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

No. 22-915

In the Supreme Court of the United States

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 UNITED STATES SENATOR RICHARD

BLUMENTHAL, REPRESENTATIVE MIKE THOMPSON,

AND 169 OTHER U.S. SENATORS AND REPRESENTATIVES AS AMICI CURIAE IN SUPPORT OF PETITIONER

H. CHRISTOPHER BOEHNING

MATTHEW J. DISLER

P AUL, W EISS , RIFKIND,

Counsel of Record

W HARTON & GARRISON LLP DANIELLE J. MARRYSHOW

2001 K Street, N.W.

JENIFER N. HARTLEY

P AUL, W EISS , RIFKIND,

Washington, DC 20006

W HARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

cboehning@paulweiss.com

TABLE OF CONTENTS

Page

Interest of amici curiae..................................................... 1

Summary of argument...................................................... 1

Argument.......................................................................... 3

I.

Congress has broad authority to legislate for the

benefit of the American people ............................. 3

II.

The Fifth Circuit’s flawed reading of Bruen

unduly hinders Congress’s ability to legislate ...... 7

A.

Rahimi is a dangerous distortion of Bruen

.................................................................... 7

B.

The Rahimi court’s reading of Bruen

places the Second Amendment out of step

with other constitutional rights ............... 12

III. Courts will be inundated by Bruen challenges if

the Fifth Circuit’s decision stands ...................... 17

Conclusion....................................................................... 19

Appendix ......................................................................... 1a

(I)

II

TABLE OF AUTHORITIES

Page

Cases

Alexander v. United States, 509 U.S. 544 (1993)...... 13

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ................................................ 4

Austin v. United States, 509 U.S. 602 (1993) ........... 14

Bartlett v. Strickland, 556 U.S. 1 (2009)..................... 6

Browning-Ferris Industries of Vermont, Inc. v.

Kelco Disposal, Inc., 492 U.S. 257 (1989)............ 13

Carpenter v. United States, 138 S. Ct. 2206

(2018) ................................................................... 15

Chauffeurs, Teamsters & Helpers, Local No.

391 v. Terry, 494 U.S. 558 (1990) ....................15, 16

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999) ...............15, 16

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Construction Trades

Council,

485 U.S. 568 (1988) ................................................ 5

Gamble v. United States, 139 S. Ct. 1960 (2019) ........ 4

District of Columbia v. Heller,

554 U.S. 570 (2008) .......................... 6, 10, 12, 16, 17

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) .................................................. 4

Hilton v. South Carolina Public Railways

Commission, 502 U.S. 197 (1991).......................... 6

Husted v. A. Philip Randolph Institute,

138 S. Ct. 1833 (2018) ............................................ 4

Kyllo v. United States, 533 U.S. 27 (2001)................ 14

Markman v. Westview Instruments, Inc.,

517 U.S. 370 (1996) .............................................. 15

III

Cases—continued:

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................ 4

McDonald v. City of Chicago, 561 U.S. 742

(2010) ..............................................................12, 17

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

142 S. Ct. 2111 (2022) 2, 3, 6, 7, 9, 10, 11, 12, 13, 17,

18, 19

Osborn v. Bank of United States,

22 U.S. (9 Wheat.) 738 (1824) .......................... 4, 10

United States v. Butler, 297 U.S. 1 (1936) .................. 5

United States v. Castleman, 572 U.S. 157 (2014) ....... 2

United States v. Daniels, No. 22-60596,

2023 WL 5091317 (5th Cir. Aug. 9, 2023) .......18, 19

United States v. Darby, 312 U.S. 100 (1941) .............. 5

United States v. Hansen, 143 S. Ct. 1932 (2023) ........ 5

United States v. Jones, 565 U.S. 400 (2012) ............. 14

United States v. Price,

635 F. Supp. 3d 455 (S.D. W. Va. 2022) ............... 18

United States v. Rahimi,

61 F.4th 443 (5th Cir. 2023) .... 2, 7, 9, 10, 11, 12, 13,

16, 18

Riley v. California, 573 U.S. 373 (2014) .......... 9, 14, 15

Sykes v. United States, 564 U.S. 1 (2011) ................... 9

Tull v. United States, 481 U.S. 412 (1987) ................ 16

Constitution and statutes:

U.S. Const.:

Art. I ................................................................... 3, 4

Art. I, § 8................................................................. 4

Amend. I ............................................................... 16

Amend. II..... 1, 2, 3, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19

Amend. IV................................................ 3, 9, 14, 15

Amend. VII .................................................. 3, 15, 16

Amend. VIII ................................................ 3, 13, 14

IV

Constitution and statutes—continued:

18 U.S.C. 922(g)(8) .............................. 1, 2, 6, 10, 11, 12

18 U.S.C. 922(k) ........................................................ 18

42 U.S.C. 1983 ........................................................... 16

Clean Water Act, 33 U.S.C. 1251 et seq. ................... 16

Miscellaneous:

139 Cong. Rec. 30579 (1993)........................................ 7

After the Highland Park Attack: Protecting Our

Communities from Mass Shootings Before

the S. Comm. on the Judiciary, 117th Cong.

