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This is part ofHow Originalism Ate the Law, a Slate series about the legal theory that ruined everything.

Perhaps no lower court judge has condemned the U.S. Supreme Courts reliance on bogus history and racist values as sharply as Hawaii Supreme Court Justice Todd Eddins. In several scathing opinions, Eddins has decried the conservative supermajoritys radical reversal of settled precedent in the name of a conservative theory, originalism, thats both dangerously retrograde and totally unworkable. In Tuesdays Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern interviewed the justice about his very public criticisms of SCOTUS and his embrace of state constitutionalism to limit the fallout in Hawaii. Their conversation has been edited and condensed for clarity.

Dahlia and Mark will interview Eddins in Washington on Tuesday at a live taping of Amicus. Buy your tickets here.

Mark Joseph Stern: Youve written very powerfully that judges are not historians. And yet it seems that the U.S. Supreme Court is calling upon all lower courts to play the role of amateur, dilettante historian. Can you talk about some of the practical problems with that?

Justice Todd Eddins: In a wonderful opinion, a federal judge wrote that we are not trained as historianswe practice law, not history. And thats the problem. I think real historians look at the judiciary with shock to see that we think history has such certitude. And we dont have the opportunity, or even the ability, to weigh into the rigor of historical methodology and historical integrity when deciding cases. How are supposed to decide what is history? Do we outsource it to A.I.? Do we deputize our law clerks as historians? Do we rely on partisan amicus briefs? I dont want to do that. But it seems like the United States Supreme Court tends to cherry-pick history that way.

Then you run into the problem of Whose history are we really talking about, anyway? Theres certainly a few white men who decided things back centuries ago, when women and people of color were excluded from public participation and deliberation. Their views are nonexistent. So its absolutely impossible to try to root around in history and excavate 18th- and 19th-century experiences and try to apply them to 21st-century problems. Aside from being so whacked-out and silly, its just not practically possible.

Dahlia Lithwick: Im hearing you say a couple different things. One is that this is not doable. This is not our job. Another is that its insane to put a thumb on the scale and somehow carve out women and people of color, who were expressly excluded from participating in the moment of constitutional deliberation that were now enshrining as the only viable moment. And then youre saying this third thing, which is that, by the way, this is a completely bonkers way to organize public life right now because technology has changed so radically.

All those things are certainly reasonable critiques of originalism, but you have chosen to do something different, which is to weave them into your judicial opinion writing. Im very curious what led you to start using your work to offer these very public critiques, which are very meta and usually not what jurists do.

Eddins: I think a lot of federal judges are effectively silenced. They dont feel theyre able to really critique what the high courts doing. But state courts are not beholden to the United States Supreme Court; we are essentially insulated when we decide things based on state constitutional provisions. And as Ive sat out here in my office in the middle of the Pacific over the past few years and watched whats come out of the U.S. Supreme Court, I realized I had the opportunity to really voice some of these thoughts that have been percolating in my head. I think I have a responsibility to speak out against the horrors and treachery that goes on at the highest court in the nation.

I mean, its absolutely astounding that originalism revives the value judgments of a racist, misogynistic, homophobic society and constrains the value judgments of contemporary judges. Youre talking about times when human beings enslaved other human beings, when women were just an appendage of their husbands and had no contractual rights and no property rights. It makes no sense for contemporary society to pledge allegiance to the founding eras culture, and I had the opportunity to write that. Im lucky to have such a supportive court; they said Go for it, because thats what we collectively believe.

Lithwick: For a lot of judges who are trying to apply all these new tests coming out of the Supreme Court, theres this deep sense of nihilism because suddenly everything is new. Were in a wholly different world. Yet there are normative reasons why we need to have a dependable, predictable interpretation of the Constitution. And that was one thing I read in your Wilson opinion: the sense that we need to know what the law is. It cant just be Etch A Sketch-ed, erased, and rewritten on the fly.

Eddins: You know, when precedent is for suckers and we dont know whether settled law will become unsettled every June, its really hard for the judiciary to function. Its hard for judges to operate when theres a lack of stability. And its not just judges; its the litigants, the lawyers, the law professors who have to tear up their syllabuses. I mean, its fundamental to our American system of justice that law works incrementally, that cases build upon cases, and that we rely on precedent. Thats the stability of the law. And when you have a group of people who come in and disregard precedent, it really unsettles things; it causes chaos. People dont know how to operate.

