Calling All Gun Historians
Judges are increasingly looking to the past to chart the future of firearm jurisprudence.
A recession could be coming to America, but it appears that boom times are ahead for historians, at least those who specialize in guns. That possibility emerged as a federal district court judge in Mississippi, Carleton Reeves, snapped back at the Supreme Court.
The target of Judge Reeves’s ire was New York State Rifle & Pistol Association v. Bruen, decided in June. In Bruen, the Nine struck down a set of Empire State gun licensing requirements as unduly onerous and an impermissible infringement on the Constitution’s promises of “the right of the people to keep and bear Arms.”
In arriving at that ruling, Justice Clarence Thomas wrote that for a restriction on gun ownership to pass constitutional muster it needs to be “consistent with this Nation’s historical tradition of firearm regulation.” In other words, only regulations of a vintage so antique that it stretches back into the nation’s infancy will pass muster, at least under the Bruen majority.
In words that signal exasperation with trying to adhere to this standard in his own courtroom, Judge Reeves noted that the “justices of the Supreme Court, as distinguished as they may be, are not trained historians.” After Bruen, he lamented, the high court required him to “play historian in the name of constitutional adjudication.”
The Second Amendment has long been fertile turf for historical grazing, not to mention grammatical scrutiny. The relationship between the “well ordered Militia” invoked in its first clause and right to “keep and bear Arms” in its second has occasioned tomes on colonial self-defense and constitutional prose. In Bruen, Justice Thomas trained his sights on “history and tradition.”
Judge Reeves gave both parties a month to brief him on whether he should appoint a historian to opine on whether restrictions on felons owning firearms were of requisite venerability. His order explained that “not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter.”
This turn towards history as a decisive maneuver in evaluating present day constitutionality was echoed in Dobbs v. Jackson Women’s Health Organization. In his majority opinion, Justice Samuel Alito marshals “historical evidence” for the “inescapable conclusion” that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” It was, he adjudged, foreign to “ordered liberty.”
Justice Alito found “no support in American law for a constitutional right to obtain an abortion” before the end of the last century. For him as for Justice Thomas, constitutional rights cannot emerge ex nihilo, but needed to have been present all along. Unlike Judge Reeves, they (and their clerks) appear comfortable to do the historical sleuthing themselves.
Bruen is not the only recent case centering on Empire State gun restrictions to have occasioned a historical turn. In Antonyuk v. Hochul, a federal district judge at Syracuse, Glenn Suddaby, stayed, among other measures, New York state’s designation that an expanded Times Square district was a “gun free zone.” That notion was cooked up in the days after Bruen struck down New York’s carry permit process on both Second and 14th Amendment grounds.
Judge Suddaby ruled that it was “not permissible” for Albany to make Times Square off-limits to concealed carry. He arrived at that conclusion by sifting through “historical analogues.” The judge entertained the argument that “historical statutes banning the carrying of guns in ‘fairs or markets’ are analogous to this prohibition,” before dismissing it.
“Two statutes,” Judge Suddaby explains, “do not make a tradition.” Mayor Adams denounced the decision, thundering that “once again, the courts have opened up another river leading to the sea of gun violence, making it harder for us to protect New Yorkers.”
Judge Suddaby’s ruling is itself temporarily on hold pending review of the case by the riders of the Second Circuit of the United States Court of Appeals.
As for Judge Reeves, although he eschews the role of historian, he is no stranger to the annals of America’s past. In 2019, he was awarded the Thomas Jefferson Foundation’s Medal in Law. The foundation “seeks to bring history forward into national and global dialogues.”