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

No. 22-915

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

ZACKEY RAHIMI,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF EVERYTOWN FOR GUN SAFETY AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

ERIC A. TIRSCHWELL

JANET CARTER

WILLIAM J. TAYLOR, JR.

ELEUTHERA O. SA

EVERYTOWN LAW

450 Lexington Avenue

P.O. Box 4184

New York, NY 10017

ALAN SCHOENFELD

Counsel of Record

RYAN M. CHABOT

JOSHUA M. FEINZIG

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@

wilmerhale.com

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 1

ARGUMENT ............................................................................... 3

I.

SECOND AMENDMENT HISTORICAL ANALYSIS SHOULD FOCUS ON THE RECONSTRUCTION ERA RATHER THAN THE FOUNDING

ERA ................................................................................. 3

A. For Cases Challenging The Constitutionality Of A State Law, Focusing On

1868 Is Necessary To Answer The

Originalist Question .............................................. 4

B. Because The Right As Applied Through

The Fourteenth Amendment Is Invested With 1868 Meaning, Focusing On

1868 In Federal Challenges Is In

Keeping With Bruen’s Commitment To

Equivalent State and Federal Standards........................................................................ 9

II. EVEN IF 1791 WERE THE APPROPRIATE

LODESTAR OF SECOND AMENDMENT

MEANING IN FEDERAL CHALLENGES,

LATER EVIDENCE CONTINUES TO BE

RELEVANT IN ELUCIDATING THE 1791

PUBLIC UNDERSTANDING ......................................... 12

CONCLUSION ................................................................. 16

ii

TABLE OF AUTHORITIES

CASES

Page(s)

District of Columbia v. Heller, 554 U.S. 570

(2008) ........................................................................ 5, 12

Dobbs v. Jackson Women’s Health

Organization, 142 S. Ct. 2228 (2022) ....................... 14

Ezell v. City of Chicago, 651 F.3d 684

(7th Cir. 2011)............................................................ 6, 7

Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) ................ 6

Heller v. District of Columbia, 670 F.3d 1244

(D.C. Cir. 2011) ........................................................... 12

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

(2010) .............................................................................. 5

New York State Rifle & Pistol Association v.

Bruen, 142 S. Ct. 2111 (2022) .............. 2-6, 9-10, 12-15

NRA v. Bondi, 61 F.4th 1317 (11th Cir. 2023) ................ 7

United States v. Alvarez, 567 U.S. 709 (2012) ............... 11

United States v. Greeno, 679 F.3d 510 (6th Cir.

2012) ............................................................................... 6

United States v. Stevens, 559 U.S. 460 (2010) ............... 11

DOCKETED CASES

New York State Rifle & Pistol Association v.

Bruen, No. 20-843 (U.S.) ............................................. 6

STATUTES

18 U.S. § 922 ..................................................................... 2, 4

iii

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Amar, Akhil R., The Bill of Rights: Creation

and Reconstruction (1998) .................................. 10, 11

Amar, Akhil R., The Creation and

Reconstruction of the Bill of Rights,

16 S. Ill. U. L.J. 337 (1992) ........................................ 10

Baude, William, Constitutional Liquidation,

71 Stan. L. Rev. 1 (2019) ............................................ 13

Bernick, Evan D., Fourteenth Amendment

Confrontation, 51 Hofstra L. Rev. 1 (2022).............. 7

Bernstein, David, “Incorporation,”

Originalism, and the Confrontation

Clause, Volokh Conspiracy (July 6, 2009),

https://volokh.com/2009/07/06/incorporation

-originalism-and-the-confrontation-clause ............... 8

Blackman, Josh & Ilya Shapiro, Keeping

Pandora’s Box Sealed: Privileges or

Immunities, the Constitution in 2020, and

Properly Extending the Right to Keep and

Bear Arms to the States, 8 Geo. J.L. & Pub.

