8th Circuit Reaffirms Constitutionality of Bans on Felons Bearing Arms

The Eighth Circuit Court of Appeals has reaffirmed its earlier decision in United States v. Jackson, concluding that it is constitutional to prohibit felons from possessing firearms even if the felony they were convicted of was non-violent (the case was on remand following Rahimi). The court observed that there was ample evidence of historical precedent permitting disarmament of non-law abiding individuals even in absence of evidence they were "violent", as well as pointing to the Supreme Court's repeated insistence that its Heller/McDonald/Bruen line of cases repeatedly emphasized it was not disturbing longstanding prohibitions on felon disarmament laws.

It also reiterated a point it made in its initial ruling: that while it may be the case that prohibiting gun ownership by non-violent offenders would fail the more traditional "means/ends" scrutiny that prevailed pre-Bruen (and in most other areas of constitutional law), Bruen flatly forecloses such "policy" analysis. Bruen does not care about a law's fairness any more than it cares about your due process rights.

"I'm Not Owned! I'm Not Owned!" Originalists Continue To Insist as They Slowly Shrink and Transform into a Corn Cob

The Supreme Court today reversed the Fifth Circuit and upheld a federal statute prohibiting persons under domestic violence restraining orders from possessing firearms against a Second Amendment challenge. The case, United States v. Rahimi, had quickly become a tentpole example of the disaster show unleashed by the landmark Bruen decision, which tossed out the "heightened scrutiny" review uniformly used by lower courts to adjudicate Second Amendment challenges in favor of a "historical analogue" test that immediately proved almost entirely unworkable. The majority in Rahimi appears to have significantly retreated from Bruen, underscoring that Bruen does not demand a "clone" law but merely something "analogous" that existed at the time of the framing (here, the relevant analogy was "surety" laws, which required "individuals suspected of future misbehavior to post a bond").

The Court's decision was 8-1, with only Justice Thomas (the author of Bruen) dissenting. This isn't too surprising -- most legal observers thought after watching oral argument that the Fifth Circuit's opinion was destined to be reversed. The stance that the "cartoonishly violent" domestic abuser at the center of Rahimi had a Second Amendment right to remain armed and dangerous was predictably something that most of the Justices wanted to race away from as fast as possible.

But the real fun, for me, came in reading the concurring opinions. Two of them, authored by the liberal Justices Kagan and Jackson, are dedicated to making the obvious point that Bruen has been an absolute trainwreck. The conservative concurrences, by contrast, are a spectacle of chest-thumping paeons to originalism as the one true standard of constitutional jurisprudence, distinguished most essentially by the fact that it is not results-oriented and prevents judges from tailoring the outcome of cases to meet their ideological preferences.

Us legal progressives have to enjoy the small things these days, and if ever there have been clearer examples of protesting-too-much in a judicial opinion, I'm not sure I've seen it. It could not be clearer that the outcome in Rahimi dictated the reasoning. It could not be clearer that the contemporary social policy consequences are basically the entirety of what drives the otherwise arbitrary inquiry into how "analogous" is analogous enough (and, for what it's worth, such policy arguments also took center stage in the conservative arguments marshalled to strike down the law -- it's policy all the way down). The ferocity through which Justices Kavanaugh and Gorsuch in particular extol originalism's virtues in their opinions reek of desperation. Bruen was a classic instance of this Court taking a huge theoretical swing in service of an abstract political ideology and leaving the mess for later. Unfortunately for them, the mess piled up quicker than they anticipated, and now they're left in the humiliating position of having to act like the ensuing disaster wasn't one of their own making.

I will give some credit to Justice Barrett for grappling with a few of the critical questions here. She correctly notes that the historical test does not mean that contemporary legislatures are limited to "an updated model of a historical counterpart" in crafting gun legislation, because "historical regulations reveal a principle, not a mold." Within the general class of domains where there is historical evidence states were permitted to implement restrictions on the right to bear arms, the legislature should get significant deference in determining how it wants to instantiate those restrictions -- the flipside of Bruen's general admonition that policy judgments have no role to play in Second Amendment adjudication.

The other essential point Barrett makes is critiquing the assumption "that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." We can group legislative action -- at the founding or at any other time -- into three broad buckets: (1) laws the legislature passed and which they believed  were constitutional (2) laws they did not pass because they thought they'd be unconstitutional, and (3) laws they did not pass, but not because they believed they were unconstitutional (one hopes the fourth category -- laws that were passed even though the legislature believed they were unconstitutional -- is close to a null set). The third category is an utterly mundane one: the legislature doesn't enact legislation for a whole host of reasons, the vast majority of which have nothing to do with any constitutional worries -- anything from "we think this is bad policy" to "we didn't consider this at all". 

Unless we think that founding-era Americans enacted every single possible gun law that they thought was constitutionally-permissible -- legislating to the utmost limits of their constitutional authority -- there will be entries in both the second and third categories. But to modern eyes, these two buckets will be largely observationally equivalent -- the lack of a historical precedent could mean that laws of this sort were thought to be unconstitutional, or they could mean they weren't passed for the myriad range of other reasons laws don't get passed. Bruen basically papers over this problem by pretending the last bucket doesn't exist, but in doing so it curb-stomps its own historical test. As for me, I don't have a good answer regarding how to disaggregate the two buckets, but doing so is essential to actually applying the historical test Bruen purports to impose. I'll give one cheer to Justice Barrett for at least recognizing the problem, but I suspect that this is yet another reason why Bruen's nebulous and vexing character is going to be intractable and will remain how it's begun: an incoherent mess of law office history cloaking bog-standard ideological policy judgments.

Bruen Does Not Care About Your Due Process Rights

The landmark Bruen decision inaugurated a lot of chaos in the field of Second Amendment jurisprudence, but perhaps no follow-up case caught the public's eye quite like the 5th Circuit's ruling striking down prohibitions on persons under domestic violence restraining orders from possessing guns. I characterized that ruling (United States v. Rahimi) as "(a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision," but I also flagged it as a potential candidate for Supreme Court reversal. The Supreme Court did grant cert in Rahimi, and the consensus amongst legal observers following oral argument is that the Fifth Circuit's opinion is toast.

One last ditch argument we're seeing by pro-gun zealots to try and avert this outcome is to frame Rahimi as a defendant's rights issue. Fifth Circuit Judge James Ho, in an opinion Chris Geidner characterized as a "judicial version of a post-argument supplemental filing," appealed to this principle -- citing a bevy of criminal law due process cases which protected the rights of even violent offenders and concluding that "if government must turn 'square corners' when it comes to the removal of illegal aliens, surely it must do the same when it comes to the basic rights of our own citizens." Josh Blackman made a similar argument, contending that it will be difficult to write an opinion in Rahimi that upholds the law in question that doesn't similarly pare back other rights of those accused of violent crimes.

Let's start by making one thing clear. Blackman states that "the reason why the Court may 'clarify' Bruen [in Rahimi] is because certain members of the Court don't like the results that it yields." I agree. As I wrote shortly after the Fifth Circuit's decision came down:

[I]f the Supreme Court reverses [Rahimi] -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

But while I agree that the results-tail will be wagging the doctrinal-dog, the "defendant's rights" argument is not a bulwark against the sort of reasoning. Rather, it is itself a form of results-oriented reasoning that Bruen -- if applied "faithfully" (and again, quotation marks because nobody is even trying to apply it "faithfully") -- expressly disclaims the legitimacy of. Put differently, to the extent Rahimi tries to present itself as faithful to Bruen, the "defendant's rights" argument is incredibly easy to dispense with. Blackman and Ho's position, by contrast, only works if one assumes Bruen does not mean what it says -- or, as I've put it, that Bruen is a one-way ratchet where social policy arguments in fact are permissible ... but only if they stand in support of a pro-gun position.

