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

Supreme Court briefAug 21, 2023

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No. 22-915

IN THE

Supreme Court of the United States

————

UNITED STATES OF AMERICA,

Petitioner,

ZACKEY RAHIMI,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF THE NATIONAL LEAGUE OF

CITIES, THE UNITED STATES CONFERENCE

OF MAYORS AND THE INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION AS

AMICI CURIAE SUPPORTING PETITIONER

————

LAWRENCE ROSENTHAL

Counsel of Record

One University Drive

Orange, CA 92866

(714) 628-2650

rosentha@chapman.edu

Counsel for Amici Curiae

August 21, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the Second Amendment permits Congress

to prohibit the possession of firearms by persons

subject to a domestic-violence restraining order as a

means of providing that those who exercise Second

Amendment rights are “well regulated” within the

meaning of that Amendment.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

INTEREST OF THE AMICI CURIAE ...............

STATEMENT OF THE CASE ............................

SUMMARY OF THE ARGUMENT ....................

ARGUMENT ........................................................

I. THE

SECOND

AMENDMENT

EXPRESSLY CONTEMPLATES THAT

THOSE WHO “KEEP AND BEAR ARMS”

MAY BE “WELL REGULATED” .............

A. Ambiguity in the Second Amendment’s Text Warrants Reference To

Its Preamble ........................................

B. Laws Imposing Proper Discipline on

Those Who Keep and Bear Arms Comport With the Second Amendment .....

II. SECTION 922(g)(8) IS AN APPROPRIATE REGULATION OF THOSE WHO

“KEEP AND BEAR ARMS” ......................

A. The Law Has Come To Recognize the

Dangers Posed By Armed Domestic

Abusers ................................................

B. Section 922(g)(8) “Well Regulate[s]”

the Militia ............................................

CONCLUSION ....................................................

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Chiafalo v. Washington,

140 S. Ct. 2316 (2020) ...............................

District of Columbia v. Heller,

554 U.S. 570 (2008) .......................... 4-15, 18, 29

Frontiero v. Richardson,

411 U.S. 677 (1973) ...................................

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994) ...................................

Markman v. Westview Instruments, Inc.,

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

Minnesota v. Dickerson,

508 U.S. 366 (1993) ...................................

Mississippi University Women v. Hogan,

458 U.S. 718 (1982) ...................................

New York State Rifle & Pistol Association

v. Bruen,

142 S. Ct. 2111 (2022) ... 3-6, 10, 13-15, 18-20, 29

NLRB v. Noel Canning,

573 U.S. 513 (2014) ................................... 5, 11

United States v. Virginia,

518 U.S. 515 (1996) ...................................

CONSTITUTION

U.S. Const. art. I, § 8, cl. 16 ......................... 12, 13

U.S. Const. amend. II ................. 3-8, 10-20, 23, 29

U.S. Const. amend. IV ..................................

U.S. Const. amend. VII ................................ 17, 18

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. amend. XIV, § 1 ........................ 15, 23

U.S. Const. amend. XIX ...............................

STATUTES

18 U.S.C. § 921(32) .......................................

18 U.S.C. § 922(g)(8).... 3, 4, 6, 7, 17, 20, 23, 27-29

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

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

Act of March 2, 1867, ch. 170, § 6, 14 Stat.

485, 487 (1867) ..........................................

Tex. Fam. Code § 71.04 ................................

Tex. Fam. Code § 85.001(b) ..........................

OTHER AUTHORITIES

Adam Winkler, Gunfight: The Battle Over

the Right to Bear Arms in America

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

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. of Epidemiology

2365 (2018) ................................................ 25, 26

Brief for Respondents, New York St. Rifle &

Pistol Ass’n v. Bruen, 142 S. Ct. 2111

(2022) (No. 20-843)....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Brief for the United States as Amicus

Curiae Supporting Respondents, New

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

S. Ct. 2111 (2022) (No. 20-843) ................

Brief of Petitioners, District of Columbia v.

Heller, 554 U.S. 570 (2008) (No. 07-290) ....

Brief of the United States as Amicus

Curiae, District of Columbia v. Heller,

554 U.S. 570 (2008) (No. 07-290).............. 13-14

C. Kevin Marshall, Why Can’t Martha

Stewart Have a Gun?, 32 Harv. J.L. &

Pub. Pol’y 695 (2009) ................................ 16-17

Carole Emberton, The Limits of Incorporation: Violence, Gun Rights, and Gun

Regulation in the Reconstruction South,

17 Stan. L. & Pol’y Rev. 615 (2006)..........

Carolina Diez et al., State Intimate Partner

Violence-Related Firearms Laws and

Intimate Parter Homicide Rates, 1991 to

2015, 167 Ann. Internal Med. 537 (2017)

Cassandra Kercher et al., Homicides of

Law Enforcement Officers Responding to

Domestic Disturbance Calls, 19 Injury

Prevention 331 (2013) ...............................

Cong. Globe, 39th Cong., 2d Sess. 1848-49

(1867) .........................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Denis Baron, Corpus Evidence Illuminates

the Meaning of Bear Arms, 46 Hastings

Const. L.Q. 509 (2019) ..............................

Elizabeth Pleck, Wife-Beating in NineteenthCentury America, in 2 History of Women

in the United States: Household Constitution and Family Relationships (Nancy

F. Cott ed., 1992) ....................................... 21-22

Elizabeth Richardson Vigdor & James A.

Mercy, Do Laws Restricting Access To

Firearms By Domestic Violence Offenders

Prevent Intimate-Partner Homicide?, 30

Eval. Rev. 313 (2006) ........................... 22-23, 25

FBI, Crime Data Explorer, Law Enforcement Officers Killed and Assaulted Annual

Reports: Law Enforcement Officers Feloniously Killed, https://cde.ucr.cjis.gov/LA

TEST/we bapp/# ........................................ 24, 25

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

(2019) ......................................................... 23-24

James C. Phillips & Josh Blackman,

Corpus Linguistics and Heller, 56 Wake

Forest L. Rev. 609 (2021)..........................

Jeffrey Fagan, The Criminalization of

Domestic Violence: Promises and Limits

(Nat’l Instit. Just., Jan. 1996) ..................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Joseph S.G. Greenlee, The Historical

Justification for Prohibiting Dangerous

Persons from Possessing Firearms, 20

Wyo. L. Rev. 249 (2020) ............................

I Joseph Story, Commentaries on the

Constitution of the United States

(1833) ........................................................

Josh Jones, Note, The “Weaponization” of

Corpus Linguistics: Testing Heller’s Linguistic Claims, 34 B.Y.U. J. Pub. L. 135

(2020) .........................................................

