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

Supreme Court briefNov 24, 2025

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No. 24-1046

In The

Supreme Court of the United States

JASON WOLFORD, ET AL.,

Petitioners,

-VANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF ASSOCIATION OF NEW JERSEY

RIFLE & PISTOL CLUBS, INC., NEW JERSEY

FIREARMS OWNERS SYNDICATE, NEW YORK

STATE RIFLE & PISTOL ASSOCIATION, INC.,

AND GUN OWNERS’ ACTION LEAGUE, INC. AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

DANIEL L. SCHMUTTER

Counsel of Record

HARTMAN & WINNICKI, P.C.

74 Passaic Street

Ridgewood, NJ 07450

(201) 967-8040

dschmutter@hartmanwinnicki.com

Counsel for Amici Curiae

November 24, 2025

TABLE OF CONTENTS

PAGE

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

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

INTEREST OF AMICI CURIAE ............................. 1

SUMMARY OF THE ARGUMENT......................... 3

ARGUMENT ............................................................ 6

The Court Should Reverse the Judgment

Below and Provide Guidance to the

Lower Courts on Applying a Proper

Level of Generality in Analogical

Analysis under New York State Rifle &

Pistol Association v. Bruen .................................. 6

A. The Analogical Method ................................. 7

B. The Level of Generality Problem ................ 11

C. The Level of Generality Problem Solved .... 18

CONCLUSION ....................................................... 20

TABLE OF AUTHORITIES

PAGE

Cases

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................... 6

McCoy v. Bureau of Alcohol, Tobacco, Firearms

and Explosives,

140 F.4th 568 (4th Cir. 2025)) ............................ 15

Koons v. Attorney General New Jersey,

156 F.4th 210 (3d Cir. 2025) ..............16, 17, 18, 19

National Rifle Association v. Bondi,

133 F.4th 1108 (11th Cir. 2025) .......................... 15

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

597 U.S. 1 (2022) ..............6, 7, 8, 10, 11, 12, 16, 17

Rocky Mountain Gun Owners v. Polis,

121 F.4th 96 (10th Cir. 2024).............................. 15

United States v. Rahimi,

602 U.S. 680 (2024) ............................11, 14, 19, 20

Wolford v. Lopez,

116 F.4th 959 (9th Cir. 2024) .............................. 17

iii

Statutes

18 U.S.C. §922(g)(8) ............................. 11, 12, 13, 14

Other Authorities

George A. Mocsary, The Wrong Level of

Generality: Misapplying Bruen to YoungAdult Firearm Rights, 103 Wash. U. L. Rev.

Online 100 (forthcoming Dec. 2025) ..............15, 18

INTEREST OF AMICI CURIAE1

Association of New Jersey Rifle & Pistol Clubs,

Inc. (“ANJRPC”) is a not-for-profit membership

corporation, incorporated in the State of New Jersey

in 1936 and represents its members, including tens

of thousands of members who reside in New Jersey.

ANJRPC represents the interests of target shooters,

hunters, competitors, outdoors people, and other law

abiding firearms owners. Among ANJRPC’s

purposes is aiding such persons in every way within

its power and supporting and defending the people’s

right to keep and bear arms, including the right of

its members and the public to purchase, possess, and

carry firearms. In contumacious violation of this

Court’s ruling in New York State Rifle & Pistol

Association v. Bruen, New Jersey imposes severe

restrictions on the carry of handguns at least as

restrictive and unconstitutional as the ones at issue

in this case. Such unconstitutional restrictions are a

direct affront to ANJRPC’s central mission.

New Jersey Firearms Owners Syndicate

(“NJFOS”) is a nonprofit incorporated in the State of

New Jersey with its principal place of business in

Atlantic Highlands, New Jersey. NJFOS advocates

on behalf of its thousands of members across the

state in respect of their fundamental right to keep

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

No person or entity, other than amici or their counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief.

and bear arms. NJFOS’s purpose is to educate both

the public and lawmakers on legislative issues

affecting or proposing to limit or negatively impact

those fundamental civil liberties, and to take legal

action when those rights are unconstitutionally

restrained. NJFOS is interested in this case because

Hawaii’s restrictions on the right of its citizens to

carry firearms for self-defense outside their homes

violate the Second Amendment. New Jersey has

placed virtually the same restrictions on our

members and all peaceable people across the state

seeking to protect themselves outside their home.

