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

No. 22-915

IN THE

Supreme Court of the United States

d

UNITED STATES ,

Petitioner,

—v.—

ZACKEY RAHIMI ,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE AMERICAN CIVIL LIBERTIES

UNION FOUNDATION IN SUPPORT OF REVERSAL

Sandra S. Park

Ria Tabacco Mar

Jennesa Calvo-Friedman

Louise Melling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

Evelyn Danforth-Scott

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94102

David D. Cole

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, D.C. 20005

(212) 549-2611

dcole@aclu.org

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 6

I.

Firearms Restrictions Can Implicate a

Variety of Policy and Constitutional

Concerns Distinct from the Facial Second

Amendment Challenge Respondent Has

Pursued Here ....................................................... 6

II. The Bruen Framework Authorizes

Disarming Individuals Judicially

Determined to Pose a Specific Threat of

Domestic Violence ................................................ 8

A. The Prohibition Here Falls Within a

Historical Tradition of Disarming

People Individually Adjudged to Pose

a Specific Threat of Violence ...................... 8

B. The Arguments Advanced by

Respondent and the Court Below Are

Unpersuasive ............................................ 13

i. The Second Amendment Does Not

Deny Policymakers All Power to

Address Domestic Violence

Through Firearms Restrictions .......... 14

ii. Felony Prosecutions for Domestic

Violence Are Not the Sole

i

Constitutional Means of

Disarming Individuals Who Pose

a Specific Threat to Specific

People ................................................... 16

C. Other Subsections of Section 922(g),

and Some Applications of Section

922(g)(8), Raise Distinct Questions

Not Presented Here .................................. 17

III. Imposing Firearms Restrictions Based on

Civil Restraining Orders is a Key Tool for

Combatting Domestic Violence .......................... 19

A. Firearms Restrictions Tied to

Domestic Violence Restraining

Orders Directly Respond to a Grave

Problem ..................................................... 19

B. Regulating Gun Possession

Exclusively Through After-the-Fact

Domestic Violence Felony

Prosecutions Is No Substitute .................. 24

CONCLUSION.......................................................... 26

ii

TABLE OF AUTHORITIES

CASES

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ......................... 11, 17

Mathews v. Eldridge,

424 U.S. 319 (1976) ............................................... 7

McCulloch v. Maryland,

4 Wheat. 316 (1819) ......................................... 4, 10

New York State Rifle & Pistol Association

v. Bruen,

142 S. Ct. 2111 (2022) ...... 4, 5, 8-11, 14, 16, 19, 25

State v. Rhodes,

61 N.C. 453 (1868) ............................................... 15

Tinker v. Colwell,

193 U.S. 473 (1904) ............................................. 15

United States v. Daniels,

No. 22-60596, 2023 WL 5091317

(5th Cir. Aug. 9, 2023) ......................................... 12

United States v. Salerno,

481 U.S. 739 (1987) ............................................... 8

United States v. Sanchez,

639 F.3d 1201 (9th Cir. 2011) ............................. 13

Washington State Grange v. Washington State

Republican Party,

552 U.S. 442 (2008) ............................................... 8

iii

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................... 8

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ............................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. II ............... 3-10, 13, 14, 17-19, 25

U.S. Const. amend. VIII ............................................. 7

STATUTES

18 U.S.C § 922(g)(8) ................ 3-5, 8-14, 17, 18, 20, 23

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

34 U.S.C. § 10449(e)(1) ............................................. 13

34 U.S.C. § 40911(b)(3)(c)(i) ..................................... 23

34 U.S.C. § 40913(b)(5) ............................................. 23

34 U.S.C. § 40941(a) ................................................. 23

34 U.S.C. § 40903(1) ................................................. 23

LEGISLATIVE MATERIALS

Act of Feb. 16, 1787, §§ 1-3,

1 Private and Special Statutes of the

Commonwealth of Massachusetts (1805) ........... 12

iv

Other Authorities

Jeffrey R. Baker,

The Failure and Promise of Common Law

Equity in Domestic Abuse Cases, 58 Loyola

L. Rev. 559 (2012) ................................................ 15

American Bar Association,

Domestic Violence Civil Protection Orders

(updated June 2020),

https://www.americanbar.org/content/dam/

aba/administrative/domestic_violence1/Res

ources/charts/cpo2020.pdf ................................... 21

Christopher T. Benitez, et al.,

Do Protection Orders Protect?, 38 J. Am.

Acad. Psych. Law 376 (Sept. 2010) ..................... 21

4 William Blackstone,

Commentaries on the Laws of England

(1769) ................................................................... 11

Violence Prevention: Fast Facts,

Centers for Disease Control & Prevention

(Oct. 11, 2022),

https://www.cdc.gov/violenceprevention/inti

matepartnerviolence/fastfact.html ..................... 20

Philip J. Cook & John Donohue,

Saving Lives by Regulating Guns: Evidence

for Policy, 358 Sci. 1259 (2017) ........................... 22

Carolina Diez, et al.,

State Intimate Partner Violence-Related

Firearms Laws and Intimate Partner

Homicide Rates in the United States, 1991

v

to 2015, 167 Annals Internal Med. 536

(2017) ................................................................... 22

Who Can Have a Gun: Domestic Violence &

Firearms,

Giffords Law Center,

https://giffords.org/lawcenter/gunlaws/policy-areas/who-can-have-agun/domestic-violence-firearms/ ......................... 23

