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

No. 22-915

IN THE

Supreme Court of the United States

__________________________________________________________________________

UNITED STATES OF AMERICA,

v.

ZACKEY RAHIMI,

Petitioner,

Respondent.

__________________________________________________________________________

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________________________________________________________

BRIEF FOR THE NATIONAL RIFLE ASSOCIATION

OF AMERICA, INC. AS AMICUS CURIAE

IN SUPPORT OF THE RESPONDENT

__________________________________________________________________________

ERIN M. ERHARDT

Counsel of Record

MICHAEL T. JEAN

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Road

Fairfax, VA, 22030

(703) 267-1158

EErhardt@nrahq.org

October 4, 2023

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

THE ARGUMENT....................................................... 1

ARGUMENT ............................................................... 4

I.

SECTION 922(g)(8) IS INCONSISTENT

WITH THE NATION’S HISTORY AND

TRADITION OF FIREARMS REGULATION .................................................................4

A. The plain text of the Second Amendment covers Section 922(g)(8) .....................4

B. Civil protective order deprivations are

inconsistent with the history and tradition of firearms regulations ........................7

II.

SECTION 922(g)(8) FAILS TO PROVIDE

BASIC PROCEDURAL DUE PROCESS

SAFEGUARDS ...............................................18

CONCLUSION .......................................................... 28

ii

Cases

TABLE OF AUTHORITIES

Addington v. Texas,

441 U.S. 418 (1979) .................................... 23, 24, 25

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) ..................................................2

Baze v. Rees,

553 U.S. 35 (2008) ..................................................14

Binderup v. Atty. Gen. United States of Am.,

836 F.3d 336 (3d Cir. 2016) ...................................15

Bradley v. State,

1 Miss. 156 (1824) ....................................................8

Cafeteria & Rest. Workers Union, Loc. 473,

AFL-CIO v. McElroy,

367 U.S. 886 (1961) ................................................21

Cleveland Bd. of Ed. v. Loudermill,

470 U.S. 532, 546 (1985) ..................................20, 21

Codd v. Codd,

2 Johns. Ch. 141 (N.Y. Chan. 1816) ........................8

Commonwealth v. Miller,

305 A.2d 346 (Pa. 1973) .........................................11

Cooper v. Oklahoma,

517 U.S. 348 (1996) ..........................................24, 25

Cooper v. Telfair,

4 U.S. (Dall.) 14 (1800) ..........................................13

D.C. v. Heller,

554 U.S. 570 (2008) .......................................... 4, 5, 6

Denezpi v. United States,

142 S. Ct. 1838 (2022)..............................................6

iii

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857),

superseded (1868)...................................................11

Dusenbery v. United States,

534 U.S. 161 (2002) ................................................20

Ex parte James,

303 So. 2d 133 (Ala. Crim. App. 1974) ..................11

Ex parte Milligan,

71 U.S. 2 (1866) ......................................................12

Ford v. State,

50 So. 497 (Miss. 1909) ..........................................10

Foster v. President, etc., of Essex Bank,

16 Mass. 245 (1819) ...............................................13

Fuentes v. Shevin,

407 U.S. 67 (1972) ...................................... 18, 19, 21

Goss v. Lopez,

419 U.S. 565 (1975) ................................................20

In re C.L.S.,

403 S.W.3d 15 (Tex. App. 2012) ............................27

In re J.M.S.,

43 S.W.3d 60 (Tex. App. 2001) ..............................27

Joseph v. Joseph,

No. 14-20-00855-CV, 2022 WL 3205099

(Tex. App. Aug. 9, 2022) ..................................18, 22

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019).............. 6, 7, 12, 14, 18

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) ..........................................15, 16

Kinkaid v. Thurston Cnty. Sheriff,

845 F. App’x 621 (9th Cir. 2021) ...........................24

iv

Kolvek v. Napple,

212 S.E.2d 614 (W. Va. 1975) ................................11

Konigsberg v. State Bar of Cal.,

366 U.S. 36 (1961) ....................................................4

Korematsu v. United States,

323 U.S. 214 (1944) ............................................ 9, 11

Lankford v. Idaho,

500 U.S. 110 (1991) ................................................19

Lewis v. United States,

445 U.S. 55 (1980) ............................................15, 21

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) ................................................27

Memphis Light, Gas & Water Div. v. Craft,

436 U.S. 1 (1978) ....................................................19

Minor v. Happersett,

88 U.S. 162 (1874) ....................................................6

Miranda v. Arizona,

384 U.S. 436 (1966) ..................................................2

Morgan v. United States,

113 U.S. 476 (1885) ..................................................5

Morrissey v. Brewer,

408 U.S. 471 (1972) .................................... 20, 21, 22

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

142 S. Ct. 2111 (2022)...... 2, 4, 5, 7, 8, 10, 11, 12, 28

Ohio Bell Tel. Co. v. Public Utility Commission,

301 U.S. 292 (1937) ................................................22

Pell v. Procunier,

417 U.S. 817 (1974) ..................................................6

People ex rel. Smith v. Blaylock,

191 N.E. 206 (Ill. 1934) ..........................................10

v

Range v. Att’y Gen. United States of Am.,

69 F.4th 96 (3d Cir. 2023)......................................11

Rehaif v. United States,

139 S. Ct. 2191 (2019)...................................... 20, 21

Richardson v. Ramirez,

418 U.S. 24 (1974) ..................................................14

Roper v. Jolliffe,

493 S.W.3d 624 (Tex. App. 2015) .................... 23, 24

Samson v. California,

547 U.S. 843 (2006) ..........................................15, 23

Santos v. Nahiwa,

487 P.2d 283 (Haw. 1971) ......................................11

Santosky v. Kramer,

455 U.S. 745 (1982) ................................................24

Severance v. Healey,

50 N.H. 448 (1870) .................................................14

Smith v. Doe,

538 U.S. 84 (2003) ..................................................15

State v. Gray,

580 P.2d 765 (Ariz. App. 1978) ..............................11

State v. Rhodes,

61 N.C. 453 (1868) ...................................................8

Texas v. White,

74 U.S. 700 (1868) ....................................................5

Trump v. Hawaii,

138 S. Ct. 2392 (2018)..............................................9

United States v. Bass,

404 U.S. 336 (1971) ................................................14

United States v. Boyd,

999 F.3d 171 (3d Cir. 2021), cert. denied,

142 S. Ct. 511 (2021)..............................................22

vi

United States v. Bramer,

956 F.3d 91 (2d Cir. 2020) ............................... 22, 27

United States v. Emerson,

46 F. Supp. 2d 598 (N.D. Tex. 1999), rev’d and

remanded, 270 F.3d 203 (5th Cir. 2001) ......... 14, 17

United States v. Hicks,

389 F.3d 514 (5th Cir. 2004)..................................23

United States v. Jackson,

No. 22-2870, 2023 WL 5605618

(8th Cir. Aug. 30, 2023) .........................................12

United States v. Lippman,

369 F.3d 1039 (8th Cir. 2004).......................... 22, 26

United States v. Myers,

581 F. App’x 171 (4th Cir. 2014) ...........................20

United States v. Napier,

233 F.3d 394 (6th Cir. 2000)..................................20

United States v. Rehlander,

666 F.3d 45 (1st Cir. 2012) .............................. 18, 19

United States v. Spruill,

292 F.3d 207 (5th Cir. 2002)..................................20

United States v. Valenzuela-Bernal,

458 U.S. 858 (1982) ................................................21

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ..................................................5

