Amicus Curiae Brief — Jason Wolford, et al., Petitioners v. Anne E. Lopez, Attorney General of Hawaii

No. 24-1046

In the

Supreme Court of the United States

JASON WOLFORD, et al.,

Petitioners,

v.

ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF THE NATIONAL ASSOCIATION

FOR GUN RIGHTS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Barry K. A rrington

Counsel of Record

A rrington Law Firm

4195 Wadsworth Boulevard

Wheat Ridge, CO 80033

(303) 205-7870

barry@arringtonpc.com

Counsel for Amicus Curiae

131149

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Fight to Hold Heller Down Continues . . . . . 2

B. Acknowledging a Debate About What

the Law Should be is Not the Same as

Declaring What the Law Actually is . . . . . . . . . . 5

C. The Ninth Circuit’s Approach Leads to Two

Radically Different Second Amendments

Existing at the Same Time . . . . . . . . . . . . . . . . . . 9

D. The Text of the Second Amendment Never

Changed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

E. The Scope of a Right is Pegged to the Public

Understanding of the Right in 1791 . . . . . . . . . . 14

First Amendment Religion Cases . . . . . . . . . . . 14

First Amendment Speech Cases . . . . . . . . . . . . 15

ii

Table of Contents

Page

Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . 15

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 15

Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 16

F.

Later Histor y Can Liquidate an

Understanding of the Text; it Cannot

Change the Text . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Crawford v. Washington,

541 U.S. 36 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D.C. v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . 1, 2, 3, 4, 14

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Fulton v. City of Philadelphia, Pennsylvania,

593 U.S. 522 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Gamble v. United States,

587 U.S. 678 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. E.E.O.C.,

565 U.S. 171 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Klopfer v. North Carolina,

386 U.S. 213 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Lara v. Comm’r Pennsylvania State Police,

125 F.4th 428 (3d Cir. 2025) . . . . . . . . . . . . . . . 9, 10, 11

iv

Cited Authorities

Page

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Marbury v. Madison,

5 U.S. 137, 2 L. Ed. 60 (1803) . . . . . . . . . . . . . 11, 12, 13

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) . . . . . . . . . . . . . . 2, 6, 7, 8, 9, 10, 11

Near v. State of Minnesota ex rel. Olson,

283 U.S. 697 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Nevada Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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

Bruen,

597 U.S. 1 (2022) . . . . . . . . . . . . 2, 5, 6, 7, 10, 14, 16, 17

Powell v. Alabama,

287 U.S. 45 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ramos v. Louisiana,

590 U.S. 83 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Reynolds v. United States,

98 U.S. 145 (1878) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Roe v. Wade,

410 U.S. 179 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

v

Cited Authorities

Page

Saenz v. Roe,

526 U.S. 489, 119 S.Ct. 1518,

143 L.Ed.2d 689 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Slaughter-House Cases,

16 Wall. 36, 21 L.Ed. 394 (1873) . . . . . . . . . . . . . . . . 6, 7

Tennessee Valley Auth. v. Hill,

437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Timbs v. Indiana,

586 U.S. 146 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Rahimi,

602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17

Virginia v. Moore,

553 U.S. 164 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Wilson v. Arkansas,

514 U.S. 927 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Wolford v. Lopez,

116 F.4th 959 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 8

Wyoming v. Houghton,

526 U.S. 295 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vi

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

U.S. Const. amend. II . . . . . . . 1, 2, 3, 4, 5, 8, 9, 10, 11, 17

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

U.S. Const. amend. XIV . . . . . . . . . . . . 5, 6, 7, 8, 9, 10, 16

Other Authorities

Amar, Substance and Method in the Year 2000,

28 Pepperdine L.Rev. 601 (2001) . . . . . . . . . . . . . . . . . 6

C. Black, A New Birth of Freedom 74–75 (1997) . . . . . . 7

1 Blackstone’s Commentaries, Editor’s App. 300

(St. George Tucker ed. 1803) . . . . . . . . . . . . . . . . . . . . 4

Brief for Constitutional Law Professors as

Amici Curiae 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Alyson M. Cox & O. Carter Snead, “Grievously

and Egregiously Wrong”: American Abortion

Jurisprudence, 26 Tex. Rev. L. & Pol. 1 (2021) . . . . 3

vii

Cited Authorities

Page

John Hart Ely, The Wages of Crying Wolf: A

Comment on Roe v. Wade, 82 Yale L.J. 920 (1973) . . . 4

Hon. Kevin C. Newsom, The Road to Tradition

or Perdition? An Or iginalist Cr itique

of Tr a d i ti o n a li s m in Co n s ti t u ti o n a l

Interpretation, 47 Harv. J.L. & Pub. Pol’y

745 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Mark W. Smith, ‘Not All History Is Created Equal’:

