The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Imagine a world in which judges appoint the nation's most prestigious historians as experts to advise the court on matters of constitutional history. How about appointing the author of a book that the Journal of American History endorsed as "meticulous and thorough," that Garry Wills enthusiastically reviewed for the New York Times, and that received the prestigious Bancroft Prize?
Turns out that Michael A. Bellesiles, author of Arming America, fabricated sources, distorted facts, and committed fraud. The Bancroft Prize was rescinded and Emory University fired him. But some judges, professors, and activists had welcomed his thesis with open arms because he attacked America's "gun culture" and derided the right to bear arms. A Ninth Circuit opinion relied on him in support of its "collective rights" holding about the Second Amendment, but the embarrassing cite was removed after the scandal broke. Until then, Bellesiles would have been the perfect candidate for a court to appoint as an "expert" on history.
In an October 27 order in U.S. v. Bullock (S.D. Miss.), Judge Carlton Reeves expressed dissatisfaction with the Supreme Court's directive in Bruen that courts must review history to decide if Second Amendment restrictions are "consistent with the Nation's historical tradition of firearm regulation." He wrote that neither "this Court" nor "the Justices of the Supreme Court, distinguished as they may be," are "trained historians. "And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791."
Judge Reeves quoted Jennifer Tucker, editor of A Right to Bear Arms?, as stating that "the firearms history that appears in law journals and court briefs is not the firearms history familiar to many mainstream historians." That caught my eye, as Tucker then referred to my essay showing how the common law distinguished the peaceable bearing of arms from carrying weapons in a manner to terrorize others. It was based on historical statutes, commentaries, and judicial decisions—the kinds of references that courts and presumably "mainstream historians" would rely on.
Judge Reeves went on to quote Patrick Charles as stating that adherents of the Standard Model of the Second Amendment, who read the right to have arms as an individual right, as "fail[ing] to adhere to even the most basic norms of historical objectivity and methodology." And he quotes Saul Cornell, writing in Slate, accusing the Court in Bruen of having "cherry picked" the historical record. Both Charles and Cornell are partisan historians who oppose Second Amendment rights in their writings and amicus briefs.
"Not wanting to itself cherry pick the history," Judge Reeves concludes, "the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter. … This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals." Those decisions would be a good start, except that he seems to think that the Supreme Court got it wrong.
The United States correctly opposed the appointment of an expert in Bullock, noting: "The prospect of judges in all 94 federal judicial districts retaining a historian would be an expensive proposition and a departure from the typical reliance on the parties to provide support for their legal positions." So did the defendant, explaining: "Under both Bruen and our system of party presentation, the Court's analysis is confined to the historical record before it. A court-appointed expert may not expand that record."
In Baird v. Bonta, Judge Kimberly Mueller of the Eastern District of California ordered on December 8 that the parties show cause "why the court should not appoint its own expert witness to collect and survey evidence of the 'historical tradition that delimits the outer bounds of the right to keep and bear arms.'" Each party could nominate experts and "address the court's tentative observation that an appointed expert could provide a more thorough, rigorous, and balanced perspective than those the parties have offered to date." Good luck with that.
Perhaps Michael Bellesiles, who was last known to be bartending, would make a good choice?
Judge Roger Benitez expressed skepticism about "experts" in a hearing on December 12 in Duncan v. Bonta, the California magazine ban case that Bruen remanded for reconsideration. The historical documents that matter are enacted laws, ordinances, regulations, and the like. He ordered the State to prepare an Excel spreadsheet of the laws they consider to be historical analogues to present-day magazine bans, including dates of enactment and repeal and any judicial decisions on their constitutionality. The plaintiffs could then file a rebuttal.
Contrast that with the deferential approach in Ocean State Tactical v. Rhode Island, decided on December 14 in the District of Rhode Island. That State's magazine ban was upheld in part on the basis of "expert" opinion in support of the government, which the court found more credible than that offered by the plaintiffs. A court should not defer to the State's experts because they supposedly have greater or more prestigious academic credentials. Many academics are partisan supporters of gun restrictions. What should matter is the substance of the facts presented by the parties.
Perhaps we need a reminder from Chief Justice John Marshall in Marbury v. Madison (1803): "It is emphatically the province and duty of the Judicial Department to say what the law is." Judges may not defer to "experts" to advise what the law is. "Do your job," as New England Patriots head coach Bill Belichick famously said.
Both Heller and Bruen came to the Supreme Court on decisions granting motions to dismiss. They were decided on the basis of the complaints and the parties' briefs with no factual development. The Supreme Court was urged to decline to rule on the ultimate merits in both cases but rather to send the cases back down to the lower courts for more development—in Heller by the U.S. Solicitor General and in Bruen by the N.Y. Attorney General. But the Court rejected the suggestion in both cases, and instead conducted its own analysis of the relevant historical materials to determine the scope of the Second Amendment.
This was proper because historical information does not consist of the types of facts that are determined in a trial through competing witness and expert testimony. In legal jargon, historical facts are "legislative facts," not "adjudicative facts." As Judge Posner put it in Moore v. Madigan (7th Cir. 2012), striking down Illinois's ban on carrying firearms outside the home, "Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of the Illinois gun law." That is going to be true in pretty much every Second Amendment case after Bruen, as the historical inquiry the courts are required to undertake is purely a matter of legislative facts. As Bruen noted, the historical inquiry "that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge."
As Bruen explained, courts are "entitled to decide a case based on the historical record compiled by the parties." It is the government's burden to support a gun restriction with history. If it fails to do so, it should lose. The court should not go out of its way to do the government's job. This is especially true because the government has unlimited resources, always more than parties who challenge firearm laws.
If the parties do submit expert reports in Second Amendment cases, judges should treat them for what they essentially are—amicus briefs. And courts should be particularly wary of "experts" whose views have repeatedly been rejected by the Supreme Court. If the expert joined an amicus brief supporting the government in Heller, McDonald, or Bruen, that is a pretty good sign the expert's views are out of step with the Supreme Court.