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 U NITED S TATES C OURT OF A PPEALS

FOR THE F IFTH C IRCUIT

_____________

BRIEF OF FIREARMS POLICY COALITION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

_____________

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Table Of Authorities ............................................................ iii

Interest Of Amicus Curiae .................................................. 1

Summary Of Argument ....................................................... 2

Argument .............................................................................. 5

I. This Court Can And Should Consider Respondent’s

Alternative Argument ................................................... 5

II. The Federal Government Has No General Police

Power To Restrict The Public’s Keeping And Bearing

Of Arms ........................................................................... 6

III. Article I Does Not Confer Authority To Restrict

Mere Possession Of Arms By Private Citizens .......... 9

A. The Militia Organizing Clause Does Not Delegate

To Congress The Power To Re-Strict The Keeping

Of Arms By Private Individuals ............................. 9

B. The Commerce Clause Does Not Authorize Congress To Enact Criminal Laws Banning Mere

Possession Of Arms ............................................... 11

1. Lopez and Morrison foreclose any argument

that § 922(g)(8) is a valid exercise of the

Commerce Clause Power ................................ 11

2. Section 922(g)(8)’s inclusion of a “jurisdictional

hook” does not salvage the law as a proper

exercise of the Commerce Clause power ...... 16

IV. In All Events, The Court Should Restore The Original Public Meaning Of The Commerce Clause ....... 22

V. If The Court Addresses The Second Amendment Issue Here, It Should Likewise Focus Its Historical

Analysis At And Around The Founding In 1791 ..... 26

ii

A. The Founding-Era Scope Of Incorporated Rights

Must Control Because Such Rights Have The

Same Meaning As To The States That They Do

As To The Federal Government ........................... 27

B. Post-Founding-Era Regulations Are Relevant

Only To The Extent They Confirm Traditions

From The Founding ............................................... 30

Conclusion ........................................................................... 32

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Biden,

70 F.4th 817 (5th Cir. 2023) ....................................... 9, 10

Alderman v. United States,

562 U.S. 1163, 131 S. Ct. 700 (2011) ....................3, 18, 19

Crawford v. Washington,

541 U.S. 36 (2004) ..................................................... 29, 31

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................................................... 26

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) ..................................................... 31

Gamble v. United States,

139 S. Ct. 1960 (2019) ............................................... 30, 31

Gonzales v. Raich,

545 U.S. 1 (2005) ............................................................. 14

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) ...................................... 30

In re Burrus,

136 U.S. 586 (1890) ......................................................... 15

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,

Council 31,

138 S. Ct. 2448 (2018) ..................................................... 18

Jones v. United States,

529 U.S. 848 (2000) ................................................4, 21, 22

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ..................................................... 25

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ........................................................... 5

iv

Malloy v. Hogan,

378 U.S. 1 (1964) ............................................................. 28

McDonald v. City of Chicago,

561 U.S. 742 (2010) ......................................................... 28

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................... 24, 25

Nat’l Rifle Ass’n v. Bondi,

61 F.4th 1317 (11th Cir. 2023) ....................................... 27

Nevada Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011) ......................................................... 29

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

142 S. Ct. 2111 (2022) ..........................4, 26, 28, 29, 30, 32

New York v. United States,

505 U.S. 144 (1992) ........................................................... 7

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ..................................................... 29

Scarborough v. United States,

431 U.S. 563 (1977) ..................................................... 3, 17

Sosna v. Iowa,

419 U.S. 393 (1975) ......................................................... 15

Timbs v. Indiana,

139 S. Ct. 682 (2019) ....................................................... 30

Town of Greece v. Galloway,

572 U.S. 565 (2014) ......................................................... 25

United States v. Alderman,

565 F.3d 641 (9th Cir. 2009) ...................................... 6, 18

United States v. Chesney,

86 F.3d 564 (6th Cir. 1996) .............................................. 6

United States v. Daniels,

77 F.4th 337 (5th Cir. 2023) ........................................... 27

v

United States v. Jones,

565 U.S. 400 (2012) ......................................................... 29

United States v. Kuban,

94 F.3d 971 (5th Cir. 1996) ........................................ 6, 21

United States v. Lemons,

302 F.3d 769 (7th Cir. 2002) ............................................ 6

United States v. Lopez,

514 U.S. 549 (1995) ..... 2–4, 6, 8, 11–13, 15–16, 19–23, 25

United States v. Morrison,

529 U.S. 598 (2000) ................3, 7, 8, 11, 12, 13, 16, 21, 24

United States v. Patton,

451 F.3d 615 (10th Cir. 2006) .........................6, 18, 19, 20

United States v. Scarborough,

539 F.2d 331 (4th Cir. 1976) .......................................... 17

United States v. Seekins,

52 F.4th 988 (5th Cir. 2022) ........................................... 19

United States v. United Foods, Inc.,

533 U.S. 405 (2001) ........................................................... 6

Virginia v. Moore,

553 U.S. 164 (2008) ......................................................... 29

Wickard v. Filburn,

317 U.S. 111 (1942) ......................................................... 14

Yee v. Escondido,

503 U.S. 519 (1992) ........................................................... 5

Statutes

18 U.S.C. § 922(g)(8) ...................... 2–9, 11–14, 16–17, 2–22

42 U.S.C. § 13981 .................................................................. 8

Act of May 8, 1792, § 1, 1 Stat. at 271 .............................. 10

vi

Other Authorities

1 Samuel Johnson, A Dictionary of the English

Language (4th ed. 1783) ................................................ 22

1 Samuel Johnson, A Dictionary of the English

Language (6th ed. 1785) ................................................ 10

3 THE DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE

FEDERAL CONSTITUTION, AS RECOMMENDED BY

THE GENERAL CONVENTION AT PHILADELPHIA

IN 1787 (Jonathan Elliot ed., 2d. ed. 1836).................. 10

Akhil Amar, The Bill of Rights: Creation and

Reconstruction (1998) .................................................... 26

H.R. Conf. Rep. No. 103-711 (1994) ................................. 12

Kurt Lash, Re-Speaking the Bill of Rights: A New

Doctrine of Incorporation, 97 INDIANA L. J. 1439

(2022).......................................................................... 26, 27

Mark Smith, “Not all History is Created Equal”: In

the Post-Bruen World, the Critical Period for

Historical Analogues is when the Second

Amendment was Ratified in 1791, and not 1868

(posted Nov. 4, 2022) ................................................ 28, 30

Newton, Felons, Firearms, and Federalism:

Reconsidering Scarborough in Light of Lopez, 3

J. APP. PRAC. & PROCESS 671 (2001)............................ 20

President’s Message to the Congress Transmitting

Proposed Legislation to Amend the Gun-Free

School Zones Act of 1990 (May 10, 1995) .................... 20

Randy Barnett, New Evidence of the Original

Meaning of the Commerce Clause, 55 ARK. L.

