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

Supreme Court briefAug 21, 2023

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Text

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 FOR THE CITY OF NEW YORK

AND FOURTEEN OTHER CITIES AND

COUNTIES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

————

RICHARD DEARING*

CLAUDE S. PLATTON

ELINA DRUKER

CHASE H. MECHANICK

*Counsel of Record

HON. SYLVIA O. HINDS-RADIX

Corporation Counsel of the

City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Amicus Curiae

City of New York

(Counsel listing continues on signature pages.)

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

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE AND

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

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

I. BRUEN’S

APPLICATION

HERE

SHOULD

ACCOUNT

FOR

OUR

HISTORICAL BLINDNESS TOWARD,

AND THE INCREASED ACUTENESS

OF, THE DANGERS OF DOMESTIC

VIOLENCE. ..............................................

A. Domestic violence was not perceived

as a societal problem at the Founding

or long after. ........................................

B. Dramatic technological changes have

transformed the role of firearms in

domestic violence. ................................

II. SECTION 922(g)(8) IS ANALOGOUS TO

SUBSTANTIAL

BODY

HISTORICAL LAWS ................................

A. The statute’s burdens are comparable

to those imposed by historical laws ....

B. The statute’s justification is comparable to that of historical laws ........

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

ADDITIONAL COUNSEL ..................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Barrett v. United States,

423 U.S. 212 (1976) ...................................

Bradley v. State,

1 Miss. 156 (1824) .....................................

5, 6

Cheff v. Schnackenberg,

384 U.S. 373 (1966) ...................................

Cooper v. State,

26 Tex. Ct. App. 575 (Tex. App. 1888) .....

Greer v. Greer,

516 N.Y.S.2d 214 (N.Y. App. Div. 1987) ..

Folajtar v. Atty. Gen.,

980 F.3d 897 (3d Cir. 2020) ......................

Kanter v. Barr,

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

Klobuchar v. Purdue Univ.,

553 N.E.2d 169 (Ind. App. 1990) ..............

McCulloch v. Maryland,

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

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

142 S. Ct. 2111 (2022) .................... 3-6, 9, 10, 15

Or. Firearms Fed’n v. Kotek,

No. 2:22-cv-01815, 2023 U.S. Dist.

LEXIS 121299 (D. Or. Jul. 14, 2023) ....... 9, 10

Poor v. Poor,

8 N.H. 307 (1836) ......................................

Richards v. Richards,

1 Grant 389 (Pa. 1857)..............................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Simpson v. Simpson,

473 So.2d 299 (Fla. App. 1985) .................

State v. Black,

60 N.C. 266 (1864) ....................................

5, 6

State v. Buckley,

2 Del. 552 (1838) .......................................

State v. Hussey,

44 N.C. 123 (N.C. 1852) ............................

Stimmel v. Sessions,

879 F.3d 198 (6th Cir. 2018) .....................

United States v. Holden,

70 F.4th 1015 (7th Cir. 2023) ...................

STATUTES

18 U.S.C. § 922(g)(8)... 2-4, 8, 10, 11, 15-17, 21, 24

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

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, Tit.

XI, § 110401(b)(3), 108 Stat. 1796, 2014

(Sept. 13, 1994) .........................................

D.C. 27 Stat. 116, ch. 159, § 4 (1892),

https:// perma.cc/EH9V-7RN9 ..................

TABLE OF AUTHORITIES—Continued

Page(s)

Fla. Act of Feb. 12, 1885, ch. 3620, §§ 1, 3,

Fla. Rev. Stat. tit. 2, pt. 5, § 2421, § 2424

(1892) .........................................................

1882 Md. Laws 257.......................................

1890 Md. Laws 297.......................................

N.J. Act of Dec. 21, 1771, An Act for the

preservation of deer and other game, and

to prevent trespassing with guns, § 3,

1771 N.J. Laws 343, 344, reprinted in

Laws of the State of New Jersey

(Trenton, N.J.: Joseph Justice, 1821),

https://perma.cc/B8H7-XV 77 ...................

1756-1776 N.C. Sess. Laws 168, An Act To

Amend An Act Entitled, “An Additional

Act To An Act, Entitled, An Act To

Prevent Killing Deer At Unreasonable

Times, And For Putting A Stop To Many

Abuses Committed By White Persons

Under Pretense Of Hunting,” (1768),

https://perma.cc/5T2Q-FSMD...................

R.I. Offences Against Public Policy, §§ 23,

24, in General Laws of the State of Rhode

Island and Providence Plantations to

Which are Prefixed the Constitutions of

the United States and of the State (1896),

https://perma.cc/9D99-BXGD ...................

Tex. Act of Apr. 12, 1871, An Act to

Regulate the Keeping and Bearing of

Deadly Weapons, ch. 34, § 1, 1871 Tex.

Gen. Laws 25, https://perma.cc/G35WPB3F ..........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

1852 Va. Acts 133 .........................................

Va. Offences Against the Peace, § 3780,

reprinted in The Code of Virginia: With

the Declaration of Independence and the

Constitution of the United States; and

the Constitution of Virginia (1887),

https://perma.cc/ 6J6U-XHP6 ...................

1883 Wis. Sess. Laws 713, An Act to Revise,

Consolidate And Amend The Charter Of

The City Of Oshkosh[, WI], The Act Incorporating The City, And The Several Acts

Amendatory Thereof, ch. 6, § 3, pt. 56 .....

1883 Wis. Sess. Laws 1017, An Act To

Incorporate The City of Nicolet[, WI], §

32, pt. 45 ....................................................

MUNICIPLE CODES AND ORDINANCES

An Ordinance for Prohibiting the Firing of

Guns in the Town of Columbia (1817),

reprinted in Ordinances of the Town of

Columbia[, SC], Passed Since the

Incorporation of Said Town: To Which

are Prefixed, the Acts of the General

Assembly, for Incorporating the Said

Town, and Others in Relation Thereto

(1823), https://perma.cc/XRE6-PQHA ......

TABLE OF AUTHORITIES—Continued

Page(s)

An Ordinance to Prohibit the Carrying of

Concealed Weapons, reprinted in The

Watchman and Southron, Sumter, SC

(Jun. 16, 1885), in Library of Congress,

Chronicling America: Historic American

Newspapers ...............................................

An Ordinance to Provide for the Government and Good Order of the City of La

Crosse[, WI] § 15, reprinted in Charter

and Ordinances of the City of La Crosse,

with the Rules of the Common Council

(1888), https://perma.cc/9EUL-5KR8 .......

The Baltimore[, MD] City Code (Vol. 1,

1888), § 742 ...............................................

Carrying Concealed Weapons, ch. 8,

reprinted in The Ordinances of the City

of Norfolk, VA (1894), https://perma.cc/

9J54-EJBG ................................................

Charter and Ordinances of the Town of

Front Royal, VA (1899), https://perma.cc/

LKK5-49FA ...............................................

Concealed Weapons-License § 2 (Jan. 17,

1882), reprinted in The Municipal Code of

Saint Paul[, MN], Revised to December 1,

1884, https://perma.cc/TFT6-QUU2 .........

Laws and Ordinances Governing the Village

of Hyde Park[, IL] (1876), §§ 39, 40 .........

38 R. City of N.Y. § 3-03(f) ...........................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Ordinance Against Concealed Weapons,

reprinted in The Union Times, Union, SC

(Nov. 6, 1896), in Library of Congress,

Chronicling America: Historic American

Newspapers ...............................................

Ordinance No. 22, An Ordinance Relating

to the Promotion of the Public Peace, § 2

(Feb. 7, 1888), reprinted in Charter and

Ordinances of the City of New Ulm[, MN],

(Jos. A. Eckstein ed., 1888), https://per

ma.cc/5PFS-JYP2 ......................................