In the Post-Bruen World, the Critical Period

for Historical Analogues Is when the Second

Amendment Was Ratified in 1791, and not

1868, SSRN (Oct. 1, 2022) (manuscript, at 4),

http://dx.doi.org/10.2139/ssrn.4248297 . . . . . . . 4, 9, 16

1

INTEREST OF AMICUS

The right to keep and bear arms is a fundamental right

that existed prior to the Constitution. The right is not in

any sense granted by the Constitution. Nor does it depend

on the Constitution for its existence. Rather, the Second

Amendment declares that the pre-existing “right of the

people to keep and bear Arms shall not be infringed.”

The National Association for Gun Rights (“NAGR”)1 is a

nonprofit membership and donor-supported organization

with hundreds of thousands of members nationwide. The

sole reason for NAGR’s existence is to defend American

citizens’ right to keep and bear arms. In pursuit of this

goal, NAGR has filed numerous lawsuits seeking to

uphold Americans’ Second Amendment rights. NAGR

has a strong interest in this case because the guidance

the Court will provide in its resolution of this matter will

have a major impact on NAGR’s ongoing litigation efforts

in support of Americans’ fundamental right to keep and

bear arms.

SUMMARY OF ARGUMENT

Non-originalists have been relentless in their efforts

to cabin D.C. v. Heller, 554 U.S. 570 (2008), as much as

possible to its specific facts. Their latest tactic involves

suggesting that 1868 (as opposed to 1791) is the proper time

1. No counsel for a party authored this brief in whole or

in part, and no entity or person, other than amicus curiae, its

members, and its counsel, made a monetary contribution intended

to fund the preparation or submission of this brief. Amicus curiae

provided timely notice to Petitioner and notice to Respondent.

Respondent does not object to the filing of this brief.

2

period for judging the scope of the Second Amendment

right. The Court should resist this effort, because in

numerous cases it has held that enumerated rights have

the scope understood by the people who ratified the Bill

of Rights in 1791.

This issue arises from a passage in New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022),

in which the Court acknowledged a scholarly debate

regarding the proper time period. But in McDonald v. City

of Chicago, Ill., 561 U.S. 742 (2010), the Court made clear

that the existence or a scholarly debate has no bearing

on the actual status of the substantive law. In McDonald,

while acknowledging such a debate, the Court rejected the

conclusions of the scholars because they were inconsistent

with this Court’s precedents. The Court should do the

same thing in this case.

The Court should reject the Ninth Circuit’s approach

to this case because it would lead to two radically different

Second Amendments—one applicable to the states and the

other applicable to the federal government—existing at

the same time. Finally, the whole point of the originalist

method of constitutional interpretation is that the text

had a particular meaning in 1791, that meaning does not

change, and that meaning binds this Court.

ARGUMENT

A. The Fight to Hold Heller Down Continues

Progressive constitutional jurisprudence is, to say

the least, odd. Take, for example, progressives’ attitudes

3

toward the fabricated 2 right to abortion and the actual

right to keep and bear arms. The Constitution does

not refer to abortion, and no such right is implicitly

protected by any constitutional provision.3 In contrast, the

Constitution specifically enumerates the right to keep and

bear arms and unambiguously states that it shall not be

infringed.4 Yet, progressives treat the fabricated right to

abortion as a “super-right”5 that is more sacrosanct than

rights actually enumerated in the text. At the same time,

they insist that the actually enumerated right to keep and

bear arms does not really exist in any meaningful sense.6

From this, we can conclude that the text, history,

and structure of the Constitution are simply irrelevant

to a certain kind of judge if they stand in the way of

achieving the judge’s preferred policy goals. If, to achieve

2. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 336

(2022) (Thomas, J., concurring).

