Law-abiding Citizens Flashcards
Didn’t the Supreme Court itself limit the reach of its reasoning to law-abiding citizens?
No, your honor. As an initial matter, this Court need not decide any questions about whether Bruen is limited to the law-abiding because it would be inconsistent with the presumption of innocence to assume that the accused are not law-abiding. But additionally, Bruen does not adopt a law-abiding limitation on the Second Amendment. The Supreme Court limited the reach of its holding to law-abiding citizens. It made very clear that it was reserving questions about how the government could regulate the law-abiding, because that question wasn’t presented. But the Court adopted a generally applicable methodology for answering future Second Amendment questions.
This is how we think about Supreme Court opinions all the time. For example, when Taylor adopted the categorical approach, it held only that Missouri burglary is not a “violent felony.” But the categorical approach methodology that it adopted must be applied in all future cases, even those that don’t involve Missouri burglary.
Well, Fencl isn’t law-abiding. He’s got a prior misdemeanor.
I think your honor’s question really highlights a serious problem with the whole “law-abiding” theory. It is impossible to decide in a principled way whether someone is law-abiding or not–whether a misdemeanor conviction is disqualifying for example. Judge Bea made this point in his concurring opinion in United States v. Chovan, 735 F.3d 1127, 1147 (9th Cir. 2013). It is just not reasonable to think that the Supreme Court meant to imply this law-abiding limitation without giving any principled basis for it or any way to figure out who counts as a law-abiding person. Rather, it is much more reasonable to think that the Supreme Court was reserving the question of how the government could regulate the non-law-abiding. This is particularly obvious from Heller, which said, that “whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. (emphasis added).
So, we’re supposed to believe that the 14-odd uses of “law-abiding” was just a coincidence?
No, your honor, they served an important function, which was to make clear that the Supreme Court has not yet resolved the question of how the government can regulate the non-law-abiding. That question was not presented in either Heller or Bruen. But as the Seventh Circuit “law-abiding” references do not “resolv[e] questions” about how the government may regulate the non-law-abiding. United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010). Rather, they “t[ell] us that the matters have been left open.” Id. They make abundantly clear that courts should not take it as a foregone conclusion that the non-law-abiding have the same rights, but should evaluate the question using the tools Bruen gives us.
There’s a contradiction in your reasoning. You say that Heller essentially holds that the whole national community comes within the Second Amendment’s scope, yet you also say that Heller and Bruen did not decide who can have a gun.
• I agree that that’s our position, but I’ll try to explain why it’s not contradictory. In Heller, the Supreme Court modeled the methodology of textual analysis courts should do to determine who falls within the scope of the people, and that textual analysis is binding. But Heller did not decide what that methodology meant for any particular group. That said, sometimes that methodology will yield a clear answer, as it does in this case. But other times, it will be harder to apply. For example, courts have struggled with how it applies to undocumented people. So, the government is free to explain why that mode of textual analysis excludes my clients. But the government’s hasn’t tried to do that.
Didn’t the court essentially hold that shall-issue regimes were constitutional because they excluded only the non-law-abiding? Doesn’t that imply that states can prohibit the non-law-abiding from public carry?
No, your honor. The Court did not hold that these regimes were constitutional. Rather, it said that the Bruen opinion did not “suggest the unconstitutionality” of the shall-issue regimes. That language, like other law-abiding language, just limits the opinion to the question before the court. The government goes even one step further and says that Bruen implicitly upheld a handful of laws denying licenses to indictees. But there is no indication that the Supreme Court even knew about those provisions, and questions that “merely lurk in the record” are not resolved.
Heller and Vongxay tell us that it’s presumptively lawful to disarm felons. And your clients are accused of felonies. Shouldn’t we apply that “presumptively lawful” category here, especially given the courts’ specific factual findings that the evidence against your client is strong?
• Presumption of innocence
• Motamedi - “least important” consideration for a reason.
