Amicus Curiae Brief — United States, Petitioner v. Zackey Rahimi
Supreme Court briefOct 4, 2023
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No. 22-915
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IN THE
Supreme Court of the United States
____________________
UNITED STATES,
Petitioner,
v.
ZACKEY RAHIMI, Respondent.
____________________
On Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
____________________
Brief Amicus Curiae of Gun Owners of
America, Inc., Gun Owners Foundation, Heller
Foundation, Tennessee Firearms Association,
Grass Roots North Carolina, Rights Watch
International, Virginia Citizens Defense
League, America’s Future, and Conservative
Legal Defense and Education Fund in Support
of Respondent
____________________
JOHN I. HARRIS III
Nashville, TN
RICK BOYER
Lynchburg, VA
*Counsel of Record
October 4, 2023
ROBERT J. OLSON*
WILLIAM J. OLSON
JEREMIAH L. MORGAN
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4
Vienna, VA 22180
(703) 356-5070
wjo@mindspring.com
Attorneys for Amici Curiae
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT
I.
THE GOVERNMENT’S “DANGEROUSNESS”
ANALOGUES REPRESENT UNAMERICAN
ATTEMPTS TO DISCRIMINATE AGAINST
DISFAVORED GROUPS AND HAVE NO
CONTINUING VALIDITY IN OUR HISTORICAL
TRADITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Second Amendment Was Designed
to Protect Disfavored Groups from
Disarmament by Government . . . . . . . . . . 7
B. The Second Amendment Is Part of a
Constitutional Mosaic that Limits the
Power of Government to Deem Persons
Too Dangerous or Untrustworthy to
Enjoy Basic Civil Liberties . . . . . . . . . . . . . 9
1.
First Amendment: Free Exercise of
Religion . . . . . . . . . . . . . . . . . . . . . . . . 10
2.
First Amendment: Free Speech . . . . 12
3.
Third Amendment . . . . . . . . . . . . . . . 13
ii
4.
Fourteenth Amendment. . . . . . . . . . . 15
II. THE HISTORICAL ANALOGUES PROFFERED
BY THE UNITED STATES SUFFER FROM ONE
FATAL FLAW: GROSSLY DISSIMILAR
PENALTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. Penalty Severity Is a Valid Analogical
Consideration . . . . . . . . . . . . . . . . . . . . . . 18
B. None of the United States’ Purported
Analogues Came Close to Imposing the
Lifelong Stigma as Does a Felony
Conviction Today. . . . . . . . . . . . . . . . . . . . 23
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iii
TABLE OF AUTHORITIES
Page
CONSTITUTION
Amendment I . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12
Amendment II . . . . . . . . . . . . . . . . . . . . . . . . 2-4, 7-9
Amendment III. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
STATUTES
225 ILCS 41/15-72 . . . . . . . . . . . . . . . . . . . . . . . . . 25
225 ILCS 335/7.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 26
225 ILCS 345/15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8 U.S.C. § 1227(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 26
10 U.S.C. § 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
15 U.S.C. § 78c(39)(F) . . . . . . . . . . . . . . . . . . . . . . 27
18 U.S.C. § 922(g)(5) . . . . . . . . . . . . . . . . . . . . . . . . 6
18 U.S.C. § 922(g)(8) . . . . . . . 2, 3, 5, 6, 8, 16, 18, 20,
22, 23, 28, 29
18 U.S.C. § 923(d)(1)(B) . . . . . . . . . . . . . . . . . . . . . 26
18 U.S.C. § 924(a)(8) . . . . . . . . . . . . . . . . . . . . . . . 22
28 U.S.C. § 1865(b)(5) . . . . . . . . . . . . . . . . . . . . . . 24
Ga. Code Ann. § 7-1-1004. . . . . . . . . . . . . . . . . . . . 25
RCW 66.20.310(4)(a) . . . . . . . . . . . . . . . . . . . . . . . 25
TEX. PENAL CODE § 12.22 . . . . . . . . . . . . . . . . . . . . 21
Virginia Code § 15.2-1705 . . . . . . . . . . . . . . . . . . . 25
Virginia Code § 54.1-2409 . . . . . . . . . . . . . . . . . . . 25
REGULATIONS
14 C.F.R. § 61.15(a) . . . . . . . . . . . . . . . . . . . . . . . . 27
49 C.F.R. § 383.51 . . . . . . . . . . . . . . . . . . . . . . . . . 26
CASES
Baldwin v. New York, 399 U.S. 66 (1970) . . . . . . . 24
iv
District of Columbia v. Heller, 554 U.S. 570
(2008) . . . . . . . . . . . . . . . . . . . . . . 8, 15, 18, 22, 28
Dr. A. v. Hochul, 142 S. Ct. 552 (2021) . . . . . . . . . 28
Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) . . 14
Everson v. Bd. of Educ. of the Twp. of Ewing,
330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . 11
Greer v. United States, 141 S. Ct. 2090 (2021) . . . 27
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) . . . . 10
LaChance v. Jowanowitch, 144 F.3d 792 (Fed.
Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
McCreary County v. ACLU, 545 U.S. 844
(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
New York State Rifle & Pistol Assn. v. Bruen,
142 S.Ct.211 (2022) . . . . . . . . . 2, 6, 10, 18, 19, 22
New York Times v. Sullivan, 376 U.S. 254
(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
New York Times Co. v. United States, 403 U.S.
713 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Corona-Sanchez, 291 F.3d 1201
(9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Nesbeth, 188 F. Supp. 3d 179
(E.D.N.Y. 2016) . . . . . . . . . . . . . . . . . . . . . 25, 27
United States v. Perez-Gallan, 640 F. Supp. 3d
697 (W.D. Tex. 2022) . . . . . . . . . . . . . . . . . . . . . 8
United States v. Rodriguez-Gonzales, 358 F.3d
1156 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 24
United States v. Sharp, 12 F.3d 605 (6th Cir.
