1 - PRE-PROJECT 3- Tradition Issue authorities worksheet

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PRE-PROJECT THREE Tradition Issue Authorities Worksheet Find the following authorities on D2L:  New York State Rifle & Pistol Association v. Bruen (Supreme Court)  United States v. Carpio-Leon (Fourth Circuit 2012)  United States v. Daniels (Fifth Circuit 2023) New York State Rifle & Pistol Association v. Bruen (Supreme Court). 1. Do the Respondents succeed in carrying their burden to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation? Explain why or why not. - No, the respondents failed to carry their burden to show that New York’s proper cause requirement with the Court finding “no such tradition in the historical materials that respondents and their amici have brought to bear on that question.” New York State Rifle & Pistol Asss’n, Inc. v. Bruen , 597 U.S. at 18 (2022). The Court’s reliance on history to inform the meaning of constitutional text is more legitimate, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions.” Id. at 2. Furthering clarifying that the definition of “’arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.” Id. at 19. The Court comes to this conclusion due to the Second Amendment’s text drawing a “home/public distinction with respect to the right to keep and bear arms,” and because to proper cause requirement if unconstitutional. Id. at 3. 2. Page *34 starts a section of the opinion analyzing historical analogues to the proper-cause requirement. Sources from which historical period(s) are most persuasive when analyzing when determining if a regulation is consistent with this Nation’s historical tradition of firearm regulation? Why?

- When Englishmen arrived in American in the early 1600s, the public carry of handguns was no longer widely proscribed. This period is persuasive when determining if a regulation is consistent with the nation’s historical tradition of firearm regulation. During the time of the Restoration and Glorious Revolution, the efforts of disarming political opponents arose. Which sources are less persuasive? Why? - The latter half of the 17 th century weakens the respondent’s case due to the previously stated answer. 3. The Court analyzes firearm regulations and other legal authorities from several historical periods, listed below. In which of the historical periods analyzed in the opinion were restrictions on the right to publicly bear arms suited for self- defense only to this who demonstrated some special need for self-protection either most prevalent or most likely to be considered acceptable? Explain. a. Latter half of the 17th century. - during the latter half of the 17 th century, restrictions on the right to publicly bear arms suited for self-defense only to those who demonstrated some special need for self-protection began to rise. b. Colonial period and early Republic. - during the Colonial period & early Republic, restrictions on bearing arms was only in way that spread “’fear’ or ‘terror’ among people, including by carrying of ‘dangerous and unusual weapons.’” New York State Rifle & Pistol Asss’n, Inc. v. Bruen , 597 U.S. 1 (2022). c. After ratification of the Second Amendment. - after the ratification of the Second Amendment in 1791, the proliferation on public-carry restrictions began, to which generally fell into common-law offenses, statutory prohibitions, and “surety” statutes. The Court concluded 2

that none of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime. d. After the Civil War (note: this period probably does not apply to Cho v. United States ; usually it applies only to state law firearm regulations). - After the Civil War, “public carriage of firearms remained subject to extensive regulation, when constitutional rights of all loyal and well- disposed inhabitants to bear arms will not be infringed; nevertheless, this shall not be construed to sanction the unlawful practice of carrying concealed weapons.” New York State Rifle & Pistol Asss’n, Inc. v. Bruen , 597 U.S. at 46 (2022). United States v. Carpio-Leon (Fourth Circuit 2012) 1. What are Defendant Carpio-Leon’s arguments about why the Founders could not have intended to exclude aliens illegally or unlawfully present in the United States from Second Amendment protections? - Carpio-Leon argues that the Second Amendment was never intended to exclude illegal aliens from its scope due to its ratification because “attitudes toward immigration were the reverse of todays’ attitude” and “immigrants also known as ‘settlers’ were deemed absolutely necessary to the development and survival of the new nation. U.S. v. Caprio-Leon , 701 F.3d 974 (4th Cir. 2012). 2. What does Carpio-Leon hold? - Caprio-Leon holds that the “Second Amendment’s right to bear arms does not extend to illegal aliens, and therefore, without the need of preceding to the second step of Chester .” U.S. v. Caprio-Leon , 701 F.3d 974 (4th Cir. 2012). It was concluded that Carpio-Leon’s constitutional challenge under the Second Amendment must fail. 3

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3. Early in its analysis, Carpio-Leon interprets District of Columbia v. Heller . What does Carpio-Leon identify from Heller as the “core right historically protected by the Second Amendment”? - Carpio-Leon identifies the “core right historically protected by the Second Amendment the right to self-defense by law abiding, responsible citizens.” U.S. v. Caprio-Leon , 701 F.3d 974 (4th Cir. 2012). You have now read Heller . Do you agree or disagree with Carpio-Leon ? Explain why? You will have to download the full opinion to find these words in the Heller in order to make an appropriate analysis, though Carpio-Leon itself provides page numbers and hints. - I slightly agree with Carpio-Leon’s standpoint; however, given that I am defending Eric Cho, it doesn’t make sense not to extend the Second Amendment right to him. Relying on the historical meaning when time is constantly changing equates to ignorance. Heller came to the same conclusion because of a historical analysis. We’ve read many times that the Founders anticipated change yet who determines how much change they anticipated happening? During that time not every individual was seen as a “whole” person; therefore, determining that a historical analysis based on what the Founders might have expected for the future of the country is unconstitutional. 4. Carpio-Leon identifies certain groups of people who were often barred from possessing guns in England and in what became the United States during the colonial period and soon after the Revolution. What are these groups and what people did these groups contain? - People who refused to swear allegiance to the state were among those often barred from possessing guns in England, and in what became the U.S. during the colonial period and soon after the revolution. Also, individuals who the government deemed “disloyal” or “dangerous” were barred from possessing guns in England. U.S. v. Caprio-Leon , 701 F.3d 974 (4th Cir. 2012). 4

