license program fulfills the requirements of the federal Brady Law background checks for firearm purchases on an ongoing basis). In practice, this means that permit/license holders in these states can skip the NICS background check when purchasing firearms from a licensed gun dealer, whether online, in-store, or at a gun show, even though normally required for the dealer to do the background check.  Note the caveat that an individual’s permit or license must be less than five years old, so in states that issue “lifetime” permits or licenses (Indiana, Louisiana, Missouri, and Tennessee), the permit/license holder will have to renew it every five years in order to skip the NICS background check when purchasing a firearm from an FFL.

Michigan was one of these “Permanent Brady Permit” states from 2006 until the end of 2019, but the state legalized recreational marijuana sales starting in December 2019.  The state did not modify its CPL program, however, to screen out marijuana users.  Marijuana remains unlawful under the federal Controlled Substances Act.  Federal firearm statutes, such as 18 U.S.C. § 922(g)(3) prohibit regular users of controlled substances, including marijuana, from possessing or transporting any firearms.

About two weeks ago, on March 3, 2020, the ATF Acting Director issued a Public Safety Advisory to all licensed firearm dealers in Michigan, effectively revoking this substitution in Michigan. All licensed gun dealers in Michigan must now conduct NICS background checks for all firearm sales, even if the purchaser has a valid concealed carry permit.  This is the latest in a confusing series of steps by the U.S. Attorney General and/or ATF over the years regarding firearm enforcement in states with some form of marijuana legalization (medical marijuana is far more common), but is consistent with the current DOJ trend toward stepped-up enforcement of federal gun and drug laws. As a technical matter, note that the ATF Advisory mostly references 18 U.S.C. § 922(t), which is the section requiring FFL’s to conduct background checks.

“Advisories” by federal regulatory agencies, like the one under consideration here, have a somewhat complicated place within Administrative Law.  Agencies frequently issue official “Advisories” and “Guidance” letters or documents to inform regulated entities, or an entire regulated industry, about its current policies regarding enforcement policies or priorities, permitting/licensing approvals or revocations, or changed stances the meaning of federal statutes that come under the agency’s purview.  The federal Administrative Procedure Act specifically exempts “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from normal notice-and-comment requirements for new regulations or regulatory changes, which normally can take months or years, and can invite both political and judicial scrutiny.  Legally, this means that these Advisories or Guidance Letters do not have the force of law – they lack the legal status of a promulgated regulation or an enacted statute, and this in turn has implications for the amount of deference such texts receive from the courts (Chevron does not apply, for example).  In the arena of firearm policy, the exemption for “interpretive rules” is part of the multi-circuit litigation over the bumpstock ban, as the DOJ now maintains that the ban is not a new regulation, but merely an interpretation of a longstanding statutory provision – and therefore the ATF does not need to invoke Chevron deference for the bumpstock ban (Justice Gorsuch’s lengthy concurrence in the denial of certiorari for Guedes v. ATF highlights the controversy of applying Chevron to ATF firearm regulations).

Most of the time, agency guidance documents are helpful information for regulated entities about how to comply with existing statutes and regulations, and how to avoid becoming the target of an investigation or enforcement action.  In practice, these agency documents sometimes provide “safe harbor” provisions, essentially promising regulated entities or individuals that they will not face an enforcement action (which could be an agency lawsuit, or a denial or revocation of a valuable permit or license) if they stay above or below certain thresholds. Such “safe harbor” indications (or their opposite, a “you’re-definitely-in-trouble” warning), in turn, can sometimes appear to be an agency’s attempt to circumvent the hassle of notice-and-comment rulemaking – the agency maintains that the announcement is merely “guidance” or “advice,” but the line-drawing is functionally a new rule, at least from the viewpoint of the regulated parties.  Several circuit court and Supreme Court decisions have wrestled with this blurry line between agency guidance documents and full-fledged regulations; the cases go both ways, making this an unpredictable and confusing area of Administrative Law, though the courts generally disfavor agencies subsequently trying to enforce the quasi-rules set forth in these guidance documents.  The area is unpredictable enough that it is often still worthwhile for agencies to try this tactic if there is some reason to avoid notice-and-comment procedures; and worthwhile for regulated entities to challenge the guidance and insist that the agency follow rulemaking procedures.  Under the Trump Administration, the Department of Justice has been signaling a move away from issuing or enforcing these advisories and guidance documents in the 2017 “Sessions Memo” (discouraging issuing guidance documents), the 2018 “Brand Memo” (limiting the use of these texts in enforcement) and the late-2018 amendments to the DOJ’s internal Justice Manual:

Criminal and civil enforcement actions brought by the Department must be based on violations of applicable legal requirements, not mere noncompliance with guidance documents issued by federal agencies, because guidance documents cannot by themselves create binding requirements that do not already exist by statute or regulation.  See JM 1-19.000.  Thus, the Department should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations.  The Department must establish a violation by reference to statutes and regulations.  The Department may not bring actions based solely on allegations of noncompliance with guidance documents.  The Department may continue to rely on agency guidance documents for purposes, including evidentiary purposes that are otherwise lawful and consistent with the Federal Rules of Evidence, that do not treat such documents as creating by themselves binding requirements that do not already exist by statute or regulation.

The excerpt above illustrates the complex situation with these official documents – they are not “law,” and should not be enforced as such, but they are enough like laws that the DOJ has to instruct its attorneys not to enforce them as laws, while at the same time, they can rely on them (i.e., use them) as evidence in their enforcement actions.  Moreover, as indicated by the new Advisory to Michigan FFLs – effectively rescinding or revoking Michigan’s 14-year status as a “Permanent Brady Permit” state – federal agencies continue to issue these documents, including agencies within the DOJ, such as ATF.  Note that a licensed gun dealer in Michigan can now face an enforcement action (including potential loss of their license) for selling a gun to a CPL holder without conducting a background check, which was not the case for the last 14 years. In addition, ATF has already arrested and charged at least one Detroit resident this year, for posting images on social media of his recreational marijuana use, now legal under state law. He also posted photos of himself holding his handgun. (Note: it is not clear from published reports whether this defendant had a Michigan CPL license).  He faces up to 10 years in prison.

“Text, History, and Tradition” as a Three-Part Test

Is “text, history, and tradition” (THT) an example of what linguists would call a “hendriatris,” referring to a single jurisprudential/decisional approach, or do each of the three words have semantic significance?

Sam Bray has an excellent article about hendiadys in the Constitution; a hendiadys is a word couplet with unitary semantic meaning, while a hendiatris is a triplet.  Bray’s constitutional examples are “necessary and proper” and “cruel and unusual.” English legal writing is full of these, such as “cease and desist,” and “metes and bounds.”

