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,

ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE CLAYTON

CRAMER, CALIFORNIA RIFLE & PISTOL

ASSOCIATION, AND SECOND AMENDMENT

LAW CENTER IN SUPPORT OF PETITIONERS

C.D. Michel

Counsel of Record

Anna M. Barvir

MICHEL & ASSOCIATES, P.C.

180 E. Ocean Blvd., Ste. 200

Long Beach, CA 90802

(562) 216-4453

cmichel@michellawyers.com

Donald Kilmer

LAW OFFICES OF DONALD A.

KILMER, APC

14085 Silver Ridge Road

Caldwell, Idaho 83607

don@dklawoffice.com

Counsel for Amici Curiae

November 24, 2025

TABLE OF CONTENTS

Page

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

AMICI CURIAE STATEMENT OF INTEREST

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

ARGUMENT ...............................................................

I. Post-Bruen Litigation Has Shifted Toward

Battles of Expert Historians, Reviving the Very

Interest Balancing that Heller Rejected and

Enabling Judicial Manipulation ...........................

II. The Government Strategies in Wolford, May,

and Carralero Illustrate the Expert Witness

Problem in Second Amendment Litigation ..........

A. Historians’ opinions on the legal

interpretations of ancient laws should be

inadmissible. ...................................................

B. The historical inquiry must be limited to

actual laws and the societal problems they

addressed. ........................................................

III. The Court Should Reaffirm That Interpretation

of Historical Law Is a Judicial Function, Not an

Academic One ......................................................

CONCLUSION ..............................................................

TABLE OF AUTHORITIES

Page(s)

Cases

B&L Prods., Inc. v. Newsom,

104 F.4th 108 (9th Cir. 2024)...........................

B&L Prods., Inc. v. Newsom,

145 S. Ct. 1958 (2025) ......................................

Commodores Entm’t Corp. v. McClary,

879 F.3d 1114 (11th Cir. 2018) ........................

Chovan v. United States,

574 U.S. 979 (2014) ..........................................

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993) ..........................................

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................... 1, 4-8, 13, 15, 20

Jackson v. City & Cnty. of San Francisco,

746 F.3d 953 (9th Cir. 2014) ............................

Jackson v. City & Cnty. of San Francisco,

576 U.S. 1013 (2015) .......................................

Konigsberg v. State Bar of Cal.,

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

May v. Bonta,

709 F. Supp. 3d 940 (C.D. Cal. 2023) ... 2, 10-12, 15

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................... 1, 4, 5, 7, 13

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) ......................... 4-10, 12-19, 22, 23

iii

TABLE OF AUTHORITIES - Continued

Silvester v. Becerra,

583 U.S. 1139 (2018) ........................................

6, 8

Silvester v. Harris,

843 F.3d 816 (9th Cir. 2016) ............................

Teixeira v. Cnty. of Alameda,

873 F.3d 670 (9th Cir. 2017) ............................

7, 8

Teixeira v. Alameda Cnty.,

584 U.S. 977 (2018) .........................................

Tennant v. Peoria & P.U. Ry. Co.,

321 U.S. 29 (1944) ............................................

United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) ..........................

United States v. Herring,

955 F.2d 703 (11th Cir. 1992) ..........................

United States v. Rahimi,

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

Constitutional Provisions

U.S. Const. amend. II .............. 1-11, 15-17, 20, 21, 23

U.S. Const. amend. VII ........................................

Rules

Fed. Rule Civ. Proc. 52 ........................................

Fed. R. Evid. 702 ..................................................

TABLE OF AUTHORITIES - Continued

Other Authorities

Cramer, Clayton, Bellesiles’ Arming America

Redux: Does the Gunning of America Rewrite

American History to Suit Modern Sensibilities?

41 S. Ill. Univ. L. J. (2017) ...............................

Kilmer, Donald, Navigating the Breyer Patch,

14 Geo. J.L. & Pub. Pol’y (2016) ......................

Radin, Max, The Law and You (1948) ............. 19, 20

Scalia, Antonin & Bryan A. Garner,

Reading Law: The Interpretation of Legal

Texts (2012)................................................ 19, 20, 22

AMICI CURIAE STATEMENT OF INTEREST1

Amicus Clayton Cramer teaches history at the

College of Western Idaho. He has published books and

scholarly articles on the history of weapon regulation

and Second Amendment rights in the early republic.