1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
MISCELLANEOUS
1 Acts and Resolves, Public and Private, of
the Province of the Massachusetts Bay
(1869) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
v
An Act for Disarming Papists, and Reputed
Papists, Refusing to Take the Oaths to the
Government (1756), THE STATUTES AT
LARGE; BEING A COLLECTION OF ALL THE
LAWS OF VIRGINIA, FROM THE FIRST SESSION
OF THE LEGISLATURE, IN THE YEAR 1619,
vol. VII (1820) . . . . . . . . . . . . . . . . . . . . . . . . . 19
An Act to Prohibit the Selling of Guns,
Gunpowder or Other Warlike Stores to the
Indians (1763), STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, vol. VI
(1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
W. Bird, “New Light on the Sedition Act of 1798:
The Missing Half of the Prosecutions,” 34
LAW & HIST. REV. 541 (2016). . . . . . . . . . . . . . 12
W. Cocker, The Government of the United States
(Harper & Brothers: 1889) . . . . . . . . . . . . . . . 15
Clayton E. Cramer, The Racist Roots of Gun
Control, 4 KAN. J.L. & PUB. POL’Y 17 (1995) . . 16
W. Fields and D. Hardy, “The Third Amendment
and the Issue of the Maintenance of
Standing Armies: A Legal History,” 35 AM. J.
LEGAL HIST. 393 (1991) . . . . . . . . . . . . . . . . . . 14
D. Forte, “Spiritual Equality, the Black Codes
and the Americanization of the Freedmen,”
43 LOYOLA L. REV. 568 (1997-1998) . . . . . . . . 16
T. Jefferson, Letter to Mrs. Adams, July 22, 1804,
4 Jefferson’s Works (Washington ed.). . . . . . . 12
M. Kahn, “The origination and early
development of free speech in the United
States: A brief overview,” Florida Bar
Journal (Oct. 2002) . . . . . . . . . . . . . . . . . . . . . 12
A. Kelly, “Fourteenth Amendment Reconsidered,”
54 MICH. L. REV. 1049 (1955-1956) . . . . . . . . . 17
vi
D. Kopel, “Red flag laws: proceed with caution,”
45 LAW & PSYCH. REV. 39 (2020-2021) . . . . . . 20
Bruce E. May, “Real World Reflection: The
Character Component of Occupational
Licensing Laws: A Continuing Barrier to
the Ex-Felon’s Employment Opportunities,”
71 N.D. L. REV. 187 (1995) . . . . . . . . . . . . . . . 24
INTEREST OF THE AMICI CURIAE1
Gun Owners of America, Inc., Gun Owners
Foundation, Heller Foundation, Tennessee Firearms
Association, Grass Roots North Carolina, Rights
Watch International, Virginia Citizens Defense
League, America’s Future, and Conservative Legal
Defense and Education Fund are nonprofit
organizations, exempt from federal income tax under
either section 501(c)(3) or 501(c)(4) of the Internal
Revenue Code. These entities, inter alia, participate
in the public policy process, including conducting
research, and informing and educating the public on
the proper construction of state and federal
constitutions, as well as statutes related to the rights
of citizens, and questions related to human and civil
rights secured by law. Amici work to preserve and
defend the Second Amendment rights of gun owners.
Many of the amici have filed amicus briefs in
numerous cases involving Second Amendment issues
in an effort to aid the courts in a principled analysis of
the enumerated right to keep and bear arms.
STATEMENT OF THE CASE
Respondent Zackey Rahimi had an agreed twoyear protective order entered against him on February
5, 2020. Although the order was agreed to, and there
was a hearing, respondent was not represented by
counsel at that hearing, and he would have been
1
It is hereby certified that no counsel for a party authored this
brief in whole or in part; and that no person other than these
amici curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
2
subject to paying the applicant’s attorneys fees had he
not agreed to the protective order. See Respondent’s
Brief at 3-5. Thereafter, respondent was suspected of
several shootings, and on January 14, 2021, firearms
were found in his room when police were executing a
search warrant. See id. at 6. Respondent was charged
and convicted of a violation of 18 U.S.C. § 922(g)(8),
which prohibits an individual who is subject to certain
types of restraining orders from possessing a firearm.
The district court denied Respondent’s motion to
dismiss the indictment. See Petition Appendix at 78a.
However, following this Court’s decision in New York
State Rifle & Pistol Assn. v. Bruen, 142 S.Ct.211
(2022), the Fifth Circuit vacated Mr. Rahimi’s
conviction, finding that
that § 922(g)(8) “is
inconsistent with the Second Amendment’s text and
historical understanding.” United States v. Rahimi, 61
F.4th 443, 453 (5th Cir. 2023) (“Rahimi”).
SUMMARY OF ARGUMENT
This Court granted review to determine whether
a civil “domestic-violence” protective order, which
triggers mandatory disarmament and is enforced by
felony prosecutions, is permissible under the Second
Amendment. The Government focuses on the alleged
criminal activities of Mr. Rahimi, with five pages of
detailed facts, conflating his alleged felonies with his
entirely unrelated disarmament based on a civil order.
Although Texas has responsibility for addressing
the alleged misdeeds of Mr. Rahimi through its
criminal justice system, the Federal Government seeks
the additional power to prosecute Mr. Rahimi for a
3
felony without reliance on the commission of any
crime. More broadly than that, the Government
desires the power to disarm untold thousands of
Americans subject to civil protective orders, which are
issued based on all manner of marital or relational
discord.
Thus, the Government seeks to turn Americans
who have never committed a felony into felons based
on their mere act of possessing a firearm, and claims
to justify this with historically unsupportable
rationales. Both the Fifth Circuit and Petitioner
provide excellent reasons why the Government’s
proffered historical record is insufficient to support 18
U.S.C. § 922(g)(8).