Peter M. Tiersma, in his classic text Legal Language, explained that many of the verbal couplets in legal English are inherited from earlier eras – vestiges either of pre-Norman Old English alliteration and consonants (think pairs of words starting with the same letter, like “aid and abet” or “to have and to hold”) that aided with memorization in a pre-literate society, or are vestiges of the two-language problem after the Norman Conquest, when (for four centuries) official documents used legal (Norman) French, but the people governed by the contracts or laws spoke the Germanic-based Old or Middle English.  Many of our legal couplets, therefore, represent the Norman French word and the Anglo-Saxon word for the same thing, such as “devise and bequeath,” “will and testament,” “free and clear,” “acknowledge and confess,” or “good and just consideration.”

Outside of the legal context, English has other binomials – e.g., “short and sweet,” “down and out,” “peace and quiet,” and “safe and sound,” “loud and clear,” and “wear and tear” – that often occur together, in an irreversibly-fixed order. Binomials are not necessarily hendiadys, since the linguistic convention of joining the words a certain way does not necessarily remove the distinct meaning of each.

It seems like the advocates of the THT approach in Second Amendment cases are using it as a hendriatris, and as a rival approach to tiers of scrutiny.  But even were the Supreme Court to adopt THT as the mandatory analysis rubric for Second Amendment cases (rejecting tiers of scrutiny), the lower courts, over time, could start treating this as a three-part test, assuming formalism is the tendency of institutional path dependence.

Jake Charles discussed here that “text, history, and tradition” (THT) is an approach that gun rights advocates have urged courts to adopt instead of the two-part framework of intermediate scrutiny that is now the consensus view among the federal circuit courts.  Jake also observed that Paul Clement advocated THT during oral arguments last December in NYSRPA, as did Jeff Wall (arguing for the government), and the amicus briefs by the NRA and other gun rights groups propounded THT as a centerpiece of their argument.

THT is commonly attributed to Justice Kavanaugh, though he did not invent the phrase.  While still a judge on the DC Circuit, Kavanaugh argued in a lengthy dissent in Heller II that courts should use “text, history, and tradition” as the analytical rule for Second Amendment cases. He acknowledged, “To be sure, the Court never said something as succinct as ‘Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations,’”  but explained that it was the “clear message” implied by the Supreme Court in Heller I and McDonald. Kavanaugh explained that the phrases like “historical tradition,” “historical justifications,” and “historical understanding” in the Supreme Court’s Heller decision referred to what the original adopters of the Second Amendment subjectively understood it to mean, especially regarding types of weapons protected.

For the “tradition” prong of THT, Kavanaugh offers a parenthetical definition: “that is, post-ratification history,” followed by a quote from Heller’s language that this means an “examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification.”

He never defines “text,” that is, whether “text” is the final adopted verbiage of the Second Amendment itself, or if it includes wording from earlier drafts (like the “religiously scrupulous” clause that dropped out, discussed at length by both the majority and dissent in Heller), or the text of the law being challenged. Kavanaugh’s dissent uses the triplet “text, history, and tradition” twenty times and the couplet “history and tradition” (minus “text”) fourteen times, seemingly interchangeably, and raising the question of whether he is using “text, history, and tradition” to refer to a two-part analytical framework of “history” and “tradition,” as he defines these two terms and uses the couplet (not as a hendiadys) numerous times. Second Amendment scholar Nelson Lund has recently criticized Kavanaugh’s reading of Heller, and refers to the THT alternative as “an unusual jurisprudential approach” that invites “covert judicial policymaking” (i.e., cloaking the judge’s policy preferences in a shroud of speculative or dubious historical arguments.

Where did then-Judge Kavanaugh get the phrase “text, history, and tradition” that he used as a constant refrain in his dissent?  As far as I can tell, the THT phrase as a triplet first appeared in federal court opinions in a concurrence by Justice Thomas in the 1996 case Lewis v. Casey (“In lieu of constitutional text, history, or tradition, Bounds turned primarily to precedent in recognizing the right to state assistance in the researching and filing of prisoner claims.”).  I believe Judge Kavanaugh borrowed the phrase from Justice Thomas.

But Justice Thomas may have been borrowing this trinomial from earlier legal sources.  The phrase entered our legal language in a pair of judicial opinions a decade earlier in a pair of 1986 superior court opinions from Connecticut (same judge)Doe v. Maher (see footnote 29) (“The plaintiffs raise only state constitutional grounds to invalidate the regulation. In making these determinations, the court must interpret our state constitution independently of the United States constitution when required by its text, history, tradition and intent.”); and Williams v. Coppola, (see footnote 1: “In making a determination under the state constitution, the court must interpret that constitution independent of the United States constitution when required to do so by its text, history, tradition and intent.”).  Both opinions are by Judge Robert I. Berdon from the same term.

Also predating Justice Thomas’ use of the phrase is its first appearance in law reviews in a 1988  article by Daniel Farber, Legal Pragmatism and the Constitution, (“For a pragmatist the analysis must start—but not finish—with an examination of our constitutional text, history, and traditions.”).  This was followed in a 1991 article by Mary Ann Glendon and Raul F. Yanes, Structural Free Exercise (“With little or no support from text, history, or tradition, the members of the Everson Court braided into the Religion Clause the notions that the establishment provision was meant to create a ‘wall of separation’ between religion and the government, that it was to be broadly construed to prohibit all government aid to religion, and that government was required to be strictly neutral as between religion and nonreligion.”); then followed by Paul Brest in Interpretation and Interest (1992) (“Second, our texts, histories, and traditions are seldom univocal, but often include competing and conflicting values.”).

After that, the three-part phrase showed up in some New Jersey judicial opinions: State v. Tucker (N.J. 1994) (“. . .[We] support our conclusion that greater protection is appropriate on the basis of constitutional text, legislative history, state traditions, or other factors.”); and State v. A.G.D. (N.J. 2003) (quoting an excerpt from Tucker decision).

The New Jersey opinions, which still predate the usage in Second Amendment contexts, modify each word, making it seem that these are distinct questions: text (the relevant constitution’s wording itself), history (meaning either legislative history of the statute, or of the constitutional clause), and traditions (meaning that jurisdiction’s local traditions, not necessarily the entire Anglo-American common law).  Daniel Farber used this phrase to refer to three distinct questions as well.

In any case, it seems like the phrase was in use before anyone started applying it to Second Amendment questions.  And in pre-Heller usage, these are three distinct things, and if applied in Second Amendment cases, this should operate as a three-prong test (note these are three prongs of a test, not three sequential steps).  If so, like many multi-prong tests, the answers could weigh against or offset each other: the history (say, the Convention debates about the Second Amendment) may suggest different answers than the post-ratification “tradition” (laws, regulations, and court decisions).  Courts will have to decide which prong deserves the most weight.

Joseph Blocher and Eric Ruben have written that the Supreme Court could, in one scenario, make the drastic move of using NYSRPA to supplant the consensus view (the two-part test) with the THT view; they argue convincingly that this would be a mistake – disrupting thousands of cases over a decade of precedent, and dropping an eminently workable judicial test with one that is largely untested and fraught with indeterminacy.  As Joseph and Eric explain, “The 27 words of the amendment are silent on many questions, and history and tradition don’t speak with one voice—there were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.”  They are correct that there are multiple voices speaking within the history, as well as within the post-enactment tradition of laws and court decisions.

