Amicus Curiae Brief — United States, Petitioner v. Zackey Rahimi
Supreme Court briefAug 21, 2023
Ask Donna
What actually matters in this document.
Text
No. 22-915
IN THE
UNITED STATES OF AMERICA,
Petitioner,
v.
ZACKEY RAHIMI,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF OF AMICI CURIAE FORMER STATE
CHIEF JUSTICES AND CHIEF JUDGES IN
SUPPORT OF PETITIONER
KATHLEEN R. HARTNETT
JULIE M. VEROFF
COOLEY LLP
3 Embarcadero Center
San Francisco, CA 94111
PATRICK J. HAYDEN
COOLEY LLP
55 Hudson Yards
New York, NY 10001
ADAM M. KATZ
Counsel of Record
ADAM S. GERSHENSON
RACHEL H. ALPERT
KIMBERLEY A. SCIMECA
COOLEY LLP
500 Boylston St.
Boston, MA 02116
akatz@cooley.com
(617) 937-2351
DANIEL GROOMS
COOLEY LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Statement of Interest and Introduction..................... 1
Argument .................................................................... 3
I. Laws Disarming Domestic Abusers Play a
Vital Role in the Administration of Justice
and Protection of the Public by State
Courts .................................................................. 3
A. Laws Disarming Persons Subject to
Domestic-Violence Restraining Orders
Allow State Courts to Safeguard
Families ........................................................ 3
B. Laws Disarming Persons Subject to
Domestic-Violence Restraining Orders
Allow State Courts to Safeguard the
Integrity of Judicial Proceedings................. 7
II. 18 U.S.C. § 922(g)(8) Does Not Violate the
Second Amendment and the Court Should
Limit Itself to That Question ........................... 10
A. Under a Straightforward Application
of this Court’s Precedent, § 922(g)(8) is
Constitutional ............................................ 10
B. Judicial Minimalism and Respect for
State Sovereignty Favor a Decision
Limited to the Question Presented ........... 14
C. Rejecting the Fifth Circuit’s Specific
Misapplication of Bruen Need Not
Disrupt Healthy Percolation in the
Lower Courts .............................................. 19
Conclusion ................................................................. 24
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Arizona v. Evans,
514 U.S. 1 (1995) .................................................. 21
Ashwander v. Tenn. Valley Auth.,
297 U.S. 288 (1936) .............................................. 15
Brown v. Maryland,
25 U.S. (12 Wheat.) 419 (1827) ............................ 18
California v. Carney,
471 U.S. 386 (1985) .............................................. 17
Clinton v. Jones,
520 U.S. 681 (1997) .............................................. 16
Cutter v. Wilkinson,
544 U.S. 709 (2005) .............................................. 17
Dem. Nat’l Comm. v. Wis. State Legis.,
141 S. Ct. 28 (2020) .............................................. 15
Dep’t of Homeland Sec. v. New York,
140 S. Ct. 599 (2020) ............................................ 20
Dist. of Columbia v. Heller,
554 U.S. 570 (2008) .......................................... 9, 11
iii
Fried v. Garland,
No. 4:22-cv-164-AW-MAF, 2022 WL
16731233 (N.D. Fla. Nov. 4, 2022) ....................... 22
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) ................................ 11
Kelley v. Johnson,
425 U.S. 238 (1976) .............................................. 18
Liverpool, N.Y. & Phila. Steam-Ship Co.
v. Emigration Comm’rs,
113 U.S. 33 (1885) ................................................ 15
Maslenjak v. United States,
582 U.S. 335 (2017) .............................................. 22
McDonald v. City of Chicago,
561 U.S. 742 (2010) ........................................ 18, 19
N.Y. State Rifle & Pistol Ass’n, Inc. v.
Bruen,
142 S. Ct. 2111 (2022) ...................................passim
Nat’l Aeronautics & Space Admin. v.
Nelson,
562 U.S. 134 (2011) .............................................. 16
North Carolina v. Covington,
581 U.S. 486 (2017) .............................................. 17
PDK Lab’ys Inc. v. U.S. D.E.A.,
362 F.3d 786 (D.C. Cir. 2004) .............................. 15
iv
Pereira v. Sessions,
138 S. Ct. 2105 (2018) .......................................... 15
Ritchie v. Konrad,
10 Cal. Rptr. 3d 387 (Cal. Ct.
App. 2004) ............................................................... 5
S. Pac. Co. v. Jensen,
244 U.S. 205 (1917) .............................................. 15
United States v. Boyd,
999 F.3d 171 (3d Cir. 2021) .................................. 11
United States v. Comstock,
560 U.S. 126 (2010) .............................................. 18
United States v. Connelly,
No. EP-22-cr-229(2)-KC, 2023 WL
2806324 (W.D. Tex. Apr. 6, 2023) ........................ 21
United States v. Harrison,
No. CR-22-00328-PRW, 2023 WL
1771138 (W.D. Okla. Feb. 3, 2023) ...................... 22
United States v. Jackson,
69 F.4th 495 (8th Cir. 2023) ................................. 11
United States v. Joseph,
94 U.S. 614 (1876) ................................................ 14
United States v. Kelly,
No. 3:22-cr-00037, 2022 WL
17336578 (M.D. Tenn. Nov. 16, 2022) ................. 22
v
United States v. Mendoza,
464 U.S. 154 (1984) .............................................. 21
United States v. Morrison,
529 U.S. 598 (2000) .............................................. 18
United States v. Nutter,
624 F. Supp. 3d 636 (S.D. W. Va. 2022) .............. 14
United States v. Perez-Gallan,
No. PE:22-cr-00427-DC, 2022 WL
16858516 (W.D. Tex. Nov. 10, 2022).................... 22
United States v. Posey,
No.l 2:22-cv-83 JD, 2023 WL 1869095
(N.D. Ind. Feb. 9, 2023) ........................................ 22
United States v. Rahimi,
61 F.4th 443 (5th Cir. 2023) ....................... 6, 12, 13
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) .................................. 4
United States v. Springer,
No. 23-cv-1013-DJW-MAR, 2023 WL
4981583 (N.D. Iowa Aug. 3, 2023) ....................... 21
United States v. Walker,
No. 8:22-cr-291, 2023 WL 3932224 ...................... 21
Wash. State Grange v. Wash. State
Republican Party,
552 U.S. 442 (2008) .............................................. 15
vi
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .............................................. 15
Statutes
18 U.S.C.
§ 922(g)(8) ......................................................passim
§ 922(g)(8)(A) .......................................................... 8
§ 922(g)(8)(C) ........................................................ 12
Ariz. Rev. Stat. Ann. § 13-3602(G)(4) ......................... 5
Cal. Fam. Code § 6389 ................................................. 6
Conn. Gen. Stat. Ann.