United States v. Wilson,

159 F.3d 280 (7th Cir. 1998)..................................22

United States v. Yazell,

382 U.S. 341 (1966) ..................................................9

United States v. Young,

458 F.3d 998 (9th Cir. 2006)............................ 20, 21

vii

Wallingford v. Bonta,

No. 21-56292, 2023 WL 6153588

(9th Cir. Sept. 21, 2023) ........................................25

Constitution and Statutes

U.S. Const. amend. XIV, § 2 .....................................14

18 U.S.C. § 922(g) ......................................................21

18 U.S.C. § 922(g)(4)..................................................24

18 U.S.C. § 922(g)(8)

.................. 2-4, 7, 8, 10, 12, 15, 17, 18, 20-24, 26-28

Tex. Fam. Code § 81.007 ..................................... 16, 27

Tex. Fam. Code § 85.005(b) .......................................22

Tex. Fam. Code § 85.022(b)(2)(C) .............................24

Tex. Penal Code § 22.01(a)-(b) ..................................16

Tex. Penal Code § 22.02(a)-(b) ..................................16

Tex. Penal Code § 25.07(a) ........................................16

Other Authorities

Akhil Reed Amar, The Bill of Rights (1998)......... 6, 15

Black’s Law Dictionary (9th ed. 2009)........................9

4 Blackstone, Commentaries ....................................10

Ruth H. Bloch, The American Revolution, Wife

Beating, and the Emergent Value of Privacy, 5

Early Am. Studies 221 (2007) ...............................26

1 William Hawkins, Please of the Crown (6th ed.

1787) .......................................................................10

Nelson Lund, The Ends of Second Amendment

Jurisprudence: Firearms Disabilities and

Domestic Violence Restraining Orders, 4 Tex.

Rev. L. & Pol. 157 (1999) .......................................18

viii

Kathleen G. McAnaney Laura A. Curliss C.

Elizabeth Abeyta-Price, From Imprudence to

Crime: Anti-Stalking Law, 68 Notre Dame L.

Rev. 819 (1993) ......................................................10

T. Gary Mitchell, Making the Law Work for Domestic Violence Survivors: Defining the Proper

Scope of Protective Orders, Defeating Malicious

Prosecution Claims and Saving a Home in

Bankruptcy, 33 Women’s Rts. L. Rep. 401 (2012)

................................................................................26

Elizabeth Pleck, Criminal Approaches to Family

Violence, 1640-1980, 11 Crime & Just. 19 (1989)

..................................................................................9

1

Private and Special Statutes of the

Commonwealth of Massachusetts from 1780–

1805 (1805) .............................................................13

Richard A. Posner, How Judges Think (2008) ...........8

Glenn Harlan Reynolds, A Critical Guide to the

Second Amendment, 62 Tenn. L. Rev. 461 (1995)

.......................................................................... 14, 15

The Meaning(s) of “The People” in the

Constitution, 126 Harv. L. Rev. 1078 (2013) ..........6

Without Restraint: The Use and Abuse of Domestic

Restraining Orders, Coalition to End Domestic

Violence (2021) .......................................................25

Cathy Young, Hitting below the belt, Salon (Oct.

25, 1999) .................................................................26

1

INTEREST OF AMICUS CURIAE1

The National Rifle Association of America, Inc.

(“NRA”) is America’s oldest civil-rights organization

and is widely recognized as America’s foremost defender of Second Amendment rights. It was founded

in 1871, by Union generals who, based on their experiences in the Civil War, sought to promote firearms

marksmanship and expertise amongst the citizenry.

Today, the NRA has approximately four million members, and its programs reach millions more.

The NRA has been advocating for firearms rights

and for adequate due process safeguards for decades.

Both of those issues are at the center of this appeal.

The NRA also has other cases that are stayed pending

the outcome of this case. See Memorandum to Counsel

or Parties, Nat’l Rifle Ass’n of Am., Inc. v. Bondi, No.

21-12314, Dkt. 88 at *1 (11th Cir. July 21, 2023). The

outcome of this case will necessarily affect the NRA’s

interests in current and future litigation efforts.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Rahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties—if the allegations against him are ultimately

proven true with sufficient due process. But constitutional safeguards cannot be set aside to obtain those

1 In accordance with Rule 37.6, counsel for amicus curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amicus curiae, its members, or its counsel has made a monetary

contribution for the preparation or submission of this brief.

2

ends. Just like shortcutting the Constitution to coerce

confessions out of violent criminals like Ernesto

Miranda cannot be justified, Miranda v. Arizona, 384

U.S. 436, 444 (1966), shortcutting it to deprive people

of their Second Amendment rights cannot be justified

either. That line of reasoning has been squarely rejected: “The needs of law enforcement stand in constant tension with the Constitution’s protections of

the individual against certain exercises of official

power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional

safeguards.” Almeida-Sanchez v. United States, 413

U.S. 266, 273 (1973); New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2126 n.3 (2022)

(“‘The right to keep and bear arms ... is not the only

constitutional right that has controversial public

safety implications.’”) (citation omitted). That line of

reasoning must, once again, be rejected with respect

to 18 U.S.C. § 922(g)(8). Rahimi can only be deprived

of his rights consistently with the right to keep and

bear arms and the right to due process. That has not

happened yet.

Section 922(g)(8) does not pass muster under

Bruen’s text, history, and tradition analysis. Undoubtedly, violent and dangerous individuals can be deprived of their Second Amendment rights. But

§ 922(g)(8) does not require a finding that the individual is actually dangerous. Nor were individuals traditionally deprived of their Second Amendment rights

through peace bonds, which is how domestic violence

was historically addressed and is the closest thing to

a dead ringer to modern protective orders. Instead, individuals were deprived of their Second Amendment

rights upon conviction of an offense. If the allegations

3

against Rahimi are true, then the county prosecutor’s

office had multiple chances to prosecute him for multiple violent offenses and deprive him of his rights consistent with the Second Amendment. But the prosecutor’s office chose not to do so. It took the easier route

and pursued a protective order. That choice, however,

cannot deprive Rahimi of his rights consistently with

the Second Amendment’s history and tradition.

