Originalism in the Lower Courts: Fifth Circuit Panel Invites Amicus Briefs on Second Amendment

"Of particular interest are historical gun regulations applicable to intoxicated or impaired individuals."

On June 5, a Fifth Circuit panel (Smith, Higginson, and Willett) heard oral argument in United States v. Daniels. In this case, the defendant argues that a prohibition on possession of firearms for users of intoxicants and marijuana violates the Second Amendment, as construed by Bruen. No amicus briefs were filed in this case. The only submissions were made by the Federal Public Defender and the Department of Justice. Two days after oral argument, the panel issued a directive:

The court invites briefs from amici curiae who wish to supply relevant information regarding the history and tradition of restrictions on the use and possession of firearms as pertinent to the issues presented in this case. Of particular interest are historical gun regulations applicable to intoxicated or impaired individuals. Such briefs must be filed by July 6, 2023 (regardless of any time limitations set by rule).

I wholeheartedly endorse this directive. In my article, Originalism and Stare Decisis in the Lower Courts, I explain that lower courts can remedy the lack of originalist briefing by inviting amici to submit briefs. Specifically, with such a request, the panel is indicating there is interest. Moreover, there is no need to seek leave from the parties.

I encourage scholars on the Second Amendment to submit briefs in this case. Hunter Biden's lawyers may also be interested!

Going forward, the Fifth Circuit, and other courts, should create some sort of repository of such requests, and provide public notification. At it stands, only the handful of lawyers who made appearances in these cases would have seen the directive. Thankfully, a few people pointed it out to me.

Comments

[Religion and Politics, my life]

This will fail on the same basis as Heller passed. Joyce Lee Malcolm's scholarship will show that the intoxication approach is just a ruse to take away a right. This would be coerced speech or prior restraint of some sort , to try to get some offenses in regard to drinking as a basis for denying a right.

[John F. Carr]

The factual record should have been developed in the district court. Say I submit a photocopy of an old book of ordinances showing that Enfield, Massachusetts once prohibited firing a weapon on Sunday after taking Communion. Is that evidence of a custom? Is that evidence that one guy in one small town couldn't hold his wine?

[LawTalkingGuy]

It would be crazy if the courts of appeal and last resort were actually restricted to a record developed below under known rules of evidence and procedure in making a factual determination.

[ReaderY]

I think the idea here is that the Court of Appeals is asking for sources of law, not fact. Evidence is a source of fact. So sources of law are not evidence.

The cases presented in an appellate brief don’t have to have been first presented in the trial court. Even when they are old cases, from other jurisdictions, etc. I think the argument would be that old statutes and ordinances are similar.

[LawTalkingGuy]

“Of particular interest are historical gun regulations applicable to intoxicated or impaired individuals. Such briefs must be filed by July 6, 2023 (regardless of any time limitations set by rule)

The courts plan:

1. Do a survey of old gun regulations over the last two centuries dealing with this discrete problem. Do local ones count? Who knows! Just establish a history and tradition.

2. You have three weeks to do this. So just do an n-gram search on Google scholar, that’s enough to establish a definitive tradition in the entire country.

3. Me and my colleagues and our clerks who have three year degrees in reading casebook excerpts will possibly use these briefs and sources to decide what the definitive history and tradition was on this topic. Or maybe not. We will accept and disregard historical sources at our leisure with no guiding principles.

4. The history we made up is now the law for all time and binds a modern society to a past we may or may not have imagined.

5. It shows that the guys who thought domestic violence against women wasn’t a big deal also were drunk all the time. So you can’t prevent intoxicated people from having guns.

6. We take no moral responsibility for this stupid outcome and in fact don’t think it’s stupid.

7. If you call it stupid you are a woke dummy who hates America.

[Kazinski]

Well actually the text of the 2nd amendment is law as informed by tradition and history.

So certainly the core right of the second amendment is "the right of the people to keep and bear arms shall not be infringed".

After that you are tinkering around the edges exploring the rights of non-violent felons, drunks and pot smokers, with a few arguments about sensitive places.

It certainly is more settled than 1st, 4th, 5th, 12th, 14th amendment law, and nobody's throwing up their hands screaming 'let's throw it all out, we'll never figure out this mess'.

Except of course the censors who don't like freedom of speech, cops and prosecutors that dislike the 4th, and bigots and politicians that think the 14th constrains them too much. Them and the gun grabbers are all part and parcel of the same mindset.