New York State Rifle & Pistol Association, Inc.

(“NYSRPA”) is a nonprofit member organization

first organized in 1871 in New York City. NYSRPA

is the oldest firearms advocacy organization in the

United States, and it is the largest firearms

organization in the state of New York. NYSRPA

provides education and training in the safe and

proper use of firearms, promotes the shooting sports,

and supports the right to keep and bear arms

through both legislative and legal action.

Gun Owners’ Action League, Inc. (“GOAL”) is a

membership organization focused on promoting and

defending the fundamental right of ordinary citizens

to keep and bear arms for lawful purposes,

including, but not limited to, competition,

recreation, hunting, and self-defense. GOAL was

established in November of 1974 and has a principal

place of business in Westboro, Massachusetts.

SUMMARY OF THE ARGUMENT

During the fourteen years following this Court’s

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

(2008), lower courts developed and applied a

methodology for implementing that ruling which

allowed them to mostly uphold laws implicating the

Second Amendment right to keep and bear arms. See

New York State Rifle & Pistol Association v. Bruen,

597 U.S. 1, 17-26 (2022). As the Court explained in

Bruen, that methodology was not consistent with

Heller and was roundly rejected. Id.

Nevertheless, the experience during this interval

illustrated that the task of fashioning a ruling that

will sufficiently guide lower courts can be

challenging indeed. And so, the Second Amendment

now faces a similar challenge that threatens to

undermine the rigorous methodology laid out by this

Court in Bruen, that is: Level of Analogical

Generality.

Because the meaning of the Second Amendment

was fixed at the time of its ratification, see id. at 28,

the historical inquiry is a comparison of the modern,

challenged law, with the historical understanding of

the nature and scope of the right to keep and bear

arms at time the Second Amendment was enshrined

in the Constitution. But, as the Court explained,

sometimes this analysis must be done by analogy.

This Court had its first post-Bruen opportunity

to apply the Bruen methodology in United States v.

Rahimi, 602 U.S. 680 (2024).

Under the Court’s approach in Rahimi, multiple

lines of law can be combined to illustrate a

“principle” arising from a historical tradition. This

poses a challenge for litigants and courts in that

courts inclined to uphold a modern law may choose

to stitch together historical laws in a way that

renders the Second Amendment a nullity.

In her concurring opinion in Rahimi, Justice

Barrett referred to this challenge in terms of “level

of generality.” Lower courts have already begun to

fail the level of generality challenge.

Numerous lower courts are already improperly

upholding laws by abstracting historical analogs at

an exceedingly high level of generality. See, e.g.,

McCoy v. Bureau of Alcohol, Tobacco, Firearms and

Explosives, 140 F.4th 568 (4th Cir. 2025); National

Rifle Association v. Bondi, 133 F.4th 1108 (11th Cir.

2025) (en banc); Rocky Mountain Gun Owners v.

Polis, 121 F.4th 96 (10th Cir. 2024); and Koons v.

Attorney General New Jersey, 156 F.4th 210 (3d Cir.

2025). The decision below of the Ninth Circuit

suffers from this error as well.

Unfortunately, “level of generality” is the new

“interest balancing.” No longer able to engage in

explicit interest balancing through the application of

intermediate scrutiny, lower courts can now

embrace high levels of analogical generality to

uphold nearly any law. In light of this, clear

guidance from this Court now on level of generality

would serve to avoid years of potential lower court

error such as prevailed in the years prior to Bruen.

As such, Amici urge the Court to adopt the following

approach to level of generality.

1. Courts should use close firearm-specific analogs

first instead of general law provisions.

2. Only if close analogues are lacking should courts

abstract. But not to global doctrines (like general

contract voidability) that merely had incidental

spillover effects on all purchases. Abstraction

should preserve Bruen’s “how and why” focus:

comparable burdens for comparable reasons.