Ordinances of the City of Nashville, 738741, in Claude Waller, Digest of the

Ordinances of the City of Nashville[, TN],

to Which are Prefixed the State Laws

Incorporating, and Relating to, the City,

with an Appendix Containing Various

Grants and Franchises (1893), https://per

ma.cc/HNN6-R4XG ......................................

Ordinances of the Corporation of Georgetown[,

DC], An Ordinance Prohibiting the

Carrying of Firearms (1859), https://

perma.cc/BD67-NHB7 ..............................

Revised Ordinances of the City of Danville[,

IL] (1883), https://perma.cc/RW9P-J4HN ....

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Aaron Edward Brown, This Time I’ll Be

Bulletproof: Using Ex Parte Firearm

Prohibitions to Combat Intimate Partner

Violence, 50 COLUM. HUMAN RIGHTS L.

REV. 159 (2019) .........................................

Adeola Olaguju, Thirteenth Annual Gender

And Sexuality Law: Annual Review

Article: Domestic Violence, 13 GEO. J.

GENDER & L. 203 (2012) ............................ 5, 7, 8

Alexandria Gazette, Alexandria, DC

(Sept. 3, 1853), in Library of Congress,

Chronicling America: Historic American

Newspapers ...............................................

Alexis Stevens, Slain Jackson County deputy

‘didn’t back down from anything,’ THE

ATLANTA JOURNAL-CONSTITUTION (updated

Nov. 15, 2021), https://perma.cc/D5G33CK5 ..........................................................

Amy E. Bonomi et al., Health Care

Utilization and Costs Associated with

Physical and Nonphysical-Only Intimate

Partner Violence, HEALTH SERV. RES.,

Vol. 44, No. 3 (Jun. 2009), https://perma.

cc/D5WX-9XN6..........................................

Archibald Henderson, The Treaty of Long

Island of Holston, NORTH CAROLINA

HISTORICAL REVIEW, Vol. 8, No. 1 (1931) ....

TABLE OF AUTHORITIES—Continued

Page(s)

Baltimore City Mayor’s Office of Neighborhood Safety and Engagement Victim

Services Team, https://perma.cc/79AVM2R7 (captured Aug. 17, 2023 9:51 am) .....

Bill Hutchinson, Suspect in triple killing at

Chicago hospital had confronted doctor

who broke off their engagement: Officials,

ABC NEWS (Nov. 20, 2018), https://perm

a.cc/B8 HV-47SZ .......................................

Cassandra Kercher et al., Homicides of law

enforcement officers responding to

domestic disturbance calls, 19 INJURY

PREVENTION 331 (2013) ............................

Cate Cauguiran, Chicago police officer shot,

killed in Gage Park, ABC NEWS (Mar. 1,

2023), https://perma.cc/RTW8-W9QK ......

‘Christmas Miracle’: NYPD Officer Home

After Being Shot In The Back In Brooklyn

On Christmas Eve; Suspect In Custody,

CBSNEWS (Dec. 25, 2020), https://perma.

cc/W83H-T47L...........................................

City of Chicago, Family & Support Services,

Division on Domestic Violence, https://

perma.cc/BU27-MAJS (captured Aug. 18,

2023 11:57 am) ..........................................

The Daily Republic, Washington, DC,

(Aug. 25, 1853), in Library of Congress,

Chronicling America: Historic American

Newspapers ...............................................

TABLE OF AUTHORITIES—Continued

Page(s)

The Republic, Washington DC (June 1,

1853),

Library

Congress,

Chronicling America: Historic American

Newspapers ...............................................

Deborah Epstein, Effective Intervention in

Domestic Violence Cases: Rethinking the

Roles of Prosecutors, Judges, and the

Court System, 11 YALE J.L. & FEMINISM 3

(1999) ......................................................... 7, 18

Effects of domestic violence on children,

U.S. Dep’t of Health & Human Services,

Office on Women’s Health, https://perma.

cc/L5TL-7X88 (captured Aug. 17, 2023

9:26 am) .....................................................

Elizabeth Richardson Vigdor & James A.

Mercy, Do Laws Restricting Access to

Firearms by Domestic Violence Offenders

Prevent Intimate Partner Homicide?, 30

EVALUATION REV. 313 (2006) ....................

Ellen Ridley et al., Domestic Violence

Survivors At Work: How Perpetrators

Impact Employment, Maine Dep’t of

Labor & Family Crisis Services (2005),

https://perma.cc/HHL9-7E 3Y ..................

Emily J. Sack, Battered Women and the

State: The Struggle for the Future of

Domestic Violence Policy, 2004 WIS. L.

REV. 1657 (2004) .......................................

7, 8

TABLE OF AUTHORITIES—Continued

Page(s)

Emily J. Sack, Domestic Violence Across

State Lines: The Full Faith and Credit

Clause, Congressional Power, and Interstate Enforcement of Protection Orders,

98 NW. U. L. REV. 827 (2004) ....................

7, 8

Firearms, HISTORY.COM (Mar. 27, 2023),

https://perma.cc/3SRN-F96G ....................

G. Marie Wilt et al., Domestic Violence and

the Police: Studies in Detroit and Kansas

City (1977), https://perma.cc/8HDT-YXU8 ..

George Wattendorf, Prosecuting Cases

Without Victim Cooperation, FBI Law

Enforcement Bulletin (April 1996),

https://perma.cc/U6PN-BQ9Z ...................

Guns and Violence Against Women: America’s

Uniquely Lethal Intimate Partner Violence Problem, EVERYTOWN FOR GUN

SAFETY (Apr. 10, 2023), https://perma.

cc/92VN-AQWH ........................................

Hannah Brenner, Transcending the Criminal

Law’s “One Size Fits All” Response to

Domestic Violence, 19 WM. & MARY J. OF

WOMEN & L. 301 (2013) ............................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Jim Supica, A Brief History of Firearms,

NRA MUSEUMS, https://perma.cc/AS3GDBRY (captured Aug. 14, 2023 1:23 am) .....

Justine Verastigue, Coverage: Remembering,

honoring Las Vegas police officer Truong

Thai, KTNV LAS VEGAS (updated Oct. 17,

2022), https://perma.cc/5X39-XCA8 .........

Los Angeles City Attorney, Domestic Violence,

https://perma.cc/Y8QX-SJKY (captured

Aug. 18, 2023 11:59 am) ...........................

Los Angeles City Attorney’s Domestic

Violence Policy, in Prosecutors Against

Gun Violence & The Consortium for RiskBased

Firearm

Policy,

Firearm

Removal/Retrieval in Cases of Domestic

Violence (Feb. 2016), https://perma.cc/X2

4M-V8JC ...................................................

Marlene Lenthang, Domestic Violence shootings affect more than just partners, ABC

NEWS (May 19, 2021), https://perma.cc/

8ZX4-SJA3 ................................................

National Law Enforcement Officers Memorial Fund, 2023 Mid-Year Preliminary

Law Enforcement Officers Fatalities Report

(2023), https://perma.cc/6STT-68NJ ........ 18, 19

Nick Breul & Mike Keith, Deadly Calls and

Fatal Encounters (2016) ...........................

NYC Criminal Justice, https://perma.cc/

37W7-DPMY .............................................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

New York City Mayor’s Office to End

Domestic and Gender-Based Violence,

https://perma.cc/PQU5-HTN4 (captured

Aug. 15, 2023 7:52 pm) .............................

Pamela Haag, Gunning of America:

Business and the Making of American

Gun Culture (2016) ...................................