Let's review what the Bruen rule is. It's quite straightforward: where the "plain" language of the Second Amendment covers given conduct, government regulation of said conduct will only be upheld if it is consistent with the framing-era history of gun regulation. That's the alpha and the omega. No weighing of social policy consequences is permitted, period.

This approach generally has been conceptualized as a means of striking down even laws about guns that seem eminently sensible -- if they lack the relevant historical analogue, they're unconstitutional no matter how salutary they might seem. But in concept, what's good for the goose is good for the gander: a law about guns that seems arbitrary and unfair, but which does have relevant historical analogues, must be upheld no matter how ridiculous it might seem.

Suppose it turned out that there were in many states at the founding era laws that permitted anyone with a last name starting with "M" to be disarmed at the discretion of the state governor. For purposes of this hypothetical it doesn't matter why these laws were passed, and we can all agree that would be a tremendously silly and unfair law. Nonetheless, if a state today passed an identical law, under Bruen it should be upheld: the only question we're allowed to consider is "is there a historical analogue," and by stipulation there is one here. Engaging in the abstract moral theorizing about whether this law is "fair" -- no matter how obvious the answer might seem in this case -- is exactly what Bruen says courts are not allowed to do.

Similarly, suppose we had in Rahimi something that Justice Thomas in Bruen expressly denied was necessary: a "clone" law -- at the founding, there were regularly laws exactly like the federal law at issue in Rahimi throughout the states. In such a circumstance, even Ho and Blackman would have to concede (I think?) that Bruen would compel the federal law in Rahimi to be upheld, and that the "defendant's rights" argument would not enter into it. The law has a historical analogue, and so the discussion ends. That's what Bruen demands.

Of course, there was not a "clone" law at the framing to the federal prohibition on gun possession by persons under domestic violence restraining orders. So the nominal question in Rahimi is whether the laws that did exist are sufficiently analogically comparable to the federal law at issue so as to validate the latter. But that analysis, too, is completely unconcerned with any alleged unfairness to prospective criminal defendants. Either the historical analogues are sufficiently comparable, or they're not. If they are, then it doesn't matter that the results might seem unfair to potential criminal defendants any more than it matters if the results (pointing the other way) might seem unfair to domestic violence victims, or for that matter if the results seem unfair to persons whose last names start with "M". In all cases, Bruen demands we be studiously indifferent to this unfairness.

Bruen, in short, does not care about due process rights. Or put slightly differently, Bruen says that the only process anyone disarmed by the government is "due" is a determination about whether the disarmament is sufficiently analogous to practices that existed at the founding. If it is, then you can be disarmed. If it isn't, then you can't. No other consideration of "fairness" comes into play. 

It is in fact a misapprehension to say that the reason Rahimi could be disarmed consistent with Bruen is because "we're willing to reduce constitutional protections for prospective criminal defendants." If Rahimi can be disarmed, it isn't because he's a prospective criminal defendant, it's because he falls into a category of persons sufficiently analogous to persons who were deemed to be disarmable at the time of the framing. For this reason, a reversal in Rahimi poses no threat to other criminal defendant rights precedents, because in no other domain are constitutional rights treated in this absurdly reductive fashion (here we really see the lie that Bruen was about treating the Second Amendment "the same as" other constitutional rights; no other constitutional domain has a doctrine that's anything close to what Bruen proposes).

In short, all an opinion reversing the Fifth Circuit in Rahimi has to do to "contain" its ruling is state its conclusions in the terms Bruen prescribes: that the historical analogues to the challenged federal law are sufficiently comparable so as to render the latter constitutional. Once it does that, it need not and under Bruen should and cannot say a word about whether this outcome is "fair" or not to people who could prospectively be charged with a crime.

To be clear one more time: even if this is the approach the Supreme Court takes in reversing the Fifth Circuit, it will be a lie. We'll all know that the actual reason behind the Court's decision will be policy squeamishness towards the outcome. But we also know -- already knew, but Ho and Blackman helpfully confirmed it -- that a contrary ruling (or a dissent) will also be driven in part by social policy considerations and abstract arguments about fairness. Even Bruen's putative defenders don't actually take its strictures seriously, which is one more reason why the decision deserves nothing but scorn.

The Right Not To Keep and Bear Arms

Earlier this month, a district court judge upheld a West Virginia statute which required private property owners to allow guns to be locked in employee or customer cars while in a parking lot (h/t: Volokh). The court rejected general property-rights and expressive association challenges to the statute. One argument it did not consider, however, is that West Virginia's law might violate the Second Amendment as interpreted by Bruen.

At first blush, this may seem to be a strange argument (which is probably why it wasn't made): this is a law expanding gun rights protections; and Bruen concerns attempts to restrict gun rights. But on closer inspection, I think it is quite likely (contingent on the historical record) that laws like West Virginia's violate the Second Amendment as that provision was interpreted in Bruen.

Start with first principles. Bruen, along with the other members of the "Roberts Trilogy" on guns, was emphatic that the Second Amendment is not a "second-class" constitutional right. And a critical component of other constitutional rights is that they all contain a robust negative component. The right to free speech includes the right not to speak (this is the locus of the "compelled speech" doctrine). The right to free association includes the right not to associate. The right to freedom of religion includes the right not to profess religious belief. And so, by extension, it seems evident that the right to keep and bear and arms includes a right not to keep or bear arms on one's own property.

Once that observation is made, then West Virginia's law plainly implicates property owners' Second Amendment right not to "keep" arms on their property. At that point, Bruen insists, the only question courts are permitted to ask is whether or not the law in question has historical analogues dating from the enactment of the Second and/or Fourteenth Amendment. I won't claim to have canvassed the history exhaustively, but my sense is that there aren't such laws (there certainly were plenty of laws protecting an individual's right to keep arms on his or her own property, but it doesn't seem like there were many laws which expressly forbade property owners from prohibiting arms on their own property). This is especially noteworthy because this is not a "novel" Second Amendment situation -- the issue of allowing property owners to forbid guns on their property was perfectly cognizable at the time of the framing, it is not an issue that only later sprang into existence based on some social or technological development. So if the historical record doesn't turn up a pattern of state laws akin to West Virginia's, then West Virginia's law must be struck down.

To be sure, West Virginia could argue that its law strikes a reasonable balance between the interest of gun owners being able to keep and carry their own arms for self-defense, and the desire of property owners to keep guns out. After all, the gun owner who wishes traveling in the public with his weapon will be significantly deterred from doing so if they're not even permitted to keep their gun locked in their car the moment they enter the parking lot of the "wrong" business or enterprise. In practice, a world in which gun owners can't enter even a parking lot with their guns locked in their car is one where they are significantly limited in their ability to travel anywhere with guns. 

But while this argument might have considerable purchase under traditional "balancing" review, Bruen expressly forecloses that sort of inquiry. As the Court emphasized, the Second Amendment's historical test is "the very product of an interest balancing by the people." History is what sets the "balance"; any additional weighing of policy considerations is impermissible. Ultimately, West Virginia's concerns that private limitations on gun possession may spillover to lessen the prevalence of guns is no different than New York's worries that striking down its gun control measures will result in too many guns on the streets. At root, West Virginia seeks to intrude on the Second Amendment in order to effectuate its policy judgment favoring more guns. A state like New York seeks to intrude on the Second Amendment to have fewer guns. Either state may or may not be correct as a matter of policy; but under Bruen both states' arguments must fall on deaf ears.