The law is now constantly shiftingyou said nihilism, and thats actually what it is. I think its also a lack of humility, a lack of respect for all the law thats been out there for centuries of the American judicial system. Who gave these originalists the right to kill the Constitution? And when the Constitution is killed, where do we stand? It makes it so difficult for courts throughout the land.

Stern: In the Wilson case, you were tasked with applying Bruens history and tradition test by poring over the historical record to find these analogs from 1789. Can you talk about what the process was like for you, trying to apply this ridiculously amorphous newfangled test and turn it into something that looks like law?

Eddins: It was actually a pretty fun process because the U.S. Supreme Court totally disregarded the text, history, tradition, and purpose of the Second Amendment. So in Wilson, we decided to play on the originalism playing field and show how the justices were incredibly dishonest about how law and facts are cherry-picked. That was not a difficult thing to do.

Now, what we also did was trace back the real history and tradition of Hawaii. And if we trace back the tradition of our state, there absolutely was no right to carry lethal weapons in public for possible self-defense. It was an incredibly joyous exercise for me because I knew we were on the correct legal terrain. The Hawaii Constitutions counterpart to the Second Amendment has the exact same words. So I thought, Hey, heres an opportunity to take down the dishonest U.S. Supreme Courts analysis of the Second Amendment, which snubbed federalism principles and increased homicide throughout the nation. Wilson really opened up the opportunity to articulate the importance of state constitutionalism in protecting the fundamental rights of citizens. Of course, Dobbs raised awareness of interpreting state constitutions to, ideally, protect every state citizens fundamental rights, since the U.S. Supreme Court is abdicating that responsibility.

Stern: Over the last few years, conservative litigants and justices tried to strip the ability to protect voting rights from state Supreme Courts. And its hard not to think they were motivated by fear of state Supreme Courts acting independently, departing from the phony originalism of the Roberts court and actually protecting the right to vote, which we used to consider fundamental.

Eddins: Absolutely. And again, thats just more dishonesty. The U.S. Supreme Courts decisions are really destroying democracy. Its just race to the extreme in case after case. It tears at the fabric of our nation and what I view our federal Constitution to be. And now, over the last few weeks, it seems like its not just personal values and preferences that theyre injecting into their jurisprudence; they also give preference to specific individuals, and thats where the court is truly eroding confidence in the judicial system.

Stern: When you say theyre giving preference to specific individuals, youre thinking about Donald Trump in the presidential immunity case?

Eddins: I am.

Original post:
Hawaii Supreme Court Justice Todd Eddins condemns the bogus originalism of SCOTUS. - Slate

Today'sU.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

It reasons, much historical analysis later, with the view that:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

And, the majority concludes, this defendant's particular past convictionsfor vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearmdid not qualify.

Judge Milan Smith dissents, concluding that pre-BruenNinth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruenoverruled that precedent. The dissent, in particular, argues that (1) Bruen"repeatedly limited its definition of the scope of the right to 'law-abiding' citizens, using that phrase no fewer than fourteen times throughout the opinion," (2) "Nothing in Bruen reflects a retreat from the Court's earlier statement in Heller that 'longstanding prohibitions on the possession of firearms by felons and the mentally ill' are 'presumptively lawful,'" and (3) concurrences in Bruen reaffirmed theHellerview with regard to felons.

The panel majority responds, among other things, that "we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance. [W]e agree with the Third Circuit that Bruen's scattered references to 'law-abiding' and 'responsible' citizens did not implicitly decide the issue in this case." It also takes the view that, "'Simply repeat[ing] Heller's language' about the 'presumptive[] lawful[ness]' of felon firearm bans will no longer do after Bruen," given Bruen's call for a historical analysis, and given that "the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve."

The government will very likely petition for rehearing and for en banc review in this case. That review will probably be influenced by the Supreme Court's Rahimicase, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the Court by June 30. The question inRahimiand the question in this case aren't identical, but they share considerable similarities.

Note also that the government has already asked the Supreme Court to consider the Third Circuit'sRangecase, which reached a similar result. That the petition is being held, pendingRahimi. It seems likely that the Court will instruct the Third Circuit to reconsider the question in light of theRahimiholding, just as the Ninth Circuit panel (and perhaps the en banc court) will be doing the same.

