Analytical Framework Flashcards
I’m not sure I buy this idea that Bruen draws hard and fast boundaries between persistent social problems and novel problems, prohibiting any analogical reasoning from the former. Doesn’t it just say that for persistent social problems, the lack of a distinctly similar regulation is “relevant evidence”?
• Yes, your honor, but then it goes on to explain that Heller and Bruen modeled the “straightforward inquiry” applicable to longstanding social problems. And it distinguishes that inquiry from the more “nuanced” approach that applies to more novel circumstances. A fair reading of that section draws a clear distinction between longstanding social problems and more novel circumstances. And it makes clear that the absence of a distinctly similar historical regulation is meaningful in the former circumstance.
But so much has changed about pretrial release. Gun violence, pretrial services, crime rates, etc.
Two answers: One, the same could be said for the problem confronted in Heller and Bruen: “handgun violence, primarily in urban areas.” And the dissent pointed out these kinds of changes, like population growth and the genesis of professionalized police forces. But none of these kinds of changes sufficed to move the social problem into the “novel” category.
• Two, to support that, the government would have to submit evidence, which they haven’t done.
So, what would fall into this “unimaginable at the founding” category?
• I think a great example from the Bruen oral argument is the New York subway. Following Bruen, New York has designated the subway a “sensitive place.” To evaluate that law, courts are not going to be able to do the kind of “straightforward” inquiry describe in Bruen. They’re almost certainly going to have to analogize.
Isn’t Bruen really stupid? Doesn’t it provide no workable standards? I’m not a historian.
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How can the government ever meet its burden on your theory? It seems like you’re asking for a “dead ringer” or a “historical twin.”
We acknowledge that Bruen doesn’t require a perfect match. But here, the government hasn’t even come close. The government hasn’t offered any evidence at all about the rights of pretrial releasees. And it has relied on a variety of founding era laws that aren’t even close to the complete firearms ban here and that don’t apply in circumstances like my clients’.