Pol’y 1 (2010) ............................................................. 7, 9

Bradley, Curtis A. & Neil S. Siegel, Historical

Gloss, Madisonian Liquidation, and the

Originalism Debate, 106 Va. L. Rev. 1

(2020) ............................................................................ 13

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Calabresi, Steven G. & Sarah E. Agudo,

Individual Rights Under State Constitutions When the Fourteenth Amendment

Was Ratified in 1868: What Rights Are

Deeply Rooted in American History and

Tradition?, 87 Tex. L. Rev. 7 (2008).......................... 7

Eskridge, Jr., William N., Interpreting

Legislative Inaction, 87 Mich. L. Rev. 67

(1988) ............................................................................ 14

Guns and Violence Against Women,

Everytown Research & Policy (Oct. 17,

2019; updated as of Apr. 10, 2023),

https://everytownresearch.org/report/guns

-and-violence-against-women-americasuniquely-lethal-intimate-partner-violenceproblem/ ......................................................................... 2

Lash, Kurt T., Respeaking the Bill of Rights:

A New Doctrine of Incorporation,

97 Ind. L.J. 1440 (2022) .............................................. 10

Levy, Leonard W., Origins of the Bill of Rights

(1999) ............................................................................ 10

Nelson, Caleb, Stare Decisis and

Demonstrably Erroneous Precedents,

87 Va. L. Rev. 1 (2001) ............................................... 13

Rappaport, Michael B., Originalism and

Regulatory Takings: Why the Fifth

Amendment May Not Protect Against

Regulatory Takings, But the Fourteenth

Amendment May, 45 San Diego L. Rev. 728

(2008) ....................................................................................8

v

TABLE OF AUTHORITIES—Continued

Page(s)

Siegel, Stephen A., Injunctions for

Defamation, Juries, and the Clarifying

Lens of 1868, 56 Buff. L. Rev. 655 (2008) .................. 8

INTEREST OF AMICUS CURIAE1

Everytown for Gun Safety is the nation’s largest

gun-violence-prevention organization, with nearly ten

million supporters across the country. Everytown was

founded in 2014 as the combined effort of Mayors

Against Illegal Guns, a national, bipartisan coalition of

mayors combating illegal guns and gun trafficking, and

Moms Demand Action for Gun Sense in America, an organization formed after a gunman murdered twenty children and six adults at an elementary school in Newtown,

Connecticut. Everytown also includes a large network

of gun-violence survivors who are empowered to share

their stories and advocate for responsible gun laws, as

well as a national movement of high school and college

students working to end gun violence.

Over the past several years, Everytown has devoted

substantial resources to researching and developing expertise in historical firearms legislation. Everytown has

drawn on that expertise to file more than 90 amicus

briefs in Second Amendment and other firearms cases,

offering historical and doctrinal analysis, as well as social

science and public policy research, that might otherwise

be overlooked.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Gun regulations that protect victims of domestic violence are among the most important and foundational public safety laws in our country. Every month, an average

of 70 women are shot and killed by an intimate partner.

1

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

and no entity or person, other than amicus curiae, its members, and

its counsel, made a monetary contribution intended to fund the

preparation or submission of this brief.

2

Guns and Violence Against Women, Everytown Research & Policy (October 17, 2019; updated as of Apr. 10,

2023). And access to a gun makes it five times more likely

that a woman will die at the hands of her abuser. Id. Regulations like those at issue in this case reflect the commonsense, bipartisan, historically grounded proposition

that people who pose a risk to others should not be able to

access a deadly weapon. Affirmance of the Fifth Circuit’s

aberrant decision below would enable domestic abusers

subject to restraining orders—individuals who have very

recently harmed or threatened their partners—to instantly access firearms. The impact would be deadly for

many domestic violence survivors across the country.

Our Constitution has long reflected the obvious wisdom—shared by every generation of Americans—of

keeping guns away from individuals found to be dangerous and irresponsible. In turn, and for the reasons discussed in the United States’ brief, section 922(g)(8) is

constitutional under the analysis for Second Amendment claims this Court articulated in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).

Everytown submits this amicus brief to expand on three

points pertaining to Bruen’s historical inquiry.

First, and at the outset, this case does not require

deciding whether to center the historical inquiry on the

Reconstruction era and the ratification of the Fourteenth Amendment in 1868, or the Founding era and the

ratification of the Second Amendment in 1791. Just as

this Court left that question open in Bruen, see 142 S. Ct.

at 2138, it should do so again here because both historical

periods reflect a public understanding of the right to

keep and bear arms that confirms the constitutionality

of section 922(g)(8). See U.S. Br. 13-27.