Sally F. Goldfarb,

Reconceiving Civil Protection Orders for

Domestic Violence: Can Law Help End the

Abuse Without Ending the Relationship?,

29 Cardozo L. Rev. 1487 (2008) .......................... 21

Leigh Goodmark,

National Domestic Violence Hotline,

Law Enforcement Experience Report:

Domestic Violence Survivors’ Survey

Regarding Interaction with Law

Enforcement (2022),

https://www.thehotline.org/wpcontent/uploads/media/2022/09/2209Hotline-LES_FINAL.pdf ..................................... 24

Mugambi Jouet,

Guns, Mass Incarceration, and Bipartisan

Reform: Beyond Vicious Circle and Social

Polarization, 55 Ariz. St. L.J. 239 (2023) ............. 6

Thomas B. Marvell & Carlisle E. Moody,

The Impact of Enhanced Prison Terms for

Felonies Committed with Guns, 33

Criminology 247 (May 1995) ................................. 7

vi

Privy Council Lord Newport

(Jan. 8, 1661), in Transactions of the

Shropshire Archaeological and Natural

History Society, pt. 2, 3d ser., vol. 4 (1904) ........ 12

Alaina Richert,

Note, Failed Interventions: Domestic

Violence, Human Trafficking, and the

Criminalization of Survival, 120 Mich. L.

Rev. 315 (2021) ................................................... 25

Lynnmarie Sardinha, et al.,

Global, Regional, and National Prevalence

Estimates of Physical or Sexual, or Both,

Intimate Partner Violence Against Women

in 2018, 399 Lancet 803 (2022) ........................... 20

Reva B. Siegel,

“The Rule of Love”: Wife Beating as

Prerogative and Privacy,

105 Yale L.J. 2117 (1996) .................................... 15

U.S. Department of Justice,

Federal Bureau of Investigation, Criminal

Justice Information Services Division,

Federal Denials (2023),

https://www.fbi.gov/filerepository/federal_denials.pdf/view .................... 23

U.S. Department of Justice,

Federal Bureau of Investigation, Criminal

Justice Information Services Division,

National Instant Criminal Background

Check System Operational Report 20202021 (Apr. 2022), https://www.fbi.gov/filevii

repository/nics-2020-2021-operationsreport.pdf/view ..................................................... 23

K.A. Vittes & S.B. Sorenson,

Restraining Orders Among Victims of

Intimate Partner Homicide, 14 Inj.

Prevention 191 (2008) ......................................... 22

The White House,

U.S. National Plan to End Gender-Based

Violence: Strategies for Action (May 2023),

https://www.whitehouse.gov/wpcontent/uploads/2023/05/National-Plan-toEnd-GBV.pdf........................................................ 21

Adam Winkler,

Racist Gun Laws and the Second

Amendment, 135 Harv. L. Rev. F. 537

(2022) ............................................................... 7, 12

viii

INTEREST OF AMICUS CURIAE 1

The American Civil Liberties Union (ACLU) is

a nationwide, nonprofit, nonpartisan organization

with nearly 2 million members and supporters

dedicated to the principles of liberty and equality

embodied in the Constitution and our nation’s civil

rights laws. Since its founding in 1920, the ACLU has

frequently appeared before this Court as direct

counsel and as amicus curiae, including in cases

involving gender-based violence, the Second

Amendment, and criminal law.

The ACLU is committed to fighting mass

incarceration and overbroad gun possession laws that

fuel that phenomenon. It is committed to equal

protection of the law and opposes the use of gun

possession laws to unfairly target people of color. And

the ACLU is committed to due process and

fundamental fairness for all, and therefore condemns

procedures to restrict constitutional liberties

arbitrarily, without due process, or that impose

unnecessarily excessive restrictions.

The ACLU is equally committed to the rights

and protection of people who experience domestic

violence and supports the long-delayed recognition by

American legislatures and executive officials that

domestic violence is a pervasive and grave problem

1 No party has authored this brief in whole or in part, and no one

other than amicus, its members, and its counsel have paid for the

preparation or submission of this brief.

1

that has systematically deprived women of the ability

to live with dignity and security.

The proper resolution of this case is thus a

matter of substantial interest to the ACLU and its

members.

2

SUMMARY OF ARGUMENT

The United States seeks reversal by asserting

sweeping government power to restrict the Second

Amendment rights of anyone who is not a law-abiding,

responsible, citizen. But the Court can and should

reverse on a much narrower ground, without granting

the government the broad authority it claims: namely,

that there is ample historical support for restricting

gun rights of persons individually determined to pose

a specific threat to others. The limitation on gun

possession at issue in this case does not sweep

categorically, but applies only to individuals who are

subject to specific domestic violence protective orders,

and lasts only so long as those orders are in place.

Because there is historical support for limiting gun

possession by individuals adjudged to pose a specific

threat to the safety of others, the Court need not—and

should not—adopt the United States’ overbroad

theory in order to reverse the decision below.

Accordingly, the ACLU files in support of reversal, but

offers a significantly narrower basis for that result.