3. In pulling “principle” from historical tradition,

courts should rely on only lines of historical law

that are themselves each “well-established and

representative,” as the Court did in Rahimi with

surety laws and going armed laws, rather than

stitching together disparate outliers and calling

the result a historical tradition, as the Ninth

Circuit did below and the Third Circuit did in

Koons.

These guardrails would suitably and effectively

constrain lower courts and prevent years of lower

court error.

ARGUMENT

The Court Should Reverse the Judgment

Below and Provide Guidance to the Lower

Courts on Applying a Proper Level of

Generality in Analogical Analysis under New

York State Rifle & Pistol Association v. Bruen.

During the fourteen years following this Court’s

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

(2008), lower courts developed and applied a

methodology for implementing that ruling which

allowed them to mostly uphold laws implicating the

Second Amendment right to keep and bear arms. See

New York State Rifle & Pistol Association v. Bruen,

597 U.S. 1, 17-26 (2022). As the Court explained in

Bruen, that methodology was not consistent with

Heller and was roundly rejected. Id.

Nevertheless, the experience during this interval

illustrated an important aspect of the business of

appellate courts, generally, and this Court, in

particular, in that the task of fashioning a ruling

that will sufficiently guide lower courts can be

challenging indeed. And so, the Second Amendment

now faces a similar challenge that threatens to

undermine the rigorous methodology laid out by this

Court in Bruen, that is: Level of Analogical

Generality.

A. The Analogical Method

In Bruen, the Court explained the correct

methodology as follows:

When the Second Amendment's plain text

covers an individual’s conduct, the

Constitution presumptively protects that

conduct. The government must then justify

its regulation by demonstrating that it is

consistent with the Nation’s historical

tradition of firearm regulation. Only then

may a court conclude that the individual’s

conduct

falls

outside

the

Second

Amendment’s “unqualified command.”

Id. at 24 (citation omitted).

Because the meaning of the Second Amendment

was fixed at the time of its ratification, see id. at 28,

the historical inquiry is a comparison of the modern,

challenged law, with the historical understanding of

the nature and scope of the right to keep and bear

arms at time the Second Amendment was enshrined

in the Constitution. The Court went on the explain

that:

The test that we set forth in Heller and apply

today requires courts to assess whether

modern firearms regulations are consistent

with the Second Amendment’s text and

historical understanding. In some cases, that

inquiry will be fairly straightforward. For

instance, when a challenged regulation

addresses a general societal problem that has

persisted since the 18th century, the lack of a

distinctly similar historical regulation

addressing that problem is relevant evidence

that the challenged regulation is inconsistent

with the Second Amendment. Likewise, if

earlier generations addressed the societal

problem, but did so through materially

different means, that also could be evidence

that a modern regulation is unconstitutional.

Id. at 26-27.

The method is ultimately comparative—but

comparative to what? One thing that both courts and

litigants have learned since Bruen is that the

selection of comparator(s) does an enormous amount

(perhaps all) of the work.

The Court provided several instructions in this

regard. Perhaps most importantly, the Court

explained that “[a]lthough its meaning is fixed

according to the understandings of those who

ratified it, the Constitution can, and must, apply to

circumstances beyond those the Founders

specifically anticipated.” Id. at 28.

Because of this, the “historical inquiry that

courts must conduct will often involve reasoning by

analogy—a commonplace task for any lawyer or

judge. Like all analogical reasoning, determining

whether a historical regulation is a proper analogue

for a distinctly modern firearm regulation requires a

determination of whether the two regulations are

‘relevantly similar.’” Id. at 28-29.

Importantly, to understand the essence of

“relevantly similar,” the Court explained that:

. . . Heller and McDonald point toward at least

two metrics: how and why [emphasis added]

the regulations burden a law-abiding citizen's

right to armed self-defense. As we stated in

Heller and repeated in McDonald, “individual

self-defense is ‘the central component’ of the

Second Amendment right.” Therefore,

whether modern and historical regulations

impose a comparable burden on the right of

armed self-defense and whether that burden

is comparably justified are “‘central’”

considerations when engaging in an

analogical inquiry.