§ 29-28(b)(6) ............................................................ 5
§ 29-36f(b)(6) ........................................................... 5
§ 29-36k................................................................... 5
§ 46b-15 ................................................................... 5
§ 53a-217 ................................................................. 5
§ 53a-217c ............................................................... 5
§ 53a-223 ................................................................. 5
Del. Code Ann. tit. 10
§ 1041 ...................................................................... 3
§ 1042 ...................................................................... 3
§ 1043 .................................................................. 3, 5
§ 1043(d).............................................................. 3, 8
§ 1045(a)(8) ............................................................. 5
Del. Code Ann. tit. 13, § 1507 ...................................... 9
vii
N.H. Rev. Stat. Ann.
§ 173-B:4 ................................................................. 5
§ 173-B:5 ................................................................. 5
§ 173-B:9 ................................................................. 5
N.Y. Crim. Proc. Law § 530.14 .................................... 5
N.Y. Fam. Ct. Act § 842-a ............................................ 5
N.Y. Penal Law § 400.00 ............................................. 5
Tex. Fam. Code Ann.
§ 83.001(b)............................................................... 5
§ 85.022(b)(6) .......................................................... 5
§ 85.022(d)............................................................... 5
Tex. Penal Code Ann.
§ 25.07(a)(4) ............................................................ 5
§ 46.06(a)(6) ............................................................ 5
Utah Code Ann.
§ 76-10-503(1)(b)(x)................................................. 5
§ 78B-7-404(5)......................................................... 5
§ 78B-7-504(5)......................................................... 5
§ 78B-7-603(2)(f) ..................................................... 5
Other Authorities
140 Cong. Rec. S7884 (daily ed.
June 29, 1994) ........................................................ 4
142 Cong. Rec. S1122 (daily ed.
Sept. 25, 1996) ........................................................ 4
viii
April M. Zeoli & Daniel W. Webster,
Effects of Domestic Violence Policies,
Alcohol Taxes and Police Staffing
Levels on Intimate Partner Homicide
in Large U.S. Cities, 16 Inj.
Prevention 90 (2010) .............................................. 6
April M. Zeoli et al., Analysis of the
Strength of Legal Firearms
Restrictions for Perpetrators of
Domestic Violence and Their
Associations with Intimate Partner
Homicide, 187 Am. J. Epidemiology
2365 (2018) ............................................................. 6
Barry Friedman, Dialogue & Judicial
Review, 91 Mich. L. Rev. 577 (1993) .................... 17
Benjamin N. Cardozo, The Nature of
Judicial Process (1921)......................................... 20
Brannon P. Denning, Can Judges Be
Uncivilly Obedient?, 60 Wm. & Mary
L. Rev. 1 (2018) ..................................................... 22
Carolina Díez et al., State Intimate
Partner Violence–Related Firearm
Laws and Intimate Partner Homicide
Rates in the United States, 1991 to
2015, 167 Annals Internal Med. 536
(2017) ...................................................................... 6
ix
Cass R. Sunstein, One Case at a Time:
Judicial Minimalism on the Supreme
Court (1999) .......................................................... 16
Clare Dalton, Judge Susan Carbon &
Nancy Olesen, High Conflict Divorce,
Violence, and Abuse: Implications for
Custody and Visitation Decisions, 54
Juv. & Fam. Ct. J. 11 (2003) ................................ 10
Extreme Risk Protection Order: A Tool to
Save Lives, Johns Hopkins
Bloomberg Sch. of Pub. Health,
https://tinyurl.com/wpntehhs (last
updated Aug. 1, 2023) .......................................... 23
Gregory L. Acquaviva & John D.
Castiglione, Judicial Diversity on
State Supreme Courts, 39 Seton Hall
L. Rev. 1203 (2009) ............................................... 19
Jacquelyn C. Campbell et al., Risk
Factors for Femicide in Abusive
Relationships: Results from A
Multisite Case Control Study, 93 Am.
J. Pub. Health 1089 (2003) .................................... 7
Joseph Blocher & Reva B. Siegel,
Guided by History: Protecting the
Public Sphere from Weapons Threats
Under Bruen, 98 N.Y.U. L. Rev.
(forthcoming Dec. 2023),
https://tinyurl.com/4u2db2y6 ............................... 13
x
Kaitlin N. Sidorsky & Wendy J. Schiller,
Can Government Protect Women from
Domestic Violence? Not If States Do
Not Follow Up., Brookings (Mar. 21,
2023), https://tinyurl.com/3jwhza6e .................. 23
Laura F. Edwards, The People and Their
Peace: Legal Culture and the
Transformation of Inequality in the
Post-Revolutionary South (2009) ......................... 13
Martha R. Mahoney, Legal Images of
Battered Women: Redefining the Issue
of Separation, 90 Mich. L. Rev. 1 (1991) ............... 7
Natalie Nanasi, Disarming Domestic
Abusers Harv. L. & Pol’y Rev. 559 (2020) ............. 7
Peter G. Jaffe, Claire V. Crooks &
Samantha E. Poisson, Common
Misconceptions in Addressing Domestic
Violence in Child Custody Disputes, 54
Juv. & Fam. Ct. J. 57 (2003) .................................. 9
Richard A. Posner, The Federal Courts:
Crisis and Reform (1985) ..................................... 20
Saul Cornell, Early American Gun
Regulation and the Second Amendment:
A Closer Look at the Evidence, 25 Law &
Hist. Rev. 197 (2007) ............................................ 18
xi
State Just. Inst. & Nat’l Council Juv. &
Fam. Ct. Judges, Navigating Custody
& Visitation Evaluations in Cases with
Domestic Violence: A Judge’s Guide
(2006), https://tinyurl.com/vynv2bye ..................... 9
Thomas C. Grey, Molecular Motions: The
Holmesian Judge in Theory & Practice,
37 Wm. & Mary L. Rev. 19 (1995) ....................... 15
U.S. Census Bur., State Population
Totals and Components of Change:
2020-2022 (June 13, 2023),
https://tinyurl.com/bpby2dj3 .................................. 1
Which States Prohibit Domestic Abusers
Under Restraining Orders from
Having Guns?, Everytown Rsch. &
Pol’y (last updated Jan. 12, 2023),
https://tinyurl.com/ydpv63m3 .............................. 23
1
STATEMENT OF INTEREST AND
INTRODUCTION 1
Amici curiae are former Chief Justices and Chief
Judges of the States of Arizona (Hon. Ruth McGregor),
Connecticut (Hon. Chase T. Rogers), Delaware (Hon.