Restrictions on gun possession raise a number

of policy and constitutional concerns. But this case

does not ask this Court to weigh in on the full range of

possible objections to felony gun restrictions. It asks

only whether the Second Amendment prohibits every

possible application of 18 U.S.C Section 922(g)(8)’s bar

on firearms possession by persons subject to domestic

violence restraining orders. The panel below held that

it does, namely, that someone found by a court to pose

a specific threat of physical violence to his intimate

3

partner retains a constitutional right to carry a gun—

at least unless and until he is prosecuted for a felony.

Affirming that decision would have adverse

consequences far beyond the federal criminal

provision at issue here. Under the Fifth Circuit’s

reasoning, the Second Amendment denies all

governments—federal, state, and local—the authority

to disarm persons because they are subject to domestic

violence protective orders for any period of time,

regardless of the fairness of the procedures employed,

the time limit of the restriction, or evidence that gun

possession by such individuals poses a risk of severe

harm or death to those the state seeks to protect.

Importantly, the Fifth Circuit’s rationale would deny

governments the ability to prohibit gun possession

through any regulatory devices predicated on

restraining orders—including civil measures like preacquisition background checks, which since Section

922(g)(8)’s inception have stopped more than 77,000

purchases of weapons by individuals subject to

domestic violence orders.

Bruen

disclaimed precisely the sort of

regulatory straitjacket that led the Fifth Circuit to

issue such a far-reaching holding. As Justice John

Marshall long ago warned, “we must never forget that

it is a constitution we are expounding.” McCulloch v.

Maryland, 4 Wheat. 316, 407 (1819). Bruen thus

explicitly recognized congressional latitude to respond

to modern societal challenges by imposing firearms

restrictions, making clear that the historical inquiry

looks for analogues, not twins.

4

All the Court needs to do—and all that it should

do—to reverse the decision below is to recognize that

the founding generation, like their common law

forebearers and Reconstruction-era officials after

them, routinely restricted access to guns by

individuals adjudged to pose a specific threat of

violence. Court-imposed, time-limited restrictions on

firearms possession following an individualized

finding of danger to an intimate partner or family

member—as is at least the case where Section

922(g)(8)

is

satisfied

through

subsection

922(g)(8)(C)(i)—fit comfortably within this historical

practice.

Section 922(g)(8) thus is not

unconstitutional in all applications, and does not

conflict on its face with the Second Amendment.

The primary arguments advanced to the

contrary lack merit. Historically, lawmakers took

practically no steps to protect women from domestic

violence. Therefore, because Bruen recognized that

firearms regulations could be a valid response to

modern-day policy challenges, the absence of a

historical twin here is not dispositive. Nor is it enough

to suggest that lawmakers could achieve substantially

similar goals by imposing firearms restrictions only on

those prosecuted for a felony.

The framework

articulated in Bruen does not support such a

distinction.

History and tradition counsel that

legislative judgments about public safety—not the

initiation of formal criminal proceedings—are the

proper touchstone for firearms restrictions. And

legislatures have long denied guns to persons

individually adjudged to pose a danger to others.

5

In any event, a regime effectively permitting

the government to disarm only those it prosecutes for

felonies would be a poor substitute for the status quo.

Restricting people who inflict domestic violence from

possessing firearms via restraining orders offers a

much more expeditious response to often-urgent

threats, empowers individuals who have experienced

domestic violence and fear more, and gives courts a

more flexible, time-limited mechanism to offer

protection. Affirmance here would thus imperil state

and federal efforts to tackle the widespread and severe

problem of domestic violence—a threat to basic

personal security that accounts for more than half of

homicides committed against women annually.

ARGUMENT

I.

Firearms Restrictions Can Implicate a Variety of

Policy and Constitutional Concerns Distinct from

the Facial Second Amendment Challenge

Respondent Has Pursued Here

Amicus is by no means a reflexive supporter of

firearms restrictions. Even putting aside the Second

Amendment, such laws raise multiple concerns. Laws

that impose severe penalties on individuals for merely

possessing a gun contribute to unjust and unnecessary

punishment, and help fuel mass incarceration. See,

e.g., Mugambi Jouet, Guns, Mass Incarceration, and

Bipartisan Reform: Beyond Vicious Circle and Social

Polarization, 55 Ariz. St. L.J. 239, 241 (2023).

Criminal enforcement of gun laws has contributed to

the racially disproportionate character of the

incarcerated population, undermining promise of

6

equal justice under law. Adam Winkler, Racist Gun

Laws and the Second Amendment, 135 Harv. L. Rev.

F. 537, 544-45 (2022). Where such laws are enforced

selectively on the basis of race, their application

violates the constitutional guarantee of equal

protection. Yick Wo v. Hopkins, 118 U.S. 356, 374

(1886).

Additionally, because they limit a

constitutional liberty, individualized gun deprivations

must be predicated on procedures that satisfy due

process. See Mathews v. Eldridge, 424 U.S. 319, 332348 (1976). The Eighth Amendment, meanwhile,

prohibits cruel and unusual sentencing for gun law

violations. Moreover, while civil licensing regimes

that prohibit selling guns to persons found to pose a

threat of domestic violence and subject to restraining

orders are a sensible tool to prevent further violence,

sweeping after-the-fact criminal sanctions imposed

categorically on wide swaths of persons are another

matter. 2

But this case does not present such policy or

constitutional questions. It asks only whether one

particular gun regulation, which prohibits firearms

possession by persons subject to certain domestic

violence restraining orders, on its face violates the

Second Amendment. It does not.

