Amicus Curiae Brief — United States, Petitioner v. Zackey Rahimi

Supreme Court briefAug 17, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-915

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------UNITED STATES,

Petitioner,

ZACKEY RAHIMI,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

PATRICK J. CHARLES

IN SUPPORT OF NEITHER PARTY

---------------------------------♦--------------------------------PORTER, WRIGHT, MORRIS & ARTHUR LLP

HUGH E. MCKAY

Counsel of Record

hmckay@porterwright.com

950 Main Ave., Suite 500

Cleveland, OH 44113

L. BRADFIELD HUGHES

bhughes@porterwright.com

41 South High St., Suite 3000

Columbus, OH 43215

SHANE PENNINGTON

spennington@porterwright.com

2020 K St. NW, Suite 600

Washington, DC 20006

Telephone: (216) 443-9000

Facsimile: (216) 443-9011

Attorneys for Amicus Curiae

Patrick J. Charles

Dated: August 17, 2023

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

Introduction and Interest of Amicus Curiae .......

Summary of the Argument ..................................

Argument .............................................................

Bruen’s Unanswered ‘Text, History, and

Tradition’ Questions ..................................

A. What Qualifies as a History and Tradition of Regulation Post-Bruen? .............

B. How Are the Courts to Perform Analogical Reasoning to an Identifiable History and Tradition of Regulation? ..........

II. Resolving Bruen’s Unanswered History and

Tradition Questions: The Case for a Macro

Approach .................................................... 10

A. The Limits of Historical Record Keeping ........................................................ 13

B. Why a Macro, Not Micro Approach to

History and Tradition is Jurisprudentially the Better Approach .................... 18

1. The Constitution is an Enduring

Document ........................................ 20

2. For Much of Our History Firearms

Localism, Not Firearms Nationalism

was the Norm .................................. 25

3. A Macro Approach to History and

Tradition is More Workable and More

Jurisprudentially Reliable Than a

Micro Approach ............................... 27

Conclusion ............................................................ 31

TABLE OF AUTHORITIES

Page

CASES

Antonyuk v. Hochul II,

2022 U.S. Dist. LEXIS 182965

(N.D.N.Y. Oct. 6, 2022) ........................................ 5, 26

Antonyuk v. Hochul III,

2022 U.S. Dist. LEXIS 201944

(N.D.N.Y. Nov. 7, 2022) ........................................ 6, 26

Cohens v. Virginia,

19 U.S. 264 (1821) ...................................................20

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................. 3, 15

Firearms Policy Coalition v. McCraw,

623 F. Supp. 3d 740 (N.D. Tex. Aug. 25, 2022) ..........6

Hardaway v. Nigrelli,

2022 U.S. Dist. LEXIS 200813

(W.D.N.Y. Nov. 3, 2022) ........................................ 6, 22

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) ................................20

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ....................................20

McDonald v. City of Chicago,

561 U.S. 742 (2010)........................................... 3, 19

New York Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022) ............... 2-5, 7, 10, 13, 15, 16,

......................................... 18-20, 22, 24, 26-29, 31, 32

NRA v. Bondi,

61 F.4th 1317 (11th Cir. 2023) .............................. 2, 6

iii

TABLE OF AUTHORITIES—Continued

Page

Range v. Attorney General United States,

69 F.4th 96 (3d Cir. 2023) .................................. 2, 3, 8

State v. Huntly,

25 N.C. 418 (1843) ............................................. 15, 16

State v. Reando,

reprinted in STATE JOURNAL

(Jefferson City, MO), Apr. 12, 1878 .........................23

Teter v. Lopez,

No. 20-15948 (9th Cir. 2023) ............................... 7, 15

United States v. Brown,

2023 U.S. Dist. LEXIS 131280

(D. Utah Jul. 26, 2023) ..............................................9

United States v. Bullock,

2023 U.S. Dist. LEXIS 112397

(S.D. Miss. Jun. 28, 2023) ........................................30

United States v. Daniels,

No. 22-60596 (5th Cir. 2023) ............................... 4, 28

United States v. Jackson,

69 F.4th 495 (8th Cir. 2023) ............................ 8, 9, 28

United States v. Love,

2022 U.S. Dist. LEXIS 229113

(N.D. Ind. Dec. 20, 2022) ...........................................5

United States v. Rahimi,

61 F.4th 443 (5th Cir. 2023) .............................. 2, 7, 8

United States v. Stambaugh,

2022 U.S. Dist. LEXIS 206016

(W.D. Okla. Nov. 14, 2022) .........................................6

TABLE OF AUTHORITIES—Continued

Page

STATUTES AND CODES

18 U.S.C. § 922(g)(1) .....................................................8

18 U.S.C. § 922(g)(8) ................................................. 7, 9

OTHER AUTHORITIES

Abstract of Decisions of the Supreme Court of

Missouri: October Term, 1877, 6 Central L.J.

16 (1878) ..................................................................23

ACTS OF TENNESSEE: EXTRAORDINARY SESSION

(1885) .......................................................................25

ACTS OF THE ONE HUNDRED AND TWELFTH LEGISLATURE OF THE STATE OF NEW JERSEY AND THE

FORTY-FOURTH UNDER THE NEW CONSTITUTION

(1888) .......................................................................25

The Address and Reasons of the Minority of the

Convention of the State of Pennsylvania, to

Their Constituents, Dec. 12, 1787, reprinted in

PENN. PACKET & DAILY ADVERTISER, Dec. 18,

1787 .........................................................................21

Jack M. Balkin, Constitutional Memories, 31

Wm. & Mary Bill of Rts. J. 307 (2022) ....................30

William Baude & Steven E. Sachs, Originalism

and the Law of the Past, 37 L. &. Hist. Rev. 809

(2019) .......................................................................28

4 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND (1769) .........................................15

Joseph Blocher, Firearms Localism, 123 Yale

L.J. 82 (2013) ...........................................................25

TABLE OF AUTHORITIES—Continued

Page

Joseph Blocher & Eric Ruben, Originalism-byAnalogy and Second Amendment Adjudication, 133 Yale L.J. ___ (forthcoming 2023),

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=4408228 ................................ 2, 4, 19, 28

HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY (1950) ....................................... 9, 10

Jacob D. Charles, The Dead Hand of the Silent

Past: Bruen, Gun Rights, and the Shackles of

History, 73 Duke L.J. ___ (forthcoming 2023),

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=4335545 ................................................5

PATRICK J. CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS

TO CONCEALED CARRY (2018) ......................... 1, 26, 30

Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition

Problem and How to Fix It, 71 Clev. St. L. Rev.

623 (2023) .................. 2, 4, 9, 14, 16-19, 22, 25-27, 29

Patrick J. Charles, A Historian’s Assessment of

the Anti-Immigrant Narrative in NYSRPA v.

Bruen, DUKE CTR. FOR FIREARMS LAW (Aug. 1,

2021), https://firearmslaw.duke.edu/2021/08/

a-historians-assessment-of-the-anti-immigrantnarrative-in-nysrpa-v-bruen/..................................18

Patrick J. Charles, The Faces of the Second

Amendment Outside the Home, Take Two:

How We Got Here and Why It Matters, 64 Clev.

St. L. Rev. 373 (2016)...............................................28

TABLE OF AUTHORITIES—Continued

Page

Patrick J. Charles, History in Law, Mythmaking,

and Constitutionaly Legitimacy, 63 Clev. St. L.