Link:
Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights - Reason

A federal judge in Boston has rejected an alleged drug dealers argument that he had a Second Amendment right to possess two semiautomatic handguns for the purpose of protecting his stash of cocaine and fentanyl.

While some might find such a claim laughable, defense attorneys say the U.S. Supreme Courts 2022 ruling in New York State Rifle & Pistol Association v. Bruen has cracked open the door to artful arguments testing the boundaries of the constitutional right to bear arms in the context of criminal prosecutions.

Judge Nathaniel M. Gortons recent decision in U.S. v. Parsons represents one such effort.

A grand jury indicted defendant Malik Parsons on federal charges of conspiracy to distribute and possess with intent to distribute 40 grams or more of fentanyl and 500 grams or more of cocaine, possession with intent to distribute 40 grams or more of fentanyl and 500 grams or more of cocaine, possession of a firearm with an obliterated serial number, and possession of a firearm in furtherance of drug trafficking activity in violation of 18 U.S.C. 924(c).

According to prosecutors, Parsons trafficked narcotics out of an apartment in Mansfield. In an August 2021 search of the apartment, law enforcement allegedly discovered large quantities of cocaine, cocaine base and two semiautomatic handguns, one of which had an obliterated serial number.

The defendant moved to dismiss the charge for possession of a firearm in furtherance of drug trafficking activity, contending that the application of 18 U.S.C. 924(c) in his case violated his right of self-defense under the Second Amendment.

The defendant challenges the constitutionality of 924(c) as applied to him, where he is charged under a theory that the gun was possessed inside a location where drugs were stored as self-defense to avoid a drug robbery, Boston attorney Alyssa T. Hackett writes in her clients motion to dismiss.

Hackett, who declined an interview request, states that Bruen discarded the means-ends tests adopted by federal courts in the wake of the Supreme Courts 2008 decision in District of Columbia v. Heller, which affirmed that the Second Amendment encompasses an individual right to bear arms for the purpose of self-defense.

In discarding the post-Heller means-ends tests, the Bruen court adopted a text and history test for determining whether a challenged law passed constitutional muster.

That approach requires courts first to assess whether the challenged law is covered by the Second Amendments text and if so, whether that law is consistent with this Nations historical tradition of firearm regulation, Hackett writes.

According to Hackett, 924(c) failed that test as applied to her clients alleged conduct.

While the defendant might properly be prosecuted for actively using a gun in the drug trade, keeping a gun in the event of armed confrontation is precisely the conduct the Second Amendment protects, she says in the motion to dismiss.

Gorton took no issue with defense counsels recitation of the Bruen standard. Moreover, Gorton observed that Bruens analogical reasoning test has begotten a litany of challenges to federal criminal laws involving firearms.

While noting that some of those challenges have been successful, he observed that federal courts have uniformly rejected post-Bruen challenges to 924(c).

Gorton explained that Bruen hadnt overturned the principle expressed by the Supreme Court in Heller that the core Second Amendment right protects bearing arms for a lawful purpose.

Gorton concluded that Parsons constitutional challenge failed on that basis, saying for the government to prove that Parsons violated 924(c), it must demonstrate that he possessed a firearm to promote illicit activity. He claims that the charged conduct encompasses self-defense against robbery but allegations that a firearm was possessed for the indisputably unlawful purpose of defending a stash of narcotics and ill-gotten proceeds vitiates any constitutionally cognizable assertion of self-defense.

Jason A. Guida, a criminal defense attorney at Principe & Strasnick in Saugus who handles Second Amendment and firearm regulation cases, says Bruen has raised a number of questions that have yet to be answered.

Defense attorneys have to raise this issue at this point because we dont have clarity from the Supreme Court as to exactly how far Bruen goes and what those historical analogs are, particularly when it comes to public safety regulations, says Guida, whos not surprised by the decision in Parsons.

The decision here is similar to many decisions we are seeing post-Bruen, Guida says. Courts are really struggling with maintaining public safety regulations while juggling or handling this historical analog analysis.

Guida says the defense bar is keeping a close eye on two cases currently before the Supreme Court. In November, the court heard oral argument in U.S. v. Rahimi, which addresses whether a federal law that prohibits possession of guns by individuals under domestic violence restraining orders violates the Second Amendment.

Also on the courts docket is Garland v. Range, which addresses whether a federal law that prohibits the possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year is unconstitutional insofar as it applies to nonviolent offenders.