3

Second, if the Court believes it necessary to further

clarify the parameters of Bruen’s historical inquiry, it

should decide that the public understanding of the right

around 1868 is the proper focal point of originalist analysis. The case for looking to Reconstruction rather than

the Founding in a challenge to a state law should be obvious: the Second Amendment right to keep and bear

arms did not apply to the states until ratification of the

Fourteenth Amendment in 1868. This view has been

embraced by many prominent originalist scholars and

lawyers. Furthermore, because this Court in Bruen indicated that the scope and content of the right should be

uniform across all levels of government—and, according

to the two scholars the Court pointed to in Bruen, 142 S.

Ct. at 2138, ratification of the Fourteenth Amendment

updated the meaning of the original Bill of Rights—it follows that the public understanding as of 1868 should likewise serve as the lodestar of the historical analysis for

federal challenges.

Third, even if this Court were to address the 1791-versus-1868 question and hold that 1791 is the appropriate focus of analysis in federal challenges, post-1791 (and, indeed, post-1868) evidence would still supply important historical evidence of earlier understanding—including because, as this Court and many leading originalist scholars

have recognized, later historical practice can “liquidate”

and thereby confirm the meaning of disputed constitutional

terms and phrases. See Bruen, 142 S. Ct. at 2136-2137.

ARGUMENT

I.

SECOND AMENDMENT HISTORICAL ANALYSIS SHOULD

FOCUS ON THE RECONSTRUCTION ERA RATHER THAN

THE FOUNDING ERA

Bruen instructs courts to analyze Second Amendment claims by asking whether “the Second

4

Amendment’s plain text covers an individual’s conduct,”

and, if so, whether the government has shown that its

regulation is “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2129-2130.

With respect to that second, historical inquiry, this

Court noted, but explicitly left open, the question of

whether the inquiry should center on 1791 or 1868. See

id. at 2138 (pointing to “ongoing scholarly debate on

whether courts should primarily rely on the prevailing

understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining

its scope (as well as the scope of the right against the

Federal Government)”). Here, too, this Court need not

address—much less resolve—that choice, considering

the substantial historical evidence of 922(g)(8)’s constitutionality spanning both periods. See U.S. Br. 13-27.

But if this Court believed otherwise, it should recognize

that the historical inquiry for purposes of challenges to

state laws should be centered on 1868. And because

Bruen indicated that the Second Amendment right as

applied against the States is the same as the right

against the federal government, it follows that the historical inquiry in federal challenges should likewise center on Reconstruction-era evidence of history and tradition.

A. For Cases Challenging The Constitutionality

Of A State Law, Focusing On 1868 Is Necessary To Answer The Originalist Question

As this Court observed in Bruen, a State “is bound

to respect the right to keep and bear arms because of the

Fourteenth Amendment, not the Second.” 142 S. Ct. at

2137. Originalist analysis of the constitutionality of a

state law is thus controlled by the people’s choice to extend the Bill of Rights to the States in 1868. To elevate

5

a Founding-era understanding of the right over the Reconstruction-era understanding would reject what the

people understood the right to be at the time they gave

it effect. That mistake would, in turn, undermine this

Court’s pronouncement in Heller and Bruen that “‘[c]onstitutional rights are enshrined with the scope they were

understood to have when the people adopted them.’” Id.

at 2136 (quoting District of Columbia v. Heller, 554 U.S.

570, 634-635 (2008) (emphasis added)).

Indeed, centering the inquiry on 1868 is consistent

with the passage in Bruen instructing the lower courts

on historical methodology through the example of sensitive-places restrictions. The passage indicated that historical evidence from the “18th- and 19th-century” justified the State’s restrictions on gun possession in legislative assemblies, polling places, and courthouses. 142 S.

Ct. at 2133 (emphasis added). Moreover, insisting that

the 1791 understanding should define the right to be applied against the States is in tension with this Court’s

lengthy analysis in McDonald pertaining to the 1868 understanding of the right to keep and bear arms. See

McDonald v. City of Chicago, 561 U.S. 742, 770-778

(2010) (plurality op.); id. at 826-838 (Thomas, J., concurring in part and concurring in the judgment). It would

be nonsensical for the 1868 public understanding of the

right to control whether the right was incorporated

against the States, but to have nothing to say about the

scope or content of that incorporated right.