Moreover, as Darrell Miller explained here, 1) the intermediate-scrutiny two-part framework “does not reject text, history, and tradition; it incorporates it at step one (and perhaps at step two as well),” and 2) analogies will run out or wear thin between Founding-Era weapons/regulations and modern weapons/regulations. Eric Ruben joined Joseph and Darrell in a thoughtful amicus brief in the NYSRPA case, setting forth a compelling argument for the Court to maintain the two-part balancing test that has become the consensus view, and to reject the murky THT alternative advocated by the petitioners and other amici in the case.

I agree with the position taken by Joseph, Darrell, and Eric in their amicus brief: the two-tiered approach adopted by circuit courts is working well, and it has the appeal of now being well-established and widely accepted.  Moreover, I worry that the judges and advocates using the phrase “text, history, and tradition” in the Second Amendment context are using it in a vague, undefined way, mixing originalist methodological commitments with a sense of cultural nostalgia.  From a legal pragmatist view, I worry that the “text, history, and tradition” trope is merely a firewall against any new or innovative firearm regulations, such as the innovative but promising laws providing for extreme risk protection orders, microstamping requirements, or one-per-month purchase limits.

Firearm Policy and Alcohol Abuse

In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge.  Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.

Many of the policy reasons for prohibiting users of illegal drugs from owning firearms would seem to apply equally, if not more, to alcohol abuse, but federal law ignores alcohol abuse in its list of prohibiting factors in §922(g).  Alcohol is not a “controlled substance” under federal law, even though there is a federal minimum age requirement, and it is highly regulated by states and localities.  The fact that narcotics are contraband creates a distinction between drug users and alcohol abusers, especially from a political standpoint.  In addition, due to the illegality of controlled substances, illegal drug users may be more likely than alcohol users to interact regularly with violent street gangs, or at least violent dealers, and removing guns from one side of the transaction can lower the risk of disagreements escalating into shootings.

Even so, several prominent experts on firearm policy advocate for adding alcohol abusers to the list of federal prohibited persons, and some states have done this in one form or another (see also here and here and here).  Suicides make up roughly two-thirds of the gun fatalities of every year, and these gun deaths disproportionately involve either a history of alcohol abuse, alcohol abuse at the time of the self-inflicted gunshot wound, or both. Interestingly, some empirical studies also indicate that firearm owners are more likely to abuse alcohol or become alcoholics.  Alcohol-related gun violence is more lethal than car crashes, according to one recent study. We lack a federal regulation even against the use or purchase of firearms while intoxicated. States, therefore, sometimes try to fill this gap by adopting laws to help remove guns from those with a pattern of alcohol abuse, or to prohibit firearm use while intoxicated.

Ohio, for example, prohibits firearm carrying for alcohol users: “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance,” which apparently applies even if the firearm is unloaded. State v. Weber was a 2019 case involving an as-applied Second Amendment challenge to this statute by a defendant charged with using weapons while intoxicated.  Weber’s wife had reported a domestic dispute to the police, alleging Weber was intoxicated and in possession of a gun, though there was no proof that Weber was intending to use the gun to perpetrate a crime, but only that he was severely intoxicated.  In court, Weber claimed that the statute forces citizens like him to choose between their constitutional right to keep arms at home, and to defend himself and his family against potential (hypothetical) criminal attacks, and alcohol use.  The court rejected this argument because Weber had not, in fact, faced a situation that required him to defend his family.  Then, invoking the famous disclaimer in Heller that the Second Amendment is not an unlimited right, the court concluded that the State has a strong and compelling interest to prevent gun violence, which is closely related to alcohol abuse. The statute was sufficiently tailored to serve the significant government interest of guarding public safety, and it left open ample opportunities to bear and keep arms.

Another way that states fill the gap in federal firearm policy regarding alcohol is to adopt statutes that make repeated alcohol-related offenses (typically DUI or DWI arrests and/or convictions) a felony, which then triggers a felony report to the NICS database, or a state counterpart. The most frequently-applied federal firearm disqualifier, both in terms of gun purchase denials (failed background checks) and prosecutions, is 18 U.S.C. §922(g)(1), which prohibits firearm possession by prohibited persons who have been convicted for a crime punishable by over one year in prison. Some states, such as Pennsylvania, impose a penalty of up to five years imprisonment for multiple convictions of driving under the influence (DUI) at the highest blood alcohol content (BAC). Individuals who receive this penalty thus fall under §922(g)(1), and they are ineligible to purchase or possess a firearm.

Last month, in Holloway v. Attorney General, the Third Circuit upheld the statute’s validity against a Second Amendment challenge, concluding that a DUI is considered a “serious crime.” Holloway was convicted twice for driving under the influence.  The first charge, in 2002, was eventually dismissed under an accelerated rehabilitation program.  For the second charge, in 2005, he entered a guilty plea for violating the Pennsylvania statute.  Eleven years later, Holloway was denied from purchasing a firearm under §922(g)(1).  The Third Circuit acknowledged that there is no bright line rule for determining whether the offense reaches the “serious crime” threshold, but it analyzed several factors such as the legislature’s intent and the degree of punishment.  Note that this decision is consistent in result but different in methodology from some other recent federal district court decisions analyzing disarmament under the same Pennsylvania statute.

Part of what makes the Holloway case significant is that the Third Circuit had previously broken from other federal circuit courts, in Binderup v. Attorney General, in holding that the felon prohibition did violate the Second Amendment, at least as applied in the case, because the felony itself had been a nonviolent crime that received a lenient sentence.  Binderup receives frequent mention in discussions about the Second Amendment and the felon disarmament, due to its unique place among circuit court decisions on this topic.  It is unclear whether Holloway signals a change in direction for the Third Circuit, or if it merely narrows the applicability of the approach in Binderup. 

Legal Marijuana & Gun Possession

ATF Guidance Documents and Enforcement

In September 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives released an Open Letter to All Federal Firearms Licensees (FFL’s), providing regulatory guidance as to the intent of 18 U.S.C. §922(g)(3) and its interaction with state laws that legalize marijuana in some way. The guidance document reminds FFL’s that as the Controlled Substances Act lists marijuana as a Schedule I controlled substance “and there are no exceptions in Federal law for . . . . medicinal purposes, even if such use is sanctioned by State law,” the use of marijuana qualifies an individual under federal law as an “unlawful user” for purposes of 18 U.S.C. §922(g)(3).  Nevertheless, since 1996, at least thirty-three states and the District of Columbia have legalized medical marijuana.

