Orderly Society Laws Flashcards
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.
In fact, one of the government’s cited laws affirmatively shows that legislatures do not have this power under the Second Amendment. In the Militia Act of 1662, King Charles II claimed the power to disarm anyone he considered dangerous. This law catalyzed the English to codify a right to bear arms in the English Bill of Rights, which is the precursor to the Second Amendment. So, that’s strong evidence that the government does not have this general power to decide at its discretion who is dangerous enough to be disarmed.
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.
What about this random regulation I plucked out of Range?
I’ll be honest your honor, I’m not familiar with that one. But I’m happy to take a look at it and submit a 28(j) letter.
