Lower-court judges are bound to follow the law as decreed by the Supreme Court. They aren’t bound to like it. And so, lost amid the end-of-term flurry at the high court, came another remarkable ruling by U.S. District Judge Carlton W. Reeves of Mississippi.
Reeves declared that the court’s interpretation of the Second Amendment compels the unfortunate conclusion that laws prohibiting felons from having guns violate the Second Amendment. He took a swipe at the conservative justices’ zealous protection of gun rights even as they diminish other constitutional guarantees. And, for good measure, he trashed originalism, now “the dominant mode of constitutional interpretation” of the Supreme Court’s conservative majority. “This Court is not so sure it should be,” Reeves ventured, but the more he wrote about originalism, the more dubious he sounded about it.
You might recall Reeves from his 2020 case pleading with the Supreme Court to fix the injustices inflicted by its invented doctrine of “qualified immunity” for police and other law enforcement officials who engage in egregious, and unconstitutional, behavior.
You might recall him from an earlier phase of the case just decided, when he asked the parties whether he should appoint a historian to serve as expert witness, given the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen finding that the constitutionality of gun laws depends on whether they are consistent with the “history and tradition” of restrictions in place at the time the Constitution was written.
“This Court is not a trained historian,” observed Reeves, a Barack Obama appointee. “The Justices of the Supreme Court, as distinguished as they may be, are not trained historians. … And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.”
Reeves didn’t end up appointing an outside historian — and, having played that court-assigned role, came up with a conclusion that might discomfit his superiors at the high court. His 77-page opinion, declaring that the long-standing federal ban on felons’ possessing firearms could not be constitutionally applied to Jessie Bullock, is just the latest evidence of the chaos and mischief unleashed by Bruen.
Bullock served about 15 years for aggravated assault and manslaughter after a deadly 1992 bar fight in Jackson, Miss., when he was 31. He was charged with illegal possession of a firearm in 2018, at age 57. The case took some time to get to trial, and in the interim, after the Supreme Court ruled in Bruen, Bullock challenged the constitutionality of the felon-in-possession ban as it applied to him.
In District of Columbia v. Heller, the 2008 case finding that the Second Amendment protects an individual right to bear arms, the court asserted that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill.” In concurring opinions in Bruen, Justices Samuel A. Alito Jr. and Brett M. Kavanaugh made similar assurances.
Other courts — the government cited 120 post-Bruen cases — have relied on that to find the federal ban on felons possessing firearms passes constitutional muster. Reeves disagreed, as did the full U.S. Court of Appeals for the 4th Circuit in a ruling last month involving old, nonviolent offenses. The government, Reeves said, had failed to meet its burden of proving, as required by Bruen, “that there is a historical tradition of disarming either the violent or the dangerous.”
Among the issues judges will now have to decide, Reeves noted: Does the ban on felons possessing firearms cover all felonies in the modern penal code or just those that existed at the founding? Does the felon ban cover all felonies or just crimes involving violence? Is it temporary or does it last a lifetime? In other words: Bruen has created quite the mess. The justices might launch the cleanup — or make things even messier — next term; on the final day of this term, they agreed to hear a challenge to another part of federal gun law, preventing those subject to domestic violence restraining orders from having guns.
But Reeves, having trashed Bruen and then followed it, wasn’t done. He went on to question the court’s seemingly skewed priorities — elevating the Second Amendment to its meaning two-plus centuries ago above others to which it applies a far more cramped reading.
“We have one Constitution. All of it is law. It has been enforced today as best as this Judge can discern the Bruen Court’s holding and reasoning. And, one hopes, a future Supreme Court will not rest until it honors the rest of the Constitution as zealously as it now interprets the Second Amendment.”
Then he turned to originalism, questioning whether “founding-era Americans collectively agreed that for time immemorial, their descendants would be bound by the founding generation’s views on how the Constitution should be read” and whether “ceding this much power to the dead hand of the past is so wise.”
Indeed, “many of our Nation’s finest moments came when we rejected the original public meaning of a constitutional provision,” he noted, citing rulings on school desegregation, gender equality and gay rights.
“Change is unstoppable,” Reeves concluded. “And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.”
Powerful words. I can think of six people in particular who would benefit from reading them.
Re: Constitutional Originalism
Originally Posted by Chip
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