Id. at 29 (cleaned up).

The Court went on to highlight that selection of

the correct comparator(s) necessarily falls between

two extremes:

To be clear, analogical reasoning under the

Second Amendment is neither a regulatory

straightjacket nor a regulatory blank check.

On the one hand, courts should not “uphold

every modern law that remotely resembles a

historical analogue,” because doing so “risk[s]

endorsing outliers that our ancestors would

never have accepted.” On the other hand,

analogical reasoning requires only that the

government identify a well-established and

representative historical analogue, not a

historical twin. So even if a modern day

regulation is not a dead ringer for historical

precursors, it still may be analogous enough

to pass constitutional muster.

Id. at 30 (emphasis in original).

Two additional analytical rules from Bruen bear

discussion. First, the Court was clear that laws

forming a historical tradition need to be numerically

widespread:

In the colonial era, respondents point to only

three restrictions on public carry. For

starters, we doubt that three colonial

regulations could suffice to show a tradition of

public-carry regulation.

Id. at 46. And, certainly, reliance on outliers cannot

demonstrate a historical tradition. Id. at 65-66.

Second, laws must be historically longstanding to

form a tradition. Id. at 49 (“[a]t most eight years of

history in half a Colony roughly a century before the

founding sheds little light on how to properly

interpret the Second Amendment”). See also Id. at

69 (territorial laws are too transitory to form a

tradition).

Both of these criteria help ensure that, to

illustrate a historical tradition, analogically

appropriate historical laws are “well-established

and representative.” Id. at 30.

B. The Level of Generality Problem

This Court had its first post-Bruen opportunity

to apply this methodology in United States v.

Rahimi, 602 U.S. 680 (2024). In Rahimi, the Court

considered a facial challenge under the Second

Amendment to 18 U.S.C. §922(g)(8) which prohibits

firearm possession by a person subject to a domestic

violence restraining order. The Court rejected the

facial challenge. In a narrow ruling, the Court held

as follows:

An individual found by a court to pose a

credible threat to the physical safety of

another may be temporarily disarmed

consistent with the Second Amendment.

602 U.S. at 702.

Notably, the six Justice majority from Bruen split

in Rahimi, with five of the six Bruen-majority

Justices joining the majority and Justice Thomas

dissenting. The key difference between the majority

and the dissent was the manner in which two lines

of historical laws served (or failed) as comparators

under the Bruen analogical methodology. To find

section 922(g)(8) facially constitutional, the majority

relied on (1) surety laws and (2) what the Court

referred to as “going armed” laws.

Historically, surety laws provided that a person

found by a magistrate to be a risk of future violent

conduct could be compelled to post a bond for a

period of time to guarantee his future good behavior.

If the individual failed to post a bond, he could be

jailed. If he posted a bond and violated the bond, it

would be forfeited. 602 U.S. at 695-97.

As to going armed laws, the Court explained:

Whether classified as an affray law or a

distinct prohibition, the going armed laws

prohibited “riding or going armed, with

dangerous or unusual weapons, [to] terrify[ ]

the good people of the land.” Such conduct

disrupted the “public order” and “le[d] almost

necessarily to actual violence.” Therefore, the

law punished these acts with “forfeiture of the

arms . . . and imprisonment.”

Id. at 697-98.

In his dissent, Justice Thomas rejected the

analogical validity of these laws. Id at 753-59.

Importantly, Justice Thomas observed that neither

surety laws nor going armed laws matched the how

and why of section 922(g)(8). Id. Though not

insisting on an “historical twin” (Justice Thomas did

not expect the Government to produce historical

restraining order laws), Justice Thomas did insist

that any historical law be relevantly similar on its

own accord. Id. Neither surety laws nor going armed

laws was, by itself, a historical tradition sufficiently

analogous to section 922(g)(8).

In departing from Justice Thomas’s view, rather

than viewing each individual law as reflecting a

separate historical tradition, the majority

understood surety laws and going armed laws

together as forming a single historical tradition that

was relevantly similar, jointly supporting the how

and why of section 922(g)(8). Id. at 698-701.