3. Dobbs, 597 U.S. at 231.

4. U.S. Const. amend. II.

5. Alyson M. Cox & O. Carter Snead, “Grievously and

Egregiously Wrong”: American Abortion Jurisprudence, 26

Tex. Rev. L. & Pol. 1, 22 (2021) (quoting Planned Parenthood of

Ind. & Ky., Inc., 888 F.3d at 311 (Manion, J., concurring in the

judgment in part and dissenting in part)). As the Court noted in

Dobbs, “Members of this Court have repeatedly lamented that no

legal rule or doctrine is safe from ad hoc nullification by this Court

when an occasion for its application arises in a case involving state

regulation of abortion.” Id., 597 U.S. at 286 (internal citations and

quotation marks omitted).

6. D.C. v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J.,

dissenting) (Constitution does not “limit[] any legislature’s

authority to regulate private civilian uses of firearms.”).

4

those policy goals, he must choose between wielding “raw

judicial power”7 and adhering to the actual Constitution he

purports to be interpreting, well, so much the worse for the

actual Constitution. Professor Ely famously captured this

attitude when he remarked that Roe was not bad because

it was bad constitutional law; it was bad “because it [was]

not constitutional law [at all] and [gave] almost no sense

of an obligation to try to be.” John Hart Ely, The Wages

of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J.

920, 947 (1973) (emphasis in the original).

In Heller, the non-originalists lost the fight to

drum the Second Amendment out of the Constitution.

Having lost that fight, they have spent the ensuing 17

years frenetically working to undermine Heller as much

as possible. And in the Ninth Circuit especially, they

succeeded famously. See United States v. Rahimi, 602

U.S. 680, 712 (2024) (Gorsuch, J., concurring) (noting

that post-Heller, in the Ninth Circuit, the government

had an unblemished 50-0 record defending against

Second Amendment challenges). This is hardly surprising

given the long history of governments trying to confine

the right to keep and bear arms “within the narrowest

limits.” Rahimi, 602 U.S. at 709 (Gorsuch, J., concurring)

(quoting 1 Blackstone’s Commentaries, Editor’s App. 300

(St. George Tucker ed. 1803)).

The latest tactic that anti-Second Amendment forces

have employed to undermine the right to keep and bear

arms is to argue that 1868 (as opposed to 1791) is the

proper time period for judging the scope of the right.

Mark W. Smith, ‘Not All History Is Created Equal’: In

7. Roe v. Wade, 410 U.S. 179, 222 (1973) (White, J. dissenting).

5

the Post-Bruen World, the Critical Period for Historical

Analogues Is when the Second Amendment Was Ratified

in 1791, and not 1868, SSRN (Oct. 1, 2022) (manuscript,

at 4), http://dx.doi.org/10.2139/ssrn.4248297 (hereinafter

“Smith”). They are doing this because there were more

laws on the books in 1868 and thus more “opportunities

to find historical ‘analogues’ to restrict individual rights.”

Id. As noted in the Petition, there is a circuit split as to

whether it is permissible for courts to place primary

reliance on Reconstruction-Era and later laws to uphold

modern gun control regulations. Pet. 10. It is vital that

the Court resolve this split at the earliest possible time,

because it has significant—indeed epochal—ramifications

not only in the specific context of Second Amendment cases

such as this one, but also in a host of other constitutional

contexts. Indeed, if the Ninth Circuit’s approach to

this issue were ever adopted by this Court, it “would

revolutionize not only Second Amendment law, but also

the Court’s entire Bill of Rights jurisprudence.” Smith,

supra, at 1.

B. Acknowledging a Debate About What the Law

Should be is Not the Same as Declaring What the

Law Actually is

The controversy over the proper time period has its

roots in a passage from Bruen in which the Court stated:

“We . . . acknowledge that there is an ongoing scholarly

debate on whether courts should primarily rely on the

prevailing understanding of an individual right when

the Fourteenth Amendment was ratified in 1868 when

defining its scope.” Id. at 37 (emphasis added). The key

word in that sentence is “should.” There is no legitimate

debate, scholarly or otherwise, regarding whether this

6

Court has in fact relied on the prevailing understanding

of an individual right in 1868 when defining its scope. It

has not. Indeed, Bruen itself made this clear when the

Court wrote “we have generally assumed that the scope

of the protection applicable to the Federal Government

and States is pegged to the public understanding of the

right when the Bill of Rights was adopted in 1791.” Id.