This is why, prior to Bruen, several courts of appeals

looked to an 1868 understanding when analyzing historical traditions of firearm regulation in cases challenging

state laws. For instance, the Seventh Circuit read

McDonald to have “confirm[ed] that when state- or local-government action is challenged, the focus of the

original-meaning inquiry is carried forward in time; the

6

Second Amendment’s scope as a limitation on the States

depends on how the right was understood when the

Fourteenth Amendment was ratified.” Ezell v. City of

Chicago, 651 F.3d 684, 702 (7th Cir. 2011). Other circuits

followed suit. See Gould v. Morgan, 907 F.3d 659, 669

(1st Cir. 2018) (“Because the challenge here is directed

at a state law, the pertinent point in time would be 1868

… .”), criticized by Bruen, 142 S. Ct. at 2124, 2126-2127;

United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)

(following Ezell).

The view that the 1868 understanding should frame

the historical analysis in a case against a State has been

embraced by prominent practitioners and originalist

scholars alike. Notably, former Solicitor General Paul

Clement articulated this position during oral argument

in Bruen when he served as counsel for the petitioners:

JUSTICE THOMAS: [Y]ou mentioned the

founding and you mentioned post-Reconstruction. But, if we are to analyze this based upon

the history or tradition, should we look at the

founding, or should we look at the time of the

adoption of the Fourteenth Amendment, which

then, of course, applies it to the states?

MR. CLEMENT: So, Justice Thomas, I suppose, if there were a case where there was a contradiction between those two, you know, and the

case arose in the states, I would think there

would be a decent argument for looking at the

history at the time of Reconstruction … and giving preference to that over the founding.

Tr. of Oral Arg. at 8:2-17, Bruen (No. 20-843).

Clement’s view accords with that of many leading

originalist scholars. A panel of the Eleventh Circuit

7

recently observed that “[m]any prominent judges and

scholars—across the political spectrum—agree that, at a

minimum, ‘the Second Amendment’s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified,’”

and cited—among others—Josh Blackman, Ilya Shapiro,

Steven Calabresi, and Sarah Agudo. NRA v. Bondi, 61

F.4th 1317, 1322 n.9 (11th Cir. 2023) (quoting Ezell, 651

F.3d at 702), vacated on grant of reh’g en banc, No. 2112314, 2023 WL 4542153 (July 14, 2023). Professors Calabresi and Agudo have argued that “the question is controlled not by the original meaning of the first ten

Amendments in 1791 but instead by the meaning those

texts and the Fourteenth Amendment had in 1868.” Individual Rights Under State Constitutions When the

Fourteenth Amendment Was Ratified in 1868: What

Rights Are Deeply Rooted in American History and

Tradition?, 87 Tex. L. Rev. 7, 115-116 & n.485 (2008).

Professors Blackman and Shapiro have similarly argued

that “1868 is thus the proper temporal location for applying a whole host of rights to the states, including the

right that had earlier been codified as the Second

Amendment,” and that “[i]nterpreting the right to keep

and bear arms as instantiated by the Fourteenth

Amendment—based on the original public meaning in

1791—thus yields an inaccurate analysis.” Keeping Pandora’s Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to

Keep and Bear Arms to the States, 8 Geo. J.L. & Pub.

Pol’y 1, 52 (2010).

Other scholars who have endorsed this 1868 view include Professors Evan Bernick, David Bernstein, Michael Rappaport, and Stephen Siegel. See Bernick,

Fourteenth Amendment Confrontation, 51 Hofstra L.

Rev. 1, 23 (2022) (“The view is ascendant among

8

originalists who hold that the Fourteenth Amendment

requires states to respect some or all of the individual

rights listed in the first eight amendments that those

rights ought to be understood as they were understood

in 1868. It is conceivable that the Fourteenth Amendment ‘incorporated’ the first eight amendments as they

were understood in 1791. But it does seem unlikely.”);

Bernstein, “Incorporation,” Originalism, and the Confrontation Clause, Volokh Conspiracy (July 6, 2009),

https://volokh.com/2009/07/06/incorporation-originalismand-the-confrontation-clause (“When a right protected

by the Bill of Rights is applied to the states via the 14th

Amendment, it has to be the 1868 understanding of that

right, not the 1791 understanding, that governs.”); Rappaport, Originalism and Regulatory Takings: Why the