His work has been cited by this Court in District of

Columbia v. Heller, 554 U.S. 570, 588 (2008), and

McDonald v. City of Chicago, 561 U.S. 742, 773 n.21,

776 n.25, 780, 933 (2010); see also id. at 773 n.21, 776

n.25, 780 (Breyer, Ginsburg & Sotomayor, JJ.,

dissenting).

Mr. Cramer’s exposure of academic fraud related

to Second Amendment research is recounted in his

article, Bellesiles’ Arming America Redux: Does the

Gunning of America Rewrite American History to Suit

Modern Sensibilities? 41 S. Ill. Univ. L. J. 403 (2017).

His interest in this case is to ask that this Court

clarify what kind of “expert” opinion evidence is

admissible when adjudicating Second Amendment

claims, to prevent the misuse of academically

questionable expert opinion testimony by lower courts

in Second Amendment cases.

Founded in 1875, California Rifle & Pistol

Association, Incorporated (CRPA), is a nonprofit

organization that seeks to defend the Second

Amendment and advance laws that protect the rights

of individual citizens. CRPA works to preserve the

rights of gun ownership, including the right to self1 No counsel for a party, nor any party, made a monetary

contribution to fund this brief. No person other than the amicus

parties, its members or counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

defense, the right to hunt, and the right to keep and

bear arms. CRPA is also dedicated to promoting

shooting sports, providing education, training, and

competition for adult and junior shooters. In service of

these ends, CRPA regularly participates as a party or

amicus in firearm-related litigation.

CRPA is a plaintiff in May v. Bonta, 709

F. Supp. 3d 940 (C.D. Cal. 2023), a case that was

consolidated with the case at bar when both were

before the Ninth Circuit. In May, however, the circuit

court reached a different result on the question that

was granted review by this Court. Now on remand,

May is pending in the district court but has been

consolidated with the related case Carralero v. Bonta,

Case No. 8:23-cv-01798 (C.D. Cal.), and stayed

pending the outcome of this case. Before the case was

stayed, however, the parties were engaged in

substantial expert discovery related to the 13 expert

witnesses disclosed by California. In response, and as

a precaution to make a record for review, CRPA had

to devote its limited resources to hiring Mr. Cramer as

a rebuttal trial expert. This litigation tactic by

government defendants with deep pockets adds

unnecessary time and expense to Second Amendment

litigation.

Second Amendment Law Center, Inc. (2ALC) is a

nonprofit corporation in Henderson, Nevada. 2ALC

defends the individual rights to keep and bear arms

as envisioned by the Founders. 2ALC also educates

the public about the social utility of firearm ownership

and provides accurate historical, criminological, and

technical information to policymakers, judges, and the

public.

Through this amicus brief, CRPA and 2ALC hope

to encourage the Court to provide greater guidance to

lower courts to prevent the misuse of expert opinion

testimony in Second Amendment cases. They also ask

the Court to seize the opportunity this case presents

to reiterate that the constitutional inquiry in such

cases should be based on the text of the amendment,

its historical public meaning, and this Court’s

decisional law—and not the contemporary opinions of

the academy and trial court judges.

SUMMARY OF ARGUMENT

This Court’s decision in Heller resolved a major

substantive issue relating to the Second Amendment’s

place in our constellation of rights. But it also sparked

a backlash of procedural and analytical controversies

in its place. The Heller court’s use of text and original

public meaning, so clear to some, was a point of

departure for others. During the post-Heller period,

circuit courts invented two-step threshold tests, multitiered levels-of-scrutiny frameworks, and a curious

new interest in en banc adjudications. This quasirebellion in the lower courts resulted in Second

Amendment claims being treated like a second-class

right, subject to the judicial interest-balancing tests

that this Court said were verboten. Heller, 554 U.S. at

634-36.

There is a reason New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) reads almost

like a remedial lesson directed to the recalcitrant

lower courts. The Bruen Court took great pains to

point out that it was merely applying in 2022 what it

had already decided in Heller in 2008 and in

McDonald in 2010. Bruen, 597 U.S. at 18-25. Then, as

a precaution to head off any more judicial mischief in

the lower courts, the decision provided a crystal-clear

methodology for future cases:

[If] the Second Amendment’s plain text

covers an individual’s conduct, the

Constitution presumptively protects that

conduct. To justify its regulation, the

government may not simply posit that

the regulation promotes an important

interest. Rather, the government must

demonstrate that the regulation is

consistent with this Nation’s historical

tradition of firearm regulation. Only 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. at 17 (quoting Konigsberg v. State Bar of Cal., 366

U.S. 36, 50, n.10 (1961)).

