Second Amendment law is in a strange place right now. The Supreme Court's ruling this past summer in New York State Rifle & Pistol Association, Inc. v. Bruen struck down New York's licensing scheme for the concealed carry of firearms. More dramatically, though, the opinion rejected a consensus approach that lower courts had adopted to test the constitutionality of firearms restrictions. Rather than subject these laws to varying degrees of scrutiny (determining the government interest at issue and whether the law was sufficiently tailored to achieve that interest), the Court instead held that the constitutionality of gun restrictions was solely a question of history and tradition:
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."
I've critiqued this approach to the Second Amendment at length here. To summarize my primary concerns: a focus on history and tradition forces courts out of their legal wheelhouse and into unfamiliar territory of undertaking rigorous historical analysis and attempting to analogize it to the modern day. The Bruen Court provides little guidance on how to analogize historic laws, simply stating that courts must evaluate whether they result in similar restrictions to the law being evaluated, and whether they were motivated by comparable concerns. Questions over how how far analogies may extend (e.g., how much support partial restrictions are due), how many laws are sufficient to establish a tradition, how old or recent laws must be to be relevant, are all unresolved and subjected to inconsistent analysis in the Court's own opinions.
My criticism of the history and tradition approach aside, what are lower courts to do now that this is how Second Amendment analysis is to be done. A few judges have suggested that independent experts on history may provide guidance, acknowledging that courts and attorneys lack the expertise to do so. Judge Carlton Reeves, for example, ordered the parties to a dispute over the constitutionality of a gun restriction to indicate their position on whether a consulting expert should be appointed. As it happens, both parties opposed the notion, with the United States raising concerns over how expensive such an approach would be if applied on a wide basis. This concern is unconvincing. The Supreme Court has ruled that gun restrictions must now be evaluated against history and tradition, and judges and lawyers tend not to be trained historians. If engaging in rigorous and accurate analysis is the goal, the Court has effectively required the costly measures required to accomplish correct results.
At the Volokh Conspiracy, Stephen Halbrook argues against the employment of historical experts to advise courts on the historic landscape of gun restrictions in Second Amendment cases. There are two focal points of Halbrook's arguments. First, Halbrook raises concerns over biased experts. Second, Halbrook argues that it is courts that are required to determine what the law is--not experts, and that appointing experts would upset this balance. There are problems with both of these arguments, and Halbrook's argument as a whole is a good example of those arguing for purportedly neutral approaches to constitutional interpretation doing so out of a desire for specific outcomes rather than accuracy or neutrality.
Halbrook starts by with an anecdote of a scholar who engaged in fraudulent Second Amendment research--suggesting that experts appointed by courts may end up engaging in similar analysis:
Turns out that Michael A. Bellesiles, author of Arming America, fabricated sources, distorted facts, and committed fraud. The Bancroft Prize was rescinded and Emory University fired him. But some judges, professors, and activists had welcomed his thesis with open arms because he attacked America's "gun culture" and derided the right to bear arms. A Ninth Circuit opinion relied on him in support of its "collective rights" holding about the Second Amendment, but the embarrassing cite was removed after the scandal broke. Until then, Bellesiles would have been the perfect candidate for a court to appoint as an "expert" on history.
As for experts who have not engaged in such flagrant misconduct, Halbrook suggests that they are almost just as bad:
Judge Reeves went on to quote Patrick Charles as stating that adherents of the Standard Model of the Second Amendment, who read the right to have arms as an individual right, as "fail[ing] to adhere to even the most basic norms of historical objectivity and methodology." And he quotes Saul Cornell, writing in Slate, accusing the Court in Bruen of having "cherry picked" the historical record. Both Charles and Cornell are partisan historians who oppose Second Amendment rights in their writings and amicus briefs.
. . .
If the parties do submit expert reports in Second Amendment cases, judges should treat them for what they essentially are—amicus briefs. And courts should be particularly wary of "experts" whose views have repeatedly been rejected by the Supreme Court. If the expert joined an amicus brief supporting the government in Heller, McDonald, or Bruen, that is a pretty good sign the expert's views are out of step with the Supreme Court.
