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As a court once ruled, “[i]f no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.” That’s a citation from a recent opinion declaring it unconstitutional to penalize someone for carrying a gun while subject to a restraining order in a domestic abuse case. So you know we’re in for some high quality analysis of the “Nation’s historical tradition” as Justice Thomas put it in Bruen.
In the aftermath of Bruen, district courts don’t have much latitude when it comes to gun regulations. Once you read “well regulated militia” out of the text and then hand wave away the lengthy record of contemporaneous ratification statements, there’s not a lot any judge can do but strike down any law that even mentions guns.
But when Judge David Counts of the Western District of Texas–Pecos Division struck down 18 USC § 922(g)(8) last week, he went way beyond just shrugging and informing the parties that his hands were tied. Instead, he turned in an opinion that goes so far beyond that conclusory edict that it’s honestly hard to tell if he’s serious and making a fool of himself or playing the fool to expose how intellectual bankruptcy of Bruen itself.
The opinion deals with a trucker pulled over by border patrol sporting a handgun. Unfortunately for the trucker, he was subject to both a court order accompanying his release on an assault arrest and a family court restraining order based on domestic abuse. For the last nearly three decades, carrying a gun under these circumstances would trigger 18 USC § 922(g)(8). But Judge Counts rejects that law as unconstitutional because “history” wouldn’t support infringing someone’s right to carry a deadly weapon just because multiple courts have determined the person to be a violent threat to society.
Simply put, the Framers didn’t really care about women getting abused so there’s nothing modern legislators can do about it.
So what about the “Nation’s historical tradition” as Thomas would say?
This straightforward historical analysis, however, reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.
A reason for that was how infrequently domestic abusers were prosecuted. For example, the Plymouth Colony court records from 1633 to 1802 represent the only jurisdiction where the prosecution of domestic violence has been studied over a long time frame. And during that almost 200-year period, only 12 cases involving wife beating were prosecuted. Zero complaints during that time were for child abuse. Another study of the six New England colonies from 1630 to 1699 confirmed the same—only 57 wives and 128 husbands were tried on charges of assault.
Indeed. Historically, no one much cared about domestic abuse and therefore the “original” interpretation of the Second Amendment would not have considered it possible to punish domestic abusers for having guns. As the judge reasons, it’s not that domestic abuse wasn’t a problem in that era, but that it was! Since domestic abuse still occurred back then and went unpunished — and specifically didn’t see authorities confiscating someone’s guns — then it “proves” there’s no basis for any law barring gun ownership by domestic abusers.
Another historical chunk comes from the nineteenth century. As society advanced, removing firearms from an abuser—through government intervention or otherwise—was still not a prevalent occurrence. For instance, one prominent scholar examined statutory materials and articles from major newspapers across eight states in the American West from 1860 to 1930. And from that historical examination, the usual mode of punishment for domestic violence was a fine, with the most common being between $50–200. Some offenders—although it was far less common—could receive a whipping or jail time. Consider the short period in the 1870s when the California penal code allowed an abuser to be punished with “not less than twenty-one lashes on the bare back.”
It’s here when I started wondering if the judge is performing a bit. “Look, if you wanted to whip people for this crime that’s fine… but you can’t take away their deadly weapons!” Atop this loony premise, the opinion adds the historical citation to some curated newspaper articles from 1860 to 1930 across eight states. That’s such a cartoonishly bad abuse of historical methods it feels like a satirical jab. Indeed, the judge’s inclusion of the quote that opens this article feels pointed. It’s as though he dug deep to find the most appalling markers of “historical tradition” on purpose.
As the opinion goes on, the conclusions keep pushing up against that fine line between crazy and satire.
For one thing, one could easily imagine a scenario where separate courts can come to different conclusions on a law’s constitutionality, but both courts would be right under Bruen. Say the Government in Court A develops an in-depth historical analysis to uphold a regulation, and Court A finds that the Government met the burden imposed by Bruen’s step two. The Government in Court B, in contrast, could face the same regulation as in Court A on the same day, but develop no analysis or fail to respond at all. An inflexible reading of Bruen then, would require Court B to declare the regulation unconstitutional. On that basis, the same regulation gets different results based on how adept at historical research the Government’s attorneys are in a particular location or the time they have to devote to the task.
Yes… almost as though this “historical analysis” thing is non-legal, intellectual gobbledygook.
What’s more, because most gun regulations are relatively new, the Second Amendment’s jurisprudence is underdeveloped compared to other constitutional provisions. It wasn’t until Heller in 2008 that the individual right to keep and bear arms was solidified. And the Second Amendment wasn’t incorporated against the states through the Fourteenth Amendment’s Due Process Clause until McDonald in 2010—almost 100 years after the First Amendment was incorporated. Thus, analyzing the Second Amendment through a historical lens as an individual right, applicable against the states, has only been around for some 14 years. Or put another way, the Supreme Court’s jurisprudence that the Second Amendment enshrines an individual right is younger than Twitter, Facebook, or YouTube.
By “relatively new,” he means that federal gun regulations date back almost a century and the one at issue here goes back three decades while the right in question isn’t even old enough to drive yet. The Bruen mandate to rule based on history becomes farcical when judges for two centuries read the same historical texts and yet no one saw the same “history” the majority concocts until 14 years ago.
I mean… this has to be some Supreme Court trolling, right? This can’t be serious, could it? We may never know how Judge Counts intended this opinion to… “count.” But whether it’s serious or not, the opinion excels as an indict of Bruen.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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