Alas, lawyers being lawyers (and judges being

lawyers in robes), anyone who had been predisposed

to creatively ignore the methodology announced in

Heller and McDonald through legal sophistry might

also be predisposed to read more into Bruen than is

plainly there. Hence, the Court’s insistence that the

government prove its modern firearm “regulation is

consistent with this Nation’s historical tradition,”

Bruen, 597 U.S. at 17, is currently being treated as a

license for retroactive Brandeis Briefs masquerading

as government defendants’ expert testimony.

Furthermore, this Court’s suggestion that a “more

nuanced approach” to this inquiry may be necessary

in “cases implicating unprecedented societal concerns

or dramatic technological changes,” id. at 27, has only

had the effect of incentivizing government defendants

to nudge all fact patterns into a “nuanced approach.”

This, in practice, has become just another label for the

sort of judicial interest balancing the Court rejected in

Heller.

Worse, such government expert testimony, if

deemed more credible than the challengers’ experts,

risks obtaining the safe harbor of adjudicated facts

established by a trial court, entitled to only clear error

review by any appellate court. See Fed. Rule Civ. Proc.

52(a)(6); Silvester v. Becerra, 583 U.S. 1139, 1140

(2018) (Thomas, J., dissenting). And if upheld on

appeal, these “adjudicated facts” relating to historical

interpretations of founding-era gun laws will have the

effect of bootstrapping expert opinions (whether

biased or not) into legal precedent and thus binding on

subsequent inquiries.

An online search of the terms “expert” and “Second

Amendment” yields more than 70 post-Bruen districtand circuit-court cases in the pipeline—all attempting

to apply the doctrine articulated in that case.

Certainly, not all of them warrant a battle of experts.

The purpose of this brief is to ask that the Court

address the problem before it gains (even more)

momentum in other cases and circuits. Amici ask this

Court to lay down a bright-line rule on when (if ever)

it is appropriate for courts to consider expert

testimony under the rules articulated in Bruen.

ARGUMENT

Post-Bruen Litigation Has Shifted Toward

Battles of Expert Historians, Reviving the

Very Interest Balancing that Heller

Rejected

and

Enabling

Judicial

Manipulation

In Heller, this Court articulated a straightforward

analytical approach for adjudicating Second

Amendment claims. This Court’s instructions were

fairly and clearly expressed and required fidelity to

the constitutional text and original public meaning of

that text. Heller, 554 U.S. at 576-78. The opinion also

authorized a historical analysis of non-controversial

“facts” to ensure that the textual interpretation was

congruent with how Americans understood and

subsequently exercised their Second Amendment

rights. Id. at 579-600. The Heller Court even

countenanced a parallel analysis of state constitutions

with Second Amendment analogues as part of a public

meaning checksum on the “right to keep and bear

arms.” Id. at 601-03. Nothing in Heller suggested that

courts should weigh competing expert historical

narratives or resort to interest balancing.

Lower courts, however, did just that. After

incorporation was resolved in McDonald, many courts

adopted a hybrid, tiered-scrutiny framework that

departed sharply from Heller’s textual and historical

approach. Under this framework, they would first

examine whether the regulated conduct was within

the scope of the Second Amendment—a threshold

inquiry functionally equivalent to a separate standing

analysis reserved for Second Amendment cases. If the

claim survived this inquiry, courts would then select a

level of scrutiny based on their own free-standing

assessment of how severely the challenged law

burdened what they deemed the “core” of the right to

keep and bear arms. But the result was preordained:

Courts almost always selected intermediate scrutiny

and then subjected Second Amendment claims to the

very interest-balancing approach rejected in Heller.

554 U.S. at 634-36.

In the Ninth Circuit, this evolved into the

“meaningful constraint” test. This pre-Bruen test was

first articulated in United States v. Chovan, 735 F.3d

1127 (9th Cir. 2013), cert. denied, Chovan v. United

States, 574 U.S. 979 (2014). It was extended in

Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir.