Kyra Babcock Woods, Note, Corpus Linguistics and Gun Control: Why Heller Is

Wrong, 2019 B.Y.U. L. Rev. 1401 (2019)..

Mikaela A. Wallin et al., The Association

of Federal and State-Level Firearm

Restriction Policies with Intimate Partner

Homicide: A Re-Analysis by Race of the

Victim, 37 J. Interpersonal Violence

NP16509 (2022).........................................

Michael P. O’Shea, The Concrete Second

Amendment: Traditionalist Interpretation and the Right to Keep and Bear

Arms, 26 Tex. Rev. L. & Pol. 103 (2021) ..

Nat’l Law Enf. Mem. & Museum, 2023 MidYear Preliminary Law Enforcement

Officers Fatalities Report (July 11, 2023)

TABLE OF AUTHORITIES—Continued

Page(s)

Nathan Kozuskanich, Originalism in a

Digital Age: An Inquiry into the Right to

Bear Arms, 29 J. Early Repub. 585

(2009) .........................................................

Neil Websdale et al., The Domestic Violence

Fatality Review Clearinghouse: Introduction to a New National Data System with

a Focus on Firearms, ‘6 Injury Epidemiology 1 (2019) ........................................

Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities

and Domestic Violence Restraining Orders,

4 Tex. Rev. L. & Pol. 157 (1999) ...............

Nick Bruel & Desiree Luongo, U.S. Dep’t of

Just., Making It Safer: A Study of Law

Enforcement Fatalities Between 2010-16

(Dec. 2017) .................................................

2 Noah Webster, An American Dictionary

of the English Language (1828) ...............

Patrick J. Charles, The Constitutional

Significance of a “Well-Regulated Militia”

Asserted and Proven with Commentary

on the Future of Second Amendment

Jurisprudence, 3 Ne. U. L.J. 1 (2011) ......

Reva B. Siegel, “The Rule of Love”: Wife

Beating as Prerogative and Privacy, 105

Yale L.J. 2117 (1996) ................................

TABLE OF AUTHORITIES—Continued

Page(s)

Robert H. Churchill, Gun Regulation, the

Police Power, and the Right to Keep Arms

in Early America: The Legal Context of

the Second Amendment, 25 Law & Hist.

Rev. 139 (2007)..........................................

Robert Leider, Our Non-Originalist Right

To Bear Arms, 89 Ind. L.J. 1587 (2014) ...

2 Samuel Johnson, A Dictionary of the

English Language in Which the Words

Are Deduced from Their Originals (6th

ed. 1785) ....................................................

Saul Cornell & Nathan DeDino, A Well

Regulated Right: The Early American

Origins of Gun Control, 73 Fordham L.

Rev. 487 (2004)..........................................

2 St. George Tucker, Blackstone’s Commentaries (1803) .............................................. 20, 21

Tiara C. Willie et al., Associations Between

State Intimate Partner Violence-Related

Firearm Policies and Injuries Among

Women and Men Who Experience Intimate

Partner Violence, 8 Injury Epidemiology

(2021), https://pubmed.ncbi.nlm.nih.gov/

33612117/ ..................................................

1 William J. Blackstone, Commentaries on

the Law of England (1765) .......................

INTEREST OF THE AMICI CURIAE

Amici are not-for-profit organizations whose mission

is to advance the interests of local governments and

those they serve. It is local governments and their

officials that are most often called upon to address the

causes and consequences of domestic violence.1

The National League of Cities (“NLC”), founded

in 1924, is the oldest and largest organization

representing U.S. municipal governments. NLC works

to strengthen local leadership, influence federal policy,

and drive innovative solutions. In partnership with

49 state municipal leagues, NLC advocates for over

19,000 cities, towns, and villages, where more than

218 million Americans live.

The United States Conference of Mayors is the official

nonpartisan organization of the more than 1,400

United States cities with a population of more than

30,000. Each city is represented in the Conference by

its chief elected official, the mayor.

The International Municipal Lawyers Association

(IMLA) is an advocate and resource for local

governments and their attorneys. Owned solely by its

more than 3,000 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters.

No counsel for a party authored this brief in whole or in

part, no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief, and no person

other than amici, its members, or its counsel made a monetary

contribution to its preparation or submission.

STATEMENT OF THE CASE

In December 2019, respondent Zackey Rahimi was

charged under Texas law as a result of his use of a

firearm in the assault of his girlfriend. Pet. App. 73a74a. On February 5, 2020, a state court entered a

restraining order that prohibited Rahimi from, among

other things, “[g]oing to or within 200 yards of the

residence or place of employment” of his onetime

girlfriend, and “[e]ngaging in conduct . . . reasonably

likely to harass, annoy, alarm, abuse, torment, or

embarrass” either his ex-girlfriend or a member of her

family or household, and prohibiting him from

possessing a firearm. Pet. App. 3a.

Rahimi rather spectacularly failed to comply with

the restraining order’s prohibition on the possession of

firearms. On December 1, 2020, after selling narcotics,

Rahimi fired multiple shots into the buyer’s residence.

Pet. App. 2a. The next day, after he was involved in a

car accident, Rahimi exited his vehicle, shot at the

other driver, and then fled the scene, though he later

returned in a different vehicle and shot at the other

driver’s car. Id. On December 22, Rahimi shot at a

constable’s vehicle. Id. On January 7, 2021, Rahimi

fired multiple shots in the air after his friend’s credit

card was declined at a Whataburger restaurant. Id.

Rahimi was indicted on a federal charge of unlawfully

possessing a firearm while subject to a domesticviolence restraining order. Pet. App. 3a-4a. The

statute under which he was charged makes it unlawful

to possess in interstate commerce or to receive any

firearm that has been shipped or transported in

interstate commerce when an individual:

is subject to a court order that—

(A) was issued after a hearing of which such

person received actual notice, and at which such

person had an opportunity to participate;

(B) restrains such person from harassing,

stalking, or threatening an intimate partner of

such person or child of such intimate partner or

person, or engaging in other conduct that would

place an intimate partner in reasonable fear of

bodily injury to the partner or child; and

(C)(i) includes a finding that such person

represents a credible threat to the physical safety

of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use,

attempted use, or threatened use of physical force

against such intimate partner or child that would

reasonably be expected to cause bodily injury . . . .

18 U.S.C. § 922(g)(8).2

On the strength of then-binding Fifth Circuit precedent, the district court denied Rahimi’s motion to

dismiss the indictment on the ground that the statute

under which he was charged deprived him of the right

to keep and bear arms under the Second Amendment

to the United States Constitution. Pet. App. 78a-80a.