REV. 847 (2003) ............................................................... 24

vii

Randy Barnett, The Original Meaning of the

Commerce Clause, 68 U. CHI. L. REV. 101 (2001) ...... 24

THE FEDERALIST NO. 17 ................................................... 23

THE FEDERALIST NO. 21 ................................................... 23

THE FEDERALIST NO. 29 ..................................................... 9

THE FEDERALIST NO. 45 ..................................................... 7

Constitutional Provisions

U.S. CONST., Art. I, § 8, cl. 16 ......................................... 2, 9

U.S. CONST., Art. I, § 8, cl. 3 ....................................... 11, 22

1

INTEREST OF AMICUS CURIAE 1

Plaintiff Firearms Policy Coalition, Inc. (“FPC”) is a

nonprofit membership organization. FPC works to create

a world of maximal human liberty and freedom and to promote and protect individual liberty, private property, and

economic freedoms. It seeks to protect, defend, and advance the People’s rights, especially but not limited to the

inalienable, fundamental, and individual right to keep and

bear arms. FPC serves its members and the public

through legislative advocacy, grassroots advocacy, litigation and legal efforts, research, education, outreach, and

other programs.

Pursuant to Supreme Court Rule 37.6, amicus affirms

that no counsel for a party authored this brief in whole or

in part, and that no person or entity other than amicus and

their counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

1

2

SUMMARY OF ARGUMENT

Amicus agrees with Respondent that 18 U.S.C.

§ 922(g)(8) violates the Second Amendment. This brief focuses on Respondent’s alternative argument that Congress has no authority to enact a ban on firearm possession by individuals subject to family law restraining orders. The Court can and should address this argument,

which disposes of the need to decide the Second Amendment issue.

This Court has stressed repeatedly in its recent Commerce Clause cases the fundamental principle—inherent

in the delegation of limited and enumerated powers by the

People and the States to the federal government—that

Congress does not have a police power to legislate on any

subject it wishes. Rather, every exercise of congressional

authority must be authorized by an enumerated power in

the Constitution. Here, as with the ban on firearm possession within 100 feet of a school in United States v. Lopez,

514 U.S. 549 (1995), one searches in vain for congressional

power to ban the possession of firearms by persons subject to a family law restraining order.

The power to ban such possessions cannot be found in

the Militia Organizing Clause, U.S. CONST., Art. I, § 8, cl.

16. Indeed, the Organizing Clause gives Congress the

“Power To . . . provide for organizing [and] arming . . . the

Militia,” not to disarm would-be members of the militia.

Id. (emphasis added). The Organizing Clause thus stands

with the Second Amendment as important structural

counterweights to the assertion of boundless authority to

disarm citizens under the Commerce Clause.

3

After Lopez and United States v. Morrison, 529 U.S.

598 (2000), however, there can be no argument that the

Commerce Clause authorized Congress to enact §

922(g)(8). Among other things, § 922(g)(8): (1) does not

regulate economic activity; (2) cannot be transformed into

the regulation of interstate commerce by “aggregating”

the effects of all the violence the law hopes to avoid; and

(3) does not regulate any smaller part of a comprehensive

economic program. Moreover, § 922(g)(8)’s intrusion into

the family law of the States, nearly all of whom have

already enacted similar limitations, further dooms §

922(g)(8) for violating important federalism principles.

Lopez, 514 U.S. at 569–83 (Kennedy, J., concurring).

The only question under the Commerce Clause, then,

is whether the addition of a once-traveled-in-interstatecommerce jurisdictional element can salvage this law. But

a requirement that can be satisfied by virtually every

single firearm in the Nation does not make this legislation

any less of an attempted exercise of a police power than

the law in Lopez. As Justice Thomas explained in

Alderman v. United States, 562 U.S. 1163, 131 S. Ct. 700,

702 (2011) (Thomas, J., dissenting from denial of cert.),

allowing the “mere identification of a jurisdictional hook”

to undermine Lopez arises from the incorrect application

of Scarborough v. United States, 431 U.S. 563 (1977). The

lower courts’ struggle with this dilemma underscores the

importance of addressing Respondent’s Commerce

Clause argument.

While § 922(g)(8) cannot be justified under the permissive “substantial effects on interstate commerce” line of

cases culminating in Lopez, Morrison, and Jones v. United

4

States, 529 U.S. 848, 854–57 (2000), it falls far outside the

scope of the original public meaning of the Commerce

Clause. As Justice Thomas and scholars have explained,

the Constitution uses the term “Commerce . . . among the

several States” to mean “selling, buying, and bartering, as

well as transporting for these purposes” across state

lines. Lopez, 514 U.S. at 585 (Thomas, J., concurring). It

manifestly did not mean to cover, as it has been allowed to

cover, all “productive activities such as manufacturing and

agriculture,” not to mention countless other activities purported to have a “substantial effect” on interstate commerce. Id. at 586. The Court should conform its analysis

to that meaning in this and future cases, and doing so need

not result in upheaval.

Finally, if the Court does analyze whether the government can meet its burden of justifying § 922(g)(8) under

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.

Ct. 2111 (2022), amicus urges the Court to resolve, in favor

of the founding era, the “scholarly debate” over which

time period’s historical references should control. Id. at

2138. Contrary to the claims of those favoring predominance of the period at and around adoption of the Fourteenth Amendment, that adoption did not, and could not,

transform the original public meaning of the Second

Amendment.

The Court should affirm the Fifth Circuit’s judgment

on the grounds set out below.

5

ARGUMENT

I. This Court Can And Should Consider Respondent’s

Alternative Argument.

Respondent’s alternative argument under the

Commerce Clause is important, dispositive, and should be

considered despite his failure to raise the argument in the

lower courts. In Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995), petitioner was allowed to raise an

argument that he not only failed to press in the lower

courts, he expressly disavowed it. “Our traditional rule is

that ‘[o]nce a federal claim is properly presented, a party

can make any argument in support of that claim; parties

are not limited to precise arguments they made below.’”