Amici offer two additional
arguments.
First, pre-Revolutionary laws which disarmed
certain groups based on perceived or purported
“dangerousness” — that is, those persons were deemed
by government to be disloyal or untrustworthy — were
the very reason the Second Amendment was drafted
and ratified. Indeed, the Government fails to point out
that the American Revolution was in large part
precipitated by British gun control that stemmed from
British distrust of the colonists.
As the colonists grew increasingly incensed at
being targeted with new and onerous Royal
enactments, British officials increasingly grew to
distrust most colonists and moved, incrementally, to
deprive them of access to the arms. At the same time,
the colonists were well aware that, if they allowed the
British to seize their firearms, eventually they could
4
not resist the increasingly arbitrary decrees of the
Crown. Importantly, each of the early Revolutionary
skirmishes was directly precipitated by British efforts
at disarmament.
For that reason, the Second
Amendment was ratified, and declares that the “right
to keep and bear arms” is absolutely “necessary for the
security of a free State.”
Not only were the Government’s early proffered
“dangerousness” analogues expressly declared outside
the American constitutional tradition by ratification of
the Second Amendment — they reflected an
expansionist view of government power that were
rejected in other Amendments as well. For example,
the Government cannot deem members of certain
religious orders sufficiently reliable to enjoy
constitutional liberties, while distrusting others.
Government cannot move against its political
opponents through use of seditious libel laws, while
deeming the speech of its supporters reliable.
Likewise, a government that can quarter troops
private homes to oppress its political opponents,
another colonial experiment that led to a direct
constitutional prohibition. And, while the black codes
after the Civil War demonstrated the Government’s
distrust of certain Americans, those laws also cannot
afford analogues. While they may be part of our
history, they are not part of our heritage. At bottom,
attempts to restrict prophylactically the rights of
persons deemed by government to be untrustworthy is
an affront to this Nation’s entire form of government.
Second, the Government asks this Court to find
relevant analogues in laws that imposed minor
5
penalties on offenses relating to various uses of
firearms. At least twice this Court has instructed that
a comparison of penalty severity is an important
consideration in evaluating historical analogues. A
small fine or a short period of incarceration cannot be
compared to the felony treatment the Government
seeks to give to those who have committed no crimes,
but merely possess firearms while suffering marital or
family discord. Such prophylactic group punishment
is not a power with which any government can be
trusted.
Additionally, a comparison of penalties should not
be limited merely to maximum possible periods of
incarceration, and cannot ignore the lifetime
consequences of being convicted of a felony. Once a
person becomes a felon, they are deprived of a wide
variety of rights, including many ways to make a living
or even receive government benefits.
The
Government’s proffered historical analogues certainly
had some comparatively minor penalties affixed, but
they in no way are comparable to the type of Scarlet
Letter affixed to a felon for violation of Section
922(g)(8).
6
ARGUMENT
I.
THE GOVERNMENT’S “DANGEROUSNESS”
ANALOGUES CONSTITUTE UNAMERICAN
ATTEMPTS TO DISCRIMINATE AGAINST
DISFAVORED GROUPS AND HAVE NO
CONTINUING VALIDITY IN OUR
HISTORICAL TRADITION.
As the Fifth Circuit observed, the rather limited
universe of temporally and substantively relevant
historical analogues available to evaluate 18 U.S.C.
§ 922(g)(8) naturally divides into three categories:
dangerousness laws, going-armed laws, and surety
laws. Rahimi at 456. This Court’s metrics identified
in Bruen for assessing the relevancy of purported
historical analogues capture many of the key
dissimilarities that render inapposite the three
categories of laws proffered by the government in this
case. See Bruen at 2133 (identifying “how and why the
regulations burden a law-abiding citizen’s right to
armed self-defense” as central considerations).
For example, perceived dangerousness laws that
discriminated against Native Americans,2 Catholics,
and the “disloyal” were not motivated by a desire to
prevent domestic violence or, for that matter,
2
As to laws disarming Native Americans, such persons were not
considered to be citizens, or even members of the colonies for that
matter. Given the tensions between early settlers and the
indigenous populations they encountered, such firearm
prohibitions would be most analogous to the disarmament of
enemy combatants or aliens today. See, e.g., 18 U.S.C. § 922(g)(5).
7
individualized violence. Instead, these restrictions
served to oppress political opponents or disfavored
minorities. See Rahimi at 457.
But more fundamentally, “dangerousness” laws
that disarmed certain groups on the basis that they
were untrustworthy, unpopular, or dangerous are
entirely unhelpful in determining the outer bounds of
the protected rights, because such laws were precisely
what the Second Amendment was ratified to prevent
in the first place.
A. The Second Amendment Was Designed to
Protect Disfavored Groups from
Disarmament by Government.
An analysis of the government’s proffered
pre-revolutionary analogues requires historical context
that the government fails to provide, in that the
Second Amendment was proposed and ratified in
direct response to British efforts to restrict the rights
of non-loyal colonists, who were viewed as being
potential subversives — a threat to the Crown — who
could not be entrusted with arms.
Indeed, the colonists clearly recognized that, once
they were disarmed, they would be unable to
meaningfully resist the increasingly arbitrary laws
being imposed by King George III. Because of their
steadfast refusal to be disarmed, the early battles of
the Revolutionary War — in each and every case —
were precipitated not as a reaction to “taxation
without representation” or some other grievance, but
8
rather in response to Crown efforts to restrict and
control the colonists’ access to arms.3
Sensitive to that history, the Framers thereafter
incorporated the purpose of the Second Amendment
into its preamble — declaring that arms were not just
helpful or important, but absolutely “necessary to the
security of a free State.” Thus, the historical predicate
for the Second Amendment was the repeated efforts by
British authorities to disarm colonists perceived to be
“disloyal.”