On appeal, the court of appeals, relying on this

Court’s intervening decision in New York State Rifle &

Pistol Association v. Bruen, 142 S. Ct. 2111 (2022),

The statute adds: “The term ‘intimate partner’ means, with

respect to a person, the spouse of the person, a former spouse of

the person, an individual who is a parent of a child of the person,

and an individual who cohabitates or has cohabited with the

person.” 18 U.S.C. § 921(32).

and, in particular, Bruen’s statement that “[w]hen the

Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects

that conduct,” Pet. App. 6a (quoting Bruen, 142 S. Ct.

at 2129-30 (brackets in original)), concluded that

Rahimi’s “possession of a pistol and a rifle easily falls

within the purview of the Second Amendment,” id.

at 14a, and that the government had “fail[ed] to

demonstrate that § 922(g)(8)’s restriction of the Second

Amendment right fits within our Nation’s historical

tradition of firearm regulation.” Id. at 27a.

SUMMARY OF THE ARGUMENT

The court of appeals believed that the Second

Amendment right “to keep and bear arms” extended to

Rahimi despite the domestic-violence restraining order

running against him, and, therefore, § 922(g)(8) could

not be sustained absent a longstanding tradition, dating

to the framing era, of depriving domestic-violence

abusers of their firearms. The court of appeals concluded

that the government had failed to demonstrate that

such a tradition existed, a conclusion that should be

unsurprising in light of framing-era law’s relative

indifference to domestic violence, a tradition that has

given way only in recent decades.

The scope of the right “to keep and bear arms,”

however, is not nearly as clear as the court of appeals

believed. In fact, this Court has acknowledged that the

Second Amendment’s operative clause is ambiguous.

Even as it held that the Second Amendment

protected an individual right to keep and bear arms in

District of Columbia v. Heller, 554 U.S. 570 (2008), the

Court observed that in the framing era, the Second

Amendment’s operative clause had multiple meanings;

the right to “bear arms” sometimes meant to “carry”

arms, but, the Court added, “[t]he phrase ‘bear Arms”

also had “an idiomatic meaning that was significantly

different from its natural meaning: ‘to serve as a

soldier, do military service, fight’ or ‘to wage war.’” Id.

at 584, 586.

The Court’s precise holding on this point in Heller

was narrow. The Court rejected the District’s claim

that “bear arms” unambiguously referred to the use of

arms in connection with military service, explaining

that the phrase “unequivocally bore that idiomatic

meaning only when followed by the preposition ‘against,’

which was in turn followed by the target of the

hostilities.” 554 U.S. at 586 (emphasis in original). The

Court thusly rejected the District’s argument that

“bear arms” unambiguously referred to the use of arms

in connection with military service, while acknowledging that the phrase had multiple meanings.

Last Term, in Bruen, this Court again acknowledged

ambiguity in the Second Amendment. The Court

explained that it could properly consult the history

and tradition of firearms regulation to assess the

scope of Second Amendment rights because “where a

governmental practice has been open, widespread,

and unchallenged since the early days of the Republic,

the practice should guide our interpretation of an

ambiguous constitutional provision.” 142 S. Ct. at

2137 (emphasis supplied and citations omitted) (quoting NLRB v. Noel Canning, 573 U.S. 513, 572 (2014)

(Scalia, J., concurring in the judgment)).

In light of the acknowledged ambiguity in the

Second Amendment’s operative clause, reference to its

preamble is appropriate. Indeed, in Heller, the Court

explained that a preamble may be consulted “to resolve

an ambiguity in an operative clause.” 554 U.S. at 577.

Accordingly, we now press an argument advanced by

neither the parties nor the Solicitor General, nor

reached by the Court, in either Heller or Bruen: The

ambiguity in the operative clause of the Second Amendment means that its preamble is properly consulted to

clarify the scope of Second Amendment rights.

As for the preamble, Heller explained that the “well

regulated Militia” referred to in the Second Amendment’s preamble denotes not “the organized militia,”

but rather “all able bodied men,” and, thusly, “the

conception of the militia at the time of the Second

Amendment’s ratification was the body of all citizens

capable of military service.” 554 U.S. at 596, 627.

Accordingly, the preamble expressly contemplates

that those who exercise Second Amendment rights,

even if not part of an organized militia, may be “well

regulated.” Those who “keep and bear arms” do so as

part of a “Militia,” whether organized or not, subject to

regulation. The Second Amendment accordingly codifies

an individual right to keep and bear arms extending

to those not part of an organized militia, as Heller held,

but the exercise of that right may be “well regulated.”

Section 922(g)(8) should be sustained pursuant to

Congress’s power to “well regulate[]” the militia.

Individuals that a judge has found, after notice and

opportunity for hearing, present an immediate threat

to others, are no proper part of a “well regulated

Militia.” Rahimi’s violent and abusive behavior amply

justified the imposition of discipline in the form of a

suspension of his ability to keep and bear arms, at

least as long as he remained subject to the restraining

order that he so extravagantly flouted.

ARGUMENT

When the Constitution’s text is clear, the burden on

the government to demonstrate that history and

tradition somehow limit the scope of a right codified in

the Constitution is appropriately heavy. When it comes

to the Second Amendment, however, the Constitution’s

text is ambiguous, as this Court has twice observed.

Accordingly, the Second Amendment’s preamble is

properly consulted to assess the scope of the right “to

keep and bear arms.” The preamble makes plain that

those who exercise that right may be “well regulated.”

Section 922(g)(8), in turn, represents the type of regulation properly imposed on a “well regulated Militia.”

I. THE SECOND AMENDMENT EXPRESSLY

CONTEMPLATES THAT THOSE WHO

“KEEP AND BEAR ARMS” MAY BE “WELL

REGULATED”

The Second Amendment is the only provision in the

Bill of Rights that expressly contemplates regulatory

authority. Those who exercise the right to keep and

bear arms may be “well regulated.”

A. Ambiguity in the Second Amendment’s

Text Warrants Reference To Its Preamble.

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall

not be infringed.” U.S. Const. amend. II.

In Heller, the Court undertook “the examination of

a variety of legal and other sources to determine the

public understanding of a legal text in the period

after its enactment or ratification.” 554 U.S. at 605

(emphasis in original). After surveying the historical

evidence concerning the original understanding of the

Second Amendment in the framing era, the Court

concluded that the “right of the People” refers to

individual rights, id. at 579-81, the right to “keep”

arms means “possessing arms,” id. at 583, and the

right to “bear” arms means “carrying for a particular

purpose—confrontation.” Id. at 584. The Court invalidated the District of Columbia ordinance at issue

because it "totally ban[ned] handgun possession in the

home” and “require[d] that any lawful firearm in the

home be disassembled or bound by a trigger lock at all

times, rendering it inoperable.” Id. at 628.