View post:
Federal judge finds no right to bear arms for protection of drug stash - Maryland Daily Record

One federal appeals court ruled that Hunter Bidens gun charges could proceed this week, while another added support to his Second Amendment argument against them.

On Thursday, a three-judge panel on the Third Circuit Court of Appeals unanimously rejected an attempt by the Presidents son to avoid a trial. Biden tried to get the panel to end his case based on his since-retracted agreement with prosecutors. Instead, they decided he didnt have a claim to avoid prosecution.

The defendant in this criminal case appealed three pretrial orders entered on April 12, 2024, denying his motions to dismiss the indictment, the panel wrote in US v. Biden. This appeal is DISMISSED because the defendant has not shown the District Courts orders are appealable before final judgment.

The ruling means the younger Biden is likely to face a federal judge this summer, likely stealing some attention away from the legal troubles of his fathers opponent in Novembers election. However, the panel didnt rule on his underlying Second Amendment defense, and another federal court just provided further backing to that argument.

On the same day the Third Circuit denied Hunters request, a three-judge panel on the Ninth Circuit Court of Appeals ruled the federal gun ban he is being prosecuted under is unconstitutional as applied to a non-violent felon whose rap sheet includes a drug possession charge. The 2-1 ruling in US v. Duarteprovides some more ammunition for Hunters lawyers to use in his case. After applying the history and tradition standard for judging the constitutionality of gun laws handed down by the Supreme Court in 2022s New York State Rifle and Pistol Association v. Bruen, the majority decided there wasnt enough evidence the defendants previous crimes would have resulted in a lifetime gun ban at the time the Second Amendment was adopted.

Duartes underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding, the panel wrote. Duartes second predicate offensefelon in possession of a firearm, Cal. Pen. Code 29800(a)(1)was a nonexistent crime in this country until the passage of the Federal Firearms Act of 1938. As for Duartes remaining convictionsdrug possession and evading a peace officerwe do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence. Based on this record, we cannot say that Duartes predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.

In a footnote, the majority in Duarte argued the drug possession charges were perhaps the least analogous to Founding Era laws.

Criminalizing drug possession, in particular, did not appear to gain significant momentum until the early 20th century, with the passage of such laws as the Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914, the panel wrote. Before then, what we now think of as illicit drugs, such as opium and cocaine, were . . . legal in the United States for a long stretch of this countrys history.

Bidens lawyers have argued the judge in his case should dismiss his three-count felony firearms indictment for purchasing and possessing a revolver during a time in his life for the same reasons.

Not only does the unconstitutionality of Section 922(g)(3) render Mr. Bidens alleged violation of that unconstitutional statute baseless, it compels the same conclusion as to the prosecutions charges that Mr. Biden made a false statement in denying his status as a user of a controlled substance under 18 U.S.C. 922(a)(6) and caused the seller (a holder of a federal firearms license) to maintain a record of this false answer in violation of 18 U.S.C. 924(a)(1)(A), their motion inUS v. Bidenreads.

The only other federal appeals court to rule on the question found the ban was unconstitutional as applied to a marijuana user.

In short, our history and tradition may support some limits on an intoxicated persons right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage, Fifth Circuit Judge Jerry E. Smith wrote for a unanimous three-judge panel in US v. Daniels. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.

Bidens lawyers cited that ruling in arguing his use of crack cocaine or other drugs should not have cost him his gun rights.

TheBruenframework is clear, and the historical record is immutable and the same before this Court as it was when the Fifth Circuit addressed it, they wrote.

Of course, not every federal judge has come down on the side of drug users or other non-violent felons whove challenged their gun possession charges. In fact, most have upheld those convictions by either determining Second Amendment protections only extend to the law-abiding or the historical gun bans cited in Duarte are analogous to the modern bans. The Supreme Court has not yet agreed to hear a case on the question and is unlikely to do so before Bidens case goes to trial.

More:
Analysis: Hunter Biden Gun Trial Looks Set for Election Season [Member Exclusive] - The Reload

COLUMBUS, Ohio (WSYX) Is this the one?

Like Morpheus seeking the Chosen One inside The Matrix ... have two relatively new GOP lawmakers come up with a proposal designed to reduce gun violence that will actually win approval from Ohio's gun-friendly legislature?

Reps. Josh Williams, a criminal defense attorney from the Toledo area, and Bernie Willis, a Clark County deputy from Springfield, already are starting out ahead of their predecessors as well as Gov. Mike DeWine whose proposals crashed and burned in the name of the Second Amendment.