As one court noted in dismissing an indictment for
violation of Section 922(g)(8), laws disarming perceived
“disloyal” persons are contrary to the Second
Amendment’s very purpose. See United States v.
Perez-Gallan, 640 F. Supp. 3d 697, 711 (W.D. Tex.
2022). “Punishment for failing to display the proper
political affiliation … was what the Second
Amendment was meant to deter.” That Texas court
further explained that, if such analogues were
somehow found useful to understand the Second
Amendment, then “the history of disarming someone
because of political allegiance oaths could be used to
justify disarming political dissidents today.” Id. at
711.4
3
See Brief Amicus Curiae of Gun Owners of America, Inc., et al.
in District of Columbia v. Heller at 22-27 (Feb. 11, 2008).
4
Likewise, Heller rejected “dangerousness” laws used to disarm
black Americans so that they could not defend themselves. See
District of Columbia v. Heller, 554 U.S. 570, 612 (2008)
(“[B]ecause free blacks were treated as a ‘dangerous population,’
‘laws [were] passed … to make it unlawful for them to bear
9
On the contrary, the British practice of disarming
persons deemed “disloyal” was explicitly barred by
ratification of the Second Amendment. It is in this
context that the pre-Revolutionary historical
analogues offered by the government must be viewed.
Indeed, by offering as analogues the very sorts of laws
that the Framers of the Second Amendment wanted to
prevent, the Government undermines its own position.
B. The Second Amendment Is Part of a
Constitutional Mosaic that Limits the
Power of Government to Deem Persons
Too Dangerous or Untrustworthy to
Enjoy Basic Civil Liberties.
To be sure, this case centers on the protections
afforded Americans by the Second Amendment which,
as noted above, was designed specifically to prevent
the very sort of “dangerousness” laws on which the
government now relies. But it is also helpful to
consider this matter in the context of other
constitutional pillars, which confirm the weakness of
the government’s purported historical record presented
below.
These constitutional provisions, taken
together, establish a pattern of protections designed to
prevent all manner of abuses directed against
disfavored minorities or other groups of Americans
deemed disloyal or dangerous by government.
Indeed, it could be said that the Framers designed
our Bill of Rights to prevent recurrence of various evils
arms.’”).
10
suffered by the colonists (themselves often descended
from persecuted minorities) at the hands of the
British, and which had not been prevented by the
comparably anemic English Bill of Rights.5 In other
words, the “dangerousness” laws enacted during this
early time period of this country’s history, and on
which the government relies here, are simply not part
of the American tradition, but instead represent the
very abuses that our form of government was designed
to eradicate.
1.
First Amendment: Free Exercise of
Religion.
Governments long have targeted dissenters from
the prevailing religious orthodoxy. For example, at
one point the Protestant majority found Catholics to be
“‘untrustworthy,’” and even “feared revolt, massacre,
and counter-revolution.” Kanter v. Barr, 919 F.3d 437,
457 (7th Cir. 2019) (Barrett, J., dissenting). British
history reflected shifting tides of religious
discrimination that has no place in our enduring
traditions. Rather, “the Framers and the citizens of
their time intended … to guard against the civic
divisiveness that follows when the government weighs
in on one side of religious debate.” McCreary County
v. ACLU, 545 U.S. 844, 876 (2005). Three quarters of
a century ago, this Court described this pattern:
5
See Bruen, 142 S. Ct. at 2142 (discussing the English right to
arms being limited to protecting Protestants only and
acknowledging that this “right matured” into a true “individual
right” at the Founding).
11
A large proportion of the early settlers of this
country came here from Europe to escape the
bondage of laws which compelled them to
support and attend government-favored
churches. The centuries immediately before
and contemporaneous with the colonization of
America had been filled with turmoil, civil
strife, and persecutions, generated in large
part by established sects determined to
maintain their absolute political and religious
supremacy. With the power of government
supporting them, at various times and places,
Catholics had persecuted Protestants,
Protestants had persecuted Catholics,
Protestant sects had persecuted other
Protestant sects, Catholics of one shade of
belief had persecuted Catholics of another
shade of belief, and all of these had from time
to time persecuted Jews. [Everson v. Bd. of
Educ. of the Twp. of Ewing, 330 U.S. 1, 8-9
(1947).]
In other words, laws enacted during this history of
religious conflict, and of the sort on which the
government now relies, represented one of the primary
motivators for those who came to the colonies seeking
to be free of such persecution: “[t]hese practices of the
old world,” id. at 9, are precisely what the First
Amendment abrogated at the Founding and has
prohibited since.
12
2.
First Amendment: Free Speech.
The Founders enshrined the Freedom of Speech
into the Constitution after bitter experiences with
suppression of speech of American colonists under
British rule, which “used three methods to suppress
free speech: licensing, constructive treason, and
seditious libel.”6 Each sort of law specifically targeted
political minorities, and those who otherwise were not
favored by the ruling class. Even after adoption of the
First Amendment, this country briefly experimented
with the suppression of seditious libel, under the Alien
and Sedition Acts. The Adams’ administration even
arrested Benjamin Franklin’s grandson and Rep.
William Lyon of Vermont for criticism of the
administration.7 Jefferson and Madison “vigorously
condemned [the Acts] as unconstitutional.” New York
Times v. Sullivan, 376 U.S. 254, 274 (1964). Jefferson,
upon his election to replace Adams, immediately
pardoned everyone convicted under the Acts.8
Ultimately, “[a]lthough the Sedition Act was never
tested in [the Supreme] Court, the attack upon its
validity has carried the day in the court of history.”
Id. at 276.
6
M. Kahn, “The origination and early development of free speech
in the United States: A brief overview,” Florida Bar Journal (Oct.
2002).