(2022) (statement of Joseph Blocher),

https://www.judiciary.senate.gov/imo/media/

doc/Testimony%20-%20Blocher%20%202022-07-20.pdf [https://perma.cc/Q65HRMCF] .................................................................. 8

Joseph Blocher & Darrell A.H. Miller, A

Supreme Court Head-Scratcher: Is a

Colonial Musket ‘Analogous’ to an AR-15?,

N.Y. Times (July 1,

2022),https://www.nytimes.com/2022/07/01

/opinion/guns-supreme-court.html

[perma.cc/B7MK-UKH3] ...................................... 8

Joseph Blocher & Eric Ruben, Originalism-byAnalogy and Second Amendment

Adjudication, 133 Yale L.J. (forthcoming

2023),

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

ract_id=4408228 [perma.cc/6YNK-D89B].......... 11

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://ssrn.com/abstract=4355024

[perma.cc/H22K-AT6W] ................................. 9, 11

V

Miscellaneous—continued:

Jacob D. Charles, The Dead Hand of a Silent

Past: Bruen, Gun Rights, and the Shackles

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

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

ract_id=4335545 [perma.cc/UK7E-MPQX] .11, 17,

18

Press Release, Senator Paul Wellstone, To the

Conferees: Adopt Crime Bill Domestic Violence Provisions (June 28, 1994)............................ 7

Violent Crime Control & Law Enforcement Act

of 1994, H.R. Rep. No. 711, 103d Cong., 2d

Sess. (1994) (Conf. Rep.) ................................... 6, 7

INTEREST OF AMICI CURIAE

Amici curiae are 171 members of Congress who believe that gun safety laws, such as 18 U.S.C. 922(g)(8), are

essential tools for protecting victims of domestic violence,

ensuring public safety, and preserving other constitutional rights. Amici consider it crucial that both state and

federal legislatures maintain the flexibility to address

public safety threats with common-sense policy solutions

that are permissible under the Second Amendment. As

democratically elected representatives, amici have a particular interest in ensuring that the judicial branch continues to give necessary deference to legislative judgments, especially when those judgments concern complex

policy issues and implicate the safety of the public. Further, amici are keenly aware of the acute dangers posed

by firearms to victims of domestic violence, and they believe that restrictions on firearm ownership for individuals subject to domestic violence protective orders are consistent with the Second Amendment’s text and historical

understanding.

The names of individual amici are listed in the Appendix. 1

SUMMARY OF ARGUMENT

The Second Amendment protects the right of individuals to keep and bear arms, subject to certain restrictions.

Those restrictions are crucial to ensuring that, while responsible and law-abiding individuals are able to exercise

1

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part, and that no person other than

amici, their members, or their counsel made a monetary contribution

to fund its preparation or submission.

(1)

2

their Second Amendment rights, the public is kept safe

from the scourge of gun violence. This is particularly

acute in the context of domestic violence: as this Court has

already recognized, often “the only difference between a

battered woman and a dead woman is the presence of a

gun.” United States v. Castleman, 572 U.S. 157, 160

(2014) (citation omitted). The Fifth Circuit’s erroneous

application of the standard announced in New York State

Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111

(2022), infringes on Congress’s considerable legislative

authority to pass common-sense gun legislation. The

judgment below should be reversed.

First, this Court has made clear for centuries that

Congress enjoys considerable deference to pass the legislation it sees fit. While the judicial branch is responsible

for ensuring that legislation is compatible with the Constitution, laws are only sparingly deemed unconstitutional. Where there is a potential conflict between a statute and the Constitution, this Court seeks to harmonize

the two, not simply strike the statute down. The Second

Amendment context is no different—it is flexible enough

to tolerate a number of gun regulations in keeping with

Congress’s traditional legislative authority.

Second, the Fifth Circuit’s decision in United States v.

Rahimi, 61 F.4th 443 (2023), represents the realization of

legal commentators’ worst fears about the impact of

Bruen on legislatures’ ability to address public safety

challenges. The Rahimi court’s insistence on an exact historical match for Section 922(g)(8) is contrary to this

Court’s pronouncements in Bruen and in prior Second

Amendment decisions. If allowed to stand, this reasoning

would allow courts to substitute their policy judgments for

3

those of Congress. As a result, the Fifth Circuit’s approach would unduly shackle Congress to the past, rendering it unable to develop innovative solutions for the

benefit of the public.

Moreover, such a result would place the Second

Amendment analysis far out of step with how courts treat

other constitutional rights. In the Fourth, Seventh, and

Eighth Amendment contexts, for example, courts do not

demand the identification of an exact historical match in

order to uphold the constitutionality of a statute. Indeed,

those constitutional rights have been applied to a variety

of circumstances that would have been unrecognizable at

the Founding yet comport with the traditions of those

amendments as understood at the ratification of the Bill

of Rights.

Third, if the Fifth Circuit’s erroneous decision is

not corrected, this Court (and already overburdened district courts) will be inundated with Second Amendment

challenges to all sorts of widely accepted gun laws that

this Court has suggested are well within the bounds of the

Second Amendment. That deluge has already begun.

This Court must stem the tide if it does not want courts to

relitigate Bruen for years to come.

ARGUMENT

I.