Rev. 23 (2014) .............................................. 10, 11, 30

Patrick J. Charles, Racist History and the Second Amendment: A Critical Commentary, 43

Cardozo L. Rev. 1343 (2022).............................. 22, 30

Patrick J. Charles, Restoring “Life, Liberty, and

the Pursuit of Happiness” in Our Constitutional Jurisprudence: An Exercise in Legal

History, 20 Wm. & Mary Bill of Rts. J. 457

(2011) .......................................................................20

Patrick J. Charles, Scribble Scrabble, the Second

Amendment, and Historical Guideposts: A

Short Reply to Lawrence Rosenthal and Joyce

Lee Malcolm, 105 Nw. U.L. Rev 1821 (2011) ..........23

Patrick J. Charles, The Second Amendment in

Historiographical Crisis: Why the Supreme

Court Must Reevaluate the Embarrasing

“Standard Model” Moving Forward, 39 Fordham Urb. L.J. 1727 (2012) ................................ 10, 19

EDWARD P. CHEYNEY, LAW IN HISTORY AND OTHER

ESSAYS (1927) ..................................................... 19, 30

Robert Churchill, Gun Regulation, the Police

Power, and the Right to Keep and Bear Arms

in Early America: The Legal Context of the

Second Amendment, 25 L. & Hist. Rev. 139

(2007) .......................................................................22

vii

TABLE OF AUTHORITIES—Continued

Page

THE COMPLETE CODES AND STATUTES OF THE

STATE OF MONTANA IN FORCE JULY 1, 1895

(1895) .......................................................................25

Saul Cornell & Nathan DeDino, A Well Regulated

Right: The Early American Origins of Gun

Control, 73 Fordham L. Rev. 487 (2004) ........... 22, 23

Brannon P. Denning & Glenn H. Reynolds,

Retconning Heller: Five Takes on New York

Rifle & Pistol Association, Inc. v. Bruen, 65

Wm. & Mary L. Rev. ___ (forthcoming 2023),

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=4372216 ................................................5

Department of the Army, Army Air Forces Historical Division, Proposed Field Manual for

Military Historians, Feb. 15, 1949 (Maxwell

AFB, AL: AFHRA) ...................................................12

Laura Edwards, Weapons and the Peace, DUKE

CTR. FOR FIREARMS LAW (Jul. 25, 2023), https://

firearmslaw.duke.edu/2023/07/weapons-andthe-peace/ ................................................................14

Matthew J. Festa, Applying a Usable Past: The

Use of History in Law, 38 Seton Hall L. Rev.

479 (2008) ................................................................11

Firearms: Problems of Control, 80 Harv. L. Rev.

1328 (1967) ..............................................................26

Martin S. Flaherty, History “Lite” in Modern

American Constitutionalism, 95 Colum. L.

Rev. 523 (1995) ........................................................12

viii

TABLE OF AUTHORITIES—Continued

Page

W.H., Uniform Firearms Act, 18 Va. L. Rev. 904

(1932) .......................................................................26

MATTHEW HALE, PLEAS OF THE CROWN (1678) ............15

James E. Hicks, United States Military Shoulder Arms, 1795-1935, 1 Journal of the American History Foundation 23 (1937) ..........................24

F.J.K., Restrictions on the Right to Bear Arms:

State and Federal Firearms Legislation, 98 U.

Pa. L. Rev. 905 (1950) ..............................................26

Larry D. Kramer, When Lawyers Do History, 72

Geo. Wash. L. Rev. 387 (2003) .................................11

LAWS OF THE STATE OF INDIANA PASSED AT THE

FIFTY-FIRST REGULAR SESSION OF THE GENERAL

ASSEMBLY (1879) ......................................................25

THE LAWS OF THE STATE OF KANSAS (1871) .................25

Buckner F. Melton, Clio at the Bar: A Guide to

Historical Method for Legists and Jurists, 83

Minn. L. Rev. 377 (1998) ................................... 12, 13

NATIONAL RIFLE ASSOCIATION, DIGEST OF FEDERAL AND STATE FIREARMS LAWS (1966) ...................26

NATIONAL SHOOTING SPORTS FOUNDATION, INC.,

FACT PACK II ON FIREARM OWNERSHIP (1970) .........26

H. Jefferson Powell, Rules for Originalists, 73

Va. L. Rev. 1 (1987) .................................................12

WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF

THE UNITED STATES (1825) .......................................21

TABLE OF AUTHORITIES—Continued

Page

Repository of Historical Gun Laws, DUKE CTR.

FOR FIREARMS LAW, https://firearmslaw.duke.

edu/repository/search-the-repository/ ....................14

Brennan Gardner Rivas, Enforcement of Public

Carry Restrictions: Texas as a Case Study, 55

U.C. Davis L. Rev. 2603 (2022) .......................... 18, 29

Robert J. Spitzer, Gun Law History in the United

States and Second Amendment Rights, 80

Law & Contemp. Probs. 55 (2017) .................... 21, 22

Cass Sunstein, Commentary: On Analogical

Reasoning, 106 Harv. L. Rev. 741 (1993) ................19

Jeffrey S. Sutton, The Role of History in Judging

Disputes About the Meaning of the Constitution, 41 Tex. Tech. L. Rev. 1173 (2009) .............. 11, 30

3 MARK TWAIN & CHARLES DUDLEY WARNER, THE

GILDED AGE (1874)............................................. 18, 19

Amanda L. Tyler et al., A Dialogue with Judges

on the Role of History in Interpretation, 80

Geo. Wash. L. Rev. 1889 (2012) ...............................11

Will Van Sant, The NRA’s Shadowy Supreme

Court Lobbying Campaign, POLITICO (Aug. 5,

2022), https://www.politico.com/interactives/

2022/nra-supreme-court-gun-lobbying/ ..................30

War Department, Army Regulation No. 345-105,

Military Records: Historical Records and Histories of Organizations, Nov. 18, 1929 ....................17

TABLE OF AUTHORITIES—Continued

Page

William M. Wiecek, Clio as Hostage: The United

States Supreme Court and the Uses of History,

24 Cal. W. L. Rev. 227 (1987) ............................. 12, 13

2 JAMES WILSON, COLLECTED WORKS OF JAMES

WILSON (Kermit L. Hall & David Hall eds.,

2007) ........................................................................15

INTRODUCTION AND

INTEREST OF AMICUS CURIAE1

This amicus curiae brief is submitted on behalf of

historian and legal scholar Patrick J. Charles to educate the Court on why a macro approach to identifying

and analogizing our history and tradition is better

suited to adjudicating the constitutionality of firearm

regulations than a micro approach.

Amicus curiae is the author of several books, including Vote Gun: How Gun Rights Became Politicized

in the United States (Columbia University Press, 2023)

and Armed in America: A History of Gun Rights from

Colonial Militias to Concealed Carry (Prometheus

Books, 2018), and more than twenty articles on the history of the Second Amendment, firearm regulations,

and the use of history as a jurisprudential tool. Amicus

curiae’s scholarship has been cited and relied upon by

several Circuit Courts of Appeals and by members of

this Court. Amicus curiae currently serves as the Division Chief for the Air Force Historical Research

Agency’s (AFHRA) Oral History and Studies Division.

For over a decade, amicus curiae has served as a

United States Air Force historian in several capacities,

including recently serving as the head of AFHRA’s Research Division, where amicus curiae oversaw all official historical information and archival requests for the

United States Air Force. The information and analysis

Amicus curiae certifies that no counsel for any party authored this brief in whole or in part and that no person or entity,

other than amicus curiae or his counsel, has made a monetary

contribution to this filing.

contained herein are solely those of the amicus curiae,

and not those of the United States Air Force or the Department of Defense.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

In New York Rifle & Pistol Ass’n v. Bruen, 142

S. Ct. 2111, 2127-34 (2022), this Court pronounced

that ‘text, history, and tradition’ was the foundation

from which the lower courts would gauge the constitutionality of firearm regulations moving forward.