Id. at 379 (quoting Yee v. Escondido, 503 U.S. 519, 534

(1992)). Thus, in Lebron, the petitioner’s new argument fit

within his broader claim that “Amtrak did not accord him

the rights it was obliged to provide by the First

Amendment,” 513 U.S. at 374; here, Respondent is

likewise arguing that the Constitution did not authorize

Congress to enact § 922(g)(8).

Here, moreover, Rahimi’s status as respondent

further supports his ability to raise new arguments in

support of the judgment: “Although in some instances we

have allowed a respondent to defend a judgment on

grounds other than those pressed or passed upon below,

see, e.g., U.S. v. Romani, 523 U.S. 517, 526 n.11 (1998), it

is quite a different matter to allow a petitioner to assert

new substantive arguments attacking, rather than

defending, the judgment when those arguments were not

pressed in the court whose opinion we are reviewing, or at

6

least passed upon by it.” United States v. United Foods,

Inc., 533 U.S. 405, 417 (2001).

As set out below, after Lopez and Morrison, there can

be no argument that § 922(g)(8) is a valid exercise of

Congress’ authority under the Commerce Clause. The

only remaining question is whether the addition of a

traveled-once-in-interstate-commerce element somehow

changes that. It would be a charade, however, to conclude

that this element brings the statute within the commerce

power, since nearly every single firearm in the Nation has

crossed a state line at some point. See § III.B.2, infra.

And that very important question, to be sure, has

generated significant attention in the lower courts:

Multiple lower courts have observed the tension between

Scarborough and Lopez. See, e.g., United States v.

Kuban, 94 F.3d 971, 977–78 (5th Cir. 1996) (DeMoss, J.,

dissenting); United States v. Chesney, 86 F.3d 564, 577–

82 (6th Cir. 1996) (Batchelder, J., concurring); United

States v. Lemons, 302 F.3d 769, 773 (7th Cir. 2002);

United States v. Alderman, 565 F.3d 641, 648–50 (9th Cir.

2009) (Paez, J., dissenting); United States v. Patton, 451

F.3d 615, 634–36 (10th Cir. 2006). This long-brewing

uncertainty is all the more reason to address

Respondent’s alternative argument.

II. The Federal Government Has No General Police

Power To Restrict The Public’s Keeping And Bearing

Of Arms.

The Constitution “withold[s] from Congress a plenary

police power that would authorize enactment of every

type of legislation.” Lopez, 514 U.S. at 566. Madison

7

stressed that “[t]he powers delegated by the proposed

Constitution to the federal government are few and

defined. Those which are to remain in the State

governments are numerous and indefinite.” THE

FEDERALIST NO. 45, at 292 (James Madison) (Clinton

Rossiter ed., 1961).

“[T]he principle that ‘the Constitution created a Federal Government of limited powers,’ while reserving a

generalized police power to the States, is deeply ingrained

in our constitutional history.” Morrison, 529 U.S. at 618

n.8 (quoting New York v. United States, 505 U.S. 144, 155

(1992)) (cleaned up). Because Congress has no police

power to address whatever societal problem it wishes,

“[e]very law enacted by Congress must be based on one

or more of its powers enumerated in the Constitution.”

Morrison, 529 U.S. at 607.

The amicus brief submitted by Sen. Blumenthal and

other members of Congress conspicuously fails to identify

the Article I power they believe authorizes § 922(g)(8).

They do, however, identify the reason for the law’s ban on

possession by persons subject to a domestic violence

restraining order: “It was Congress’s well-founded

concern that firearms threatened the lives of the abused

that motivated its passage.” Am. Br. of Sen. Blumenthal,

et al., at 6 (Congressional Amicus Brief). “Congress

determined that ‘individuals with a history of domestic

abuse should not have easy access to firearms,’” by which

they could inflict further harm. Id. at 7 (citation omitted).

A similar motivation to protect women from harm

gave rise to the Violence Against Women Act, which

created a federal civil remedy to female victims of a crime

8

of violence motivated by gender. 42 U.S.C. § 13981

(“VAWA”). In Morrison, the Court required Congress to

justify VAWA as a valid exercise of an enumerated power;

rejecting the argument that the law was authorized by the

Commerce Clause, the Court concluded “we can think of

no better example of the police power, which the Founders denied the National Government and reposed in the

States, than the suppression of violent crime and vindication of its victims.” 529 U.S. at 618.

The same is true here: The United States confirms

that 48 states, including Respondent’s state of Texas,

“restrict gun possession by persons subject to protective

orders or permit courts to impose such restrictions.” Br.

for the United States, at 35. The states have already

exercised their police powers to accomplish precisely

what § 922(g)(8) aims to accomplish. Lopez explained how

this overlap undermines federalism:

Under our federal system, the States possess

primary authority for defining and enforcing the

criminal law. When Congress criminalizes conduct

already denounced as criminal by the States, it

effects a change in the sensitive relation between

federal and state criminal jurisdiction.

Lopez, 514 U.S. at 561 n.3 (internal quotation marks and

citations omitted).

The Congressional Amicus Brief protests that the

need to assure “the public is kept safe from the scourge of

gun violence” “is particularly acute in the context of

domestic violence.” Cong. Am. Br. at 2. But the power to

enact § 922(g)(8), like any federal law, must be conferred

by Article I. Here it is not.

9

III. Article I Does Not Confer Authority To Restrict Mere

Possession Of Arms By Private Citizens.

The government cannot point to an Article I power to

justify § 922(g)(8).

A. The Militia Organizing Clause Does Not Delegate

To Congress The Power To Restrict The Keeping

Of Arms By Private Individuals.

The only express reference to arms in Article I appears in section 8, clause 16, which states that “[t]he

Congress shall have Power To . . . provide for organizing,

arming, and disciplining the Militia. . . .” The government

has not asserted that § 922(g) is an exercise of Congress’

militia power, nor could it. By its terms, the Militia Clause

directs that Congress shall “provide for . . . arming” the

citizens, not disarming them. Id. (emphasis added); see,

e.g., Abbott v. Biden, 70 F.4th 817, 830 (5th Cir. 2023)

(Organizing Clause not only “authorizes Congress to

furnish weapons and other military equipment,” but “it

also gives Congress authority to require that the militia

be armed in other ways”). Participating in the militia

service could not remotely serve as “the best possible

security against” the threat of tyranny if the Organizing

Clause gave Congress the power to ban possession of

arms. THE FEDERALIST NO. 29, at 185 (Alexander

Hamilton) (Clinton Rossiter ed., 1961).