2017) (en banc), cert. denied, Teixeira v. Alameda

Cnty., 584 U.S. 977 (2018). It was employed in Jackson

v. City & County of San Francisco, 746 F.3d 953 (9th

Cir. 2014), cert. denied, Jackson v. City & Cnty. of San

Francisco, 576 U.S. 1013 (2015) (with a dissental by

Justices Scalia and Thomas), and used again in

Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016), cert.

denied, Silvester v. Becerra, 583 U.S. 1139 (2018) (with

a dissental by Justice Thomas). Even after Bruen, the

Ninth Circuit has continued to invoke this framework

to uphold firearm restrictions in cases like B&L

Productions, Inc. v. Newsom, 104 F.4th 108 (9th Cir.

2024), cert. denied, B&L Prods., Inc. v. Newsom, 145

S. Ct. 1958 (2025).

The sheer complexity of the (unfavorable) special

treatment meted out to Second Amendment claims

between 2008 and 2022 practically invited judicial

mischief. As Kilmer warned in Navigating the Breyer

Patch, 14 Geo. J.L. & Pub. Pol’y 101 (2016), such an

approach

could

effectively

convert

Second

Amendment practice into complex litigation—

requiring extensive discovery, motion practice, expert

testimony, and trial work to present and impeach

expert testimony. Attempting to adjudicate

fundamental rights in this complex manner

predictably favors the government, creating precisely

the sort of government-empowered outcomes that

Justice Breyer advocated for in his dissent in Heller.

As noted above regarding the B&L Productions

case denied certiorari earlier this year, the sheer

stubbornness that circuit courts will exert to retain

judge-empowering procedures for adjudicating Second

Amendment cases continues unabated. And it will

likely continue in any feigned attempt to clothe

judicial interest balancing as a mere credibility

contest between competing historians under a fauxBruen analysis. In other words, the abuse of historical

analysis under Bruen allows judges to select the

historian whose theory aligns best with the outcome

under an intermediate scrutiny analysis. Meet the

new test, same as the old test.

Although Bruen was supposed to eliminate the

opportunity for such judicial mischief, it has

unintentionally spawned a new set of difficulties for

plaintiffs in Second Amendment challenges. Now,

rather than having to produce or rebut criminological

studies, crime statistics, prosecution and conviction

rates, firearm marketing data, and firearm sales data,

plaintiffs must be prepared for deep-pocketed

governments to marshal teams of historians. Each

expert will offer an opinion on a range of topics—from

historical analogues to modern libraries, museums,

banks, zoos, and parks. They will assert that the

absence of historical firearms regulations in a given

setting is merely an artifact of historical

anachronism—an argument used to funnel virtually

any case into the “nuanced approach” that Bruen

instructs is reserved for cases “implicating

unprecedented societal concerns or dramatic

technological changes.” 597 U.S. at 27. And when

every case gets shoe-horned into that approach, every

case becomes susceptible to a new briar patch of

judicial interest-balancing tests cloaked as scholastic

debate.

The Ninth Circuit’s decision below exemplifies the

problem. The court held that “[f]or places that have

existed since the Founding,” the government need

only “identify historical regulations similar in number

and timeframe” to those this Court “cited as

justification for designating other places as sensitive.”

Petit.App.29a. “For places that are newer,” the Ninth

Circuit held that courts must accept analogues even if

the Founding generation never regulated such places

because “it is illogical to expect a government to

regulate a place before it existed in its modern form.”

Petit.App.29a. Under the Ninth Circuit’s approach,

“historical regulations need not be a close match”; they

“need only evince a principle underpinning our

Nation’s historical tradition of regulating firearms in

places relevantly similar to those covered by the

challenged law.” Petit.App.30a (citing United States v.

Rahimi, 602 U.S. 680, 692 (2024)). This inquiry turns

on whether the constitutionality of those historical

laws was disputed—a factor that courts can

manipulate with ease, given the sparse litigation

records of the Founding era.

This is not Bruen’s text-and-history analysis. It is

judicial interest balancing, wearing the carcass of

Bruen’s text, history, and tradition analysis. And it is

only made plausible by the government’s use of

retroactive Brandeis Briefs masquerading as expert

opinion testimony by competing historians.

II.

The Government Strategies in Wolford,

May, and Carralero Illustrate the Expert

Witness Problem in Second Amendment

Litigation

Amicus Clayton Cramer submitted rebuttal

testimony in Wolford, May, and Carralero, addressing

the extensive expert reports offered by the

governments in opposition to the preliminary

injunction motions in those cases. Mr. Cramer’s expert

report in Wolford was a response to two experts called

by the state of Hawaii, and is set forth in Joint

Appendix I, starting at page 321a. The expert reports

submitted as testimony through declarations that Mr.