Rachel J. Voth Schrag & Tonya Edmond,

School sabotage as a form of intimate

partner violence: provider perspectives,

AFFILIA: FEMINIST INQUIRY IN SOCIAL

WORK, Vol. 32, No. 2 (2017) ......................

Riverside Sheriff’s deputy Darnell Calhoun

dies after being shot in Lake Elsinore;

suspect arrested, CBS LOS ANGELES

(updated Jan. 14, 2023), https://perma.cc/

WL35-ZPSE ...............................................

The Roanoke Times, Roanoke, VA (Feb. 24,

1892), Library of Congress, Chronicling

America: Historic American Newspapers

Saint Paul Daily Globe, Saint Paul, MN

(Mar. 29, 1883), Library of Congress,

Chronicling America: Historic American

Newspapers ...............................................

San Francisco Domestic and Family

Violence Resources, https://perma.cc/2YS

5-4MVK (captured Aug. 17, 2023 11:31

pm) .............................................................

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Sierra Smucker, Effects of Prohibitions

Associated with Domestic Violence on

Violent Crime, RAND CORPORATION

(updated Jan. 10, 2023), https://perma.cc/

N3VN-FMAX .............................................

Two Cops Shot in Queens Responding to

Domestic Violence Case; Suspect Dead,

NBC NEW YORK (Nov. 24, 2020), https://

perma.cc/LXS4-EGXC...............................

Urban Institute, Los Angeles County

Women’s Needs Assessment (July 2023),

perma.cc/6KVQ-BQTY ..............................

U.S. Comm’n on Civil Rights, Under the

Rule of Thumb: Battered Women and the

Administration of Justice (Jan. 1982) ......

5, 7

U.S. Conference of Mayors, Hunger and

Homelessness Survey (Dec. 2016), https://

perma.cc/79JB-J3NW ...............................

1 W. Blackstone, Commentaries on the

Laws of England (1765) ............................

The Washington Times, Washington, DC

(May 29, 1895)...........................................

INTEREST OF AMICUS CURIAE

AND SUMMARY OF ARGUMENT

Amici, 15 of the nation’s largest local governments,1

are on the front lines of battling America’s domesticviolence epidemic. Each year, over 12 million

Americans suffer rape, physical violence, or stalking

at the hands of an intimate partner. The devastation

wrought to victims and their loved ones is plain.

Perhaps less obvious is the far-reaching and longlasting damage such violence causes to our

communities more broadly.

On both scores, amici have a powerful interest in

ensuring that local, state, and federal policy tools

remain available to prevent and address domestic

violence in our communities. Local governments

commit substantial resources to fight domestic

violence and provide critical services to survivors. Our

law-enforcement officers place themselves at risk to

intervene in rapidly unfolding and explosive domestic

incidents. And in the aftermath, local governments

assume key roles in providing redress and preventing

further violence. Our police officers and childprotection case workers appear in criminal and family

courts. Our social-services representatives visit homes

and meet with abusers and survivors, often in

emotionally charged encounters. Survivors and their

families turn to our publicly run shelters and publichousing facilities and work with our social workers,

Amici are the Cities of New York, New York; Baltimore,

Maryland; Boston, Massachusetts; Chicago, Illinois; Indianapolis,

Indiana; Los Angeles, California; Minneapolis, Minnesota;

Philadelphia, Pennsylvania; Portland, Oregon; Sacramento,

California; and Syracuse, New York; the City and County of San

Francisco, California; and the Counties of Los Angeles,

California; King, Washington; and Santa Clara, California.

mental-health professionals, and child-protection and

foster-care agencies.

Amici know from experience that 18 U.S.C.

§ 922(g)(8) and state-law counterparts serve as key

tools in curbing the dangers of domestic violence—not

just for survivors, but for law enforcement and other

government actors and our communities beyond.

Amici can also confirm that the presence of firearms

greatly amplifies the dangers of domestic encounters.

Nearly half of all murders of women are perpetrated

by an intimate partner; the presence of a gun

corresponds to a fivefold increase in that risk and

makes multiple fatalities exponentially more likely.

Research shows that laws prohibiting individuals

subject to domestic-violence protective orders from

owning guns significantly decrease intimate-partner

homicides. They also lessen the perils for the

thousands of police officers who respond to domestic

disturbance calls each day. And those perils are very

real: so far in 2023, more officers have been fatally

shot responding to domestic-disturbance calls than in

any other category of law-enforcement activity.

The Solicitor General has illuminated the throughline connecting historical firearms regulations to Section 922(g)(8). The Fifth Circuit missed the connection,

positing an artificial dichotomy between firearm

regulations that protect “society generally” and those

that merely protect “identified individuals” (Pet. App.

24a)—and placing laws addressing domestic violence

in the latter category. Victims of domestic violence,

however, are not a special-interest group. Their plight

reverberates through families and across our communities, affecting law enforcement, economies,

healthcare networks, education, and social services.

More than that, the notion that domestic violence is a

private and not public concern is reminiscent of

attitudes that allowed it to go unaddressed in this

country for centuries.

Amici support the full sweep of the Solicitor

General’s showing that Section 922(g)(8) is consistent

with the Second Amendment under New York Rifle &

Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). We write

here to highlight two specific points. First, this case

crystallizes Bruen’s observation that “the Founders

created a Constitution—and a Second Amendment—

‘intended to endure for ages to come, and consequently, to be adapted to the various crises of human

affairs.’” Id. at 2132 (quoting McCulloch v. Maryland,

17 U.S. 316 (1819)). Our historical tradition reflects an

alarming blindness to the dangers of domestic violence

and the need for concerted governmental efforts to

respond to and prevent it. Any reasonable Second

Amendment analysis must account for that reality in

a manner that embraces—rather than frustrates—our

profound civic, societal, and moral progress on the

issue. Second, when that backdrop is appropriately

considered—and, frankly, even if it is not—Section

922(g)(8) falls comfortably within our Nation’s history

of removing firearms from the hands of dangerous,

non-law abiding people who threaten public safety and

welfare.

ARGUMENT

I. BRUEN’S APPLICATION HERE SHOULD

ACCOUNT FOR OUR HISTORICAL BLINDNESS TOWARD, AND THE INCREASED

ACUTENESS OF, THE DANGERS OF

DOMESTIC VIOLENCE.

Where a contemporary firearm regulation burdens

conduct covered by the plain text of the Second

Amendment, its validity turns on whether it is

“consistent with the Nation’s historical tradition of

firearm regulation.” Bruen, 142 S. Ct. at 2130. The

inquiry’s touchstone is “reasoning by analogy,” which

entails discerning whether a contemporary regulation

and its antecedents are “relevantly similar.” Id. at

2132-33. A “historical twin” is not required. Id. at

2133. And as the Solicitor General has shown (at 1336), by any reasonable measure, Section 922(g)(8)

fits well within the historical tradition of disarming

individuals who are not “responsible” and “lawabiding.”

That conclusion is only further reinforced by considering the vast social—and technological—changes

involving domestic violence that have occurred since

the Founding and Reconstruction eras. Bruen itself

points the way on that score, noting that where a

regulation implicates “unprecedented societal concerns or dramatic technological changes,” the historical record must be examined with particular

“nuance[].” 142 S. Ct. at 2132.

That nuanced treatment is starkly called for here.

While domestic violence has always existed, a

comprehensive response to the threat of firearm use in

domestic violence would have been “unimaginable at

the Founding.” Id. at 2133. Our nation has seen vast

transformations in social and legal attitudes toward

abuse that takes place behind closed doors, as well as

pronounced new risks that modern firearms have

introduced in domestic-violence settings.