Acknowledging a scholarly debate about what the

law should be has no bearing on what the law actually

is. This was made plain in McDonald, another case that

acknowledged a scholarly debate and then rejected the

conclusions of the scholars. There, the petitioner argued

that the Slaughter–House Cases, 16 Wall. 36, 21 L.Ed.

394 (1873), which narrowly interpreted the Privileges

and Immunities Clause of the Fourteenth Amendment,

were wrongly decided and should be overruled. The Court

acknowledged a scholarly debate concerning whether the

Slaughter–House Cases were wrongly decided when it

wrote:

Today, many legal scholars dispute the

correctness of the narrow Slaughter–House

interpretation. See, e.g., Saenz v. Roe, 526 U.S.

489, 522, n. 1, 527, 119 S.Ct. 1518, 143 L.Ed.2d

689 (1999) (THOMAS, J., dissenting) (scholars

of the Fourteenth Amendment agree “that the

Clause does not mean what the Court said it

meant in 1873”); Amar, Substance and Method

in the Year 2000, 28 Pepperdine L.Rev. 601,

631, n. 178 (2001) (“Virtually no serious modern

scholar—left, right, and center—thinks that

this [interpretation] is a plausible reading of

the Amendment”); Brief for Constitutional

7

Law Professors as Amici Curiae 33 (claiming

an “overwhelming consensus among leading

constitutional scholars” that the opinion is

“egregiously wrong”); C. Black, A New Birth

of Freedom 74–75 (1997).

McDonald, 561 U.S. at 756–57.

Having acknowledged the scholarly debate, the Court

declined to accept the conclusions of the scholars and

upheld its precedent. The Court wrote:

We see no need to reconsider that interpretation

[of the Privileges or Immunities Clause]

here. For many decades, the question of

the r ights protected by the Four teenth

Amendment against state infringement has

been analyzed under the Due Process Clause of

that Amendment and not under the Privileges

or Immunities Clause. We therefore decline to

disturb the Slaughter–House holding.

Id. at 758.

Similarly, when Bruen acknowledged a scholarly

debate, it was not calling into doubt the status of its

precedents holding that the scope of the protection

afforded by a right is “pegged to the public understanding

of the right when the Bill of Rights was adopted in 1791.”

Id., 597 U.S. at 37. As in McDonald, it was merely pointing

out that some scholars believe that these precedents

should be overruled so that in state cases the scope of the

right is pegged to the public understanding of the right

when the Fourteenth Amendment was adopted in 1868.

8

In this case, the Ninth Circuit seems to have failed to

grasp this important distinction. The circuit court wrote:

“It bears emphasizing that the laws at issue here are

state laws. The Second Amendment applies to the States

because of the Fourteenth Amendment’s ratification in

1868. . . . [and thus] we look to the understanding of the

right to bear arms both at the time of the ratification

of the Second Amendment in 1791 and at the time of

the ratification of the Fourteenth Amendment in 1868.”

Wolford v. Lopez, 116 F.4th 959, 980 (9th Cir. 2024)

(emphasis in original). The circuit court compounded its

error when it cited McDonald. Id. (citing McDonald, 561

U.S. at 750, 130 S.Ct. 3020). This is anomalous because

McDonald held precisely the opposite:

Finally, the Court abandoned “the notion

that the Fourteenth Amendment applies to

the States only a watered-down, subjective

version of the individual guarantees of the

Bill of Rights,” stating that it would be

“incongruous” to apply different standards

“depending on whether the claim was asserted

in a state or federal court.” Malloy, 378 U.S., at

10–11, 84 S.Ct. 1489 (internal quotation marks

omitted). Instead, the Court decisively held that

incorporated Bill of Rights protections “are

all to be enforced against the States under the

Fourteenth Amendment according to the same

standards that protect those personal rights

against federal encroachment.”

Id., 561 U.S. at 765 (emphasis added).

9

As set forth in more detail below, McDonald is

not the only precedent the lower court failed to apply

properly. Indeed, the court’s holding is contrary to the

overwhelming thrust of this Court’s precedents.

