SCOTUS Gun Watch – Week of 11/2/20

With Justice Barrett sworn in, the Court is operating at full strength once again. But the notation from this morning’s order list confirms that things are not yet fully settled: “Justice Barrett took no part in the consideration or decision of the motions or petitions appearing on this Order List.”

There are a few cases pending now that address gun laws, but the cleanest and clearest Second Amendment challenge is the Torres case. It’s one that might appeal to Justice Barrett given her dissent in Kanter, but so far the other justices have not been especially open to challenges to person-based firearm prohibitions. If the Court declines Torres and the other petitions below, there are several cases bubbling up from the courts below that could give an eager Court a chance to weigh back in on the Second Amendment.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments Cert Denied
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal reply due @ 28-Oct-20
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

reply due @ 30-Oct-20
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) response due 6-Nov-20
Caldara v. City of Boulder

(20-416)

10th Cir. 24-Sep-20 Federal court abstention over Second Amendment claims being adjudicated in state court distributed for 13-Nov-20 conference
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

response due 8-Dec-20
Porter v. United States

(20-522)

6th Cir. 16-Oct-20 Challenge to ACCA enhancement Gov’t waived right to respond
Yoo v. United States

(20-550)

5th Cir. 21-Oct-20 Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer) response due 27-Nov-20



SCOTUS Gun Watch – Week of 10/26/20

Barring some major unexpected events, the Supreme Court could well be back up to nine members within the next week. As others have written at length, that could have a monumental impact across myriad areas of law. One of those is the Second Amendment, and a new Justice Barrett will be joining a Court that has several options available to create greater protection for the right to keep and bear arms, along with a host of other non-constitutional gun cases.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments Cert Denied
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal reply due @ 28-Oct-20
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

reply due @ 30-Oct-20
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) response due 2-Nov-20
Caldara v. City of Boulder

(20-416)

10th Cir. 24-Sep-20 Federal court abstention over Second Amendment claims being adjudicated in state court waiver of right to respond filed
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

response due 8-Dec-20
Porter v. United States

(20-522)

6th Cir. 16-Oct-20 Challenge to ACCA enhancement response due 19-Nov-20




SCOTUS Gun Watch – Week of 10/19/20

With a vote on Judge Barrett’s nomination to the Supreme Court likely to occur the week before the presidential election, the set of gun cases at the Court takes on heightened importance. There are a number that will be fully briefed in the coming months that a majority anxious to expand gun rights may find useful vehicles. From my review of Judge Barrett’s gun cases as a Seventh Circuit judge, she will very likely provide a solid vote in that project. A recent amicus brief in Torres—concerning the availability of as-applied challenges to the felon prohibitor in 922(g)(1)—argues in conformity with Judge Barrett’s Kanter dissent that history only allows disarming dangerous individuals. (As Joseph and Catie Carberry argue in a forthcoming essay, and summarize on the blog, this dangerousness principle should not be reduced to a mere search for historical analogues of today’s laws.) As of right now, Torres represents the only square Second Amendment challenge, but a determined majority could use many of the vehicles below to clarify its view on guns if Judge Barrett is confirmed.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments Cert Denied
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal reply due @ 28-Oct-20
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

reply due @ 30-Oct-20
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) response due 2-Nov-20
Caldara v. City of Boulder

(20-416)

10th Cir. 24-Sep-20 Federal court abstention over Second Amendment claims being adjudicated in state court response due 2-Nov-20
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

response due 8-Dec-20

 




Amy Coney Barrett on Guns

With just a few years on the bench, Judge Barrett has already developed a surprisingly deep record on guns and the Second Amendment. These cases suggest a special solicitude for gun owners and users—and not just for the paradigmatic “law-abiding, responsible” ones. Indeed, in her Second Amendment and criminal law cases, she has several times sided in favor of someone who broke the law against the government’s attempts to disarm, seize, or imprison them for an extended amount of time. These decisions demonstrate her originalist approach to constitutional interpretation and a textualist approach to statutory interpretation. They also reveal a jurist who does not reflexively side with law enforcement or prosecutors. In that respect, she may end up finding herself more closely aligned with someone like a libertarian-leaning Justice Gorsuch than a more law-enforcement friendly Justice Alito on cases that implicate guns and criminal justice (see, for example, United States v. Davis and Rehaif v. United States where Justices Gorsuch and Alito found themselves on opposite sides). What follows are highlights from a deep dive into the significant gun cases that Judge Barrett decided as a circuit judge.