7
W. Bird, “New Light on the Sedition Act of 1798: The Missing
Half of the Prosecutions,” 34 LAW & HIST. REV. 541, 543 (2016).
8
T. Jefferson, Letter to Mrs. Adams, July 22, 1804, 4 Jefferson’s
Works (Washington ed.), pp. 555, 556.
13
Although the Alien and Sedition Acts were enacted
shortly after ratification, they certainly could not be
said to be part of our American tradition or
demonstrate that similar enactments could be justified
today. Rather, “the First Amendment was adopted
against the widespread use of the common law of
seditious libel to punish the dissemination of material
that is embarrassing to the powers-that-be.” New York
Times Co. v. United States, 403 U.S. 713, 723-724
(Douglas, J., concurring) (1971).
3.
Third Amendment.
Thankfully, the Third Amendment has enjoyed
precious little legal application in the centuries that
followed its adoption. But at the time of the Founding,
it constituted a categorical rejection of distrustful and
oppressive governmental actions that sought to stamp
out resistance, and bully disfavored and untrusted
portions of the populace into submission.
The
nefarious practice of quartering of soldiers in civilian
homes was not original to King George III, but instead
goes back to at least the Norman conquest, in which:
[t]he involuntary quartering of soldiers was
only one of many grievances suffered at the
hands of the Norman soldiers who sacked and
burned villages, towns and manors, and
murdered, raped and robbed their inhabitants.
The experience instilled in the common people
a hatred and distrust of those same soldiers
14
whom they viewed as their oppressors and not
their protectors.9
Centuries later, as King George began to crack
down on the growing sentiment of independence in the
colonies, the British again began to use the quartering
of soldiers in civilian homes as a means to monitor,
discourage, and punish dissenting Patriots:
[B]efore the Revolution, the City of Boston
provided barracks for British troops only on an
island in Boston Harbor from which the
soldiers could not move quickly to the City in
the event of an uprising or disturbance by the
colonists. To remedy this strategic
disadvantage, the Quartering Act of 1774
authorized the British commanders to quarter
their troops wherever necessary, including the
homes of the colonists.10
One historian aptly summarized the underlying
purpose of the quartering of troops, explaining that
“[o]ne of the means frequently used by tyrannical
governments to worry disaffected citizens into
submission was to quarter soldiers upon them, to be
fed at their expense. The attempt of England to
quarter troops upon the colonies was a cause of bitter
9
W. Fields and D. Hardy, “The Third Amendment and the Issue
of the Maintenance of Standing Armies: A Legal History,” 35 AM.
J. LEGAL HIST. 393, 397-398 (1991).
10
Engblom v. Carey, 677 F.2d 957, 967 (2d Cir. 1982) (Kaufman,
J., dissenting).
15
irritation, and
massacre.’”11
culminated
in
...
the
‘Boston
Accordingly, the Framers enacted the Third
Amendment specifically to prevent the government
from using its military forces to root out and suppress
dissent among its political opponents, and to “protect[]
the citizen against the exercise of this terrible
instrument of oppression.” Id. The Declaration of
Independence specifically listed “Quartering large
bodies of armed troops among us” as one of the
Americans’ charges against King George.
Like other early attempts to target disfavored,
dissident, or purportedly “dangerous” groups, this
pre-Revolutionary practice is not a continuing part of
the American experience. Rather, this sort of punitive
treatment of untrustworthy subjects helped precipitate
the Revolution and, accordingly, was one of the first
grievances the Founders addressed in the Bill of
Rights.
4.
Fourteenth Amendment.
The post-Civil War Black Codes are part of our
history, but not part of our heritage. They arose from
a fear and distrust of emancipated blacks and newly
freed slaves, on the basis that this disfavored class of
persons could not fully be trusted with the full
spectrum of rights and privileges of citizenship. See
Heller, 554 U.S. at 614. Indeed, modern gun control
11
W. Cocker, The Government of the United States at 223
(Harper & Brothers: 1889).
16
has its roots in the black codes that dominated the
southern States in the 19th Century. See Clayton E.
Cramer, The Racist Roots of Gun Control, 4 KAN. J.L.
& PUB. POL’Y 17, 20 (1995). Unsurprisingly, the
government does not proffer this unpalatable history
as “analogues” for Section 922(g)(8) as it demonstrated
the government’s disarmament of a purportedly
“dangerous” population.
Nevertheless, such laws were designed to
undermine the rights of blacks in the South, on the
theory that they (armed not only figuratively with new
freedoms but also literally with firearms) were
untrustworthy or even dangerous to public safety.
Under South Carolina’s Black Codes, “marriage was
prescribed for an apprentice lacking the permission of
his master, the unemployed were subject to
imprisonment or hard labor, [and] blacks were
disallowed to engage in an occupation other than
agriculture, unless a tax up to $100 was paid
annually.”12 North Carolina “declared that certain
blacks were incompetent witnesses and announced
that intermarriages between white and blacks were
void.” Id. Other states went so far as to “enjoin[]
blacks from leaving the plantation without the express
permission of the master. The Florida code …
permitted the whipping of blacks who broke labor
contracts.…” Id. at 603.
12
D. Forte, “Spiritual Equality, the Black Codes and the
Americanization of the Freedmen,” 43 LOYOLA L. REV. 568, 602
(1997-1998).
17
Under the regime created by such laws, slavery
was ended largely in name only: “their contents sent
waves of shock and outrage through the North,”
sparking a demand in Congress for the Fourteenth
Amendment. Id. at 600. The drafters of the
Amendment left little doubt that its intent was to
correct the oppression of disfavored southern blacks:
“[t]he Radicals soon made it clear in debate that they
were determined to destroy the Black Codes and
guarantee the Negro instead full citizenship and a
concomitant body of civil rights.”13
In conclusion, the discrimination that early (or
even more modern) dangerousness laws sanctioned —
whether based on race, religion, political affiliation,
loyalty, perceived dangerousness, or otherwise — is at
odds with the Constitution adopted by the Framers.
