Judge Rules Second Amendment Rights may not be Removed for all Violent Felonies

On June 28, 2023, Judge Carlton W. Reeves, District Judge in the Southern District of Mississippi and Chair of the United States Sentencing Commission, issued an order dismissing the case against Jessie Bullock for possessing a firearm as a convicted felon. Mr. Bullock was convicted of aggravated assault and manslaughter in 1992. He served about 15 years in prison. In 2015 Mr. Bullock was convicted of fleeing law enforcement and attempted aggravated assault of a police officer. He served five years of probation. Bullock was charged with knowingly possessing a firearm in May of 2018, although for various reasons the charge was not arrested arraigned until October of 2019. In June of 2022 the Supreme Court issued the Bruen decision, upholding its rulings in Heller, McDonald, and Caetano. Mr. Bullock argued the Bruen decision rendered the ban on felons in possession invalid in his case.

Judge Reeves spends pages showing how and why he disagrees with the Supreme Court. He presents several straw man arguments. Many courts have upheld the federal ban on possession of firearms by felons in the last 85 years. The Supreme Court used historical records to determine what the Second Amendment means, not the desire of legislatures or of judges. Judge Reeves does not like this approach, but he recognized it as required by the Supreme Court. Judge Reeves suggested he appoint a historian to research the historical record.

Both parties refused the suggestion. In Bruen, the burden is clear. Because of the text and history of the Second Amendment, it is the burden of the government to show a particular restriction on the rights protected by the Second Amendment was accepted and widely practiced at the time the Second Amendment was ratified. 

Judge Reeves gives brief summaries of the opinions in the Miller case (1939), Heller, McDonald, and Bruen. He does some serious reasoning in determining felons are part of the people of the United States as mentioned in the Bill of Rights. From order by Judge Reeves:

This case asks the same question. If America's historical tradition permitted a felon to repurchase firearms after completing their sentence, why can't Mr. Bullock today?

Judge Reeves waxes on about problems with the use of history to determine what is or is not a felony at the time of the ratification of the Bill of Rights. He takes considerable space to claim it is very difficult to determine anything with clarity from the historical record. Then he delves into the specifics of Mr. Bullock's case. 

First, he categorically states the action of Mr. Bullock (possessing a firearm in his home) is covered by the Second Amendment. Then he considers the problems of prohibiting felons from exercising rights protected by the Second Amendment. From the order: 

Second, as Range explained, the phrase "law-abiding, responsible citizens" is "hopelessly vague. 69 F.4th at 102. It cannot "mean that every American who gets a traffic ticket" loses her Second Amendment rights."31 Id. But limiting it to quote "real crimes" like felonies also misses the mark, because some modern felonies "seem minor" and "some misdemeanors seem serious." Id. The modifier "responsible," meanwhile, is impossible to apply. "In our Republic of over 330 million people, americans have widely divergent ideas about what is required for one to be considered a 'responsible' citizen. Id.

Judge Reeves finds the government does not meet its burden of showing a well-established tradition of laws, near the ratification of the Bill of Rights. 

Judge Reeves finds, in this particular case, the government has not met its burden and dismisses the case of felon in possession as applied to Mr. Bullock. 

Judge Reeves goes on to throw doubt on the usefulness of originalism as a way to interpret the Constitution.  He waxes eloquent in various versions of the "that was then, this is now argument". His arguments essentially claims, things have changed, so judges should be able to alter the Constitution to what they desire now. Times have changed. Morals have changed. People have changed. From the next to last paragraph in the order: 

Change is unstoppable. And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.

Analysis: 

This is pure Progressive ideology. Woodrow Wilson might have written it. Judge Reeves refuses to admit words have consistent meanings. He refuses to admit to such a thing as human nature. Most of the examples he cites as different interpretations of the Constitution over time, were not thrust on the government by the people. They were thrust on the people by courts who wished to impose their own policy decisions, without being elected.

Judge Reeves correctly applies the guidance put forward in the Bruen decision. The difficulty he appears to have in doing so, is he does not like the Supreme Court decision and thinks he could do much better. He never considers the work of Judges to decide what the balance of interests are in a particular case is easily as difficult as the interpretations of historical attitudes about the Constitution. Moreover, to place such power in the hands of the judicial branch is far more than the Constitution allows.

Judge Reeves notes there are other rights protected in the Bill of Rights, which have not been protected as well as Second Amendment rights are with the Bruen decision. He mentions the right to a speedy trial, the right to Habeas Corpus, and the right to vote. All of the cases he mentions are relatively recent, which is to say, they are from courts dominated by Progressive ideology. 

The case is one of several in the lower courts. The constitutionality of felon in possession laws will eventually be clarified at the Supreme Court level. Judge Reeve's hostility to the Bruen decision lends credence to the theory he may be following the decision as far as he can, in an attempt to discredit it. This writer hopes such is not the case. 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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