Individual Historical Laws Flashcards
If the historical record shows that legislatures had “broad discretion” to disarm categories of people, shouldn’t we be equally deferential to Congress?
No, your honor. Bruen requires the government to point to sufficiently similar historical laws. It is not enough to point out that Congress has passed laws addressing a particular subject area and infer from there that Congress has broad power to pass a dissimilar law. In fact, if you look back to New York’s briefing in Bruen, that’s exactly the tack that New York took. New York identified a wide variety of regulations on public carry, then declared that legislatures had broad powers to regulate public carry. Bruen rejected that argument and instead looked to the particular laws.
The court in Range went through a whole slew of historical laws and concluded that legislatures can categorically disarm persons deemed out of step with legal norms, even if they aren’t dangerous. Now, the defense attorney is effectively conceding that these same laws support drawing the line at dangerousness. Why shouldn’t we do the same and affirm this case?
We disagree. To overgeneralized.
• Also, notably Range dealt with felonies and felony equivalents. Even the Range court made clear that its reasoning didn’t necessarily extend to misdemeanors.
Shouldn’t we defer to Congress’s views of who is dangerous?
• Congress doesn’t set the scope of the Constitution; the Constitution limits the scope of Congress’s power. (Bea makes this point in the Chovan dissent–the fact that we’re talking about a constitutional limit means that it’s inappropriate to defer to Congress.)
Let’s say we agree that dangerousness is the line. any dangerous person can be disarmed. Do you lose?
• I think it would depend on how your honors implemented the dangerousness line. In the vacated Range opinion, for example, the panel said that courts should just defer to Congress about which groups are sufficiently dangerous or out of step with legal norms to warrant disarmament. If that’s the approach your honors take, then yes, I think we would lose. But that approach would also be directly contrary to Bruen’s command not to defer to legislative interest balancing. And it would also undermine the very point of a constitutional right, which is to hem in Congress’s regulatory power. If your honors instead performed an analysis similar to the intermediate scrutiny analysis in Chovan, I think we’d also lose. But that again would be reinstituting a standard that Bruen expressly disavowed.
• If your honors instead stuck close to the historical record, I don’t think the dangerousness line would be fatal to our position. And that’s particularly true because of how broadly this statute sweeps. [Go into that
Do you agree that people who commit domestic violence pose a genuine danger with a gun? Researchers have even found connections between intimate partner violence and mass shootings. (Natalie Nanasi, Disarming Domestic Abusers, 14 Harv. L. & Pol’y Rev. 559, 565 (2020))
Some of them, yes. And we are in no way denying seriousness of domestic violence or the risks that it poses. But I do think it’s relevant to the Bruen analysis to think about just how broadly this statute sweeps. Under Supreme Court precedent, ….
• [Brainstorm how to deal with this.]
Weren’t historical laws overbroad as well? Weren’t the Founders disarming all enslaved people, all Catholics, everyone who wouldn’t swear a loyalty oath–even though not all of these individuals were “dangerous”? In fact, isn’t this law much more targeted to a genuinely dangerous group, a group that has been convicted of committing an act of violence beyond a reasonable doubt with all the attendant procedural protections of the criminal legal system?
• First of all, many of the laws your honor just listed are not proper comparators.
• But even assuming they are, Bruen doesn’t allow the kind of overgeneralization that underlies the government’s “dangerousness” theory
So, on your theory, legislatures have no power to regulate people who commit acts of domestic violence in the home? We just have to let them have guns even though they’re way more likely to kill someone?
No, your honor, that’s not our position. Our position that, under Bruen, Congress cannot impose a lifetime firearms possession ban solely because a person has sustained the kind of misdemeanor offense describe in 922(g)(9). But that doesn’t preclude Congress from passing a more tailored law that hews more closely to the historical tradition.
Do you agree with then-Judge Barrett’s assessment that “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety”?