Nor can West Virginia's statute be defended as a means of securing the Second Amendment from infringement. Just as the First Amendment does not create an interest in forcing a newspaper to publish your op-ed, the Second Amendment protects against government infringements, not acts of private individuals. The only germane Second Amendment interest here -- the only actor threatened by government impingements -- is the negative interest of property owners who wish not to keep and bear arms on their property. Admittedly, cases like PruneYard do suggest that in the First Amendment context some government regulations protecting speakers on private property may be permissible, notwithstanding the property owners' own interest in declining to speak. But leaving aside whether that extension should carry to a law like this (West Virginia's attorney general made this argument; the court did not end up addressing it) under First Amendment balancing tests, it does not carry any weight under the Bruen regime, which again boils the question down solely to an inquiry into history. If West Virginia's law has proper historical analogues, it survives. If it doesn't, it doesn't, no matter how strong the policy argument in its favor may be.

Of course, we've already seen courts bend the "no policy" principle of Bruen when policy arguments seem to favor increased gun access, and it's entirely possible we'd see a similar move here as well. This is especially so since the "negative Second Amendment" idea the argument hangs on -- while I think one that has to be correct as a matter of constitutional interpretation -- is a bit novel and certainly cuts against the grain of what we expect the Second Amendment to do in cases like this. Nonetheless, in theory Bruen both gives and taketh away -- there will be times when Bruen strikes down even well-warranted laws and times when it upholds repellent ones. West Virginia's law strikes me as a good example of an enactment that is absolutely defensible as a matter of policy, but which probably cannot withstand Bruen's harsh review. The only question, as always, is whether Bruen's goose will ever apply to its gander.

One other thought: If you're looking for a viable progressive "bounty" program to counter the shenanigans anti-abortion activists are pulling in Texas, this seems like it could set one up.

1. Write an ordinance that says guns are forbidden on private property unless consent is granted by the owner (an "opt-in" rule). These laws are being challenged, but I genuinely think they should survive constitutional scrutiny because all they do is establish a default rule, and for the reasons stated above the Second Amendment doesn't protect the right to bear arms on others' property.
2. Create a civil cause of action for violating the ordinance.
3. Add in all the abusive nonsense that Texas pioneered (no governmental enforcer, anyone can sue anyone, imbalanced attorneys fees, and so on).
4. Lie in wait for anyone who pulls into a Wal-Mart parking lot with a gun in their trunk, and have at them.

To be clear: I think a law like this would be terrible and destructive, notwithstanding my own views on guns. These "bounty" laws are recipes for chaos. But to the extent that the only way we'll see them curbed is by showing that they'll exact costs on both political camps, I offer it as a way of establishing deterrence: mutually assured destruction.

Update: Turns out this article has already been written. Oh well -- at least I wasn't the only one with the thought!

Leaving the Mess for Later

One thing that's come up in a few of the Supreme Court's recent blockbuster decisions is the shakiness of the fact pattern in the underlying case. Mr. Kennedy in Kennedy v. Bremerton School District wasn't really just an average citizen whose desire to privately pray on his own was stymied by the evil liberal school district. Ms. Smith of 303 Creative v. Elenis might have outright falsified documents suggesting that a gay couple asked to engage her services. The Supreme Court's conservative majority did not care, blitzing ahead in decisions that made dramatic alterations to major areas of constitutional law doctrine.

At one level, I actually understand the perspective here. When it comes to abstract, "philosophical" question regarding the scope of the Establishment Clause or whether anti-discrimination law must sometimes yield to free speech commitments, the details of the individual case don't really matter. If it wasn't Kennedy, it'd be someone else. If what you care about is the broad, sweeping change -- interring Lemon v. Kurtzman for good, or laying a marker that public accommodations laws must yield to businesses' right to "expressively" discriminate -- the details don't affect the underlying arguments all that much. The same claims and counterclaims that would be made in any case would be aired here. 303 Creative probably already felt like the can that was kicked down the road from Masterpiece Cakeshop. Similar impatience was seen in some of the concurrences in Fulton v. City of Philadelphia -- we know we're going to have to decide whether to revisit Employment Division of Oregon v. Smith, and we know the arguments for and against preserving the precedent, so why delay the inevitable? Just make the decision one way or the other and get it done.

At another level, though, this speaks to how the current conservative judicial cadre really doesn't care about the formalities of law and legal doctrine. It's movement conservatism through and through -- the important thing is the bottom-line results, and the Court will shoot first and let others clean up the mess later. This especially stood out for me in 303 Creative, a case where it was striking how much more legalistic Justice Sotomayor's dissent was compared to Justice Gorsuch's majority opinion. The former, whether one agrees with the result or not, worked through the relevant First Amendment doctrine via the same methodology I'd teach my students -- explaining the relevant doctrinal framework, explaining why this case falls into a particular part of the framework, and explaining the implications thereof. The majority opinion was basically an abstract ode to the importance of free expression but skipped past significant swaths of the seemingly essential legal analysis (often by vague gestures at party "stipulations" or just treating as gospel certain holdings of the Tenth Circuit). It was hard to escape the sense that the nitty-gritty details of Lorie Smith's case were not at all what interested the majority, and so they were disinclined to spend significant time on them. They wanted to make a big statement about the interplay of free speech and anti-discrimination law, so that's where they devoted their attention. 

From that vantage, the fact that Lorie Smith's case may not have been the cleanest vehicle isn't really all that important. Of course, from the vantage of lower courts trying to figure out what the hell 303 Creative actually means, it's extremely important, because nobody actually knows the concrete rule that 303 Creative is actually establishing, and the blurry fact pattern means that trying to infer it from Lorie Smith's situation is a doomed initiative. But again, that's someone else's mess to deal with. I honestly believe that the Justices in the 303 Creative majority did not care if Lorie Smith, personally, deserves the exemption from anti-discrimination law under the doctrine that will eventually lay out. What they cared about is being decisive in defending the existing of these exemptions in concept. Lorie Smith just had the good fortune to be the next case in line that could be plucked onto the docket.

I've written before of the Machiavellian character of the current Supreme Court, specifically, it's absorption of Machiavelli's advice to tyrants: that they should take their big oppressive swings early, in full force, and all at once. You won't gain any advantage from dragging things out, and you'll probably get credit if you cut back later. And the repeated pattern we've seen is of the Court taking these huge right-wing swings that delight conservatives on the level of ideology, but without much care for how they can be operationalized as a workable legal doctrine, and leaving it lower courts to clean up its mess. And to give an inch of silver lining, there is the chance (this follows from Machiavelli too) that as that "mess" resolves itself the Court will then quietly file down some of the roughest edges. The Bruen decision, which reads as a right-wing ideological fantasy document but which has unleashed utter chaos in lower courts, may be an example if the Court uses the Rahimi case to cut back the most extreme interpretations. Take the big swing, make the chest-out assertion of insisting that no amount of public necessity can weigh against robo-originalism, and then later on at their discretion maybe pick and choose a few morsels to dial back on and claw back some legitimacy.

But nonetheless, it really is striking the degree to which the conservative legal movement just no longer cares that much about the law. As a law professor, it makes for depressing teaching. As a citizen, it makes for depressing living. Just depression all around.

Is the Supreme Court Lying When It Purports To Place Limits on its Extreme Rulings? Third Circuit: Obviously, Yes

Today, the Third Circuit sitting en banc in Range v. Attorney General invalidated federal prohibitions on possession of firearms by convicted felons, at least in cases of non-violent offenders (Range had been convicted of food stamp fraud), but potentially in many other circumstances as well (via). This creates a circuit split with the Eighth Circuit's opinion last week in United States v. Jackson that I discussed here. 