CONGRESS HAS BROAD AUTHORITY TO

LEGISLATE FOR THE BENEFIT OF THE

AMERICAN PEOPLE

The Constitution grants Congress broad discretion to

legislate for the betterment of our nation. This wide-ranging authority is firmly grounded in the text of Article I,

which establishes Congress as a co-equal branch of gov-

4

ernment in the constitutional design and sets forth its considerable legislative powers. See U.S. Const. Art. I. And

“Article I vests Congress with broad discretion over the

manner of implementing its enumerated powers, giving it

authority to ‘make all Laws which shall be necessary and

proper for carrying [them] into Execution.’ ” Armstrong

v. Exceptional Child Center, Inc., 575 U.S. 320, 325 (2015)

(alteration in original) (quoting U.S. Const. Art. I, § 8).

For centuries, this Court has recognized that, consistent with Congress’s Article I authority, “the sound

construction of the constitution must allow to the national

legislature that discretion, with respect to the means by

which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the

people.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

421 (1819); see also Osborn v. Bank of United States, 22

U.S. (9 Wheat.) 738, 866 (1824) (“Judicial power is never

exercised for the purpose of giving effect to the will of the

Judge; always for the purpose of giving effect to the will

of the Legislature; or, in other words, to the will of the

law.”); Gamble v. United States, 139 S. Ct. 1960, 1982

(2019) (Thomas, J., concurring) (citing Osborn).

In recognition of the broad authority that the Constitution grants Congress, this Court has sought to avoid interfering with Congress’s legislative judgments. As this

Court has previously remarked, courts “have no authority

to second-guess Congress” on policy matters. Husted v.

A. Philip Randolph Institute, 138 S. Ct. 1833, 1848 (2018).

Indeed, “the proper role of the judiciary” is “to apply, not

amend, the work of the People’s representatives,” even if

“reasonable people can disagree with how Congress balanced the various social costs and benefits.” Henson v.

5

Santander Consumer USA Inc., 582 U.S. 79, 90 (2017);

see also, e.g., United States v. Darby, 312 U.S. 100, 115

(1941) (“The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment

upon the exercise of which the Constitution places no restriction and over which the courts are given no control.”).

Of course, Congress’s authority is restricted insofar as

it may not pass laws that are unconstitutional. But declaring a statute unconstitutional is exceedingly rare and may

only occur where a court has no other option. Indeed, this

Court has recently explained that “[w]hen legislation and

the Constitution brush up against each other, [its] task is

to seek harmony, not to manufacture conflict.” United

States v. Hansen, 143 S. Ct. 1932, 1946 (2023); see also

United States v. Butler, 297 U.S. 1, 67 (1936) (noting that

where a statute is challenged as unconstitutional, this

Court “naturally require[s] a showing that by no reasonable possibility can the challenged legislation fall within the

wide range of discretion permitted to the Congress”). In

other words, separation-of-powers principles call on

courts to reconcile any potential conflict between statutes

and the Constitution, not to seek to invalidate statutes at

every turn. “This approach not only reflects the prudential concern that constitutional issues not be needlessly

confronted, but also recognizes that Congress, like this

Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume

that Congress intended to infringe constitutionally protected liberties or usurp powers constitutionally forbidden it.” Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council, 485 U.S. 568,

575 (1988).

6

And in the rare instances when a particular statute

conflicts with the Constitution, Congress plainly does not

lose its authority to pass any future legislation in that policy area. Recognizing the common-sense notion that Congress must have a sufficiently broad framework within

which to legislate, this Court has previously acknowledged “the need for workable standards and sound judicial and legislative administration,” favoring rules that

“draw[] clear lines for courts and legislatures alike.”

Bartlett v. Strickland, 556 U.S. 1, 17 (2009) (plurality opinion); see also Hilton v. South Carolina Public Railways

Commission, 502 U.S. 197, 206 (1991) (describing benefits

of the clear statement rule, which “ought to be of assistance to the Congress and the courts in drafting and interpreting legislation”).

The Second Amendment context is no different. As

Bruen makes clear, “analogical reasoning under the Second Amendment is neither a regulatory straightjacket

nor a regulatory blank check.” New York State Rifle &

Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022). Indeed, “[p]roperly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.” Id. at 2162 (Kavanaugh, J., concurring) (quoting District of Columbia v.

Heller, 554 U.S. 570, 636 (2008)).

Section 922(g)(8) is one of those permissible gun regulations. It was Congress’s well-founded concern that firearms threatened the lives of the abused that motivated its

passage. In 1994, when this Section was made law, Congress found that “domestic violence [was] the leading

cause of injury to women in the United States between the

ages of 15 and 44,” and that “firearms are used by the

abuser in 7 percent of domestic violence incidents.”

Violent Crime Control & Law Enforcement Act of 1994,

7

H.R. Rep. No. 711, 103d Cong., 2d Sess., 391 (1994) (Conf.

Rep.). As one of the sponsors of the original bill noted, an

“article in the New England Journal of Medicine found

that if there is a gun present in the house, a woman who

has been physically abused in a previous family fight is

almost five times more likely to be murdered or involved

in a fatal shooting.” Press Release, Senator Paul Wellstone, To the Conferees: Adopt Crime Bill Domestic Violence Provisions (June 28, 1994). Based on these findings,

Congress determined that “individuals with a history of

domestic abuse should not have easy access to firearms.”

H.R. Rep. No. 711, 103d Cong., 2d Sess., at 391. In short,

“[t]here simply is no rational reason whatsoever to allow

persons who have been deemed a clear and present danger to another person * * * to have a gun.” 139 Cong.

Rec. 30579 (1993) (statement of Sen. Chafee).

