Bruen's Goose Does Apply to the Gander

I hate on the Eighth Circuit a lot on this blog -- prerogative of a former clerk -- but one thing I do like about it is that it has largely abjured the over-long, meandering, 100-page for every opinion trend of its sister circuits. The typical Eighth Circuit opinion is, as these things go, short, sweet, and easily digestible. Occasionally this means that some important issues or arguments I believe that deserve parsing in detail get short-changed, but more often than not it simply means they're avoiding navel-gazing and padding.

Yesterday, the Eighth Circuit filed an interesting decision in United States v. Jackson* involving the Second Amendment's applicability to restrictions on gun ownership by non-violent felons. Coming in at a compact 16 pages (8 of which are on other issues), it's easily read by the lay person. But what makes Jackson noteworthy, in my view, is that it expressly avoids a pitfall of the post-Bruen Second Amendment world that I've seen afflict conservative courts and commenters alike. Namely: it recognizes that Bruen's prohibition on means-ends analysis, and treatment of history as the be-all-end-all, applies just as much where the history licenses greater gun restrictions as when it licenses fewer such restrictions.

Quite a few conservative actors have, after happily citing Bruen's history-is-all-that-matters test, turned around and been aghast at the idea that a given historical interpretation might license more gun control than they, personally, are comfortable with or think is defensible as a policy matter. These objections have been leveled with respect to laws that bar persons previously subject to mental health orders from owning firearms (without a showing that they are currently mentally ill) and laws which bar persons subject to domestic violence restraining orders from owning firearms (even without a conviction). In both cases, the complaint was that even to the extent there arguably was historical precedent supporting laws like this (not perfect analogues, of course, but Bruen expressly disclaims the need for a "twin"), the practical consequences of applying those precedents to a case like this would be unreasonable or unfair as a matter of gun policy -- precisely the sort of reasoning that Bruen purports to take off the table.

Jackson, which is about prohibitions on gun ownership by non-violent felons, raises similar issues. It may be "unreasonable" to ban persons convicted of non-violent drug offenses, with no showing that they are in a meaningful sense "dangerous", from possessing firearms. But those arguments have no place in a Bruen world, which exclusively asks what the historical record does and does not permit. And unlike many, Jackson gets this right. It observed:

To be sure, the historical understanding that legislatures have discretion to prohibit possession of firearms by a category of persons such as felons who pose an unacceptable risk of dangerousness may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated. But that result is a product of the method of constitutional interpretation endorsed by Bruen: 

Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.

Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). Cf. Kanter v. Barr, 919 F.3d 437, 465 (7th Cir. 2019) (Barrett, J., dissenting) (concluding before Bruen that Congress cannot dispossess felons based solely on status, and that “a very strong public-interest justification and a close means-end fit” is required before a felon may be subject to a dispossession statute based on dangerousness) (quoting Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017)).

This does not, to be clear, make Bruen a good rule. In many ways, it demonstrates its arbitrariness. But at least correctly applied, Bruen both gives and takes away when it comes to gun regulations. Where the historical record permits a type of gun restriction, legislatures are allowed to impose it no matter how ridiculous or outrageous it might appear. Where the record does not license a type of gun restriction, legislatures are forbidden from utilizing it no matter how essential or necessary it might be. That is not a good rule. But at least its randomness may lash out equally.

* There's no such thing as a "liberal" panel on the Eighth Circuit, but this panel was not an especially liberal one. The opinion was authored by Judge Colloton (viewed for many years as a SCOTUS contender for a Republican President), joined by Judge Benton and Chief Judge Smith. All three judges were Republican appointees (unsurprising, given that only one judge on the entire circuit is a Democratic appointee).