Fifth Amendment May Not Protect Against Regulatory

Takings, But the Fourteenth Amendment May, 45 San

Diego L. Rev. 728, 748 (2008) (“If the rights in the original Bill had developed a new meaning in the years leading up to Reconstruction, and if the enactors of the

Amendment had used those new meanings, the incorporated Bill would have a different meaning than the original Bill.”); Siegel, Injunctions for Defamation, Juries,

and the Clarifying Lens of 1868, 56 Buff. L. Rev. 655, 662

n.32 (2008) (“I am unaware of any discussion by an

originalist asserting, as a matter of theory, that the

meaning of the Bill of Rights in 1789 should be preferred

to its meaning in 1868 when the subject is the limitations

the Fourteenth Amendment imposes on the states. In

addition, I am unable to conceive of a persuasive

originalist argument asserting the view that, with regard to the states, the meaning of the Bill in 1789 is to be

preferred to its meaning in 1868.”).

This is not to say that each of these scholars believes

that 1868 is the appropriate historical lodestar in cases

9

against the federal government. See, e.g., Blackman &

Shapiro, 8 Geo. J.L. & Pub. Pol’y at 52 (arguing that 1868

is the correct focus for cases against a State and 1791 is

correct for cases against the federal government). But,

as explained below, this Court has rejected the possibility of diverging Bills of Rights between state and federal

levels of government. And, as further explained below,

to the extent there is only one Second Amendment

standard applicable to all levels of government, that

standard must be focused on 1868.

B. Because The Right As Applied Through The

Fourteenth Amendment Is Invested With 1868

Meaning, Focusing On 1868 In Federal Challenges Is In Keeping With Bruen’s Commitment

To Equivalent State and Federal Standards

Though this Court in Bruen did not resolve the

choice between 1791 and 1868, it did reject the possibility of different standards for state and federal challenges: “[W]e have made clear that individual rights enumerated in the Bill of Rights and made applicable

against the States through the Fourteenth Amendment

have the same scope as against the Federal Government.” 142 S. Ct. at 2137. It follows that the Second

Amendment test—including the contours of the historical inquiry—should not vary between state and federal

challenges. And because courts assessing challenges to

state laws should consult history around the time of the

Fourteenth Amendment, so too should courts examine

Reconstruction-era history in challenges to federal laws.

Specifically, the passage in Bruen establishing the

need for state-federal congruity marked the path for

keying the historical inquiry in both instances to 1868.

After leaving open the 1791-versus-1868 question but

explaining that the state and federal standards should be

10

the same, the Court cited two scholars, Professors Akhil

Amar and Kurt Lash, who argue that the 1868 ratification of the Fourteenth Amendment updated the meaning of the original Bill of Rights. See 142 S. Ct. at 2138

(citing Amar, The Bill of Rights: Creation and Reconstruction, at xiv, 223, 243 (1998), and Lash, Respeaking

the Bill of Rights: A New Doctrine of Incorporation, 97

Ind. L.J. 1439 (2022)). According to Professor Lash,

“When the people adopted the Fourteenth Amendment,

they readopted the original Bill of Rights, and did so in

a manner that invested those original 1791 texts with

new 1868 meanings.” Lash, 97 Ind. L.J. at 1441 (2022);

see Bruen, 142 S. Ct. at 2138 (quoting this excerpt). And

on Professor Amar’s account, “in the very process of being absorbed into the Fourteenth Amendment, various

rights and freedoms of the original Bill may be subtly but

importantly transformed.” Amar, The Bill of Rights 223.

In turn, “the Fourteenth Amendment has a doctrinal

‘feedback effect’ against the federal government” such

that “words inserted into the Constitution in 1791 must

be read afresh after 1866.” Id. at 243, 283. Thus, according to both of the scholars the Court chose to cite, the

1868 understanding should control in cases against the

States and the federal government.

This Court’s constitutional jurisprudence has frequently, if implicitly, tracked such an understanding of

the relationship between the original Constitution and

subsequent amendments. For instance, the original

Freedom of Speech and Press Clauses may well have involved little more than freedom from prior restraint on

publishing, see Levy, Origins of the Bill of Rights 123

(1999), and largely focused on “protect[ing] people who

are saying relatively popular things against perhaps an

unrepresentative or unpopular [federal] government,”

Amar, The Creation and Reconstruction of the Bill of

11

Rights, 16 S. Ill. U. L.J. 337, 343 (1992) (emphasis added).