[LawTalkingGuy]

Uh if it was more settled, there wouldn’t be a Bruen test and there wouldn’t be lower courts asking for all these amicus briefs about discrete gun regulations and issuing these lengthy opinions.

[Religion and Politics, my life]

No, it is the result of tradition and history, a final result.
The injustice ---- as I'm sure you can see ---- is , Who will define the substance abuse limitations?
You can't make a law inviolable and make the circumstances (your view) how you easily violate it.

[Dr. Ed 2]

IANAA but what comes to immediate mind is the changing definition of intoxication from the 18th & 19th Centuries -- even from the 1950s when OUI was defined as a 1.5 BAC instead of the 0.8 used today.

The amount of alcohol that was consumed in the days of sail is mindboggling -- beer was safer to drink than water because it had been boiled and its lower pH tended to prevent bacterial growth. This was particularly true in the era of the hand-dug village well which was often contaminated by groundwater.

Notwithstanding that, even when there was safe water from springs or wells dug away from contamination, an amazing amount of alcohol went to sea. And of course they were armed.

[apedad]

I wonder why they couldn't just boil the water then drink that after it cooled.

[Brett Bellmore]

Because it was expensive, and a lot of trouble, and it didn't stay sterile in any case. And if you were going to boil the water, why NOT make beer, and at least get in some calories, and make it taste better, and drown your sorrows?

You have to remember that our ancestors back then were, on average, poor on a level you never see today. Even people on welfare today have more resources available to them than a middle class person did back then. The amount of fuel to routinely boil water would be a major expense!

As well, remember the germ theory of disease wasn't even developed until the 19th century; It wasn't even clear to them that boiling water was important! They just knew that beer was healthier than water for some reason. For all they knew, it protected you against noxious miasma, or something like that.

[Kazinski]

You are forgetting the antibacterial properties of ethanol, and while you do boil some water making beer, small beer and watered down wine and diluted cider where apples are a crop is never boiled were often provided to children, and adults especially in the morning.

[hobie]

Unrelated, I know. But, please gentlemen, a moment of silence

Cormac McCarthy, Novelist of a Darker America, Is Dead at 89

[Area Man]

This is actually inappropriate on the court’s part. Under Bruen, since the text of the Second Amendment covers possessing bearable arms, it is up to the government to produce evidence that this prohibition fits within the history and tradition of the nation’s gun laws, with particular emphasis on the time of the Second and Fourteenth Amendments’ ratifications. If the government didn’t do that, then the court has to rule against it. It shouldn’t be asking for outside help.

[Religion and Politics, my life]

Speaking of the 14th
Joshua J. Craddock, Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?, 40 Harv. J. L. & Pub. Pol’y 539 (2017)
Yes, The Harvard Journal of Law & Public Policy

[SRG]

My initial reaction was, shouldn't the courts themselves do this? but then I realised, this really is an example of where courts truly need amici curiae (or "curious friends" as the joke has it). Judges are not historians and should not be expected to be historians.

[Kazinski]

Actually it's up to the parties in the case to make their arguments. Obviously they can take notice of amici briefs, but keep in mind many lower courts don't routinely allow amicus briefs.

From Gibson Dunn in 2021 petitioning the Committee on Rules of Practice and Procedure Administrative Office of the United States Courts for a uniform amicus procedure across all district courts:
"As frequent district court amicus counsel, we have many times searched in vain for applicable rules governing the circumstances in which a particular district court will accept or refuse amicus briefs, how such briefs should be formatted, and when and how to file such a brief. "

[bernard11]

I eagerly await the arguments that a law against drunks carrying guns is unconstitutional, maybe because there were no such laws in 1800 or whenever.

What absurdity.

[Rev. Arthur L. Kirkland]

Clingers gonna cling.

Until better Americans impose adult supervision, as has become the norm in modern, improving America.

[Religion and Politics, my life]

Bernard, you do reallize that the first thing that will happen is, You don't have to be drunk with the gun, you need only have been drunk in the last [ to be determined by your partial government lawyer] years.
Or your ex-wife testifies , or your poliltical enemy, or your paid-off local bargtender

[Brett Bellmore]

If you can go from drunkenness being a minor matter to it requiring you to not exercise or even retain constitutional rights, just because the majority and/or government changes their view of it, what else can we change our view of, and then make disqualifying for exercise of civil rights?

