Brown v. U.S.A.: Order (January 29, 2025)

CONCLUSION

The age-old problem of judging is how to honor an individual’s Constitutional rights and respect the will of a democratically-elected majority. We look to history to try and find a satisfying answer to that dilemma. But this Court has its doubts that the historical approach wielded in these recent Second Amendment cases is the right one. See Bullock, 679 F. Supp. 3d at 501.

Bruen specifically requires judges to follow “history and tradition,” evaluate whether new laws are “relevantly similar” to past laws, and determine whether certain firearms are “dangerous and unusual.” These tests are deeply concerning to many.¹⁶ They will continue to generate “confused and confusing lower court precedent.” Jacob D. Charles, The Dead Hand of A Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67, 76 (2023).¹⁷

But step back from that for a moment.

At their core, the Supreme Court’s recent Second Amendment cases are predicated upon a lack of trust. The Heller, McDonald, and Bruen decisions did not trust that local and state lawmakers had protected their citizens’ Second Amendment rights, or would protect them going forward. The decisions also expressed doubt that federal courts were doing enough to protect those rights. See Bruen, 597 U.S. at 26. New boundaries were set. They used history as the first and most important test of legality, as if history would be a more trustworthy and reliable guide to constitutional law.

The ultimate irony is that the version of history endorsed in these (and other) decisions has itself been deemed untrustworthy by actual historians.¹⁸ The experts don’t think lawyers and judges have gotten it right.¹⁹ And, unfortunately, the lack of trust inherent in these decisions cannot be untangled from the public’s declining trust in Article III itself.²⁰

As one of those tasked with applying these new tests, this Court understands the confusion. It feels the frustration. But its doubts and the discourse, no matter how serious or justified, cannot deter it from faithfully applying the law, even if that application is later found to be erroneous. See United States v. Rahimi, 61 F.4th 443 (5th Cir.), rev’d, 602 U.S. 680 (2024).

The controlling standard of the moment requires this Court to “determin[e] the contours of acceptable prosecutions through the resolution of continual as-applied challenges,” based on the evidence and arguments before it. Daniels, 124 F.4th at 978. Under that standard, Mr. Brown’s as-applied challenge is sustained. His motion is granted and the case dismissed.²¹

SO ORDERED, this the 29th day of January, 2025.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

Notes

16. Take the “relevantly similar” test, for example. As the D.C. Circuit just explained, “there simply is no relevantly similar historical analogue to a modern, semiautomatic handgun equipped with an [extra-large capacity magazine].” Hanson v. District of Columbia, 120 F.4th 223, 240 (D.C. Cir. 2024). Judges can instead cherry-pick the historical analogues they wish, discarding contrary examples as “ambiguous” or “inconclusive.” Antonin Scalia, A Matter of Interpretation 36 (1997). “[T]he trick is to look over the heads of the crowd and pick out your friends.” Id. at 35-36. “Dangerous and unusual,” meanwhile, merely combines two standardless words into one term. Everything is dangerous in the right (or wrong) circumstance; even water turns dangerous in a flash flood, at a TSA checkpoint, or on the floor of a grocery store. And who is to say a certain firearm is unusual? The test ultimately turns on a judge’s view of data without deference to the other, more democratic branches of government.
17. The confusion has persisted after Rahimi. See Madiba K. Dennie, Federal Judges (Still) Have No Earthly Idea What to Do With the Supreme Court’s Second Amendment Cases, Balls and Strikes (Jan. 15, 2025) (collecting cases).
18. It’s true for Heller. “An overwhelming majority of historians” are unconvinced that the Second Amendment protects an individual right to bear arms. Patrick J. Charles, The “Reasonable Regulation” Right to Arms: the Gun-Rights Second Amendment before the Standard Model, in A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment 168 (Tucker, et al., eds., 2019). It’s true for Bruen. See Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 626-27 (2023); Albert W. Alschuler, Twilight-Zone Originalism: The Peculiar Reasoning and Unfortunate Consequences of New York State Pistol & Rifle Association v. Bruen, 32 Wm. & Mary Bill Rts. J. 1, 72 (2023). It’s true for Dobbs. See Joint Statement of the American Historical Association and the Organization of American Historians, History, the Supreme Court, and Dobbs v. Jackson, July 6, 2022 (calling Dobbs a “misinterpretation about the history of legalized abortion in the US” containing “misrepresentations” that do not meet “high standards of historical scholarship”). And it’s true for Trump. See Organization of American Historians, Statement on Supreme Court Decision in Trump v. U.S., July 8, 2024 (“The U.S. Supreme Court has at best overlooked, and at worst abused, the evidence of the significance of the founding era in understanding our Constitution. Practitioners of American history need to call them out in the most public ways possible. With respect for historical evidence and argument, we dissent.”). Other times, later research proves the Court’s take on history to be incorrect. See Jimmy Hoover, UK Legal Scholars Track Down 17th Century Murder Case, Prove Supreme Court Wrong, Nat’l L. J., June 14, 2023 (describing new research showing Gamble v. United States to be wrongly decided). The open question is whether the judiciary will incorporate that new research into its conclusions the next time the issue is litigated.
19. See Jonathan D. Martin, Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts, 78 N.Y.U. L. Rev. 1518, 1525 (2003).
20. See David F. Levi et al., Losing Faith: Why Public Trust in the Judiciary Matters, 106 Judicature 71-77 (2022).
21. This does not prevent the government from seeking to enforce § 922(o) in other matters, to the extent it can meet the applicable standard in them.