A. Domestic violence was not perceived as a

societal problem at the Founding or long

after.

In simple terms, domestic violence was not generally “perceived” as a “societal problem” by the

Founding or Reconstruction generations. Bruen, 142

S. Ct. at 2132. Instead, for much of our Nation’s

history, it was largely viewed as a private matter not

requiring a coordinated societal or governmental

response.

Since before the Founding, the legal system tolerated domestic violence under various legal theories.2

While the law generally condemned spousal assault in

its extremes and sometimes punished it, see, e.g., State

v. Buckley, 2 Del. 552, 552 (1838); Bradley v. State, 1

Miss. 156, 158 (1824), courts routinely avoided holding

abusers accountable and prevented women from

escaping violent marriages. Some courts relied on the

so-called right of chastisement, which allowed a

husband to use a shocking degree of violence “as is

necessary to control an unruly temper and make [his

wife] behave herself.” State v. Black, 60 N.C. 266, 267

(1864) (husband may pull his wife to the floor by

her hair during an argument); see 1 W. Blackstone,

Commentaries on the Laws of England 433 (1765).

See U.S. Comm’n on Civil Rights [“USCCR”], Under the Rule

of Thumb: Battered Women and the Administration of Justice 2

(Jan. 1982); Adeola Olaguju, Thirteenth Annual Gender and

Sexuality Law: Annual Review Article: Domestic Violence, 13

GEO. J. GENDER & L. 203, 206 (2012).

Others invoked spousal privilege to deny women the

right to testify about their abusers. State v. Hussey,

44 N.C. 123, 127 (1852). And some courts denied

petitions for divorce on the grounds that wives

“provoked” domestic abuse, Poor v. Poor, 8 N.H. 307,

311-13 (1836), or that the abuse was not severe enough

to jeopardize the woman’s “life or health,” Richards v.

Richards, 1 Grant 389, 392-93 (Pa. 1857).

These doctrines were animated by the widely held

belief that domestic violence was a private matter,

rather than a “societal” problem. Cf. Bruen, 142 S. Ct.

at 2131. Courts reasoned that it was generally not the

state’s role to look behind the curtain and intrude into

the private, domestic sphere. See, e.g., Black, 60 N.C.

at 267; Richards, 1 Grant at 393; Bradley, 1 Miss. at

158.

While early historical records about informal

intervention into domestic violence are limited, it

appears that some officials did on occasion act to

disarm abusers in extreme circumstances. Reports of

at least one such antebellum case are preserved in

national newspaper accounts of the time because

the husband, Daniel T. Woodward, was eventually

executed for murdering his wife, Catherine.3 Before

the murder, Daniel had been arrested for “excessive

cruelty” towards Catherine, and a local justice had

directed that he be disarmed as a condition of

In 1853, Woodward was found guilty of murder and hung

after President Pierce refused to pardon him. See The Daily

Republic, Washington, DC, (Aug. 25, 1853), Images 3, in

Chronicling America; Alexandria Gazette, Alexandria, DC

(Sept. 3, 1853), Image 2, in Library of Congress, Chronicling

America: Historic American Newspapers [“Chronicling America”].

dismissing charges and releasing him from custody.4

Although the justice ordered “that he would surrender

his pistols” and that “some person should stay” at the

family home to protect Catherine overnight, followthrough was lacking, and Daniel fatally shot

Catherine the next day.5 Thus, the episode mainly

reads today as an early but unheeded cautionary tale

about the acute dangers that arise when domestic

violence and firearms mix.

Such anecdotal accounts aside, state intervention

into matters of domestic violence was minimal until

well into the 20th century. Few states even specifically

banned domestic violence by statute until the late 19th

century.6 And long beyond that time, policies in police

departments and prosecutor’s offices prevented use of

existing legal frameworks to protect victims of

violence.7

It was not until roughly the last half-century that

broad attitudes about the proper role of government

with respect to domestic violence began to shift.8 As a

The Republic, Washington DC (June 3, 1853), Image 3, in

Chronicling America, supra n.3.

Id.; The Republic, Washington, DC (June 1, 1853), Image 3,

in Chronicling America, supra n.3

See Deborah Epstein, Effective Intervention in Domestic

Violence Cases: Rethinking the Roles of Prosecutors, Judges, and

the Court System, 11 YALE J.L. & FEMINISM 3, 10, n.36 (1999);

USCCR, supra n.2, at 2.

See Olaguju, supra n.2 at 206-07; Emily J. Sack, Battered

Women and the State: The Struggle for the Future of Domestic

Violence Policy [“Battered Women”], 2004 WIS. L. REV. 1657,

1662-65 (2004).

See Emily J. Sack, Domestic Violence Across State Lines: The

Full Faith and Credit Clause, Congressional Power, and

pertinent example, the number of jurisdictions with

modern protective-order laws increased from only two

states in 1976 to all 50 states by the mid-1990s.9 Such

orders not only restrained batterers from abusing

their partners, but could also incorporate no-contact

orders and orders pertaining to the custody and

visitation of children, and could be issued either by

civil courts, whether or not criminal proceedings were

being pursued, or by criminal courts.10 Congress’s

enactment of Section 922(g)(8) in 1994 buttressed that

trend at the federal level.11 And, as the Solicitor

General has noted (at 34-35), 48 states and territories

now have analogous laws disarming individuals who

are subject to protective orders. Some municipalities

have adopted similar measures as well.12

These new tools for combatting domestic violence

would have been inconceivable at the Founding or at

Reconstruction, when domestic violence was generally

viewed as a private affair best addressed without

deploying public resources and formal legal systems.

In most cases, the absence of particular regulations is

susceptible of multiple explanations not necessarily

Interstate Enforcement of Protection Orders [“Across State

Lines”], 98 NW. U. L. REV. 827, 833 (2004).

See Sack, Battered Women, supra n.7, at 1667; Sack, Across

State Lines, supra n.8, at 833.

See Olaguju, supra n.2, at 207-210, 226-249; Sack, Across

State Lines, supra n.8, at 843.

Pub. L. 103-322, Tit. XI, § 110401(b)(3), 108 Stat. 1796, 2014

(Sept. 13, 1994).

See, e.g., 38 R. City of N.Y. 3-03(f); Los Angeles City

Attorney’s Domestic Violence Policy, in Prosecutors Against Gun

Violence & The Consortium for Risk-Based Firearm Policy,

Firearm Removal/Retrieval in Cases of Domestic Violence 81-94

(Feb. 2016), https://perma.cc/X24M-V8JC.

indicative of any constitutional difficulty. But here,

there is compelling evidence of a historical blindness

toward the need for governmental intervention to

address domestic violence that affirmatively dispels

any inference from legislative inaction.

B. Dramatic technological changes have

transformed the role of firearms in

domestic violence.

“[D]ramatic technological changes” have also

drastically intensified the dangers arising from

firearms being in the hands of domestic abusers.

Bruen, 142 S. Ct. at 2132. Until well into the 19th

century, it would have been difficult to use a firearm

of the type commonly possessed by civilians to shoot

an intimate partner in the heat of passion.13 But that

started to change beginning with the Industrial

Revolution and the Civil War and continuing through

the turn of the 20th century. In that period, “guns

[went] from primitive flintlocks to the basic systems

that still dominate firearms designs today,” which

can be stored loaded, quickly reloaded, and used to

fire multiple shots.14 Thus, with the advent of massproduced handguns and ammunition, firearms

Early American firearms were typically rifles with flintlock,

matchlock, or occasional wheellock systems, which were difficult

to store loaded and “ready for use,” susceptible to humidity, and

had to be primed and charged with two powders before use. See

Jim Supica, A Brief History of Firearms, NRA MUSEUMS,

https://perma.cc/AS3G-DBRY; see also Or. Firearms Fed’n v.