Notably, both approaches represent analogical

reasoning. However, Justice Thomas’s approach

demands individualized relevant similarity between

one line of historical law and the challenged modern

regulation. Under this view, a single line of law

represents a historical tradition as it requires a oneto-one analogical relationship between the historical

law and the modern law.

Under the majority’s approach, multiple lines of

law can be combined to illustrate a “principle”

arising from a historical tradition. This poses a

challenge for litigants and courts in that courts

inclined to uphold a modern law may choose to stitch

together historical laws in a way that renders the

Second Amendment a nullity.

In her concurring opinion in Rahimi, Justice

Barrett referred to this challenge in terms of “level

of generality,” explaining:

To be sure, a court must be careful not to read

a principle at such a high level of generality

that it waters down the right. Pulling

principle from precedent, whether case law or

history, is a standard feature of legal

reasoning, and reasonable minds sometimes

disagree about how broad or narrow the

controlling principle should be.

Here, though, the Court settles on just the

right level of generality: “Since the founding,

our Nation's firearm laws have included

provisions preventing individuals who

threaten physical harm to others from

misusing firearms.” Ante, at 1896; see also

Kanter v. Barr, 919 F.3d 437, 451, 464–465

(CA7 2019) (Barrett, J., dissenting) (“History

is consistent with common sense: it

demonstrates that legislatures have the

power to prohibit dangerous people from

possessing guns”). Section 922(g)(8)(C)(i) fits

well within that principle; therefore, Rahimi’s

facial challenge fails. Harder level-ofgenerality problems can await another day.

Id. at 740.

“Another day” has arrived, as lower courts have

already begun to fail the level of generality

challenge. In a forthcoming paper, George A.

Mocsary, Professor of Law at the University of

Wyoming College of Law and Director of the

University of Wyoming Firearms Research Center,

illustrates the level of generality challenge in the

context of firearm restrictions for 18- to 20-year old

adults. See George A. Mocsary, The Wrong Level of

Generality: Misapplying Bruen to Young-Adult

Firearm Rights, 103 Wash. U. L. Rev. Online 100

(forthcoming Dec. 2025).

Professor Mocsary cites three recent decisions of

the Courts of Appeals: McCoy v. Bureau of Alcohol,

Tobacco, Firearms and Explosives, 140 F.4th 568

(4th Cir. 2025); National Rifle Association v. Bondi,

133 F.4th 1108 (11th Cir. 2025) (en banc); and Rocky

Mountain Gun Owners v. Polis, 121 F.4th 96 (10th

Cir. 2024), as examples of level of generality gone

awry. He explains:

Rather than ask whether there is a tradition

of restricting young adults’ arms rights,

McCoy and Bondi reach for broad, non–

firearm-specific infancy rules from contract

law; Polis reframes the question as a generic

regulation of commercial sales [describing the

latter error as a “category mistake”].

Another significant level of generality error can

be found in the recent decision of the Third Circuit

in a challenge to New Jersey’s very similar version

of the law at issue in the Petition, Koons v. Attorney

General New Jersey, 156 F.4th 210 (3d Cir. 2025).2

While not resorting to non-firearms law analogies,

the Third Circuit conducted its analysis at an

extremely high level of generality. In searching for a

principle to serve as a comparator historical

tradition, the court stitched together a variety of

disparate outliers to construct a supposed singular

tradition of restricting public carry of arms nearly

everywhere in public life. Id. at 228-42.3 In this way,

the Third Circuit upheld nearly every aspect of New

Jersey’s egregious so-called “sensitive place” law

that

effectively

nullifies

the

fundamental

constitutional right to carry arms in public

recognized in Bruen.4 Id. at 249-71.

2 The plaintiffs in Koons, and the consolidated case Siegel v.

Attorney General New Jersey, have petitioned for rehearing en

banc. As of the filing of this brief that petition remains pending.

3 There are many other problems with the historical analogs

chosen by the panel in Koons (and the opinion overall), but the

level of generality problem embodied in the court’s “sensitive

place” analysis is highly illustrative of the issue and, thus, very

instructive.