As explained in further detail below, the Fifth Circuit’s erroneous reading of Bruen that invalidates this

well-reasoned gun regulation creates precisely the “regulatory straightjacket” that this Court has warned against

and infringes on Congress’s sphere of legislative authority.

II.

THE FIFTH CIRCUIT’S FLAWED READING OF BRUEN UNDULY HINDERS

CONGRESS’S ABILITY TO LEGISLATE

A.

Rahimi Is A Dangerous Distortion Of

Bruen

Given the well-established principle that Congress is

vested with considerable legislative authority, many legal

commentators expressed significant concern in the wake

of Bruen that—despite language in Bruen to the contrary—the lower courts would implement that decision in

8

a way that would hamstring Congress’s ability to pass

common-sense firearm regulations that protect Americans. 2

And the potential problem was not just that legislatures would be unable to determine in advance whether

gun legislation was lawful. Analogical tests can “raise[]

serious problems of administrability and invite[] judicial

discretion and ideology to seep into decision-making.” After the Highland Park Attack: Protecting Our Communities from Mass Shootings Before the S. Comm. on the Judiciary, 117th Cong. 8 (2022) (statement of Joseph

Blocher),

https://www.judiciary.senate.gov/imo/media/doc/Testimony%20-%20Blocher%20-%202022-0720.pdf [https://perma.cc/Q65H-RMCF]. In other words,

without further guidance from this Court, “the fate of gun

laws w[ould] depend more than ever on the whims of federal judges” employing “an ‘I know it when I see it’ approach to historical analogy.” Joseph Blocher & Darrell

A.H. Miller, A Supreme Court Head-Scratcher: Is a Colonial Musket ‘Analogous’ to an AR-15?, N.Y. Times (July

1,

2022),

https://www.nytimes.com/2022/07/01/o pinion/guns-supreme-court.html [perma.cc/B7MK-UKH3].

2

Over 150 members of Congress warned this Court in Bruen that

its decision could threaten legislatures’ longstanding efforts to protect public safety in the face of emerging threats. See Br. of United

States Senators Charles E. Schumer, Kirsten Gillibrand and 150

Other U.S. Senators and Representatives as Amici Curiae Supporting Respondents at 5-7, 8-11, New York State Rifle & Pistol Ass’n v.

Bruen, 142 S. Ct. 2111 (2022) (No. 20-843). Amici continue to be concerned that those fears have been borne out by the significant litigation that has arisen on the heels of Bruen and believe that Bruen

should be overturned.

9

This is a concern that this Court has already recognized. In the Fourth Amendment case Riley v. California, this Court rejected California’s offered limiting principle “under which officers could search cell phone data if

they could have obtained the same information from a

pre-digital counterpart.” 573 U.S. 373, 400 (2014). This

Court reasoned that “an analogue test would launch

courts on a difficult line-drawing expedition to determine

which digital files are comparable to physical records,”

forcing courts to decide difficult questions like whether

“an email [is] equivalent to a letter.” Id. at 401. This analogue test was dismissed because it would “keep defendants and judges guessing for years to come.” Ibid. (quoting Sykes v. United States, 564 U.S. 1, 34 (2011) (Scalia,

J., dissenting)).

The Fifth Circuit’s opinion in Rahimi is those

worst fears realized. It more than injects uncertainty (for

both Congress and judges alike) into whether a particular

firearms regulation is likely to be viewed as constitutional—it is “illustrat[ive]” of “how judges weaponize

Bruen to invalidate laws that are consistent with the nation’s traditions of weapons regulation.” 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 6),

https://ssrn.com/abstract=4355024

[perma.cc/H22KAT6W].

This Court should reverse in order to rein in lower

courts’ errors, rectify this misreading of Bruen, and clarify the applicable test. Bruen was clear that the Second

Amendment framework does not require a court to find

“a historical twin,” and that “even if modern-day regulation is not a dead ringer for historical precursors, it may

be analogous enough to pass constitutional muster.” 142

10

S. Ct. at 2133 (emphasis in original). But the Fifth Circuit

ignored that direction. Instead of recognizing that the law

has always allowed legislatures to disarm those who are

not “law-abiding, responsible citizens,” Heller, 554 U.S. at

635, the Rahimi court embarked on a hunt for the perfect

match, discarding all of the historical analogues one by

one on the purported basis that they were different from

Section 922(g)(8) in some way. Finding no exact match, it

held that Section “922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors would never have

accepted.’ ” Rahimi, 61 F.4th at 461 (quoting Bruen, 142

S. Ct. at 2133).

That “divide-and-conquer” approach to historical gun

regulations overlooks centuries of legislative and judicial

consensus that the Second Amendment allows legislatures to disarm individuals who are not “responsible”—

here, that pose a danger to others. See U.S. Br. 27-29, 43.

Section 922(g)(8) is no outlier, whether compared with the

past or the present. See id. at 22-27 (recounting history

of laws disarming individuals considered not to be lawabiding and responsible), 34-35 (describing statutes in at

least 48 jurisdictions enabling restrictions on gun possession by persons subject to protective orders). Rather, the

statute is consistent with the Founding-era understanding that “Congress may disarm persons who are not lawabiding, responsible citizens.” Id. at 13.