2 There is not strong evidence to support the across-the-board

deterrent effect of such laws. See, e.g., Thomas B. Marvell &

Carlisle E. Moody, The Impact of Enhanced Prison Terms for

Felonies Committed with Guns, 33 Criminology 247, 274-75 (May

1995) (finding little evidence about the effect firearm sentence

enhancements have on crime rates or firearm use).

7

II.

The Bruen Framework Authorizes Disarming

Individuals Judicially Determined to Pose a

Specific Threat of Domestic Violence

The United States urges the Court to hold,

based on atextual dicta, that Second Amendment

rights are limited to “law-abiding, responsible

citizens,” Br. of the United States as Amicus Curiae at

10-27 (“U.S. Br.”). But such a broad and vague

standard for denying rights is unnecessary to resolve

this case. Instead, the Court need only hold that some

applications of Section 922(g)(8)—at least where

enforced via subsection 922(g)(8)(C)(i), which requires

individualized findings of threat—fit within the

substantially narrower historical practice of

restricting

firearms

possession

by

persons

individually adjudged to pose a credible threat to

others’ safety.

A.

The Prohibition Here Falls Within a

Historical Tradition of Disarming People

Individually Adjudged to Pose a Specific

Threat of Violence

This Court has repeatedly stated that a facial

challenge to a statute is “the most difficult challenge

to mount successfully.” United States v. Salerno, 481

U.S. 739, 745 (1987). Salerno provides that facial

invalidation requires concluding that “no set of

circumstances” exists by which a given legislative

enactment would satisfy the Constitution. Id. at 745;

see also Washington State Grange v. Washington

State Republican Party, 552 U.S. 442, 449 (2008)

(quoting Washington v. Glucksberg, 521 U.S. 702,

8

739-740 (1997)) (facial challenge requires showing a

law is “unconstitutional in all its applications”). The

parties contested below how that standard should

apply in the Second Amendment context. See Pet.

App. at 12a. But Respondent has never argued that

Section 922(g)(8) falters specifically because of his

own particular circumstances. See Br. in Opposition

at 8 (“BIO”). Instead, he has maintained that every

possible application the statute fails constitutional

muster. Id. Accordingly, so long as some applications

of Section 922(g)(8) are valid, his facial challenge fails.

Bruen instructs that the validity of modern-day

firearms regulations under the Second Amendment

turns on whether they find analogous support in our

nation’s “history and tradition.” New York State Rifle

& Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2128 (2022).

That inquiry may take different forms, depending on

the representative branches’ regulatory objectives.

“[W]hen a challenged regulation addresses a general

societal problem that has persisted since the 18th

century,” the “lack of a distinctly similar historical

regulation addressing that problem” through firearms

restrictions may make the constitutional answer

“fairly straightforward.”

Id. at 2131.

Where

regulations “implicat[e] unprecedented societal

concerns,” however, Bruen demands a “more nuanced

approach” to constitutional exposition. Id. at 2132.

Courts must reason by analogy, looking to the

historical record to identify parallels along dimensions

such as “how and why the regulations burden a lawabiding citizen’s right to armed self-defense.” Id.

Ultimately, because “the Constitution can, and must,

9

apply to circumstances beyond those the Founders

specifically anticipated,” id. at 2132, the crux is

whether some “historical analogue” exists for a

contemporary regulatory scheme, “not a historical

twin.” Id. at 2133 (emphasis in original); see also id.

at 2132 (quoting McCulloch, 4 Wheat. at 415.

Domestic violence is precisely the sort of

contemporary social problem the Framers would not

have specifically considered in drafting the Second

Amendment.

While domestic violence certainly

existed at the nation’s founding, it was not viewed as

an issue worthy of significant governmental response

until much later. But because it is “a constitution we

are expounding,” McCulloch, 4 Wheat. at 407, Bruen

recognizes that the Second Amendment inquiry does

not require identification of the precise law at issue as

of the founding. Rather, so long as the historical

record features gun regulations that are analogous to

Section 922(g)(8)’s effort to tackle the “unprecedented

societal concern[]” of domestic violence, Bruen, 142 S.

Ct. 2111, 2132, the statute survives a facial Second

Amendment challenge.

The historical record is replete with relevant

analogues, from 17th century England to the colonial

era to Reconstruction, in which governments

restricted gun possession by persons individually

adjudged to pose a risk to others. The United States’

brief lays out multiple examples of disarming such

individuals predicated on specific findings of specific

threats, U.S. Br. at 22-27, even as it urges the Court

to adopt a far more expansive principle than necessary

here. While some historical restrictions on gun rights

10

were overbroad, lacking in due process, or rested on

racist assumptions, the record nevertheless provides

clear support—as then-Judge Barrett recognized—for

the narrower principle that the government can deny

access to guns to people who pose a specific threat of

violence to others. Kanter v. Barr, 919 F.3d 437, 451

(7th Cir. 2019) (Barrett, J., dissenting), overruled by

Bruen, 142 S.Ct. at 2127. 3

Take common law surety regimes. Where an

individual could demonstrate “just cause to fear”

injury, he could “demand surety of the peace against

such person.” 4 William Blackstone, Commentaries

on the Laws of England 252 (1769). Like Section

922(g)(8), such measures were preventative, turning

on “probable suspicion” of a future threat of violence.