In January 2018, the Department of Justice (DOJ) issued a memorandum (the “Sessions Memo”) rescinding all previous guidance regarding prosecutions in medical marijuana states, deferring instead to nebulous “well-established general principles” which included considerations such as “the deterrent effect of criminal prosecution.” This superseded prior DOJ policy (also known as the “Cole Memorandum” from 2013) which focused prosecutions, in relevant part, in “[p]reventing violence and the use of firearms in the cultivation and distributions of marijuana” and deferring to state and local law enforcement for activity beyond the stated scope of DOJ priorities. It is unclear how the shift in DOJ directives after the 2018 memorandum has impacted federal prosecutions of gun possession prosecutions under §922(g)(3) in states with medical marijuana and legalized marijuana, but 2017 statistics indicate that the number of prosecutions under §922(g) generally had already begun to increase following a decline in the period from 2013 to 2015 (the timeframe after the Cole memorandum through the end of the sitting administration). Given the growing resistance among some big city prosecutors to charge for mere possession of marijuana without aggravating factors indicating dealing, the federal prosecutors’ directives appear to be going in a different direction than at least some state prosecutors in areas having the highest incident rates.

William P. Barr became Attorney General in 2019, and announced that he supports “the prosecutorial priorities” that were put in place by the Sessions Memo, which included an emphasis on “violent crime, drugs, immigration, and national security.” The DOJ appears to have turned more of its resources to the prosecution of firearms offenses, prosecutions under §922(g) are at an all-time high, and convictions under §922(g) have risen every year since 2015 (see here).

Gun Permits & Licenses for Lawful Marijuana Users 

Four months before the 2011 ATF Open Letter, Oregon’s highest court, sitting en banc, decided Willis v. Winters, which held that the federal prohibition on firearm possession “by persons who, under federal law, are ‘unlawful user[s] of a controlled substance,’” does not preempt the State’s licensing statute. The Oregon Medical Marijuana Act authorizes medical marijuana use and requires registration of such authorized users, and Oregon state statutes have a “shall issue” regime for concealed handgun licenses.  Several sheriffs had denied concealed carry licenses applications and renewals submitted by medical marijuana registrants, despite their full compliance with the State’s statutory standards for licensing, on the premise that 18 U.S.C. §922(g)(3) preempted the State’s licensing statute – arguably, issuance of a license under the circumstances would violate §922(t)(3) and §922(a)(6) (which prohibits false statements on background check forms and similar actions).  The Willis court, however, held that under Oregon’s statutory code, the sheriffs are statutorily-bound “to issue CHLs to qualified applicants, without regard to the applicant’s use of medical marijuana.” Because the licensing statute proscribes the concealment of firearms and “is not directly concerned with the possession of firearms,” it does not interfere with the full enforcement of the Federal statute.  The court explained:

[I]t is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.

In other words, the sheriffs cannot deny concealed handgun licenses to medical marijuana registrants, but they are free to arrest those registrants if they do, in fact, possess a handgun.  Federal law does not mandate the use of state gun licensing schemes in enforcing §922(g)(3), nor, the court held, could Congress do so without commandeering “the policy-making and enforcement apparatus of the states.” This decision remains good law in Oregon.

The Willis decision garnered attention from both marijuana advocates and pro-gun advocates, but other cases since then have been trending in the other direction, and the federal classification of marijuana as a Schedule I drug under the Controlled Substances Act continues to give concern to the courts and create confusion for firearm owners who may use medical marijuana in the (majority of) states that have now legalized its use.  For a recent example, in Bradley v. United States, 402 F.Supp.3d 398 (N.D. Ohio, Aug. 14, 2019), a gunowner wanted to register for Ohio’s medical marijuana program and claimed that §922(g)(3) prevented him from doing so, thereby violating his Second Amendment rights, as well as the Equal Protection clause.  Bradley was diagnosed with post-traumatic stress disorder (PTSD) but was barred by federal law from participating in Ohio’s medical marijuana program because he was in possession of a firearm. The court rejected his claims, in part because he faced no imminent threat of prosecution (lacked standing) and partly because his Second Amendment claim was implausible.  The court cited numerous cases from other district and circuit courts consistently holding that §922(g)(3) did not violate the Second Amendment, including situations where marijuana consumption would have been legal under state law, yet the courts affirmed “the constitutionality of §922(g)(3) under the Second Amendment” in that context.

The Sixth Circuit reached the same conclusion in United States v. Bellamy, 682 Fed.Appx. 447 (6th Cir. 2017) (unpublished), holding that §922(g)(3) applied even if defendant held a state-issued medical marijuana card.  At the same time, Bellamy did not include a Second Amendment claim, but was decided on statutory and preemption grounds.

Does the Number of Guns Matter?

A pair of recent reports address the number of firearms being manufactured and already in circulation: one from the ATF (a 2019 AFME report/update on manufactured, imported, and exported guns for 2017), which, along with previous ATF annual reports, furnished part of the basis for an industry annual report published by the National Shooting Sports Foundation (NSSF) on December 4 (see also here for a nice brochure-style report with colorful tables).  The two big takeaways are that the NSSF now estimates there are 17.7 million “modern sporting rifles” in circulation (AR-15’s and similar long guns), and 423 million firearms total in the U.S. – the latter being a significantly higher number than major news outlets, nonprofits, criminologists, or public health researchers have been using for the existing stock of firearms.

The NSSF and the pro-gun blogs touted these numbers as having political significance, either because the numbers are so large now that (Democratic) proposals for mandatory buybacks seem fiscally infeasible and administratively impractical, even for assault rifles, or because the numbers suggest that bans and buybacks are less politically viable than anyone had imagined.  (The gun control blogs were strangely silent about these numbers, despite the attention and discussion they received by pro-gun writers).  For gun control advocates, of course, larger numbers merely raise the sense of urgency for curbing the production and sale of more guns.

Apart from political realities and policy alternatives, these reports raise some questions about whether the number of guns matters for courts, and whether it should.  On the one hand, could the number of assault rifles (or some other subcategory of guns) get high enough to normalize/mainstream a weapon enough that courts would invalidate a ban on that type of weapon, at least partly due to the sheer number in circulation?  Does the current stock of firearms play a part in the proposed “history, text, and tradition” approach, or does that approach only look nostalgically at previous eras for guidance?  The pending cert petition in Worman v. Healey involves a challenge to a state ban on assault rifles, and the arguments include a point about how many people already own these weapons. The number of guns in circulation also came up in the district and circuit court opinions in Kolbe v. Hogan.   Joseph Blocher discusses the too-common-to-ban idea in his new article Bans.