But the newbies say they already have backing from a major gun rights group, the Buckeye Firearms Association, as well as a pledge of neutrality from a rival organization, Ohio Gun Owners.

Willis said numerous meetings with critics of previous legislation on the divisive issue resulted in a new approach.

"We came into this knowing that Second Amendment organizations would certainly take a very tight and harsh look at this to make sure that we are doing the right thing, that we are starting with the presupposition that our Second Amendment rights are preserved," he said during a Statehouse news conference Tuesday afternoon.

Williams said: "With this legislation, we will continue to fight for the Second Amendment rights of citizens to keep and bear arms while simultaneously removing guns from the hands of violent felons."

Ohio Attorney General Dave Yost was asked about the prospects of this measure when so many have failed before.

"So, first of all, this is a new proposal," he said. "This represents a new take, a different kind of balance. And yes, I'm actually kind of an optimist this bill might move forward because it doesn't target the law-abiding gun owners. It targets criminals who use guns."

Making a subtle reference to internal divisions wracking the House and vastly slowing the pace of legislation passing, Yost said, "I'm confident that if this does not make it this time, it won't be because of the bill."

He is advocating passage because "it will make our cities safer. It will take guns off the street that belong to the bad guys and not affect the rights of law-abiding citizens."

Chris Clark, unopposed in the November election to become Clark County sheriff next year, said he likes the bill because "it's pointed precisely at the bad actor and not the firearm."

He also told ABC 6, "It's time someone stood up and says enough is enough."

Wood County Sheriff Mark Wasylyshyn, active for years in the Buckeye State Sheriff's Association, said it's too early for the group to consider an endorsement. But it's the type of legislation he says sheriffs could support.

So can Gov. Mike DeWine.

"The governor remains supportive of efforts to address the repeat violent offenders who commit the overwhelming majority of gun crimes in our state, who unlike lawful gun owners are often already legally prohibited from possessing firearms, and to make sure that our system has the appropriate penalties to discourage repeated gun crimes," said press secretary Dan Tierney.

DeWine has tried numerous times to go after frequent offenders, offering plans as attorney general shortly after the Sandy Hook mass shooting of school children; a proposal that was part of his response to demonstrators' shouts to "do something" after the 2019 mass shooting in Dayton's Oregon District; a section in his 2021 state budget; and admonitions in his State of the State address.

None passed.

Simply stated, the Repeat Offender Act would increase penalties for those who use a gun despite being barred from owning one because of an earlier conviction for a violent crime. The central premise stems from statistics that show the majority of gun crime in Ohio is committed by a handful of repeat offenders barred from having guns.

Concentrating on these offenders will go a long way toward alleviating the state's problems with gun violence, supporters said.

"I'm tired of turning on the news in Toledo and seeing four- and six-year-olds die in my community from stray bullets," Williams said. "I'm tired of turning on the news and knowing that there was a 4th of July block party in my community where over 80 rounds from AR15s and AK-47s were fired... This legislation will give our cities and towns the tools necessary to keep their communities safe and combat the epidemic of violent crimes in our state."

The plan also would automatically wipe out records of fourth- or fifth-degree felony convictions in five years presuming they didn't include violence or a sex crime. Williams acknowledged the Ohio Prosecuting Attorneys Association opposes the measure simply because of that provision.

Williams noted that county prosecutors will be the front lines of bringing the enhanced charges on gun violence.

"We need prosecutors of all 88 counties to really consider gun crimes a serious problem in our state. And what's going to happen is we're giving you stronger and stronger tools to use in your community."

If prosecutors won't use those tools to combat gun crimes, it will be up to voters to take action, the state representative said.

The other variable, of course, is judges.

"What we can do is draft legislation and show sure legislative intent to judges," Williams said.

"We can draft sentencing guidelines that show what we want to be done. And in some instances, we can try to help the judge by saying you must give the maximum but at the same time we gave some discretion."

Eric Delbert, a Columbus gun range owner who's followed the debate over guns for years, said the bill itself may be good but will depend on what judges do with it.

"It doesn't matter at the end of the day because simply the judges have the ultimate discretion," he told 6 On Your Side.

drowland@sbgtv.com

@darreldrowland

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Can this gun violence bill actually pass the Ohio legislature? GOP sponsors say yes - The CW Columbus