The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of … - Stephen Breyer

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The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just what particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.

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About Stephen Breyer

Stephen Breyer (born August 15, 1938) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1994 to 2022. He was nominated by President Bill Clinton, and replaced retiring justice Harry Blackmun. Upon retirement, he was replaced by one of his former clerks, Ketanji Brown Jackson. Breyer was associated with the liberal wing of the Court.

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Birth Name: Stephen Gerald Breyer
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I take this around at my job. (Holds up a copy of the US Constitution.) People have come to accept this Constitution, and they've come to accept the importance of a rule of law. And [I] say: Look, of course people don't agree, but we have a country that is based on human rights, democracy, and so forth. . . . I'll tell you what Lincoln thought, what Washington thought, and what people today still think: It's an experiment. . . . It's an experiment that's still going on. You know who will see whether that experiment works? It's you, my friend. . . . It's that next generation, and the one after that - my grandchildren and their children. They'll determine whether the experiment still works. And, of course, I am an optimist. . . . I'm pretty sure it will.

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The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?

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