C. The Ninth Circuit’s Approach Leads to Two

Radically Different Second Amendments Existing

at the Same Time

It has been a fundamental principle of Bill of Rights

jurisprudence that the Court does not apply one version

of an enumerated right against a potential federal

infringement and an altogether different version against

a potential state or local infringement. Smith, 7. “Thus,

if a Bill of Rights protection is incorporated, there is no

daylight between the federal and state conduct it prohibits

or requires.” Timbs v. Indiana, 586 U.S. 146, 150 (2019)

(emphasis added).

Lara v. Comm’r Pennsylvania State Police, 125

F.4th 428 (3d Cir. 2025), illustrates the importance of

this foundational “no daylight” principle. There, the

government was not able to identify a single Foundingera regulation restricting the right of 18-to-20-year-olds

to keep and bear firearms. Id., 125 F.4th at 439. Yet, the

government said it was able to identify “dozens” of such

laws from the Reconstruction era. Id. The court wrote:

But the [government] has forced the issue here

by insisting that the laws at the time Americans

adopted the Fourteenth Amendment would

have allowed states to forbid people in the

Appellants’ position from having firearms,

while at the same time providing no evidence of

10

a tradition of disarming 18-to-20-year-olds at

the time of the founding. By maintaining that

there is ample evidence from 1868 to support

the Appellants’ disarmament, but offering

none from the founding era, the [government]

is claiming that there is a difference between

how each generation understood the right, so

we must pick between the two timeframes.

Id., 125 F.4th at 439, n. 17.

The Third Circuit resolved the matter by holding that

the meaning of the Second Amendment “is fixed according

to the understandings of those who ratified it[.]” Id., 125

F.4th at 441 (quoting Bruen, 597 U.S. at 28). The court

further held that Founding-era laws reflect the principle

that 18-to-20-year-olds are entitled to exercise the right to

bear arms. Id. Thus, it rejected the government’s proposed

historical analogues from the mid-to-late nineteenth

century that suggested “the exact opposite.” Id.

The point of this is obvious. In Lara, the circuit

court was confronted with a situation where the public

understanding of the scope of the right to keep and bear

arms in 1868 seemed to be radically different from the

public understanding in 1791. Thus, if the court had held

that the former understanding controlled for challenges

to state laws while the latter applied to challenges to

federal laws, it would have created a situation where

two radically different Second Amendments exist at the

same time. Under McDonald, this plainly will not do. As

noted above, there the Court noted that it has “decisively

held that incorporated Bill of Rights protections ‘are all

to be enforced against the States under the Fourteenth

11

Amendment according to the same standards that protect

those personal rights against federal encroachment.’”

Id., 561 U.S. at 765. Lara did the only thing it could do

while respecting this precedent and held that the 1791

standard controlled. Lara’s decision to peg 1791 as the

key timeframe is consistent with numerous precedents

from this Court.

D. The Text of the Second Amendment Never Changed

It is prudent to reflect on first principles from time

to time. In Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60

(1803), Chief Justice Marshall wrote:

The powers of the legislature are defined,

and limited; and that those limits may not

be mistaken, or forgotten, the constitution is

written. To what purpose are powers limited,

and to what purpose is that limitation committed

to writing, if these limits may, at any time, be

passed by those intended to be restrained?

The distinction, between a government with

limited and unlimited powers, is abolished,

if those limits do not confine the persons on

whom they are imposed, and if acts prohibited

and acts allowed, are of equal obligation. It is

a proposition too plain to be contested, that

the constitution controls any legislative act

repugnant to it; or, that the legislature may

alter the constitution by an ordinary act.

Between these alternatives there is no middle

ground. The constitution is either a superior,

paramount law, unchangeable by ordinary

12

means, or it is on a level with ordinary legislative

acts, and like other acts, is alterable when the

legislature shall please to alter it.

If the former part of the alternative be true,

then a legislative act contrary to the constitution

is not law: if the latter part be true, then written

constitutions are absurd attempts, on the part

of the people, to limit a power, in its own nature

illimitable.

Certainly all those who have framed written

constitutions contemplate them as forming

the fundamental and paramount law of the

nation, and consequently the theory of every

such government must be, that an act of the

legislature, repugnant to the constitution, is

void.

This theory is essentially attached to a

written constitution, and is consequently to

be considered, by this court, as one of the

fundamental principles of our society. It is

not therefore to be lost sight of in the further

consideration of this subject. . . .