What remains unclear is how the lower courts are to

implement that standard. Indeed, in Bruen, this

Court went to great lengths to explain why New

York’s “may issue” licensing law failed under a

‘text, history, and tradition’ analysis. Id. at 2134-56.

However, given that Bruen contains several historical

and analytical contradictions,2 the lower courts have

produced a myriad of historical analogue analyses.

See, e.g., Range v. Attorney General United States, 69

F.4th 96 (3d Cir. 2023); United States v. Rahimi, 61

F.4th 443 (5th Cir. 2023); NRA v. Bondi, 61 F.4th 1317

(11th Cir. 2023). Several of these analyses, if allowed

to stand, will eventually negate the Court’s list of

longstanding, presumptively constitutional firearm

See Patrick J. Charles, The Fugazi Second Amendment:

Bruen’s Text, History, and Tradition Problem and How to Fix It,

71 Clev. St. L. Rev. 623, 667-90 (2023); Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. ___, manuscript at 39-43 (forthcoming 2023),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4408228.

regulations as outlined in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008) and McDonald v. City

of Chicago, 561 U.S. 742, 786 (2010)—regulations that

courts have continuously upheld for over a decade. In

addition to Heller’s and McDonald’s list of longstanding, presumptively constitutional firearm regulations,

other well-established and reasonable firearm regulations could be struck down as unconstitutional. See

Range, 69 F.4th at 104 (noting it is “dubious” to deduce

that the federal firearms laws enacted in the 1930s

qualify as “longstanding” given Bruen’s “emphasis on

Founding- and Reconstruction-era sources”).

The point is that if Bruen’s ‘text, history, and tradition’ test is to serve as a reliable, constitutional

guardrail in gauging the constitutionality of firearm

regulations, this Court must further outline the contours of its test in a way that is more transparent, objective, holistic, and scalable. Only by doing so can this

Court ensure consistent implementation of its standard by the lower courts. With this in mind, amicus

curiae proffers a solution: identifying and analogizing history and tradition from the macro, not micro

level. A macro approach would require courts to base

their judgments principally on common, contextually

identifiable historical threads that are virtually undeniable. By demanding reliance on what can be historically proven from the evidentiary record, not

inferred, a macro approach would minimize the problem of the courts resorting to historical conjecture and

speculation in forming judgments, particularly in

those instances where the evidentiary record is silent.

---------------------------------♦---------------------------------

ARGUMENT

Bruen’s Unanswered ‘Text, History, and

Tradition’ Questions

In Bruen, this Court was clear in pronouncing that

‘text, history, and tradition’ is the jurisprudential foundation from which the lower courts are to gauge the

constitutionality of firearm regulations moving forward. 142 S. Ct. at 2127-34. Less clear is how the lower

courts are to implement that standard. In the pantheon of Supreme Court jurisprudence, this is not a

new problem. Whenever this Court issues a jurisprudentially transformative opinion like Bruen, lower

courts must wrestle with it as new cases and controversies arise. What makes Bruen different is that the

opinion’s invocation of ‘text, history, and tradition’ contains several historical and analytical contradictions.

See United States v. Daniels, No. 22-60596, slip op. 30,

34 (5th Cir. 2023) (Higginson, J., concurring) (“[It] has

become increasingly apparent . . . that [the] courts, operating in good faith, are struggling at every stage of

the Bruen inquiry.”); see also Charles, Fugazi, supra, at

675-81; Blocher & Ruben, supra, at 39-43. This, in turn,

has left the lower courts with more ‘text, history, and

tradition’ questions than answers—too many, in fact,

to examine here.3 Therefore, for brevity’s sake, and so

that amicus curiae may adequately brief the Court on

the prudential reasons for adopting a macro approach

to history and tradition, only two of the many unanswered questions post-Bruen are outlined below.

A. What Qualifies as a History and Tradition of Regulation Post-Bruen?

Perhaps the most pressing unanswered question

left open by Bruen is what qualifies as a history and

tradition of regulation?4 Thus far, lower courts have

produced conflicting determinations. According to the

Northern District of New York, Bruen requires that the

government produce “at least three historical laws” for

any type of firearm regulation to constitute an analogous “tradition.” Antonyuk v. Hochul II, 2022 U.S. Dist.

See Jacob D. Charles, The Dead Hand of the Silent Past:

Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. ___,

manuscript at 24-68 (forthcoming 2023), https://papers.ssrn.com/

sol3/papers.cfm?abstract_id=4335545.

See, e.g., United States v. Love, 2022 U.S. Dist. LEXIS

229113, at 7 (N.D. Ind. Dec. 20, 2022) (“reviewing courts . . . must

find the goldilocks of historical analogues: not too old, not too new,

but just right. And how many analogues are necessary? While

some of the language in Bruen suggests the answer is one . . . at

other times the Supreme Court suggests two or even three historical analogues are not enough. [Therefore, e]ach district court

must determine whether the proposed analogues are analogueenough, or if they require the presence of the analogue cavalry to

carry the day.”); see also Brannon P. Denning & Glenn H. Reynolds, Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen, 65 Wm. & Mary L. Rev. ___, manuscript at

16-19 (forthcoming 2023), https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=4372216.

LEXIS 182965, at 21 (N.D.N.Y. Oct. 6, 2022). In a subsequent opinion, the same district court modified its

previous pronouncement by requiring the government

to produce evidence of a type of firearm regulation that

governed more than fifteen percent of the entire

United States population. Antonyuk v. Hochul III, 2022

U.S. Dist. LEXIS 201944, at 191 (N.D.N.Y. Nov. 7,

2022). In contrast to the Northern District of New

York’s strict numerical approach to identifying a history and tradition of firearm regulation is the temporal

approach of Firearms Policy Coalition v. McCraw,

wherein the Northern District of Texas held that any

type of firearm regulation that starts in 1856 is too far

removed from the ratification of the Bill of Rights to

constitute a suitable tradition, particularly when the

type of firearm regulation contradicts earlier, Founding Era history. 623 F. Supp. 3d 740, 755-56 (N.D. Tex.

Aug. 25, 2022); see also United States v. Stambaugh,

2022 U.S. Dist. LEXIS 206016, at 8-9 (W.D. Okla. Nov.

14, 2022). Some lower courts have taken McCraw a bit

further by declaring that the Founding Era is the only

historical period that matters when determining what

qualifies as a history and tradition of regulation. See,

e.g., Hardaway v. Nigrelli, 2022 U.S. Dist. LEXIS

200813, at 39-40 (W.D.N.Y. Nov. 3, 2022). Meanwhile,

other lower courts have declared the Reconstruction

Era more historically informative. See, e.g., Bondi, 61

F.4th at 1323.

These divergent approaches to identifying a history and tradition of firearm regulation will lead to

stark geographical conflicts in this country’s Second

Amendment jurisprudence, with the outcomes of factually similar cases turning on geographic happenstance rather than law.

B. How Are Courts to Apply Analogical

Reasoning to an Identifiable History and

Tradition of Regulation?

Another unanswered question post-Bruen is how

are the lower courts to properly perform analogical

reasoning once they have identified a history and tradition of regulation? For some lower courts, the answer

is that the history and tradition presented by the government must be closely analogous to the modern law

being challenged. See, e.g., Teter v. Lopez, No. 20-15948,

slip op. at 20-31 (9th Cir. 2023). Consider United States

v. Rahimi, the very case before this Court. The Fifth

Circuit found that our Anglo-American history and

tradition of disarming dangerous, non-law abiding,

and non-virtuous persons was insufficient for 18 U.S.C.