On the other hand, this raises the opposite question as well: whether there is a maximum threshold for Second Amendment protection in terms of sales.  Suppose, for example, that in a few years there were a billion guns in circulation in the United States – say, three or more for every person in the country – would it still count as an infringement on the Second Amendment to ban all sales of new firearms?  Could there be a Second Amendment saturation point, either in terms of number of guns already available, or rate of ownership (suppose hypothetically that in twenty years, 90% of Americans have firearms in their homes), a point at which a ban on production or new gun sales could not infringe on the right to bear arms – because there are plenty of arms available?  For bans on manufacturing or new gun sales, the notion of infringement becomes far less relevant at a certain point.  The Second Amendment’s purposes are satisfied.  Of course, other government actions could still constitute an infringement, like a government confiscation or severe restraints on use.  The Second Amendment is unique within the Bill of Rights for tying a right to an object, and the logical implication of that is that the object could eventually become so abundant (or over-abundant) that banning new production of the item would pose no practical risk of infringement on a right to acquire, keep, or bear them. Guns last a long time – a person’s lifetime, if the gun receives routine maintenance and care.  There must be some threshold, therefore, where replenishing the supply is superfluous from a Second Amendment standpoint.

Naturally, there is room for debate about where the line should be, but the debate would not be meaningless.  Advocates can make rational arguments for where a court should draw the line, and a court could have good reasons for drawing the line at X.  There are some nuances to consider: banning new production normally raises the market price of the item on the secondary (used) market, so a ban on new production would, theoretically, raise the resale price of existing guns, though it is not clear how much, if we are already at a point of a flooded market and super-abundant stockpiles of a long-lasting, reusable item.  As far as I can tell, price changes on the used firearm market resulting from major fluctuations in production have not received much (or any) academic study to date.  Even if the resale value of guns rises, this could be a net wealth increase for those who already have guns, which in this hypothetical scenario is most of the eligible population – especially if used guns are currently undervalued by the market due to overproduction of new guns. Oversupply of a consumer item can have complex effects on prices or cause certain types of market failure.  And resale prices are not the only concern here – the Second Amendment protects the rights of people to keep and bear arms, but not necessarily a right to resell them.

The extreme position for line-drawing would be the functional equivalent of universal armament (something close to 100% of the eligible adult population), and this is a helpful benchmark for the sake of discussion.  Nevertheless, there is reason to think the Second Amendment could be functionally infringement-proof at some point before that.  I would suggest, for the sake of symmetry, that we reach Second Amendment saturation not at a billion guns, nor at 90% ownership, but at the point when the guns in question are clearly too common for a government buyback or confiscation to be feasible.

Thus far, I have been distinguishing between a ban on new production/new sales and a ban on possession/resale.  Suppose, however, a scenario with a proposed ban on possession, either of guns in general, or a certain type of gun, or even large-capacity magazines.  If the primary problem with this proposed ban on possession is that too many people already own the guns in question, or that the guns are already too abundant, then it is arguable that they are abundant enough to ban for new production without infringing on the Second Amendment.  If some other issue – besides abundance – is the primary legal problem with a ban on possession, then it may not trigger saturation concerns.  While the saturation argument is mostly relevant for bans on new production, it is not irrelevant for discussions about bans on possession.

The number of guns in circulation also comes up in discussions about smart guns (I have a draft article about this topic here).  On the one hand, even if gun manufacturers started producing smart guns exclusively, the new ones would be insignificant in number compared to the existing supply of traditional-mechanical guns, though this would slowly change over the course of a century or so, if current purchase rates continued.  On the other hand, the controversial (now repealed) New Jersey statute that banned the sale of traditional firearms once any smart guns become available was, in fact, a ban on new production of traditional firearms – for which Second Amendment saturation would be relevant, at least in the future.

New Decision in a (Very) Old Case: City of Gary v. Smith & Wesson Corp

On November 26, the Indiana Supreme Court denied review in an important case regarding tort liability for gun manufacturers and the Protection for Lawful Commerce in Arms Act (PLCAA): City of Gary v. Smith & Wesson Corp. The latest ruling leaves in place a Court of Appeals decision from last May, which in turn means that the case can finally proceed to trial.  This puts the case in the same procedural status as Remington v. Soto, in which the U.S. Supreme Court denied review two weeks earlier (the Indiana Supreme Court may in fact have been waiting for the SCOTUS decision about Soto before rendering its own ruling).

Finally proceed to trial” is particularly appropriate for this case, which was originally filed in 1999 – the case itself predates the enactment of the PLCAA, the counterpart Indiana immunity statute, and the Supreme Court’s landmark decision in Heller. Like the pending case in Connecticut between the Sandy Hook victims’ families and Remington-Bushmaster, the City of Gary litigation centers around the seemingly narrow statutory exceptions in the PLCAA and seeks to hold firearm manufacturers liable for the injuries involving their products. (A quick overview of the relevant statutes and leading cases in this area is here.)  The City of Gary litigation could eventually be even more significant than Soto for the future of the PLCAA and gunmaker liability.

First, the lawsuit by the City of Gary lists several of the largest gun manufacturers as defendants – besides Smith & Wesson, defendants include Beretta, Browning, Colt’s, Glock, Hi-Point, Phoenix Arms, Sturm Ruger, and Taurus (and originally, other manufacturers and several local gun dealers, though they are no longer parties), while the Sandy Hook lawsuit targets a narrower range of defendants.  This means that a larger representation of the industry is directly involved in the case.

Second, the case is much older than the Connecticut litigation, and has been through several rounds of dismissals and reversals already, meaning the state courts have already addressed a number of the high-stakes legal questions surrounding this type of litigation that have not yet arisen in Soto, including the applicability of a state preemption law, attorneys’ fees, the Second Amendment, and concerns about separation of powers.

Third, the plaintiff in the Indiana litigation is a municipality, seeking redress for the crime problems it suffers as an externality of the firearm manufacture and distribution system.  If successful, the case could potentially have broader applicability than the Connecticut litigation, as most large urban centers across the United States have suffered the same type of harm as the City of Gary, albeit to varying degrees.  Cases like this reach a broader group of defendants for a broader set of injuries than a lawsuit relating to one specific mass shooting.  The State of Indiana has intervened in the suit in opposition to the municipality, which adds an interesting legal twist (city-versus-state) to the case. And at an earlier stage in the litigation, the United States government also temporarily intervened as a party, in support of the PLCAA’s constitutionality.

Fourth, the theories used by the City of Gary to fit under a statutory exception in the PLCAA might be applicable in a wider range of contexts than the specific consumer protection statute implicated in Soto.  Like Soto, the Indiana case includes a claim about the advertising of guns, but it also includes claims about negligent distribution (like earlier New York litigation that successfully circumvented the PLCAA) and negligent design.