If the tide turns, and we go back to regarding transgenders as insane, rather than heroic, can we bar them from exercise of civil liberties on that basis? What's the principled difference between doing that, and what you favor? Principled difference, mind you, not "But my prejudices are GOOD prejudices!"

I favor a bright line, "You get all your civil liberties when you reach the age of majority, wherever it's set, and keep them barring a serious felony conviction or being declared mentally incompetent."

And I'm pretty hard line about felony inflation, too.

And, frankly, while I think it's constitutionally permissible to permanently forfeit civil liberties over felony convictions, I think it's bad policy, that the rights should come back when your sentence is over. ALL of them. I don't like the idea of having 2nd class citizens walking around, in large part because distinguishing them from the 1st class citizens easily can be leveraged to diminishing the rights of everybody.

[bernard11]

If you can go from drunkenness being a minor matter to it requiring you to not exercise or even retain constitutional rights, just because the majority and/or government changes their view of it, what else can we change our view of, and then make disqualifying for exercise of civil rights?

You wouldn't lose the right permanently, Brett, only while you were drunk. It does not disqualify you from ever carrying a gun, contrary to what you are trying to sneak in.

You want a principle? OK, exercising the right while you are intoxicated creates an obvious serious danger to others, just like driving while intoxicated. Further, the denial is temporary.

You want another one? Common sense. Learn to make distinctions, Brett.

We hear a lot about how responsible and careful gun owners are. Well, guess what, drunks are neither responsible nor careful.

[hoppy025]

Is there any evidence of that? Have you seen a single instance where a law abiding person carrying a gun while drunk used the gun in a criminal manner because he was drunk?

Or are you just pointing to hypotheticals to justify taking away rights you don't like?

What is the definition of "drunk?" Should a person who drinks a single beer be prohibited from carrying a gun? What about a person who drank within the past 8 hours (the airline pilot test)?

[SimonP]

You don’t seem to quite grasp how a “slippery slope” argument should be structured. You seem to have mixed it up with a “whataboutism.” Let’s stick to “drunkenness” and not try to bait people by trying to draw a comparison between a transient condition that clearly impairs one’s judgment and a condition that (at worst) reflects a delusion unrelated to one’s capacity for reason.

The right to intimate association – i.e., sex between consenting adults – is something that is (currently) constitutionally protected. But one might key criminal liability to engaging in it, by legally defining “consent” to exclude putative “consent” given by someone who is, and is known by their partner to be, drunk. So let’s suppose there was some law that said that, if you’re sober and you have sex with a person you know is drunk, you’re guilty of rape. Is that constitutionally problematic?

It seems to me you have three responses available:

1) Yes, because you can’t condition the right to intimate association to one’s state of drunkenness. 2) No, because the right to intimate association isn’t actually in the Constitution. 3) No, because the Constitution permits us to place certain reasonable limitations on the right to intimate association.

It seems to me that people without an axe to grind or outcome to reach ought to be able to acknowledge that handling guns while drunk isn’t the best idea, and we shouldn’t permit it any more than we permit drunk people to operate heavy machinery or drive. Such people ought also to be able to recognize that the Constitution shouldn’t compel us to treat these similar sources of danger differently. In other words, if the Second Amendment was adopted in order to ensure that the United States would always be able to fight off foreign invasion or domestic insurrection, and as a corollary to that, people have a fundamental right to bear arms in their self-defense, then there shouldn’t be a problem in acknowledging that there are certain, perhaps very narrow circumstances, where that nation-defending/self-defense interest is not particularly salient – i.e., when someone is shitfaced and obviously not in a good position to evaluate legitimate threats to their safety. We can respect the fundamental right that the Second Amendment supposedly protects while preventing some obvious risks of harm.

Really, the slippery slope you ought to be talking about is not transgenderism, but the violently insane, domestic abusers, mentally incompetent elderly people, younger children, etc. If proscribing drunken firearm possession is problematic, in your view, then certainly you must agree (for the reasons you’ve articulated) that the government shouldn’t try to prevent children, schizophrenics, known wife beaters, or senile retirement home residents from owning or using them, either. I think the reason you don’t make that slippery slope argument is that you can sense it’s a loser, and most people would “draw the line” at a very different place than you would.

[Kazinski]

Well there should at least be strict liability against drawing your gun when you’re drunk. Drunks get rolled at alarming frequencies.

And at what level of intoxication someone is presumed too incapacitated to use a firearm? A presumption that should be rebuttable, based on the totality of the circumstances.