§ 922(g)(8) to survive constitutional scrutiny. 61 F.4th

at 460. Indeed, the Fifth Circuit weighed and analyzed

several historical laws. Id. at 456-60. In the end, however, it discounted every law as not “measuring ‘relevantly similar’ ” enough to 18 U.S.C. § 922(g)(8). Id. at

460. For instance, in its analysis of early “going armed”

laws—laws that generally led to a weapons forfeiture—the Fifth Circuit reasoned that they were not

historically analogous enough to 18 U.S.C. § 922(g)(8)

because the disarming involved was principally “aimed

at curbing terroristic or riotous behavior, i.e., disarming those who had been adjudicated to be a threat to

society generally, rather than to identified individuals.” Id. at 458-59.

In Range v. Attorney General United States, the

Third Circuit similarly discounted the very same history and tradition of disarming dangerous, non-law

abiding, and non-virtuous persons in its adjudication

of 18 U.S.C. § 922(g)(1). 69 F.4th at 103-05. The Third

Circuit reasoned that because “the particular (and distinct) punishment at issue—lifetime disarmament—is

[not] rooted in our Nation’s history and tradition,” and

the defendant, Bryan Range, was convicted of a crime

that “did not involve a firearm,” the Anglo-American

history and tradition of disarming dangerous, non-law

abiding, and non-virtuous persons could not support

barring the defendant from acquiring, owning, and using firearms. Id. at 105. And although the Third Circuit

noted that its decision should be construed as “a narrow one,” id. at 106, the court’s reasoning could be applied by other federal courts to reach any federal or

state law that permanently bars felons from acquiring,

owning, and using firearms.

In contrast to Rahimi and Range is United States

v. Jackson, 69 F.4th 495 (8th Cir. 2023). There, the

Eighth Circuit determined that the very same history

and tradition presented by the United States government in Rahimi and Range was sufficiently analogous

to uphold 18 U.S.C. § 922(g)(1) against constitutional

challenge. Compare Jackson, 69 F.4th at 502-05, with

Rahimi, 61 F.4th at 456-60; Range, 69 F.4th at 103-05.

The Eighth Circuit arrived at this conclusion by identifying and analogizing the Anglo-American history

and tradition of disarming dangerous, non-law abiding, and non-virtuous persons at the macro, not micro

level. Jackson, 69 F.4th at 504-05. In other words, according to the Eighth Circuit, because there is indeed

an identifiable Anglo-American history and tradition

of legislatures disarming dangerous, non-law abiding,

and non-virtuous persons, the entire regulatory category of legislative acts prohibiting the possession of

firearms by dangerous persons must be presumed constitutional. Id. at 505; see also United States v. Brown,

2023 U.S. Dist. LEXIS 131280, at 24-37 (D. Utah Jul.

26, 2023) (applying similar analogical reasoning in upholding 18 U.S.C. § 922(g)(8)).

For the reasons outlined below, amicus curiae

urges this Court to adopt the Eighth Circuit’s macro approach to history and tradition. Doing so would mean

requiring courts to base their judgments principally on

those common, identifiable evidentiary threads that

are contextually undeniable. A macro approach to history and tradition does not engage in historical conjecture or speculation,5 i.e., stripping “abstract events

from their [historical] context and set[ting] them up in

implied comparison with the present day[.]” HERBERT

See, e.g., Charles, Fugazi, supra, at 693 (“[H]istory-based legal claims that are principally derived from the lawyering or select parsing of historical sources rather than substantive nokidding, historical evidence are not the type of history-based legal

claims that jurists should be building their evidentiary base from

which they legally reason, nor from which they historically analogize from. For jurists, or anyone for that matter, to build an analogy on nothing more than the lawyering of history or a historical

inference is essentially the same thing as fabricating history.”).

BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 57

(1950). Rather, a macro approach relies squarely on

what can be historically proven from the evidentiary

record and seeks to minimize the practice of lawyering

or explaining away well-established history and tradition.6

Resolving Bruen’s Unanswered History

and Tradition Questions: The Case for a

Macro Approach

II.

As this Court noted in Bruen, the reason that history is jurisprudentially relied upon when interpreting

the law is the overarching perception that history is

“more legitimate, and more administrable, than asking

judges to ‘make difficult empirical judgments’ about

the ‘the costs and benefits of firearms restrictions’. . . .”

142 S. Ct. at 2130 (citations omitted). History is indeed

law, and law is indeed history. The two academic disciplines are inseparable. See Patrick J. Charles, History

Amicus curiae is not suggesting that adopting a macro approach to history and tradition would foreclose the use of micro

level history altogether. Rather, the macro approach should govern how courts initially frame and analogize from a history and

tradition of firearm regulation. See Patrick J. Charles, The Second

Amendment in Historiographical Crisis: Why the Supreme Court

Must Reevaluate the Embarrassing “Standard Model” Moving

Forward, 39 Fordham Urb. L.J. 1727, 1860 (2012) (asserting that

once the government shows a “long tradition” of regulation the

burden should then fall on the challenging party “to provide historical evidence that [the area of ] regulation [was] perceived as

violating the right to keep and bear arms”). For some historiographical examples of “lawyering” and “explaining away” history

in the Second Amendment context, see id. at 1767-91.

in Law, Mythmaking, and Constitutional Legitimacy,

63 Clev. St. L. Rev. 23, 36 (2014). As Sixth Circuit Judge

Jeffrey S. Sutton has put it, “In one sense, law is history. All of law is backward looking. A trial recreates

events of the past. A court of appeals decision relies on

precedents, decisions of the past that must themselves

be construed. . . .” Amanda L. Tyler et al., A Dialogue

with Judges on the Role of History in Interpretation, 80

Geo. Wash. L. Rev. 1889, 1896 (2012); see also Jeffrey S.

Sutton, The Role of History in Judging Disputes About

the Meaning of the Constitution, 41 Tex. Tech. L. Rev.

1173, 1176 (2009).

The overlap between the academic disciplines of

law and history does not end there. If one pauses to

consider, the principal duties of jurist and historian are

not all that different. Both are objective fact and truth

seekers.7 And both are tasked with objectively weighing and analyzing competing evidence and claims.

Consider the following statement contained within the

Department of the Army’s proposed field manual for

military historians, circa 1949:

The cardinal virtue of the historian is objectivity, or freedom from bias or special interest.

The historian’s responsibility is to discover

Matthew J. Festa, Applying a Usable Past: The Use of History in Law, 38 Seton Hall L. Rev. 479, 483 (2008) (“Both historians and lawyers are, at least ostensibly, engaged in a search for

‘truth’—an accurate interpretation of past events.”); Larry D. Kramer, When Lawyers Do History, 72 Geo. Wash. L. Rev. 387, 395

(2003) (“When lawyers, judges, and legal scholars turn to history,

they do so because they believe, and want their readers to believe,

that a historical pedigree adds authority to their argument.”).

the truth and to put it on record. To do this

[the historian] has to keep a constant watch

on [their] prejudices and assumptions. [The

historian] cannot be objective unless [he/she]

can keep prejudices and unwarranted assumptions out of [his/hers] observations, reports, and writings.

Department of the Army, Army Air Forces Historical

Division, Proposed Field Manual for Military Historians, at 13 (Feb. 15, 1949) (Maxwell Air Force Base, AL:

AFHRA).8 If one substitutes the word “historian” with

“jurist,” the statement still reads true.