Importantly, Heller identified a critical textual ambiguity in the Second Amendment. When considering

the District’s argument that the original meaning of

the phrase “bear arms” referred only to those who

carried arms in connection with military service, the

Court wrote that “[a]t the time of the founding, as now,

to ‘bear’ meant to ‘carry,’” 554 U.S. at 584 (citation

omitted), but added that “[t]he phrase ‘bear Arms’ also

had at the time of the founding an idiomatic meaning

that was significantly different from its natural

meaning: ‘to serve as a soldier, do military service,

fight’ or ‘to wage war.’” Id. at 586.

Considering both the “idiomatic” and the “natural

meaning” of the phrase “bear arms,” the Court’s

precise holding was narrow; it concluded that the

phrase “unequivocally bore that idiomatic meaning

only when followed by the preposition ‘against,’ which

was in turn followed by the target of the hostilities.”

554 U.S. at 586 (emphasis in original).

To be sure, the Court also observed:

Giving ‘‘bear Arms’’ its idiomatic meaning would

cause the protected right to consist of the right to

be a soldier or to wage war—an absurdity that no

commentator has ever endorsed. Worse still, the

phrase ‘‘keep and bear Arms’’ would be incoherent.

The word ‘‘Arms’’ would have two different meanings

at once: ‘‘weapons’’ (as the object of ‘‘keep’’) and (as

the object of ‘‘bear’’) one-half of an idiom.

554 U.S. at 586-87 (citation omitted). This passage

does not state that the phrase “bear arms” is

unambiguous; it observes instead that it would be

absurd to read the operative clause as limited to a

right to be a soldier or wage war.

Thus, Heller did not hold that the right to “keep and

bear arms” has only one meaning, unrelated to militia

service. Nor would such a conclusion be tenable.

The historical evidence of ambiguity is plain. One

post-Heller survey identified ample evidence that the

phrase “bear arms” often had a military meaning in

the framing era, even when not followed by “against.”

See Nathan Kozuskanich, Originalism in a Digital

Age: An Inquiry into the Right to Bear Arms, 29 J.

Early Repub. 585, 590 (2009) (“‘bear arms’ was used

frequently in a military context without the proposition

against”).

Others have examined databases containing foundingera documents, using a technique that has come to

be known as “corpus linguistics” which analyzes the

most prevalent usages of specified terms in a database.

These analyses have consistently found that the

phrase “bear arms,” even when used without the

preposition “against,” was most often used in the

framing era to refer to carrying arms for purposes of

military service.3

See, e.g., Denis Baron, Corpus Evidence Illuminates the

Meaning of Bear Arms, 46 Hastings Const. L.Q. 509, 510 (2019)

(“Founding-era sources almost always use bear arms in an

Bruen is equally plain on this point. The Court

cautioned, “to the extent later history contradicts

what the text says, the text controls.” 142 S. Ct. 2137.

Accordingly, to explain why it was appropriate to

consult “this Nation’s historical tradition of firearm

regulation,” id. at 2135, the Court wrote:

[I]n Heller we reiterated that evidence of “how the

Second Amendment was interpreted from immediately after its ratification through the end of

the 19th century” represented a “critical tool of

constitutional interpretation.” . . . . And, in other

contexts, we have explained that “a regular course

of practice can liquidate & settle the meaning of’

disputed or indeterminate terms & phrases” in

the Constitution. In other words, we recognize

that “where a governmental practice has been

open, widespread, and unchallenged since the early

days of the Republic, the practice should guide

our interpretation of an ambiguous constitutional

provision.”

Id. at 2136-37 (emphasis supplied and further internal

quotations and citations omitted) (quoting Heller, 554

unambiguously military sense.”); James C. Phillips & Josh

Blackman, Corpus Linguistics and Heller, 56 Wake Forest L.

Rev. 609, 679 (2021) (“The phrase bear arms, with against, is

sufficient to make the phrase military. But the phrase bear arms,

without against, can still invoke the military sense.”); Josh Jones,

Note, The “Weaponization” of Corpus Linguistics: Testing Heller’s

Linguistic Claims, 34 B.Y.U. J. Pub. L. 135, 165 (2020) (“[I]t is

emphatically not true that the preposition against was necessary

to convey the specialized sense of bear arms at the time of the

Founding.”); Kyra Babcock Woods, Note, Corpus Linguistics and

Gun Control: Why Heller Is Wrong, 2019 B.Y.U. L. Rev. 1401,

1421 (2019) (“The data presents strong evidence overall that the

general public likely understood the right to bear arms as

generally synonymous with militia service.”).

U.S. at 605, Chiafalo v. Washington, 140 S. Ct. 2316,

2326 (2020), and NLRB v. Noel Canning, 573 U.S. 513,

572 (2014) (Scalia, J., concurring in the judgment)).

The acknowledged and demonstrable ambiguity in

the Second Amendment’s operative clause warrants

reference to its preamble since, as the Court explained

in Heller, “[l]ogic demands that there be a link

between the stated purpose and the command,” and,

accordingly, “[t]hat requirement of logical connection

may cause a prefatory clause to resolve an ambiguity

in an operative clause.” 554 U.S. at 577.

This view of the interpretive significance of prefatory

language has ample framing-era support; framing-era

sources similarly endorse reference to preambles to

clarify an ambiguous text. See, e.g., 1 William J.

Blackstone, Commentaries on the Law of England 5960 (1765) (“[I]f words happen to be still dubious . . . .

[T]he proeme, or preamble, is often called in to help

the construction of an act of parliament.”); I Joseph

Story, Commentaries on the Constitution of the United

States § 459, at 443-44 (1833) (“The importance of

examining the preamble, for the purpose of expounding

the language of a statute, has been long felt, and

universally conceded . . . . It is properly resorted to,

where doubts or ambiguities arise upon the words of

the enacting part . . . .”).

As for the preamble’s reference to a “well regulated

Militia,” Heller concluded that the term “Militia”

refers not to “the organized militia,” but rather “all

able bodied men,” while “the federally organized militia

may consist of a subset of them.” 554 U.S. at 596.

Thus, “the conception of the militia at the time of

the Second Amendment's ratification was the body of

all citizens capable of military service . . . .” Id. at 627.

Accordingly, Heller effectively treated the militia and

those who exercised the right to keep and bear arms

as equivalent.