Id. at 249. The court below rejected the surety laws

as analogues because they did not impose an absolute

ban on weapons possession, but rather a conditional

restriction.

That sort of reasoning, however,

effectively requires what this Court expressly

rejected: a historical twin, Bruen, 142 S. Ct. at 2133.

It is sufficient that the surety laws provide historical

support for disarming persons based on individualized

assessments that they posed a specific threat to

others.

This Court has not yet clarified whether the framework

promulgated in Bruen should be conducted by reference to

founding-era or Reconstruction-era regulations.

But both

periods include a range of laws designed to deny firearms to

persons who pose a specific threat of violence.

3

11

Surety laws were not historical outliers. At

common law, for example, the Crown disarmed

individuals who had “disturbed the public Peace.”

Privy Council Lord Newport (Jan. 8, 1661), in

Transactions of the Shropshire Archaeological and

Natural History Society, pt. 2, 3d ser., vol. 4, at 156

(1904). And an early Massachusetts law temporarily

disarmed individuals who had participated in Shays’

Rebellion as a precondition to pardon, with

reinstatement subject to an individualized showing of

good behavior over a multi-year period. Act of Feb. 16,

1787, §§ 1-3, 1 Private and Special Statutes of the

Commonwealth of Massachusetts 145-147 (1805). 4

These examples are merely illustrative; the

United States’ brief cites many more. But as a whole,

the record provides ample support to conclude that at

least some applications of Section 922(g)(8)’s timelimited denial of guns to people who have been

individually adjudicated to pose a specific threat of

violence to a specific victim fall comfortably within the

4 Our history also includes more categorical gun regulations that

were explicitly racist. For example, from the founding through

Reconstruction, American laws routinely denied Black persons

the right to possess firearms. See Winkler, supra, at 537. Such

laws would plainly violate the guarantee of equal protection as

we understand it today. There is no need to rely on such laws to

uphold the individualized disbarment imposed by Section

922(g)(8). Cf. United States v. Daniels, No. 22-60596, 2023 WL

5091317, at *11 n.33 (5th Cir. Aug. 9, 2023) (“Although those

laws are also examples of danger-based disarmament, we need

not build our history and tradition on repugnant laws that today

would be struck down as unconstitutional. There are plenty of

examples at the Founding of states’ disarming citizens who were

considered a violent threat to society.”).

12

government’s historically recognized authority. That

is sufficient to uphold the provision on its face and

reverse the decision below. 5

The Court need go no further and adopt the

United States’ sweeping assertion of power to deny

Second Amendment rights to anyone not deemed a

“law-abiding, responsible citizen.” Id. at 7.

Constitutional rights generally extend to all persons

within the United States, citizen and non-citizen

alike. And it would be alarming if an individual’s

entitlement to a constitutional right turned on the

Government’s vague determination of whether they

were “responsible.” Nothing about the historical

record or this case requires embarking on that path in

order to reverse.

B.

The Arguments Advanced by Respondent

and the Court Below Are Unpersuasive

Respondent and the court below advance two

primary theories for maintaining that Section

5 Critically, only a subset of restraining orders issued nationally

satisfy Section 922(g)(8)’s requirements. See, e.g., United States

v. Sanchez, 639 F.3d 1201 (9th Cir. 2011). Moreover, federal law

requires that States, to receive federal funds, implement policies

to notify persons subject to domestic violence restraining orders

of the prohibition in Section 922(g)(8).

See 34 U.S.C.

§ 10449(e)(1).

Despite these important limitations, it remains possible that

some applications of Section 922(g)(8), including where the

statute is satisfied under 922(g)(8)(C)(i), might violate the

Second Amendment. Because this is a facial challenge, however,

the Court need not address those possibilities here.

13

922(g)(8) on its face violates the Second Amendment.

First, Mr. Rahimi contends in his Brief in Opposition

to Certiorari that Section 922(g)(8) conflicts with the

Second Amendment because the social problem it

addresses was not historically remediated through

firearms restrictions, and therefore may not be

addressed in that manner today. The court below, by

contrast, presupposed some legislative authority to

combat

domestic

violence

through

firearms

restrictions, but maintained that the Constitution

prohibits doing so through the mechanism Congress

chose here—namely, on the basis of domestic violence

restraining orders. Neither argument is persuasive.

i.

The Second Amendment Does Not Deny

Policymakers All Power to Address

Domestic Violence Through Firearms

Restrictions

Respondent’s certiorari-stage briefings argued

that Section 922(g)(8) impermissibly interposes gun

restrictions as a modern-day policy solution to a

longstanding societal concern. BIO at 28; see also

Bruen, 142 S. Ct. at 2131. Because the founding

generation addressed domestic violence without

disarming individuals, Mr. Rahimi says, firearms

regulations are now constitutionally unavailable to

tackle what he characterizes as a centuries-old

problem. BIO at 28.