Section 922(g)(8) is also unconstitutional because

it does not have sufficient due process protections. It

pays lip service to due process requirements, but lip

service does not cut it. Several circuit courts have

ruled that its notice requirement is minimal. It merely

requires that the individual be notified of the time and

place of a hearing—it does not require notice of the

hearing’s subject matter. The ability to participate in

the hearing is minimal, too. As long as one would understand that they could speak at the hearing, then

the requirement has been satisfied. The statute also

lacks a standard of proof, and state protective-order

statutes generally require proof by preponderance of

the evidence at most, which is insufficient to deprive

people of other fundamental rights in quasi-criminal

contexts. Nor are there any right-to-counsel requirements like there are when other fundamental rights

are on the line in adverse proceedings. The Court

would not sanction depriving individuals of any other

fundamental rights without more safeguards. It

should not sanction it here.

4

ARGUMENT

I.

SECTION 922(g)(8) IS INCONSISTENT

WITH THE NATION’S HISTORY AND

TRADITION OF FIREARMS REGULATION.

“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111,

2126 (2022). And “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a

court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. (quoting Konigsberg v. State Bar of Cal.,

366 U.S. 36, 50 n.10 (1961)). Courts are not to engage

in interest balancing when the conduct is covered by

the text of the Second Amendment. The “Second

Amendment ‘is the very product of an interest balancing by the people.’” Id. at 2131 (quoting D.C. v. Heller,

554 U.S. 570, 635 (2008)) (emphasis in original). “It is

this balance—struck by the traditions of the American

people—that demands our unqualified deference.” Id.

Section 922(g)(8) fails under this standard.

A. The plain text of the Second Amendment covers Section 922(g)(8).

The first question in Bruen was “whether the

plain text of the Second Amendment protects [the]

proposed course of conduct.” Id. at 2134. In answering

that question, the Court’s analysis was limited to the

“Second Amendment’s text” and ordinary interpretive

principles. Id. at 2134–35. Because the word “‘bear’

naturally encompasses public carry,” id. at 2134, it

5

was easy to conclude that carrying a firearm in public

was protected by the Second Amendment’s plain text.

Id. at 2143. There was no dispute about whether the

individual plaintiffs in Bruen were “part of ‘the people’

whom the Second Amendment protects” or whether

handguns were “arms” protected by the Second

Amendment. Id. at 2134 (citations omitted). Heller

had already answered those questions. 554 U.S. at

580, 592. And those answers apply here. But to the

extent that any additional analysis is required,

Bruen’s plain-text analysis applies.

“The first salient feature of the [Second Amendment’s] operative clause is that it codifies a ‘right of

the people.’” Id. at 579. The text does not impose any

limitations on who the people are. “We start therefore

with a strong presumption that the Second Amendment right is exercised individually and belongs to all

Americans.” Id. at 581.

The Constitution also mentions “the people” in six

other provisions, and “the term unambiguously refers

to all members of the political community, not an unspecified subset.” Id. “The people” “refers to a class of

persons who are part of a national community or who

have otherwise developed sufficient connection with

this country to be considered part of that community.”

Id. (quoting United States v. Verdugo–Urquidez, 494

U.S. 259, 265 (1990)) (quotations omitted).

The “political community,” moreover, is a term

that has been consistently used in reference to either

a particular government body or the people subject to

a particular government body. Texas v. White, 74 U.S.

700, 720–21 (1868), overruled by Morgan v. United

States, 113 U.S. 476 (1885) (noting that a “state” is a

“political community” under the Constitution, but

6

sometimes “state” refers to “a people or political community, as distinguished from a government”);

Denezpi v. United States, 142 S. Ct. 1838, 1845 (2022)

(citation omitted). A political community is “an association of persons for the promotion of their general

welfare.” Minor v. Happersett, 88 U.S. 162, 165–66

(1874). A member of the political community is synonymous with a “‘subject,’ ‘inhabitant,’ and ‘citizen.’” Id.

at 166. Ordinary Americans are “the people.”2

True, this Court also referred to the people as

“law-abiding, responsible citizens.” Heller, 554 U.S. at

635. But even prisoners nevertheless retain some

First Amendment rights. See, e.g., Pell v. Procunier,

417 U.S. 817, 822 (1974). And unless the term is a chameleon, with different meanings in different clauses

of the Constitution—and Heller gave every indication

that it is not, 554 U.S. at 580—then Rahimi was part

of the people before the protective order issued and

deprived him of his rights. See Kanter v. Barr, 919

Some scholars have argued that Second Amendment

rights are political rights, primarily connected with the right to

vote, and that the people are voters. Akhil Reed Amar, The Bill

of Rights *48 n.* (1998) (“Amar”) (“There is some fuzziness at

the edges, but arms bearing and suffrage were intimately linked

two hundred years ago and have remained so.”). This is because

the only other time that the original Constitution uses the phrase

“the people” (outside of the Preamble), it refers to voters, and

groups often obtained the right to vote after bearing arms for

their country. Id. (citation omitted). Others have suggested that

Heller’s reference to the political community means that only “‘eligible voters’” have the right to keep and bear arms. The Meaning(s) of “The People” in the Constitution, 126 Harv. L. Rev. 1078,

1079 (2013). The NRA believes that voters, like the militia, are a

“subset of ‘the people,’” Heller, 554 U.S. at 580, and Rahimi accordingly would have been part of the people when the protective

order was issued.

2

7

F.3d 437, 453 (7th Cir. 2019), abrogated by Bruen, 142

S. Ct. at 2127 n.4 (Barrett, J., dissenting) (“[T]he question is whether the government has the power to disable the exercise of a right that [the people] otherwise

possess, rather than whether they possess the right at

all.”). And he could only be deprived of his rights via

that protective order if that process is consistent with

the historical traditions of firearm regulations. It is

not.

B. Civil protective order deprivations are

inconsistent with the history and tradition of firearms regulations.

The government must show that § 922(g)(8) “is

part of the historical tradition that delimits the outer

bounds of the right to keep and bear arms.” Bruen, 142

S. Ct. at 2127. Bruen identified two alternative historical inquiries. First is the “fairly straightforward” inquiry. Id. at 2131. This applies “when a challenged

regulation addresses a general societal problem that

has persisted since the 18th century.” Id. Under this

inquiry, the Court looks to “the lack of a distinctly similar historical regulation addressing that problem” or

“if earlier generations addressed the societal problem

… through materially different means.” Id.

The second approach is the “more nuanced approach,” which gets applied in “cases implicating unprecedented societal concerns.” Id. at 2132. But again,

“history guide[s] our consideration of modern regulations that were unimaginable at the founding.” Id.