Of course, the modern Speech and Press Clauses extend

more broadly and at their core protect unpopular

speech. See, e.g., United States v. Alvarez, 567 U.S. 709

(2012) (holding that the Stolen Valor Act constituted a

content-based restriction on free speech); United States

v. Stevens, 559 U.S. 460 (2010) (holding that a federal

statute criminalizing the commercial use of depictions of

animal cruelty was facially invalid). This is not to say

that the modern First Amendment is unmoored from

originalist precepts; it instead simply reflects an original

public understanding keyed to Reconstruction and the

Fourteenth Amendment, which imbued the Speech and

Press Clauses with concepts of individual freedom and

liberty. As Amar views it, “the very meaning of freedom

of speech, press, petition, and assembly was subtly redefined in the process of being incorporated,” with the

“paradigmatic speaker” moving from “a relatively popular publisher” in the eighteenth century “to the Unionist,

the abolitionist, and the freedman” by the mid-nineteenth century. Amar, The Bill of Rights 236.

Similarly, the public meaning of the right to keep

and bear arms around 1868 should figure centrally into

Bruen’s historical inquiry for state and federal challenges alike. In this case, as in Bruen, the evidence in

both the Founding and Reconstruction eras confirms the

constitutionality of the challenged law. But in cases

where the two periods offer contradictory answers, a

court should prioritize evidence from the latter period.

12

II. EVEN IF 1791 WERE THE APPROPRIATE LODESTAR OF

SECOND AMENDMENT MEANING IN FEDERAL CHALLENGES, LATER EVIDENCE CONTINUES TO BE RELEVANT

IN ELUCIDATING THE 1791 PUBLIC UNDERSTANDING

If this Court were to take up the timing question and

conclude, despite the foregoing, that 1791 is the crux of

the historical inquiry in challenges to federal laws, it

should still make clear that later historical evidence can

help inform the parameters of the Second Amendment

right. This flows directly from Heller and Bruen’s instruction that “examination of a variety of legal and

other sources to determine the public understanding of

a legal text in the period after its enactment or ratification” remains “a critical tool of constitutional interpretation.” Bruen, 142 S. Ct. at 2127-2128 (quoting Heller, 554

U.S. at 605) (second emphasis added).2 This Court has

made clear that “we must also guard against giving

postenactment history more weight than it can rightly

bear”—thus, “‘post-ratification adoption or acceptance

of laws that are inconsistent with the original meaning

of the constitutional text obviously cannot overcome or

alter that text.’” Id. at 2136-2137 (quoting Heller v. District of Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir.

2011) (Kavanaugh, J., dissenting)); see id. at 2154 & n.28

(declining to consider late-nineteenth- and early-twentieth-century historical evidence “when it contradicts earlier evidence”).3 But short of that untenable use,

2

Sources examined in Heller included “19th-century cases that

interpreted the Second Amendment,” “‘discussion of the Second

Amendment in Congress and in public discourse’ after the Civil

War,” and “how post-Civil War commentators understood the

right.” Bruen, 142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 610,

614).

3

Consideration of later historical evidence, continuing into the

late-nineteenth and twentieth centuries, makes particular sense in

13

Reconstruction-era and later evidence offers valuable

insight into the original public understanding as of the

Founding and should be embraced accordingly.

The reasons why post-Founding and other later historical evidence can solidify—or “liquidate”—a legal

text’s original meaning are well-known to this Court. As

explained in Bruen, “a regular course of practice can liquidate [and] settle the meaning of disputed or indeterminate terms [and] phrases in the Constitution.” 142 S. Ct.

at 2136 (cleaned up, quoting decision quoting James

Madison). Indeed, originalist scholars in recent years

have sought to claim a greater role for later historical

practice precisely because original meaning as of 1791

can be opaque or unknowable. See, e.g., Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 59-60 (2019)

(“Privileging early practice through liquidation is tempting but wrong” because “[i]ndeterminate provisions remain open to liquidation for as long as their meanings remain contested.”); Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10-21

(2001) (identifying Madisonian liquidation with postFounding evidence); accord Bruen, 142 S. Ct. at 21362137 (citing Professors Baude and Nelson in its discussion of liquidation). Originalist scholars have also endorsed liquidation to explain why originalism does not

“self-destruct” in the face of evidence that the Founders

themselves expected constitutional meaning to be settled over time. See Bradley & Siegel, Historical Gloss,

Madisonian Liquidation, and the Originalism Debate,

this case where, as the United States explains, important and relevant developments in “legal, social, and technological factors that

have nothing to do with the Second Amendment” have occurred.