Leo E. Strine, Jr.), New Hampshire (Hon. John T.
Broderick, Jr.), New York (Hon. Jonathan Lippman),
and Texas (Hon. Wallace B. Jefferson; Hon. Thomas R.
Phillips). 2 Amici presided over a geographically
diverse array of states encompassing over 60,000,000
citizens 3 and many thousands of judicial officers and
other court personnel. In their capacity as Chief
Justices and Chief Judges, amici gained an
understanding of the important role played by state
judiciaries in temporarily disarming perpetrators of
domestic violence. Amici also witnessed firsthand the
important role that state judiciaries play in grappling
with and applying major precedents of this Court to
local laws and procedures.
Amici submit this brief to provide the Court their
perspective on two critical points.
1 No counsel for either party authored this brief in whole or in
part. No person or entity, other than amici and their counsel,
contributed to the preparation or submission of this brief.
2 The views expressed in this brief are those of individual amici
and do not represent the views or positions of their affiliated
institutions. Institutional affiliations are listed for identification
purposes only.
3 U.S. Census Bur., State Population Totals and Components of
Change: 2020-2022 (June 13, 2023), https://tinyurl.com/bpby2dj3.
2
First, amici address how domestic-violence
restraining orders that temporarily block access to
firearms play a vital part in the administration of
justice and public safety. These orders allow state
courts to safeguard both families and the integrity of
judicial proceedings. State courts protect families by
evaluating the imminence and magnitude of a threat
of violence and then exercising their discretion—
conferred and cabined by state law—to order tailored
relief that protects partners and children. Often, this
relief involves disarming the perpetrator, as logic and
data confirm that a firearm can decide whether or not
an abusive situation escalates to catastrophic injury or
death. Such orders also help to ensure that judicial
proceedings related to, or subsequent to, the domestic
violence can unfold in an orderly fashion without the
specter of gun-violence. Importantly, state procedures
accord alleged domestic-violence perpetrators a right
to an adversary proceeding in a timely period, thus
guaranteeing that any deprivation of the ability to
carry a firearm based on an ex parte application is
limited to a time-period in which there are special
dangers of lethal violence.
Second, amici explain why this Court should
uphold 18 U.S.C. § 922(g)(8) as a straightforward
application of its own Second Amendment precedent
and not go beyond that question. A ruling limited to
rejecting the specific Second Amendment challenge at
issue here will adhere to the good-judging practice of
minimalism, accord due respect to traditional state
police powers used to promote public safety, and allow
3
myriad state-law frameworks to continue to evolve in
light of this Court’s decision in Bruen.
This Court should reverse the judgment below.
ARGUMENT
I.
Laws Disarming Domestic Abusers Play a
Vital Role in the Administration of Justice
and Protection of the Public by State Courts
A. Laws Disarming Persons Subject to
Domestic-Violence Restraining Orders
Allow State Courts to Safeguard Families
Across the country, state courts play an essential
role in implementing state law frameworks designed
to protect and preserve community safety through the
exercise of state police power. Domestic-violence
restraining orders are a critical tool allowing state
courts to protect families from imminent harm.
Consider, for example, the law in Delaware, where
one of amici previously presided as Chief Justice.
Under Delaware law, an individual who fears, inter
alia, “physical injury,” “sexual” violence, conduct
designed to “cause fear or emotional distress,” “[c]hild
abuse,” or other “threatening” behavior, may petition
the court for a restraining order. Del. Code Ann. tit.
10, §§ 1041, 1042. Delaware judges “may” grant ex
parte relief under certain exigent circumstances (e.g.,
where there is “an immediate and present danger of
domestic violence to the petitioner or to a minor child”
and the petitioner has made an effort to “give notice”),
or else “shall order a hearing” to consider whether,
“the alleged domestic violence … occurred” such that
4
relief is warranted. Id. §§ 1043, 1044, 1045. Amici
stress again that the Delaware statue and other state
laws guarantee the alleged perpetrator a timely
adversarial hearing if an ex parte order is entered. Id.
§ 1043(d). State court judges are well-positioned to
examine the facts before them and to evaluate the
credibility of petitioners seeking relief in their
courtooms. Accordingly, this and similar state codes
nationwide provide for state judges to use their
cabined discretion to assess the severity of a threat
and, where necessary, issue restraining orders to
protect families from domestic violence.
Under 18 U.S.C. § 922(g)(8), the provision
challenged in this case, it is unlawful for any person
subject to certain domestic-violence restraining orders
to possess a firearm. That prohibition reflects the
commonsense reality “that the presence of a gun
dramatically increases the likelihood that domestic
violence will escalate into murder.” 142 Cong. Rec.
S1122 (daily ed. Sept. 25, 1996) (statement of Sen.
Frank Lautenberg).