Under this approach, the government can satisfy its

burden by “identify[ing] a well-established and representative historical analogue, not a historical twin.”

Id. at 2133 (emphasis in original). The analogue must

do more than “remotely resemble” the modern regula-

8

tion, but it does not have to be a “dead ringer.” Id. (citations omitted). The analogue’s similarity is measured by “at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed

self-defense.” Id. at 2133. Comparing the regulatory

burden on the right and the justification for the burden are “central considerations when engaging in an

analogical inquiry. Id. (emphasis in original) (citations and quotations omitted); see also Richard A.

Posner, How Judges Think 183 (2008) (The critical

question is “whether the differences make the policy

that informs the [analogue] inapplicable to the [modern regulation].”). The government cannot meet its

burden under either analysis.

1. Section “922(g)(8)’s purpose is to reduce ‘domestic gun abuse.’” United States v. Rahimi, 61 F.4th 443,

455 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688

(2023) (citation omitted). Domestic violence has unfortunately existed long before and long after the founding. And although it was never condoned, it was, again

unfortunately, not taken as seriously as it should have

been for much of the nation’s history. At the founding,

it was primarily regulated through sureties or peace

bonds. Codd v. Codd, 2 Johns. Ch. 141, 141–43 (N.Y.

Chan. 1816) (declining to impose a peace bond on a

previously violent husband who was out-of-state for

the last eight years but granting custody and care of

the children to the wife). Indeed, courts often would

not hear criminal domestic violence cases because it

was thought to be too embarrassing for the parties.

State v. Rhodes, 61 N.C. 453, 456–57 (1868); Bradley

v. State, 1 Miss. 156, 157–58 (1824) (A husband could

be convicted of assault and battery of his wife only if

his conduct went beyond moderately chastising her,

9

which was shameful but allowed at common law.). It

was not until the late-nineteenth century that society

began to consider criminal laws addressing domestic

violence. Elizabeth Pleck, Criminal Approaches to

Family Violence, 1640–1980, 11 Crime & Just. 19, 35–

44 (1989).3 But progress was slow; even well into the

20th century, the doctrine of “coverture” or “feme covert,” under which a women’s rights to sue were subsumed by her husband upon marriage thereby limiting her rights to recover for domestic violence, Black’s

Law Dictionary 422, 695 (9th ed. 2009), existed in

some form in eleven states, United States v. Yazell,

382 U.S. 341, 351 (1966).

This practice should be left in the past. See, e.g.,

id. at 343 (“[T]he peculiar institution of coverture …

is now, with some exceptions, relegated to history’s legal museum.”) It, like other repugnant historical practices, has no rightful place in our Constitutional jurisprudence. Five years ago, this Court made that clear:

“morally repugnant” precedents like the order at issue

in Korematsu v. United States, 323 U.S. 214 (1944),

and Korematsu itself, “‘ha[ve] no place in law under

the Constitution.’” Trump v. Hawaii, 138 S. Ct. 2392,

2423 (2018) (citation omitted). So, too, then must be

the case for repugnant practices that did not treat domestic violence with the interest that it deserved.

But to the extent that peace bonds are relevant

historical analogues, they fall short. They are in fact

the closest thing to a dead ringer for modern protective orders. A justice of the peace could grant a surety

or peace bond “wherever a person has just cause to

fear that another will … do him a corporal hurt, as by

3 Available at https://www.jstor.org/stable/1147525.

10

killing or beating him, or that he will procure others

to do him such mischief.” 1 William Hawkins, Please

of the Crown 254 (6th ed. 1787) (emphasis added). “A

wife may demand [one] against her husband threatening to beat her.” Id. at 253.

Section 922(g)(8) makes protective orders punitive in nature. Peace bonds, however, were preventative measures. Bruen, 142 S. Ct. at 2149 (citing 4

Blackstone, Commentaries 249). They were mainly issued upon threats to breach the peace in the future,

not in response to actual breaches of the peace or other

crimes already committed. See, e.g., Ford v. State, 50

So. 497, 498 (Miss. 1909). The defendant was required

to give a certain amount of money as security to ensure that he would keep the peace, which would be

forfeited if he could not. Kathleen G. McAnaney Laura

A. Curliss C. Elizabeth Abeyta-Price, From Imprudence to Crime: Anti-Stalking Law, 68 Notre Dame L.

Rev. 819, 868 (1993). That amount was often statutorily capped. People ex rel. Smith v. Blaylock, 191 N.E.

206, 208 (Ill. 1934). The NRA is not aware of any

surety statutes that completely deprived individuals

of their Second Amendment rights, and the government has not cited any, let alone enough to establish

a historical tradition. Peace bonds, therefore, do not

suffice under Bruen.

One final note on peace bonds is that they have

had mixed success when challenged. Bruen, 142 S. Ct.

at 2131 (If analogues “were rejected on constitutional

grounds, that rejection surely would provide some probative evidence of unconstitutionality.”). Peace bond

statutes have been invalidated on equal protection

grounds because wealthy individuals can easily post

the bond while individuals with lower incomes cannot.

11

Kolvek v. Napple, 212 S.E.2d 614, 617 (W. Va. 1975);

Ex parte James, 303 So. 2d 133, 144 (Ala. Crim. App.

1974). And courts are split on whether peace-bond

statutes violate the Due Process Clause by allowing

individuals to be incarcerated by a standard of proof

below beyond a reasonable doubt. Compare Santos v.

Nahiwa, 487 P.2d 283, 285 (Haw. 1971) (invalidating

the statute on these grounds), with Commonwealth v.

Miller, 305 A.2d 346, 349 (Pa. 1973) and State v. Gray,

580 P.2d 765, 766–67 (Ariz. App. 1978) (upholding the

statutes on these grounds). These precedents leave no

doubt that peace bonds are not valid historical analogues.

2. That leads to the more nuanced approach. But

even under this approach, the analogues are not relevantly similar. Start with the analogues that disarmed historically disfavored and “distrusted” groups,

“like Loyalists, Native Americans, Quakers, Catholics, and Blacks.” Range v. Att’y Gen. United States of

Am., 69 F.4th 96, 105 (3d Cir. 2023). These laws, too,

should be left in the past with the likes of Korematsu.

Indeed, Bruen’s discussion of Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857), superseded (1868), and

other precedents used to disarm Blacks was not done

in the context of analogical reasoning to limit the

scope of the Second Amendment. 142 S. Ct. at 2150–

51. It was done to find conduct protected by the right.

Depriving only disfavored groups of certain conduct

shows that the favored groups necessarily could exercise that conduct, and the conduct was therefore

within the historical scope of the right. See id. at 2149

(Historical accounts of surety laws being enforced

against Blacks only “is surely too slender a reed on

12

which to hang a historical tradition of restricting the

right.”).