Thus, the preamble expressly contemplates regulatory authority not just over the organized military, but

also the unorganized body of people able to exercise

the right to keep and bear arms. Indeed, if the Second

Amendment were understood to mean that only the

organized militia was to be “well regulated,” that

interpretation of the term “militia” in the preamble

would violate Heller’s injunction against interpreting

a single word to “have two different meanings at

once . . . .” 554 U.S. at 587.

The preamble, moreover, contemplates regulation

and discipline of those who exercise the right to keep

and bear arms. Heller explained that the phrase “well

regulated” means “the imposition of proper discipline

and training.” 554 U.S. at 597. To similar effect, the

first edition of Webster’s dictionary, repeatedly cited

in Heller to provide evidence of the original meaning

of the Second Amendment, id. at 581, 582, 583, 595,

defined “regulated” as “[a]djusted by rule, method

or forms; put in good order; subjected to rules or

restrictions.” 2 Noah Webster, An American Dictionary

of the English Language 54 (1828).4

Moreover, in its explication of the preamble in

Heller, the Court added that the “‘militia’ referred to

in Article I is the same body referred to by the

To similar effect, see 2 Samuel Johnson, A Dictionary of the

English Language in Which the Words Are Deduced from Their

Originals cdlxxvi (6th ed. 1785) (defining “regulate” as “[t]o adjust

by rule or method” or “[t]o direct”). Johnson’s dictionary was also

repeatedly relied upon in Heller to provide evidence of the

original meaning of the Second Amendment. See 554 U.S. at 581,

582, 584, 597.

Second Amendment,” 554 U.S. at 597. Article I of the

Constitution, in turn, provides that Congress may

exercise regulatory and disciplinary authority over the

militia and its members, even if not part of the

federally-organized militia. See U.S. Const. art. I, § 8,

cl. 16 (“The Congress shall have the power . . . . To

provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the service of the United States, reserving

to the States respectively, the Appointment of the

Officers, and the Authority of training the Militia

according to the discipline prescribed by Congress.”).

Accordingly, the Second Amendment embodies an

individual right to keep and bear arms extending to

those not part of an organized militia, but those who

exercise the right may be “well regulated.”

In neither Heller nor Bruen did the parties argue

that the operative clause of the Second Amendment

was ambiguous, thereby warranting reference to the

preamble. In Heller, the District argued that the text

unambiguously conferred no individual right, claiming

that the Second Amendment’s “two clauses permit

only a militia-related reading.” Brief of Petitioners at

9, District of Columbia v. Heller, 554 U.S. 570 (2008)

(No. 07-290). In Bruen, New York made no claim of

textual ambiguity, and instead discussed only its view

of the history and tradition of firearms regulation,

claiming that the Second Amendment prohibits only

regulations that amount to an “extreme outlier.” Brief

for Respondents at 21, New York St. Rifle & Pistol

Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843).

The Solicitor General similarly made no claim of

textual ambiguity and placed no reliance on the

preamble in either case. See Brief of the United States

as Amicus Curiae 10-19, District of Columbia v. Heller,

554 U.S. 570 (2008) (No. 07-290); Brief for the United

States as Amicus Curiae Supporting Respondents

5-15, New York St. Rifle & Pistol Ass’n v. Bruen, 142

S. Ct. 2111 (2022) (No. 20-843).

Thus, we press an argument neither advanced by

neither the parties nor the Solicitor General, nor

reached by the Court, in either Heller or Bruen. Our

submission is that the acknowledged ambiguity in the

operative clause of the Second Amendment warrants

reference to its preamble to assess the scope of Second

Amendment rights.

B. Laws Imposing Proper Discipline On

Those Who Keep and Bear Arms Comport

With the Second Amendment.

The preamble sheds important light on the meaning

of the Second Amendment—those who “keep and bear

arms” do so not merely as individuals, but as part of a

militia, even if unorganized, necessary to the security

of a free state, and subject to regulation.

The understanding that reconciles the preamble and

the operative clause is that the right to keep and bear

arms is exercised by individuals subject to regulatory

authority over “the Militia,” both organized and unorganized. This use of the preamble satisfies the

“requirement of logical connection,” which, Heller

explained, “may cause a prefatory clause to resolve an

ambiguity in an operative clause.” 554 U.S. at 577.

Beyond that, if the Second Amendment’s operative

clause were unambiguous and reflected an unqualified

“right of the people to keep and bear arms” not subject

to regulation, it would be difficult to explain the

history of firearms regulation.

In the framing era, large classes of individuals such

as slaves, freed blacks, and people of mixed race were

frequently prohibited from owning or carrying guns,

and some states extended this bar to Catholics or

whites unwilling to swear allegiance to the Revolution.5

Indeed, it was widely believed that only loyalists

possessed a right to bear arms, with others facing

sanctions including disarmament. See Patrick J.

Charles, The Constitutional Significance of a “WellRegulated Militia” Asserted and Proven with Commentary

on the Future of Second Amendment Jurisprudence, 3

Ne. U. L.J. 1, 59–61, 97–98 (2011).

Additional regulation of those who “keep and bear”

arms appeared soon after the framing:

In the early to mid-19th century, some States

began enacting laws that proscribed the concealed

carry of pistols and other small weapons. As we

recognized in Heller, “the majority of the 19thcentury courts to consider the question held that

[these] prohibitions on carrying concealed weapons

were lawful under the Second Amendment or

state analogues.”

Bruen, 142 S. Ct. at 2146 (quoting Heller, 544 U.S. at

626).

During Reconstruction, in the wake of violence in

the southern states, the same Congress that framed

the Fourteenth Amendment enacted legislation abol5

See, e.g., Adam Winkler, Gunfight: The Battle Over the Right

to Bear Arms in America 113–17 (2011); Robert H. Churchill,

Gun Regulation, the Police Power, and the Right to Keep Arms in

Early America: The Legal Context of the Second Amendment, 25

Law & Hist. Rev. 139, 159–65 (2007); Saul Cornell & Nathan

DeDino, A Well Regulated Right: The Early American Origins of

Gun Control, 73 Fordham L. Rev. 487, 506–12 (2004).

ishing the militia in most southern states and

prohibiting any effort to arm militias in those states.

Act of March 2, 1867, ch. 170, § 6, 14 Stat. 485, 487.

The measure’s sponsors dismissed Second Amendment

objections, arguing that the prohibition was justified

by the prevalence of armed groups in the South, in the

wake of the Civil War, “dangerous to the public peace

and to the security of Union citizens in those States.”

Cong. Globe, 39th Cong., 2d Sess. 1849 (1867) (Sen.

Lane); accord, e.g., id. at 1848–49 (Sen. Wilson).