Or, as another sponsor of
§ 922(g)(8) explained, the presence or absence of a
firearm held by a perpetrator of domestic violence is
often the only difference between life and death of the
target of that violence: “All too often the only
difference between a battered woman and a dead
woman is the presence of a gun.” 140 Cong. Rec. S7884
(daily ed. June 29, 1994) (statement of Sen. Paul
Wellstone). Data backs this up: “Domestic assaults
with firearms are approximately twelve times more
likely to end in the victim’s death than are assaults by
5
knives or fists.” United States v. Skoien, 614 F.3d 638,
643 (7th Cir. 2010) (Easterbrook, J.) (citing sources).
Almost every state has adopted analogues to
§ 922(g)(8). 4 Some statutes, like § 922(g)(8), apply if
the respondent received notice and a hearing. See, e.g.,
Conn. Gen. Stat. Ann. § 29-36k (requiring immediate
transfer of “any pistol, revolver or other firearm or
ammunition” from a person who is subject to a
restraining or protective order issued after the
provision of notice). Other statutes also allow for
potential application to ex parte orders, where such
orders are justified by the factual circumstances and
corresponding judicial findings that the danger
warrants immediate action. See, e.g., Del. Code Ann.
tit. 10, §§ 1043, 1045(a)(8) (“After consideration of a
petition for a protective order, the Court may . . .
[o]rder the respondent to temporarily relinquish . . .
respondent’s firearms and to refrain from purchasing
or receiving additional firearms for the duration of the
order.”). These statutes, like § 922(g)(8), promote a
common goal: to protect victims of domestic violence
from grievous injury and death. See, e.g., Ritchie v.
4 46 States, the District of Columbia, and multiple territories
have adopted such measures. The States in which Amici formerly
served as Chief Justice or Chief Judge are among them. See Ariz.
Rev. Stat. Ann. § 13-3602(G)(4); Conn. Gen. Stat. Ann. §§ 2928(b)(6), 29-36f(b)(6), 29-36k, 46b-15, 53a-217, 53a-217c, 53a-223;
Del. Code Ann. tit. 10, §§ 1043, 1045(a)(8); N.H. Rev. Stat. Ann.
§§ 173-B:4, 173-B:5, 173-B:9; N.Y. Fam. Ct. Act § 842-a; N.Y.
Crim. Proc. Law § 530.14; N.Y. Penal Law § 400.00; Tex. Fam.
Code Ann. §§ 83.001(b), 85.022(b)(6), (d); Tex. Penal Code Ann. §§
25.07(a)(4), 46.06(a)(6); Utah Code Ann. §§ 76-10-503(1)(b)(x),
78B-7-404(5), 78B-7-504(5), 78B-7-603(2)(f).
6
Konrad, 10 Cal. Rptr. 3d 387, 403 (Cal. Ct. App. 2004)
(reasoning that “[i]f a person represents a substantial
threat to inflict physical harm on another person, it
appears reasonable to disarm the former, at least to
take away the weapons most capable of causing death
or death-threatening injury, e.g., firearms” in
discussing Cal. Fam. Code § 6389, California’s
§ 922(g)(8) analogue). As the Fifth Circuit itself
recognized, § 922(g)(8) aims to “protect vulnerable
people in our society.” United States v. Rahimi, 61
F.4th 443, 461 (5th Cir. 2023).
Section 922(g)(8) and its state law analogues
deliver results. Study after study has shown that such
laws substantially reduce mortality rates. 5 See, e.g.,
April M. Zeoli et al., Analysis of the Strength of Legal
Firearms Restrictions for Perpetrators of Domestic
Violence and Their Associations with Intimate Partner
Homicide, 187 Am. J. Epidemiology 2365, 2365 (2018)
(finding a 10% reduction in intimate partner homicide
in states with laws like § 922(g)(8)); Carolina Díez et
al., State Intimate Partner Violence–Related Firearm
Laws and Intimate Partner Homicide Rates in the
United States, 1991 to 2015, 167 Annals Internal Med.
536, 541 (2017) (finding a 14% reduction in states with
such laws); April M. Zeoli & Daniel W. Webster, Effects
of Domestic Violence Policies, Alcohol Taxes and Police
Staffing Levels on Intimate Partner Homicide in Large
5 These studies use a combination of comparisons across states
(i.e., to states that have and have not enacted certain laws) and
comparisons within states (i.e., to the time before and after a state
enacted a certain law). The results hold in both research designs.
7
U.S. Cities, 16 Inj. Prevention 90, 90 (2010) (finding a
19% reduction in large cities in states with such laws);
Jacquelyn C. Campbell et al., Risk Factors for
Femicide in Abusive Relationships: Results from A
Multisite Case Control Study, 93 Am. J. Pub. Health
1089, 1090 (2003) (finding abusers with firearms are
five times more likely to murder their intimate
partners). In short, the empirics are clear: laws like
§ 922(g)(8) help counteract and mitigate the deadly
combination of firearms and domestic violence.
B. Laws Disarming Persons Subject to
Domestic-Violence Restraining Orders
Allow State Courts to Safeguard the
Integrity of Judicial Proceedings
In addition to protecting families from harm, laws
that disarm domestic abusers protect the integrity of
state judicial proceedings for two related reasons.
First, a domestic-violence victim’s choice to
commence legal process (e.g., by seeking a restraining
order) or to leave their abuser often triggers a period
of increased violence. See, e.g., Natalie Nanasi,
Disarming Domestic Abusers, 14 Harv. L. & Pol’y Rev.
559, 578 (2020) (“[A]ttempting to leave a violent
relationship was the precipitating factor in 45 percent
of murders of a woman by a man.”); Martha R.
Mahoney, Legal Images of Battered Women:
Redefining the Issue of Separation, 90 Mich. L. Rev. 1,
65–66 (1991) (defining “separation assault” as “the
attack on the woman’s body and volition in which her
partner seeks to prevent her from leaving, retaliate for
the separation, or force her to return”).