Halbrook does not take a similarly critical approach to how courts are supposed to analyze history and tradition without appointing experts. Were he to do so, his argument would fall apart. Halbrook's critique is based on the possibility that experts will engage in incorrect or biased analysis. But this possibility becomes a guarantee absent expert analysis--in which only the submissions of attorneys advocating for their clients form the basis of what is supposed to be a thorough and balanced analysis of the relevant history.
Additionally, Halbrook's view of what would render an expert's analysis untrustworthy is revealing. He suggests that any analysis that is out of step with the Court's recent opinions on the Second Amendment are unreliable--particularly in the last paragraph of his analysis. It seems that Halbrook's metric for accurate historical analysis is what the Court has declared the history to be, rather than what the history actually was. Under such a formulation, expert opinions are only reliable to the extent that they comport with the rulings of the non-historian members of the Court's majority in prior Second Amendment cases. This is not only a bonkers approach to evaluating historical analysis, but it is designed to guarantee outcomes overturning restrictions on gun possession.
What about the second argument, that it is the province of the Court, rather than experts, to determine what the law is? Halbrook writes:
Both Heller and Bruen came to the Supreme Court on decisions granting motions to dismiss. They were decided on the basis of the complaints and the parties' briefs with no factual development. The Supreme Court was urged to decline to rule on the ultimate merits in both cases but rather to send the cases back down to the lower courts for more development—in Heller by the U.S. Solicitor General and in Bruen by the N.Y. Attorney General. But the Court rejected the suggestion in both cases, and instead conducted its own analysis of the relevant historical materials to determine the scope of the Second Amendment.
This was proper because historical information does not consist of the types of facts that are determined in a trial through competing witness and expert testimony. In legal jargon, historical facts are "legislative facts," not "adjudicative facts." As Judge Posner put it in Moore v. Madigan (7th Cir. 2012), striking down Illinois's ban on carrying firearms outside the home, "Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of the Illinois gun law." That is going to be true in pretty much every Second Amendment case after Bruen, as the historical inquiry the courts are required to undertake is purely a matter of legislative facts. As Bruen noted, the historical inquiry "that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge."
Halbrook and the Court may deem historical facts as legislative facts that need not be developed by the parties, but this bare proclamation does not undo the reality that history, tradition, and the relevant context can be complicated and require a fair amount of work and training if accurate results are to be obtained. For example, the Bruen majority distinguished England's Statute of Northampton as largely irrelevant as an analogous historical restriction on the carrying of firearms. One of its bases for doing so was to note that the statute, in its early days, applied to the carrying of armor and larger weapons like halberds. Knives, which the Court contended were most analogous to modern day handguns, were not similarly restricted. In doing so, though, the Court overlooked a great deal of relevant historical context. Knives, while sometimes used for combat and self-defense, were also highly functional--especially in the medieval era. As an example of one overlooked function, the Statute of Northampton was enacted hundreds of years before the fork was introduced to England--before then, knives played a central role as a utensil. The Bruen majority appears to have overlooked all of this context, resulting in a misleading claim of a close analogy between handguns and knives. (For citations and other examples of the Bruen Court's failure to account for the complexity of historical analysis, see my article here).
This is only one example of how it is misleading to treat the original meaning of constitutional provisions, or the history and tradition of gun restrictions, as nothing more than legislative facts. To engage in historical analogizing, one must be aware not only of the text of prior laws, but the context of their enactment, how they were applied, and what their text meant to those who were alive at the time. This is a complex, fact-intensive undertaking, and simply declaring this to be a simple task that judges can undertake at the pleading stage does not change this. Instead, such arguments and proclamations are a tactic designed to draw attention away from the complexities of the approach the Court has adopted.
Arguments like Halbrook's should raise alarms to anyone who is seriously committed to the task of interpreting the Constitution based on its original meaning or in a manner that aligns with history and tradition. Under the guise of neutrality and the illusion of simplicity, advocates like Halbrook urge a method of interpretation that is designed to accomplish specific policy outcomes. The history and tradition approach has many problems. But if it is the approach that courts must take, there may be ways to make it better. Appointing experts is one such approach. Those who oppose this proposal are not concerned with accuracy--instead they treat the Court's precedent as historical gospel and seek only to perpetuate desired policy goals.
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