This legislation was one in a series of firearmsregulation measures undertaken at the time in an

effort to suppress what was seen as unacceptable

levels of violence. See, e.g., Carole Emberton, The

Limits of Incorporation: Violence, Gun Rights, and

Gun Regulation in the Reconstruction South, 17 Stan.

L. & Pol’y Rev. 615, 621 (2006) (“The disarming of

freedmen was indeed troubling, but the federal government was not beyond disarming those whom it

deemed a threat to public safety.”); Robert Leider,

Our Non-Originalist Right To Bear Arms, 89 Ind. L.J.

1587, 1650 (2014) (“After the Civil War, courts

curtailed the right to have guns in public . . . . The

courts thus altered their understanding of the purpose

of the right to justify altering the dimensions of the

right—dimensions that comported with the popular

conceptions of the right's scope and their demand for

legislative solutions for the criminal use of weapons.”).

Prohibitions on the possession of firearms by convicted felons subsequently emerged early in the

twentieth century in response to a crime wave following the First World War. E.g., Joseph S.G. Greenlee,

The Historical Justification for Prohibiting Dangerous

Persons from Possessing Firearms, 20 Wyo. L. Rev.

249, 272-73 (2020); C. Kevin Marshall, Why Can’t

Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub.

Pol’y 695, 698–728 (2009).

None of these regulations amount to an identical

historical twin of § 922(g)(8). Indeed, many of them

would not be properly directed at the objective of a

“well regulated Militia” under contemporary circumstances. History demonstrates, however, that the

Second Amendment’s operative clause has long been

understood to permit regulation of the “Militia,”

organized or unorganized, that exercises the right to

keep and bear arms.

Regulatory authority, moreover, can evolve. After

all, the Second Amendment contemplates a “well

regulated Militia,” not a militia subject to only regulations extant in the framing era. In this respect, the

Second Amendment’s text contrasts to the Seventh,

which was crafted to preserve framing-era civil-juryright practice: “In Suits at common law . . . the right

of trial by jury shall be preserved, and no fact tried by

a jury, shall be otherwise re-examined in any Court of

the United States, than according to the rules of the

common law.” U.S. Const. amend. VII.

Given its textual formulation, the Seventh Amendment has been interpreted to require adherence to

framing-era practice when it comes to both commonlaw actions extant in the framing era and their

contemporary analogs. See, e.g., Markman v. Westview

Instruments, Inc., 517 U.S. 370, 376 (1996) (“[W]e ask,

first, whether we are dealing with a cause of action

that either was tried at law at the time of the founding

or is at least analogous to one that was . . . . [W]e

then ask 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.” (citations and

internal quotations omitted)).

It would surely be anomalous to construe the very

different textual formulation in the Second Amendment to require the same adherence to framing-era

practice commanded by the Seventh Amendment.

Indeed, the Second Amendment’s tolerance of regulatory innovation since the framing era explains why,

in Bruen, the Court could write that “nothing in our

analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing

regimes,” 142 S. Ct. at 2138 n.9 (2022), and Justice

Kavanaugh could add that “the Court's decision does

not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.” Id. at

2162 (Kavanaugh, J., concurring). These shall-issue

permitting regimes, notably, emerged only in the latter

part of the twentieth century. See, e.g., Michael P.

O’Shea, The Concrete Second Amendment: Traditionalist

Interpretation and the Right to Keep and Bear Arms,

26 Tex. Rev. L. & Pol. 103, 143 (2021).

As the Court observed in Bruen: “Although its

meaning is fixed according to the understandings of

those who ratified it, the Constitution can, and must,

apply to circumstances beyond those the Founders

specifically anticipated.” 142 S. Ct. at 2132. Thus, the

test for whether a challenged regulation produces “a

well regulated Militia” is not tied to framing-era

practice; it is instead sensitive to historical context.

After all, the militia could hardly be “well regulated”

if regulation were insensitive to historical context.

Justice Scalia, the author of Heller, illustrated this

point when considering the permissibility of a police

officer’s stop-and-frisk under the Fourth Amendment’s

prohibition on unreasonable search and seizure when

an officer reasonably suspects that a suspect is engaged

in criminal activity and may be armed, even absent

probable cause to arrest, explaining that although a

frisk in such circumstances was likely regarded as

unlawful in the framing era, it may have become

constitutionally reasonable once “concealed weapons

capable of harming the interrogator quickly and from

beyond arm’s reach have become common—which

might alter the judgment of what is ‘reasonable’ under

the original standard.” Minnesota v. Dickerson, 508

U.S. 366, 382 (1993) (Scalia, J., concurring).

To be sure, a “well regulated Militia” is not subject

to unbounded regulatory authority. As Professor

Nelson Lund has observed, “something can only be

‘well regulated’ when it is not overly regulated or

inappropriately regulated.” Nelson Lund, The Ends of

Second Amendment Jurisprudence: Firearms Disabilities

and Domestic Violence Restraining Orders, 4 Tex. Rev.

L. & Pol. 157, 175 (1999) (emphasis deleted). The

standard of a “well regulated” militia accordingly

requires that regulation not be unduly onerous.

Thus, a regulation that imposes an undue burden on

Second Amendment rights in light of legitimate

regulatory objectives cannot be sustained by reference

to the “well regulated Militia” contemplated by the

Second Amendment’s preamble.

This focus on the magnitude of and justification

for the burden imposed by a challenged regulation,

moreover, is suggested by the guidance Bruen offered

for inquiry into whether a historical regulation constitutes a fair analog for a challenged contemporary

regulation:

[W]hether modern and historical regulations

impose a comparable burden on the right of armed

self-defense and whether that burden is compa-

rably justified are central considerations when

engaging in an analogical inquiry.

Bruen, 142 S. Ct. at 2133 (emphasis in original)

(internal quotations and citations omitted).

Accordingly, the militia, organized or unorganized,

may be “well regulated,” but those regulations cannot

impose undue burdens on the right to keep and bear

arms.

II. SECTION 922(g)(8) IS AN APPROPRIATE

REGULATION OF THOSE WHO “KEEP

AND BEAR ARMS”

The court of appeals concluded the government had

“fail[ed] to demonstrate that § 922(g)(8)’s restriction of

the Second Amendment right fits within our Nation’s

historical tradition of firearm regulation.” Pet. App.

27a. That conclusion is a function of the reality that,

until relatively recently, our legal tradition reflected

relative indifference to domestic violence. That indifference, fortunately, has given way. It is now evident

that, given the dangers posed by armed domestic

abusers, authority to “well regulate[]” the militia

includes disarming those whom a judge has found pose

an immediate danger to an intimate partner.

A. The Law Has Come To Recognize the

Dangers Posed By Armed Domestic

Abusers.

