As a federal criminal lawyer, it is refreshing to observe a federal district court’s admission that applying the Bruen case in federal criminal firearms cases is highly challenging. In New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. __, 142 S.Ct. 2111 (2022) (“Bruen“), the United States Supreme Court, in a significant Second Amendment decision, struck down a New York gun regulation – holding that it was unconstitutional under the Second Amendment. The origins of that New York law dated back more than a century. However, the Bruen Court nonetheless held the law to be unconstitutional because the Supreme Court’s “historical analysis” revealed that there was no American tradition of firearm regulation that justified the statute at issue.
Approximately two weeks ago, the court in United States v. Bullock, No. 3:18-CR165-CWR-FKB, 2022 WL 16649175 (S.D. Miss., Oct. 27, 2022), the defendant filed a motion to dismiss the section 922 (g)(1) firearms charge brought against him as unconstitutional. The Bullock court first noted that, after Bruen, “adjudicating the issue presents certain difficulties” because “Bruen instructs courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” Id. However, citing Seventh Circuit Court of Appeals precedent, the Bullock court further noted that “historical consensus on this issue is elusive.” Id. (citing United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (“scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms.”); United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) (“scholars disagree about the extent to which felons—let alone misdemeanants—were considered excluded from the right to bear arms during the founding era.”). Moreover, the Bullock court found that the Supreme Court in Bruen had itself even “acknowledged [that] historical analysis can be difficult.” Id. at *1 (citing Bruen, 142 S.Ct. at 1230 (stating that historical analysis “sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.”).
Accordingly, the Bullock court, after finding that it was not a “trained historian,” but yet “now, in light of Bruen, was “expected to play historian in the name of constitutional adjudication,” asked the parties “whether it should appoint a historian to serve as a consulting expert in this matter” – in order to resolve the question of whether section 922 is Constitutional based upon a historical analysis. Id. at *2. As noted by the Bullock court, “[A]n expert may help the Court identify and sift through authoritative sources on founding-era firearms restrictions.” Id. at *3.
The Bullock additionally noted, “[S]imply put, ‘[t]he firearms history that appears in law journals and court briefs is not the firearms history familiar to many mainstream historians.’” Bullock, at *2 (citing A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment 187 (Jennifer Tucker et al. eds., 2019). The court further stated, “[P]erhaps the most glaring disagreement is whether the Second Amendment confers a broad, individual right to bear arms, or a more limited, collective right to bear arms”). Id.
The Bullock court’s suggestion that even a federal district court judge needs an expert historian to help apply the Bruen court’s historical analysis inquiry is right on point and refreshingly honest. It also underscores the fact there will likely be a tidal wave of motions to dismiss, seeking to find numerous federal firearms laws to be unconstitutional. Indeed, Leonard Trial Lawyers just filed one during the week of November 7, 2022. See the Docket for the United States District Court for the Northern District Illinois, at 18 CR 880, Dkt. No. 131 (moving to dismiss section 922 and 924 counts in the Indictment).
Written by Michael Leonard
Leonard Trial Lawyers
November 10, 2022