One of the cases receiving the most attention is her dissent in a Second Amendment case, Kanter v. Barr (Mar. 15, 2019). Indeed, in her Senate Judiciary questionnaire, Judge Barrett listed Kanter first in the list of “most significant cases” she heard while a judge. I previously wrote about the case shortly after it came down. Now it has taken on even greater significance, and a closer look seems warranted. At issue in the case was the constitutionality of applying 18 U.S.C. § 922(g)(1)—the federal law that prohibits most felons from possessing firearms for life—to a man who had previously been convicted of mail fraud. Reagan-appointee Judge Joel Flaum wrote for the panel majority, upholding the law.

Judge Flaum applied the traditional two-part framework, which looks first to see whether the law even burdens activity protected under the Second Amendment and then, if so, whether the law withstands some type of heightened scrutiny. At the first step, Judge Flaum noted that historians, legal scholars, and other circuit judges had considered the Second Amendment to be connected to the concept of a virtuous citizenry. As such, the founders would have accepted limits on possession by those groups not capable or exercising virtue, such as children or the mentally ill, as well as by those who had shown themselves not virtuous, such as by breaking the law. Ultimately, though, the majority decided that the historical evidence was not conclusive, and proceeded to assume that Kanter fell within the scope of the Second Amendment and step one and assessed whether the law still passed scrutiny at step two. Because Heller said that nothing in its opinion should be read to cast doubt on disarming felons, a regulation it called “presumptively lawful,” the majority applied intermediate scrutiny. The majority concluded that the law was reasonably related to the government’s important interest in preventing gun violence. The government need not adduce proof that Rickey Kanter himself was dangerous; it could apply the rule to a class as a whole (how else could a “rule” apply?), and the government had introduced sufficient evidence that even nonviolent offenders had a higher risk of future violent crime.

Judge Barrett, in a 37-page dissent, found no uncertainty in the historical record. According to her reading of the history, legislatures only had the power to strip dangerous people of the right to keep and bear arms. She reached that conclusion by rejecting the three arguments the government put forward for its authority to disarm all felons: (1) some founding-era legislatures deprived felons of the right, (2) because states put felons to death at the founding, it could clearly disarm them, and (3) founding-era legislatures permitted only virtuous citizens to have guns, not lawbreakers.

To the first point, she dismissed the relevance of three proposals for right-to-arm provisions in the Bill of Rights put forward after the ratification of the Constitution by New Hampshire, Massachusetts, and Pennsylvania. (Ironically, Heller found these sources quite probative of what the founding generation wanted with respect to gun rights; Judge Barrett, on the other hand, emphasized that these were proposals that went nowhere.) She further read the historical practice as only targeting violent offenders or those who risked public safety—which she implicitly understood as posing risk of physical harm.

On the second point, about the consequences of a felony conviction at the founding, she argued that although felonies were punishable by death at common law, that was already changing by the time of the Second Amendment’s ratification. As the number of felonies grew, the punishment for violation decreased and they no longer faced the loss of all rights upon conviction.

As to the third point, about the requirement for virtue, Judge Barrett thought Heller foreclosed this view. She acknowledged the many scholars who connect the founding-era right to keep and bear arms with a virtuous citizenry, but concluded that the founding-era only applied the virtue limitation to civic rights, like voting and serving on juries, not to “individual rights” like the Heller-established Second Amendment right. States expressly excluded some convicted criminals from voting and serving on juries, but early state constitutions and statutes did not do the same for gun rights.

From this history, Judge Barrett concluded that legislatures had the power to disarm those who present a threat to public safety. They can make that decision on a class-wide basis and do not need to rely on individual determinations. And, significantly, legislatures “may do so based on present-day judgments about categories of people whose possession of guns would endanger the public safety.” But a legislature has to justify that designation. Where it burdens a core right permanently, as here, it has to meet a very stringent standard (akin to strict scrutiny). According to Judge Barrett, 922(g)(1) is not tailored to an interest in preventing gun violence because it reaches too far: “It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses.” She further rejected the government’s statistical evidence showing a link between nonviolent prior offenses and future violent crime (those treat the whole nonviolent category together) as well as specifically between mail-fraud convictions and future recidivism (that study didn’t demonstrate whether later crimes were violent). Thus, “[a]bsent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the government[] cannot permanently deprive him of his right to keep and bear arms.”