Yet the fact that the academic disciplines of law

and history overlap does not mean that jurists are

trained historical experts or that the use of history in

law is always a legitimate enterprise. See, e.g., Buckner

F. Melton, Jr., Clio at the Bar: A Guide to Historical

Method for Legists and Jurists, 83 Minn. L. Rev. 377,

471 (1998) (“[H]aphazard or insufficiently thorough

historical research, like haphazard or insufficiently

thorough legal research, is at best useless, and is at

worst dangerous.”); see also Martin S. Flaherty, History

“Lite” in Modern American Constitutionalism, 95

Colum. L. Rev. 523, 526 (1995); William M. Wiecek, Clio

as Hostage: The United States Supreme Court and the

Uses of History, 24 Cal. W. L. Rev. 227, 267-68 (1987);

H. Jefferson Powell, Rules for Originalists, 73 Va. L.

Rev. 1, 659, 699 (1987).

A copy of this document can be provided by emailing a request to AFHRA.NEWS@us.af.mil.

The question that amicus curiae seeks to help this

Court in answering is how can jurists ensure they are

harnessing and utilizing history in a legitimate way—

a way that is transparent, reliable, and predictable? As

this Court’s own history-based pronouncements inform, there is no definitive answer—no firm precedent

that must be followed. The relevant history in any case

is simply whatever the respective jurist or jurists declare relevant—a historical “smell test” if you will. See

Melton, supra, at 383; Wiecek, supra, at 227. The lower

courts’ application of Bruen underscores this point. See

Part I.A-B. That is why it behooves the Court to succinctly outline the contours of its history and tradition

test in a way that is more objective, holistic, and scalable for lower courts. A macro approach to history and

tradition is far and away the best means available in

providing the Court this way ahead.

A. The Limits of Historical Record Keeping

As any professional historian or archivist will attest, due to the limits of historical record keeping, there

are far more questions about the past that we can ask

than answer. And the further one goes back in time,

the harder it becomes to reconstruct the past, particularly at the micro level. This includes the history and

tradition of firearm regulation. Consider, for example,

that except for the legislative debates of Congress, few

detailed legislative records of the eighteenth and nineteenth centuries exist. The same is true of eighteenthand nineteenth-century constable records, justice of

the peace records, local law enforcement records, and

local and lower court judicial records. See Charles, Fugazi, supra, at 655, 671; see also Laura Edwards, Weapons and the Peace, DUKE CTR. FOR FIREARMS LAW (Jul.

25, 2023), https://firearmslaw.duke.edu/2023/07/weapons-and-the-peace/. This absence of important archival

records makes it extremely difficult for historians and

archivists to prove many historical aspects of a respective law or body of law, such as how a historical law or

body of law was administered and enforced, how frequently a law or body of law was enforced, and so forth.

Moreover, as amicus curiae can attest from having

researched the history and tradition of firearm regulation for the last fifteen years, it is utterly impossible to

locate and collate all the varying firearm regulations

of any given type or category.9 There are two principal

reasons for this. First, until the early-to-mid twentieth

century, firearm regulations were far from uniform—

that is until the National Conference of Commissioners on Uniform State Laws led the way for the adoption

of uniform firearm regulations. See Part II.B.2. Rather,

firearm regulation was highly localized and often varied from jurisdiction to jurisdiction, particularly from

the mid-nineteenth through the early twentieth century. Id. Second and equally important, virtually all

pre-twentieth century historical record keeping contains wide evidentiary gaps and shortfalls. This makes

The Duke Center for Firearms Law has made great strides

towards this goal with its repository of historical gun laws. See

Repository of Historical Gun Laws, DUKE CTR. FOR FIREARMS LAW

(last visited Aug. 15, 2023), https://firearmslaw.duke.edu/repository/

search-the-repository/. However, as the Center’s website attests,

the repository is “not comprehensive.” Id.

it challenging for academics to reconstruct the past on

any given historical topic, issue, or subject evenhandedly. This includes the history and tradition of firearm

regulation.

What succinctly illustrates these points is the history and tradition of prohibiting dangerous and unusual weapons. In Heller and Bruen, this Court

recognized this history and tradition as jurisprudentially relevant in setting the constitutional parameters

of the Second Amendment. 554 U.S. at 627; 142 S. Ct.

at 2143; id. at 2162 (Kavanaugh, J., concurring). Yet, if

one diligently searches for any concrete historical evidence of this common law prohibition against dangerous and unusual weapons being enforced, other than

the off-hand mention in several legal commentaries,10

one will come up empty.11 There are simply no working

examples for the courts to historically analogize

from12—at least not up through the close of the nineteenth century.13

See, e.g., 2 JAMES WILSON, COLLECTED WORKS OF JAMES

WILSON 1138, 1170-71 (Kermit L. Hall & Mark David Hall eds.,

2007); 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 155 (1769).

As best as amicus curiae can tell, the term “unusual weapons” first appears in Matthew Hale’s Pleas of the Crown section

on “forcible entry.” See MATTHEW HALE, PLEAS OF THE CROWN 138

(1678).

A recent Ninth Circuit opinion weighs this out. See Teter,

No. 20-15948, slip op. at 20-21.

The only case on point is the 1846 case State v. Huntly,

wherein the North Carolina Supreme Court held that “a gun” by

itself qualifies as a “unusual weapon” within the meaning of the

The history of discretionary armed carriage permitting schemes circa the mid-to-late nineteenth century is another example. Although this Court in Bruen

held that these laws never existed until the early twentieth century, 142 S. Ct. at 2121, they indeed did and

spread across the United States quite rapidly, see Brief

of Amicus Curiae Patrick J. Charles in Support of Neither Party, New York State Rifle & Pistol Ass’n, Inc., Inc.

v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843), at 8-13,

appendix 2-45. Yet despite the clear and convincing

historical evidence of this fact, see Charles, Fugazi, supra, at 659-66, there is much that the surviving evidentiary record cannot answer, such as: when was the

first discretionary armed carriage law enacted; why

the local jurisdictions that enacted discretionary

armed carriage laws chose them over other armed carriage regulatory regimes, such as concealed carry prohibitions and surety laws; how many local jurisdictions

adopted these laws; and how exactly were these discretionary regimes administered?

The reason for highlighting these two historical

examples is not to re-litigate Bruen. Rather, it is to

show the limits of historical record keeping and the direct impact it can have on reconstructing the past. The

problem is not confined to the history and tradition of

firearm regulation up through the close of the nineteenth century. It extends to most twentieth- and

common law. 25 N.C. 418, 422 (1843). However, seeing that this

Court has held that common use firearms are constitutionally

protected under the Second Amendment, Bruen, 142, S. Ct. at

2132, Huntly can no longer serve as a working example.

twenty-first century historical record keeping, as amicus curiae can personally attest having served as the

head of AFHRA’s Research Division. While in this position, amicus curiae oversaw all official historical information and archival requests for the United States

Air Force. And based on that experience, amicus curiae

can attest that roughly half of all the historical information and archival requests that AFRHA receives

cannot be fully answered. Charles, Fugazi, supra, at

567 n.230. This is true despite AFHRA’s vast archival

holdings, the wide proliferation of United States Air

Force historians at the Wing and Group level that periodically provide AFHRA with history reports and archival material, and the fact that as early as 1929 the

War Department required that every unit “prepare[ ]

and ke[ep] up to date a detailed history of the services

of the organization concerned.” War Department, Army

Regulation No. 345-105, Military Records: Historical

Records and Histories of Organizations, Nov. 18, 1929,

at 1.14

Ultimately, the limits of historical record keeping

inform us that it is far easier to reconstruct the past

from the macro level, rather than the micro level, particularly if the historical reconstruction is to be done in

a way that is uniform and consistent. Certainly, there

are many historical topics, issues, and subjects that academics have reconstructed from the micro level, including aspects of firearm regulation. See, e.g.,

Copies of the various editions of Army Regulation 345-105

can be obtained by emailing a request to AFHRA.NEWS@us.af.

mil.