8
During this period of heightened emotions and
risk, state laws that disarm domestic abusers help
minimize the possibility of deadly violence before a
formal judicial hearing can be held. 6 For example,
Delaware law authorizes state judges to issue
restraining orders on an ex parte basis under exigent
circumstances, but once “an ex parte protective order
has been issued, a full hearing shall be held within 15
days.” Del. Code Ann. tit. 10, § 1043(d). During that
15-day window, Delaware law provides that judges
may issue an order disarming the person subject to the
ex parte order. Id. §§ 1043(d), 1045(a)(8). And under
no circumstances can this window be extended “to
exceed 30 days,” id. § 1043(d), thereby strictly limiting
any depriviation to the period during which the risk of
lethal violence is at its highest.
Provisions like this preserve the status quo
pending a hearing and reduce the likelihood that an
enraged abuser will harm or kill a victim for seeking
relief. See Mahoney, supra, at 65–66. At the same
time, such provisions respect the due process rights of
the alleged abuser by providing an expedited right to
an adversary hearing on whether the restraint on
firearm possession shall remain in place. That kind of
regulation—a “measure[] regulating handguns” that is
attentive both to the rights of would-be victims and
alleged perpetrators—is what this Court envisioned
when it referred to the “variety of tools for combating
6 Amici note that in order to trigger § 922(g)(8), the underlying
domestic-violence restraining order must have been “issued after
a hearing” that affords the subject notice and an “opportunity to
participate.” 18 U.S.C. § 922(g)(8)(A) (emphasis added).
9
th[e] problem” of “handgun violence” that local
governments lawfully retain. Dist. of Columbia v.
Heller, 554 U.S. 570, 636 (2008).
Second, after a victim of domestic abuse leaves
their partner, other legal proceedings—aside from the
charge of domestic abuse itself—often must take place
and be resolved. For example, a victim of domestic
abuse may petition for divorce or seek to obtain full
custody of any children, among other forms of familylaw relief. See, e.g., Del. Code Ann. tit. 13, § 1507
(divorce petition); id. § 721 (child-custody petition).
Such divorce and child-custody proceedings—like a
victim’s efforts to seek relief from the abuse itself—can
fuel an absuer’s heightened emotions and trigger
additional violence. 7 Laws that disarm domestic
7 See, e.g., State Just. Inst. & Nat’l Council Juv. & Fam. Ct.
Judges, Navigating Custody & Visitation Evaluations in Cases
with Domestic Violence: A Judge’s Guide at 10–11 (2006),
https://tinyurl.com/vynv2bye (“Lethal violence occurs more often
during and after separation than when the couple is still
together . . . .”); Peter G. Jaffe, Claire V. Crooks & Samantha E.
Poisson, Common Misconceptions in Addressing Domestic
Violence in Child Custody Disputes, 54 Juv. & Fam. Ct. J. 57, 59
(2003) (“Attempts to leave a violence partner, with children, is
one of the most significant factors associated with severe domestic
violence and death. Inquests into domestic homicides and
Domestic Violence Fatality Reviews have consistently pointed to
the period of separation as the time of highest risk for victims of
domestic violence.”); Clare Dalton, Judge Susan Carbon & Nancy
Olesen, High Conflict Divorce, Violence, and Abuse: Implications
10
abusers thus protect not only the integrity of judicial
proceedings directly regarding the abuse, but also the
integrity of various related proceedings by reducing
the intervening threat posed by lethal weapons.
* * * * *
Like § 922(g)(8), state laws that disarm domestic
abusers allow state courts to protect families from
harm and to safeguard the integrity of legal
proceedings. The Fifth Circuit’s conclusion that
§ 922(g)(8) violates the Second Amendment, if upheld,
would eliminate this critical protection for the judicial
process and for spouses, partners, and children
already endangered by domestic abuse.
II. 18 U.S.C. § 922(g)(8) Does Not Violate the
Second Amendment and the Court Should
Limit Itself to That Question
A. Under a Straightforward Application of
this Court’s Precedent, § 922(g)(8) is
Constitutional
As this Court recognized in Heller and Bruen, laws
may properly limit firearm ownership for citizens who
are not “law-abiding” and whose disrespect for the law
endangers others. See Heller, 554 U.S. at 635; N.Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2111, 2122 (2022). As the United States details in its
for Custody and Visitation Decisions, 54 Juv. & Fam. Ct. J. 11, 26
(2003) (noting increased likelihood of “fear, injury, and
death . . . in cases in which one parent has already demonstrated
a readiness to use threats and violence to maintain control over
the family whose cohesion is threatened by the proceedings”).
11
brief, see Pet. Br. 13–27, that recognition comports
with our country’s longstanding history and tradition
of disarming dangerous individuals. See, e.g., United
States v. Jackson, 69 F.4th 495, 504 (8th Cir. 2023)
(“[H]istory supports the authority of Congress to
prohibit possession of firearms by persons who have
demonstrated disrespect for legal norms of society.”);
United States v. Boyd, 999 F.3d 171, 186 (3d Cir. 2021)
(finding “longstanding historical support” for the
principal that “legislatures have the power to prohibit
dangerous people from possessing guns”) (citation
omitted); Kanter v. Barr, 919 F.3d 437, 454 (7th Cir.
2019) (Barrett, J., dissenting) (“The historical evidence
does, however, support a different proposition: that the
legislature may disarm those who have demonstrated
a proclivity for violence or whose possession of guns
would otherwise threaten the public safety.”). Indeed,
in Heller, 31 States filed an amicus brief to reinforce
that “centuries of common law” support the conclusion
that a law “prohibiting firearm possession by people
with … dangerous characteristics” is “reasonable and
constitutionally valid,” specifically citing § 922(g)(8) as
an example of this valid form of firearm regulation.
Amici Br. of Texas, et al., District of Columbia v.
Heller, No. 07-290, at 35 (Feb. 2008).
Section 922(g)(8) embodies and reflects the
tradition of appropriately disarming dangerous
individuals. The law prohibits a person subject to a
domestic-violence restraining order issued by a court
from possessing a firearm when, among other things,
the order includes a finding that the person poses a
“credible threat” to the physical safety of an intimate
12
partner or child, or explicitly prohibits the use,
attempted use, or threatened use of physical force
against the intimate partner or child. 18 U.S.C.
§ 922(g)(8)(C). Persons subject to such orders are thus,
by definition, not “law-abiding,” Heller, 554 U.S. at
635, but instead acute threats to public safety.