Judge Barrett concluded her opinion with a swipe at how her colleagues—and those on other courts who had nearly always done the same—treated the Second Amendment. Echoing what has become a strong theme of Justice Thomas’s continual dissents from denial of certiorari in Second Amendment cases, Judge Barrett wrote that the majority (and, by extension, dozens of other judges) were treating the right to keep and bear arms as a “second-class right.”

She later talked about this case in an interview at Hillsdalle College (h/t to Stephen Gutowski for writing on this talk). She reiterated her view that the longstanding tradition was that “those who pose a threat of violence to the community” can’t have firearms; she talked about overcriminalization and how many offenses are now classified as felonies that don’t indicate a risk of harm. “The line,” she said “is really whether someone is dangerous or not.” She also said that “Heller is pretty clear that the scope of the Second Amendment needs to be determined by its history.” This statement is noteworthy and might signal her agreement with Justice Kavanaugh that text, history, and tradition—and not the two-part framework—is the appropriate method for resolving Second Amendment disputes. Yet she also acknowledged in the talk that diving into those founding-era documents “was hard”—there weren’t the amount of amicus briefs that the Supreme Court receives, so she and her clerks had to the work themselves. If she is confirmed, she’ll have many more amicus briefs on the history waiting for her at the Supreme Court.

In addition to Kanter, Judge Barrett also wrote for the panel in a criminal case dealing with guns. In United States v. Watson (Aug. 17, 2018), she concluded that police violated the Fourth Amendment by blocking a car when they responded to a 911 call that reported that a group of four or five “boys” were “playing with guns” by that car. That 911 call did not provide the officers reasonable suspicion for a number of reasons, she said. In relation to the guns, she wrote: “the caller’s report in this case about the presence of guns did not create a reasonable suspicion of an ongoing crime, because carrying a firearm in public is permitted with a license in Indiana.” The reference to “boys,” if read as minors, may have been a crime, but might have just as easily been a generic term for men. And although some types of weapon-use short of firing can be illegal in Indiana “‘playing with guns’ could mean displaying them, which is not criminal conduct.” She further rejected the notion that the fact officers described this as a dangerous part of town could give them reasonable suspicion: “People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods.” She concluded with a note of understanding about the situation police faced:

We recognize that the calculus is complicated when police respond to tips involving firearms, at least in areas where carrying a firearm in public is not itself a crime. On the one hand, police are understandably worried about the possibility of violence and want to take quick action; on the other hand, citizens should be able to exercise the constitutional right to carry a gun without having the police stop them when they do so.

In a concurring opinion, Judge Hamilton noted that “after recent expansions of legal rights to possess and display firearms, the stop in that case was not justified under Terry v. Ohio, 392 U.S. 1 (1968), and the myriad cases applying it.” While the Seventh Circuit in Moore v. Madigan said the Second Amendment protects a right to public carry, the Supreme Court itself has not recognized, in Judge Barrett’s terms, “the constitutional right to carry a gun.”

In another criminal case dealing with unlawful gun possession, United States v. Moody (Feb. 7, 2019), Judge Barrett again wrote for a panel reversing a lower court order—this time on highly deferential plain error review. There, the defendant had stolen more than 100 guns from a train car and sold them to anonymous buyers who told the defendant they had heard about his heist. The district court imposed a sentencing enhancement “for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.” Writing for the panel, Judge Barrett said there was no evidence the defendant knew or had reason to know the anonymous buyers would be unlawful users or possessors. “[T]he anonymous participants’ interest in off-the-books gun sales might have given Moody reason to believe that their purchases were unlawful, but not that their possession or use of the guns is unlawful,” the latter of which is required for the enhancement to apply.

In United States v. Briggs (Mar. 27, 2019), Judge Barrett wrote for a panel again reversing a lower court’s gun sentence. There, the defendant was arrested with large amounts of drugs and loaded firearms, despite having a disqualifying felony conviction. The district court imposed an enhancement for possessing the guns in connection with a felony drug offense. But, Judge Barrett wrote, the trial court never made a finding about how the guns were connected to the drug possession. “It simply assumed that because the firearms were probably connected to drug trafficking (because of the combination of the cocaine, marijuana, and digital scale), they were probably connected to his mere possession of the cocaine. But that logic doesn’t hold up.”