The truth is that lawmakers did not perceive

domestic violence as a problem until well into the 20th

century. Instead, American “common law originally

provided that a husband, as master of his household,

14

could subject his wife to corporal punishment . . . so

long as he did not inflict permanent injury upon her.”

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

Prerogative and Privacy, 105 Yale L.J. 2117, 2118

(1996).

State tolerance of domestic violence persisted

well past the founding. For example, the year the

Fourteenth Amendment was adopted, the North

Carolina Supreme Court opined in the case of a man

who beat his wife with a switch that “[w]e will not

inflict upon society the greater evil of raising the

curtain upon domestic privacy” in order to “punish the

lesser evil of trifling violence.” State v. Rhodes, 61

N.C. 453, 459 (1868) (per curiam); see also Jeffrey R.

Baker, The Failure and Promise of Common Law

Equity in Domestic Abuse Cases, 58 Loyola L. Rev.

559, 566 (2012). As recently as 1904, this Court

recognized “the husband has, so to speak, a property

in the body . . . of his wife.” Tinker v. Colwell, 193 U.S.

473, 483 (1904). Indeed, until the 1960s, “most

judges” would have “lacked the vocabulary and

cultural competence to recognize or understand

domestic abuse” save for in “the most egregious cases.”

Baker, supra, at 561.

In other words, domestic violence was not seen

as a problem the state should address, except in

perhaps the most extreme cases. That has changed

today, as illustrated by the amicus briefs filed by

various states and the myriad modern-day laws they

argue would be called into question by the decision

below. But because Bruen recognizes that lawmakers

can validly impose gun restrictions to address

15

concerns not recognized at the time of the founding,

142 S. Ct. at 2132, and policymakers’ efforts to reduce

domestic violence and provide remedies for victims are

a modern-day phenomenon, the historical absence of

firearms restrictions specifically targeting domestic

violence does not render such restrictions

categorically unavailable to contemporary lawmakers.

States can regulate guns in connection with this

problem so long as historical analogues support doing

so, even if there were no identical laws at the

founding. Id.

ii.

Felony Prosecutions for Domestic

Violence Are Not the Sole Constitutional

Means of Disarming Individuals Who

Pose a Specific Threat to Specific People

The court below embraced a different

argument. It concluded that even if the political

branches have some authority to bar firearms

possession as a means of targeting the “unprecedented

societal concern[]” of domestic violence, Bruen, 142 S.

Ct. at 2131, hitching such restrictions to civil

protective orders is a constitutionally impermissible

means of doing so. Instead, as Judge Ho’s concurrence

crystallizes, the only valid means of disarming

individuals who have committed domestic violence

would be via a felony prosecution. See Pet. App. at

34a (Ho, J., concurring) (“Those who commit violence,

including domestic violence, shouldn’t just be

disarmed—they should be detained, prosecuted,

convicted, and incarcerated.”). On this view, the state

cannot disarm someone who poses a specific threat to

a specific person unless the individual commits felony16

level domestic violence and a prosecutor pursues

charges.

That argument likewise cannot be squared with

a proper understanding of the historical record. Both

the English and American traditions recounted above

include many laws that denied guns to individuals

adjudged to pose a threat to others without requiring

an antecedent felony prosecution. See supra at 8-13.

As Justice Barrett has previously observed,

“[f]ounding-era legislatures did not strip felons of the

right to bear arms simply because of their status as

felons.”

Kanter, 919 F.3d at 451 (Barrett, J.,

dissenting). Instead, historical firearms regulations

focused on disarming people in response to a specific

threat they posed, distinct from the individual’s

formal status in the criminal legal system. Thus, “[i]n

1791—and for well more than a century afterward,”

legislators prohibited individuals from possessing

firearms “only when they judged that doing so was

necessary to protect the public safety”—and not only

after they had been indicted or convicted of a felony.

Id.

C.

Other Subsections of Section 922(g), and

Some Applications of Section 922(g)(8),

Raise Distinct Questions Not Presented

Here

The conclusion that Section 922(g)(8) does not

violate the Second Amendment in all its applications

does not preclude as-applied challenges to Section

922(g)(8), or facial or as-applied challenges to other

provisions within Section 922(g).

17

Other subsections of Section 922(g) apply in

perpetuity to broad categories of persons based on

status alone, and are therefore more difficult to fit

under historical precedents of disarming individuals

found to pose a specific threat to others. They impose

sweeping restrictions on all persons with a prior

felony conviction, 18 U.S.C. § 922(g)(1), on persons

who use drugs, § 922(g)(3), on persons deemed mental

unfit, § 922(g)(4), and on “aliens,” § 922(g)(5), among

others, without supplying such persons any

opportunity to regain their Second Amendment

rights. Those provisions require a different, and more

searching, historical inquiry to determine whether

they comport with the Second Amendment—an

inquiry they may well fail to satisfy.

Moreover, Section 922(g)(8)(C)(ii) itself bars

gun possession by individuals subject to restraining

orders that do not include specific findings that the

individual poses a danger to an intimate partner or

family member. It is a distinct question whether the

historical analogues discussed above provide

sufficient support for restrictions imposed on this

lesser showing of need.