George Mason expressed an Anti-Federalist worry

that Congress could “disarm” the militia, but not by

literally taking arms away or banning possession; rather,

he objected that Congress could “neglect to provide for

10

arming” “in order to have a pretense of establishing a

standing army.” 3 THE DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION, AS RECOMMENDED BY THE GENERAL

CONVENTION AT PHILADELPHIA IN 1787, at 379 (Jonathan Elliot ed., 2d. ed. 1836). But the worry was overblown

in any event, as both “[t]he Federalists and AntiFederalists feared that a standing army would lead

ineluctably to tyranny.” Abbott, 70 F.4th at 821. And the

first Militia Act required each and every able-bodied man

to “provide himself” with “arms, ammunition and

accoutrements” necessary for militia service. Act of May

8, 1792, § 1, 1 Stat. at 271.

Nor was the power to “discipline” the militia

understood to authorize disarming a citizen for conduct

the Congress might believe justifies disarming. As

explained in Abbott, “the Organizing Clause uses

‘discipline’ to mean instruction and not punishment.” 70

F.4th at 832; see also 1 Samuel Johnson, A Dictionary of

the English Language 601 (6th ed. 1785) (defining

“discipline” first as “Education; instruction; the act of

cultivating the mind”). On the other hand, the power to

“govern” the militia “naturally entail[ed] the power to

punish,” but that federal authority attaches only “after

the militia has successfully been called forth.” Abbott, 70

F.4th at 831–32. In other words, there is no freestanding

grant of congressional authority to discipline or punish

would-be members of the militia—by disarming them or

otherwise—outside the scope of active federal service.

Finally, as a matter of constitutional structure, the

very presence of the Organizing Clause’s “arming”

11

requirement—not to mention the Second Amendment—

should temper any argument that Congress has expansive

authority under the Commerce Clause to disarm citizens.

The Founders did not establish a federal government to

take the People’s weapons.

B. The Commerce Clause Does Not Authorize

Congress To Enact Criminal Laws Banning Mere

Possession Of Arms.

The government can be expected to claim that

§ 922(g)(8) is a valid exercise of its Article I power to

“regulate Commerce . . . among the several States.” U.S.

CONST., Art. I, § 8, cl. 3. Lopez and Morrison demonstrate

that it is not.

1. Lopez and Morrison foreclose any argument

that § 922(g)(8) is a valid exercise of the

Commerce Clause Power.

Criminalizing the intrastate possession of a firearm by

an individual subject to a family law restraining order is

outside of Congress’ Commerce Clause power.

a. Section 922(g), just like Section 922(q) in Lopez, “is

a criminal statute that by its terms has nothing to do with

‘commerce’ or any sort of economic enterprise, however

broadly one might define those terms.” 514 U.S. at 561. In

Morrison, this Court explained that “Lopez’s review of

Commerce Clause case law demonstrates that in those

cases where we have sustained federal regulation of

intrastate activity based upon the activity’s substantial

effects on interstate commerce, the activity in question

has been some sort of economic endeavor.” 529 U.S. at

611. That essential connection is absent here; intrastate

12

“possession” of a firearm is indisputably noneconomic

activity. Lopez, 514 U.S. at 560–61. And domestic

violence—just like gender-motivated violence more

generally—is “not, in any sense of the phrase, economic

activity.” Morrison, 529 U.S. at 613.

b. Lopez and Morrison doom any effort by the

government to aggregate the impacts of domestic violence

to justify congressional action. Congress may not

“regulate noneconomic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate

commerce. The Constitution requires a distinction

between what is truly national and what is truly local.”

Morrison, 529 U.S. at 617–18; see also Lopez, 514 U.S. at

567 (“The possession of a gun . . . is in no sense an

economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate

commerce.”). And in both cases the Court highlighted the

expansive threat to federalism posed by permitting

Congress to regulate criminal activity that has only a

tenuous relationship to interstate commerce. Lopez, 514

U.S. at 563–64; Morrison, 529 U.S. at 612–13.

But that is precisely what the Court faces—again—

here: The House Conference Report accompanying

§ 922(g)(8)’s passage recites that “firearms are used by

the abuser in 7 percent of domestic violence incidents and

produces an adverse effect on interstate commerce” and

that, therefore, “individuals with a history of domestic

abuse should not have easy access to firearms.” H.R.

Conf. Rep. No. 103-711, at 391 (1994). Importantly, Lopez

and Morrison affirm that “simply because Congress may

conclude that a particular activity substantially affects

13

interstate commerce does not necessarily make it so.”

Morrison, 529 U.S. at 614 (quoting Lopez, 514 U.S. at 557

n.2 (further citations omitted and cleaned up)).

Moreover, if only 7% of domestic violence “produces

an adverse effect on interstate commerce,” then it should

follow that the other 93% really affects interstate

commerce—after all, there is nothing unique about using

a firearm that alters the nexus between the violence and

interstate commerce. But any suggestion that domestic

violence generally could properly be made a federal crime

is untenable under Morrison. As a result, it cannot

possibly be that regulating the 7% of domestic violence

accomplished with a gun is a valid exercise of the

Commerce Clause power. Cf Morrison, 529 U.S. at 615

(“[I]f Congress may regulate gender-motivated violence,

it would be able to regulate murder or any other type of

violence since gender-motivated violence, as a subset of all

violent crime, is certain to have lesser economic impacts

than the larger class of which it is a part.”).

At bottom, this is just Congress trying to wield a police

power that “completely obliterate[s] the Constitution’s

distinction between national and local authority.” Id.

Morrison explained that the aggregation theory cannot

transform local conduct into activity subject to

Congressional regulation. 529 U.S. at 614–19.

c. Section 922(g)(8), like § 922(q) in Lopez, “is not an

essential part of a larger regulation of economic activity,

in which the regulatory scheme could be undercut unless

the intrastate activity were regulated.” 514 U.S. at 561.

Accordingly, § 922(g)(8) “cannot . . . be sustained under

[the Court’s] cases upholding regulations of activities that

14

arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially

affects interstate commerce.” Id.; see also id. at 560

(noting the Agricultural Adjustment Act of 1938 at issue

in Wickard v. Filburn, 317 U.S. 111, 128 (1942), “perhaps

the most far-reaching example of Commerce Clause

authority,” was at least “designed to regulate the volume

of wheat moving in interstate and foreign commerce in

order to avoid surpluses and shortages”).

