Detention Flashcards
Isn’t the whole point of originalism to determine how the public would have understood the reach of the Second Amendment? And so isn’t it fair game to say that the public would not have understood people who could be detained to have the right to bear arms?
Two answers: One, Bruen tells us that the public would have understood the Second Amendment as codifying a preexisting right, and that we determine the scope of that preexisting right by looking to actual regulations.
o “We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” D.C. v. Heller, 554 U.S. 570, 592 (2008)
• Second, the government offers no evidence that the public would have thought a released person to have no greater rights than a detained person–even though they have the burden. That is certainly not how we think of rights today, as we and our amicus Civil Rights Corp have extensively briefed. And the Eighth Amendment supports the opposite inference. On the government’s theory, the power to make an offense non-bailable would imply the right to impose bail in any amount. But instead, the Constitution says that if someone is admitted to bail, that bail must not be excessive.
Do you agree that there’s no right to bail?
I’m not prepared to concede that. There are scholars that have the opposite view, which I can send in a 28(j) letter.
• But in prior cases, like Lopez-Valenzuela, this Court hasn’t gotten bogged down in that debate because it has recognized that there is a fundamental right to liberty. That right to liberty–along with the presumption of innocence–set the baseline. And whenever the government seeks to infringe on the rights of the presumptively innocent, they’ve had to justify those infringements under constitutional standards. That’s a major logical flaw in the government’s argument. The government just assumes that criminal accusation confers broad power to infringe on rights….
But in the colonial period, weren’t capital defendants - i.e., pretty much all felony charges - excluded from bail?
Not quite, your honor. They did not have an automatic right to bail but could be bailed in a judge’s discretion.
• And the government has not offered any historical evidence concerning the rights of persons released on bail. The government certainly hasn’t shown that any of these releasees were subject to complete disarmament. And the government has not even offered evidence for this more abstract theory that releasees were thought to have the same rights as detainees.
Do you agree that pretty all felonies in the U.S. were at least punishable by death during the founding era? And should we be applying the same rules to all felonies or only offenses that were felonies at the founding?
• I don’t agree with that. Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019): “Admittedly, the penalties for many felony crimes quickly became less severe in the decades following American independence and, by 1820, forfeiture had ‘virtually disappeared in the United States.’” Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461, 468, 473 (2009).
• I think Bruen doesn’t provide a clear answer for the second question (?? - on the one hand, says guns in common use evolve with the times. On the other, requires sticking to the balance struck by founding-era legislatures.)
• The larger point I’d like to make, though, is that many bail schemes–including the federal one–allowed for discretionary release of even capital defendants. And the government has not submitted any evidence showing that those individuals either were disarmed, or even the more abstract notion that they were considered to have the same rights as if they’d been detained.
But legislatures have long had broad power over detention and bail, is that right?
I wouldn’t concede that your honor. The only particular statute the government has cited is the Judiciary Act of 1789, which required bail in some cases, allowed bail in all cases, and stayed the same until the twentieth century. So that law does not point to unconstrained power over all matters bail-related.
• [Part II describes the federal right to bail provided by the Judiciary Act for the first two centuries of independence. Though expressed in different words, it is identical in substance to the “Consensus Right to Bail Clause” derived from state constitutions. For 200 years in the federal justice system, bail was a matter of right for all noncapital crimes and a matter of discretion for capital crimes.” Matthew J. Hegreness, America’s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 914 (2013)]
• But the larger problem with this argument is that Bruen does not allow the government to validate a regulation by showing its broad power or discretion in a particular area. What it requires is a sufficiently similar regulation.
Ok, so explain why detention is not a sufficiently similar regulation?
Sure, your honor. So first, as explained in our briefing, the straightforward inquiry for longstanding social problems applies here. Because the potential for gun violence from releasees existed in the founding era, and the founders could have adopted the solution or ordering releasees not to bear arms, we have to ask whether the founders adopted the same or a distinctly similar solution.
• And here, there is no evidence that the founders disarmed releasees and detainees alike. So far as the record shows, they disarmed detainees while allowing releasees to keep their arms.
• Even on the framework applicable to novel problems, this comparison still fails. In that framework, we’d ask “how and why” the regulation applied. The government hasn’t put in any evidence this, but presumably, the how would be the same. There is an obvious difference, though, in the “why.” There’s a need to maintain prison security and keep people from escaping. Those issues do not arise for someone already on release.
I know your arguments for why the power to detain doesn’t necessarily encompass the power to deny liberties. But don’t we have a couple cases going the other way? The Kaley case and the Stephens case?
In cases prior to Kaley, the Supreme Court had already balanced competing interests to determine that the government’s interest in recovering ill gotten gains could outweigh the defendant’s Sixth Amendment interests in choice of counsel. So as long as there was probable cause for the crime and sufficient reason to think that a pot of money would be forfeitable, the government could freeze it. Kaley confronted a different question, which is who determines probable cause - grand jury or judge? Kaley said grand jury was good enough. And it reasoned that if we trust grand juries with probable cause determinations that can result in loss of liberty, they must also be trusted with these kinds of determinations. So, Kaley was not answering the baseline question of whether and when Sixth Amendment liberties can be infringed - that was done earlier through appilcation of the proper co
Doesn’t the Stephens case show that Congress can set even mandatory conditions without an individualized determination? And didn’t the Eighth Circuit rely on the detention power to get there?
Stephens is an Eighth Circuit case. This Court’s decisions in Scott and Lopez-Valenzuela control over Stephens.
• Stephens is also distingiushable in many of the same ways that Salerno is. It involves a facial challenge under the Fifth and Eighth Amendments. It says nothing about a circumstance-specific Second Amendment challenge. And it predates Bruen.
What if we buy the government’s detention theory? How should we decide who could have been detained at the founding?