Brennan Gardner Rivas, Enforcement of Public Carry

Restrictions: Texas as a Case Study, 55 U.C. Davis L.

Rev. 2603 (2022) (examining the history of Texas public

carry restrictions circa the nineteenth century from

the micro level). However, based on amicus curiae’s fifteen years of experience in this field, the entire history

and tradition of firearm regulation does not fall into

this category. See, e.g., Charles, Fugazi, supra, at 65556 (discussing the lack of “surety law” enforcement records); Patrick J. Charles, A Historian’s Assessment of

the Anti-Immigrant Narrative in NYSRPA v. Bruen,

DUKE CTR. FOR FIREARMS LAW (Aug. 1, 2021), https://

firearmslaw.duke.edu/2021/08/a-historians-assessmentof-the-anti-immigrant-narrative-in-nysrpa-v-bruen/

(discussing the clear evidentiary shortfalls of the antiimmigrant narrative presented before this Court in

Bruen). The aforementioned history and tradition of

prohibiting dangerous and unusual weapons, and the

history and tradition of armed carriage licensing laws

are just two examples. There are indeed others that

amicus curiae can point to should this Court desire additional briefing.

B. Why a Macro, Not Micro Approach to

History and Tradition is Jurisprudentially the Better Approach

In 1874, novelists Mark Twain and Charles Dudley Warner wrote, “History never repeats itself, but the

kaleidoscopic combinations of the pictured present often seem to be constructed out of the broken fragments

of antique legends.” 3 MARK TWAIN & CHARLES DUDLEY

WARNER, THE GILDED AGE 76 (1874). This observation

is an astute one—although the past and present can

never be the same, there are often similarities. And it

is from these similarities that important lessons can

be drawn. There are, however, limits on how much one

can objectively analogize between the past and the present. See Cass Sunstein, Commentary: On Analogical

Reasoning, 106 Harv. L. Rev. 741, 767-81 (1993) (discussing the objections and limits to analogical reasoning in general); see also Blocher & Ruben, supra, at 49

(“[I]t will often be impossible to identify a narrow and

precise principle of similarity by which to compare

modern and historical gun laws.”). In the words of the

late historian Edward Potts Cheyney, an early proponent of science-based history, “No matter how full our

knowledge of the [history], no matter how impartially

[it is] interpreted, there will always be a lack of exact

analogy.” EDWARD P. CHEYNEY, LAW IN HISTORY AND

OTHER ESSAYS 169 (1927); see also id. at 27-28.

The fact that there are limits to objectively analogizing between the past and present does not mean

that this Court in Bruen was wrong in requiring the

use of historical analogues when adjudicating the constitutionality of modern firearm regulations. Far from

it. See Charles, The Second Amendment in Historiographical Crisis, supra, at 1859-60 (outlining a similar

historical analogue test when adjudicating the constitutionality of firearms regulations post-McDonald), accord Charles, Fugazi, supra, at 693-94 (noting the

limits of importing the past for use in the present).

There is indeed much wisdom and judicial common

sense to be gleaned from examining our history and

tradition of firearm regulation. See, e.g., Kanter v. Barr,

919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting); see also Heller v. District of Columbia, 670 F.3d

1244, 1274-75 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (noting how any “history-and-tradition based approach” should provide “governments . . . more

flexibility and power to impose gun regulations” than

under a tiered, strict-scrutiny approach). However,

harnessing this wisdom and common sense in a way

that is transparent, objective, holistic, and jurisprudentially scalable will require that history and tradition be identified and analogized from a macro, not

micro level. The prudential reasons for doing so are

outlined below.

1. The Constitution is an Enduring

Document

It is often stated that the Constitution is an enduring document, and “its principles were designed to, and

do, apply to modern conditions and developments.”

Heller, 670 F.3d at 1275 (Kavanaugh, J., dissenting);

see also Bruen, 142 S. Ct. at 2134; Cohens v. Virginia,

19 U.S. 264, 387 (1821). Historically speaking, this includes the power of legislatures to enact laws within

the four corners of the Constitution, and in the interest

of the public good. See, e.g., Patrick J. Charles, Restoring “Life, Liberty, and the Pursuit of Happiness” in Our

Constitutional Jurisprudence: An Exercise in Legal

History, 20 Wm. & Mary Bill of Rts. J. 457, 502-17

(2011) (discussing the founding generation’s views on

the Constitution and the public or common good). And

based on what limited late eighteenth-century evidence has survived for historical posterity, it is safe to

conclude that the Second Amendment was publicly understood to permit legislatures to enact reasonable

firearm regulations in the interest of public health,

safety, and welfare. See, e.g., The Address and Reasons

of the Minority of the Convention of the State of Pennsylvania, to Their Constituents, Dec. 12, 1787, reprinted

in PENN. PACKET & DAILY ADVERTISER, Dec. 18, 1787, at

1 (noting it was lawful to disarm individuals for

“crimes committed” or when there may be “real danger

of public injury from individuals”); see also WILLIAM

RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED

STATES 123 (1825) (noting that the Second Amendment

“ought not . . . in any government . . . be abused to the

disturbance of the public peace”). By 1791, the year

that the Bill of Rights was ratified, such reasonable

regulations included laws that disarmed dangerous

and disaffected persons, hunting laws, prohibitions on

discharging firearms near occupied buildings and populated areas, gunpowder storage laws, unlawful armed

assemblage, armed carriage restrictions, armed assault, and brandishing. See Robert J. Spitzer, Gun Law

History in the United States and Second Amendment

Rights, 80 Law & Contemp. Probs. 55, 59-61 (2017). By

the close of the nineteenth century, the list of reasonable regulations had expanded to include express prohibitions on carrying weapons in so-called “sensitive

places,” armed carriage licensing laws, restrictions on

minors purchasing, using, and carrying weapons,

restrictions on the commercial sale of weapons,15 and

firearms registration. Id.

Yet in the wake of Bruen, many litigants have argued that the power of federal, state, and local governments to enact firearm regulations must be tightly

constrained to reflect only those firearms regulations

that were on the statute and ordinance books in 1791,

and that all subsequent firearm regulations are irrelevant. Some lower courts have concurred. See, e.g.,

Hardaway v. Nigrelli, 2022 U.S. Dist. LEXIS 200813,

at 39-40. It would be imprudent, however, for this

Court to follow suit. There are several reasons for this.

First and foremost, there is no substantive body of historical evidence proving that the Second Amendment

was ratified or publicly understood as confining lawmakers to enacting only those firearm regulations that

are closely analogous to those on the statute and ordinance books circa 1791. If anything, the historical evidence points in the opposition direction. See, e.g.,

Robert Churchill, Gun Regulation, the Police Power,

and the Right to Keep and Bear Arms in Early America:

The Legal Context of the Second Amendment, 25 L. &

Hist. Rev. 139, 161-65 (2007); Saul Cornell & Nathan

DeDino, A Well Regulated Right: The Early American

There were indeed laws restricting the commercial sale of

weapons circa 1791. However, given the questionable, racist pedigree of these laws, amicus curiae purposely omitted them from

the list of reasonable regulations circa 1791. Charles, Fugazi, supra, at 683; see also Patrick J. Charles, Racist History and the Second Amendment: A Critical Commentary, 43 Cardozo L. Rev. 1343,

1345-56 (2022) (contextualizing the history of early American firearm regulations based on race).

