A Federal Judge Calls Clarence Thomas’ Bluff on Gun Rights and Originalism

Gun Rights

Federal judges are not historians, but they are increasingly obligated to play them on the bench. In his Bruen decision last June, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified. Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun while under indictment for a violent crime, to carry a gun into airports, and to scratch out the serial number on a firearm, rendering it untraceable.

In each case, both sides presented a few scraps of historical evidence to support their positions. Judges based their decisions on those scraps without further research, following Thomas’ suggestion that they rely on “the historical record compiled by the parties.” Last Thursday, Judge Carlton Reeves of the Southern District of Mississippi charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. At worst, it will demonstrate the absurdity and impossibility of Thomas’ command. At best, it will restore sanity to an area of jurisprudence that is going completely off the rails.

Reeves’ order is bracingly honest about the sorry state of Second Amendment jurisprudence today. “The justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote. Federal judges “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. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.” Putting oneself in the mindset of rich, white men in the 18th century requiring training and practice. “Yet we are now expected to play historian in the name of constitutional adjudication.”

To illustrate his point, Reeves wrote that while historians still fiercely contest the theory of an individual right to bear arms, that right remains the law. He quoted the academic Patrick J. Charles, who wrote that advocates of this theory “broke, and continue to break, virtually every norm of historical objectivity and methodology accepted within academia.” Charles’ complaint could be applied to a huge amount of pseudo-originalist legal theory. As he explained: “Minority viewpoints are cast as majority viewpoints. Historical speakers’ and writers’ words are cast in terms outside the bounds of their intended context or audience. The intellectual and political thoughts of different historical eras are explained from modern vantage point. Historical presumptions or inferences are sold as historical facts.”

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Bruen exemplifies these problems. Thomas adopted a tendentious and selective reading of the record, endorsing a false narrative shaped by Republican-allied academics funded by gun rights groups like the NRA. He started with the false premise that the Second Amendment created an individual right to bear arms—a right that the court established for the first time in 2008’s District of Columbia v. Heller—which scholars have comprehensively debunked using originalist tools. He then manipulated or ignored long-established limits on concealed carry to conclude that such restrictions are not rooted in American history.

By appointing a trained historian, Reeves could avoid these pitfalls. He would, indeed, stand a better chance of lighting upon the truth. Even as it may be mandated by Thomas’ Bruen opinion, any such undertaking remains fundamentally misguided: Renowned historian Eric Foner recently dismissed the “foolish” belief that the Constitution has “one original meaning,” since it always meant “different things to a lot of different people” who were involved in its ratification. But a historian will at least get closer to a plausible interpretation than Thomas. And if the whole undertaking fails to produce a good answer, it will have demonstrated the absurdity of defining rights on the basis of history alone.

There’s another, subtler benefit of Reeves’ idea. Bruen stacked the deck against gun restrictions by putting the burden on the government to identify appropriate “historical analogues,” then it let judges limit their review to the government’s findings. As Jake Charles, a scholar at the Duke Center for Firearms Law, noted in June, this framework means that courts can strike down democratically enacted gun restrictions simply because the government lawyer tasked with defending them failed to dig up the necessary evidence. In other words, courts may invalidate lifesaving gun restrictions that are perfectly constitutional as a result of bad lawyering. (Not even bad lawyering, really—just an inability to do a job that is inherently impossible.) And since the burden of justifying a gun law always falls on the government, an incomplete historical record will always tip the scales toward gun rights.

In his Thursday order, the judge wrote that he did not want to “cherry-pick” facts, but gain a comprehensive analysis of firearm regulation in 1791. That approach is especially wise in this context, since challenges to the ban on felon possession of a firearm have proliferated after Bruen. Every former felon charged with illegal firearm possession has an incentive to contest this statute, so countless judges will examine the history behind it. Reeves can preempt a terrible decision rooted in bogus history by allowing his own expert to scrutinize the record and put forth a compelling case one way or the other. And the evidence may be useful beyond this case: Reeves could, for instance, apply the findings toward his work as the chairman of the U.S. Sentencing Commission.

Neither prosecutors nor the defendant have responded to Reeves’ proposal yet, but it would be surprising if either party objected to a professional review of the relevant history. Fairly or not, an objection would create the impression of trying to suppress the truth in favor of their own cherry-picked facts. Ever since Bruen, courts have been stumbling around in the fog of Thomas’ motivated reasoning. Reeves, who is Black, will not pretend that he can divine the intentions of dead white men from the 1790s. His candor—respectful and eloquent as it is—puts Justice Thomas’ fake history to shame.

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