Just as “the noneconomic, criminal nature of the conduct at issue was central to [the Court’s] decision in”

Lopez, Morrison, 529 U.S. at 610, so too here. The goal of

§ 922(g) is simply and only the restriction of firearm

possession one person at a time; there is no greater

economic program that depends on these individual

disarmaments. Just like § 922(q) in Lopez, § 922(g)(8) is

not connected (let alone necessary) to a larger

congressional effort to regulate the firearms trade or

control any other economic activity—it is a criminal

statute, pure and simple. Regulating the intrastate

possession of firearms by persons subject to family law

restraining orders is not “essential to a comprehensive

regulation of interstate commerce.” Gonzales v. Raich,

545 U.S. 1, 37 (2005) (Scalia, J., concurring).2

d. That § 922(g) seeks to regulate family law strongly

underscores its invalidity on federalism grounds. In

To be sure, amicus is not arguing that either Wickard or

Raich were correctly decided. Rather, this discussion

2

demonstrates that § 922(g)(8) cannot be justified even under these outliers.

15

Lopez, Justice Kennedy wrote separately to emphasize

that, if the federal government were to “take over the

regulation of entire areas of traditional state concern,

areas having nothing to do with the regulation of

commercial activities, the boundaries between the

spheres of federal and state authority would blur and

political accountability would become illusory.” 514 U.S.

at 577 (Kennedy, J., concurring) (citations omitted). Those

boundaries were crossed in § 922(q)’s regulation of

noneconomic activity in proximity to schools, because “it

is well established that education is a traditional concern

of the States.” Id. at 580 (citations omitted); id. at 581

(“The proximity to schools . . . is the very premise for

making the conduct criminal. In these circumstances, we

have a particular duty to ensure that the federal-state

balance is not destroyed.”).

The Court has long recognized that family law is

likewise traditionally the province of state law. In re

Burrus, 136 U.S. 586, 593–94 (1890) (“The whole subject

of the domestic relations . . . belongs to the laws of the

States, and not to the laws of the United States.”); Sosna

v. Iowa, 419 U.S. 393, 404 (1975) (“[D]omestic relations [is]

an area that has long been regarded as a virtually

exclusive province of the States.”)). Indeed, Morrison

observed that VAWA carved out from its reach instances

of violence “in the family law context,” since including

family-law violence would have made it even more

obviously beyond the Commerce Clause power:

“Petitioners’ reasoning, moreover, will not limit Congress

to regulating violence but may, as we suggested in Lopez,

be applied equally as well to family law and other areas of

16

traditional state regulation . . . . Congress may have recognized this specter when it expressly precluded [VAWA]

from being used in the family law context.” 529 U.S. at

615–16.

Here, just as Justice Kennedy cautioned in Lopez, “[i]f

a State or municipality determines that harsh criminal

sanctions are necessary and wise to deter [domestic

violence with a firearm], the reserved powers of the States

are sufficient to enact those measures.” Lopez, 514 U.S.

at 581 (Kennedy, J., concurring) (noting further that “over

40 states already have criminal laws outlawing the

possession of firearms on or near school grounds”). As

noted above, 48 states, including Texas, “restrict gun

possession by persons subject to protective orders or

permit courts to impose such restrictions.” Br. for the

United States, at 35. Indeed, since Respondent violated

the express terms of the state court restraining order

preventing him from possessing a firearm after

determining he was likely to commit violence, J.A. 5, the

Texas judiciary has a separate and independent interest

in disciplining him. Concluding that § 922(g)(8) exceeds

Congress’ commerce power would affirm Texas’

traditional state law authority.

2. Section

922(g)(8)’s

inclusion

of

a

“jurisdictional hook” does not salvage the

law as a proper exercise of the Commerce

Clause power.

The only question here is whether the mere inclusion

of a jurisdictional element to the crime in § 922(g)(8)—

prohibiting the possession of a firearm “in or affecting

17

commerce”—suffices transform § 922(g)(8) into a proper

exercise of Commerce Clause authority. It does not.

The government will doubtless argue that Scarborough v. United States controls here. Scarborough involved a federal statute making it a crime for a felon to

receive, possess, or transport any firearm “in commerce

or affecting commerce.” 431 U.S. at 564 (quoting 18 U.S.C.

§ 1202(a) (1970 ed.)). The facts of Scarborough’s case illustrate the Court’s limited holding. A year after pleading

guilty to a felony narcotics charge, Scarborough was arrested with nearly 300 doses of LSD. United States v.

Scarborough, 539 F.2d 331, 332 (4th Cir. 1976). A search

also turned up four firearms, and Scarborough was convicted of “possessing” the guns under the felon-in-possession statute. Id. at 332–33; Scarborough, 431 U.S. at 564–

65. This Court granted certiorari to resolve a circuit split

over whether the government was required to prove a

connection between a defendant’s “possession” of a firearm and interstate commerce, or if it was sufficient for the

government to prove only that the firearm had “previously traveled” in interstate commerce. Id. at 566–67.

Scarborough thus resolved a limited question of statutory interpretation: “[W]hether proof that the possessed

firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between

the possession of a firearm by a convicted felon and commerce.” Id. at 564. The Court did not consider whether the

statute’s jurisdictional hook rendered the law a proper exercise of the commerce power.

18

But as Justice Thomas (joined by Justice Scalia) has

explained, the lower courts’ interpretation of Scarborough to bless a federal prosecution whenever a firearm

has ever crossed state lines nullifies the essential holding

of Lopez: Such “logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the

States.” Alderman v. United States, 562 U.S. 1163, 131 S.

Ct. 700 (2011) (Thomas, J., dissenting from denial of cert.).

There are several reasons for the Court to clarify that

Scarborough does not give the government free rein to

make a federal case out of the mere possession of an item

that once traveled in interstate commerce.

a. First, Scarborough is a “statutory interpretation

opinion” not a constitutional holding. Alderman, 131 S. Ct.

at 700 (Thomas, J., dissenting from denial of cert.). This

counsels against giving Scarborough any weight in the

Commerce Clause context and highlights the need to clarify its continued application after Lopez. Cf. Janus v. Am.

Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S.

Ct. 2448, 2479 (2018) (distinguishing case that was “decided as a matter of statutory construction, and so did not

reach any constitutional issue”).

b. Second, if Scarborough could be considered a constitutional holding,3 that mistake should be corrected: It

Some lower courts have acknowledged that Scarborough

only resolved a statutory question yet found that the

Court “assumed” or “implicitly” acknowledged the constitutionality of the statute. See, e.g., Patton, 451 F.3d at 634;

Alderman, 565 F.3d at 645.