5. Carpio-Leon identifies several groups of people who, historically, did have rights to possess guns in England and in what became the United States during the colonial period and soon after the Revolution. What are these groups and what people did these groups contain? - Carpio-Leon identifies virtuous citizenry, law-abiding citizens, and citizens who swore allegiance to the states and proven to be loyal, as people who, historically, did have rights to possess guns in England and in what became the U.S. during the colonial period and soon after the Revolution. U.S. v. Caprio-Leon , 701 F.3d 974 (4th Cir. 2012). These groups contained individuals such as felons, and potential subversives. 6. How does Congress’s power to exclude aliens not here legally from the country impact Second Amendment rights? - According to Carpio-Leon, Congress’s power to exclude certain individuals from possessing firearms is because of their legitimate interest in public safety. 7. Does Carpio-Leon rely on any sources you think might be useful to you in writing your argument either for the government or in response to the government’s arguments? Identify two below. - Carpio-Leon relies on Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 140-41 (1994) (detailing colonial laws preventing “suspect populations” from owning firearms). - Patrick J. Charles, “Arms for Their Defense”?: An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago, 57 Clev. St. L. Rev. 351, 376, 382-83 (2009); Malcolm , supra, at 123. United States v. Daniels (Fifth Circuit 2023). 5

1. Daniels is a very recent case. Shepardize or Keycite to confirm that it is final and good law. Tell whether it is and what its procedural posture is. - U.S. v. Daniels is not final law, and has been abrogated, meaning it should be read narrowly. - Procedural posture: o Appellate review o Pre-trial hearing motion o Post-trial hearing motion 2. Which subsection of section 922(g) did Daniels allegedly violate? The court defines the group of people that subsection bars from possessing guns; state that definition here. - Daniels violated 18 U.S.C. 922(g)(3) & the court held that this section violated the Second Amendment “as applied to Daniels,” because he is among “the people;” therefore has a “presumptive right to bear arms.” United States v. Daniels , 281 F.3d 168. 3. Describe the proceeding and decisions in the district court. Did Daniels “win” there? What did the district court hold about whether someone like Daniels has Second Amendment rights? - The district court denied Daniels’ motion to dismiss the indictment, contending that § 922(g)(3) does not violate the Second Amendment as applied to him. This was because they observed § 922(g)(3) under “standards of history and tradition.” United States v. Daniels , 281 F.3d 168. 4. What does the Fifth Circuit hold as to the first Bruen step and whether the text of the Second Amendment applies to Daniels and his conduct? Summarize the reasoning. - The Fifth Circuit holds that the text does not apply to Daniels and his conduct, as to the first Bruen step because the right to bear arms is held by “the people,” to which it unambiguously refers to all members of the 6

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political community, not an unspecified subset. United States v. Daniels , 281 F.3d 168. Suppose the Supreme Court overturns United States v. Rahimi , discussed in this section. Would that make Daniels wrongly decided? Why or why not? - If the Supreme Court overturns Rahimi, Daniels would then be protected under the Second Amendment’s text because Rahimi held that citizens accused of domestic violence still had Second Amendment rights; therefore dangerous individuals and/or criminals could be protected. 5. In the second step of the Bruen analysis, what analogous types of gun regulations does the government offer to show that the United States had a historic tradition of limiting the gun rights of people like Daniels? What makes the court find each persuasive or unpersuasive? - The government shows the principle of limiting gun possession by those “dangerous” to public peace or safety was understood when the Second Amendment was ratified. The government uses the comparison of the use of firearms while intoxicated was similar to Daniels repeated marijuana use. The court found that the first historical analogy of danger-based disarmament does not justify § 922(g)(3)’s application to Daniels. United States v. Daniels , 281 F.3d 168. 6. The government also argues in Daniels that Congress can limit gun possession by groups labeled dangerous to public peace or safety. What does the Fifth Circuit hold is the correct way to determine if a historical danger-based disarmament is analogous to a part of section 922(g)? - The Fifth Circuit holds that the correct way to determine if a historical danger-based disarmament is analogous to a part of § 922(g) by identifying the class of persons at the Founding (or Reconstruction) who were “dangerous” for reasons comparable to marijuana users. United States v. Daniels , 281 F.3d 168. 7

7. Describe how the Fifth Circuit applies the analysis it announces for determining if Congress can limit gun possession by groups labeled dangerous? Does Daniels fall into a “dangerous” category Congress may disarm? Why or why not? - The Fifth Circuit applies the dangerousness analysis to determine if a historical danger-based disarmament…. The court does not believe that Daniels falls into the “dangerous” category because he smokes marijuana a few times a month, that analysis is “unsound on multiple levels.” United States v. Daniels , 281 F.3d 168. 8. Apply the Daniels “dangerousness” analysis to aliens illegally or unlawfully in the United States. Would the Fifth Circuit say Congress may constitutionally disarm them? Why or why not? - The Fifth Circuit might say the Congress is unconstitutional for allowing aliens illegally or unlawfully in the United States to pay taxes, own a business, and give the government money, yet is allowed to have protection under the Second Amendment. Applying the dangerousness analysis would actually determine whether certain people, aliens included, are not among the dangerous group that is allowed to have protection under the Second Amendment. 8

1 - PRE-PROJECT 3- Tradition Issue authorities worksheet

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