Kotek, No. 2:22-cv-01815, 2023 U.S. Dist. LEXIS 121299, at *45*49, *51-*55 (D. Or. Jul. 14, 2023).

A Brief History of Firearms, supra n.13.

capable of being readily misused in domestic incidents

became widely accessible to the general public.15

As smaller and more efficient firearms become

easier to use and more broadly owned, they featured

more frequently in domestic incidents—with grave

outcomes for families, communities, and law enforcement. It is estimated that “[b]etween 1776 and 1860,

only ten to fifteen percent of homicides between family

members involved a firearm.”16 In the late 20th century, approximately 60% of intimate-partner homicides were by firearm.17 Thus, not only our recognition

of the need for societal intervention—but the problem

itself—has changed dramatically since the Founding

and Reconstruction eras.

II. SECTION 922(g)(8) IS ANALOGOUS TO A

SUBSTANTIAL BODY OF HISTORICAL

LAWS.

For the above reasons, the historical record should

be reviewed here with a healthy measure of

“nuance[].” Bruen, 142 S. Ct. at 2132. But as the

Solicitor General has shown, even without that

nuance, Section 922(g)(8) easily withstands Second

Amendment scrutiny. The “central considerations”

under Bruen’s historical inquiry are twofold: “whether

Firearms, HISTORY.COM (Mar. 27, 2023), https://perma.cc/

3SRN-F96G (discussing the first mass-produced multi-firing

handguns manufactured by Samuel Colt in the mid-19th

century); Pamela Haag, Gunning of America: Business and the

Making of American Gun Culture, 25, 33 (2016).

Or. Firearms Fed’n, 2023 U.S. Dist. LEXIS 121299, at *49.

Elizabeth Richardson Vigdor & James A. Mercy, Do Laws

Restricting Access to Firearms by Domestic Violence Offenders

Prevent Intimate Partner Homicide?, 30 EVALUATION REV. 313,

313 (2006).

[the] modern historical regulations impose a comparable burden on the right of armed self-defense”

and “whether that burden is comparably justified.”

Id. at 2133 (cleaned up). Because Section 922(g)(8)’s

burdens and justifications are comparable to those

that the Founding and Reconstruction generations found

acceptable, it readily passes constitutional muster.

A. The statute’s burdens are comparable to

those imposed by historical laws.

Section 922(g)(8) is a “‘lineal descendant[]’ of historical laws banning dangerous people from possessing guns.” Kanter v. Barr, 919 F.3d 437, 465 (7th

Cir. 2019) (Barrett, J., dissenting). Its core burden—

prohibiting individuals who are not responsible and

law-abiding from possessing firearms, based on an

individualized finding of dangerous or threatening

conduct—is similar to the burdens imposed by those

precursors.

The Solicitor General (at 13-27) has identified a

robust and consistent historical practice, going back to

the 14th century, of disarming dangerous and nonlaw-abiding individuals. We highlight a few additional

historical examples from state and local governments.

In the Founding era, colonies had laws seizing the

guns of illegal hunters.18 Similarly, two 1777 treaties

See N.J. Act of Dec. 21, 1771 An Act for the preservation of

deer and other game, and to prevent trespassing with guns, § 3

1771 N.J. Laws 343, 344 (providing that non-residents “shall

forfeit his or their gun or guns” as a penalty for illegal hunting),

reprinted in Laws of the State of New Jersey 26 (Trenton, NJ:

Joseph Justice, 1821), https://perma.cc/B8H7-XV77; 1756-1776

N.C. Sess. Laws 168, An Act To Amend An Act Entitled, “An

Additional Act To An Act, Entitled, An Act To Prevent Killing

Deer At Unreasonable Times, And For Putting A Stop To Many

Abuses Committed By White Persons Under Pretense Of

involving Virginia and North Carolina mandated the

forfeiture of firearms illegally brought into Cherokee

territories.19 These early forfeiture provisions reenforce the Solicitor General’s showing (at 16-18) that

gun owners were disarmed at the Founding if they

used firearms irresponsibly or threatened the peace.

Disarmament of individuals who were not lawabiding and responsible continued through the 19th

century at both the state and local levels. Several

states required those in violation of misdemeanor

concealed-carry statutes to surrender their weapons.20

And concealed-carry ordinances punishable by

forfeiture of the weapon were enacted or authorized in

such localities as Washington, DC; Georgetown, DC;

Danville, IL; Hyde Park, IL; Baltimore, MD; St. Paul,

Hunting,” ch. 13 (1768) (providing for “penalty of five pounds and

forfeiture of his gun” for illegal hunting), https://perma.cc/5T2QFSMD.

Archibald Henderson, The Treaty of Long Island of Holston,

NORTH CAROLINA HISTORICAL REVIEW, Vol. 8, No. 1, at 105, 108

(1931) (reprinting two treaties from July 20, 1777 between the

Commonwealth of Virginia and the Cherokee, and the State of

North Carolina and the Cherokee).

Such provisions were enacted in Texas, Tex. Act of Apr. 12,

1871, An Act to Regulate the Keeping and Bearing of Deadly

Weapons, ch. 34, § 1, 1871 Tex. Gen. Laws 25, § 1, https://

perma.cc/G35W-PB3F; Florida, Fla. Act of Feb. 12, 1885, ch.

3620, §§ 1, 3, as codified in Fla. Rev. Stat. tit. 2, pt. 5 (1892)

§§ 2421, 2424; Virginia, Offences Against the Peace, § 3780,

reprinted in The Code of Virginia: With the Declaration of

Independence and the Constitution of the United States; and the

Constitution of Virginia, Page 897, Image 913 (1887), https://

perma.cc/6J6U-XHP6; and Rhode Island, Offences Against

Public Policy, §§ 23, 24, in General Laws of the State of Rhode

Island and Providence Plantations to Which are Prefixed the

Constitutions of the United States and of the State, Page 10101011, Image 1026-1027 (1896), https://perma.cc/9D99-BXGD.

MN; New Ulm, MN; Sumter, SC; Union, SC; Nashville,

TN; Norfolk, VA; Front Royal, VA; La Crosse, WI;

Nicolet, WI; and Oshkosh, WI.21 State and local

27 Stat. 116, ch. 159, § 4 (1892) (Washington, DC),

https://perma.cc/EH9V-7RN9; Ordinances of the Corporation of

Georgetown[, DC], An Ordinance Prohibiting the Carrying of

Firearms (1859), https://perma.cc/BD67-NHB7; Revised Ordinances

of the City of Danville[, IL], Page 66, Image 133 (1883), https://

perma.cc/RW9P-J4HN; Concealed Weapons-License § 2 (Jan. 17,

1882), reprinted in The Municipal Code of Saint Paul[, MN],

Revised to December 1, 1884, at 289, https://perma.cc/TFT6QUU2; Laws and Ordinances Governing the Village of Hyde

Park[, IL] 64 (1876), §§ 39, 40; The Baltimore[, MD] City Code

(Vol. 1, 1888), § 742; Ordinance No. 22, An Ordinance Relating to

the Promotion of the Public Peace, § 2 (Feb. 7, 1888), reprinted in

Charter and Ordinances of the City of New Ulm[, MN] 110-11 (Jos.