Those restrictions are not relevantly similar to

§ 922(g)(8) either. They were effectively domestic

arms embargoes—designed to disarm rebellious

groups who might collectively take up arms. United

States v. Jackson, No. 22-2870, 2023 WL 5605618, at

*2–4 (8th Cir. Aug. 30, 2023) (Stras, J., dissenting

from the denial of en banc review). And over 150 years

ago, this Court said that the Second Amendment does

not “hinder the President from disarming insurrectionists, rebels, and traitors in arms while he was carrying on war against them.” Ex parte Milligan, 71 U.S.

2, 20 (1866). Those collective restrictions are therefore

not relevantly similar—their “why” is a national-defense function.

Their “how” is also materially different, especially

with loyalty concerns. Swearing an oath of loyalty to

the United States and denouncing any allegiance to

King George removed the prohibition. Jackson, 2023

WL 5605618, at *4, *8 (Stras, J., dissenting) (citation

omitted). Thus, the ban on loyalists operated like a rebuttable presumption. It was not relevantly similar to

§ 922(g)(8) because the policies behind the two are different.

3. The collective bans do, however, shed light on

the undeniable principle that violent and dangerous

individuals can be deprived of their Second Amendment rights. Kanter, 919 F.3d at 451 (Barret, J., dissenting). But courts cannot merely defer to the legislature’s determination about who is dangerous and

who is not. Bruen, 142 S. Ct. at 2131; Kanter, 919 F.3d

at 465 (Barret, J., dissenting) (citation omitted). Instead, history and tradition show the way.

13

Traditionally, people needed to be convicted before they could lose their Second Amendment rights.

Rahimi, 61 F.4th at 458 (“[T]he early ‘going armed’

laws … only disarmed an offender after criminal proceedings and conviction.”). This was often the case for

rebels or traitors who took up arms collectively. For

example, at the close of Shays’ Rebellion in 1787, Massachusetts imposed a three-year arms ban on individuals “who have been, or may be guilty of treason, or

giving aid or support to the present rebellion, and to

whom a pardon may be extended.” 1 Private and Special Statutes of the Commonwealth of Massachusetts

from 1780–1805 at 145, 146–47 (1805) (emphasis

added). That required a conviction because the legislature cannot declare anyone guilty of treason. That

power lies with the judiciary. Foster v. President, etc.,

of Essex Bank, 16 Mass. 245, 270 (1819) (“[I]f the legislature were to enact, that A. B. was guilty of treason,

and that he should suffer the penalty of death, it

would be the sworn duty of the court, or of any member of it, to grant a habeas corpus, and discharge

him…. [S]uch acts would not be lows [sic.]; and they

never could be executed, but by a court as corrupt …

as the legislature which should have passed them.”);

Cooper v. Telfair, 4 U.S. (Dall.) 14, 19 (1800) (“Had,

then, the legislature power to punish its citizens, who

had joined the enemy, and could not be punished by

the ordinary course of law? It is denied, because it

would be an exercise of judicial authority.”).4

In a separate Opinion, Justice Chase pointed out that

“[t]here is, likewise, a material difference between laws passed

by the individual states, during the revolution, and laws passed

subsequent to the organization of the federal constitution. Few

of the revolutionary acts would stand the rigorous test now ap4

14

Indeed, criminal liabilities are “serious[] … and

… usually represent[] the moral condemnation of the

community.” United States v. Bass, 404 U.S. 336, 348

(1971). Depriving one of their rights flows naturally

from criminal convictions. At the founding “the death

penalty was ‘the standard penalty for all serious

crimes.’” Baze v. Rees, 553 U.S. 35, 94 (2008) (Thomas,

J., concurring) (citation omitted). Those who were

spared the death penalty were often subjected to “civil

death,” “a status ‘very similar to natural death in that

all civil rights were extinguished.’” Kanter, 919 F.3d

at 459 (Barret, J., dissenting) (citation omitted).

The Constitution expressly allows individuals

convicted of certain crimes to be disenfranchised. U.S.

Const. amend. XIV, § 2; Richardson v. Ramirez, 418

U.S. 24, 54–55 (1974); Severance v. Healey, 50 N.H.

448, 450–51 (1870) (Civil War deserters could not be

disenfranchised or deprived of their citizenship without a conviction.).5 Convicts lose several other fundaplied.” Id. (opinion of Chase, J.). Thus, any legislative acts depriving individuals of their rights before the ratification of the

Constitution may be useful in shedding light on the types of individuals who can be deprived of their rights. But they should

not be relied on for the procedures by which they deprived individuals of their rights if they conflict with the Constitution’s

separation-of-powers or bill-of-attainder clauses. See United

States v. Emerson, 46 F. Supp. 2d 598, 606 (1999), rev’d and remanded, 270 F.3d 203 (5th Cir. 2001) (noting that Madison

thought the Second Amendment belonged after the restriction on

bills of attainder in Article I, § 9, cl. 3).

5 Scholars who embraced the “virtuous citizen theory” have

noted that unvirtuous citizens “were excluded from the right to

arms precisely as (and for the same reasons) they were excluded

from the franchise” and “the franchise and the right to arms were

‘intimately linked’ in the minds of the Framers and of prior and

subsequent republican thinkers.” Glenn Harlan Reynolds, A

15

mental rights in addition to their Second Amendment

and voting rights. Lewis v. United States, 445 U.S. 55,

66 (1980) (holding office and practicing medicine) (citations omitted); Samson v. California, 547 U.S. 843,

850, 857 (2006) (parolees can be subjected to suspicionless searches because parole is “on the ‘continuum’ of state-imposed punishment.”). And depriving

someone of their firearms rights under § 922(g)(8) is

punitive under the Mendoza-Martinez factors.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69,

(1963) (Divesting a draft dodger of their citizenship

was punitive in nature and lacked procedural safeguards.); Smith v. Doe, 538 U.S. 84, 97 (2003) (applying the Mendoza-Martinez factors to determine if a

sex-offender-registration statute was punitive or regulatory).6 Protective orders are not convictions, yet

they effect punishments through § 922(g)(8).

Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461,

480–81 (1995); Amar, at *48 n.* (noting that the voting rights

and arms rights are linked). The virtuous citizen theory has been

criticized as being “vague” and “belied by the historical record.”

Binderup v. Atty. Gen. United States of Am., 836 F.3d 336, 358

(3d Cir. 2016) (Opinion of Hardiman, J.). Nevertheless, if republican thinkers thought individuals could be deprived of their voting and arms rights for the same reasons, then they very well

could have also thought both rights would be deprived through

the same procedures.

