Surety Statutes Flashcards
You say that surety statutes weren’t “bans.” But when I think of the term “ban,” I think of a long-term, persistent prohibition. This one is temporary. Why doesn’t that help us understand the “how” here?
• I take your honor to be referring to the portion of Bruen distinguishing a firearms “ban” from a surety statute. And in the part of Bruen, the Supreme Court meant that there is no evidence these statutes “ever prevented anyone from ____.” And it specifically identified two ways in which surety statutes didn’t impose “a ban”: (1) They allowed the accused to go on carrying after identifying a surety, and (2) they had exemptions for self-defense. Bruen did not rely on or even mention the fact that surety statutes were temporary. Not only do both of these distinctions apply equally to Standard Condition #4. There is also the additional, critical distinction that surety statutes only applied to public carry, while Standard Condition #4 applies to the home. So, the mere fact that both statutes are “temporary” cannot overcome these glaring differences.
Isn’t it also the case that there’s been some individualized finding of wrongdoing and danger here? In Bruen, there was neither.
Yes, your honor, but surety statutes didn’t get target generic danger or wrongdoing. They require a “specific showing” that someone had threatened to do harm with a firearm. Bruen tells us that merely carrying a gun did not fit the bill. The findings for Mr. Perez-Garcia fail on that score, because the court relied almost entirely on the fact that Mr. Perez-Garcia was charged with a drug crime—a generic, not specific, showing. Bruen also says that just carrying a firearm did not breach the peace. And Mr. Fencl has been charged only with unlicensed public carry and having unlawful firearms in his home.
Didn’t the government identify a whole slew of founding-era surety statutes?
No, your honor, at least not the kinds of surety statutes relied on by the district courts and discussed in Bruen. Bruen’s surety statutes imposed a surety requirement on a “specific showing” that the person was reasonably likely to breach the peace with a firearm. The government’s Massachusetts and New Hampshire statutes applied only after someone had intentionally spread fear or terror with a weapon. And all the rest of the laws are even further afield, because they aren’t “firearms regulations” at all. They don’t result from firearms misuse or impose a surety requirement before someone carries firearms. So, these laws are not only subject to all of the same distinctions as the laws in Bruen, but they’re even further afield.
Doesn’t William Rawle’s treatise predate the supposed 19th century surety statutes? Doesn’t that show that surety statutes predate the nineteenth century?
Yes, your honor. But Bruen held that that treatise shed light on 19th century surety statutes, and that conclusion is binding on this Court.
Not necessarily, your honor. It could just as easily show that this “influential treatise” influenced the drafting of the mid-nineteenth century laws. Regardless, it is the government’s burden to come forward with regulations, and they have only identified affray statutes and statutes that involve sureties but not firearms.
Didn’t both district courts find that your clients were likely to “breach the peace” b/c they would pose a danger to the community with firearms? And don’t we review that deferentially?
The courts did say that, but (1) they presented no historical evidence about what “breach of the peace” meant, (2) their factual findings do not conform to what Bruen tells us about surety statutes. On the second point, Bruen says that breaches of the peace required a specific showing of firearms related violence. [get treatise AND district court opinion AND only case about it]. The findings for Mr. Perez-Garcia fail on that score, because the court relied almost entirely on the fact that Mr. Perez-Garcia was charged with a drug crime—a generic, not specific, showing. Bruen also says that just carrying a firearm did not breach the peace. And Mr. Fencl has been charged only with unlicensed public carry and having unlawful firearms in his home.
As for standard of review, your honors review the courts’ factual findings for clear error but make a de novo review of whether those findings actually support the bail order in light of the defendant’s statutory and constitutional rights. [GET CASE]
Doesn’t affray also have to do with dangerous and unusual weapons? Doesn’t Fencl’s case fit the bill?
• The government hasn’t offered any evidence about dangerous and usual weapons, so we’d ask your honors to reject any such argument or, at a minimum, order supplemental briefing. But I will just add that affray is about going publically armed to intentionally spread fear and terror, while the allegedly unlawful arms were found in Mr. Fencl’s home and were never intentionally used to spread fear or terror.