On the other hand, in United States v. Cherry (Apr. 17, 2019) she wrote for a panel rejecting an “innocent possession” jury instruction as a defense to a charge of being a felon-in-possession of a firearm. In that case, police recovered a firearm on the ground several feet away from the defendant, who had a disqualifying prior conviction. He claimed that he had knocked the gun out of someone else’s hand and had only picked it up briefly before officers arrived on the scene. Writing for the court, Judge Barrett emphasized that the Seventh Circuit has not recognized an innocent-possession defense outside the context of situations like necessity or duress. And, even were it to recognize one, the evidence did not support the instruction here because the defendant did not seek to immediately turn the weapon over to law enforcement, as the instruction would require for innocent possession.

In another case, United States v. Stoller (June 28, 2019), Judge Barrett was on a panel that issued an unsigned order dismissing an appeal for lack of jurisdiction from a defendant seeking clarification on whether his felony conviction barred him from possessing archery equipment, BB guns, and pellet guns. The order noted that the man’s remedy lies elsewhere, such as in a Second Amendment challenge—and cited to Kanter. It noted in a footnote, though, that “[w]e wonder whether Stoller would be the appropriate plaintiff to bring such a challenge, as his lawyer has argued that he is disabled by ‘a major mental illness, Alzheimer’s Dementia.’” It noted that Illinois law bars people will certain mental conditions from firearm possession and said “[c]ourts have time and again noted with approval the longstanding prohibitions on the possession of firearms by felons and those who are not mentally competent”—citing Heller.

Most recently, in United States v. Uriate (Sep. 15, 2020), Judge Barrett dissented from a panel opinion applying the First Step Act to a firearm offense. That Act clarified that for offenses under 18 U.S.C. § 924(c), a second or subsequent conviction carrying a mandatory 25-year sentence could only be imposed after the first conviction had become final, not in the same proceeding as the first conviction (as had been the practice for many years under prior Supreme Court precedent). The Act applied to anyone who for whom a sentence “has not been imposed” at the time it became law. At issue in this case was whether a defendant who had been sentenced, and had his sentence vacated but had not yet been resentenced, could qualify for relief under the Act. The majority said yes. In true textualist style, Judge Barrett invoked various style manuals and relied on grammatical parsing of the language to conclude the Act did not apply. The defendant had been sentenced initially—a sentence had already been imposed—even though that sentence had been vacated. As she said, “a background principle [or resort to congressional purpose] cannot overcome statutory text.” After all, “[s]peculating about congressional desires is a dicey enterprise, which is one reason among many that we should stick to the text.”

As this overview shows, the key gun-related cases in which Judge Barrett has written opinions run the gamut from a prominent Second Amendment dissent to those in a range of criminal law contexts. Given her short tenure on the Seventh Circuit so far, it is probably too soon to conclude that these rulings allow us to distill her theory of firearms law, or even know whether she has a single definable one yet. But from these cases it is nonetheless evident that Judge Barrett takes gun rights seriously and recognizes that the ubiquity of firearms in American life requires adjustments to police practices, criminal procedure doctrine, and substantive criminal law.




SCOTUS Gun Watch – Week of 10/12/20

Because today’s a Supreme Court holiday, we won’t get the order list from last Friday’s conference until tomorrow at 9:30. When that list comes out we’ll be watching the Rodriguez case, which was relisted from last week’s conference. The rhetoric in the petition papers is heated (the petitioners call the decision below an example of the Ninth Circuit’s “distort[ion of] the law to avoid protection of Second Amendment rights” and refer to its “lawless disposition of cases involving the Second Amendment”), but the facts are straightforward: law enforcement seized firearms from the home of a man they took into custody for mental health reasons; the man became unable to lawfully possess those weapons, but some of the guns belonged to his wife and the state did not return them to her. The petitioner claims the initial seizure violated the Fourth Amendment and the later retention and refusal to return the guns violated the Second Amendment. While the facts are straightforward, the procedural history is not—the Ninth Circuit didn’t address the Second Amendment question because it ruled that claim was barred by issue preclusion based on prior state court rulings in the gun forfeiture action. That complication may be one reason the Court might hesitate before taking the case.