3

19

is wrong and in fundamental discord with Lopez. “Scarborough, as the lower courts have read it, cannot be reconciled with Lopez because it reduces the constitutional

analysis to the mere identification of a jurisdictional

hook.” Alderman, 131 S. Ct. at 702 (Thomas, J., dissenting

from denial of cert.); see also United States v. Seekins, 52

F.4th 988, 991 (5th Cir. 2022) (Ho, J., dissenting from denial of rehearing en banc) (“A number of circuit judges

nationwide have noted the fundamental inconsistency between Lopez and Scarborough.”) (collecting cases). As

Justice Thomas explained, adhering to Scarborough

“could very well remove any limit on the commerce

power” by “permit[ting] Congress to regulate or ban possession of any item that has ever been offered for sale or

crossed state lines.” Alderman, 131 S. Ct. at 703 (Thomas,

J., dissenting from denial of cert.).

Lopez did not need to mention Scarborough since

§ 922(q) did not have a jurisdictional element. And while

Lopez observed that § 922(q)’s lack of jurisdictional element was one of several reasons showing why § 922(q) was

not authorized by the Commerce Clause, 514 U.S. at 561,

it never said that adding such an element, by itself, would

automatically suffice to establish that § 922(q) was a valid

exercise of the Commerce Clause power. Nor could it: “A

jurisdictional hook is not . . . a talisman that wards off constitutional challenges.” Patton, 451 F.3d at 632.

Indeed, the surrounding language in Lopez demonstrates that, even if the statute had a jurisdictional requirement, the actual circumstances of future applications

would still matter: Such a requirement “would ensure,

through case-by-case inquiry, that the firearm possession

20

in question affects interstate commerce.” 514 U.S. at 561

(emphasis added); see also Patton, 451 F.3d at 632 (noting

the “ultimate inquiry is whether the prohibited activity

has a substantial effect on interstate commerce”).

And it cannot be the case that mere possession of a gun

that once crossed state lines would suffice, given Lopez’s

additional statement that a jurisdictional requirement

“might limit [the statute’s] reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” 514 U.S. at

562 (emphasis added). No such “discrete set” of a greater

whole, in fact, exists if crossing state lines once is all it

takes: The government has proffered testimony that 95%

of all guns in the United States have crossed state lines.

Newton, Felons, Firearms, and Federalism: Reconsidering Scarborough in Light of Lopez, 3 J. APP. PRAC. &

PROCESS 671, 682 & n.53 (2001). President Clinton inadvertently exposed the charade when he proposed the postLopez amendment to the Gun-Free School Zones Act: He

announced that the Attorney General had assured him

that adding this new jurisdictional element “would have

little, if any, impact on the ability of prosecutors to charge

this offense, for the vast majority of firearms have ‘moved

in . . . commerce’ before reaching their eventual possessor.” President’s Message to the Congress Transmitting

Proposed Legislation to Amend the Gun-Free School

Zones Act of 1990 (May 10, 1995).

c. All of this theory risks missing the forest for the

trees when it comes to § 922(g)(8): It is nearly impossible

to conceive how possession of a single gun by an individual

subject to a domestic violence restraining order could

21

ever affect interstate commerce, substantially or otherwise. All the more so considering the noneconomic act of

possession cannot be aggregated with others’ possessions

to conjure up a “substantial effect” on interstate commerce. Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 615–

18. The fact that the gun may have crossed state lines long

before the § 922(g)(8) defendant ever gained possession of

it only underscores the fiction that this statute has anything to do with “commerce.” See, e.g., Kuban, 94 F.3d at

977–78 (5th Cir. 1996) (DeMoss, J., dissenting) (“[T]he

precise holding in Scarborough is in fundamental and irreconcilable conflict with the rationale [in] Lopez[.] . . .

The mere fact that a felon possesses a firearm which was

transported in interstate commerce years before the current possession cannot rationally be determined to have a

substantial impact on interstate commerce as of the time

of current possession.”) (quotation marks omitted).

The Court has been wary long after Scarborough of

using expansive jurisdictional hooks to extend congressional authority beyond proper constitutional limits. Most

notably, in Jones v. United States, the Court held that the

federal arson statute (covering property “used in . . . any

activity affecting . . . commerce”) did not reach a private

residence that had been torched by a Molotov cocktail in

a family dispute. 529 U.S. at 854–57. The federal government claimed jurisdiction because the home was “used” to

secure a home loan and home insurance from out-of-state

businesses, and the owner “used” the home to receive natural gas from out-of-state sources. Id. at 855. The Court

rejected this gambit: If the statute applied to every building that “bears some . . . trace of interstate commerce,”

22

then “hardly a building in the land would fall outside the

federal statute’s domain.” Id. at 857. Moreover, “grave

and doubtful constitutional questions arise” under Lopez

where a statute “render[s] . . . ‘traditionally local criminal

conduct’ . . . ‘a matter for federal enforcement.’” Id. at

857, 858 (citations omitted). These same risks exist here.

* * *

If any possession of any gun that has ever crossed a

state line suffices to bring § 922(g)(8) within the commerce

power, then Lopez has been gutted and § 922(g)(8) operates as an exercise of the police power. That Scarborough

has been misunderstood this long underscores the need to

restore order to the Court’s Commerce Clause doctrine.

IV. In All Events, The Court Should Restore The Original

Public Meaning Of The Commerce Clause.

As Justice Thomas explained in Lopez, the Court has

strayed from the original public meaning of the

Commerce Clause by accepting that Congress may regulate not only “Commerce . . . among the several States,”

U.S. CONST., Art. I, § 8, cl. 3, but also anything that has a

“substantial effect” on such commerce. This test, if taken

to its logical extreme, would give Congress a ‘police

power’ over all aspects of American life.” Lopez, 514 U.S.

at 584 (Thomas, J., concurring).

