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December 13, 2022

Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim

In this post last month, I flagged a fascinating order authored by US District Judge Carlton Reeves in a case in which a defendant was brining a Second Amendment challenge to the federal criminal statute prohibiting felons from possessing firearm.  In the order, Judge Reeves, after stressing the Supreme Court's recent re-orientation of Second Amendment jurisprudence, asked the parties whether he "should appoint a historian to serve as a consulting expert in this matter" because the "Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals," and so an "expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions."

Today, as reported here by CNN, the Department of Justice filed its reponse to the order, and it "is advising a federal judge in Mississippi that he does not need to hire a historian to determine whether a contested gun law complies with the Supreme Court’s most recent Second Amendment opinion. Here is more from the CNN piece:

In the new filing, the Biden administration defended a federal statute barring felons from possessing firearms and urged the court not to hire an historian, arguing that the government should win the case without such an intervention.  “Our legal tradition rests in large part on the responsibility of the parties to present materials necessary to support their legal positions,” a government lawyer said in the new brief.

“The prospect of judges in all 94 federal judicial districts retaining a historian would be an expensive proposition and a departure from the typical reliance on the parties to provide support for their legal positions,” US Attorney Darren J. LaMarca wrote.

The Government's full nine-page filing is available at this link, and he is one of many interesting passages:

This Court ... should look to the parties to provide any necessary support for their positions as to whether the “the Second Amendment’s plain text” extends a right to keep and bear arms to persons convicted of felony offenses and, if so, whether barring them from possessing firearms “is consistent with this Nation’s historical tradition of firearms regulation.”  Bruen, 142 S.Ct. at 2130.  If the Court concludes that a detailed analysis of these issues is necessary to resolve this case, the Government stands ready to submit further and more detailed briefing as ordered by the Court.  The Government anticipates that such materials would provide ample basis for deciding the motion pending in this case.  See, e.g., Range, 53 F.4th at 266 (“the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition”).  Following our standard adversarial practice, the Court then can decide which of the competing perspectives is the more persuasive, supplemented with the Court’s own examination of the historical record as illuminated by the parties.

Some prior recent related posts:

December 13, 2022 at 05:44 PM | Permalink


Wouldn't an invitation to file amicus briefs serve much the same purpose?

Posted by: MBC | Dec 13, 2022 10:35:37 PM

A good question, MBC, but I am unsure if payment may be part of the process when there is on official court appointment of an expert. Also, I suppose, inviting amicus might lead to a (different) type of selection bias than would court appointment.

Posted by: Doug B. | Dec 14, 2022 10:35:16 AM

Payment for services is part of the process when the court retains an expert. It has happened occasionally in my district on competency matters. The competency/insanity statutes don't contemplate a defendant being on bond, and once I have my client evaluated, the court can hire someone if the government refuses to pay to do it locally and only wants client to be shipped off to a prison hospital.

Posted by: defendergirl | Dec 14, 2022 11:45:12 AM

The question is whether legal history is a question of law (on which lawyers and judges are sufficiently competent) or a question of fact (in which case an expert qualified to evaluate the data might be necessary). While certainly the tradition is to allow the parties to present such expertise as is required, the rules of evidence do permit the court to hire its own attorney.

On the question of couldn't amici do it, amici have an "interest" in the case (and thus will cherry pick the history to support their predetermined outcome) whereas a court expert is supposed to be doing a neutral evaluation.

The judge's initial position seems to be that history (even legal history) is a question of fact rather than law and thus an expert who understands the proper way to analyze competing historical claims would be beneficial. I don't know that the DOJ response addresses that concern.

Posted by: tmm | Dec 14, 2022 1:46:37 PM

I do have problems with the prosecutor's framing of the question as whether the right extends as compared whether the history supports a denial. If (as I suspect) the evidence is equivocal then how you frame the question matters very much.

Posted by: Soronel Haetir | Dec 14, 2022 2:04:49 PM

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