Indeed, even when this country flirted with such laws
again after the Civil War, additional constitutional
amendments were soon ratified to correct the abuses.
The government’s use of its proffered
“dangerousness” analogues to restrict firearms rights
thus represent a wholesale rejection our very system
of government. Worse, the government’s reliance on
these statutes as historical analogues demonstrates
that the threat to individual rights that our
Constitution was designed to prevent is still present,
as the federal government appears to view Americans’
firearm freedoms as a threat to its exercise of arbitrary
power — which is, of course, as it should be.
13
A. Kelly, “Fourteenth Amendment Reconsidered,” 54 MICH. L.
REV. 1049, 1058 (1955-1956).
18
II. T H E
HISTORICAL
ANALOGUES
PROFFERED BY THE UNITED STATES
SUFFER FROM ONE FATAL FLAW:
GROSSLY DISSIMILAR PENALTIES.
A. Penalty Severity Is a Valid Analogical
Consideration.
The historical analogues proffered by the
government could be disregarded entirely based solely
on the “how” and “why” rationales discussed by the
Fifth Circuit. See Rahimi at 454-55. However, these
analogues all suffer another fatal flaw, as a
comparison between the penalty imposed by Section
922(g)(8) and the penalties imposed by the
government’s supposed historical analogues reveals
these enactments are, in fact, not similar at all.
The exercise of comparing the penalties of
purported historical analogues to those of a modern
regulation is not a new analytical tool. The Heller
Court endorsed this method, and the Bruen Court
reiterated its usefulness.
In rebutting certain
historical laws raised in dissent, the Heller Court
pointed out that “[a]ll of them punished the discharge
(or loading) of guns with a small fine and forfeiture of
the weapon (or in a few cases a very brief stay in the
local jail), not with significant criminal penalties.”
Heller at 633 (emphases added). Moreover, in a
prescient nod to Bruen’s subsequent discussion of the
“how” metric,14 the Heller Court observed that “we do
14
“Similarly, we have little reason to think that the hypothetical
possibility of posting a bond would have prevented anyone from
19
not think that a law imposing a 5-shilling fine and
forfeiture of the gun would have prevented a person in
the founding era from using a gun to protect himself or
his family from violence.” Id. at 633-34 (emphasis
added). Ultimately, the modern regulation at issue in
Heller was entirely dissimilar as it “threaten[ed]
citizens with a year in prison” — “far from imposing a
minor fine.” Id. at 634.
Likewise here, the analogues proffered by the
government cannot be deemed relevant without a
comparison of the severities of their punishment with
the sanction for violating Section 922(g)(8).
For example, early dangerousness laws that
disarmed Catholics (often pejoratively termed
“Papists”) imposed comparatively minimal penalties on
offenders. A 1756 Virginia law that criminalized
Catholic firearm ownership provided for forfeiture of
arms, a fine in the amount of triple their value, and
three months of confinement.15 And wholly unlike
Section 922(g)(8), this law included a self-defense
exception, allowing Catholics the possibility of
carrying a firearm for self-defense in the 19th century.” Bruen at
2149.
15
An Act for Disarming Papists, and Reputed Papists, Refusing
to Take the Oaths to the Government (1756), THE STATUTES AT
LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM
THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, vol.
VII, at 37 (1820).
20
retaining their arms “necessary … for the defence of …
house or person.”16
Laws prohibiting the sale or provision of arms to
Native Americans fare no better, and are in no way
comparable to Section 922(g)(8), which applies to
United States citizens. In contrast, not only were
Native Americans not citizens, but also they often in
practical effect were deemed members of hostile
nations.17
Moreover, the penalties imposed for
violation were effectively misdemeanors, not felonies.
One such act from colonial Pennsylvania provided that
those convicted of arming Native Americans “shall
forfeit and pay the sum of five hundred pounds … be
whipped with thirty-nine lashes … and be committed
… to remain twelve months.”18
As to “going-armed laws,” in briefing below, the
United States cited a now-familiar law from 1786
Virginia. See Supplemental Brief for Appellee the
United States (“Supplemental Brief”) at 23 n.2, United
16
Id. at 36.
17
“[A]lmost every colony had laws that attempted (usually with
little success) to prohibit arms trade to hostile Indian nations”
because, “[a]t the time, the colonies recognized various Indian
tribes as genuinely separate nations…. All nations attempt to
restrict arms provision to hostile foreign nations.” D. Kopel, “Red
flag laws: proceed with caution,” 45 LAW & PSYCH. REV. 39, 75
(2020-2021).
18
An Act to Prohibit the Selling of Guns, Gunpowder or Other
Warlike Stores to the Indians (1763), STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, vol. VI, at 320 (1899).
21
States v. Rahimi, No. 21-11001 (5th Cir. Aug. 9, 2022),
ECF No. 109-1 (citing “Collection of All Such Acts of
the General Assembly of Virginia 33 (1794)”). After
the refrain that “no man, great nor small” shall “go nor
ride armed by night nor by day, in fairs or markets, or
in other places, in terror of the Country,” the statute
provided that “no person shall be imprisoned for such
offense by a longer space of time than one month.” By
way of comparison, modern crimes that can result in
30 days in jail include making prank calls, presenting
a fraudulent degree, rioting, and criminal
trespassing.19 But even when considering crimes of
the Founding era, the result is the same — the
Virginia code on which the government relies imposed
three months of labor as punishment for vagrancy. See
Collection of All Such Acts of the General Assembly of
Virginia (1794) at 194. Selling liquor without a license
carried a sentence of six months. Id. at 212. The
government’s 1786 Virginia statute is thus nothing
like Section 922(g)(8).