There’s also one new petition addressing the effect of a Rehaif error—where the district court failed to inform a defendant charged with violating 922(g) that the government is required to prove the defendant knew the status that made him ineligible to possess a firearm.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose

(19-1057)

9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments distributed 9-Oct-20 conf.
Johnson v. United States

(19-1390)

4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caniglia v. Strom

(20-157)

1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal response due 14-Oct-20
Hobbs v. United States

(20-171)

6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status

 

response due 16-Oct-20
Torres v. United States

(20-5579)

9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) response due 2-Nov-20
United States v. Gary

(20-444)

4th Cir. 5-Oct-20 Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

response due 6-Nov-20




Why Heller Is Such Bad History

When I began the research for my recent book, Armed Citizens: The Road from Ancient Rome to the Second Amendment, my goal was to understand the origins of American gun laws. I was hardly alone in this, of course; there is an enormous amount of contemporary research on the original goals of the Second Amendment, including Scalia’s 2008 decision in DC vs Heller, which still sets the framework for gun regulations today. But one thing that became clear, when reading that decision and reading the debates leading up to and surrounding the writing of the Constitution and the Bill of Rights, was just how different the concerns of the eighteenth-century were from the gun politics of today.

When the Supreme Court took up DC vs Heller, it had to answer the question of whether or not the Second Amendment protected an “individual” right to bear arms. By a 5-4 ruling, the court declared that it did. Such a ruling is, of course, within the purview of the Supreme Court. Given the nature of the question, it was also appropriate for it to come down to a 5-4 ruling for one side or the other. As the goal of this post is to show that Heller is “bad history,” I should say from the outset that my point is not that ruling in favor of DC’s gun laws would have been good history. Rather, it is to show that Justice Scalia’s justification of that decision, while rooted in an analysis of the amendment’s eighteenth-century context, was based on a fundamental misconception of the way that gun rights and militia service were understood and debated during the eighteenth century. It is not inherently bad history to say that the Second Amendment protects an individual right to bear arms; it is, however, bad history to declare that such a ruling was a return to the “original understanding” of the amendment.  And it is especially bad history to claim that the protection of an individual right was the primary reason for the Second Amendment’s inclusion in the Bill of Rights.

Scalia’s decision combined two key elements: his originalist philosophy of constitutional interpretation, on the one hand; and an expansive view of gun rights, on the other. These elements are neither inherently consistent nor inconsistent with each other. They did not, however, link together in the way that Scalia claimed, because the eighteenth-century America he described was not one that most historians of the militia would recognize. Justice Scalia mischaracterized eighteenth-century society in two key ways. His claim that “The ‘militia’ comprised all males physically capable of acting in concert for the common defense” whitewashed a history of not only excluding people of color from the militia – able-bodied or not – but of using that militia to police the actions of non-whites and especially of the enslaved population. His opinion also reads at portions as if unaware that the militia was an official government institution under state authority (and colonial authority before that), and under the command of those governments. Before, during, and after the Revolution, there was not one militia, but rather different militias for the different states. And while those militias were broken down into geographical subunits, they were all part of specific militias under government authority. Colonial and state laws about “all able-bodied men” being part of the militia were followed by noting that those men were required to register with their local officers, and the officers were required to maintain the lists of eligible men. Those men would be required to participate in the militia, including both training and musters during peacetime, and active duty when needed – under government command. By ignoring these aspects of the eighteenth-century militia, the Heller decision helped feed a common misperception that membership in the militia was a status that one might independently declare, as do the men in the modern militia movement.

To be sure, there were armed groups of men in the eighteenth century who declared themselves a militia, yet acted outside of – and in explicit opposition to – their colonial and state governments. That was the approach of the men who participated in Shays’s Rebellion and the Whiskey Rebellion, most of whom had also been members of their state militias. But the governments at the time, both at the state and national level, explicitly rejected those claims. George Washington, then retired, thought that the actions of those “insurgents” would lead to “anarchy and confusion,” the antithesis of the “Bulwark of our Liberties and independence” that a “respectable and well established” militia would provide. Because the militia as it existed in the early republic was a state institution, in both senses of the word. To be legal – let alone “well-regulated” – its actions had to be done under the leadership of the colonial governments, until 1775; under the state governments, until the ratification of the Constitution; then, following that, under the command of either the state or national government, as specified by the Constitution’s Militia Clause and the Militia Acts of 1792. And while the militia’s participation in the American Revolution was an illegal activity according to British rule, those militias still acted under the command of newly constituted civil authorities, not as independent actions of the militia leaders and militiamen themselves. In his decision in Heller, Scalia missed the key role that civilian powers played in commanding the militia. Yet civilian control of military power was an enormously important issue for the founding generation, as shown by the language of the state-level predecessors to the Second Amendment.