A. Eckstein ed., 1888), https://perma.cc/5PFS-JYP2; An Ordinance to

Prohibit the Carrying of Concealed Weapons, reprinted in The

Watchman and Southron, Sumter, SC (Jun. 16, 1885), Image 2,

in Chronicling America, supra n.3; Ordinance Against Concealed

Weapons, reprinted in The Union Times, Union, SC (Nov. 6,

1896), Image 5, in Chronicling America, supra n.3; Ordinances of

the City of Nashville[, TN], § 738-741, in Claude Waller, Digest

of the Ordinances of the City of Nashville, to Which are Prefixed

the State Laws Incorporating, and Relating to, the City, with an

Appendix Containing Various Grants and Franchises Page 364365, Image 372-373 (1893), https://perma.cc/HNN6-R4XG; Carrying

Concealed Weapons, ch. 8, reprinted in The Ordinances of the

City of Norfolk, VA (1894), https://perma.cc/9J54-EJBG; Charter

and Ordinances of the Town of Front Royal, VA, Page 18, Image

18 (1899), https://perma.cc/LKK5-49FA; An Ordinance to Provide

for the Government and Good Order of the City of La Crosse[, WI],

§ 15, reprinted in Charter and Ordinances of the City of La

Crosse, with the Rules of the Common Council, Page 176, Image

179 (1888), https://perma.cc/9EUL-5KR8; 1883 Wis. Sess. Laws

713, An Act to Revise, Consolidate And Amend The Charter Of

The City Of Oshkosh[, WI], The Act Incorporating The City, And

The Several Acts Amendatory Thereof, ch. 6, § 3, pt. 56; 1883 Wis.

Sess. Laws 1017, An Act To Incorporate The City of Nicolet[, WI],

§ 32, pt. 45.

governments also maintained public safety by

punishing individuals found guilty of various other

nonfelony offenses, such as unlawful hunting or

firearm discharge, by confiscating their arms.22

This history shows that a felony conviction was not

required to disarm individuals considered threats to

public safety. All of the laws cited in the preceding

paragraph were punishable by no more than a fine

or, at most, six months’ imprisonment. Such “petty

offenses,” at common law, could be punished by

summary trial without a jury. Cheff v. Schnackenberg,

384 U.S. 373, 379 (1966). The local laws cited above

appear to have been tried summarily.23 In this way,

See, e.g., 1852 Va. Acts 133 (forfeiture of gun used for illegal

hunting, or 30 days’ jail if the gun was not forfeited); 1882 Md.

Laws 257 (fine and forfeiture of firearms used in illegal hunting);

Cooper v. State, 26 Tex. Ct. App. 575, 576 (Tex. App. 1888) (fine

and forfeiture of firearms carried to an election precinct on

election day) (citing 1879 Tex. Crim. Stat. tit. IX, Ch. 4, art. 320);

1890 Md. Laws 297 (fine and forfeiture of firearms discharged on

Sunday); An Ordinance for Prohibiting the Firing of Guns in the

Town of Columbia (1817), reprinted in Ordinances of the Town of

Columbia [SC], Passed Since the Incorporation of Said Town: To

Which are Prefixed, the Acts of the General Assembly, for

Incorporating the Said Town, and Others in Relation Thereto,

Page 61-61, Image 61-62 (1823), https://perma.cc/XRE6-PQHA

(fine and forfeiture of firearms discharged in defined areas of the

city).

See, e.g., Saint Paul Daily Globe, Saint Paul, MN (Mar. 29,

1883), Page 8, Image 9, in Chronicling America, supra n.3 (judge

ordered man accused of carrying concealed revolver to pay $15

and forfeit the weapon); The Roanoke Times, Roanoke, VA, Page

4, Image 4 (Feb. 24, 1892), in Chronicling America, supra n.3 (one

day after man drew pistol on his wife, he appeared before a justice

of the peace, who fined him $10 and ordered the pistol be

confiscated); The Washington Times, Washington, DC (May 29,

1895), Page 6, Image 6, in Chronicling America, supra n.3 (judge

the aforementioned laws imposed burdens comparable

to if not more onerous than Section 922(g)(8), which

requires a hearing but not a full-blown criminal trial.

See 18 U.S.C. § 922(g)(8)(A).

B. The statute’s justification is comparable

to that of historical laws.

Section 922(g)(8) is also “comparably justified” to the

cited historical laws. Bruen, 142 S. Ct. at 2133. Both

rest on the enduring precept that “[g]overnments may

keep firearms out of the hands of dangerous people

who are apt to misuse them.” United States v. Holden,

70 F.4th 1015, 1017 (7th Cir. 2023) (Easterbrook, J.).

Like its antecedents, Section 922(g)(8) aims to protect

public safety by disarming individuals who are

dangerous or not law abiding. In particular, individuals subject to Section 922(g)(8) pose acute physical

dangers to victims, their families, and governmental

employees, including law enforcement and socialservices providers, and also cause diffuse societal

harms that are felt by the public more broadly.

1. Section 922(g)(8)’s primary justification is to

prevent harm to victims of domestic abuse and their

loved ones. Possessing a firearm makes domestic

abusers five times more likely to kill their victims, and

domestic violence plays a role in roughly half of mass

shootings.24 In a recent stark example from Colorado,

a man fired a barrage of bullets at his girlfriend at a

ordered defendant’s “pistol confiscated and took [his] personal

bonds to leave town immediately”).

Guns and Violence Against Women: America’s Uniquely

Lethal Intimate Partner Violence Problem, EVERYTOWN FOR GUN

SAFETY (Apr. 10, 2023), https://perma.cc/92VN-AQWH.

family celebration, killing her and five of her family

members before killing himself.25

In response to such incidents, Congress acted to

disarm domestic abusers who might otherwise use

firearms to threaten, coerce, harm, or murder intimate

partners and their children. See Greer v. Greer, 516

N.Y.S.2d 214, 215, 217 (N.Y. App. Div. 1987) (divorce

settlement vacated as “product of duress” where

husband, who had a prior history of domestic abuse

that led to imposition of a protective order, possessed

a gun and threatened wife’s life); Klobuchar v. Purdue

Univ., 553 N.E.2d 169, 170 (Ind. App. 1990) (husband,

while subject to restraining order, shot his wife);

Simpson v. Simpson, 473 So.2d 299 (Fla. App. 1985)

(husband, who made prior threats, owned multiple

guns, and was subject to a restraining order, killed his

wife).

As a vital measure to protect victims, Section

922(g)(8) serves its purpose well. Since it was enacted,

“there has been a swift decline in the number of

intimate-partner homicides per capita.”26 And a review

of multiple studies on the impact of analogous statelevel restrictions found that they reduced intimatepartner homicides, with most studies reporting statistically significant reductions ranging from 8% to 25%.27

Marlene Lenthang, Domestic Violence shootings affect more

than just partners, ABC NEWS (May 19, 2021), https://perma.

cc/8ZX4-SJA3.

Aaron Edward Brown, This Time I’ll Be Bulletproof: Using

Ex Parte Firearm Prohibitions to Combat Intimate Partner

Violence, 50 COLUM. HUMAN RIGHTS L. REV. 159, 178 (2019).

See Sierra Smucker, Effects of Prohibitions Associated with

Domestic Violence on Violent Crime, RAND CORPORATION (updated

Jan. 10, 2023), https://perma.cc/N3VN-FMAX.

Protecting victims of domestic abuse from threats

and danger is an objective comparable to the historical

firearm regulations discussed above and in the Solicitor General’s brief. The Fifth Circuit misapprehended

how the same justifications that animated the broad

tradition of historical laws also support Section

922(g)(8). The court discounted many of the analogues

on the supposed basis that they were aimed at

“preserv[ing] … social order” (Pet App. 20a) or “disarming those who had been adjudicated to be a threat

to society generally, rather than to identified individuals” (id. at 24a). But that is not a coherent basis on

which to distinguish the laws. All members of society

are “individuals,” after all—and the common goal of all

laws of this kind is to protect them from an identified

threat. More critically, it was a similar failure to

recognize domestic violence as a public rather than

solely private matter that led acts of domestic abuse to

go unpunished in earlier times. We should not repeat

that mistake now.