Origins of Gun Control, 73 Fordham L. Rev. 487, 50212 (2004); see also Patrick J. Charles, Scribble Scrabble, the Second Amendment, and Historical Guideposts:

A Short Reply to Lawrence Rosenthal and Joyce Lee

Malcolm, 105 Nw. U.L. Rev 1821, 1824-31 (2011). Consider the 1878 case State v. Reando, where the Missouri Supreme Court upheld the state’s “sensitive

places” armed carriage law as an unexceptional exercise of the police power:

The statute in question is nothing more than

a police regulation, made in the interest of

peace and good order, perfectly within the

power of the legislature to make . . . The right

to keep and bear arms necessarily implies the

right to use them, and yet acts passed by the

legislature regulating their use, or rather

making it an offence to use them in certain

ways and places, have never been questioned.

The Supreme Court: On Carrying Concealed Weapons,

STATE JOURNAL (Jefferson City, MO), Apr. 12, 1878, at

2.16

Another reason why it would be imprudent for the

Court to tightly constrain or roll back lawmakers’ authority to enact firearm regulations to the year 1791 is

This newspaper reprint of State v. Reando appears to be

the only copy of the case to have survived historical posterity, thus

further underscoring amicus curiae’s point on limited historical

record keeping. The case cannot be found in the Missouri Supreme

Court’s Historical Database. It was, however, briefly reported in

an 1878 issue of The Central Law Journal. See Abstract of Decisions of the Supreme Court of Missouri: October Term, 1877, 6 Central L.J. 16, 16 (1878).

that today’s world is demonstrably different from that

of our forebears, particularly as it pertains to firearms

technology. In 1791, firearm technology severely limited the firing rate, lethality, reliability, and portability

of firearms. A skilled rifleman could discharge, on average, two to three rounds a minute. See James E.

Hicks, United States Military Shoulder Arms, 17951935, 1 Journal of the American History Foundation

23, 31 (1937). Today, however, anyone armed with a

standard semi-automatic firearm can, with little to no

formal military training, match the firepower of an entire late eighteenth-century militia company by discharging upwards of 48 rounds a minute—at much

longer distances and far greater social cost than their

late eighteenth-century militia counterparts. The

point here is not to challenge Bruen’s pronouncement

that modern firearms that “facilitate” the right to

“armed self-defense” are presumably protected under

the Second Amendment. 142 S. Ct. at 2132. Rather, the

point is that given the advances in firearms technology,

it would be imprudent for the Court to tightly constrain lawmakers’ authority to enact firearm regulations to the year 1791, or any specific year from the late

eighteenth century through the close of the nineteenth

century for that matter. It is far more sensible to identify and analogize the history and tradition of firearm

regulation more broadly. The wide prevalence of firearms localism for much of this nation’s history underscores this point.

2. For Much of Our History, Firearms

Localism, Not Firearms Nationalism,

was the Norm

From the late eighteenth through the late

nineteenth century, firearms localism, not firearms

nationalism, was the norm. Charles, Fugazi, supra, at

683-86, 714-15; see also Joseph Blocher, Firearms Localism, 123 Yale L.J. 82, 112-16 (2013). This means

that from the late eighteenth through the late

nineteenth century, firearm regulation was predominantly localized, and often varied within the same

state from one local jurisdiction to the next.17 It was

Many mid-to-late nineteenth century state laws and local

government charters bear this out. See, e.g., THE LAWS OF THE

STATE OF KANSAS 118, 134 (1871), https://catalog.hathitrust.org/

Record/100836175 (providing all Kansas cities “of the third class”

wide latitude to “prohibit and punish the carrying of firearms or

other deadly weapons, concealed or otherwise”); LAWS OF THE

STATE OF INDIANA PASSED AT THE FIFTY-FIRST REGULAR SESSION

OF THE G ENERAL A SSEMBLY 201, 202 (1879), https://catalog.

hathitrust.org/Record/008892461 (1879 law providing all Indiana

towns the authority “to regulate or prohibit the use of firearms,

fireworks, or other things tending to endanger persons and property”); ACTS OF TENNESSEE: EXTRAORDINARY SESSION 48, 55

(1885), https://catalog.hathitrust.org/Record/100666682 (providing the mayor and alderman of the city of Knoxville the authority

to “prevent and suppress the sale of fire-arms and carrying of concealed weapons”); ACTS OF THE ONE HUNDRED AND TWELFTH LEGISLATURE OF THE STATE OF NEW JERSEY AND THE FORTY-FOURTH

UNDER THE NEW CONSTITUTION 483, 501 (1888), https://catalog.

hathitrust.org/Record/010134285 (1888 law providing all New

Jersey towns the authority “to regulate or prohibit the use of firearms and the carrying of weapons of any kind”); THE COMPLETE

CODES AND STATUTES OF THE STATE OF MONTANA IN FORCE JULY

1, 1895, at 424, 427 (1895), https://catalog.hathitrust.org/Record/

010447759 (providing all Montana “city or town council[s]” the

not until the early-to-mid twentieth century that lawmakers attempted to make firearm regulation more

uniform. See PATRICK J. CHARLES, ARMED IN AMERICA: A

HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS TO

CONCEALED CARRY 194-204 (2018) (outlining the history for uniform firearm regulations); see also W.H.,

Uniform Firearms Act, 18 Va. L. Rev. 904 (1932). Uniformity, however, was never actually achieved. See, e.g.,

NATIONAL RIFLE ASSOCIATION, DIGEST OF FEDERAL AND

STATE FIREARMS LAWS (1966); Firearms: Problems of

Control, 80 Harv. L. Rev. 1328, 1336-37 (1967); F.J.K.,

Restrictions on the Right to Bear Arms: State and Federal Firearms Legislation, 98 U. Pa. L. Rev. 905, 906-17

(1950); NATIONAL SHOOTING SPORTS FOUNDATION, INC.,

FACT PACK II ON FIREARM OWNERSHIP (1970) (providing

examples of model, uniform firearm laws that were being pushed by gun rights advocates circa the mid-tolate 1960s).

This history is significant because many litigants

post-Bruen have argued, and some lower courts have

agreed, that for a specific type of firearm regulation to

qualify as an identifiable ‘tradition’ under Bruen, the

regulation must be closely analogous to a specified

number of historical laws or meet a specified population threshold. See, e.g., Antonyuk II, 2022 U.S. Dist.

LEXIS 182965, at 21; Antonyuk III, 2022 U.S. Dist.

LEXIS 201944, at 191. It would be imprudent,

authority to “prevent and suppress the sale of firearms the carrying of concealed weapons”); see also Charles, Fugazi, supra, at 662

n.256, 685 n.406 (providing more than two dozen examples of firearms localism within state laws and local government charters).

however, for this Court to adopt either of these strict

numerical approaches given the predominance of firearms localism throughout much of this nation’s history.

Doing so would make it almost impossible for government defendants to satisfy their burden of providing

the courts with a suitable history and tradition of firearm regulation—save perhaps for armed carriage restrictions, laws prohibiting the discharging of firearms

at buildings, and mid-to-late nineteenth-century laws

restricting minors from purchasing, using, and carrying weapons. Moreover, should this Court adopt either

of these strict numerical approaches to identifying a

history and tradition of firearm regulation, its list of

presumptively constitutional firearm regulations will

assuredly be struck down as unconstitutional. See

Charles, Fugazi, supra, at 682-83.

