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The Supreme Court’s bad history

The Hill logo The Hill 11/16/2022 Steven Lubet, Opinion Contributor
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The six conservative justice on the U.S. Supreme Court have seemingly come to think of themselves as historians, able to excavate the original meaning of the Constitution from archival sources revealed to them in the briefs of petitioners and respondents. The result has been bad history and worse law, culminating in last term’s New York State Rifle & Pistol Association v. Bruen, where the majority invalidated New York’s restrictions on carrying concealed handguns because it was deemed inconsistent with “this nation’s historical tradition of firearm regulation.”

According to Justice Clarence Thomas’s opinion, a gun control statute can be upheld only if there is an “American tradition justifying” its specific provisions, meaning similar laws in force around 1791 (when the Second Amendment was adopted) or 1868 (when the Fourteenth Amendment was ratified, which made the Bill of Rights applicable to the states).

It turns out, however, that historical similarity is in the eye of the beholder. Thomas thus dismissed the many 19th century gun control laws as non-analogous “outliers,” while privileging “his own preferred sources” to conclude that “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”

Actual historians quickly pointed out the flaws in Thomas’s law office history, pointing out numerous precedents for the New York law in question. As Fordham’s Saul Cornell explained, “a host of localities had enacted similar laws starting in the 1870s,” almost immediately following ratification of the Fourteenth Amendment, which should have provided ample historical support for the New York statute. Thomas actually acknowledged in a footnote that he based his analysis only “on the historical record compiled by the parties,” rather than original research, which allowed him to scan the briefs and “pick out his friends,” as Chief Justice John Roberts once described judges’ selective use of evidence.

It is unsurprising that poor history leads to unmanageable law. Three lower court judges recently discovered that the Bruen standard is almost impossible to apply reasonably to contemporary circumstances. As Slate’s Mark Joseph Stern put it, “modern technology has made guns vastly more powerful and deadly, and the exponential growth in population creates new challenges that were not present hundreds of years ago.”

District Judge Joseph Goodwin, sitting in West Virginia, determined that he could not enforce the federal criminal law against knowing possession of a firearm with an obliterated serial number despite “the usefulness of serial numbers in solving gun crimes.” The Bruen opinion, as Judge Goodwin noted, did not permit him to consider the government’s crucial interest in apprehending criminals and saving lives, but instead limited him to searching for a “historical tradition” of potentially similar laws.

Of course, there were no such laws. Serial numbers were unknown in 1791; they came into wide use only with the advent of mass production of firearms. “The first legal requirement for serial numbers did not appear until 1934,” and then only for machine guns; their removal was not criminalized until 1938. “Serial numbers were not broadly required for all firearms . . . until the passage of the Gun Control Act of 1968,” 100 years after ratification of the Fourteenth Amendment.

Although “firearms with an obliterated serial number are likely to be used in violent crime,” Judge Goodwin recognized that “the Supreme Court has forbidden me from considering” public safety or crime prevention. And because “serial numbers were not required or even commonly used” in the relevant time periods, he reluctantly held that “the modern regulation is unconstitutional” under the Second Amendment.

Mississippi District Judge Carlton Reeves faced a similar problem in a prosecution under “the federal statute prohibiting felons from possessing firearms.” The defendant argued that “Founding‐era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” while the government asserted that the law was indeed “part of the historical tradition of regulating firearms possession.”

Reeves was at a loss. “Historical consensus on this issue is elusive,” he said, and “this Court is not a trained historian.” In an unusually sharp critique of the Supreme Court, he added that the justices “distinguished as they may be, are not trained historians.”

Moreover, no judges are “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.”

Rather than “cherry-pick the history” himself, Reeves therefore proposed to “appoint a historian to serve as a consulting expert . . . to help the Court identify and sift through authoritative sources on founding‐era firearms restrictions.”

Even domestic abusers get a pass under Bruen, as Texas District Court Judge David Counts ruled in U.S. v. Perez-Gallan. With “historical analysis being the only tool” permitted, Counts determined that the Second Amendment required him to dismiss charges against a gun-carrying defendant who was under a restraining order for “threatening . . . domestic violence.”

Although a 1994 federal statute criminalized such gun possession, Counts found that “Protective orders for domestic violence [are] a recent legal invention, and until the 1970s,” prosecution for domestic violence, “much less removing an individual’s firearms . . . practically did not exist.”

If anything, the historical sources were to the contrary, he noted, citing an 1874 North Carolina court’s observation that in the absence of “permanent injury . . . it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”

Given the nearly total absence from the historical record of the “government removing firearms from someone accused (or even convicted) of domestic violence,” Counts declared the federal gun control statute unconstitutional.

In 2008, Justice Antonin Scalia wrote the majority opinion in District of Columbia v. Heller, which established an individual right to carry firearms. He declared that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by . . . the mentally ill.” Although Scalia’s reassuring dictum has been repeated by Justices Samuel Alito and Brett Kavanaugh, it is far from certain that such a regulation could pass the Bruen test. No justice has identified a historically analogous mental health statute dating to 1791 or 1868 — perhaps because there is none.

Under Bruen, a silent historical record disables the courts and law enforcement from protecting the population from mayhem. Ghost guns, armed felons and domestic abusers may be shielded by the Constitution in ways that vulnerable school children are not.

Many observers have characterized Thomas’s approach as cherry picking, but that is too generous. Cherry picking, after all, at least yields something worth having. Bruen’s holding, in contrast, just leaves a dangerous mess.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of four books on 19th Century legal history, including “Murder in Tombstone: The Forgotten Trial of Wyatt Earp,” which discusses gun control legislation in the Old West.

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