2. The Fifth Circuit’s view also sprang from an

incomplete accounting of the harms of domestic

violence, which extend well beyond survivors. Section

922(g)(8) is analogous to antecedent laws promoting

public safety and social order for the additional reason

that it protects law-enforcement officers and other

public-facing local-government employees from firearms as they work to stop perpetrators of domestic

abuse and assist families in crisis. Public-safety and

law-enforcement concerns have long been a reason to

disarm particularly dangerous individuals—from the

Militia Act of 1662 and the stripping of loyalists’ arms

during the American Revolution, see Folajtar v. Atty.

Gen., 980 F.3d 897, 914 (3d Cir. 2020) (Bibas, J.,

dissenting), to the Federal Firearms Act of 1938

combatting organized crime, see Barrett v. United

States, 423 U.S. 212, 220 (1976).

To protect public safety, local governments assign

our police officers the extremely dangerous and vitally

important task of responding to the scene of domestic

incidents. When responding to these calls, an officer

may, and in some jurisdictions must,28 make an arrest

if there is probable cause to believe domestic violence

has occurred. Consequently, these situations are frequently antagonistic and very dangerous for officers.

See Stimmel v. Sessions, 879 F.3d 198, 210 (6th Cir.

2018) (citing Nick Breul & Mike Keith, Deadly Calls

and Fatal Encounters 15 (2016)).

Adding firearms to the mix creates a grave risk that

a responding officer will be shot, injured, or—in the

most tragic cases—killed. Between 1996 and 2010,

116 officers were killed in the United States while

responding to a domestic-disturbance call—accounting for roughly 1 of 7 officers killed in the line of duty.29

Nearly all (94%) were killed by firearm.30 So far in

2023, “[t]he leading circumstance of firearms fatalities

were officers handling domestic disturbances.”31 More

police officers were fatally shot this year responding to

domestic-disturbance calls than in attempting arrests,

Epstein, supra n.6, at 14.

Cassandra Kercher et al., Homicides of law enforcement

officers responding to domestic disturbance calls, 19 INJURY

PREVENTION 331, 332 (2013).

Id.

National Law Enforcement Officers Memorial Fund, 2023

Mid-Year Preliminary Law Enforcement Officers Fatalities

Report 2 (2023), https://perma.cc/6STT-68NJ.

conducting traffic enforcement, serving felony warrants, or responding to robbery-in-progress calls.32

These statistics are hardly surprising. Because

domestic abuse typically takes place behind closed

doors, officers often enter residences with limited

tactical knowledge and without certainty about who is

inside. Often, one or more persons at the scene are in

the midst of a mental-health crisis, and officers must

take control without exacerbating an already volatile

situation. They may have only seconds or minutes to

intervene in a tense, uncertain, and rapidly unfolding

situation.

What’s more, in addition to the individuals directly

involved in the incident, there may be other family

members, housemates, and children present, adding to

the confusion and tension. And domestic violence can

escalate in its severity over time, prompting officers to

respond to the same address for increasingly risky

calls of intimate-partner violence.33 One study of

domestic assaults and homicides found that in about

85% of cases, the police had previously responded to a

disturbance call at the address at least once—and a

median of five times—within the prior two years.34

Behind these statistics, of course, lie human stories.

For example, two NYPD officers were shot the day

before Thanksgiving 2020 in a shootout on a street

in Queens, New York, when escorting a domestic32

See id. at 5.

George Wattendorf, Prosecuting Cases Without Victim

Cooperation, FBI Law Enforcement Bulletin 18 (Apr. 1996),

https://perma.cc/U6PN-BQ9Z.

G. Marie Wilt et al., Domestic Violence and the Police: Studies

in Detroit and Kansas City 9 (1977), https://perma.cc/8HDTYXU8.

violence victim home after she made a complaint

against her husband, who had a history of violence

against her and a license for multiple firearms.35 A

month later, on Christmas Eve, another NYPD officer

was shot protecting a family in Brooklyn, New York,

from a young woman’s boyfriend, who led police on an

armed chase through crowded streets.36 In both

instances, no bystanders were injured and the officers

survived. Tragically, that is not always true.37 Earlier

this year, a Chicago police officer was shot and killed

responding to a domestic-disturbance call about a man

chasing a woman down the street with a gun.38 In

another Chicago incident, a gunman’s fatal shooting of

Two Cops Shot in Queens Responding to Domestic Violence

Case; Suspect Dead, NBC NEW YORK (Nov. 24, 2020), https://

perma.cc/LXS4-EGXC.

‘Christmas Miracle’: NYPD Officer Home After Being Shot In

The Back In Brooklyn On Christmas Eve; Suspect In Custody,

CBSNEWS (Dec. 25, 2020), https://perma.cc/W83H-T47L.

Riverside Sheriff’s deputy Darnell Calhoun dies after being

shot in Lake Elsinore; suspect arrested, CBS LOS ANGELES

(updated Jan. 14, 2023), https://perma.cc/WL35-ZPSE; Justine

Verastigue, Coverage: Remembering, honoring Las Vegas police

officer Truong Thai, KTNV LAS VEGAS (updated Oct. 17, 2022),

https:// perma.cc/5X39-XCA8; Alexis Stevens, Slain Jackson

County deputy ‘didn’t back down from anything,’ THE ATLANTA

JOURNAL-CONSTITUTION (updated Nov. 15, 2021) (noting funerals

for two Georgia police officers “shot a day apart while responding

to unrelated domestic calls but [who] died within hours of each

other”), https://perma.cc/D5G3-3CK5.

Cate Cauguiran, Chicago police officer shot, killed in Gage

Park, ABC NEWS (Mar. 1, 2023), https://perma.cc/RTW8-W9QK.

his ex-fiancé at a hospital also claimed the lives of a

police officer and bystander.39

Police are not the only responders made safer when

abusers are disarmed. Disarming abusers is critical

to protecting the safety of the many social-service

workers whose efforts begin after the police leave the

scene. Child-protection case workers will visit the

home again and again to ensure that children are safe

from imminent physical and mental harm, as will

social workers and counselors who work with survivors and their families. By disarming abusers subject

to qualifying restraining orders, Section 922(g)(8) also

protects these providers, who work together to help to

end the cycle of violence.

Thus, Section 922(g)(8) advances public safety and

social order by helping to remove firearms from the

domestic-violence equation, which protects victims

and enables government workers to safely intervene.

These justifications for burdening the Second Amendment rights of domestic abusers are consistent with

laws, stretching back to the Founding, that restricted

firearms possession and required forfeiture of arms

to protect the public from particularly dangerous

individuals.

3. Domestic violence is also a scourge to our communities more broadly. As noted, the Fifth Circuit

acknowledged that our Nation’s tradition of firearms

regulation includes gun laws designed to protect

“society generally” (Pet. App. 24a) and “social order”

(id. at 20a). By failing to recognize how domestic

violence itself harms the public writ large, the court

Bill Hutchinson, Suspect in triple killing at Chicago hospital

had confronted doctor who broke off their engagement: Officials,

ABC NEWS (Nov. 20, 2018), https://perma.cc/B8HV-47SZ.

repeated the error of courts past of treating domestic

violence as solely affecting the individuals involved.

