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November 1, 2022

Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen

This new CNN article, headlined "Federal judge blasts the Supreme Court for its Second Amendment opinion," alerted me to a notable new opinion emerging from new challenges to federal felon in possession laws in the wake of the Supreme Court's new Second Amendment standards set forth in Bruen.  Here are the basics from the press piece:

A federal judge based in Mississippi has released a scorching order expressing frustration with the Supreme Court’s Second Amendment opinion issued last summer and ordered the Justice Department to brief him on whether he needs to appoint an historian to help him decipher the landmark opinion.

The opinion in New York State Rifle & Pistol Association v. Bruen changed the framework judges must use to review gun regulations. Going forward, Justice Clarence Thomas said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulation.”

Judge Carlton Reeves — who is considering a case concerning a federal statute prohibiting felons from possessing firearms — said he is not sure how to proceed.  “This court is not a trained historian,” Reeves wrote in an order released last week.  “The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued. “And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.  The Bruen decision, he said, requires him to “play historian in the name of constitutional adjudication.”

Reeves, who sits on the United States District Court for the Southern District of Mississippi, ordered the parties, including the Justice Department, to brief him on whether he should appoint a historian within 30 days.  “Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter,” he said.

The challenger to the felon possession law, Jesse Bullock, says the regulation cannot withstand the Supreme Court’s latest decision interpreting the Second Amendment. “Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Bullock argued.  

The full six-page order in US v. Bullock is available at this link. Here are a few passages:

Bruen instructs courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2130. In fact, Justice Alito commends the majority for its “exhaustive historical survey.” Id. at 2157 (Alito, J., concurring).  

But historical consensus on this issue is elusive.  As the Seventh Circuit put it, “scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms.”  United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (collecting authorities); see also United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) (“scholars disagree about the extent to which felons — let alone misdemeanants — were considered excluded from the right to bear arms during the founding era.”)....

This Court is not a trained historian.  The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.  See id. at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians.”).  And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.  Yet we are now expected to play historian in the name of constitutional adjudication....

Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter.  See Fed. R. Evid. 706.  This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.  An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions. 

As many of the readers of this blog surely know, the author of this interesting order is not just a federal district judge, he is also the new Chair of the US Sentencing Commission. Interesting times.

Prior recent related posts:

November 1, 2022 at 10:34 PM | Permalink


Judge Reeves is a Virginia man, U.Va. undergrad and law school. He will figure it out and get it right! And I am sure that some historians from The University will be glad to help him do it.

Posted by: Jim Gormley | Nov 1, 2022 11:03:42 PM

I think Judge Reeves went to Jackson State for his undergrad, Jim.

Posted by: Doug B | Nov 2, 2022 9:04:53 AM

Why does he need the parties to tell him if he should appoint a historian? If he needs one, he can appoint a special master no matter what their views may be.

Judges are routinely called upon to decided questions in areas outside their expertise (mental health and brain functioning, for example). This is no different.

I might note that Judge Reeves is a big liberal, and that the liberals on SCOTUS have routinely voted in support of more gun regulation, not less. This makes me pretty convinced that FIP statutes are safe (with the three liberals plus Kavanaugh, Roberts and perhaps Alito) voting that they are consistent with the Second Amendment.

Posted by: Bill Otis | Nov 2, 2022 11:00:44 AM

I agree w/Bill that he could just appoint a a special mast. And to build on the mental health analog, the parties routinely retain experts on this. I would imagine both sides will be seeking to retain historians.

But as for affirming the regulation in question, is there a historical analog? Is that why you think the reg is safe? Or are you just pointing up policy preferences of various judges that will be the actual drivers of the outcome?

Posted by: John | Nov 2, 2022 2:05:18 PM

I am not sure that a special master is what is being sought. The judge is not wanting to appoint somebody to decide the matter. Instead, he is asking for the party's position (which he can disregard after getting them) on whether this case is appropriate for a court-appointed expert (who would then provide opinions on the disputed issues like the experts that the parties will retain) under Rule 706 of the Federal Rules of Evidence. Under Rule 706, before appointing such an expert, the judge is required to get the input of the parties.

The real problem (which I think is what the judge is expecting and wants on the record) is that any honest and competent legal historian will ultimately conclude that he can't answer the question set forth in Bruen. There are too many things that have changed since 1791 (the role of the militia, the nature of the weapons) to draw any fair analogy from the regulations that were common in 1791 to what modern regulations would be functionally equivalent to those regulations. Simply put, the majority in Bruen opted for an unworkable test (which is completely subjective) for the usual test (compelling interest) that, while still partially subjective, can at least be objectively analyzed.

Posted by: tmm | Nov 2, 2022 5:51:26 PM

I don't think the court is wanting a special master to decide the issue based on information provided by the parties. Instead, given that the two sides will be hiring retained experts to "cherry pick" the history that favors their side, the court wants an independent expert to give a neutral evaluation of the historical evidence. Such an expert is expressly authorized by Rule 706 of the Rules of Evidence but requires that the court get input from the parties (which can be discounted) before proceeding to appoint such an expert (who is then subject to the same rules as the experts retained by the parties).

The judge may, and probably does, hope that the expert's response is that the question posed by Bruen can't be answered. That too much has changed (the purpose of the militia, the nature of weapons) to compare modern regulations to the regulations used in 1791.

Posted by: tmm | Nov 2, 2022 5:57:54 PM

Sorry for the multiple posts, computer issues made it seem like posts weren't going through.

Posted by: tmm | Nov 3, 2022 11:05:15 AM

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