The issue of felon disarmament under Bruen is interesting. At one level, it's always possible that any gun regulation might fall prey to Bruen's rigid history-or-bust methodology for determining constitutionality under the Second Amendment (though much here depends on necessarily subjective judgment regarding what counts as a proper historical analogy). But at another level, the felon prohibitions are distinct because Bruen (along with the other members of the Roberts trilogy on guns -- Heller and McDonald) were emphatic that these prohibitions should not be questioned under the Court's rulings. As Heller said: "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." This was reiterated in McDonald, and confirmed again in Justice Kavanaugh's Bruen concurrence.

How does the Third Circuit get around this seemingly very explicit language? By suggesting the Court cannot be trusted to mean what it says. 

The court in an opinion by Judge Hardiman analogized adhering to the Supreme Court's express declaration that these laws remained constitutional to how the Court talked about the application of means-end scrutiny in Heller. Heller suggested that the law in question in that case would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Lower courts, Judge Hardiman continued, universally "overread that passing comment to require a two-step approach in Second Amendment cases, utilizing means-end scrutiny at the second step," an approach the Supreme Court ended up disavowing in Bruen. And so the Third Circuit says, in essence, it won't make the same mistake twice: it must be "careful not to overread" the language suggesting felon disarmament laws remain constitutional "as we and other circuits did with Heller’s statement that the District of Columbia firearm law would fail under any form of scrutiny."

In other words, the basic question is: can we trust the Supreme Court when it says, expressly, "our decisions should not be read to mean felon disarmament laws are unconstitutional"? Or was that a promise the Supreme Court never meant to keep? In fairness to the Third Circuit, given the choice between predicting (a) the Supreme Court will abide by its own expressly-stated doctrinal limits or (b) the Supreme Court will completely ignore its own promises the instant they seem to sanction gun control limits the Court dislikes, I'm hard-pressed to say that option b isn't the safer bet. But there is something discomforting about lower courts openly acknowledging that the best way to interpret the Supreme Court's Second Amendment jurisprudence is to assume that any limits the high court purported to place on Bruen's sweeping protections for guns everywhere-for-everyone-at-any-time are probably just lies.

As a sidenote, I'll also just say that I literally finished compiling my Con Law II course materials on the post-Bruen Second Amendment last night, and immediately had to revise them again to account for the Range decision. Again, spare a thought for the underappreciated constitutional law professor, the forgotten victims of the churn and chaos the Supreme Court has unleashed in our constitutional jurisprudence.

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).

A Local Shooting in SW Portland

Two people are dead after a reported shooting at a SW Portland strip mall approximately five minutes from my house.

I've been to this strip mall. I've eaten at the cafe where the bodies were reportedly found. The UPS store across the street is where we go when we need to send a package. This part of Portland is in my normal orbit.

Contrary to what you've heard, Portland is actually a relatively safe city. Our crime rates are remarkably unremarkable -- a recent survey ranked us 21st out of 40 major cities when it came to violent crime. And my neighborhood is almost certainly safer than the city as a whole. This shooting is not, I think, reflective of any trends. If anything, it is in defiance of a national downward trend in violent crime.

Nonetheless, it's sickening that this is even a tertiary part of my -- or anyone else's -- life. And it's infuriating that the Supreme Court has essentially decided that people like me must, as a matter of inviolable constitutional law, live under the scourge of infinitely proliferating guns forever. It's terrible to know that if my elected representatives ever tried to do anything substantial to stem the tide of gun proliferation, the Supreme Court would be on the case to wag a finger and say no.

By the same token, the Republican Party's response to gun violence is, of course, to promote more guns (and to teach eight-year olds battlefield trauma techniques). "The only way to stop a bad guy with a gun is a good guy with a gun". When you strip away all the window dressing, what this boils down to is saying the solution is getting into a shootout. But I don't want to get into a shootout! I don't want to shoot anyone, and I should be able to get a cheese omelet at a local diner without committing to reliving the OK Corral. That's not a solution, that's a capitulation -- gun violence accepted as a forever-scourge, and you're either dishing it out or you're the victim.

It doesn't have to be that way. In most developed countries, it isn't that way. That it is that way here is not an inevitability. It is a policy choice, imposed by a radical judiciary whose contempt for the people it rules is becoming increasingly more brazen.

Guns as Escalators, Guns as Deescalators

Professor McGonagall's face was pinched and angry. "You are not to use the Time-Turner in that fashion, Mr. Potter! Is the concept of secrecy not something that you understand?"

"They don't know how I did it! They just think I can do really weird things by snapping my fingers! I've done other weird stuff that can't be done with Time-Turners even, and I'll do more stuff like that, and this case won't even stand out! I had to do it, Professor!"

"You did not have to do it!" snapped Professor McGonagall. "All you needed to do was get this anonymous Slytherin back on the ground and the wands put away! You could have challenged him to a game of Exploding Snap but no, you had to use the Time-Turner in a flagrant and unnecessary manner!"

"It was all I could think of! I don't even know what Exploding Snap is, they wouldn't have accepted a game of chess and if I'd picked arm-wresting I would have lost!"

"Then you should have picked wrestling! "

Harry blinked. "But then I'd have lost -"

Harry stopped.

Professor McGonagall was looking very angry.

"I'm sorry, Professor McGonagall," Harry said in a small voice. "I honestly didn't think of that, and you're right, I should have, it would have been brilliant if I had, but I just didn't think of that at all..."

-- Harry Potter and the Methods of Rationality, Chapter 17

"Mr. Potter, you have taken to using the Time-Turner as your solution to everything, often very foolishly so. You used it to get back a Remembrall. You vanished from a closet in a fashion apparent to other students, instead of going back after you were out and getting me or someone else to come and open the door."

From the look on Harry's face he hadn't thought of that.

"And more importantly," she said, "you should have simply sat in Professor Snape's class. And watched. And left at the end of class. As you would have done if you had not possessed a Time-Turner. There are some students who cannot be entrusted with Time-Turners, Mr. Potter. You are one of them. I am sorry."

"But I need it!" Harry blurted. "What if there are Slytherins threatening me and I have to escape? It keeps me safe -"

"Every other student in this castle runs the same risk, and I assure you that they survive. No student has died in this castle for fifty years. Mr. Potter, you will hand over your Time-Turner and do so now."

-- HPMOR, Chapter 18

"Harry Potter," Professor Quirrell said.

"Yes," Harry said, his voice hoarse.

"What precisely did you do wrong today, Mr. Potter?"

Harry felt like he was going to throw up. "I lost my temper."

"That is not precise," said Professor Quirrell. "I will describe it more exactly. There are many animals which have what are called dominance contests. They rush at each other with horns - trying to knock each other down, not gore each other. They fight with their paws - with claws sheathed. But why with their claws sheathed? Surely, if they used their claws, they would stand a better chance of winning? But then their enemy might unsheathe their claws as well, and instead of resolving the dominance contest with a winner and a loser, both of them might be severely hurt."

Professor Quirrell gaze seemed to come straight out at Harry from the repeater screen. "What you demonstrated today, Mr. Potter, is that - unlike those animals who keep their claws sheathed and accept the results - you do not know how to lose a dominance contest. When a Hogwarts professor challenged you, you did not back down. When it looked like you might lose, you unsheathed your claws, heedless of the danger. You escalated, and then you escalated again. It started with a slap at you from Professor Snape, who was obviously dominant over you. Instead of losing, you slapped back and lost ten points from Ravenclaw. Soon you were talking about leaving Hogwarts. The fact that you escalated even further in some unknown direction, and somehow won at the end, does not change the fact that you are an idiot."

