Bruen ruling creates more problems than it solves

Recent decisions prove Bruen, the U.S. Supreme Court’s 2022 gun rights case, has created a world of problems, as illustrated by the case of 57 year-old Jessie Bullock of Mississippi, who served 17 years for killing a man in a bar fight. 18 U.S.C. 922(g)(1), enacted in 1938, creates a lifetime ban on the possession of guns or ammunition by anyone convicted of a crime that carries more than a one-year sentence.

Bullock was charged in 2018 with possession of a gun in his home. Mississippi U.S. District Court Judge Carlton Reeves reluctantly dismissed charges on the basis of Bruen. The reason? § 18 U.S.C. 922(g) was enacted in 1938, not 1791 or 1868, the years the Second and 14^th Amendments were ratified.

Bruen eliminated the constitutional scrutiny-balancing test for Second Amendment laws, replacing it with a “Nation’s Historical Tradition” test requiring that for a gun law to be constitutional the law, or a relevant analogy, must have existed in or around 1791, or as Justice Amy Coney Barrett suggested, at the time of the ratification of the 14^th Amendment.

Reeves wanted to appoint a historian as an expert witness to help the court understand what laws existed in 1791 and what they then meant. The new “discernment of historical tradition” standard, the court observed, is without accepted rules of evidence, yet it must be applied based on 230-plus- year-old evidence. Historian Jill Lepore wrote, “the rule of evidence now appears to be: if I agree with it, it’s evidence — if I don’t, it’s not.”

Reeves asked whether the court had to question if when evaluating the 922(g)(1) felony-in-possession ban he should determine whether the felony itself even existed in 1791 (there were nine), and whether only violent felonies should result in permanent disarmament. In colonial times, dangerous people were disarmed to preserve political and social order; not to protect potential victims from future crimes.

Post-Bruen, the government cannot assert that a gun law serves a compelling government interest; it must now prove the law is consistent with the nation’s historical tradition of gun regulation as it existed in 1791. The ostensible purpose? To prevent lawmakers and judges from diluting the Second Amendment rights in a way that balances the interests of society against the rights of the individual.

But in doing so, Reeves wrote, Bruen…“construed the [2A] text so expansively we are still working to understand its scope.” By giving such exuberant life to 2A, the court may have smothered other constitutional rights, such as the right to stay alive. In holding that the right to self-defense by firearm is a core constitutional right, the right to stay alive, free from murderous assault, must also be a core constitutional right.

And as to originalism being used as a means to interpret constitutional rights in the 21^st century, we agree with Reeves who asked whether giving so much “power to dead hands” is wise, as so many of the founding era beliefs, then cherished, have been found wrong or unworkable.

While placing the burden on the government to prove the constitutionality of proposed regulations may be generally acceptable, we disagree with the wisdom of measuring all modern efforts at gun regulations against laws that existed in 1791. Few gun laws then existed, and of those many would be considered discriminatory today.

Times have changed; we need to be able to find a middle ground to stop the proliferation of weapons among civilians and still uphold Second Amendment rights.

In our view, Bruen raises more problems than it solves.

Editorial Advisory Board member Arthur F. Fergenson did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.