Analytical Framework Flashcards
You want us to slot 922(g)(9) in the “longstanding societal problem” category. But in light of women’s current role in society, our newfound sensitivity to domestic violence as an issue, and the fact that women can now vote, shouldn’t we be thinking of this as the kind of problem the Founders would not have anticipated?
• A couple of answers to that. First off, we know from Bruen that not all societal changes will take us out of the “distinctly similar” category. The societal problem in Bruen and Heller was “gun violence in urban areas,” a problem that has changed a lot, but the Supreme Court still subjected it to the “straightforward inquiry” applicable to persistent social issues. Additionally, while our views of women and domestic violence have certainly evolved, there was an awareness in the founding era and before that domestic violence was a problem. And it was one that the law did take steps to address. Blackstone, for instance, recognized that a husband “was prohibited to use any violence to his wife” and notes that wives could invoke the surety system against their husbands. 1 Blackstone
Were there “misdemeanor crimes of domestic violence” in the founding era?
At common law, any battery against any other person would be a misdemeanor. And the law would recognize as a battery some forms of violence against a spouse. Blackstone, for instance, recognized that a husband “was prohibited to use any violence to his wife.” 1 Blackstone 432.
• More importantly, the question under Bruen isn’t whether a misdemeanor crime of domestic violence existed, but whether the problem existed. And we know that domestic violence is not a modern invention.
But how can the government possibly come up with the kind of analogue you’re asking for when founding-era views of women were so backwards, so different from our own? I mean, your position is basically like, “Women were considered essentially their husband’s property back then, so we can’t protect them now.”
• Fortunately, Bruen makes clear that an exact historical twin is not required. The government can point to similar laws, even if they’re not exactly the same. Additionally, while our views of women and domestic violence have certainly evolved, there was an awareness in the founding era and before that domestic violence was a problem. And it was one that the law did take steps to address. Blackstone, for instance, recognized that a husband “was prohibited to use any violence to his wife” and notes that wives could i
Does the government’s historical analogy have to involve DV? Wouldn’t you agree that Perez-Gallan essentially required a DV-specific showing?
• No, your honor, it need not be a historical twin, but it should be distinctly similar.
• As for Perez-Gallan, that case did begin by canvassing the record to see if there were DV-specific comparators, and it concluded that there were not. But it went on to assess whether surety statutes, constitutional convention proposals, loyalty oath statutes, and other comparators were sufficiently close, and it determined that they were not.
But so much has changed about pretrial release. Gun violence, pretrial services, crime rates, expansion of the criminal code, etc.
• I take your honor’s point, but we know from Bruen that these kinds of changes will not take us out of the “distinctly similar” category. The societal problem in Bruen and Heller was “gun violence in urban areas,” a problem that has changed a lot, but the Supreme Court still subjected it to the “straightforward inquiry” applicable to persistent social issues
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.
In the founding era, the law recognized an appalling doctrine called the “right of marital chastisement,” where conduct that might form the basis of a misdemeanor prosecution today was protected. How does that inform our analysis?
• Reprehensible as it was, the right to marital chastisement had its limits, and men could be held to account for acts of violence that crossed the line. As a result, a man could commit an act of misdemeanor battery against his spouse even during the founding era. Additionally, Bruen does not require an exact match in this scenario, but only a distinctly similar law. So it does give the government some flexibility to offer up other laws that did not relate directly to domestic violence
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.
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 has instead offered a hodge podge of laws for the incredibly broad proposition that the legislature can completely disarm any dangerous person. So the problem here isn’t a matter of dead ringers
