U.S. District Judge Carlton Reeves considers appointing a historian to review the historical record

[In It to Win It]

Mark Joseph Stern
@mjs_DC

U.S. District Judge Carlton Reeves considers appointing a historian to review the historical record and decide whether § 922(g)(1)—which bars felons from possessing guns—is supported by Founding-era law and tradition. https://s3.documentcloud.org/documents/2325

Mark Joseph Stern
@mjs_DC

In Bruen, the Supreme Court forced lower courts to play amateur historian and decide whether modern gun restrictions have an analogue from 1791. This task leads to egregiously bad and dilettantish historical analysis. Reeves wants to avoid that by appointing an actual expert.

Reeves is openly skeptical that judges (who have no historical training) can reliably interpret Founding-era history. He notes the temptation to simply cherrypick facts that fit their conclusion.

(Please excuse me for tweeting an opinion that cites me.) https://s3.documentcloud.org/documents/23255743/us-v-bullock-historian-order.pdf

Mark Joseph Stern
@mjs_DC

Today's judges "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."

-Judge Reeves
https://s3.documentcloud.org/documents/23255743/us-v-bullock-historian-order.pdf

Link to tweet

[LetMyPeopleVote]

1. A 1792 case reveals that key Founders saw abortion as a private matter

Again, Alito is a partisan hack who does not know history. Alito cited a witch hunter who was an advocate for marital rape as his authority to overturn Roe. Alito is both a partisan hack/bad lawyer and a bad historian

Link to tweet

https://www.washingtonpost.com/outlook/2022/06/24/dobbs-decision-looks-history-rescind-roe/

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Alito contends, however, that pre-quickened abortions were always strongly condemned, as shown by the wave of statutes that states passed in the 19th century criminalizing abortion for the entire pregnancy. Yet, over a third of the states actually retained the imprint of quickening in these laws, assigning a distinctly lesser penalty for abortions that took place before quickening.

Even more importantly, there is scant evidence of public concern about fetal “personhood” or moral opprobrium prompting those new state laws in the 19th century, as Alito claims in Dobbs. In fact, there appears to have been no public pressure at all for tougher laws before 1845. All the statutes passed before 1845 were added during routine revisions of state criminal codes, probably meaning that most were enacted without actual debate.

The courts should not rely on partisan hacks like Alito fo cherry pick history to support horrible decisions

[in2herbs]

2. In order to review the historical record for this reason wouldn't the historian have to

lay out the Founding Fathers intentions for 2A? Perhaps such a review would stop certain judges from cherry-picking the history of the 2A to reach their decisions. And, if not stop, embarrass them by revealing how ignorant they are?

[DetroitLegalBeagle]

3. No

All the historian would have to do is show whether or not a law similar to the one in question was in existence in 1791. If it wasn't, then Bruen says the law is unconstitutional.

[intheflow]

4. I hope all the historians they consult

conclude that the Founding Fathers never had to consider gun regulations because muskets are in no way equal to the fire power and lethality of modern guns. It’s like saying, “The founding fathers read books and write letters. But they said nothing about digital social media so I guess there’s no way to regulate it!”