[...]

"The next time, Mr. Potter, that you choose to escalate a contest rather than lose, you may lose all the stakes you place on the table. I cannot guess what they were today. I can guess that they were far, far too high for the loss of ten House points." 

-- HPMOR, Chapter 19

Yesterday, the New York Post ran a story about an incident in Florida where two drivers got into a rolling gunfight with one another, exchanging fire that injured both drivers' daughters (a 14-year old and 5-year old girl). While both drivers were initially charged with attempted murder, one driver -- the one who opened fire first -- had the charges dropped after prosecutors decided he had a valid self-defense claim since the other driver was the initial aggressor (allegedly trying to "run him off the road" and hurling a water bottle at his truck).

Hale tried to run Allison [the driver who had the charges dropped] — who was driving a Nissan Murano with two passengers — off Highway 1 near Calahan with his Dodge Ram pickup truck, which had four passengers, police said.

At one point, Hale drove alongside the Murano, rolled down his window and began shouting at Allison to pull over as Hale’s wife made an obscene gesture.

Allison rolled down his window to shout back when a plastic water bottle was thrown from the truck into the SUV, according to the Nassau County Sheriff’s Office in Florida.

[...] 

[Then, Allison] fired a semiautomatic handgun at [Hale], hitting Hale’s daughter, who was sitting in the back seat, and then sped off, police said.

When Hale realized the girl was hit, he sped closer to the SUV and began firing several rounds from his semiautomatic — one of which struck the 14-year-old girl. 

I was thinking about this incident, and to a lesser extent the recent case in Texas where a man was convicted of killing a protester who allegedly brandished an assault rifle at his car after the shooter reportedly drove his car into the crowd (this is the case where the Governor has promised to pardon the killer), and thinking "what would happen if none of the parties had guns?"

In the Florida incident, I do not think -- even accepting that Allison was "acting in self-defense" -- "thank goodness Allison had a gun -- who knows what would have happened if he wasn't armed!" My strong intuition -- albeit not one that can be proven -- is that if Allison was not armed, this incident would have resolved as a "normal" case of road rage, and in particular, we would not have seen two young girls be shot in their parents' cars. To be clear: Allison seems to have been the victim of terrible, threatening behavior by Hale. But the presence of guns (and it was Allison who fired the first shot) escalated the situation. It did not keep anybody involved safe; it made a bad situation far, far worse.

If Allison had no gun, the most likely result is that he would have just had to endure Hale's predatory road rage (at least until a filing a police report later). There is something disconcerting, I imagine, to saying, in effect, that this would have been the right choice. It entails, to be very colloquial about it, agreeing to "lose" to a predator. Allison firing at Hale represents an (escalatory) effort to fight back; to continue to resist; to win. Should Allison have "picked wrestling", even though it allowed Hale's predations to prevail (at least in the immediate moment)?

I think the answer is yes. At the very least, it's the choice that doesn't result in two children being shot. More to the point, it's the choice that millions of Americans who don't have guns would have had to have made in that same situation. Millions of Americans go through life without guns. When we encounter a road rage scenario like the one in Florida, we can't use a gun "in self-defense" because we don't have one. But as much as it might be humiliating or scary or infuriating to feel impotent in that scenario, it seems clearly better than what happened here when guns did enter the picture.

Proponents of gun rights as a means of self-defense imagine a template case as a scenario where a person is threatened and, had they not had the gun, they would be subjected to severe bodily injury or death. The availability of the gun "deescalates" (that's not quite the right word, but I don't have a better one) the situation insofar as, instead of the innocent victim being severely injured and/or killed, it is the wrongful perpetrator that suffers that fate.

But there are no doubt some number of circumstances -- and I don't know how one could measure it, but I suspect it's a greater number -- where the availability of a gun, even under the "self-defense" rubric, does not deescalate but escalates a situation. A scenario that would have resolved as a lower-level indignity or violation becomes one where someone is shot or killed.

Sometimes, we might say that for some sorts of criminal activity, a violent response is justified and socially beneficial even if it is in some sense escalatory (e.g., many argue this for a homeowner shooting a burglar, notwithstanding the fact that robbery is a "lesser" violation than shooting someone). Nonetheless, when I think back to the occasions where I've been a victim of violent crime, I do not think "if only I had a gun." To the contrary, whether or not on those occasions I would have been legally permitted to "stand my ground", I think it is absolutely for the best that I did not blow away either the homeless man or the drunk college students who assaulted me. It is clear to me that in those circumstances, I should have done what I actually did do, which is pick myself up and walk away. I should have "lost".

Not everyone agrees with me -- a law school classmate told me that if he was shoved to the ground as I would, he would "legitimately fear for his life" and would be justified in responding with lethal force. Perhaps if he had been in my shoes and armed, four people who we know did not need to die would be dead. I lacked the means (or desire) to respond with lethal force, and the result was the people who we know did not need to die, didn't die. Where the presence of guns converts more scenarios like that -- ones where we could just walk away -- into ones where someone or multiple someones are shot or killed, that is I think a clear net loss for society.

Again, I don't know how to measure this. But it seems clear that, just as there are some circumstances where having and using a gun averts the more tragic outcome; there are other circumstances where having and using a gun causes the more tragic outcome -- and (this is important) even under cases which fall under the rubric of self-defense.

The opening excerpts from Harry Potter and the Methods of Rationality (which I highly recommend) are about instances where Harry is, in a brute moral sense, right to resist. Professor Snape and other Slytherins are wronging him, abusing him, in a manner that in a just world he should not have to tolerate. And yet, the moral of these passages is that reckless escalation even in response to injustice or wrongdoing has immense risks; it puts even more stakes on the table that aren't always justified or commiserate to the underlying, initial abuse. Hale seems to have badly abused Allison. But Allison could not just let it lie; he escalated dramatically by firing a gun from a moving vehicle into another car. The danger that posed -- to Allison's own family, to Hale's, to other travelers or passers-by -- is almost incalculable, and hardly seems proportionate to the (very real) wrong and abuse Allison endured. If Allison lacked a gun, he would not have been able to initiate that escalation. And at least two children would not have been shot.

Post-Conference Roundup

Last week, approximately 35 speakers (and dozens more guests) came to Lewis & Clark Law School for the 2nd Annual Law vs. Antisemitism conference. It was an event I'd been planning for over a year, and I'm pleased to report it was a rousing success. The panels were scintillating, the conversations crackling, and the two keynotes (by the ADL's Steve Freeman and civil rights activist Eric Ward) blew the doors off the joint. I could not be prouder.

Unfortunately, as the conference approached I could feel myself getting a cold, and so I did that deal-with-the-devil bit where I just willed myself to not be sick for the conference, and my body was like "okay, but you're going to pay for that come Tuesday." So the day after the conference I was sick as a dog. But now I'm mostly better -- just some residual congestation.

Anyway, here's a roundup:

***

Haven't seen the clip, but apparently a protester held up a "Jews control the USA" sign on the CNN segment reporting on Trump's indictment today. So that's fun.

Iowa school hit with bomb threats over LGBT book after "LibsOfTikTok" sics her goons on them.

In other "is killing students in school controversial?" news, Nashville students walk out of class to protest for gun reform following the Covenant School shooting.

Also in Tennessee: a federal judge has enjoined the state's new draconian "anti-drag" law as likely violating the First Amendment.

As a now-certified Caitlin Clark fan, it's beyond evident that folks calling Angel Reese "classless" for doing the same mugging that Clark had done all season are, well, they're not hiding the ball. And for what it's worth, there's zero evidence that Clark in any way needs or supports y'all white knighting on her behalf -- I guarantee she can take what she dishes out. (Surely, we can all agree that the only thug on the court yesterday was Kim Mulkey).