3. A Macro Approach to History and

Tradition is More Workable and More

Jurisprudentially Reliable than a

Micro Approach

In Bruen, this Court pronounced that although answering “historical, analogical questions” can at times

be difficult, 142 S. Ct. at 2134, it is a task that is more

jurisprudentially “legitimate, and more administrable,

than asking judges to ‘make difficult empirical judgements’ about ‘the costs and benefits of firearm restrictions,’ ” id. at 2130 (citations omitted). The “job of

judges is not to resolve historical questions in the abstract,” this Court reasoned, but to “resolve legal questions presented in particular cases or controversies,”

id. at 2130 n.6, adding that the “ ‘legal inquiry is a refined subset’ of a broader ‘historical inquiry,’ ” which

“relies on ‘various evidentiary principles and default

rules’ to resolve uncertainties,” id. (quoting William

Baude & Steven E. Sachs, Originalism and the Law of

the Past, 37 L. &. Hist. Rev. 809, 810-11 (2019)).

Amicus curiae agrees with this Court that jurists

are sufficiently equipped to answer any “historical, analogical questions” when interpreting the law or Constitution. 142 S. Ct. at 2134. But this is not the problem

that lower courts are facing in Bruen’s wake. Rather,

the problem is the lack of jurisprudential standard in:

a) identifying what qualifies as a history and tradition

of firearm regulation; and b) performing analogical

reasoning once an identifiable history and tradition of

firearm regulation is identified. See, e.g., Daniels, No.

22-60596, slip op. at 32-38 (Higginson, J., concurring).

A macro approach to identifying and analogizing the

history and tradition of firearm regulation, like that

employed by the Eighth Circuit, see Jackson, 69 F.4th

at 502-05, alleviates this problem. See Blocher & Ruben, supra, at 49-66. Consider once more the limits of

historical record keeping. It impossible to reconstruct

the history of every type of firearm regulation at the

micro level (and not within the short confines of briefing schedules).18 Certainly, based on the evidentiary

Amicus curiae can attest to this fact from personal experience. For more than a decade, amicus curiae has researched the

various types of armed carriage regulations in our Anglo-American history. See, e.g., Patrick J. Charles, The Faces of the Second

Amendment Outside the Home, Take Two: How We Got Here and

Why It Matters, 64 Clev. St. L. Rev. 373 (2016). Still, today amicus

record that has survived for historical posterity, academics have successfully constructed several facets of

our history and tradition of firearm regulation. See,

e.g., Rivas, supra, at 2603-22. Unfortunately, as this

Court knows, not every historical reconstruction of

the law is “created equal.” Bruen, 142 S. Ct. at 2136.

The history and tradition of prohibiting dangerous

and unusual weapons and the history and tradition of

armed carriage licensing laws underscore this point.

See supra pp. 15-16.

This is why this Court should endorse a macro approach to history and tradition. Such an approach

would not only provide the lower courts with a workable, jurisprudentially scalable solution to reconstructing the history and tradition of firearm regulation, but

also better preserve the Constitution as an enduring

document.19 Furthermore, a macro approach would

minimize the likelihood of lawyers, legal scholars, and

jurists cherry-picking or manipulating20 those facets of

curiae continues to locate new, unknown historical laws and evidence in this area. See, e.g., Charles, Fugazi, supra, at 688-90 (discussing nineteenth century abolitionist John Brown’s views on

armed carriage); id. 709-10 (discussing the arrival and spread of

mid-to-late nineteenth armed carriage prohibitions within town

and city commercial/corporate limits). The point to be made is

that history is forever developing as new historical evidence is

discovered, and therefore it is more prudent to jurisprudentially

rationalize from the macro, not micro level.

Once more, amicus curiae is not suggesting that this Court

should foreclose the use of micro level history altogether. See supra n. 6.

This problem is particularly rife in the Second Amendment

context, where much of the so-called history being presented

the historical record that they like and discarding or

explaining away those they do not. See Sutton, supra,

at 1184-86 (identifying the risks associated with jurists relying squarely on history in constitutional

cases); see also Jack M. Balkin, Constitutional Memories, 31 Wm. & Mary Bill of Rts. J. 307, 340 (2022) (noting how easy it is for jurists to “pick and choose the

sources they trust,” and therefore “construct a version

of historical memory that buttresses their ideological

and philosophical priors”); Charles, History in Law, supra, at 54 (“One cannot take those portions of a legal

past he or she agrees with, discard the others, and proclaim constitutional objectivity and, therefore constitutional legitimacy.”); CHEYNEY, supra, at 27 (“[T]he

before lower courts is the advocate’s version, rather than that of

any historical expert. See United States v. Bullock, 2023 U.S. Dist.

LEXIS 112397, at 55-58 (S.D. Miss. Jun. 28, 2023). For decades,

this problem has grown as special interest groups have increasingly paid for and produced an entire body of scholarship with the

sole purpose of persuading the courts to adopt their view the Second Amendment. See, e.g., Will Van Sant, The NRA’s Shadowy Supreme Court Lobbying Campaign, POLITICO (Aug. 5, 2022), https://

www.politico.com/interactives/2022/nra-supreme-court-gunlobbying/; CHARLES , A RMED IN A MERICA, supra, at 279-80 and

accompanying notes. And within this this body of scholarship, one

will be hard pressed to find examples where the constitutionality

of firearm regulations is conceded or defended, nor will one find

much of any scholarly disagreement from its chief architects. See

id. at 282-83; see also Charles, Racist History, supra, at 1345-65.

That special interest groups have been closely involved in producing this body of scholarship is not to suggest that the historical

arguments contained within should not be duly considered by this

Court and lower courts. Rather, the point is that the cherry-picking and manipulating of history in many Second Amendment

writings is rather profound, and a macro approach would help this

Court and the lower courts resolve the objectivity problem.

treasure-house of history is so rich that all kinds of

precedents can be drawn from it. . . . An ingenious and

industrious advocate can always find in the history the

arguments he [or she] wants. But so can his [or hers]

opponent; [and therefore] arguments from history are

generally inconclusive except to those who are already

convinced [by the history being presented].”). To state

this differently, a macro approach to history and tradition ensures that courts are principally relying on

those common, identifiable historical threads that are

virtually undeniable. This, in turn, ensures that the

history and tradition that the courts identify and analogize from maintains sufficient elasticity to withstand

the test of time.

---------------------------------♦---------------------------------

CONCLUSION

This case presents the Court with a valuable opportunity to guide the lower federal and state courts

in their approach to implementing Bruen’s ‘text, history and tradition’ methodology for assessing the constitutionality of firearms restrictions in the United

States. In resolving this case, amicus curiae urges the

Court to adopt a macro approach to identifying and

analogizing historical restrictions on firearms, by focusing on common, contextually identifiable, and virtually undeniable historical threads. Doing so will

avoid the cherry-picking and manipulation that is inherent in a micro approach, and will lead to more consistent jurisprudential analyses and outcomes in

Second Amendment litigation than we have seen so

far post-Bruen.

Dated: August 17, 2023

Respectfully submitted,

PORTER, WRIGHT, MORRIS & ARTHUR LLP

HUGH E. MCKAY

Counsel of Record

hmckay@porterwright.com

950 Main Ave., Suite 500

Cleveland, OH 44113

L. BRADFIELD HUGHES

bhughes@porterwright.com

41 South High St., Suite 3000

Columbus, OH 43215

SHANE PENNINGTON

spennington@porterwright.com

2020 K St. NW, Suite 600

Washington, DC 20006

Telephone: (216) 443-9000

Facsimile: (216) 443-9011

Attorneys for Amicus Curiae

Patrick J. Charles

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.