6 Those factors are: “[1] Whether the sanction involves an

affirmative disability or restraint, [2] whether it has historically

been regarded as a punishment, [3] whether it comes into play

only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a

crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears

excessive in relation to the alternative purpose assigned.”

16

Disarming individuals through criminal proceedings also shows that the conduct is serious enough to

warrant losing civil rights. Indeed, the government alleges that Rahimi threatened to take the child that he

shared with his girlfriend away, then physically assaulted her, fired a shot at a bystander who attempted

to intervene in the situation, and then threatened to

kill her if she spoke about the events. United States

Brief at *2. Simple assault is a Class A misdemeanor,

Tex. Penal Code § 22.01(a)-(b), and aggravated assault is a first-degree felony, Tex. Penal Code

§ 22.02(a)-(b). But for head-scratching reasons, the

state chose to forgo criminal proceedings.

Instead, the prosecutor’s office pursued an

agreed-to protective order in February 2020. United

States Brief at *2–3; see also Tex. Fam. Code § 81.007

(The prosecutor’s office is responsible for filing applications for protective orders.). Rahimi allegedly violated that order multiple times, one of which resulted

with him getting arrested. United States Brief at *3;

see also Tex. Penal Code § 25.07(a) (violating the

terms of the protective order is a criminal offense).

And yet again, the prosecutor’s office did not prosecute. It was not until November 2020, when Rahimi

allegedly committed a separate aggravated assault on

another woman, that the prosecutor’s office chose to

criminally prosecute him. United States Brief at *3.

All of this could have been avoided if Rahimi were

prosecuted for the initial aggravated assault, just like

serious offenders have been since the founding. The

prosecutor’s office had to be aware of the seriousness

Mendoza-Martinez, 372 U.S. at 168–69 (footnote citations omitted).

17

of domestic violence and the recidivism rates set forth

in the studies cited in the United States’s Brief at *29–

32. Yet the prosecutor’s office merely chose to obtain

a protective order. It shortcut the Constitution’s historical tradition for the ends that it wanted to obtain.

The Constitution does not allow that.

4. Section 922(g)(8) is unconstitutional for the independent reason that it allows but does not require

any findings that the individual actually poses a

threat to their intimate partner. Thus, it is overbroad

in that it deprives individuals of their rights without

finding that they are dangerous or violent.

Judge Cummings pointed this out when he invalidated the statute under the Second Amendment over

20 years ago. United States v. Emerson, 46 F. Supp.

2d 598, 610–11 (N.D. Tex. 1999), rev’d and remanded,

270 F.3d 203 (5th Cir. 2001). The credible-threat-ofharm finding in § 922(g)(8)(C)(i) is disjunctive. The order can, inter alia, contain a finding that the individual poses a credible threat to their intimate partner’s

safety, “or” the order can prohibit the individual from

using force against the intimate partner or their child

without any findings. 18 U.S.C. § 922(g)(8)(C)(i)-(ii).

“All that is required for prosecution under the Act is a

boilerplate order with no particularized findings.”

Emerson, 46 F. Supp. 2d at 611; see also id. at 599

(Emerson never harmed or threatened to harm his

wife or any member of his family. He only made a

threatening phone call to the man with whom his wife

was having an affair. Yet a form order was issued that

prohibited him from harming his wife without a finding that he posed a threat to her.). Commentators

have noted that, based on the testimony in the case, it

was “routine for Texas courts to issue prophylactic re-

18

straining orders in divorce cases, without findings or

even evidence that the acts prohibited in those orders

would otherwise be likely to occur.” Nelson Lund, The

Ends of Second Amendment Jurisprudence: Firearms

Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 160 (1999). That is still

the case today. Joseph v. Joseph, No. 14-20-00855-CV,

2022 WL 3205099, at *2–3 (Tex. App. Aug. 9, 2022)

(The trial judge erred in making family-violence findings without an evidentiary hearing.). Judge

Cummings concluded that without requiring particularized findings “the statute has no real safeguards

against an arbitrary abridgement of Second Amendment rights” and “is over-broad and in direct violation

of” the Second Amendment. Emerson, 46 F. Supp. 2d

at 611.

He was right. Without requiring particularized

findings § 922(g)(8) is “overinclusive.” Cf. Kanter, 919

F.3d at 466 (Barret, J., dissenting). It lacks substantive safeguards and must fail.

II.

SECTION 922(g)(8) FAILS TO PROVIDE

BASIC PROCEDURAL DUE PROCESS

SAFEGUARDS.

Even if § 922(g)(8) passes muster under the Second Amendment, it independently fails under the

Fifth Amendment’s Due Process Clause. “For more

than a century the central meaning of procedural due

process has been clear: ‘Parties whose rights are to be

affected are entitled to be heard; and in order that

they may enjoy that right they must first be notified.’”

Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citations

omitted); United States v. Rehlander, 666 F.3d 45, 48

19

(1st Cir. 2012) (collecting authorities) (holding that

Maine’s temporary mental-health observation statute

did not have enough due process to deprive someone

of their Second Amendment rights). “It is equally fundamental that the right to notice and an opportunity

to be heard ‘must be granted at a meaningful time and

in a meaningful manner.’” Fuentes, 407 U.S. at 80 (citation omitted).

The government claims that § 922(g)(8) has

“stringent” or “strict requirements” built into it that

satisfy any due process concerns. United States Brief

at *32, *44. Yet, when the shoe was on the other foot,

and the government was on offense prosecuting individuals under the statute, it argued the opposite—

quite successfully. Decades of circuit court precedents

hold that § 922(g)(8) sets a low bar and its requirements are minimal. The government cannot have it

both ways.

1. Start with the notice requirements. The Court

has “repeatedly emphasized the importance of giving

the parties sufficient notice to enable them to identify

the issues on which a decision may turn.” Lankford v.

Idaho, 500 U.S. 110, 126 n.22 (1991) (collecting authorities). At a minimum, the notice must “apprise the

affected individual of, and permit adequate preparation for, an impending ‘hearing.’” Memphis Light, Gas

& Water Div. v. Craft, 436 U.S. 1, 14 (1978) (collecting

authorities) (holding that the notice was adequate in

that it informed the party that their services might be

terminated was still insufficient because it did not “inform them of the availability of ‘an opportunity to present their objections.’”). Indeed, the “‘opportunity to be

heard’ … ‘has little reality or worth unless one is informed that the matter is pending and can choose for

20

himself whether to … contest.’” Goss v. Lopez, 419

U.S. 565, 579 (1975) (citations omitted) (second alteration in original). This includes being advised of the

charges. Cleveland Bd. of Ed. v. Loudermill, 470 U.S.

532, 546 (1985) (A “tenured public employee is entitled to oral or written notice of the charges against

him.”); Morrissey v. Brewer, 408 U.S. 471, 487 (1972)

(A parolee is entitled to notice covering the paroleviolation hearing’s purpose.). Section 922(g)(8) does

not cut it.