Israel looks set to give its resident fascist his own personal state-backed paramilitary squad. What could go wrong? Nothing, because "wrong" implies that the the utterly predictable consequences aren't intended.

A beautiful story of a transwoman recounting "coming out" to her 100 year old grandpa. His memory clearly already is a blessing.

Oh, and I published a new article! "Microaggressions as Negligence" is now out in the Journal of Social Philosophy.

Bruen's Goose Continues To Not Apply to the Gander

The thing about the Fifth Circuit's recent ruling that the Second Amendment gives men under domestic abuse restraining orders an inalienable right to bear arms is that it is (a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision. This is because the Bruen decision will regularly and predictably lead to insane results.

That said, I did want to flag something in the opinion that I've picked up on before -- namely, the inconsistent commitment to Bruen's supposed prohibition on weighing or considering "social policy" considerations. Judge Wilson, writing for the panel, expressly cites to this portion of Bruen, saying that while the prohibition on gun possession by domestic abusers "embodies salutary policy goals meant to protect vulnerable people in our society ... Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right." This principle is, perhaps above all else, the crux of Bruen's standard -- no matter how ridiculous, or absurd, or unfair, or chaotic the policy outcomes are, courts are not permitted to "weigh" them against the historical limitations that bounded the Second Amendment. The latter begins and ends the conversation.

Again, that principle is absurd. But it's Bruen's principle, and the Fifth Circuit gleefully cites it to explain why the prospect of terrified and murdered women can play no role in its legal analysis. But what happens if the historical arguments seem to counsel permitting more sweeping gun regulations than conservative jurists might like? All of the sudden, those social policy considerations come roaring back into view.

Addressing the historical precedents which did clearly envision government's authority to disarm "dangerous" persons, Judge Wilson explains that such exceptions must be narrowly construed so as not to apply to the case of domestic abusers. Why? Because, he asserts,

the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?

I take no position on whether the government's interpretation is so expansive. But note that this line of argument is expressly an analysis of the proper policy sweep of government regulation. We should tailor our interpretation of the Second Amendment's scope so as to avoid a policy outcome whereby too few people are guaranteed the right to keep and bear arms; to avoid an outcome where the government is permitted to disarm people who these judges think it would be manifestly unfair to have their gun rights taken away.

This is exactly the sort of policy analysis Bruen purports to forbid, only here the "policy" concerns are ones counseling in favor of greater freedom to bear arms rather than reduced freedom to bear arms. Perhaps it seems absurd to permit the government to take away arms from people just for getting a speeding ticket. But so what?  Bruen was emphatic that this sort of social policy assessment has no role in Second Amendment adjudication. If the historical analogues give the state that sort of latitude, then that is supposed to end the conversation. Again, it is baked in the Bruen cake that it will lead to results that may appear to modern eyes ridiculous, because Bruen expressly instructs courts that they aren't allowed to care about those consequences no matter how absurd they might seem to be.

But as the Fifth Circuit's ruling makes clear, the Bruen prohibition on weighing policy consequences is, unsurprisingly, a one-way ratchet. Conservative courts will portentously declare that Bruen forbids them from considering the disastrous consequences of countless terrified or murdered women if it means taking away domestic abusers' guns -- but if history and tradition start to point towards enabling gun restrictions that the right finds too onerous, then all of the sudden we get a screeching parade of contemporary policy horribles that are treated as legally dispositive. This is what generates such well-deserved cynicism about the state of the judiciary today -- it's not just that the legal rules the governing class of jurists announce are absurd, it's that these jurists do not even pretend to be bound by them the second they prove inconvenient to their underlying politics.

The other thing to note about this case is that, if the Supreme Court reverses it -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

New Depths of "Both Sides-ism": Gun Violence Edition

Commenting on the only-in-America news that the first 24 days of 2023 have already seen 73 Americans killed in mass shootings, Paul Campos points to a CNN article on the matter which he summarizes as

point[ing] out that fault lies on both sides of the political aisle for this epidemic, given that the Republicans don’t want to do anything about it, and the Democrats are unable to force the Republicans to do anything about it.

Ha ha -- good one, but obviously that's an exaggeration. Here's what the article says:

A partisan political system that is little help

Resignation that nothing will change is fueled by a political system that is so entrenched on guns that it can’t usually frame a meaningful response to shootings, let alone solutions. Offers of “thoughts and prayers” by pro-gun rights Republicans are routinely mocked by Americans looking for reform. Conservatives often divert blame to a national mental health crisis that they do little to alleviate.

Second Amendment absolutists often argue that if more “good guys” carried guns, everyone would be safer. In their own ritualistic response, Democrats often re-up demands for an assault weapons ban they know they can’t pass.

Sigh. 

If SCOTUS Had Its Way, Countless Michigan Jews Would Be Dead By Now

A Dearborn, Michigan man was indicted on gun charges stemming from an alleged plot to attack a Michigan synagogue. The suspect, Hassan Chokr, was blocked from purchasing a shotgun, rifle, and semiautomatic pistol following the conclusion of a background check, and federal prosecutors said that in his attempt to purchase a gun Chokr made "three false statements, any one of which would prohibit him from possessing a firearm." Those statements were denials that Chokr

1. Had ever been convicted of a felony;
2. Had currently pending charges of a felony; and
3. Had ever been committed to a mental institution.

Presumably, the background check revealed the existence of one or more of these flags in Chokr's record, thus preventing the purchase and likely averting a tragedy.

Given that, it's worth noting that all three of these bases for denying someone a gun purchase are currently on thin ice following the Supreme Court's Bruen decision, which radically circumscribed the government's ability to place limits on American's right to gun ownership.

On the first, the Third Circuit is in the process of reconsidering its earlier ruling that non-violent felons can be excluded from gun ownership (Chokr's conviction related to theft relating to a financial device such as a credit card, and so likely would be viewed as a non-violent felony).

On the second, a federal judge has already concluded that it is unconstitutional to bar those under felony indictment from possessing guns.

And on the third, prominent gun advocates like Eugene Volokh have aggressively challenged whether a per se bar on gun possession by persons who have been committed to a mental institution is constitutional.

In short, it is entirely plausible that the federal judiciary, following the Supreme Court's lead in Bruen, will conclude that all the failsafes that successfully prevented Hassan Chokr from purchasing guns he would have likely used to massacre Michigan Jews are unconstitutional and must be stripped from the books. It's not guaranteed -- while Bruen's language is expansive to the extreme, nobody knows how far the Supreme Court's nerve will go when push comes to shove -- but none of these objections can dismissed out of hand given Bruen's radical reinvention of Second Amendment doctrine.

Certainly, the Court has been crystal clear that the essential liberties of the Second Amendment are far more important than the countless lives its jurisprudence puts at risk. You know what they say: the tree of liberty must periodically be watered with the blood of tyrants innocent Jews.

The Goose and the Gander of the Bruen Prohibition on "Balancing"

Eugene Volokh flags a case out of California involving a man allegedly prohibited from carrying a firearm due to a mental health hospitalization that occurred twenty years ago, when the man was in middle school. Federal law generally prohibits an individual "who has been committed to a mental institution" from owning, possessing, using, or purchasing a firearm or ammunition. The man, who later enlisted in the Marines and worked in law enforcement, has not had any other mental health issues since that single incident.

