Several LHB readers have drawn our attention to the order of Judge Carlton Reeves, United States District Court for the Southern District of Mississippi, in U.S. v. Bullock, a challenge to a federal statute prohibiting felons from possessing firearms. Under last term's New York State Rifle & Pistol Association v. Bruen, the Supreme Court charged the lower federal judiciary with determining whether such laws are “consistent with this Nation’s historical tradition of firearm regulation.” Noting that Fordham Law professor Saul Cornell had called the Court’s history in Bruen “cherry-picked” and “an ideological fantasy,” Judge Reeves observed:
This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. See [Bruen] at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians”). And we 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.***
Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter. See Fed. R. Evid. 706. This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals. An expert may help the Court identify and sift through authoritative sources on founding-era firearms restrictions.
Professor Cornell commented on Judge Reeves's order to the National Law Journal. “This is a great idea in the abstract," he said, "but in any kind of practical sense, it’s hard to see how it won’t generate a lot of complaints and questioning about how to implement this idea." Perhaps, Professor Cornell suggested, law schools should teach students rules of historical interpretation and familiarize them with historical sources, and judges could hire historians as law clerks.
--Dan Ernst H/t: SM