U.S. Br. 40-41; see Bruen, 142 S. Ct. at 2132 (recognizing that new

technologies or new societal concerns may “require a more nuanced

approach” to the historical inquiry).

14

106 Va. L. Rev. 1, 40-44 & n.165 (2020) (canvassing Professor Nelson’s and other originalist scholars’ arguments

in this vein).

Moreover, appeal to nineteenth-century and later

evidence is particularly warranted for purposes of

rounding out Bruen’s historical inquiry. As should be

obvious, it cannot always be assumed that an earlier legislature’s inaction—whether it be inaction pertaining to

firearms or to anything else—was driven by concerns

about constitutionality rather than any number of other

practical or policy considerations. See, e.g., Dobbs v.

Jackson Women’s Health Org., 142 S. Ct. 2228, 2255

(2022) (explaining that “the fact that many States in the

late 18th and early 19th century did not criminalize” certain conduct “does not mean that anyone thought the

States lacked the authority to do so”); U.S. Br. 39; cf.

Eskridge, Jr., Interpreting Legislative Inaction, 87

Mich. L. Rev. 67, 69-70 (1988) (arguing, in the statutory

interpretation context, that “legislative inaction should

rarely be given much, or any, weight” as a sign of “the

actual collective will or desire of the enacting legislature”). And as Bruen’s discussion of the sensitive-places

doctrine indicates, the absence of regulation at or immediately after the Founding does not, in and of itself, indicate constitutional doubt: “Although the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and

courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions.” Bruen, 142 S.

Ct. at 2133.

Looking to nineteenth-century and later evidence—

particularly when the Founding era yields neither analogous regulations nor “disputes regarding the lawfulness of such [regulations],” Bruen, 142 S. Ct. at 2133—

15

can thus help contextualize earlier legislative inaction.

For instance, if a regulation passed in the decades

around Reconstruction—within the lifetimes of some

who were alive at the Founding—did not raise a constitutional challenge at the time of its passage, and there is

no separate historical evidence showing that the regulation would have raised constitutional concern in the decades prior, then it can be inferred that the regulation

comports with the Founding-era public understanding of

the right.

To put the point another way, Bruen’s recognition of

the interpretative significance of post-ratification evidence fits hand-in-glove with the following presumption

for purposes of federal challenges: if at Bruen’s second

step the government presents no evidence of a Founding-era regulatory tradition but does present evidence

of an adequate Reconstruction-era or later regulatory

tradition, a court should presume that the regulation is

constitutional unless the challenger supplies affirmative

evidence that the regulation was or would have been

considered unconstitutional in 1791. In assuming that

the public understanding of the right remains consistent

between 1791 and 1868 absent evidence from the challenger to the contrary, this presumption also reflects

this Court’s longstanding position, as elaborated in Part

II above, that “individual rights enumerated in the Bill

of Rights and made applicable against the States

through the Fourteenth Amendment have the same

scope as against the Federal Government.” Bruen, 142

S. Ct. at 2137.

In turn, even if this Court were to reach the 1791versus-1868 question and decide on 1791 for purposes of

federal challenges, it should continue to countenance the

instrumental value of nineteenth-century historical evidence. Similarly, this Court should make clear that the

16

absence of an analogous regulation at the Founding does

not necessarily indicate that the regulation would have

been viewed by the Founding-era public with constitutional suspicion.

CONCLUSION

This Court should reverse the judgment of the court

below.

Respectfully submitted.

ERIC A. TIRSCHWELL

JANET CARTER

WILLIAM J. TAYLOR, JR.

ELEUTHERA O. SA

EVERYTOWN LAW

450 Lexington Avenue

P.O. Box 4184

New York, NY 10017

AUGUST 2023

ALAN SCHOENFELD

Counsel of Record

RYAN M. CHABOT

JOSHUA M. FEINZIG

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@

wilmerhale.com