At the founding, “commerce” had a limited and distinct meaning: It referred to “trade,” in the sense of “selling, buying, and bartering, as well as transporting for

these purposes.” Id. at 585 (citing, e.g., 1 Samuel Johnson,

A Dictionary of the English Language 361 (4th ed. 1783)

(defining commerce as “Intercour[s]e; exchange of one

23

thing for another; interchange of any thing; trade; traffick”)). It manifestly did not refer to or include manufacturing or agriculture, as the Founders used the word

“commerce” in “contradistinction” to those “productive

activities.” Id. at 586. For example, whereas regulation of

“[c]ommerce” was “lodged in the national” government,

Hamilton assured that “the supervision of agriculture and

of other concerns of a similar nature, all those things, in

short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” THE FEDERALIST NO. 17, at 118 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also THE

FEDERALIST NO. 21 (Alexander Hamilton), id. at 141 (Alexander Hamilton) (“The wealth of nations depends on an

infinite variety of causes[, including] climate, the nature

of the productions, the nature of the government, the genius of the citizens, . . . the state of commerce, of arts, of

industry. . . .”).

By slowly expanding the definition of “commerce” to

reach all such economically “productive activities” (like

manufacturing and agriculture), the Court has “interject[ed] a modern sense of commerce into the Constitution.” Lopez, 514 U.S. at 586–87 (Thomas, J., concurring).

This expansion, Justice Thomas explained, “generates

significant textual and structural problems.” Id. at 587. It

makes no sense to say, for example, that Congress can

regulate “manufacturing among the several States” or

“manufacturing with a foreign nation,” because “commerce encompasses traffic” rather than activity that

“takes place at a discrete site.” Id. And by compounding

this interpretive error with the “substantial effects” test,

24

the “Commerce Clause has virtually no limits” now. Morrison, 529 U.S. at 627 (Thomas, J., concurring).

Professor Barnett has conducted exhaustive reviews

of original sources to confirm Justice Thomas’ position. In

The Original Meaning of the Commerce Clause, 68 U.

CHI. L. REV. 101 (2001), Barnett surveyed founding era

sources and analyzed every use of the word “commerce”

in the drafting and ratification process and found that it

was uniformly meant to convey a narrow meaning,

consistent with Justice Thomas’ concurrence in Lopez

(i.e., commerce in the sense of “trade or exchange of

goods,” as opposed to any “gainful activity”). Id. at 111–

25. In New Evidence of the Original Meaning of the

Commerce Clause, 55 ARK. L. REV. 847 (2003), Barnett

extended his research to every mention of the word

“commerce” in the Pennsylvania Gazette between 1728

and 1800, which only fortified his original findings. In his

analysis of nearly 1,600 uses of the word, Barnett

concluded “that outside as well as inside the process of

drafting and ratifying the Constitution, the normal,

conventional, and commonplace public meaning of

commerce from . . . was ‘trade and exchange,’ as well as

transportation for this purpose.” Id. at 862.

Nor does the Necessary and Proper Clause provide a

side-door basis for expanding the meaning of the

Commerce Clause. That Clause does not empower

Congress to “reach beyond the natural limit of its

authority and draw within its regulatory scope those who

otherwise would be outside of it.” Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 560 (2012) (op. of Roberts,

C.J.). Instead, Congress’ authority under the Necessary

25

and Proper Clause is “derivative of, and in service to, [its]

granted power” such that Congress is “limited to

regulating under the Commerce Clause those who by

some preexisting activity bring themselves within the

sphere of federal regulation.” Id.; see also Lopez, 514 U.S.

at 588–89 (Thomas, J., concurring) (rejecting the notion

that the Necessary and Proper Clause provided authority

for the “substantial effects” test).

Finally, adhering to the original meaning of the

Commerce Clause in this and future cases need not result

in undue upheaval. In Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022), for instance, the Court recounted

how it corrected course in Establishment Clause cases

after the “ambitious” and “ahistorical” test in Lemon v.

Kurtzman, 403 U.S. 602 (1971), had “‘invited chaos’ in

lower courts.” 142 S. Ct. at 2427–28 (citations omitted).

Beginning with Town of Greece v. Galloway, 572 U.S. 565,

575–77 (2014), the Court returned to “instruct[ing] that

the Establishment Clause must be interpreted by

reference to historical practices and understandings.”

Kennedy, 142 S. Ct. at 2428 (quoting Town of Greece, 572

U.S. at 576) (cleaned up). There, as here, “the line that

courts . . . must draw between the permissible and the impermissible has to accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.” Id.

(citation omitted) (cleaned up).

There is no reason the same type of course correction

cannot occur here. The Court should decide this and

future cases based on the original meaning of the

Commerce Clause.

26

V. If The Court Addresses The Second Amendment Issue Here, It Should Likewise Focus Its Historical

Analysis At And Around The Founding In 1791.

The limitations imposed by the Second Amendment—

like the powers conferred by Article I—must be applied

today in accordance with its meaning at the founding. In

Bruen, this Court “[f]ollow[ed] the course charted by Heller,” and “consider[ed] whether ‘historical precedent’

from before, during, and even after the founding evince[d]

a comparable tradition of regulation” to New York’s special-need carry restriction. 142 S. Ct. at 2131–32 (citing

District of Columbia v. Heller, 554 U.S. 570, 631 (2008)).

In doing so, the Court cautioned that “not all history is

created equal. ‘Constitutional rights are enshrined with

the scope they were understood to have when the people

adopted them.’” Id. at 2136 (quoting Heller, 554 U.S. at

634–35) (emphasis in Bruen).

So while the Court “acknowledge[d] that there is an

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),” 142 S. Ct. at

2138,4 multiple signs show that this “debate” must be settled in favor of 1791. That this question has nevertheless

4

Citing Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998), and Lash, Re-Speaking the

Bill of Rights: A New Doctrine of Incorporation, now published 97 INDIANA L. J. 1439, 1441 (2022).

27

divided lower courts underscores the importance of this

Court’s guidance.5

A. The Founding-Era Scope Of Incorporated Rights

Must Control Because Such Rights Have The

Same Meaning As To The States That They Do As

To The Federal Government.

Some commentators have argued that, since individual amendments are incorporated against the States

through the Fourteenth Amendment, the public understanding as of 1868 about the scope of protected rights

should control. Lash, Re-Speaking the Bill of Rights, 97

INDIANA L. J. at 1441 (“When the people adopted the

Fourteenth Amendment into existence, they readopted

the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings.”); Amicus Br. of Everytown for Gun Safety at 10.

The notion that incorporation could “invest” the Second

Amendment with “new 1868 meanings” inconsistent with

5

See, e.g., Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1323

(11th Cir. 2023) (“[T]he right’s contours turn on the understanding that prevailed at the time of the later ratification—that is, when the Fourteenth Amendment was

ratified.”), reh’g en banc granted, op. vacated, 72 F.4th

1346 (2023); United States v. Daniels, 77 F.4th 337, 348

(5th Cir. 2023) (“Even if the public understanding of the

right to bear arms did evolve, it could not change the

meaning of the Second Amendment, which was fixed

when it first applied to the federal government in 1791.”).