Moreover, the Fifth Circuit’s deeply flawed reasoning

threatens to encroach on the traditional role of the legislature, substituting the policy preferences of judges for

those of democratically elected representatives. This

Court has long recognized that as a wholly improper use

of judicial authority. See Osborn, 22 U.S. (9 Wheat.) at

866. Indeed, “[t]he Fifth Circuit’s claim that [Section]

11

922(g)(8) lacks antecedents is a classic exemplar of courts

hiding behind the analogical method to choose amongst

arms regulation in ways that are not compelled by Bruen

itself and are instead ventriloquizing historical sources

with their own values.” Blocher & Siegel, 98 N.Y.U. L.

Rev. (manuscript at 33).

That misreading must be corrected by this Court. Allowing the Rahimi court’s distortion of Bruen to stand

will tie legal protections for survivors of domestic abuse

to an era in which protective orders did not exist, law enforcement consciously avoided intervening in domestic violence, and firearms technology was less developed (and

lethal) than it is today. See U.S. Br. 40-41. In order to

avoid the “regulatory straightjacket” that Bruen specifically forbids, 142 S. Ct. at 2133, clarity regarding the appropriate methodology that courts must use in evaluating

Second Amendment claims “is important and urgent as

legislatures attempt to address the astonishing rise in gun

deaths” while courts are simultaneously “faced with a rising tide of Second Amendment cases.” Joseph Blocher &

Eric Ruben, Originalism-by-Analogy and Second

Amendment Adjudication, 133 Yale L.J. (forthcoming

2023) (manuscript at 38), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4408228 [perma.cc/6YNK-D89B];

see also Jacob D. Charles, The Dead Hand of a Silent

Past: Bruen, Gun Rights, and the Shackles of History, 73

Duke L.J. (forthcoming 2023) (manuscript at 40),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4335545 [perma.cc/UK7E-MPQX] (arguing

that “tying the hands of today’s legislators” on the basis

of a historical absence of gun regulation “seems particularly problematic”); pp. 17-19, infra.

12

Bruen made clear that the “Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used

arms in public subject to certain reasonable, well-defined

restrictions.” 142 S. Ct. at 2156 (quoting Heller, 554 U.S.

at 581) (emphasis added). Congress must be able to enshrine those reasonable restrictions—like keeping firearms out of the hands of those who have committed domestic violence—in legislation in order to protect those

who are threatened. Nothing in Bruen forbids this outcome. See Bruen, 142 S. Ct. at 2157 (Alito, J. concurring)

(“[W]e [have not] disturbed anything that we said in Heller or McDonald v. Chicago * * * about restrictions

that may be imposed on the possession or carrying of

guns.” (citation omitted)). And in Heller, this Court recognized that Congress must be able to pass gun legislation

that keeps firearms out of the hands of dangerous people

in order to keep the public safe. In that case, this Court

made clear that the Second Amendment does not prevent

“prohibitions on the possession of firearms by felons and

the mentally ill,” Heller, 554 U.S. at 626-627, and that this

did not purport to be an “exhaustive” list, ibid. Section

922(g)(8) fits well within that established tradition of public safety legislation. Rahimi contravenes the Second

Amendment doctrine of this Court and invades the province of Congress. It should be reversed.

B.

The Rahimi Court’s Reading Of

Bruen Places The Second Amendment Out Of Step With Other Constitutional Rights

In addition to stretching this Court’s Second Amendment precedent beyond all recognizable limits and usurping Congress’s traditional role by turning judges into legislators, Rahimi suffers from another doctrinal problem.

If not reversed, the Fifth Circuit’s approach would also

13

place Second Amendment doctrine far out of step with

how other constitutional rights are analyzed.

As this Court noted in Bruen, the Second Amendment

is not “subject to an entirely different body of rules than

the other Bill of Rights guarantees.” 142 S. Ct. at 2156

(citation omitted). Indeed, this Court made clear in Bruen

that nothing in the decision was intended to create a special playbook for Second Amendment claims, only that

“judges frequently tasked with answering these kinds of

historical, analogical questions” for other types of claims

now “do the same for Second Amendment claims.” Id. at

2134. And as part of the analysis in Bruen, this Court

looked to other constitutional rights in support of its conclusion. Id. at 2156. This Court should do so again here.

A review of other constitutional rights for which this

Court looks to history demonstrates that the Rahimi

court’s search for a precise historical analogue has gone

far awry.

For example, in the Eighth Amendment context, this

Court has explained that the Framers understood the Excessive Fines Clause to concern “payment to a sovereign

as punishment for some offense,” that is, the clause was

directed at “limiting the ability of the sovereign to use its

prosecutorial power, including the power to collect fines,

for improper ends.” Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 267

(1989). But this Court has recognized that the Excessive

Fines Clause’s original focus on criminal fines does not

mean that it only applies in that context. Instead, this

Court held that the protections of the Clause extend to

criminal forfeiture, see Alexander v. United States, 509

U.S. 544, 558-559 (1993) (describing criminal forfeiture as

“no different, for Eighth Amendment purposes, from a

14

traditional ‘fine’ ”), and civil in rem forfeiture, see Austin

v. United States, 509 U.S. 602, 610, 618 (1993).

Indeed, in Austin, this Court did not attempt to find a

precise historical match for the civil forfeiture scheme at

issue. Instead, the analysis was pitched at a higher level

of generality. Ultimately, this Court held that civil in rem

forfeiture was subject to the Eighth Amendment because

“forfeiture generally and statutory in rem forfeiture in

particular historically have been understood, at least in

part, as punishment.” 509 U.S. at 618.

