Russell Bogue ’23: Drafting D.C.’s Response to 2nd Amendment Cases

In August, Russell Bogue ’23 joined the Office of the Solicitor General for the District of Columbia in Washington, D.C. as a Liman Fellow working on enforcement of D.C. firearms regulations as part of that office’s initiatives on public safety. Bogue has long been interested in government; he received his B.A. in Government and Foreign Affairs from the University of Virginia and his D.Phil. in political theory from the University of Oxford, where he was a Rhodes Scholar. At Yale, he was an Articles Editor for the Yale Law Journal, a member of the Supreme Court Advocacy Clinic, and a Coker Fellow. He recently discussed his work with the Liman Center.

Why did you decide to spend your fellowship year in the Office of the D.C. Solicitor General? 

It was a combination of luck and exposure to the opportunity. I had heard that students had great experiences at the Office of the Solicitor General in D.C., and I knew that the office was doing important work promoting economic justice and protecting civil rights. I also knew that spending a year doing appellate litigation at a top-notch state/local office on behalf of the public would be a wonderful opportunity, especially as I wanted to do something more litigation-focused, rather than policy-focused. Finally, I was interested in how, given current law, gun use can be regulated, and D.C. is one of several jurisdictions aiming to do so. 

Tell us about your work there.

I am what the office calls an Appellate Litigation Fellow (ALF), and my focus is on the office’s multi-state amicus work. Most of what I do is draft appellate briefs in other circuits or the Supreme Court, and my primary focus is on Second Amendment issues. I also am part of our process for deciding whether to join amicus briefs that other states send our way. I am currently responsible for one of our “merits” cases — where the District is a party to the case — in the D.C. Circuit, which I will argue on Feb. 13. The case is about whether the District violated federal law by miscalculating a resident’s Medicare contribution and then failing to provide her a hearing on her claim within 90 days. It involves a host of issues: mootness, municipal liability under 42 U.S.C. § 1983, implied rights, and the proper substitution of parties. At times, writing the brief felt like completing a law school issue spotter!

Thus, while I do some other work (for instance, on zoning, civil-protective orders, and prosecutions against defendants who have threatened attorneys on their case) my fellowship is to concentrate on gun rights cases across the country — there are hundreds of them at the moment. In addition, I help to manage a compilation of Second Amendment resources, including filings in gun cases, legislative history for various firearm statutes, and scholarly and historical work informing the debate over gun rights. This focus has allowed me to start building expertise in this area of law.

When did you first become interested in addressing gun regulation and the meaning of the Second Amendment?

In my time at Yale Law School, I took some advanced constitutional law classes with [Sterling Professor of Law] Akhil Amar, which introduced me to the string of Supreme Court cases (re-)interpreting the Second Amendment — Heller, McDonald, and Bruen. It became clear to me that the Supreme Court was changing how gun regulations were going to be assessed, which meant that a flood of litigation was likely to follow. That instinct was confirmed when I interviewed for my job and asked Solicitor General Van Zile where they needed the most support. Her first answer was “Guns.” So that’s where I decided I would focus my efforts.

There are jobs like this one, where people can work on fascinating legal issues, important to people in this locality and around the country, with the time and space to give them at least some of the careful treatment they deserve.”

— Russell Bogue ’23

Is there a specific case you have been working on that stands out?

I was primarily responsible for drafting a multi-state amicus brief in the case Garland v. Cargill, which is at the Supreme Court. The case concerns the validity of a rule promulgated by the Bureau of Alcohol, Tobacco, and Firearms (ATF) during the Trump administration that categorized “bump stock” devices as machine guns for the purposes of federal firearms law. That action had the effect of banning bump stocks. It was immediately challenged. Every circuit court upheld the rule until this year when the Fifth Circuit (en banc, sitting as the full court) held that the rule could not be applied to make bump-stock owners criminally liable. The issue before the Supreme Court is whether the statute under which ATF promulgated the rule permits the agency to categorize bump stocks as machine guns. The more general question is about agency authority to interpret statutes — and that issue is before the Court in other cases as well. The District filed a brief in support of the federal government and argued that ATF has the authority to regulate bump stocks as part of the statutory prohibition on the civilian sale or transfer of new machine guns. To work on the amicus, I learned more about the history and development of machine guns than I ever thought I would — not exactly a cheerful topic. We were joined by 22 other jurisdictions on the brief.

What has been the most unexpected part of your fellowship? Have you learned anything that surprised you?

The most unexpected part is that there are jobs like this one, where people can work on fascinating legal issues, important to people in this locality and around the country, with the time and space to give them at least some of the careful treatment they deserve, and at the same time, have time for life outside of work, while avoiding a billable-hours requirement. Indeed, there are former Liman Fellows doing work like this at other local offices around the country. I’ve been fortunate to coordinate with Kathy Muse [’09] at the Illinois Attorney General’s office as both our jurisdictions work to uphold gun regulations aiming at public safety. 

I also had not realized that the U.S. Attorney’s Office for the District of Columbia handles most of the “local” criminal law for the District. I think that’s unique among U.S. attorney offices.

What do you hope to achieve while you are there?

Two of my goals coming into this fellowship were to gain as much experience in appellate-brief writing as possible and to develop some subject-specific expertise — e.g., in Second Amendment work. One of the best parts of this job is that I feel I’m well on my way to achieving both of those goals.
 

What do you look forward to about being a Liman Fellow throughout the rest of your Fellowship year and beyond?

I’m looking forward to deepening the relationships that have been enabled by the Liman Fellowship, both at the D.C. Solicitor General's office and through the network that the Fellowship provides. My workplace is a wonderfully collegial and intergenerational office with an emphasis on forming office friendships and prioritizing a healthy work-life balance. I’m grateful to feel that I will leave this experience with lasting relationships and professional mentors from my time at DC OSG. The Liman Fellowship has also provided me with two stellar Fellowship mentors — themselves former Liman Fellows, Seth Wayne [’11] and Diana Kim [’17]— who have been generous with their time and in helping me to think through career options and make the most of my year.