In the interest of fairness, some passages in Heller showed a genuine understanding of the issues involved – where it indeed reads like good history. The decision recognized that England’s growing army during the 1680s helped spur the 1689 Bill of Rights. The decision also recognized that the militia was meant to render standing armies unnecessary. And at the end, Scalia acknowledged that it is “debatable” whether the Second Amendment as a whole is “outmoded” in a nation “where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” And while Stevens’ dissent was notably better history than the majority opinion, it is not perfect; nor is it entirely clear that, as Stevens claimed, the “’right to keep and bear arms’ protects only a right to possess and use firearms in connection with service in a state-organized militia” [emphasis added].

From an historian’s perspective, the problem is that the question the court had to address, “does the Second Amendment guarantee an individual right to bear arms?” was not an important question during the founding generation. If one starts by asking, not whether or not the amendment protected an individual right, but why the amendment was included in the first place, a very different set of concerns become paramount. Those concerns revolved around the militia. The men of the founding generation spent an inordinate amount of time debating the respective roles of citizens’ militias and professional armies – a discussion which had been a major topic of political debate in the Anglophone world since the 1690s, when John Trenchard and Walter Moyle published An Argument, Shewing that a Standing Army in Inconsistent with a Free Government. Those ideas, though never dominant in England itself, found a welcoming audience in British North America. They were key to complaints about British soldiers’ presence in the aftermath of the French and Indian War, then ramped up after the 1770 Boston Massacre and the fighting at Lexington and Concord, and were the source of Jefferson’s complaint in the Declaration of Independence that England “has kept among us, in times of peace, standing armies, without the consent of our legislatures.”

That fear of standing armies – and therefore, the belief in the necessity of a citizens’ militia – remained strong in the Revolution’s aftermath. Everyone involved in the writing of the Constitution and the Bill of Rights considered a large standing army to be an inherent threat to liberty. The debate between the Federalists and the Anti-Federalists at the time played out not as whether there should be a standing army, but as a discussion of how best to avoid a large standing army; and while men like Washington and Hamilton were not against having any professional army, they were a) against having a large one, and b) by 1789, no longer attempting to argue for even a small one. The Constitution’s Militia Clause and the Second Amendment were the government’s way of providing the framework for an answer to those questions, while avoiding the problems caused by events like Shays’s Rebellion. Their answer was that for the United States to be both free and secure, the states’ citizens’ militias – and not standing armies – must be able to provide that security. Should an individual state’s militia’s fail to provide that security, the national government would be able to bring in the militias of other states. Those were the questions they asked and the answers they gave. Whether the amendment protected an individual right to bear arms is our question; it was not theirs.

Historians are not required to limit themselves to those questions that people in the past explicitly posed, but we do have to acknowledge the risks involved when we impose our own. In this case, the question of an individual right to bear arms did not make sense in a society where everyone eligible for militia duty was required to participate. Short of the kind of Rousseau-style abstract analysis of the individual which divides human males into both a private man and a public citizen, in a society with universal male militia participation it is impossible to separate the definitely-arms-bearing militia member from the possibly-but-not-definitely-arms-bearing private citizen.

And yet, the ruling in Heller required a decision on just this matter. This difficulty is why the ruling deserved to be answered 5-4 one way or the other. Heller is not bad history because it rules that individuals had the right to bear arms outside of participation in the militia. It is bad history because it viewed the individual right to bear arms as why the amendment was written in the first place; it is bad history in its claim that the Second Amendment protected “only individuals’ liberty to keep and carry arms.” [emphasis added]. With this approach, Scalia shifted the decision from a questionable but defensible answer to the question the court had been asked, to a mischaracterization of the nature of the amendment itself. That mischaracterization, rather than the decision itself, is what makes Heller such bad history.