Section 922(g)(8)(A) requires that the protective

order be issued “after a hearing of which such person

received actual notice.” (Emphasis added). “Actual notice” merely means that the person received the notice.

Dusenbery v. United States, 534 U.S. 161, 170 n.5

(2002). It has no substantive content requirements. It

only requires “that the hearing must have been set for

a particular time and place and the defendant must

have received notice of that and thereafter the hearing

must have been held at that time and place.” United

States v. Spruill, 292 F.3d 207, 220 (5th Cir. 2002).

Courts have expressly rejected the idea that

§ 922(g)(8) requires the individual to receive “notice of

the content of the hearing,” i.e., “‘notice that a restraining order might issue.’” United States v. Young, 458

F.3d 998, 1006 (9th Cir. 2006) (emphasis in original);

United States v. Myers, 581 F. App’x 171, 173–74 (4th

Cir. 2014) (same).7

7 Some courts have gone even further and ruled that the

defendant need not even receive a copy of the final order to be

put on actual notice that they are prohibited from possessing a

firearm because the statute only requires that one be “subject to”

the order. United States v. Napier, 233 F.3d 394, 399 (6th Cir.

2000). These precedents are probably no longer good after Rehaif

21

Even worse, lower courts have acknowledged that

§ 922(g)(8)(A)’s “actual notice” requirement is insufficient under the Due Process Clause but have found

that to be “immaterial.” Young, 458 F.3d at 1007 n.19.

The courts have reasoned that this would be akin to

collaterally attacking the predicate protective order,

and that cannot be done because this Court held that

a felon could not collaterally attack his predicate conviction under § 922(g)(1). Id. (citing Lewis, 445 U.S. at

66). But due process principles are baked into criminal proceedings—“‘fundamental fairness [is] essential

to the very concept of justice.’” United States v.

Valenzuela-Bernal, 458 U.S. 858, 872 (1982) (citation

omitted). That is not the case with protective-order

proceedings.

2. Next comes the hearing requirement. The hearing must be conducted “in a meaningful manner.’”

Fuentes, 407 U.S. at 80. Meaningfulness depends on

the circumstances. Cafeteria & Rest. Workers Union,

Loc. 473, AFL-CIO v. McElroy, 367 U.S. 886, 894–95

(1961). For example, when tenured public employees

are terminated, they are entitled to “an explanation of

the employer’s evidence, and an opportunity to present his side of the story.” Cleveland Bd. of Ed., 470

U.S. at 546. And this Court has said that at a preliminary parole-violation hearing, the parolee may testify, introduce documents into evidence, call on witnesses, and confront opposing witnesses, after which

a reasoned decision must be stated. Morrissey, 408

U.S. at 487–88. And that is just for the preliminary

v. United States, 139 S. Ct. 2191, 2195–96 (2019) (holding that

one must know their status as a prohibited person under

§ 922(g)).

22

hearing. There is a subsequent permanent-revocation

hearing with more due process. Id.

Section 922(g)(8) falls short, again. It requires

that the defendant have an “opportunity to participate” in the hearing. 18 U.S.C. § 922(g)(8)(A). But

courts have said this “‘requirement is a minimal one’”

or a “low bar.” United States v. Boyd, 999 F.3d 171,

181 (3d Cir. 2021), cert. denied, 142 S. Ct. 511 (2021)

(quoting Young, 458 F.3d at 1009). “[T]he statute does

not require that evidence actually have been offered

or witnesses called,” by either party. United States v.

Lippman, 369 F.3d 1039, 1042 (8th Cir. 2004). It only

requires that “‘a reasonable person in [the defendant’s] position would have understood that he was

permitted to interpose objections or make an argument as to why an order of protection should not be

imposed.’” Boyd, 999 F.3d at 181 (citations omitted).

Evidence of a verbal exchange between the defendant

and the court satisfies the requirement. United States

v. Bramer, 956 F.3d 91, 98 (2d Cir. 2020); United

States v. Wilson, 159 F.3d 280, 290 (7th Cir. 1998).8

8 Even though the bar is low, it’s not clear that Rahimi’s

order passes because there was no hearing. Rahimi, 61 F.4th at

459 (“Rahimi apparently waived [the] hearing (the order states

no formal hearing was held, and no record was created).”); but

see Ohio Bell Tel. Co. v. Public Utility Commission, 301 U.S. 292,

307 (1937) (“We do not presume acquiescence in the loss of fundamental rights.”). And the order may conflict with Texas

caselaw, which holds that family violence findings cannot be

made under Tex. Fam. Code § 85.005(b) without an evidentiary

hearing. Joseph, 2022 WL 3205099 at *2–3. That may be immaterial because the statutory standards are so low: “nothing in the

language of 18 U.S.C. § 922(g)(8) indicates that it applies only to

persons subject to a valid, as opposed to an invalid, protective

23

The statute, thus, requires less due process to deprive an individual of a fundamental right than what

is afforded to parolees—who have already been convicted of a felony and have limited freedoms while on

parole and less rights in general. Samson, 547 U.S. at

850. That is backwards. People who have not been

convicted should receive more due process before they

can be deprived of a fundamental right.

3. Section 922(g)(8) also lacks an adequate standard of proof. “The function of a standard of proof, as

that concept is embodied in the Due Process Clause …

is to ‘instruct the factfinder concerning the degree of

confidence our society thinks he should have in the

correctness of factual conclusions for a particular type

of adjudication.” Addington v. Texas, 441 U.S. 418,

423 (1979) (citation omitted). Civil proceedings at the

federal level and in Texas generally have a preponderance of the evidence standard. Id.; Roper v. Jolliffe,

493 S.W.3d 624, 638 (Tex. App. 2015) (rejecting the

argument that a standard higher than preponderance

of the evidence should have been applied for a protective order). Quasi-criminal matters generally require

a showing of clear and convincing evidence.

Addington, 441 U.S. at 424. And criminal trials require establishing guilt beyond a reasonable doubt.

Id. The Addington Court held that the clear-andconvincing-evidence standard struck the proper balance between “the individual’s interest in not being

involuntarily confined indefinitely and the state’s

interest in committing the emotionally disturbed,”

order.” United States v. Hicks, 389 F.3d 514, 535 (5th Cir. 2004)

(emphasis in original).

24

while “minimize[ing] the risk of erroneous decisions.”

Id. at 425, 433.