The 20-year procedural history of this case is tortuous but thought-provoking (a helpful quick-glance timeline is included here) – the case has been dismissed three times, but then revived in each instance.  In 1999, the City of Gary, which had a notoriously high rate of violent crimes for a midwestern city, joined what was then a wave of other urban centers around the country in suing the major gun manufacturers for public nuisance and other crime-related injuries.  The gun litigation drew inspiration from the litigation between the states and the tobacco industry in the mid-1990s. After the second time the case was reinstated after a dismissal, in 2001, the Indiana state legislature passed a statute granting tort immunity to gunmakers and dealers – a state precursor to the federal PLCAA, which Congress enacted in 2005.  In 2007, after some more procedural twists, the Indiana Court of Appeals found both the PLCAA and the state immunity statute inapplicable to the case.  The litigation essentially went dormant from 2009 to 2015, when the Indiana state legislature amended its own gunmaker immunity statute to apply retroactively to August 26, 1999, four days before the City filed its.  This prompted the manufacturers to file another motion to dismiss, which the trial court granted in 2018, though it denied the manufacturers’ petition for attorneys’ fees.  The City appealed this fourth dismissal, and the Indiana Court of Appeals reversed the dismissal again, in May 2019.  This is the decision that the Indiana Supreme Court declined to take on Nov. 26.  (For more background, an older press release by plaintiff’s counsel is here and their release about the latest decision is here).

New NICS Case: Snyder v. United States, Part II

A previous post explained how Steven Leroy Snyder failed his firearm purchase background checks on three occasions, but he passed the same background check when he renewed his concealed carry permit around the same time. He pursued both administrative remedies with the FBI to challenge the gun purchase denials and correct whatever inaccurate information was in the FBI’s databases regarding him. Frustrated by the lack of progress on this front, Snyder sought relief in federal court.  Snyder brought his lawsuit under 18 U.S.C. § 925A, which provides that an otherwise lawful purchaser denied a firearm due to an error in the background check system “may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.”  This avenue for judicial redress runs as another parallel track to the VAF process and the administrative procedure for challenging a denial, and Snyder availed himself of all three.

The judicial process under § 925A, however, raises the complicated relationship between state and federal governments in the background check bureaucracy.  According to this statute and § 922(g), federal firearm prohibitions for criminal convictions depend on the definition of “conviction” in the jurisdiction where the criminal proceedings occurred – in this case, Washington State.  The relevant Washington statute, in turn, defines “conviction” as including not only guilty verdicts and pleas, but also “includes a dismissal entered after a period of probation, suspension or deferral of sentence.”  On the other hand, a subsequent pardon removes the conviction.  For purposes of firearm prohibition, the same Washington statute says, “Where no record of the court’s disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge,” but this is not binding on the federal government.

Federal regulations instruct those wishing to correct inaccurate records in the NICS system (that result in a firearm purchase denial) to first petition the FBI, and if the FBI cannot resolve the issue internally, “[t]he individual may then apply for correction of the record directly to the agency from which it originated.”  An analogous state law procedure is available under Washington statutes to correct inaccuracies in criminal records, but Snyder did not pursue this route.  This is a technical aspect of administrative law that can be bewildering to nonlawyers: an agency in one division of government (in this case, the federal executive branch) may have processes that depend on information from another level or division of government (like local law enforcement), but the former may have no power to correct errors in the information supplied by the latter.

Snyder also asked for an order that the government issue an affirmative approval on his previously delayed background checks – but the court observed that under 28 C.F.R. § 25.6(c)(1)(iv)(B), the dealers were already free to complete the sale, and had been free as of three days after the “delayed” response on the background check. This point occasions one of the courts two references to the Second Amendment: “There is no showing that the United States violated his second amendment rights by issuing the ‘delayed’ response” – given that he could have purchased the firearms already.  Of course, a few years have elapsed – it is possible that the specific guns Snyder wanted to buy are no longer available from those dealers, or that those dealers are out of business.

Finally, Snyder wanted the court to order the issuance of a UPIN to streamline future gun purchases.  While the VAF process normally offers this, Snyder was ineligible for a UPIN under the VAF procedure because of the local (county) arrest record from 1972; but UPINs are not available as a judicial remedy under 18 U.S.C. § 925A.  Snyder lost, but he could start the process anew by trying to correct his local criminal records in Washington state, to clear up the 1972 arrest record.  Then, he could start over with a new VAF application, and wait a year or so for the FBI to process it.  Legally, the court made the correct decision, though Snyder’s frustration with the bureaucratic errors and the government’s inability (legal incapacity) to correct the errors is understandable.  His state now has universal background checks, meaning that even if Snyder were to purchase a used firearm from a private seller (a neighbor or acquaintance), he and the seller would need to complete the transaction through a licensed dealer, who could conduct a NICS background check on the purchase.

The most mysterious part of this case is that Snyder passed a NICS background check (twice) to obtain and renew his concealed carry license – it is hard to explain the discrepancy.  One explanation might be different examiners at the FBI processing his background checks at different times – perhaps they would reach different conclusions.  It is also conceivable, though I have never seen any documentation of this, that NICS examiners take a more lenient approach in background checks for concealed carry permits than they do for firearm purchases.  A third explanation, specific to Snyder’s case, would be that it was simply a matter of timing: a literal parsing of the responses to him from the FBI indicate that some inaccurate prohibiting information on file in 2013 and 2016 resulted in those delays and denial, and perhaps his appeal and VAF application, or his 2018 lawsuit, prompted the NICS personnel to correct that information, but also to uncover the previously-unknown 1972 arrest record, which was the basis of his 2018 VAF denial and his new “delayed” status regarding the 2013 and 2016 purchase applications.  A VAF application allows the NICS staff to proactively search for criminal records regarding the applicant, whereas the normal NICS background check relies entirely on information already submitted to and stored in one of three databases.  Snyder’s 2017 renewal background check might have fallen sometime between the clearing of the previous inaccurate information from the NICS database, and the new discovery by NICS of the 1972 arrest record from Washington; and his original carry license would have been five years earlier, in 2012, and may have predated the full implementation of the state’s current system of checking with NICS (the Washington concealed carry statute has been amended repeatedly in the last fifteen years).  It is also possible that the local sheriff’s office staff processing his concealed carry permit/renewal simply approved his permit despite a “delayed” response from NICS.   At least one information site states that Washington’s concealed carry background checks do not “qualify” as NICS background checks, though the state statute requires a NICS check.  In half the states, however, a concealed carry permit allows the permit holder to skip the NICS background check when making gun purchases from a licensed dealer.

As a side note, NICS background checks numbers are the source (proxy) for most estimates of annual or monthly nationwide new gun purchases, and surges in gun sales are a common talking point in firearm policy discussions.  This case illustrates a problem with these numbers – many of the NICS background checks are in fact for concealed carry permit applications or permit renewals, not new gun sales, as explained here and here.  In Snyder’s case, two NICS checks would have been for his concealed carry permit and renewal, three for his attempted gun purchases, and at least two NICS inquiries were for his VAF application and status check.