SCOTUS Gun Watch – Week of 10/5/20

The Supreme Court’s new term officially starts today. It released an order list this morning with the petitions it considered at its Long Conference last week. The Court denied cert in Zoie H., a case challenging the ability of a state to temporarily deprive Second Amendment rights after a juvenile adjudication without a jury. Paul Clement, who represented the NYSRPA challengers, represented the petitioners in Zoie H., but the Court was apparently not interested. The Court did not act on the petition in Rodriguez, which means it will likely be relisted for the next conference. Veteran court watcher John Elwood has explained that “[i]f a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.” But more than one relist is no longer a sign of the Court likely giving the case plenary review—at that point, it is more likely that a justice is writing a dissent from denial of cert or that the Court will deal with the case in a summary way.

There’s also one new cert petition on the list below—Torres v. United States—which is an as-applied challenge to the felon prohibitor in 922(g)(1). I remain skeptical that the Court wants to use a prohibited person case to expand the Second Amendment, but given that we know Judge Barrett would find as-applied challenges available, and that this type of case might appeal to her, that could change if she is confirmed.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments To be relisted
Johnson v. United States 4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause Cert Denied
Zoie H. v Nebraska Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles Cert Denied
Caniglia v. Strom 1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal response due 14-Oct-20
Hobbs v. United States 6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status response due 16-Oct-20
Torres v. United States 9th Cir. 27-Aug-20 As-applied challenge to 922(g)(1) response due 2-Nov-20




The Breadth of Judge Barrett’s “Dangerousness” Principle

Judge Amy Coney Barrett opened her dissent in Kanter v. Barr by identifying a historical principle underlying modern gun regulation: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” She went on to suggest that dangerousness is the Second Amendment’s exclusive limiting principle, such that “legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

This is a historically contestable position—many scholars and judges conclude that dangerousness was not the exclusive basis for disarmament, and that the Founding generation also denied guns to those thought to be unvirtuous, disloyal, incompetent, and so on. But if “dangerousness” is the operative principle for historically-informed Second Amendment interpretation, how broadly does it sweep? In Barrett’s terms, what do “history and tradition” tell us about the “scope of the legislature’s power to take [the right to keep and bear arms] away?”

Answering that question means considering, in her words, “a category simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” In her Kanter dissent (which argued that the federal felon prohibitor was unconstitutional as applied to a non-violent felon), Judge Barrett focused on the latter—felons who might not be dangerous. But it is also important to consider the former: non-felon groups disarmed because they were thought to be dangerous.

Through that frame, the historical evidence demonstrates that the “scope of the legislature’s power” was quite broad, notwithstanding the fact that the founding generations applied that power to very different groups than law does today—both more narrowly (for example, by not disarming domestic abusers) and more broadly.

In a forthcoming essay, we analyze two sets of historical gun laws that seem historically distant, but which the “dangerousness” approach makes relevant: laws regulating Native Americans and laws regulating those “disaffected to the cause of America.” These groups—much more so than felons, drug users, domestic abusers, and other groups targeted by contemporary restrictions—were subject to gun regulation by the Founding generations, apparently based on the perceived threat they posed. Relying largely on the Center’s Repository of Historical Gun Laws, the first part of the essay provides a historical overview of these laws, which have not received the same level of scholarly attention as some other historical prohibitions, such as those involving public carry or certain classes of arms.

Comparing these historical laws to contemporary gun restrictions inevitably means reasoning by analogy—as the test of “text, history, and tradition” favored by some originalist judges requires. The key step in analogical reasoning is identifying whether two things are relevantly similar, a process that is hard—and perhaps even impossible—to fully articulate given the invisible abstractions and generalizations that underlie it. Many scholars, including those sympathetic to broad gun rights, have noted some of the difficulties that arise when one looks for historical equivalents of modern laws. But at the very least, a “dangerousness” approach to text, history, and tradition must mean identifying the groups that were disarmed on that basis either in the Founding era or during Reconstruction.

The second part of the essay grapples with a question such regulations raise: What is to be done with the many historical laws that lack modern equivalents? Second Amendment historicism sometimes directs us to the family tree of gun laws in order to identify “lineal descendants” of particular guns or gun laws. But what about the lines of regulation that died out for one reason or another? Should embarrassing ancestors be cropped out of the historical picture entirely, or might they still have something to teach, in roughly the same way as Dred Scott v. Sandford has been invoked to support the “individual right” reading of the Second Amendment?

In some form or another, history is and will remain relevant to the question of whose access to guns can constitutionally be limited. Whether the answer to that question turns on a group’s dangerousness, virtuousness, or some other principle is beyond the scope of our essay. We assume that dangerousness was at least one reason why certain groups were disarmed. But whatever approach one takes, it is important to be clear about the historical record, and the breadth of the government’s power to regulate.