Id. 5 U.S. at 176–77 (emphasis added).

Note Chief Justice Marshall’s repeated emphasis

on the fact that the Constitution is written. Marshall’s

argument is as simple as it is elegant—the fact that the

Constitution is a written text simultaneously justifies

and constrains federal courts’ power of judicial review.

It justifies the power because when a court is confronted

13

with conflicting texts—i.e., the text of a challenged law

and the text of the Constitution—it is bound by the latter

and must declare the former void. It constrains the power

because judges’ authority is limited to interpreting the

text. They have no authority to engage in “freewheeling

judicial policymaking.” Dobbs, 597 U.S. at 240. A court’s

appraisal of the wisdom or unwisdom of a law must be put

aside. If the law comports with the constitutional text, “the

judicial process comes to an end.” Tennessee Valley Auth.

v. Hill, 437 U.S. 153, 194 (1978). This Court does not “sit as

a committee of review” and it is not “vested with the power

of veto.” Id., at 194-95. Thus, where the constitution’s text

is silent, a federal court must also be silent.

Of course, the text’s fundamental role in justifying

and constraining the power of judicial review would be

completely nullified if that text had no fixed meaning. The

so-called “living constitution” program pursuant to which

the text means anything a willful judge says it means is

inconsistent with democratic self-rule by a free people.

It also undermines the rationale for judicial review in

the first place. If judicial review is premised on the text,

a theory of judicial interpretation that effectively frees

a judge from the text is illegitimate under Marshall’s

reasoning in Marbury. Living constitution advocates

advance a cake-and-eat-it-too approach to constitutional

law in which they retain the power of judicial review while

jettisoning the sole justification for the existence of that

power. Thus, determining the fixed meaning of the text at

a particular moment in time is of utmost importance for

the very legitimacy of judicial review. As demonstrated

in the next section, for enumerated rights, that time has

always been considered the time when the Bill of Rights

was ratified in 1791, because “Constitutional rights are

14

enshrined with the scope they were understood to have

when the people adopted them.” Bruen, 597 U.S. at 34

(quoting Heller, 554 U.S. at 634-35).

E. The Scope of a Right is Pegged to the Public

Understanding of the Right in 1791

The Court has consistently held that the scope of an

enumerated right is pegged to the public understanding

of the right when the Bill of Rights was ratified in 1791.

The following is a sampling of numerous examples of the

application of this doctrine.

First Amendment Religion Cases

In Espinoza v. Montana Dep’t of Revenue, 591 U.S.

464 (2020), the government relied on a tradition against

state support for religious schools that arose in the second

half of the 19th century. More than 30 states adopted

no-aid provisions during this time. 591 U.S. at 482. The

Court rejected the government’s argument because such

a late development “cannot by itself establish an early

American tradition.” Id. See also Reynolds v. United

States, 98 U.S. 145, 162 (1878) (The meaning of the First

Amendment is determined by the “history of the times in

the midst of which the provision was adopted.”); HosannaTabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,

565 U.S. 171, 183 (2012) (looking to views of the “founding

generation”); Lynch v. Donnelly, 465 U.S. 668, 673

(1984) (“The Court’s interpretation of the Establishment

Clause has comported with what history reveals was the

contemporaneous understanding of its guarantees.”); and

Fulton v. City of Philadelphia, Pennsylvania, 593 U.S.

522, 544 (2021) (Alito, J., concurring) (central question is

15

what the free-exercise right was understood to be when

the First Amendment was adopted).

First Amendment Speech Cases

In Nevada Comm’n on Ethics v. Carrigan, 564 U.S.

117, 122 (2011), the Court wrote: “Early congressional

enactments provide contemporaneous and weighty

evidence of the Constitution’s meaning. That evidence is

dispositive here.” (citations omitted; cleaned up). See also

Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 714

(1931) (examining Founding-era authorities to determine

scope of freedom of the press).

Fourth Amendment

In Virginia v. Moore, 553 U.S. 164, 168 (2008), the

Court wrote: “We are aware of no historical indication that

those who ratified the Fourth Amendment understood it

as a redundant guarantee of whatever limits on search

and seizure legislatures might have enacted.” (emphasis

added). See also Wyoming v. Houghton, 526 U.S. 295,

299 (1999) (scope of Fourth Amendment protection

determined “when the Amendment was framed”); and

Wilson v. Arkansas, 514 U.S. 927, 931 (1995) (same).