The Fifth Circuit’s declaration that § 922(g)(8) is
an “outlier[] that our ancestors would never have
accepted,” Rahimi, 61 F.4th at 454 (quoting Bruen, 142
S. Ct. at 2132), fails on its own terms and misapplies
Bruen.
As this Court explained in Bruen, the
historical-analogical inquiry requires analogizing with
respect to both why and how the government
regulated firearms in the past. See 142 S. Ct. at 2118.
The Fifth Circuit short-circuited this inquiry by
distinguishing § 922(g)(8) from ratification-era laws
that disarmed dangerous individuals, claiming that
the purpose of those older laws “was ostensibly the
preservation of political and social order, not the
protection of an identified person from the threat of
domestic gun abuse, posted by another individual.”
Rahimi, 61 F.4th at 457 (citation omitted). Even on its
own flawed terms, this analysis fails: As the United
States explains, there in fact were early disarmament
laws that applied to people who posed threats to
identified victims. Pet. Br. 43.
Moreover, under Bruen’s required analysis, the
laws concerned with maintaining the “political and
social order” cited by the Fifth Circuit do provide
historical support for § 922(g)(8). Historians and legal
scholars have shown how “the common law did view
aggravated acts of domestic violence as a threat to
13
‘political and social order.’” Joseph Blocher & Reva B.
Siegel, Guided by History: Protecting the Public Sphere
from Weapons Threats Under Bruen, 98 N.Y.U. L. Rev.
(forthcoming Dec. 2023) (manuscript at 131),
https://tinyurl.com/4u2db2y6 (“Blocher & Siegel”)
(discussing Laura F. Edwards, The People and Their
Peace: Legal Culture and the Transformation of
Inequality in the Post-Revolutionary South 180 (2009)
(describing a common law system of magistrate-issued
“peace warrants” that forced abusive husbands “to
post bond to keep the peace toward their wives,”
“ensuring public monitoring of the situation and
promising penalties for further abuse” and thereby
allowing “wives [to] legally transform[] their
husbands’ violence from personal conflicts into illegal
acts that endangered the public order”)); id. at 131
n.180 (collecting “other examples of law enforcement
in the domestic violence context”).
History thus supports § 922(g)(8).
And this
historical record is as robust as one would expect,
given that at the time of the founding “guns were so
cumbersome they were rarely used for domestic abuse”
and “a woman was viewed as a dependent of her
abuser rather than an equal and independent member
of the community.” Id. at 132; see also United States
v. Nutter, 624 F. Supp. 3d 636, 641 (S.D. W. Va. 2022)
(“Laws surrounding domestic violence have evolved, in
part as women’s rights and roles in society expanded.
The absence of stronger laws may reflect the fact that
the group most impacted by domestic violence lacked
access to political institutions, rather than a
14
considered judgment about
seriousness of the issue.”).
the
importance
or
Section 922(g)(8) satisfies the historical-analogical
inquiry Bruen requires. The Fifth Circuit’s contrary
holding is wrong and should be reversed.
B. Judicial Minimalism and Respect for
State Sovereignty Favor a Decision
Limited to the Question Presented
As just explained, this case is a straightforward
one for reversal under this Court’s precedent. And, for
at least two reasons—judicial minimalism and respect
for state sovereignty—this Court should limit its
decision to resolving the specific question presented
and go no further.
First, the well-established principle of judicial
minimalism counsels for a narrow ruling. For well
over a century, this Court has recognized the “rule,”
which “ought always to govern this court, to decide
nothing beyond what is necessary to the judgment we
are to render.” United States v. Joseph, 94 U.S. 614,
618 (1876). Jurists who otherwise vary widely in
judicial methodologies have extolled the virtues of
minimalism. In 1917, Justice Holmes opined that
judges should break new ground “only interstitially.”
S. Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917)
(dissenting); see, e.g., Thomas C. Grey, Molecular
Motions: The Holmesian Judge in Theory & Practice,
37 Wm. & Mary L. Rev. 19, 45 (1995) (“The Holmesian
judge is an austere minimalist . . . .”). In 1936, Justice
Brandeis explained that the “Court will not ‘formulate
a rule of constitutional law broader than is required by
15
the precise facts to which it is to be applied.’”
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (concurring) (quoting Liverpool, N.Y. & Phila.
Steam-Ship Co. v. Emigration Comm’rs, 113 U.S. 33,
39 (1885)). In 1952, Justice Frankfurther stated it is
“incumbent upon this Court to avoid putting fetters
upon the future by needless pronouncements today.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
596 (1952) (concurring). Many other members of this
Court have since echoed these bedrock principles. 8
At its core, judicial minimalism entails “saying no
more than necessary to justify an outcome, and leaving
as much as possible undecided.” Cass R. Sunstein,
One Case at a Time: Judicial Minimalism on the
Supreme Court 3–4 (1999). Minimalist decisions are
“[a]lert to the problem of unanticipated consequences”
and properly see themselves “as part of a system of
democratic deliberation” that “allows continued space
for democratic reflection from Congress and the
states.” Id. at ix–x. This Court has “repeatedly
recognized” these and other “benefits of proceeding
8 See, e.g., Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 450 (2008) (Thomas, J.) (noting the “fundamental
principle of judicial restraint”); Democratic Nat’l Comm. v. Wis.
State Legis., 141 S. Ct. 28, 31 (2020) (mem.) (Kavanaugh, J.,
concurring) (referring to the “important principle of judicial
restraint”); Pereira v. Sessions, 138 S. Ct. 2105, 2113 n.5 (2018)
(Sotomayor, J.) (as an “exercise of judicial restraint,” “leav[ing]
for another day” questions unnecessary to the disposition fo the
case); PDK Lab’ys Inc. v. U.S. Drug Enf’t Admin., 362 F.3d 786,
799 (D.C. Cir. 2004) (Roberts, J., concurring) (noting the “cardinal
principle of judicial restraint” that “if it is not necessary to decide
more, it is necessary not to decide more”).