To be clear, the lessons of history can be instructive in a cautionary way—not only with regard to the groups that were wrongly subject to disarmament in the past, but also the potential malleability of a “dangerousness” principle. In particular, the historical record shows an inclination to disarm those who were considered threats to public safety and the political order. Whether and how history can provide guidance with regard to the targets of contemporary prohibition—felons and domestic abusers, for example—is a broader question of constitutional interpretation. Understanding the full historical record, and the breadth of the government’s historical power, is a crucial first step.




SCOTUS Gun Watch – Week of 9/21/20

Next week, the Supreme Court begins its work of the new Term one member short. Justice Ginsburg’s death leaves the Court with 8 justices as it considers the cert petitions that have accumulated over the summer recess at its Tuesday conference. What happens with that open seat—and when it gets filled—may have an immense impact on the future of constitutional law, including on the shape of the Second Amendment. For now, the cases below are the major gun cases we’re tracking at the Supreme Court.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Rodriguez v. San Jose 9th Cir. 21-Feb-20 Warrantless search and seizure of firearms under Second & Fourth Amendments distributed for 29-Sept-20 conf.
Johnson v. United States 4th. Cir. 12-Jun-20 Vagueness challenge to the Armed Career Criminal Act’s elements clause distributed for 29-Sept-20 conf.
Zoie H. v Nebraska Neb. Sup. Ct. 22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles distributed for 29-Sept-20 conf.
Caniglia v. Strom 1st Cir. 10-Aug-20 Fourth Amendment challenge to gun removal response due 14-Oct-20
Hobbs v. United States 6th Cir. 13-Aug-20 Guilty plea under 922(g) without knowledge of disqualifying status response due 16-Oct-20




Heller’s Certitude

This week, Joseph and I taught the Heller case in our Second Amendment seminar. That case is complex, and the history is deeply contested by Justice Scalia and Justice Stevens. I’ve read a good chunk of the original sources they debate and many more of the historians whose work they invoke to support their respective views. And, unlike either of them, I’ve been able to read the scholarship by professional historians and linguists since the case was decided that explores more thoroughly debates they elide or gloss over and, in at least some cases, plumb resources that weren’t even available to the justices in 2008.

Whatever one thinks of the ultimate question of whether Justice Scalia or Stevens was right about the concerns motivating the Second Amendment, one thing is clear to me: the answer isn’t beyond debate. And that’s one reason why every time I read the Heller opinion, I grow frustrated at the tone and demeanor. Neither side, it seems to me, should be claiming the certainty they do for the positions they espouse.

Consider, first, some of the ways Justice Scalia described positions or arguments with which he disagreed in the opinion:

  • “dead wrong”
  • “bordering on the frivolous”
  • “[g]rotesque”
  • “unknown this side of the looking glass”
  • “worthy of the Mad Hatter”
  • “[t]here is nothing to this”
  • “wholly unsupported assertion”
  • “profoundly mistaken”
  • “ignoring the historical reality”
  • “no support whatever”
  • “flatly misreads the historical record”
  • “betrays a fundamental misunderstanding of a court’s interpretive task”
  • “[n]othing so clearly demonstrates the weakness of” the opposing view
  • “cannot possibly be read”
  • “particularly wrongheaded”
  • “demonstrably not true”

Justice Stevens was not quite as biting in dissent, but he also expressed a surprising amount of confidence in conclusions that were polar opposite to Justice Scalia’s. He described opposing views as:

  • “border[ing] on the risible”
  • “fundamentally fails to grasp the point”
  • “no plausible argument”
  • “particularly puzzling”
  • “simply wrong”
  • “utterly failed to establish”

There will surely be more debate about how to understand and best flesh out the Second Amendment’s guarantee. And some of that debate will be heated. But in my view it is incumbent on those of us engaged in the debate to recognize that there are few easy answers to the questions animating concerns of a generation of Americans more than 200 years ago with a completely different set of cultural, historical, and philosophical presuppositions. It’s a good idea to approach the task with a healthy dose of humility. As our colleague Jeff Powell writes in his book Constitutional Conscience, “the constitutional virtue of humility . . . manifests itself in a continuing recognition that the Constitution is primarily a framework for political argument and decision and not a tool for the elimination of debate.”