Similarly, this Court has held that the protections of

the Fourth Amendment—even as originally understood—can be adapted to new situations unanticipated by

the Founders. In Kyllo v. United States, this Court remarked that “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” 533 U.S. 27, 33-34 (2001). As part of its analysis

finding that thermal imaging of a home constituted a

search, this Court reasoned that this sort of updating of

constitutional protections “assure[d] preservation of that

degree of privacy against government that existed when

the Fourth Amendment was adopted.” Id. at 34.

The Court’s reasoning on this score has been consistent. In United States v. Jones, this Court explained

the Fourth Amendment’s historical “concern for government trespass upon the areas * * * it enumerates” applied equally when the trespass and the protected area

were novel—in that case, an installation of a GPS on an

automobile. 565 U.S. 400, 404, 406 (2012). In Riley, it considered the Fourth Amendment as “the founding generation’s response to the reviled ‘general warrants’ and ‘writs

15

of assistance’ of the colonial era” in concluding that “[t]he

fact that technology now allows an individual to carry [private] information in his hand does not make the information any less worthy of the protection for which the

Founders fought.” 573 U.S. at 403. And in Carpenter v.

United States, it recognized that the historical understanding at the time of the Fourth Amendment’s adoption

counseled in favor of applying the Amendment’s protections against technology that could subject “the privacies

of life against arbitrary power.” 138 S. Ct. 2206, 2214

(2018) (citation and internal quotation marks omitted).

This Court also relies on a “historical test” for the Seventh Amendment’s jury-trial right, with its analysis

shaped by the “right which existed under the English

common law when the Amendment was adopted.” Markman v. Westview Instruments, Inc., 517 U.S. 370, 376

(1996) (citations and internal quotation marks omitted). And yet again, when determining whether the Seventh Amendment requires that a question be decided by

a jury, this Court does not search for a precise historical

match. Rather, it asks first whether the cause of action

“either was tried at law at the time of the founding or is at

least analogous to one that was,” and then “whether the

particular trial decision must fall to the jury in order to

preserve the substance of the common-law right as it existed in 1791.” Ibid. Moreover, if the historical record is

unclear, this Court then “look[s] to precedent and functional considerations.” City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 704 (1999). Consistent with this approach, it has held that the right to a

jury trial applies to a range of civil contexts that were unknown at the founding. These include actions seeking

backpay and benefits for a breach of a union’s duty of fair

representation, see Chauffeurs, Teamsters & Helpers,

16

Local No. 391 v. Terry, 494 U.S. 558, 573-574 (1990), even

though “[a]n action for breach of a union’s duty of fair representation was unknown in 18th-century England”—indeed, “collective bargaining was unlawful” then, id. at

565-566. The Seventh Amendment has also been extended to government suits seeking civil penalties for

Clean Water Act violations, see Tull v. United States, 481

U.S. 412, 425, 427 (1987); and regulatory takings suits under 42 U.S.C. 1983, see Del Monte Dunes, 526 U.S. at 709,

720-721.

In short, this Court has long upheld modern statutes,

even under doctrinal tests that look to history and tradition, because constitutional rights are flexible enough to

allow for the lived experience of the twenty-first century

and beyond. This understanding is wholly in line with this

Court’s pronouncement in Heller that Second Amendment analysis does not require courts to be unduly tethered to a bygone era: “Some have made the argument,

bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second

Amendment. We do not interpret constitutional rights

that way. Just as the First Amendment protects modern

forms of communications, * * * the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence

at the time of the founding.” 554 U.S. at 582. If allowed

to stand, the Rahimi decision would upset longstanding

constitutional modes of analysis, preventing Congress

from any innovation to preserve public safety.

17

III.

COURTS WILL BE INUNDATED BY

BRUEN CHALLENGES IF THE FIFTH

CIRCUIT’S DECISION STANDS

Amici’s concern that the Fifth Circuit’s decision would

intrude on Congress’s traditional legislative role is not unfounded. Bruen has already opened the door to hundreds

of Second Amendment challenges to well-accepted gun

legislation. But the Fifth Circuit’s decision would throw

the door wide open for litigants to undo a wide range of

widely-accepted firearms regulations on the ground that

there is no exact historical match. Litigants are already

using that same rationale to challenge a myriad of uncontroversial statutes. If allowed to persist, the mode of reasoning employed by the Fifth Circuit will generate a wave

of litigation that will burden the courts and hamper legislatures’ ability to address public safety needs.

Since Bruen, the lower courts have been inundated

with Second Amendment challenges. And many of these

challenges threaten gun regulations that this Court has

long accepted, such as “longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or

laws forbidding the carrying of firearms in sensitive

places such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial

sale of arms.” Heller, 554 U.S. at 626-627; accord McDonald v. City of Chicago, 561 U.S. 742, 786 (2010); Bruen, 142

S. Ct. at 2162 (Kavanaugh, J., concurring). One commentator identified 312 federal court decisions addressing

Second Amendment challenges in the year following

Bruen. See Charles, 73 Duke L.J. (manuscript at 49-54).

This figure will only grow as pending litigation

marches forward and some federal and state courts apply

18

the Fifth Circuit’s flawed approach. To take a single example, one court held that the statute prohibiting possession of a firearm with an altered, obliterated, or removed

serial number was unconstitutional, because it found no

historical evidence that serial marks were required on

firearms in 1791. See United States v. Price, 635 F. Supp.