• It is certainly true that some founding-era laws targeted some groups deemed dangerous. But under Bruen, the government may not derive a broad and general power to regulate “dangerous” groups from these narrow and specific regulations. We see this in Bruen itself. In Bruen, New York argued that founding-era legislatures regulated public carry in a variety of ways, using sensitive places laws, surety statutes, affray laws, and the like. But the Supreme Court refused to derive a broad and general power to “regulate public carry” from these narrow and specific regulations.
• Courts have to dig in to the details. And when you do that with the “dangerousness” laws here, the government’s comparisons fall apart.
• Take, for instance, laws targeting enslaved people and Native Americans
Didn’t Judge Barrett specifically conclude that DVMs could be disarmed consistent with the Second Amendment
She used DVMs as an example when illustrating two different approaches to categorical possession bans. But she did not conduct the kind of targeted analysis of DVMs that is required here.
What about the Pennsylvania and Massachusetts constitutional convention proposals?
(1) None of the relevant limiting language from those
conventions made its way into the Second Amendment (never enacted = not regulations);
(2) New Hampshire’s proposal—the least restrictive of the
three—was the only proposal to carry a majority of its
convention;
(3) proposals from other states that advocated a
constitutional right to arms did not contain similar
language of limitation or exclusion; and
(4) similar limitations or exclusions do not appear in any of
the four parallel state constitutional provisions enacted
before ratification of the Second Amendment.
I know that Range was vacated, but we can still consider it for its persuasive value, right?
That’s right. But Range is not persuasive, and that’s why it was so quickly vacated. First, Range’s methods were not appropriate under Bruen. Range did not apply the framework that Bruen and Heller laid out. For example, it didn’t follow Heller’s instructions for analyzing text. And it derived these really broad and general powers from a smattering of particular regulations, which is also not allowed under Bruen. Unsurprisingly, it reached the conclusion that legislatures have broad discretion to identify and disarm groups who threaten “an orderly society and compliance with its legal norms.” That’s exactly the kind of deference to legislative interest balancing that Bruen was trying to avoid.
Do you agree that the laws cited by Range at least allowed the government to disarm dangerous people?
• I think that the government has pointed to some regulations that target certain types of danger. For instance, affray laws made it a criminal offense to spread fear and terror with weapons. So that historical tradition might allow the government to disarm those kinds of “dangerous” people. But what the government has tried to do here is to say that historical laws guarded against particular dangers, the government can disarm anyone that the government deems dangerous. And that kind of overgeneralization is not allowed under Bruen.
Range distinguishes between whether people were disarmed because they were actually dangerous or whether they were disarmed because they violated legal norms. Where do you come down on that?
• I think those sorts of descriptors are too general to satisfy Bruen. I think Bruen requires courts to look at the particular regulation and ask what kinds of dangers or what kinds of legal norms the law targets and compare those specific features to the challenged law. And when you don’t do that, there’s no real principled way to decide whether a particular law is about “danger” or “untrustworthiness” or “legal norms” or “disruptiveness.” These are all descriptions that the government comes up with, and it hasn’t provided any principled guidance for how your honors would choose between them
But criminals lacked other rights, like voting.
Yes, your honor. But voting is a civic or collective right, similar to serving on juries. A criminal conviction can exclude a person from these kinds of rights. But Heller holds that the Second Amendment codifies an individual right, like the rights protected in the First and Fourth Amendments. And a person retains their individual rights even following conviction. Then-Judge Barrett has a detailed discussion of this difference in her Kanter v. Barr dissent.
• Voting rights are also illuminating in another respect: These exclusions were written explicitly in state constitutions. It is therefore notable that, in contrast, we do not see any explicit exclusion from the Second Amendment right in any constitutional provision or any law.
Isn’t the “why” comparable at least? Both are for public safety.
• The “why” has to be assessed at a more particularized level of generality. After all, pretty much any gun law is likely to be motivated by public safety concerns. When you drill down on the exact “why” for X law, [