16
with caution.” Nat’l Aeronautics & Space Admin. v.
Nelson, 562 U.S. 134, 147 n.10 (2011). Particularly
where, as here, the parties have not asked the Court
for a ruling beyond the contours of the precise question
presented, the Court should “refrain[] from addressing
[other] issue[s] in detail.” Id.
Here, a decision simply affirming the
constitutionality of § 922(g)(8) would avoid the many
pitfalls of non-minimalist decisions. Specifically, any
exposition of how Bruen and related cases may apply
in contexts neither argued nor briefed here could inject
uncertainty into myriad state regimes, with farreaching and hard-to-predict consequences. See, e.g.,
Clinton v. Jones, 520 U.S. 681, 690 n.11 (1997) (“It has
long been the Court’s considered practice not to decide
abstract, hypothetical or contingent questions” or
“decide questions of a constitutional nature unless
absolutely necessary to a decision” (quotation marks
omitted)). As State amici pointed out in their brief in
support of certiorari, nearly every State and territory
enforces various laws disarming domestic-violence
offenders for the reasons stated above—such state
laws protect both the judicial system and families most
at risk. See State Amici Cert. Br., Add. 1–31. Those
laws may pursue similar results (the protection of
domestic-violence victims and the public), but in a
variety of different ways, with different structures,
procedures, and standards. See id. A ruling that prejudges hypothetical features of state statutes could
unintentionally imperil dozens of jurisdictions’ laws
that are not before this Court. See, e.g., Cutter v.
Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a
17
court of review, not of first view.”). That would “stunt[]
the natural growth and refinement of alternative
principles,” California v. Carney, 471 U.S. 386, 399
(1985) (Stevens, J., dissenting), and prematurely cut
off the “dialogue” between this Court and state courts
“concerning the meaning of the Constitution,” Barry
Friedman, Dialogue & Judicial Review, 91 Mich. L.
Rev. 577, 581 (1993). Such an approach would be
especially ill-advised here, given that state courts have
only recently begun to digest, apply, and develop the
Bruen framework in the context of variegated state
gun-regulation regimes. See infra section II.C.
Second, and relatedly, resolving only the question
presented by this case and nothing more would accord
due respect to the sovereignty and police powers of the
States. This Court has unanimously recognized the
“need to act with proper judicial restraint when
intruding on state sovereignty.” North Carolina v.
Covington, 581 U.S. 486, 488 (2017) (per curiam). The
heartland of that sovereignty is the “police power”—
the “undefined residuum of power remaining after
taking account of powers granted to the National
Government,” which “belongs to the States and the
States alone.” United States v. Comstock, 560 U.S.
126, 153 (2010) (Kennedy, J., concurring). And there
can be “no better example of the police power, which
the Founders denied the National Government and
resposed in the States, than the suppression of violent
crime.” United States v. Morrison, 529 U.S. 598, 618
(2000); see also, e.g., Kelley v. Johnson, 425 U.S. 238,
247 (1976) (“The promotion of safety of persons and
property is unquestionably at the core of the State’s
18
police power . . . .”). The police power to prevent
violence has long been understood to include
regulatory power over firearms. See, e.g., Brown v.
Maryland, 25 U.S. (12 Wheat.) 419, 443–44 (1827)
(Marshall, C.J.) (“The power to direct the removal of
gunpowder is a branch of the police power, which
unquestionably remains, and ought to remain, with
the States.”); Saul Cornell, Early American Gun
Regulation and the Second Amendment: A Closer Look
at the Evidence, 25 Law & Hist. Rev. 197, 198 (2007)
(“The right to keep arms for civilian purposes was not
removed from the sphere of legislative power, it was
subject to the full scope of the state’s ample police
powers.”). That is why this Court in McDonald made
clear that the Second Amendment “by no means
eliminates” the ability of states “to devise solutions to
social problems that suit local needs and values.”
McDonald v. City of Chicago, 561 U.S. 742, 785 (2010).
Here, a decision simply upholding the
constitutionality of § 922(g)(8) would best respect the
independent sovereignty of the States. As just set
forth, preventing crime and promoting public safety—
including with respect to firearms—lie at the heart of
state police power. Any decision resolving this case
that goes further to entertain and address broader
questions about the meaning of Bruen and related
cases—questions not presented or briefed here—could
destabilize countless exercises of police power to
address gun violence. That would inhibit the valuable
“state and local experimentation with reasonable
firearms regulations” that McDonald recognized could
“continue under the Second Amendment.” 561 U.S. at
19
785. The Court should not cut off such efforts with a
decision that is broader than necessary to resolve the
specific question presented by this case.
C. Rejecting the Fifth Circuit’s Specific
Misapplication of Bruen Need Not
Disrupt Healthy Percolation in the
Lower Courts
This Court’s decision in Bruen is hardly a year old.
Courts across the country are still digesting, applying,
and fleshing out the contours of Bruen in the context
of countless state firearms laws. And, as a practical
matter, any eventual future challenges to state
firearms laws—whether in the context of domestic
violence or beyond—will call upon state judges to
leverage their familiarity with local laws and the ways
in which these laws operate on the ground. See, e.g.,
Gregory L. Acquaviva & John D. Castiglione, Judicial
Diversity on State Supreme Courts, 39 Seton Hall L.
Rev. 1203, 1207–08 (2009) (explaining that a
“comprehensive examination of the demographic and
experiential characteristics of all judges on the courts
of last resort” revealed that the “average” judge has
been “heavily involved in both the bar and the greater
local community, . . . likely spent some portion, if not
all, of his undergraduate law school days at a school in
the state over which he would eventually preside,” and
has “[c]ommunity ties” that “run deep”).
Thus,
allowing state courts to continue to have the
opportunity to interpret and resolve potential
challenges to local laws in varied factual settings will
aid this Court’s decisionmaking process. See Richard
A. Posner, The Federal Courts: Crisis and Reform 163
20
(1985) (“[A] difficult question is more likely to be
answered correctly if it is allowed to engage the
attention of different sets of judges deciding factually
different cases . . . .”).