It should be unsurprising that the court of appeals

could identify no longstanding tradition, traceable to

the framing era, of disarming domestic abusers. That

is because framing-era law reflected far less concern

about domestic violence than contemporary law.

In St. George Tucker’s American edition of Blackstone’s

Commentaries, framing-era law’s tolerance for domestic

violence, if perhaps reluctant and embarrassed, is

nevertheless unmistakable:

The husband also (by the old law) might give his

wife moderate correction. For, as he is to answer

for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining

her, by domestic chastisement, in the same

moderation that a man is allowed to correct his

apprentices or children; for whom the master or

parent is also liable in some cases to answer. But

this power of correction was confined within

reasonable bounds . . . . The civil law gave the

husband the same, or a larger, authority over his

wife . . . . [I]n the politer reign of Charles the

second, this power of correction began to be

doubted: and a wife may now have security of the

peace against her husband or, in return, a

husband against his wife. Yet the lower rank of

people, who were always fond of the old common

law, still claim and exert their ancient privilege

and the courts of law will still permit a husband

to restrain a wife of her liberty, in case of any gross

misbehaviour.

2 St. George Tucker, Blackstone’s Commentaries 44445 (1803) (emphasis supplied and footnotes omitted).

Accordingly, as one scholar observed, “nineteenthcentury judges developed a body of divorce law

premised on the assumption that a wife was obliged to

endure various kinds of violence as a normal—and

sometimes deserved—part of married life.” Reva B.

Siegel, “The Rule of Love”: Wife Beating as Prerogative

and Privacy, 105 Yale L.J. 2117, 2133-34 (1996).6

For a helpful review of the gradual evolution of the law of

domestic violence since the framing era, see Elizabeth Pleck,

This legal regime was largely constructed by men.

Notably, until the ratification of the Nineteenth

Amendment, women had no right to vote and, accordingly, no direct influence on public policy. See, e.g.,

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994)

(“[A]lthough blacks were granted the right to vote in

1870, women were denied even that right—which is

itself preservative of basic civil and political rights—

until the adoption of the Nineteenth Amendment half

a century later.” (quoting Frontiero v. Richardson, 411

U.S. 677, 685 (1973) (plurality opinion) (footnote and

internal quotations omitted)).

Even after the Nineteenth Amendment, reform was

gradual:

Until the legal reforms of the late 1970’s, women

could not obtain a restraining order against a

violent husband unless they were willing to file for

divorce at the same time. When protective orders

were available, enforcement was weak, penalties

for violations were minor, and use in emergencies

was not possible.

Jeffrey Fagan, The Criminalization of Domestic Violence:

Promises and Limits 8 (Nat’l Instit. Just., Jan. 1996)

(citation omitted).

Federal and state statutes prohibiting the possession

of firearms by persons under domestic-violence

restraining orders are of relatively recent origin, not

appearing until the 1990s. See Elizabeth Richardson

Vigdor & James A. Mercy, Do Laws Restricting Access

To Firearms By Domestic Violence Offenders Prevent

Wife-Beating in Nineteenth-Century America, in 2 History of

Women in the United States: Household Constitution and Family

Relationships (Nancy F. Cott ed., 1992).

Intimate-Partner Homicide?, 30 Eval. Rev. 313, 316-20

& tlb.3 (2006).

Thus, only in recent decades has the relative

indifference of framing-era law to domestic violence

against women fully given way. The political and legal

context has changed as well, both because of the

ability of women to vote, and because this Court has

concluded that the Fourteenth Amendment’s guarantee that no person may be denied “equal protection of

the law,” U.S. Const. amend. XIV, § 1, demands that

“[p]arties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive

justification’ for that action.” United States v. Virginia,

518 U.S. 515, 531 (1996) (quoting Mississippi University

Women v. Hogan, 458 U.S. 718, 724 (1982)).

B. Section 922(g)(8) “Well Regulate[s]” the

Militia.

Section 922(g)(8), like its state-law analogs, places

no undue burden on Second Amendment rights. They

are, instead, appropriate means of “well-regulat[ing]”

the militia. These laws address the serious danger of

firearms violence faced by victims of domestic abuse.

The magnitude of the problem is distressing; more

than half of all women murdered in the United States

are killed by current or former intimate partners, and

the majority of these homicides are by firearm. See

Neil Websdale et al., The Domestic Violence Fatality

Review Clearinghouse: Introduction to a New National

Data System with a Focus on Firearms, 6 Injury

Epidemiology 1, 1 (2019).

Moreover, an abused partner is five times more

likely to be killed when there is a firearm in the house.

See 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, 1092 (2019).

Domestic abusers also represent a danger to lawenforcement officers called to the scene of a domestic

disturbance. An analysis of law-enforcement fatalities

from 2010 to 2016, funded by the United States

Department of Justice, concluded: “[C]alls related to

domestic disputes and domestic-related incidents represented the highest number of fatal types of calls for

service . . . .” Nick Bruel & Desiree Luongo, U.S. Dep’t

of Just., Making It Safer: A Study of Law Enforcement

Fatalities Between 2010-16, at 7 (Dec. 2017).7

Another review of law-enforcement fatalities from

1996 to 2010 found 116 officers were killed while

responding to domestic disturbance calls, 95% of

the officers were killed with a firearm, domesticviolence victims were also killed in 21% of these

cases, and 85% of the domestic-violence victims were

also killed with a firearm. Cassandra Kercher et al.,

Homicides of Law Enforcement Officers Responding to

Domestic Disturbance Calls, 19 Injury Prev. 331, 33334 (2013).

To similar effect, the United States Department of

Justice’s Law Enforcement Officers Killed and Assaulted

Annual Reports, indicated that for the period 20132022, 61 officers were killed while responding to a

“domestic disturbance” or “domestic violence,” and,

when combined, this constitutes the single largest

circumstance producing officer fatalities, followed by

The most recent data available again shows that the leading

circumstance in which law-enforcement officers were shot and

killed involved domestic dispute. See Nat’l Law Enf. Mem. &

Museum, 2023 Mid-Year Preliminary Law Enforcement Officers

Fatalities Report 4-5 (July 11, 2023).

a “traffic violation stop,” which produced 47 officerfatalities in the same period. See FBI, Crime Data

Explorer, Law Enforcement Officers Killed and Assaulted

Annual Reports: Law Enforcement Officers Feloniously

Killed, tbl. 23, https://cde.ucr.cjis.gov/LATEST/webapp/#.

The available empirical work, moreover, powerfully

suggests that statutes prohibiting the possession of

firearms by those subject to domestic-violence restraining orders have a material effect on rates of lethal

domestic violence.