4 Although the Third Circuit in Koons correctly struck New

Jersey’s version of the similar “Vampire Rule” that is

challenged in this case, upholding the vast array of so-called

“sensitive place” restrictions essentially accomplishes the same

odious result.

And, notably, the Ninth Circuit in the within

matter commits two level of generality errors when

it relies on the 1771 New Jersey law and the 1865

Louisiana law to uphold Hawaii’s Vampire Rule.

First, like the courts discussed by Professor

Mocsary, the Ninth Circuit abstracts far away from

the existing historical record in embracing two

outlier laws instead of the myriad other laws that

establish a tradition of regulating only poaching

activities on private land. Second, like the Third

Circuit in Koons, the Ninth Circuit abstracts out to

a level of generality whereby it attempts to

manufacture a tradition by stitching together

historical outliers.5 Wolford v. Lopez, 116 F.4th 959,

994-95 (9th Cir. 2024).

These examples demonstrate that “level of

generality” is the new “interest balancing.” No

longer able to engage in explicit interest balancing

through the application of intermediate scrutiny,

lower courts can now embrace high levels of

analogical generality to uphold nearly any law. In

light of this, clear guidance from this Court now on

level of generality would serve to avoid years of

potential lower court error such as prevailed in the

years prior to Bruen. As such, Amici urge the Court

to adopt the following approach to level of generality.

As Petitioners and other amici point out, these two

“analogies” suffer from numerous other Bruen deficiencies as

well.

C. The Level of Generality Problem Solved

In his paper, Professor Mocsary sets forth two

basic rules that help cabin level of generality. First,

he urges courts to “[u]se close firearm-specific

analogues first.” All three of the examples discussed

above fail this rule. In the 18-20 year old cases, those

courts start already outside the field of arms, instead

starting at general principles of law. In Koons, the

Third Circuit starts at as high a level of generality

as possible, using disparate outliers to synthesize a

broad overarching principle. And of course the Ninth

Circuit below disregards the existing regulatory

tradition of addressing only firearm possession

relating to poaching activities and, instead, reaches

higher to embrace outliers in the manner of Koons.

Second, Professor Mocsary urges:

Only if close analogues are lacking should

courts abstract. But not to global doctrines

(like general contract voidability) that merely

had incidental spillover effects on all

purchases. Abstraction should preserve

Bruen’s “how and why” focus: comparable

burdens for comparable reasons.

Again, all three of the examples discussed also

failed this test. The Ninth Circuit below plainly

violated this rule by ignoring the pre-existing

historical tradition regarding poaching and

attempting to abstract upwards.

The one remaining question, then, is how high

may courts abstract even if they remain within the

specific space of historical arms regulation and

where the space may not already be occupied by a

more specific historical tradition. The answer can be

found in Rahimi itself.

Although the difference in level of generality

between the majority and the dissent was crucial to

the outcome of Rahimi, the majority nevertheless

hewed to a critical constraint ignored by both the

Ninth Circuit below and the Third Circuit in Koons.

In identifying a tradition formed by the two lines of

historical laws, surety laws and going armed laws,

this Court relied only on lines of historical law that

were themselves each “well-established and

representative.” 591 U.S. at 30. As the Court

illustrated, both surety laws and going armed laws

were long standing in both the common law and in

state statutes and exhibited sufficient numerosity to

each be widespread. 602 U.S. at 698-701.

Disregarding this constraint, both the Ninth

Circuit below and the Third Circuit in Koons

stitched together outliers none of which were

themselves well established and representative and

thereby freely abstracted to as high as a level of

generality as was necessary to uphold the

challenged laws. By disregarding this critical aspect

of Rahimi in this way, those courts (and others) are

abstracting highly generic whys and giving very

short shrift to the how inquiry.

Requiring courts to adhere to Professor

Mocsary’s two basic rules of abstraction and also

insisting that in pulling “principle” from historical

tradition that courts rely on only lines of historical

law that are themselves each “well-established and

representative,” as Rahimi did, would suitably and

effectively constrain lower courts and prevent years

of lower court error. Amici urge the Court to adopt

this approach and reverse the judgment below.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment below and provide the

requested guidance to the lower courts.

Respectfully submitted,