3d 455, 463-464 (S.D. W. Va. 2022) (holding 18 U.S.C.

922(k) unconstitutional). Indeed, litigants are targeting a

host of well-established gun regulations on the same

cramped reading of Bruen employed by the Fifth Circuit.

See Charles, 73 Duke L.J. (manuscript at 53) (listing categories of post-Bruen challenges).

And the Fifth Circuit’s cramped reading of Bruen continues apace. Citing to its previous opinion in Rahimi, in

another Second Amendment case, the Fifth Circuit yet

again discarded the Government’s argument that Congress has always been able to place gun restrictions on

those deemed “dangerous.” See United States v. Daniels,

No. 22-60596, 2023 WL 5091317, at *13-14 (Aug. 9, 2023).

Instead, the Fifth Circuit posited, “the government must

show that a historical danger-based disarmament is analogous to the challenged regulation.” Id. at *14.

This wave of challenges will certainly swell absent further clarification about legislatures’ ability to enact common-sense gun regulations. As Judge Higginson of the

Fifth Circuit explained in Daniels, it is “increasingly apparent * * * that courts, operating in good faith, are

struggling at every stage of the Bruen inquiry.” 2023 WL

5091317, at *17 (Higginson, J., concurring).

Without correction, “any further reductionism of

Bruen will mean systematic, albeit inconsistent, judicial

dismantling of the laws that have served to protect our

19

country for generations,” and “will constrain the ability”

of legislatures to address the scourge of gun violence.

Daniels, 2023 WL 5091317, at *20 (Higginson, J., concurring). “This state of affairs will be nothing less than a Second Amendment caricature, a right turned inside out,

against freedom and security in our State.” Ibid.

To avoid this outcome, this Court should take the opportunity in this case to underscore that Bruen does not

require a “historical twin,” 142 S. Ct. at 2133, and that

Congress remains able to pass legislation that protects

the safety of the American people.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

MATTHEW J. DISLER

P AUL, W EISS , RIFKIND,

W HARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

AUGUST 2023

H. CHRISTOPHER BOEHNING

Counsel of Record

DANIELLE J. MARRYSHOW

JENIFER N. HARTLEY

P AUL, W EISS , RIFKIND,

W HARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

cboehning@paulweiss.com

APPENDIX

1a

APPENDIX – LIST OF MEMBERS OF THE

UNITED STATES SENATE AND HOUSE OF

REPRESENTATIVES

The following members of the United States Senate and

House of Representatives join in this brief:

U.S. Senate

Majority Leader Charles E. Schumer (New York)

Senator Tammy Baldwin (Wisconsin)

Senator Richard Blumenthal (Connecticut)

Senator Cory A. Booker (New Jersey)

Senator Benjamin L. Cardin (Maryland)

Senator Christopher A. Coons (Delaware)

Senator Richard J. Durbin (Illinois)

Senator Dianne Feinstein (California)

Senator Kirsten E. Gillibrand (New York)

Senator Mazie K. Hirono (Hawaii)

Senator Tim Kaine (Virginia)

Senator Edward J. Markey (Massachusetts)

Senator Patty Murray (Washington)

Senator Bernard Sanders (Vermont)

Senator Jeanne Shaheen (New Hampshire)

Senator Chris Van Hollen (Maryland)

Senator Peter Welch (Vermont)

Senator Sheldon Whitehouse (Rhode Island)

Senator Ron Wyden (Oregon)

U.S. House of Representatives

Leader Hakeem Jeffries (NY-08)

Speaker Emerita Nancy Pelosi (CA-11)

Representative Alma S. Adams (NC-12)

Representative Pete Aguilar (CA-33)

2a

Representative Colin Z. Allred (TX-32)

Representative Jake Auchincloss (MA-04)

Representative Becca Balint (VT-AL)

Representative Nanette Diaz Barragán (CA-44)

Representative Donald S. Beyer, Jr. (VA-08)

Representative Earl Blumenauer (OR-03)

Representative Lisa Blunt Rochester (DE-AL)

Representative Suzanne Bonamici (OR-01)

Representative Brendan F. Boyle (PA-02)

Representative Shontel M. Brown (OH-11)

Representative Julia Brownley (CA-26)

Representative Cori Bush (MO-01)

Representative Salud Carbajal (CA-24)

Representative Tony Cárdenas (CA-29)

Representative André Carson (IN-07)

Representative Matt Cartwright (PA-08)

Representative Greg Casar (TX-35)

Representative Ed Case (HI-01)

Representative Sean Casten (IL-06)

Representative Kathy Castor (FL-14)

Representative Joaquin Castro (TX-20)

Representative Sheila Cherfilus-McCormick (FL-20)

Representative Judy Chu (CA-28)

Representative Katherine M. Clark (MA-05)

Representative Yvette D. Clarke (NY-09)

Representative James E. Clyburn (SC-06)

Representative Gerald E. Connolly (VA-11)

Representative J. Luis Correa (CA-46)

Representative Joe Courtney (CT-02)

Representative Jason Crow (CO-06)

Representative Danny K. Davis (IL-07)

Representative Madeleine Dean (PA-04)

Representative Diana DeGette (CO-01)

Representative Suzan K. DelBene (WA-01)

Representative Mark DeSaulnier (CA-10)