But the facial challenge to Section 922(g)(8)

that Respondent has brought arises out of a protective

order that satisfies the plain language of subsection

(C)(i) by finding him a credible threat to the physical

safety of his family members. See Joint Appendix at

2. It does not turn on the constitutionality of Section

922(g)(8)(C)(ii)—nor, as a facial challenge, on the

validity of any particular fact-bound application of

922(g)(8) as a whole. And its companion provisions,

18

which prohibit firearm possession by other categories

of persons, are another matter entirely.

These questions are thus for another day. The

lone question presented here is whether the Second

Amendment precludes the government from

disarming persons found to pose a specific threat of

violence to a specific person, and subject to domestic

violence protective orders, even where all other

constitutional constraints are satisfied. History and

tradition counsel that it does not.

III. Imposing Firearms Restrictions Based on Civil

Restraining Orders is a Key Tool for Combatting

Domestic Violence

The Fifth Circuit’s decision does more than

overlook this Court’s guidance in Bruen and the

historical record. It disempowers authorities from

imposing any restrictions on gun possession by

individuals found to pose a specific threat of domestic

violence to their intimate partners or family members.

Such restrictions are a widespread, important tool

governments have adopted to address the threat of

domestic violence, and the benefits they provide to

survivors of abuse would not be replicated by imposing

similar restrictions on the basis of felony proceedings.

A. Firearms Restrictions Tied to Domestic

Violence Restraining Orders Directly Respond

to a Grave Problem

Just as legislatures and executive officials from

the relevant historical periods tailored firearms

restrictions to particular safety risks, restrictions on

19

firearm possession by persons subject to domestic

violence restraining orders are tailored to the precise

risk they address. Unlike many categorical gun

restrictions, they apply only to persons individually

adjudged to pose a specific threat of violence to others.

And unlike many permanent bans on gun possession,

they endure only so long as the domestic violence

protective order lasts.

Moreover, like many of its historical analogues,

Section 922(g)(8) responds to grave threats to life and

limb. In the United States, domestic violence is both

common and devastating. Although precise figures

are impossible to know, one recent study estimates

that one in four women in North America will report

experiencing abuse from an intimate partner in their

lifetimes.

Lynnmarie Sardinha, et al., Global,

Regional, and National Prevalence Estimates of

Physical or Sexual, or Both, Intimate Partner Violence

Against Women in 2018, 399 Lancet 803, 808 (2022).

The Centers for Disease Control estimates that 40% of

women in the United States will report physical

abuse, sexual abuse, or stalking by an intimate

partner. Violence Prevention: Fast Facts, Ctrs. for

Disease Control & Prevention (Oct. 11, 2022),

https://www.cdc.gov/violenceprevention/intimatepart

nerviolence/fastfact.html.

One in five homicide

victims are killed by an intimate partner; and over

half of female homicide victims are killed by a current

or former male intimate partner. Id.

In the modern era, federal, state, and local

governments have increasingly recognized this

problem, and have sought to address it by adopting

20

laws and policies aimed at providing protections and

support for victims and their families.

These

measures range from increased social services and

shelter, to reducing discriminatory treatment in the

legal system. See generally The White House, U.S.

National Plan to End Gender-Based Violence:

Strategies

for

Action

(May

2023),

https://www.whitehouse.gov/wpcontent/uploads/2023/05/National-Plan-to-EndGBV.pdf.

One key legal mechanism all states now offer to

persons who have suffered domestic violence is the

option of a civil restraining or protective order. See

Am. Bar Ass’n, Domestic Violence Civil Protection

(updated

June

2020),

Orders

https://www.americanbar.org/content/dam/aba/admin

istrative/domestic_violence1/Resources/charts/cpo202

0.pdf. Since the 1970s, states have authorized those

who experience domestic violence to seek such orders

on behalf of themselves and their children. The civil

restraining order process is usually separate from the

criminal system and provides an alternate pathway

for the state to recognize that an individual has

experienced violence and abuse and to provide her

with affirmative legal protection. Sally F. Goldfarb,

Reconceiving Civil Protection Orders for Domestic

Violence: Can Law Help End the Abuse Without

Ending the Relationship?, 29 Cardozo L. Rev. 1487,

1506 (2008). Studies show these restraining orders

are effective. See, e.g., Christopher T. Benitez, et al.,

Do Protection Orders Protect?, 38 J. Am. Acad. Psych.

Law 376, 385 (Sept. 2010).

21

A restraining order by itself, however, does not

guarantee safety for victims of domestic violence and

their children. Some victims face particular danger

when they attempt to leave their partners, including

in retaliation for seeking and obtaining a protective

order. One study found that approximately one-third

of domestic violence homicides occur within one month

of a restraining order being issued, and just under

one-fifth occur within two days. K.A. Vittes & S.B.

Sorenson, Restraining Orders Among Victims of

Intimate Partner Homicide, 14 Inj. Prevention 191,

193 (2008).

Temporarily disarming those who pose a

specific threat of domestic violence reduces the use of

firearms in such incidents, and in particular reduces

homicides. For example, after Congress restricted

gun possession by individuals convicted of

misdemeanor domestic violence, the policy was

associated with a 17% reduction in deaths of women

at the hands of their intimate partners. Philip J. Cook

& John Donohue, Saving Lives by Regulating Guns:

Evidence for Policy, 358 Sci. 1259, 1261 (2017). Other

studies point to similar results. See, e.g., Carolina

Diez, et al., State Intimate Partner Violence-Related

Firearms Laws and Intimate Partner Homicide Rates

in the United States, 1991 to 2015, 167 Annals

Internal Med. 536, 541 (2017) (intimate partner

homicide rates 14% lower in states with such laws).