28

the founding era understanding of the Second Amendment is nonsense.

Despite purporting to leave open the 1791 vs. 1868

“debate,” Bruen itself stressed that “we 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 (emphasis

added). After all, “incorporation” simply asks the question

whether, long after the passage of the Fourteenth

Amendment, a particular limitation on the federal government in the Bill of Rights should also apply to state and

local governments. Malloy v. Hogan, 378 U.S. 1, 11 (1964)

(“It would be incongruous to have different standards determine the validity of a claim of privilege [against selfincrimination under the Fifth Amendment] depending on

whether the claim was asserted in a state or federal

court.”); McDonald v. City of Chicago, 561 U.S. 742, 788

(2010) (the “relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle”). And as Prof. Smith observes, “[t]he Court

does not apply two different versions of the Second

Amendment, or two versions of other incorporated provisions of the first eight amendments in the Bill of Rights.”6

6

Smith, “Not all History is Created Equal”: In the Post-

Bruen World, the Critical Period for Historical Analogues

is when the Second Amendment was Ratified in 1791, and

not 1868, manuscript at 7 (posted Nov. 4, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4248297).

29

The Court partially demonstrated this point through

the precedents it cited for the practice of “generally assum[ing] that the scope of the protection applicable to the

Federal Government and States is pegged to the public

understanding of the right when the Bill of Rights was

adopted in 1791.” Bruen, 142 S. Ct. at 2137–38 (citing

Crawford v. Washington, 541 U.S. 36, 42–50 (2004) (scope

of Sixth Amendment right to confrontation governed by

“founding generation’s” understanding); Virginia v.

Moore, 553 U.S. 164, 168–69, 172 (2008) (scope of Fourth

Amendment determined in “founding era”) (citation omitted); and Nevada Comm’n on Ethics v. Carrigan, 564 U.S.

117, 122–23 (2011) (founding era treatment “dispositive”

on scope of First Amendment)). These are not the only

examples to reinforce that the founding era understanding determines the meaning and scope of the Bill of

Rights. See, e.g., United States v. Jones, 565 U.S. 400, 411

(2012) (explaining that the Court “appl[ies] an 18th-century guarantee against unreasonable searches” based

“the degree of protection [the Fourth Amendment] afforded when it was adopted”).

In short, the Founders’ understanding is the interpretive lodestar when considering the Bill of Rights. This

methodology is essential to ensure parity of protection

against federal or state action: “[I]ncorporated provisions

of the Bill of Rights bear the same content when asserted

against States as they do when asserted against the federal government.” Ramos v. Louisiana, 140 S. Ct. 1390,

1397 (2020). So “if a Bill of Rights protection is incorporated, there is no daylight between the federal and state

conduct it prohibits or requires.” Timbs v. Indiana, 139 S.

30

Ct. 682, 687 (2019). Accordingly, the understanding of the

Second Amendment in and around 1791 controls.

B. Post-Founding-Era Regulations Are Relevant

Only To The Extent They Confirm Traditions

From The Founding.

Bruen also stressed that courts “must . . . guard

against giving postenactment history more weight than it

can rightly bear.” 142 S.Ct. at 2136. And Bruen affirms

that, while it is permissible for courts to consider postfounding-era historical regulations, that review is limited

to determining whether such regulations confirm a founding era tradition. Id. at 2137. Put simply, “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. (quoting Heller v.

District of Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir.

2011) (Kavanaugh, J., dissenting)) (emphasis in original).

As Prof. Smith explains: “No Supreme Court case has

ever looked to 1868 as the principal period for determining the meaning of an individual right in the Bill of Rights.

If periods after 1791 are consulted at all, it is only to confirm that subsequent authorities, generally very shortly

after the founding, remained consistent with the public

understanding in 1791.” Smith, supra, manuscript at 4–5.

The Court has taken this approach in multiple cases.

In Gamble v. United States, 139 S. Ct. 1960 (2019), the petitioner pointed to Heller’s examination of 19th-century

sources to argue that similar-vintaged treatises supported a different interpretation of the Double Jeopardy

Clause than the one at the founding. The Court rejected

31

this approach and observed that Heller “turned to these

later treatises only after surveying what it regarded as a

wealth of authority [from the founding era]. The 19th-century treatises were treated as mere confirmation of what

the Court thought had already been established.” Id. at

1975–76 (emphasis added); see also, e.g., Crawford, 541

U.S. at 47, 50 (citing 19th-century treatises that “confirm[ed]” founding-era rule).

Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246

(2020), illustrates that these principles overcome even

widespread 19th-century practices inconsistent with the

founding-era understanding. In Espinoza, the state took

the position that a tuition-assistance bill generally applicable to private schools had to exclude religious schools in

light of the Montana state constitution’s prohibition on

“aid” to such schools. To support its claim that Montana’s

discrimination didn’t violate the Religion Clauses, the

state “argue[d] that a tradition against state support for

religious schools arose in the second half of the 19th century, as more than 30 States—including Montana—

adopted no-aid provisions.” Id. at 2258 (emphasis in original). But the Court rejected the notion that the 19th-century adoption of such laws by even a majority of states

could “by itself establish an early American tradition.” Id.

at 2259. The Court stressed that, “[i]n the founding era

and the early 19th century, governments provided financial support to private schools, including denominational

ones.” Id. at 2258. Given that foundation, the “no-aid provisions of the 19th-century hardly evidence a tradition

that should inform our understanding of the Free Exercise Clause.” Id. at 2259.

32

Thus, when confronted with even fewer late-19th-century outliers in Bruen, the Court had no trouble similarly

concluding that “late-19th-century [and] 20th-century evidence . . . does not provide insight into the meaning of the

Second Amendment when it contradicts earlier evidence.”

Bruen, 142 S. Ct. at 2154 n.28 (emphasis added); see also

id. at 2163 (Barrett, J., concurring) (the Court’s ruling

“should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of

Rights.”). Later history that contradicts the text and

founding understanding of the constitution cannot control

the Court’s Second Amendment analysis.

CONCLUSION

The decision below should be affirmed.

Respectfully submitted.

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

October 4, 2023

Counsel for Amicus Curiae