The government also referenced a Massachusetts
“going-armed” statute that authorizes “commit[ting]
the offender to prison, until he or she find such
sureties for the peace and good behavior.” See
Supplemental Brief at 28-29.
But that same
Massachusetts code punished a second offense of
drunkenness similarly, by being held until furnishing
surety for good behavior, and allowed the same
19
See TEX. PENAL CODE § 12.22 (punishing Class B misdemeanors
with confinement “not to exceed 180 days”); Texas Crimes by Class
and Punishments, NEAL DAVIS L. FIRM, (last visited Sept. 29,
2023) (listing examples of Class B misdemeanors).
22
punishment for libel, a mere civil offense today. Id. at
51, 53. Thus, “going-armed” was at best considered
and punished as a minor public nuisance, not a severe
felony crime like Section 922(g)(8).20
Finally, all the government’s proffered surety laws
fail for this same lack of punitive proportionality — as
this Court already observed in Bruen. See Bruen at
2149.
In stark contrast to the comparatively insignificant
penalties for violation of these purported historical
statutes, a knowing violation of Section 922(g)(8) today
provides for fines or imprisonment “for not more than
15 years, or both.” 18 U.S.C. § 924(a)(8) (emphasis
added). See Brief of Appellant at 11. That maximum
term is 180 times the maximum incarceration possible
under the 1786 Virginia going-armed statute. Section
922(g)(8), an entirely modern invention, simply cannot
be justified with “analogues” that discouraged certain
types of firearm use (but not the mere possession or
even bearing of firearms) with comparatively minor (if
not trivial) penalties.
Nor is a disproportionality analysis unique to
Heller, Bruen, or Rahimi, as the government continues
to offer the same shopworn antecedents in case after
case across the country, apparently hoping that
litigants will fail to reveal to courts their
fundamentally different nature, and that the
government’s defense will fare better in the next case.
20
1 Acts and Resolves, Public and Private, of the Province of the
Massachusetts Bay, 51 (1869) (1692 statute).
23
For example, some of these amici have been required
to rebut the government’s use of such analogues in
their own litigation. See, e.g., Plaintiffs’ Reply to State
Defendants’ Opposition to Plaintiffs’ Motion for a
Temporary Restraining Order, Preliminary Injunction,
and/or Permanent Injunction at 18, Antonyuk v.
Hochul, No. 1:22-cv-00986-GTS-CFH (N.D.N.Y. Oct.
22, 2022), ECF No. 69 (citation omitted) (“even if these
statutes were helpful, failure to muster typically
resulted in a fine. The CCIA, however, enacts a far
more serious penalty, depriving Sloane of his Second
Amendment rights entirely until he completes the
required training. There is no historical analogue for
that.”).
B. None of the United States’ Purported
Analogues Came Close to Imposing the
Lifelong Stigma as Does a Felony
Conviction Today.
The government’s “analogues” generally impose
minimal jail time and fines — very different from the
penalties suffered from violating Section 922(g)(8)
today, as discussed supra. When analyzed under
Bruen’s historical framework, that distinction alone
should be more than enough to show something is not
quite right with Section 922(g)(8). But even that facial
comparison of stated penalties does not tell the full
story, as none of the historical laws cited imposed
anywhere close to the same Scarlet Letter-style badge
24
of shame21 that is borne today by those deemed felons,
such as based on a violation of Section 922(g)(8).
In other contexts, this Court and other federal
courts have recognized the enduring punishment that
befalls convicted felons, even long after they have paid
their debt to society. See, e.g., Baldwin v. New York,
399 U.S. 66, 69 (1970) (noting the “collateral
consequences” that attach to felons as opposed to
misdemeanants); United States v. Rodriguez-Gonzales,
358 F.3d 1156, 1160 (9th Cir. 2004) (“felons … are
denied the right to vote,22 the right to bear arms, and
may have significant difficulty in finding gainful
employment.”); United States v. Corona-Sanchez, 291
F.3d 1201, 1219 (9th Cir. 2002) (noting “serious effects
on personal relationships and reputation in the
community”); United States v. Sharp, 12 F.3d 605, 608
(6th Cir. 1993) (noting state-level prohibitions on
felons “acting as executors, administrators, or
guardians” and “receiving or maintaining professional
licenses of various kinds”).23
21
See NATHANIEL HAWTHORNE, THE SCARLET LETTER: A ROMANCE
(1850) (exploring the puritanical ostracism and public shaming of
an adulterer).
22
Felony status also prevents a person from serving on a federal
jury. See 28 U.S.C. § 1865(b)(5).
23
See also Bruce E. May, “Real World Reflection: The Character
Component of Occupational Licensing Laws: A Continuing Barrier
to the Ex-Felon’s Employment Opportunities,” 71 N.D. L. REV.
187, 194 (1995) (“Under many licensing laws, the possession of a
felony conviction is an automatic disqualification. In other
instances, the possession of a felony conviction is evidence of the
lack of moral or reputable character.”).
25
Strikingly, “there are nationwide nearly 50,000
federal and state statutes and regulations that impose
penalties, disabilities, or disadvantages on convicted
felons. Of those, federal law imposes nearly 1,200
collateral consequences for convictions generally, and
nearly 300 for controlled-substances offenses.” United
States v. Nesbeth, 188 F. Supp. 3d 179, 184-85
(E.D.N.Y. 2016).
The Department of Justice
acknowledges that “significant collateral consequences
… are imposed by federal law upon conviction of a
felony offense.”24
For example, status as a convicted felon forecloses
certain career paths entirely. Some states prohibit
felons from becoming lawyers.25 Other states allow it,
but felons face an uphill battle to prove current “good
character.” Medical licensure is often questionable if
not foreclosed. See, e.g., Virginia Code § 54.1-2409.
