The Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), is an odd decision. In that opinion Justice Thomas found that no law regarding possession of firearms could withstand judicial scrutiny unless it could be shown that the law fits with historical tradition. See that decision here. Historical custom or tradition has always been a factor, but more as an interpretive tool for ancient statutes and decisions. Justice Thomas’ decision has elevated historical research to a level on par with actual Second Amendment precedent. One judge in Southern Mississippi has tried to wrestle with that strange judicial standard and is annoyed. U.S. District Judge Carlton Reeves wrote a critical opinion about Bruen and expressed his frustration.
In a lawsuit that challenges the limits on felons to own firearms, Judge Reeves called on the parties to submit briefs regarding whether he should hire a historian to advise him on historical tradition in regard to felons owning forearms. He said he is not an expert in historical traditions and neither are the Supreme Court justices “in what white, wealthy and male property owners thought about firearms regulation in 1791.”
Judge Reeves noted historians are divided on whether the second Amendment pertains to individual right to bear arms or to a collective right. Yet, the Supreme Court is requiring him to play historian in the name of constitutional adjudication. See ABA Bar Journal report here.
The Bruen decision is truly odd in requiring judges to do exactly what Judges Reeves said, to “play historian.”