3a

Representative Lloyd Doggett (TX-37)

Representative Anna G. Eshoo (CA-16)

Representative Adriano Espaillat (NY-13)

Representative Dwight Evans (PA-03)

Representative Lizzie Fletcher (TX-07)

Representative Bill Foster (IL-11)

Representative Valerie P. Foushee (NC-04)

Representative Lois Frankel (FL-22)

Representative Maxwell Alejandro Frost (FL-10)

Representative Robert Garcia (CA-42)

Representative Sylvia R. Garcia (TX-29)

Representative Dan Goldman (NY-10)

Representative Jimmy Gomez (CA-34)

Representative Josh Gottheimer (NJ-05)

Representative Al Green (TX-09)

Representative Raúl M. Grijalva (AZ-07)

Representative Jahana Hayes (CT-05)

Representative Brian Higgins (NY-26)

Representative Jim Himes (CT-04)

Representative Jared Huffman (CA-02)

Representative Sheila Jackson Lee (TX-18)

Representative Sara Jacobs (CA-51)

Representative Pramila Jayapal (WA-07)

Representative Henry C. “Hank” Johnson, Jr. (GA-4)

Representative Sydney Kamlager-Dove (CA-37)

Representative Marcy Kaptur (OH-09)

Representative William R. Keating (MA-09)

Representative Robin L. Kelly (IL-02)

Representative Daniel T. Kildee (MI-08)

Representative Derek Kilmer (WA-06)

Representative Andy Kim (NJ-03)

Representative Raja Krishnamoorthi (IL-08)

Representative Greg Landsman (OH-01)

Representative John B. Larson (CT-01)

Representative Barbara Lee (CA-12)

4a

Representative Susie Lee (NV-03)

Representative Mike Levin (CA-49)

Representative Ted W. Lieu (CA-36)

Representative Zoe Lofgren (CA-18)

Representative Stephen F. Lynch (MA-08)

Representative Seth Magaziner (RI-02)

Representative Doris Matsui (CA-07)

Representative Lucy McBath (GA-07)

Representative Jennifer L. McClellan (VA-04)

Representative Betty McCollum (MN-04)

Representative Morgan McGarvey (KY-03)

Representative James P. McGovern (MA-02)

Representative Gregory W. Meeks (NY-05)

Representative Robert J. Menendez (NJ-08)

Representative Grace Meng (NY-06)

Representative Kweisi Mfume (MD-07)

Representative Gwen S. Moore (WI-04)

Representative Joseph D. Morelle (NY-25)

Representative Jared Moskowitz (FL-23)

Representative Seth Moulton (MA-06)

Representative Kevin Mullin (CA-15)

Representative Jerrold Nadler (NY-12)

Representative Grace F. Napolitano (CA-31)

Representative Wiley Nickel (NC-13)

Representative Donald Norcross (NJ-01)

Representative Eleanor Holmes Norton (DC-AL)

Representative Frank Pallone, Jr. (NJ-06)

Representative Jimmy Panetta (CA-19)

Representative Bill Pascrell, Jr. (NJ-09)

Representative Donald M. Payne, Jr. (NJ-10)

Representative Scott H. Peters (CA-50)

Representative Brittany Pettersen (CO-07)

Representative Dean Phillips (MN-03)

Representative Chellie Pingree (ME-01)

Representative Stacey E. Plaskett (VI-AL)

5a

Representative Mark Pocan (WI-02)

Representative Katie Porter (CA-47)

Representative Mike Quigley (IL-05)

Representative Delia C. Ramirez (IL-03)

Representative Jamie Raskin (MD-08)

Representative C. A. Dutch Ruppersberger (MD-02)

Representative Patrick K. Ryan (NY-18)

Representative Linda T. Sánchez (CA-38)

Representative John P. Sarbanes (MD-03)

Representative Mary Gay Scanlon (PA-05)

Representative Jan Schakowsky (IL-09)

Representative Adam B. Schiff (CA-30)

Representative Bradley Scott Schneider (IL-10)

Representative Hillary J. Scholten (MI-03)

Representative David Scott (GA-13)

Representative Robert C. “Bobby” Scott (VA-03)

Representative Brad Sherman (CA-32)

Representative Mikie Sherrill (NJ-11)

Representative Elissa Slotkin (MI-07)

Representative Adam Smith (WA-09)

Representative Darren Soto (FL-09)

Representative Abigail Davis Spanberger (VA-07)

Representative Haley M. Stevens (MI-11)

Representative Eric Swalwell (CA-14)

Representative Mark Takano (CA-39)

Representative Shri Thanedar (MI-13)

Representative Mike Thompson (CA-04)

Representative Dina Titus (NV-01)

Representative Rashida Tlaib (MI-12)

Representative Jill Tokuda (HI-02)

Representative Paul D. Tonko (NY-20)

Representative Norma J. Torres (CA-35)

Representative Lori Trahan (MA-03)

Representative David J. Trone (MD-06)

Representative Juan Vargas (CA-52)

6a

Representative Marc A. Veasey (TX-33)

Representative Nydia M. Velázquez (NY-07)

Representative Debbie Wasserman Schultz (FL-25)

Representative Maxine Waters (CA-43)

Representative Bonnie Watson Coleman (NJ-12)

Representative Jennifer Wexton (VA-10)

Representative Nikema Williams (GA-05)

Representative Frederica S. Wilson (FL-24)