Felons often cannot be hired as law enforcement
officers (see, e.g., Virginia Code § 15.2-1705). In
Washington state, one can be denied a license to serve
alcohol after a felony conviction.
See RCW
66.20.310(4)(a). In Georgia, a felony bars individuals
from receiving a mortgage loan originator license. See
Ga. Code Ann. § 7-1-1004. Illinois blocks those
convicted of a wide variety of felonies from being
funeral directors and embalmers (225 ILCS 41/15-72),
being licensed to install water wells and pumps (225
24
“Federal Statutes Imposing Collateral Consequences Upon
Conviction,” U.S. Department of Justice (Nov. 2000).
25
See “Applying with a Criminal Record,” Yale Law School, (last
visited Oct. 2, 2023).
26
ILCS 345/15), and from receiving a roofing contractor’s
license (225 ILCS 335/7.1).
At the federal level, felons generally cannot serve
in the military.26 Being unable to possess firearms,
felons naturally cannot become licensed firearm
dealers. See 18 U.S.C. § 923(d)(1)(B). Noncitizens can
face removal proceedings upon conviction of various
felony offenses, including “firearm offenses.”27 Felony
convictions can lead to problems finding federal
employment28 or maintaining a security clearance.29
Felon status can foreclose or complicate the
employment prospects of job seekers in trucking30 or
26
See 10 U.S.C. § 504 (felons prohibited from enlistment unless
an exception is granted).
27
See 8 U.S.C. § 1227(a)(2) (“Any alien who at any time after
admission is convicted under any law of purchasing, selling,
offering for sale, exchanging, using, owning, possessing, or
carrying, or of attempting or conspiring to purchase, sell, offer for
sale, exchange, use, own, possess, or carry, any weapon, part, or
accessory which is a firearm or destructive device (as defined in
section 921(a) of title 18) in violation of any law is deportable.”).
28
Federal Statutes Imposing Collateral Consequences Upon
Conviction, supra, at 3 (felon status is “a factor in determining
suitability for it, according to the Office of Personnel
Management.”).
29
See LaChance v. Jowanowitch, 144 F.3d 792, 792 (Fed. Cir.
1998) (lost security clearance due to felony).
30
See 49 C.F.R. § 383.51.
27
positions where care of children is involved.31
Applicants for a pilot’s license can be denied and a
license can be revoked if already issued. See 14 C.F.R.
§ 61.15(a). Even Veterans Affairs disability benefits
can be significantly reduced upon felony conviction.32
Felons may not be employed by the Federal Bureau of
Investigation.33 The Securities and Exchange Act
prohibits felons from registering to deal in securities.
See 15 U.S.C. § 78c(39)(F). The list goes on and on.
Employment-related hurdles are not the only
fallout from status as a convicted felon. Felons can
face issues with “public housing, section 8 vouchers,
Social Security Act benefits, supplemental nutritional
benefits, student loans, the Hope Scholarship tax
credit, and Legal Services Corporation representation
in public-housing eviction proceedings.” United States
v. Nesbeth at 185 (footnotes omitted).
Consequently, a felony conviction, even after any
period of incarceration, parole, or probation, is a “gift
that keeps on giving.” In other words, “‘[f]elony status
is simply not the kind of thing that one forgets.’” Greer
v. United States, 141 S. Ct. 2090, 2097 (2021) (citation
omitted). Rather, it is a status that affects a person
for life.
31
See, e.g., Criminal Convictions that Disqualify a Provider, ILL.
DEP’T HUM. SERVS. (last visited Sept. 29, 2023).
32
See Justice Involved Veterans, Veterans Benefits Admin. (last
visited Sept. 29, 2023).
33
See FBI Employment Eligibility.
28
Thus, it is not only the astronomically increased
sentence that may be imposed under Section 922(g)(8)
that distinguishes it from any historical analogue the
government has proffered, but also the lasting
employment, societal, and other effects that felony
status brings are completely unlike the minor fines or
short jailtime that were associated with the
regulations in the historical record identified by the
government here.
No matter how laudable Congress’ policy goals
might have been in drafting Section 922(g)(8), there is
no denying the unprecedented severity and sheer
historical novelty of the statute today. It is safe to say
that our Founders would have never permitted it,
because they never enacted anything like it.
CONCLUSION
Unpopular cases necessitate the strictest
adherence to principle. Indeed, “our Constitution is
intended to prevail over the passions of the moment,
and that the unalienable rights recorded in its text are
not matters to ‘be submitted to vote; they depend on
the outcome of no elections.’” Dr. A. v. Hochul, 142 S.
Ct. 552, 558 (2021) (Gorsuch, J., dissenting) (quoting
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
638 (1943)). As this Court has observed, “the
enshrinement of constitutional rights necessarily takes
certain policy choices off the table.” Heller, 554 U.S. at
636. A categorical prohibition on the mere possession
of firearms as a result of a civil disposition, enforced by
felony penalties, is one such policy choice that is off the
table. The Fifth Circuit faithfully applied this Court’s
29
precedents to reach the conclusion that Section
922(g)(8), in its current form, is repugnant to the
original public understanding of the Second
Amendment. The decision of the Fifth Circuit should
be affirmed.
Respectfully submitted,
JOHN I. HARRIS III
ROBERT J. OLSON*
SCHULMAN, LEROY, & WILLIAM J. OLSON
BENNETT, P.C.
JEREMIAH L. MORGAN
3310 West End Ave.
WILLIAM J. OLSON, P.C.
Suite 460
370 Maple Ave. W., Ste. 4
Nashville, TN 37203
Vienna, VA 22180
(703) 356-5070
RICK BOYER
wjo@mindspring.com
INTEGRITY LAW FIRM Attorneys for Amici Curiae
P.O. Box 10953
Lynchburg, VA 24506 *Counsel of Record
October 4, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.