Likewise, a showing of clear and convincing evidence is also required before permanently depriving a

person of their fundamental parental rights. Santosky

v. Kramer, 455 U.S. 745, 747–48 (1982). Protective orders, including the orders issued under the Texas

Family Code, can prohibit an individual from communicating with their children upon a showing of

“good cause.” Tex. Fam. Code § 85.022(b)(2)(C).9 Some

protective orders are perpetual and effect a final, permanent deprivation of a fundamental right. See

Kinkaid v. Thurston Cnty. Sheriff, 845 F. App’x 621,

622 (9th Cir. 2021) (Plaintiff was denied a concealed

carry license because of a permanent restraining order issued in 1996.).

Clear and convincing evidence should be the minimum standard to deprive someone of their rights

with a protective order. Protective orders can effectively terminate parental rights by banning communication with the entire family. And like a protective

order, 18 U.S.C. § 922(g)(8)(C)(i), a civil commitment

requires showing, inter alia, that the person “poses a

danger to himself or others.” Cooper v. Oklahoma, 517

U.S. 348, 368 (1996). Civil commitments and protective orders (to a lesser extent) deprive people of their

rights to move freely and to possess firearms. 18

U.S.C. § 922(g)(4), (8). And if clear and convincing evidence is “the proper protection of fundamental rights

9 Texas Courts take the curious position that an order pro-

hibiting communication with a child does not terminate parental

rights merely because prohibiting the communication is authorized by the statute. Roper, 493 S.W.3d at 638 n.15 (citation omitted).

25

in circumstances in which the State proposes to take

drastic action against an individual,” Cooper, 517 U.S.

at 368, for civil commitments, it must be the proper

standard for protective orders that deprive individuals of their fundamental rights.

There is also a high “risk of erroneous decisions.”

Addington, 441 U.S. at 424. Judge Collins recently

honed in on this: “Indeed, from what this record reveals, it is reasonably to be expected that the California courts perfunctorily issue temporary orders on the

same day that they are requested with only minimal

scrutiny and without findings that would be sufficient

to support an automatic deprivation of Second

Amendment rights.” Wallingford v. Bonta, No. 2156292, 2023 WL 6153588, at *15 (9th Cir. Sept. 21,

2023) (Collins, J., dissenting). That is not an isolated

observation. By some estimates, 900,000 final restraining orders are issued in the United States each

year; another 2–3 million temporary restraining orders are also issued. Without Restraint: The Use and

Abuse of Domestic Restraining Orders, Coalition to

End Domestic Violence, 10 (2021).10 At the high end,

“[a]n analysis of domestic violence restraining orders

issued in Campbell County, West Virginia concluded

81% were unnecessary or false.” Id. at 11. Furthermore, “it is estimated that at least half of all restraining orders are issued in the absence of direct injury or

physical harm.” Id. Some are based solely on allegations of emotional distress; others are requested—and

rubber stamped—as a tactical or legal maneuver by

the applicant. Id. at 9, 11. In fact, some have esti10 Available at http://endtodv.org/wp-

content/uploads/2021/04/Restraining-Orders.pdf.

26

mated that “40 to 50 percent of restraining orders are

strategic ploys.” Cathy Young, Hitting below the belt,

Salon (Oct. 25, 1999).11 There is no doubt that there is

a significant risk of erroneous decision-making that

results in the deprivation of a fundamental right, and

a clear and convincing evidentiary standard should be

required.

Section 922(g)(8) fails again. It has no standard of

proof. It does not even require any evidence be entered

or any witness testify. Lippman, 369 F.3d at 1042.

And states only require a preponderance of the evidence or reasonable-grounds type standard of proof.

See T. Gary Mitchell, Making the Law Work for Domestic Violence Survivors: Defining the Proper Scope

of Protective Orders, Defeating Malicious Prosecution

Claims and Saving a Home in Bankruptcy, 33

Women’s Rts. L. Rep. 401, 409 n.26 (2012) (“A [2009]

fifty state survey lists only one state (Maryland) that

requires a standard of proof for issuance of a protection order higher than a preponderance of the evidence.”).12

11 Available at

https://www.salon.com/1999/10/25/restraining_orders/.

12 Peace bonds historically suffered the same procedural in-

firmities and stood on the same constitutionally shaky grounds

as modern protective orders underlying § 922(g)(8). “In reporting

a husband’s violence as a breach of the peace, a wife’s own informal testimony to the local justice of the peace could be sufficient

for him to require her husband to put up a bond.” Ruth H. Bloch,

The American Revolution, Wife Beating, and the Emergent Value

of Privacy, 5 Early Am. Studies 221, 232–33 (2007). “No legal

guide specified the particular degree of violence necessary to

elicit such a guarantee, nor was there a particular standard of

proof.” Id. at 234.

27

4. Lastly, § 922(g)(8) does not require that counsel

be afforded (or at least knowingly waived). Bramer,

956 F.3d at 98 (collecting authorities). Yet in Texas,

the prosecutor’s office is charged with pursuing protective orders, Tex. Fam. Code § 81.007, which makes

the action “devastatingly adverse.” M.L.B. v. S.L.J.,

519 U.S. 102, 125 (1996). Indeed, the M.L.B. Court

held that “[w]hen deprivation of parental status is at

stake … counsel is sometimes part of the process that

is due.” Id. at 123. Texas courts afford the same right

to counsel that is required in criminal cases to termination of parental rights cases because “both protect

valuable personal rights from ‘devastatingly adverse

action.’” In re C.L.S., 403 S.W.3d 15, 21 (Tex. App.

2012) (quoting In re J.M.S., 43 S.W.3d 60, 63 (Tex.

App. 2001) (citing M.L.B.)). These cases can only proceed without counsel if the court has ensured, and the

record reflects, that the defendant “competently, voluntarily, knowingly, and intelligently” waived his

right to counsel. Id. at 19. The Second Amendment is

also a valuable personal right. It is fundamental just

as parental rights are. But § 922(g)(8), again, does not

afford it the same process that is due to other fundamental rights.

*

*

*

The Court would not allow any other fundamental right (voting, worship, search and seizure, interstate travel, parenting and procreating, marriage,

speech, self-incrimination, trial by jury, etc.) to be deprived through such minimal process. But if the minimal process afforded by § 922(g)(8) is sufficient to deprive individuals of one fundamental right, then it is

sufficient to deprive them of other rights in the bundle; the Second Amendment “is not ‘a second-class

28

right, subject to an entirely different body of rules

than the other Bill of Rights guarantees.’” Bruen 142

S. Ct. at 2156 (citation omitted). The Constitution requires more, and § 922(g)(8) fails to deliver.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

ERIN M. ERHARDT

Counsel of Record

MICHAEL T. JEAN

NATIONAL RIFLE

ASSOCIATION OF AMERICA –

INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Road

Fairfax, VA, 22030

(703) 267-1158

EErhardt@nrahq.org

MJean@nrahq.org

October 4, 2023

Counsel for Amicus Curiae