New NICS Case: Snyder v. United States, Part I

A recent federal district court decision from Washington State, Snyder v. United States, highlights the complex interplay of gun rights and the background check bureaucracy.  The October 30 decision brings together several areas of Administrative Law – judicial recourse (available relief) for adverse agency actions, cooperation and split responsibility between state and federal agencies, administrative reconsideration procedures, statutory default provisions for agency delays, and how agencies obtain information and correct mistaken information. In the background, of course, is the Second Amendment – the complaint does not include a Second Amendment claim, but the court mentions it in passing twice in the opinion.  The court’s ruling is on cross motions for summary judgment, deciding in favor of the government, and against the would-be gun purchaser.

Snyder tried to purchase a gun from a licensed firearms dealer twice in October 2013, but he did not pass the required federal background check – NICS, the background check system run by the FBI, issued a “delayed” response and did not approve the purchase.  The same thing happened again to Snyder in April 2016 – this time the background check yielded an outright denial.  Nevertheless, Snyder was able to obtain a concealed carry license in Washington, which he was able to renew in 2017.  As in many other states, he had to pass a federal background check through the FBI’s NICS database to obtain his concealed carry license, and to renew it.  This contradictory result furnished the basis for Snyder’s lawsuit, and it highlights some bureaucratic aberrations that would appear to be a mistake or glitch to an outside observer, but are in fact merely a feature of a complex decision-making system that draws information from different sources at different times, so that the same query may yield different answers on different occasions.  A second part in this series will return to this contradiction and attempt to explain what happened in this instance.  The complaint does not indicate whether Snyder has been able to buy guns since 2016, or whether he already owned other guns, which would be relevant for discussing the degree of infringement on his Second Amendment rights.  The fact that he has been litigating his denials and delays up to now suggests that he has been unable to initiate new purchases in the meantime, but as the court points out, the dealers were free to sell him the three guns he was originally unable to purchase as of June 2018.

According to a 2016 Audit by the Office of the Inspector General, when the FBI does NICS background checks, it has a 99.8% accuracy rate in denials (it is impossible to assess the number of inaccurate approvals, because federal law requires the deletion of NICS records within 24 hours of an approval).  To put things in perspective, denials occur in less than 1% of the background checks, which means problems like Snyder’s are disproportionately rare; on the other hand, in a year when there are 13 million background checks, around 780,000 are denials, and more than 15,000 of these might be mistakes.  At the same time, there is widespread underreporting from the states to the NICS center, and in Washington, different state officials would have conducted the NICS background checks for Snyder’s purchases and his carry permits, and these officials are statistically unlikely to have reported anything back to NICS.  NICS would not have been on notice that background checks in Washington were yielding inconsistent answers on different occasions.

Besides a statutory provision for judicial review of NICS decisions (the type of lawsuit brought here), the FBI has two parallel-track administrative processes for those who believe they’ve received an erroneous denial on their NICS background check, the Voluntary Appeal File (VAF) application and a firearm purchase denial “challenge” (see also 28 C.F.R. § 25.10)  For a VAF, the individual merely submits a release form to access their full criminal history, along with fingerprints and some other paperwork or authorization.  After review of the VAF, the FBI may correct its own records and notify the dealer that it approves the sale.  The FBI will also issue the VAF applicant a Unique Personal Identification Number (UPIN); NICS maintain information about the UPIN holder to prevent future erroneous denials or extended delays of a firearm transfer (the individual will still need to complete background checks for future purchases, but the UPIN should streamline the review and avoid erroneous denials, analogous to TSA pre-screening clearance).  The purchase denial challenge is a classic administrative appeal, and itself makes two alternate procedures available to the wrongfully denied individual, under 28 C.F.R. § 25.10(c) and (d) respectively. The individual can start either with the FBI directly or with a state/local law enforcement agency in states where local law enforcement function as a type of bureaucratic middleman (technical term: “point-of-contact” or POC) for background checks, submits documentation to rebut the incorrect information in the original record archive that fed an inaccuracy into the NICS system, and then initiates a chain of inter-agency notifications that the correction has been made.  At risk of oversimplifying, a person would use the VAF process to fix a recurring mistake, like being mixed up with someone else who has the same name in the same state. The administrative challenge process, on the other hand, is for fixing a specific incorrect record, such as a data entry error by local law enforcement that coded your one-time arrest under the wrong grade or type of offense (misdemeanor versus felony,  class B versus class C), or where your conviction was reversed on appeal but the records do not reflect this.

Snyder filed both an administrative challenge and a VAF in May 2016, a few weeks after his second purchase denial, and included a copy of his concealed carry permit, showing that he had passed the NICS background check for the latter, and therefore should not have failed the NICS background check for his attempted gun purchases.  The government confirmed receipt but informed him that they were currently processing VAF’s received in July 2015 – ten months before (news reports at the time indicated the FBI had simply stopped processing appeals).  More than a year went by, and then Snyder checked on the status of his appeal in November 2017.  The government responded that there was no decision on his appeal yet, and that they were then processing VAFs from November 2015 – in other words, they were now twenty-four months behind, instead of ten months behind. (According the FBI’s website, at the time of this writing, it is currently reviewing VAF cases from July 2018).

Snyder then filed his lawsuit in June 2018, and two months later, the federal agency notified his counsel that his firearm background check was in “delay status.”  The notice explained that the original prohibitive information was resolved, but that it had uncovered another potentially prohibitive arrest lacking a final disposition – an arrest in 1972 for possession of stolen property.  This meant that he was ineligible for the VAF process, but he could still submit evidence that the arrest had been expunged, or that his firearm rights had been restored by a court.  The federal government made unsuccessful attempts to find out from local law enforcement what had been the outcome of the arrest in 1972; it received no answer.  As mentioned above, the FBI has a procedure for challenging an erroneous denial of a firearm purchase, but there is no procedure for challenging an erroneous delay.

Under the administrative law doctrines of exhaustion of remedies and final agency action, this dichotomy is significant. Notwithstanding the statutory cause of action discussed below, normally an erroneously-denied firearm purchaser could not seek judicial review without first filing an administrative appeal of the denial, though if the agency will admit that it has ceased processing such appeals, this could come under the “futility” exception to the exhaustion requirement – perhaps.  On the other hand, a “delayed” decision from NICS would not trigger the exhaustion requirement before judicial review, because there would be no process to exhaust; yet a “delayed” response from an agency would also normally not constitute a final agency action, which in turn would also preclude judicial review.  If this seems a little circular, the statutory framework in this case confuses this analysis even further, because there appears to be an unusual statutory workaround to this problem.  I say “appears,” because it turns out that the statutory workaround will often prove unsuccessful due to the federal-state jurisdictional interplay in the NICS system.

Snyder claims there must have been a misidentification because he had no history that would make him ineligible for a firearm purchase.  Snyder’s basis for asking the court to order the government to order the completion of the uncompleted firearm transfers from 2013 and 2016 was that there was no conviction, and therefore no basis for a denial as a prohibited person.  He also wanted the government to correct its own records.  The government’s motion, on the other hand, pointed out that an indefinitely delayed status (longer than three business days) meant that a licensed dealer could already proceed with the sale (this rule is sometimes called the “Charleston loophole”), so there was no violation of his rights.  In addition, the arrest records Snyder wants corrected were local law enforcement records, not federal NICS records, so the federal government had no power to make such as correction.

