The Reeves Process

What a constitutional contest is opened by the remarks of Judge Carlton Reeves of the United States District Court at Jackson, Mississippi. His Honor is complaining that the justices of the Supreme Court want the lower courts to “play historian.” This arises because of Justice Clarence Thomas’s remarks about the Second Amendment, and now Judge Reeves is talking about hiring a historian to fight — so to speak — fire with fire.In New York State Rifle & Pistol Association v. Bruen, Justice Thomas signaled that only restrictions “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster. The justice offered his own historical precis as ballast to the majority’s holding that the Empire State’s permitting regulations on concealed carry were unconstitutionally arduous. We look, the justice instructed, to “history and tradition.”It fell to Judge Reeves to parse what this ruling issued from the constitutional mountaintop signified for the case he was adjudicating in the statutory valley. It was a case that concerned the ability of convicted felons to bear arms. He lamented that the Nine conscripted him to “play historian in the name of constitutional adjudication” and, in a seeming swipe, suggested that the “justices of the Supreme Court, as distinguished as they may be, are not trained historians.”Confessing to the limits of his own expertise, as well, Judge Reeves admitted “we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791.” So Judge Reeves is contemplating turning to the experts. He has ordered both the Justice Department and the felon challenging the law, Jessie Bullock, to advise him on whether a court-appointed historian is in order.It is not only Justice Thomas who sees in the history books an aversion to restrictions on gun ownership. In Antonyuk v. Hochul, a federal district judge in upstate New York, Glenn Suddaby, halted Albany’s effort to declare Greater Times Square a “Gun-Free Zone.” Judge Suddaby cited “historical analogues found thus far.” The case is before the Second Circuit riders. No word if they want to retain a historian.One need not be Edward Gibbon, after all, to unearth the fact that in 1788, New York ratified the federal Constitution only with the caveat that it would be amended with a Bill of Rights to protect, among other things, “a right to keep and bear Arms.” The rights bill includes the Second Amendment no less than the First, Fifth, or Sixth. Forty four states embed this right in their state constitutions.On Friday, another federal district judge, John Sinatra Jr., extended a hold that has enjoined New York from enforcing another part of its post-Bruen gun law, a ban on firearms in places of worship. Again, the legal debate turned on the historical record. New York contended there was a precedent for banning guns in sacred spaces, pointing to 19th-century laws in Texas, Georgia, Missouri and Virginia. Judge Sinatra called those laws “outliers.”By which he meant, according to a report in the press association, that they failed to add up to a “tradition of accepted prohibitions.” Judge Sinatra called the provision “inconsistent with the Nation’s historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense.” Justice Thomas’s formulation, it seems, could become a part of due process. We could call it the Reeves Process.

The Reeves Process

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