A number of studies have examined state-level data

on domestic violence restraining orders, finding that

in states in which abusers are required to relinquish

their firearms under state law, there were, when compared to other states without such laws, statistically

significant reductions in overall rates of domesticviolence homicide. See Vigdor & Mercy, supra, at 337

(state laws that prohibit the possession and purchase

of firearms by persons under restraining orders

reduced intimate-partner homicide by 8%); Carolina

Diez et al., State Intimate Partner Violence-Related

Firearms Laws and Intimate Parter Homicide Rates,

1991 to 2015, 167 Ann. Internal Med. 537, 539 (2017)

(state laws requiring those under restraining orders to

relinquish firearms and refrain from possessing them

reduced intimate-partner homicide by 10.8%); 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. of Epidemiology 2365, 2367-68

& tbl.1 (finding a 12% reduction associated with

firearms-relinquishment requirements), retracted in

part on other grounds, 187 Am. J. Epidemiology 2491

(2018).8

Another study examined the effect of the federal

statute, finding that it “was associated with a 27%

reduction in state-level IPH [intimate partner homicide]

and a 28% reduction in firearm IPH in the Black

population, but had no measurable association with

IPH in the White population.” Mikaela A. Wallin et al.,

The Association of Federal and State-Level Firearm

Restriction Policies with Intimate Partner Homicide: A

Re-Analysis by Race of the Victim, 37 J. Interpersonal

Violence NP16509, NP16524 (2022). Conversely,

state-law firearms-relinquishment requirements for

those under domestic-violence restraining orders were

associated with “11% reduction in total IPH for White

victims and a 16% reduction in firearm IPH for White

victims” but no association “for Black victims.” Id. The

authors suggested that this disparity could be attributable to the impact of the federal law “in states that

lack (or lacked) other domestic violence resources or

firearm restriction policies for an already vulnerable

population.” Id. at NP16525.

Given the many variables that drive homicide rates,

these findings are remarkable. Doubtless jurisdictions

that take care to alert victims to the availability of

restraining orders, support them in obtaining such

orders, and then devote the resources necessary to

See also Tiara C. Willie et al., Associations Between State

Intimate Partner Violence-Related Firearm Policies and Injuries

Among Women and Men Who Experience Intimate Partner Violence,

Injury Epidemiology, at 5, 7 tbl.3 (2021), https://pubmed.ncbi.

nlm.nih.gov/33612117/ (finding a statistically significant relationship between prohibitions on firearms possession by persons

under domestic-violence restraining orders and reductions in rates of

nonfatal domestic violence).

achieving compliance with firearm-relinquishment

requirements, experience especially large reductions

in domestic-violence-related homicides.

To be sure, those who commit crimes involving

domestic violence are liable for their criminal conduct.

Criminal liability for completed acts of violence, however,

comes too late for the victim. Moreover, the data we

canvas above demonstrate that prophylactic measures,

such as § 922(g)(8) and its state-law analogs, offer

more effective deterrence than the threat of criminal

liability alone. Removing firearms from individuals

who present elevated risks of domestic violence is an

effective way to prevent domestic violence, rather than

only punishing offenders only after the fact.

In short, § 922(g)(8) and its state-law analogs do not

eliminate the interpersonal dynamics that produce

domestic violence, but by removing a firearm from the

possession of an abuser, they reduce the likelihood

that domestic violence will escalate to lethality.

There have been no statistical analyses that assess

whether these statutes reduce rates of law-enforcement fatalities while responding to domestic-violencerelated calls for service. Given how dangerous domesticviolence calls are for police, however, it is likely that

these statutes, if effectively utilized, reduce risks faced

by law-enforcement officials no less than those faced

by domestic-abuse victims.

Accordingly, there is ample reason to believe that §

922(g)(8) and its state-law analogs reduce the risk that

domestic disputes will escalate to lethal violence.

At the same time, § 922(g)(8)’s reach is narrow. It

applies only to those subject to a restraining order

issued on “actual notice,” after a proceeding “at which

such person had an opportunity to participate,” and

after a judge has made “a finding that such person

represents a credible threat to the physical safety of

such intimate partner or child” or issued an order that

“prohibits the use, attempted use, or threatened use of

physical force against such intimate partner or child

that would reasonably be expected to cause bodily injury.”

18 U.S.C. § 922(g)(8)(A), (C). Thus, it reaches only those

who have had notice, opportunity for hearing, and

requires an individualized adjudication of dangerousness.

The Texas statute under which the restraining

order against Rahimi issued is even more restrictive,

requiring the court to find that “family violence has

occurred and is likely to occur in the future.” Tex. Fam.

Code § 85.001(b).9 Accordingly, the restraining order

at issue in this case was issued on a finding that

violence was probable.

Thus, § 922(g)(8) is tailored to address a discrete

but important threat of firearms violence in a context

in which there is demonstrable evidence of a

seriously elevated and unacceptably high risk of lethal

confrontation.

Individuals who have been adjudicated to present

an ongoing threat to an intimate partner sufficient to

justify a restraining order are surely no part of a

“Family violence” is defined as “(1) an act by a member of a

family or household against another member of the family or

household that is intended to result in physical harm, bodily

injury, assault, or sexual assault or that is a threat that

reasonably places the member in fear of imminent physical harm,

bodily injury, assault, or sexual assault, but does not include

defensive measures to protect oneself; (2) abuse, . . . by a

member of a family or household toward a child of the family or

household; or (3) dating violence . . . .” Tex. Fam. Code § 71.04.

“well regulated Militia.” As long as they are subject to

the order, they are appropriately deprived of access to

firearms. There is, as we explain above, substantial

evidence of the efficacy of this type of regulation.

The Second Amendment, as this Court has explained,

protects “law-abiding, responsible citizens,” Heller,

554 U.S. at 635, and “ordinary, law-abiding citizens,”

Bruen, 142 S. Ct. at 2122. Rahimi is none of those. At

least as long as he remained subject to the domesticviolence restraining order, he had no place in a “well

regulated Militia.” Rahimi’s flagrant violation of the

restraining order, evidenced by the sensational spasm

of violence reflected in his subsequent shooting spree,

only confirms that conclusion.

Section 922(g)(8) and its state-law analogs accordingly

impose no undue burden on the right to keep and bear

arms. To the contrary, these are precisely the type

of regulations to which a “well regulated Militia” is

appropriately held.

CONCLUSION

For the preceding reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

LAWRENCE ROSENTHAL

Counsel of Record

One University Drive

Orange, CA 92866

(714) 628-2650

rosentha@chapman.edu

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.