The heightened risks that guns pose in domestic

violence situations, and the increased risk of violence

when a victim seeks a restraining order, thus provide

sound policy bases for temporarily disarming those

22

against whom a domestic violence order has been

issued.

Critically, these legislative restrictions on

firearms possession do not operate only, or even

principally, as after-the-fact criminal sanctions. That

is the case even for the felony statute at issue in this

case. Piggybacking off the substantive prohibition

embodied in Section 922(g)(8), Congress has directed

the federal government to take steps to ensure that

domestic violence restraining orders are promptly

incorporated into the background check system and

has provided funding to allow States to include such

orders in the databases used for background checks.

See 34 U.S.C. §§ 40903(1), 40911(b)(3)(c)(i),

40913(b)(5), 40941(a). This federal background-check

restriction has resulted in more than 77,000 denials of

gun purchases since its creation in 1998, including

over 3,800 such denials in 2021 alone; U.S. Dep’t of

Justice, Fed. Bureau of Investigation, Crim. Justice

Info. Servs. Div., Federal Denials, at 1 (2023),

https://www.fbi.gov/file-repository/federal_denials

.pdf/view; U.S. Dep’t of Justice, Fed. Bureau of

Investigation, Crim. Justice Info. Servs. Div.,

National Instant Criminal Background Check System

Operational Report 2020-2021, at 19 (Apr. 2022),

https://www.fbi.gov/file-repository/nics-2020-2021operations-report.pdf/view. Some states have enacted

their own, similar laws prohibiting acquisition or

possession of firearms—and requiring their

relinquishment—when an order is issued. See Who

Can Have a Gun: Domestic Violence & Firearms,

Giffords L. Ctr., https://giffords.org/lawcenter/gun23

laws/policy-areas/who-can-have-a-gun/domesticviolence-firearms/. Under the reasoning of the Court

of Appeals, all of these restrictions would fall.

B.

Regulating Gun Possession Exclusively

Through After-the-Fact Domestic Violence

Felony Prosecutions Is No Substitute

Firearms restrictions imposed on the basis of

civil restraining orders offer victims of domestic abuse

substantial benefits over restrictions imposed on the

basis of a felony criminal prosecution. Chief among

these, the civil restraining order system gives victims

agency: It allows them to decide when and how to file

for an order, securing protection without waiting for

the possibility of action by a local prosecutor (who

typically maintains considerable charging discretion).

By the same token, felony proceedings typically take

longer to initiate, leaving at-risk individuals without

immediate redress from often-urgent threats. And,

because women have more control over the civil

process, they can choose to discontinue cases if that

best serves their needs.

Moreover, a significant percentage of women

who experience domestic violence refrain from

pursuing criminal charges altogether. See generally

Leigh Goodmark, Nt’l Domestic Violence Hotline, Law

Enforcement Experience Report: Domestic Violence

Survivors’ Survey Regarding Interaction with Law

Enforcement (2022), https://www.thehotline.org/wpcontent/uploads/media/2022/09/2209-HotlineLES_FINAL.pdf. Individuals who allege domestic

violence often encounter hostility and bias from law

24

enforcement, including in the form of officials who

minimize or dismiss the gravity of the abuse they have

suffered. Others even face abuse and neglect charges

themselves when they file reports. Alaina Richert,

Note, Failed Interventions: Domestic Violence,

Human Trafficking, and the Criminalization of

Survival, 120 Mich. L. Rev. 315, 322-23 (2021). Some

may worry that pursuing felony prosecution will only

magnify the harms they are already experiencing by

jeopardizing their family’s economic security, severing

a parent-child relationship, or inflicting further

violence through incarceration. In short, imposing

firearms restrictions against those who commit

domestic violence solely on the basis of felony

prosecutions would not provide nearly the level of

protection that civil restraining orders offer.

*

*

*

The court below ruled that lawmakers cannot

disarm individuals who the court has found pose a

specific threat of domestic violence to a family

member. Its reasoning would short-circuit important

federal and state measures to reduce the incidence

and severity of domestic violence, leaving no adequate

alternative in their stead.

The Second Amendment does not require that

remarkable result. This Court instructed in Bruen

that firearms restrictions can be a valid public policy

response to societal problems that historically lacked

legislative urgency, as is precisely the case with

domestic violence.

Because history supplies

numerous analogous examples of laws denying guns

25

based similarly on individualized findings of threat to

others, the Court can and should reverse—without

relying on the sweeping assertion of authority the

United States has advanced here.

CONCLUSION

For the foregoing reasons, the decision of the

court of appeals should be reversed.

DATED: August 21, 2023

Respectfully submitted,

Sandra S. Park

Ria Tabacco Mar

Jennesa Calvo-Friedman

Louise Melling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street,

18th Floor

New York, NY 10004

David D. Cole

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, D.C. 20005

Evelyn Danforth-Scott

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94102

26