Fifth Amendment

Gamble v. United States, 587 U.S. 678, 683 (2019), held

that the scope of the double jeopardy clause is determined

by what the word “offense” was commonly understood to

mean in 1791.

16

Sixth Amendment

In Crawford v. Washington, 541 U.S. 36, 54 (2004),

the Court held that the right to be confronted with

witnesses refers to the right of confrontation at common

law “admitting only those exceptions established at the

time of the founding.” See also Ramos v. Louisiana, 590

U.S. 83, 91 (2020) (understanding of right to jury in 1791

dispositive); Powell v. Alabama, 287 U.S. 45, 60-67 (1932)

(right to counsel pegged to early American history); and

Klopfer v. North Carolina, 386 U.S. 213, 223-25 (same

regarding right to speedy trial).

Professor Smith wraps this discussion up as follows:

The author has not found, and litigants in postBruen litigation have so far not pointed to, a

single Supreme Court case [] in which the []

Court has looked to the time of ratification of

the Fourteenth Amendment as the principal

period for determining the scope or meaning

of a provision of the Bill of Rights.

Smith, 25-26 (emphasis in original).

F. Later History Can Liquidate an Understanding of

the Text; it Cannot Change the Text

As noted above, 30 states adopted no-aid provisions

in the second half of the nineteenth century. Espinoza,

591 U.S. at 482. The Court held that these late-adopted

laws were simply irrelevant to the meaning of the First

Amendment. Id. This is consistent with Bruen’s approach

to post-ratification history. Nineteenth-century evidence

17

may be relevant to determining the public understanding

of a provision of the Bill of Rights as of the time it was

ratified. Bruen, 597 U.S. at 35. Also, evidence that a

governmental practice has been open, widespread, and

unchallenged since the early days of the Republic can

serve to “liquidate” the meaning of a phrase in the

Constitution. Id. at 35-36. Nevertheless, as in Espinoza,

late nineteenth-century evidence cannot provide much

insight into the meaning of a provision of the Bill of Rights

“when it contradicts earlier evidence.” Id. at 66.

In summary, if the text is vague and Founding-era

history is elusive or inconclusive, post-ratification history

may be important in interpreting the constitutional text.

Rahimi, 602 U.S. at 723 (Kavanaugh, J., concurring). By

the same token, if the Founding-era history supporting

a particular interpretation of an enumerated right is

robust, post-ratification history that contradicts that

interpretation is simply irrelevant. Bruen, 597 U.S. at

66, n. 28 (Late evidence “does not provide insight into the

meaning of the Second Amendment when it contradicts

earlier evidence.”). See also Rahimi, 602 U.S. at 738

(“evidence of ‘tradition’ unmoored from original meaning

is not binding law”) (Barrett, J., concurring).

Justice Barrett’s concurrence in Rahimi should

be emphasized, because, as Judge Newsom recently

observed, the Court should be wary of attempts to change

the text by means of an ersatz “traditionalism.” He wrote:

My first fear is that traditionalism gives

off an originalist “vibe” without having any

legitimate claim to the originalist mantle.

It seems old and dusty—and thus objective

18

and reliable. And maybe it is indeed all those

things. But let’s be clear: it’s not originalism.

Remember, originalism is fundamentally a

text-based interpretive method. We originalists

say that any particular constitutional provision

should be interpreted in accordance with its

common, ordinary meaning at the time it was

adopted and ratified. If we really mean that,

then by definition, it seems to me, evidence that

significantly post-dates that provision’s adoption

isn’t just second-best—it’s positively irrelevant.

Hon. Kevin C. Newsom, The Road to Tradition or

Perdition? An Originalist Critique of Traditionalism in

Constitutional Interpretation, 47 Harv. J.L. & Pub. Pol’y

745, 754 (2024) (emphasis in the original).

CONCLUSION

For the reasons set forth herein, NAGR respectfully

requests the Court to grant the petition for writ of

certiorari.

Respectfully submitted,

Barry K. A rrington

Counsel of Record

A rrington Law Firm

4195 Wadsworth Boulevard

Wheat Ridge, CO 80033

(303) 205-7870

barry@arringtonpc.com

May 2025

Counsel for Amicus Curiae