Research has shown that domestic violence leads to

devastating consequences for the public. More than 15

million children live in homes in which domestic

violence has happened at least once.40 Even if they are

not directly abused, bearing witness to such abuse

inflicts psychological scars that ripple for the rest of

their lives—including increasing the likelihood that

they will enter abusive relationships or become

abusers themselves.41 Domestic-violence victims are

above-average utilizers of our healthcare system.42

And domestic abuse interferes with victims’ job

productivity43 and educational pursuits,44 robbing

society of their achievements and contributions.

Domestic violence has also been identified as “a

leading cause of homelessness because access to

Effects of domestic violence on children, U.S. Dep’t of Health

& Human Services, Office on Women’s Health, https://perma.cc/

L5TL-7X88.

See id.

See Amy E. Bonomi et al., Health Care Utilization and Costs

Associated with Physical and Nonphysical-Only Intimate Partner

Violence, HEALTH SERV. RES., Vol. 44, No. 3, at 1052-67 (Jun.

2009), https://perma.cc/D5WX-9XN6.

Ellen Ridley et al., Domestic Violence Survivors At Work:

How Perpetrators Impact Employment, Maine Dep’t of Labor &

Family Crisis Services (2005), https://perma.cc/HHL9-7E3Y (96%

of domestic-abuse survivors reported impacts on job performance

“often for months, and sometimes years”).

See Rachel J. Voth Schrag & Tonya Edmond, School sabotage

as a form of intimate partner violence: provider perspectives,

AFFILIA: FEMINIST INQUIRY IN SOC. WORK, Vol. 32, No. 2, at 176

(2017) (reporting that abusers sabotage their partner’s educational

pursuits by “disrupting financial aid, physical violence or stalking

at school, disruption of academic efforts, and applying guilt”).

affordable housing is often unavailable” to victims

trying to leave abusive relationships.45 One survey of

multiple American cities found that, on average, 17%

of homeless adults were victims of domestic violence—

a larger group than homeless veterans (who are 12%

of homeless adults).46 And this figure is much higher

in some cities. In McKinney, Texas, one in four

homeless adults is a domestic-violence survivor.47 In

Providence, Rhode Island, it is three in ten;48 in San

Francisco, nearly half.49 Statistics like these refute the

Fifth Circuit’s assumption that the harms of domestic

violence do not run to society at large (Pet. App. 24a).

Given the extensive involvement of governments—

at all levels, but most prominently at the local level—

in providing services to victims, abusers, and their

children, the effects of domestic violence are felt

acutely by society, and its sizeable costs are borne by

the public as a whole. Amici have made significant

investments to help prevent and respond to domestic

violence, including creation of specialized government

agencies and police units dedicated to domestic

Hannah Brenner, Transcending the Criminal Law’s “One

Size Fits All” Response to Domestic Violence, 19 WM. & MARY J.

OF WOMEN & L. 301, 313 (2013); see also Urban Institute, Los

Angeles County Women’s Needs Assessment 44 (July 2023),

perma.cc/6KVQ-8QTY.

See U.S. Conference of Mayors, Hunger and Homelessness

Survey 2 (Dec. 2016), https://perma.cc/79JB-J3NW.

See id. at 59.

See id.

violence, and maintaining round-the-clock shelter,

counseling, and emergency services.50

Growing public awareness of the social consequences of domestic violence bespeaks a larger set of

social advancements since the Founding. Firearms

possession by dangerous domestic abusers cannot be

excused by the antiquated notion that the government

should stay out of the domestic sphere. Indeed, Congress’s very enactment of Section 922(g)(8) demonstrates that domestic violence finally came to be

recognized as a threat to “society generally” (Pet. App.

24a). And that legislative judgment is certainly

analogous to those that underlay the historical laws

addressing threats to the public order and welfare.

See, e.g., NYC Criminal Justice, https://perma.cc/37W7DPMY; New York City Mayor’s Office to End Domestic and

Gender-Based Violence, https://perma.cc/PQU5-HTN4; Baltimore

City Mayor’s Office of Neighborhood Safety and Engagement

Victim Services Team, https://perma.cc/79AV-M2R7; City of Chicago,

Family & Support Services, Division on Domestic Violence,

https://perma.cc/BU27-MAJS; Los Angeles City Attorney, Domestic

Violence, https://perma.cc/Y8QX-SJKY; San Francisco Domestic

and Family Violence Resources, https://perma.cc/2YS5-4MVK.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

RICHARD DEARING*

CLAUDE S. PLATTON

ELINA DRUKER

CHASE H. MECHANICK

*Counsel of Record

HON. SYLVIA O. HINDS-RADIX

Corporation Counsel of the

City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Amicus Curiae

City of New York

ADDITIONAL COUNSEL

EBONY M. THOMPSON

MARY B. RICHARDSON-LOWRY

Acting City Solicitor

Corporation Counsel of the

Baltimore City

City of Chicago

Department of Law

2 North LaSalle Street

100 North Holliday Street

Suite 580

Baltimore, MD 21202

Chicago, IL 60602

Counsel for Amicus Curiae

City of Baltimore, Maryland

City of Chicago, Illinois

MATTHEW K. GIFFIN

Corporation Counsel of the

City of Indianapolis

Department of Law

200 E. Washington Street

Suite 1601

Indianapolis, IN

Counsel for Amicus Curiae

City of Indianapolis,

Indiana

LEESA MANION

King County

Prosecuting Attorney

516 Third Avenue, W400

Seattle, WA 98104

Counsel for Amicus Curiae

King County, Washington

HYDEE FELDSTEIN SOTO

Los Angeles City Attorney

Main Street, 8th Floor

Los Angeles, CA 90012

Counsel for Amicus Curiae

City of Los Angeles,

California

DAWYN R. HARRISON

County Counsel

Office of the County Counsel

County of Los Angeles

648 Kenneth Hahn Hall of

Administration

500 West Temple Street

Los Angeles, CA 90012

Counsel for Amicus Curiae

County of Los Angeles,

California

KRISTYN ANDERSON

City Attorney

350 South Fifth Street

Minneapolis, MN 55415

Counsel for Amicus Curiae

City of Minneapolis,

Minnesota

DIANA P. CORTES

City Solicitor

1515 Arch Street, 17th Floor

Philadelphia, PA 19102

Counsel for Amicus Curiae

City of Philadelphia,

Pennsylvania

HON. ROBERT L. TAYLOR

City Attorney of the

City of Portland

1221 SW Fourth Avenue

Room 430

Portland, OR 97204

Counsel for Amicus Curiae

City of Portland, Oregon

SUSANA ALCALA WOOD

City Attorney

Office of the City Attorney

City of Sacramento

915 I Street, Fourth Floor

Sacramento, CA 95814

Counsel for Amicus Curiae

City of Sacramento,

California

DAVID CHIU

City Attorney

City Hall Room 234

One Dr. Carlton B. Goodlett

Place

San Francisco, CA 94102

Counsel for Amicus Curiae the

City and County of San

Francisco, California

TONY LO PRESTI

County Counsel

County of Santa Clara

70 West Hedding Street

East Wing, 9th Floor

San José, CA 95110

Counsel for Amicus Curiae

County of Santa Clara,

California

SUSAN R. KATZOFF

Corporation Counsel of the

City of Syracuse

300 City Hall

233 East Washington Street

Syracuse, NY 13202

Counsel for Amicus Curiae

City of Syracuse, New York

ADAM CEDERBAUM

Corporation Counsel

City of Boston

City of Boston Law

Department

1 City Hall Square

Boston, MA 02201

Counsel for Amicus Curiae

City of Boston,

Massachusetts

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