The court in this case ended up ducking the major constitutional issue for technical reasons we don't need to go into, but suggested that the relevant section of federal law was probably still constitutional after Bruen because several justices in that case specifically identified bans on mentally ill persons carrying firearms as among the sort of historical restrictions that had been permitted at the time of the framing. Prof. Volokh, by contrast, thinks the law should be unconstitutional insofar as it does not require any showing that the prohibited individual is presently mentally ill. The facts of this case, in particular, suggest a person for whom the law as written sweeps too broadly.

I make no judgment on whether federal law should, as a matter of policy, create such a carve-out for persons who seem to no longer be mentally ill. However, it does seem to me that this sort of analysis represents exactly the sort of "balancing" of interests that Bruen quite categorically forbade courts from engaging in. From Bruen's perspective, the sole question a court should consider is whether or not this sort of firearms restriction -- in this case, restrictions blocking the mentally ill from possessing firearms -- was historically present at the time of the framing. If the answer is no, then the restrictions are unconstitutional no matter how good a reason we might think exists for imposing such a restriction. But the flipside has to be true too: if the answer is yes, then the restrictions are constitutional no matter how unfair or untailored we might think they might be as applied to a given individual. And since the Court has already seemingly conceded that restricting the mentally ill from possession of firearms is one of the restrictions historically permitted, that should end the discussion.

The counterargument, alluded to be Volokh, is that the relevant basis for historical comparison is not the existence of "laws prohibiting the mentally ill from possessing firearms", but rather "laws prohibiting persons who once had a mental health crisis but have not had any symptoms for decades from possessing firearms." At one level, this is a familiar problem of abstractness versus specificity, one which offers courts yet more discretion to approve or disapprove of firearms regulations that they like or dislike. As I said in my last Bruen post, the application of Bruen by the judiciary will not ultimately be controlled by lawyerly parsing of the constitutional or precedential text; it will be a matter of personal judicial preference -- and the specificity problem identified here is just another opportunity for judges to disguise their policy preferences under the cloak of a legal rule. 

But if we make-believe that the putative legal rule will matter--well, Bruen promised that the relevant requirement for a historical analogue was not a "twin". And there are good reasons for that, which go beyond allowing for some amount of adjustment for societal developments as centuries pass. Requiring that state or congressional gun restrictions map on precisely to policy initiatives passed in the 19th century significantly limits the legislature's policymaking authority even in a domain where the Court agrees the legislature has the right to impose restrictions. It is facile to say that restrictions on firearms possession by the mentally ill is permitted, but Congress must only implement those restrictions via the precise programmatic means used in the 1800s. The constitution doesn't typically encode specific policy demands, it encodes general rules and standards that broadly define the parameters through which the democratic branches are allowed to fill in the details.

Given that, it seems to me that as far as Bruen is concerned, the germane constitutional question is whether the restriction in question is of the class of restrictions that had been historically been permitted. Once we answer that question in the affirmative, then Congress or the states should be given considerable leeway in figuring out how it wants to instantiate that restriction -- that inquiry being primarily a policy question which courts should be reluctant to intrude upon. Certainly, Congress cannot simply declare anything to be a "mental illness" restriction, anymore than New York in Bruen was allowed to declare the entire city of New York a "sensitive place". But it's equally clear that restricting persons who had a serious mental health episode from owning firearms is much more clearly under the umbrella of "restrictions on the mentally ill". The opposition to that rule is not really that it falls outside the category, it's that as applied here something like a "one strike rule" feels overbroad and unfair.

And maybe it is -- that rule may be too harsh. But again Bruen says it is not the judiciary's business to weigh competing interests. Mental health restrictions are historically permitted, this is Congress implementing such a restriction -- end of discussion. What is good for the goose is good for gander. That is, unless Bruen actually means what many of us suspect it to mean -- not an actual rule that constrains judicial partisanship, but a thin cloak for imposing pro-gun outcomes, text of the alleged legal rule be damned. We'll see. I'm not optimistic.

The "Plain Text" Threshold Requirement of Bruen

One aspect of the Supreme Court's recent Bruen decision I haven't heard a lot about is the apparent caveat that its "historical tradition" test only applies in circumstances where "the Second Amendment’s plain text covers an individual’s conduct." This, of course, suggests that there are other instances where the "plain text" does not cover the conduct, in which case a different, as-yet-unknown standard, applies. What sorts of gun regulations might skirt Bruen review because they are not covered by the "plain text"?

At one level, this inquiry is specious for at least two reasons. The first is that the Second Amendment's text is the furthest thing from "plain". It is notoriously one of the least well-written constitutional clauses, which perhaps is one reason why nobody "discovered" it covered an individual right to bear arms until over two centuries after its adoption, and why even following those decisions every lower court in the country adopted a method of interpretation that the Supreme Court summarily dismissed as incorrect in Bruen. Some plainness!

The second reason is that practically speaking the rule in Bruen will not be the rule in Bruen. Rather, the rule will be "strike down whatever gun regulations conservatives don't like", and no amount of lawyerly parsing of Bruen's language is going to change that. The Supreme Court or the Fifth Circuit, salivating at the prospect of pouring more guns onto the streets, is not going to even stutter just because it encounters a reading of Bruen that appears to stand in their way. Bruen is what they say it is, and what they'll say it is is a blank check to strike down gun regulations with wild abandon. So to that extent, this entire exercise is one of false hope.

But if we play make-believe for a moment, it seems to me that the majority of contentious gun regulations are not plainly covered by the Second Amendment, even under the Supreme Court's expansive view. "Plain", after all, is somewhat of a term of art in law. "Plain error" review doesn't cover all errors, only truly obvious, slap-you-in-the-face errors. The rule that tribal courts have, in the first instance, the right to determine whether they have jurisdiction over the case comes with an exception in cases where it is "plain" that they do not, but that exception is again does not cover all cases where tribal courts lack jurisdiction -- only the clear, indisputable cases.

The Court's recent gun cases -- Heller, McDonald, Bruen -- have all involved regulations that, more-or-less, effectuate a total bar on an individual's ability to keep and bear arms (where the former seems to cover one's home, and the latter the public sphere), or at least those arms which are common in the modern era such that they are effective as means of self-defense. Everyone in Chicago, and the average Manhattanite, cannot carry a gun at all. This, the Court says, plainly is covered by the Second Amendment's text. Laws which flatly prevent either a certain type of person or a person in a particular location from carrying any sort of (modern) armament can only be justified if they fit into historical categories where such absolute restrictions had been permitted.

The examples of gun regulations which the Court says should be assessed and may pass under Bruen also are of this sort. A ban on felons possessing guns is an absolute ban on that sort of person bearing arms. Can it be justified? Yes, the Court intimates, under the historical practice of limiting gun ownership by dangerous persons. A ban on carrying a gun into a courthouse is an absolute ban on bearing arms in that setting. Can it be justified? Yes again, the Court suggests, under the historical practice of limiting arms in "sensitive places". New York's "may issue" licensing regime means that large swaths of New Yorkers, based on largely discretionary bureaucratic judgment, cannot carrying a gun in public. Can that be justified? No, the Court says, one cannot call all of New York City a "sensitive place". All of these examples represent situations where one could say that the state is trying to create an absolute gun-free space for a particular class of person or location, an endeavor which the Court could say "plainly" implicates the Second Amendment's right to keep and bear arms.