This Court has long noted the benefits of allowing
State and other lower courts to consider questions as
they arise, rather than preemptively deciding matters
not yet before the Court with overbroad rulings. Even
at common law, “[i]n the endless process of testing and
retesting, there is a constant rejection of the dross, and
a constant retention of whatever is pure and sound and
fine.” Benjamin N. Cardozo, The Nature of Judicial
Process 179 (1921). In a variety of contexts, members
of this Court have emphasized that awaiting cases
that tee up questions precisely “encourages multiple
judges and multiple circuits to weigh in only after
careful deliberation, a process that permits the airing
of competing views that aids this Court’s own
decisionmaking process.” Dep’t of Homeland Sec. v.
New York, 140 S. Ct. 599, 600 (2020) (mem.) (Gorsuch,
J., concurring); see also, e.g., Arizona v. Evans, 514
U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting)
(observing
that
awaiting
“diverse
opinions
from[] . . . state and federal appellate courts may yield
a better informed and more enduring final
pronouncement by this Court”); United States v.
Mendoza, 464 U.S. 154, 160 (1984) (refusing to apply
nonmutual collateral estoppel to the Government
because it “would deprive this Court of the benefit it
receives from permitting several courts of appeals to
explore a difficult question” before that question
reaches the Supreme Court).
21
Proceeding incrementally in this fashion is all the
more valuable following consequential decisions like
Bruen, which take time for State and lower federal
courts to digest. That time is well spent—in wrestling
with new law, State and lower courts may ultimately
provide compelling data and reasoning to inform this
Court’s ultimate views on how existing doctrine can or
should evolve following the major new precedent. This
process is well underway right now: courts across the
country are carefully considering Bruen’s impact,
including as to various laws that disarm dangerous
persons, with varying results. 9 By allowing that
process to play out case-by-case—and here doing no
more than affirming § 922(g)(8)’s constitutionality—
this Court may “work in tandem” with lower courts to
determine the reach of Bruen. See Brannon P.
Denning, Can Judges Be Uncivilly Obedient?, 60 Wm.
& Mary L. Rev. 1, 7 (2018) (describing process by
which “lower [federal] courts and the Supreme Court
can work in tandem” in building on precedent). This
“crucible of adversarial testing, . . . along with the
9 See generally, e.g., United States v. Springer, No. 23-cv-1013DJW-MAR, 2023 WL 4981583 (N.D. Iowa Aug. 3, 2023); United
States v. Walker, No. 8:22-cr-291, 2023 WL 3932224 (D. Neb. June
9, 2023); United States v. Connelly, No. EP-22-cr-229(2)-KC, 2023
WL 2806324 (W.D. Tex. Apr. 6, 2023); United States v. Posey, No.l
2:22-cv-83 JD, 2023 WL 1869095 (N.D. Ind. Feb. 9, 2023); United
States v. Harrison, No. CR-22-00328-PRW, 2023 WL 1771138
(W.D. Okla. Feb. 3, 2023); Fried v. Garland, No. 4:22-cv-164-AWMAF, 2022 WL 16731233 (N.D. Fla. Nov. 4, 2022); United States
v. Kelly, No. 3:22-cr-00037, 2022 WL 17336578 (M.D. Tenn. Nov.
16, 2022); United States v. Perez-Gallan, No. PE:22-cr-00427-DC,
2022 WL 16858516 (W.D. Tex. Nov. 10, 2022).
22
experience of . . . thoughtful colleagues” on the lower
and state-court bench, “could yield insights (or reveal
pitfalls)” that this Court “cannot muster guided only
by [its] own lights.” Maslenjak v. United States, 582
U.S. 335, 354 (2017) (Gorsuch, J., concurring in part).
Permitting such development in State and lower
courts is particularly important here, as a ruling that
speaks to anything other than § 922(g)(8) could either
pre-judge the constitutionality of myriad state
firearms regimes without adequate data or,
conversely, destabilize these regimes. States have
taken a variety of approaches to this issue—some
extend their laws to reach dating partners, some
include temporary restraining orders, and others rely
on “red flag” laws to disarm dangerous persons. See,
e.g., Which States Prohibit Domestic Abusers Under
Restraining Orders from Having Guns?, Everytown
Rsch. & Pol’y, https://tinyurl.com/ydpv63m3 (last
updated Jan. 12, 2023) (reviewing state legislation);
Kaitlin N. Sidorsky & Wendy J. Schiller, Can
Government Protect Women from Domestic Violence?
Not If States Do Not Follow Up., Brookings (Mar. 21,
2023), https://tinyurl.com/3jwhza6e (same); Extreme
Risk Protection Order: A Tool to Save Lives, Johns
Hopkins Bloomberg Sch. of Pub. Health (last updated
Aug. 1, 2023), https://tinyurl.com/wpntehhs (same).
Given the variety of these state laws, they should not
be lumped together, particularly when they are not
before this Court for review. Rather, a ruling simply
affirming the constitutionality of § 922(g)(8) will allow
state law to continue to evolve without preemptively
constitutionalizing it.
23
The Fifth Circuit’s invalidation of § 922(g)(8) is
wrong. That question is properly before the Court and
the Fifth Circuit’s ruling should be reserved. In so
holding, the Court should resist any urge to go
further—given the benefits from allowing state and
lower courts the opportunity to apply Bruen in varied
contexts and the related danger of inadvertently
constitutionalizing entire swaths of state law.
24
CONCLUSION
The Fifth Circuit’s decision should be reversed.
Respectfully submitted,
KATHLEEN R. HARTNETT
JULIE M. VEROFF
COOLEY LLP
3 Embarcadero Center
San Francisco, CA 94111
PATRICK J. HAYDEN
COOLEY LLP
55 Hudson Yards
New York, NY 10001
ADAM M. KATZ
Counsel of Record
ADAM S. GERSHENSON
RACHEL H. ALPERT
KIMBERLEY A. SCIMECA
COOLEY LLP
500 Boylston St.
Boston, MA 02116
akatz@cooley.com
(617) 937-2351
DANIEL GROOMS
COOLEY LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004
Counsel for Amici Curiae
August 21, 2023
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.