Expert Historian Testimony Is Unnecessary in Second Amendment Litigation

In Wolford v. Lopez, the Supreme Court has the opportunity to clarify for the lower courts the difference between legislative and adjudicative facts. Lower courts hostile to the Second Amendment routinely confuse legislative and adjudicative facts, seeking to turn Second Amendment litigation into an expensive and time-consuming battle of the academic experts and historians where the “winner’s” opinions are insulated from review absent a finding of clear error.

Adjudicative facts refer to evidence about the conduct of the parties within a case, i.e., the answer to the question “did the defendant drive through a red light?” Historical laws and events that do not bear on the conduct of the specific parties are legislative facts, i.e., Founding Father James Madison died in 1836 or the British were marching to seize arms and weapons when the Battle of Lexington and Concord broke out.

Nevertheless, lower courts often hear testimony from so-called “expert” historians on questions of legal interpretations involving Second Amendment issues and historical firearm regulations. Then, those lower courts rely on that testimony to make legal findings about the meaning of the Second Amendment and the constitutionality of modern gun laws. Not only are these courts legislating from the bench, they are signaling a return to interest balancing in defiance of the Court’s holding in Bruen.

In the district court in Wolford, Hawaii submitted multiple expert reports that opined on the meaning of the common law and early American firearm restrictions. Historian Clayton Cramer’s amicus brief in Wolford explains that in some instances, these experts opined on whether Heller, McDonald, and Bruen are historically accurate. But such determinations are legal conclusions, not factual findings. Legal conclusions cannot be made by expert witnesses, only judges can make legal conclusions. But such expert testimony is unnecessary to determine whether a historical analogue proffered by the government is relevantly similar to a modern gun control law being challenged.

Indeed, the Supreme Court has never required testifying experts to resolve Second Amendment questions. Heller came to the Court on a motion to dismiss, with no factual record developed below. McDonald similarly did not need a trial—the only issue was whether the Second Amendment applied to the States through the Fourteenth Amendment. When New York argued that the Court could not decide Bruen without further fact finding, the Court rejected that assertion and further dismissed as unnecessary Justice Bryer’s request for remand, instead ruling directly on the pleadings without any discovery. Rahimi came to the Court on a guilty plea, without any trial. Expert testimony by historians and others addressing the Second Amendment’s meaning is unnecessary and should be discouraged by the Supreme Court.

Treating legislative facts as adjudicative facts subjects rights’ claimants to long, expensive trials, and binds appellate courts to incorrect factual findings. If the historical record was a matter of adjudicative fact, plaintiffs and the government would have to submit expert testimony, file and adjudicate Daubert motions, examine and cross-examine these witnesses, and then let a jury or judge make findings of fact about what the Founding generation intended over 200 years ago. This is unfair to Second Amendment rights claimants when confronted with the largely infinite resources of the government and the gun control-supporting handmaidens in universities and public health schools full of anti-gun Progressives.  Further, findings of fact can only be reversed by an appellate court if they are “clearly erroneous,” which is a very high bar to satisfy.  Credibility determinations at the trial level also come into play further complicating the issue.

Amusingly, or maybe not so much, one district court found that Massad Ayoob could not be credited as an expert in firearms given his pro-Second Amendment leanings despite being recognized as a world-class expert firearm and self-defense expert for decades.  Instead, the court deferred to Lucy Allen, an economist, who “has been conducting statistical analyses related to crime and gun use for twenty-five years”—hardly a qualification as a self-defense expert—and who serves as an “expert” in other gun cases for $900 per hour.

Or consider historian Saul Cornell, who wrote in Slate that “the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history.”  In one of his  many declarations filed thereafter, he purports to explain: “Following the mandates set out … in Bruen, history provides essential guideposts in evaluating the scope of permissible regulation under the Second Amendment.”

However, if courts treat history as legislative facts, as they should (and as the Supreme Court instructs by its decisions in Heller, Bruen, McDonald, Caetano, and Rahimi), then appellate courts may review a district court’s findings de novo, go beyond the record to find more legislative facts, and consider facts introduced by the parties in the appellate court but not the district court. This further lessens the burden on rights’ claimants who should not be required to spend exorbitant sums preparing and defending expert testimony.

When the Supreme Court decides Wolford, it should seize upon the opportunity to instruct the lower courts that Second Amendment cases turn on legislative and not adjudicative facts. Legislative facts cannot be converted into adjudicative facts by judicial fiat, and expert testimony interpreting historical firearm laws is not necessary or encouraged. Appellate review of Second Amendment challenges should be de novo and not subject to a clearly erroneous standard on appeal.

For more detail on the use of biased “experts” in Second Amendment cases, see my post “Should Courts Appoint Historians as Experts in Second Amendment Cases?”