But many important gun regulations are not of this sort. Consider California's assault weapons ban, which just was sent back to a district court to assess in the wake of Bruen. Most commentators, it seems, think the relevant inquiry after Bruen is whether an assault weapons ban represents the sort of gun regulation that has a historical parallel in the relevant constitutional time period (the typical claimed parallel is to rules governing "dangerous and unusual" weapons). I would argue, though, that there's a threshold question of whether Bruen applies at all based on whether the law plainly is covered by the Second Amendment. Unlike the rules at issue in Bruen, Heller, and McDonald, the assault weapons ban does not create or seek to create a "gun-free space". Individuals remain perfectly able to both keep and bear arms that can practically vindicate their personal right of self-defense outside the home. Being restricted from bearing the particular armament of their choice is not the same thing as being blocked from keeping or bearing arms in totality. So the "plain text" does not cover the California law, and accordingly the Bruen test is inapposite.

Again, it is important to stress that the position here is not that there is no argument that Second Amendment covers a right to possess assault weapons. There undoubtedly are such arguments, and I suspect such arguments are not at all frivolous. Perhaps they're even persuasive. But again, the issue is not whether the Second Amendment covers an assault weapons ban. The question is whether the plain text covers it. That can and should be viewed as a much narrower question, just as "plain error" is not remotely coterminous with "error".

Many other gun regulations are like this. Most licensing requirements (at least, those which aren't thinly veiled pretexts for banning guns altogether), magazine capacity limits, background checks, registration requirements -- none of these plainly are covered by the Second Amendment in the way that the laws at issue in Bruen and its predecessors are, and so none of them need to be justified by resort to Bruen's test.

I also don't think that the "plain text" language can be dismissed as a cavalier rhetorical flourish.  It is included at the top of Part II of Justice Thomas' majority opinion, where he announces the new text, the bottom of Part II, where he "reiterates" the test, and the top of Part III, where he applies the test. It also is notable that the portion of the opinion where Justice Thomas assesses whether the "the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct" (Part III.A) is quite brief, because he has "little difficulty concluding that it does [protect]" -- suggesting that the law at issue here is plainly under the Second Amendment's ambit in a way that other laws might not be. The vast majority of the Court's analysis applying the new test is not concentrating on whether the conduct is covered by the "plain text" (which it views as easy, in keeping with "plain" being "plain"), but on whether any of the historical examples of permissible gun regulations nonetheless warrant New York's statute. Again, this indicates that we are in the realm of a "plain" imposition on the Second Amendment; which in turn suggests that "plain text" is not superfluous verbiage.

I might even argue that treating "plain text" as a threshold requirement is necessary for Bruen's internal logic to make any sense at all. Bruen styles itself as a originalist/textualist opinion, but the "historical practices" test is embarrassingly atextual along two dimensions: (a) one could stare at the text of the Second Amendment indefinitely and never derive the test from it, and (b) looking at "historical understandings" is not the same thing as seeking to uncover the semantic meaning of the Second Amendment's words as they would have been understood at the time of ratification (which is what contemporary originalist textualism claims is its project). But if we view Bruen as doing what it says and only applying in cases where a gun regulation plainly is covered by the Second Amendment -- laws which seem to entirely prevent certain persons or places from being occupied by guns that practically can provide personal self-defense -- then the "historical practices" test makes a bit more sense from an originalist perspective. A pure textualist might struggle to justify even, say, the ex-felon ban on possessing weapons -- are they not "plainly" being deprived of the ability to keep and bear arms? Yes they are! But knowing that the framers did endorse at least some laws that incontestably limit certain persons' ability to keep and bear arms suggests limits on the original understanding of what the Second Amendment says that might otherwise be hard to square with the Amendment's "plain text". The utility of Bruen's test is considerably less apparent, however, in circumstances where there is not a "plain" imposition on the right to bear arms. In such cases, "historical practices" risks becoming a license for courts to cut bloody swaths through any law which happens to touch on the subject of guns whenever a suitably analogous regulation cannot be found (even when the reason it cannot be found is because the problem is novel and could not have had an obvious early-American analogue).

So I think there is good reason to view "plain text" as a threshold requirement before a court applies Bruen, and that many regulations which are categorized as "gun control" are not covered because they do not "plainly" impinge on the right to keep and bear arms. Indeed, if we take this seriously -- which, I again hasten to clarify, we almost certainly should not, because there is no way Bruen will serve as a license for gun regulation in any circumstance where conservatives don't want it -- Bruen could mark out a very interesting compromise: laws which "plainly" impinge on the Second Amendment (which is to say, seek to effectuate a total bar on possession of guns by certain people or in certain places) are subjected to the "historical tradition" inquiry. Laws which regulate guns but do not plainly fall under the Second Amendment's ambit (insofar as they leave space for significant practical ability to keep and bear arms) get rational basis review. That might actually be a compromise I could live with. 

But of course, this Court has not remotely signaled interest in compromise. Its maxim is that the strong take what they may, and the weak suffer what they must, and right now they are reveling in right-wing strength. So as much as I enjoyed this frolic into a fantasy where judges are constrained by law, in the real world I suspect the rule in Bruen will be whatever the far-right wants it to be.

Schoolchildren Shouldn't Have To Live Like Jews

In the wake of the Uvalde massacre, the internet is replete with proposals on how to avoid or at least mitigate the risks of yet another school shooting. Some in the Jewish community have suggested adopting some of the measures we have taken to keep our schools, centers, and synagogues safe -- things like controlled entry, on-site security, and other forms of "hardening the target".

Some of these suggestions might be good ideas, and most are being made with the best of intentions. But I feel like they overlooking something very important.

Growing up Jewish, these sorts of security interventions are so normal one can almost forget how abnormal they are. Of course there is a noticeable police presence during high holiday services. Of course someone has to check you in at the door before you're allowed to even enter the synagogue. Of course there is onerous keycard entry requirements if you want to access the building for a evening Torah study session. It is jarring to encounter the freedom of places that don't have that sort of security because they don't operate with the background presupposition that someone could be trying to kill their patrons at any moment.

Because these interventions are so normalized, we forget that having to impose these sorts of security measures is bad. These measures make Jewish life worse -- less open and more stressful, less accessible and more cloistered. Does anybody think that the ideal synagogue experience is like this? They may nonetheless be necessary because of the dangers Jews face -- but that's just it: they are reflective of Jews being a persecuted minority who are regularly targeted with violent threats and assaults. What does it mean to cross-apply them to the context of public elementary schools? It's saying that every 5 - 11 year old in America is as vulnerable as a member of the minority group that is, per capita, the most common target of hate crimes in the country! That's terrible! That should be seen as a catastrophe! If that is indeed the state of being a student in America, that is an appalling failure!

The title of this post is deliberately provocative. Jews should not have to live like this either. We should be able to live our communal life open and without fear, not looking over our shoulders for the next active shooter. But we've resigned ourselves to an inability to eliminate the root cause of our problem, antisemitism. We can't do it on our own, and broader society is not interested in investing the effort to make the project a success. So stuck with the reality of persistent violent antisemitism, at least over the medium term, these measures are suboptimal ameliorations of the consequences of our continued marginalization.

If schoolchildren are in the same boat, that must mean we've reached the same conclusion for them: as a polity, we just have given up on our ability to actually eliminate the threat to schoolchildren. We cannot be bothered to make the social and political investments necessary so that the status of schoolchildren is not analogous to that of a persecuted minority regularly targeted by violent threats. We have resigned ourselves to that level of vulnerability for our children, and now just seek to ameliorate the effects. That is appalling. It is appalling that Jews are forced to accept this; and it is a perverse form of justice that this quiescence be extended to every family with minor children.

I do not claim that the experiences of the Jewish community cannot be helpful in building out better security for public schools, in this decidedly suboptimal world where we have apparently decided to just accept this terrible vulnerability as a baseline. But we should not lose sight of the fact that if our experiences are even analogous -- what a striking indictment that is of our society. People should not have to live like this.