New Case: Powell v. State of Illinois

A federal district court decision from September 30 raises some novel legal issues regarding firearm policy (the case is captioned Powell v. State of Illinois but is still at the pre-trial stage). On September 30, 2019, U.S. District Judge Joan Gotschall issued a breathtaking 34-page opinion denying in part the defendants’ motion to dismiss; it allows the case to move forward to discovery.  (See news coverage of the opinion here and here). The plaintiffs, representing a class of Chicago African American school children, link inexcusably high levels of gun violence with childhood learning disabilities and a lack of reasonable accommodations. The statutory basis for the claim is the Americans with Disabilities Act (ADA), along with the Illinois Civil Rights Act; the children-class representatives suffer post-traumatic stress disorder (PTSD) and other learning disabilities due to daily exposure to gun violence, including witnessing the shooting deaths of immediate family members. The plaintiffs are seeking injunctive relief in the form of state gun regulations, primarily directed at gun dealers, “which they contend would appreciably stem the tide of gun violence in Chicago.” (For helpful reporting on the complaint from when it was filed, see here and here).  It is worth reiterating that the September 30 decision, though significant, is merely a ruling on a motion to dismiss – a trial on the merits is still in the future.  Most cases settle before trial, so this case could end in a pre-trial settlement sometime in the next few months, without generating a verdict on the merits or subsequent appellate decisions.

The case focuses on Chicago, but it highlights a pervasive problem for urban communities nationwide – regular exposure to neighborhood gun violence is a significant factor in educational inequality, because it interferes with learning, educational achievement, and school operations.  The idea behind the case is that concentration of gun violence in neighborhoods beset with poverty is the foreseeable and inevitable consequence of an overly abundant supply of easily accessible firearms. Gun violence and homicides have reached epidemic levels in recent years among minority teenagers in the United States, and the constant disruption, trauma, and fear that go along with such day-to-day violence significantly affect the educational and psychological development of urban youth, and thus their eventual educational and career achievements.  The plaintiffs’ complaint and brief draw heavily from a growing body of academic research from sociologists, psychologists, educational theorists, and public health researchers to support these points.  The plaintiffs in this case argue that comprehensive community solutions to reduce gun violence are inseparable from policies promoting educational equality, as decreased gun violence boosts educational achievement and helps the school environment.

The judge’s opinion opens with a simple, sad observation: “It is common knowledge that, as the plaintiffs in this proposed class action allege, gun violence has ravaged the City of Chicago for decades and that the violence is concentrated in predominately African-American neighborhoods.”  Other courts have acknowledged this as well.  Chicago has one of the highest rates of gun homicides in the country, and twenty percent of the homicide victims in Chicago are teenagers or younger.  The racial disparity among victims is striking: eighty percent of the murder victims in Chicago are African-American, even though African-Americans are only about one-third of Chicago’s total population; African-American men from age 15 to 34 are only 4% of the city’s population, but they comprise half of the homicide victims.  The national homicide rate is around 5 per 100,000, but the African American neighborhoods in Chicago have rates from 87-180 per 100,000, while the predominately white neighborhoods have homicides very rarely, and in some years, none. Chicago is awash in guns, a large share of which come from seven identifiable gun dealers, either through loosely-regulated but legal sales, or through thefts from these stores (hundreds of guns per year that enter the black market).

This case is interesting from a legal perspective for several reasons.  First, the plaintiffs are claiming a statutory (not constitutional) right to be free from daily gun violence, under both federal (the A.D.A.) and state law.  Second, the case does not directly implicate Second Amendment rights – the plaintiffs are not suing gun owners, dealers, or manufacturers, but instead state officials who are (allegedly) not implementing the firearm regulatory regime mandated in Illinois’ state statutes.  Of course, the injunctive relief that the plaintiffs are seeking are a combination of regulatory and enforcement actions by state law enforcement officials that would raise some Second Amendment issues.  Indeed, the very statute that the plaintiffs want implemented is currently the subject of separate litigation by gun rights groups, claiming that the Illinois FOID law violates (among other things) the Second Amendment.  So, Second Amendment advocates will watch this case closely as it moves forward; some groups, such as the NRA-ILA, have already decried the September 30 opinion on their website.  Another noteworthy feature of the case is that the plaintiffs are not seeking monetary damages, except potential attorneys’ fees if they prevail on their injunctive relief claims.

A third reason this case is interesting, from a legal standpoint, is that the plaintiffs are seeking, at least primarily, the promulgation of regulations, rather than enforcement actions.  In the field of administrative law, lawsuits to compel government agencies to undertake specific enforcement actions are notoriously difficult to win, both on the merits and on standing grounds.  After Massachusetts v. EPA, however, a distinction has emerged between actions to compel agency enforcement, versus actions to compel agencies to promulgate rules.  The later, under Massachusetts, is a stronger claim, especially for purposes of plaintiffs establishing standing, but potentially also on the merits, if there is a clear enough statutory mandate for an agency to regulate.  Another similarity to Massachusetts v. EPA is the complex issue of standing to sue, which was the focus of the defendants’ motion to dismiss and a large section of the opinion – as in Massachusetts, a case about the EPA’s refusal to regulate carbon dioxide emissions and the resulting effects of rising sea levels – the plaintiffs can articulate concrete and particularized injury-in-fact (medically diagnosed post-traumatic stress disorder and its direct effects on school behavior and learning), but the alleged injury is the combined effect of innumerable independent actors and factors, which in the aggregate are an indirect but foreseeable result of a government agency’s refusal (or failure) to regulate the activities of these actors.

From a more abstract policy or political science standpoint, the opinion (and even more so the original complaint) highlights the tradeoffs with guaranteed rights, such as Second Amendment rights – the idea that protection of any right means a restraint on another individual, group, or entity.  Or, from the other angle, protection of the rights of disabled children in Chicago (the plaintiff class in Powell) would seemingly require injunctive relief that would entail restraints on the gun trade that many perceive as an infringement on the right to bear arms.  If the right to bear arms includes an individual right to buy and keep firearms for self-defense, an implication of this right might be a readily accessible retail market for acquiring guns.  The market infrastructure necessary to make guns widely available for purchase, in turn, means there will inevitably be a certain amount of straw purchasers, dealers who knowingly violate gun laws, gun thefts, a secondary market for used guns that blurs into the black market, and individuals who become legally ineligible for gun ownership (statutorily “prohibited persons”) after they are already in possession of some firearms. These are the types of spillover effects that the plaintiffs outline in their complaint, and that the relevant state statutes (Illinois’ FOID Act) were supposed to address, at least in part.  It will be interesting to see how the case progresses, and if the case settles or results in a favorable verdict for the plaintiffs, if the state is in fact able to implement the changes the plaintiffs seek.