Cramer was tasked with rebutting in the Wolford case

can be found in Joint Appendix G, starting at page

243a (Saul Cornell) and Joint Appendix H, starting at

page 293a (Dr. Brennan Gardner Rivas). In the May

and Carralero cases, now pending in the district court

but stayed pending the outcome of this case, Mr.

Cramer was similarly retained to rebut more than a

dozen expert reports submitted by California in those

cases.

Unless this Court establishes standards governing

the admissibility of historical expert testimony in

Second Amendment litigation, the dozen-plus

opinions of these experts will likely become part of the

evidentiary record in these cases. Even an evidentiary

hearing under the federal rules, applying Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)

resolves only the admissibility of opinion testimony,

leaving the issue of credibility unresolved.

Furthermore, the scientific framework of Daubert may

not even lend itself very well to adjudicating the

reliability of “facts” developed by “experts” from the

humanities.

One final point bears examination. Traditionally,

credibility determinations are left to the deliberation

of juries. U.S. Const. amend. VII. See also Tennant v.

Peoria & P.U. Ry. Co., 321 U.S. 29, 35 (1944). The

prospect of juries adjudicating fundamental

constitutional rights based on dueling historians’

narratives—each offering competing views about how

closely a modern gun law resembles a founding-era

rule, regulation, or statute—should give the Court

pause. The situation is not improved by having judges

make the call based on such evidence.

While the Ninth Circuit relied on only two

historical statutes to resolve the interlocutory issue

now before this Court, the remaining issues in

Wolford, May, and Carralero must still proceed to trial

and final judgment. When they do, Hawaii and

California will again rely not only on the text of

historical laws but on extensive expert opinions

attempting to compare modern public spaces—

including banks, zoos, parking lots, public transit,

taverns, playgrounds, museums, parks, libraries,

beaches, and hospitals—to their supposed foundingera counterparts. Without clear limits, these expertdriven comparisons will convert Bruen’s text-andhistory method into a sprawling contest of historical

theories, with fundamental rights turning on whose

historian seems more persuasive to a judge or jury.

A. Historians’

opinions

the

legal

interpretations of ancient laws should be

inadmissible.

The government’s expert declarations in Wolford

illustrate why courts should exclude historians’

opinions about what founding-era laws “really

meant.” The most problematic parts of these

declarations—those squarely subject to a motion to

strike under the Federal Rules of Evidence—are the

passages offering opinions on how to interpret English

common law and American laws from the relevant

periods. For instance, as Mr. Cramer’s rebuttal

declaration shows, Hawaii’s experts were, in many

places, effectively opining on whether this Court’s

holdings in Heller, McDonald, and Bruen were

historically accurate. These are not “facts”; they are

legal conclusions that fall outside the proper scope of

expert testimony.

Rule 702 permits a witness with specialized

“knowledge, skill, experience, training, or education”

to offer opinion testimony if that witness’s knowledge

“will help the trier of fact to understand the evidence

or to determine a fact in issue.” The testimony offered

by Hawaii, and addressed by Mr. Cramer, purports to

instruct courts on how to interpret founding-era laws.

To the extent that the State’s “experts” were offering

legal arguments for or against particular

interpretations of historical statutes, their testimony

should be categorically excluded. Interpreting the law

in a federal case is not a matter for expert witnesses;

it is the constitutional duty of judges appointed by the

President and confirmed by the Senate.

Indeed, statutory interpretation is a legal question

for the court, not a factual issue for the trier of fact.

Commodores Entertainment Corp. v. McClary, 879

F.3d 1114, 1129 (11th Cir. 2018). A district court must

thus take “adequate steps to protect against the

danger that [an] expert’s opinion would be accepted as

a legal conclusion.” United States v. Herring, 955 F.2d

703, 709 (11th Cir. 1992). That duty does not change

just because the legal question involves some

historical understanding of the history of firearm

regulation in America.

On this point, the government should be limited to

presenting historical laws from the relevant period

that it claims are “well established and

representative” analogues to the challenged modern

law. Bruen, 597 U.S. at 29-31. It is then the court’s

duty to determine: (1) whether those proposed

analogues

are

indeed

well-established

and

representative, and (2) whether they are relevantly

similar enough to sustain the modern restriction. Id.

at 28-31. Judges—not experts—are best equipped to

compare modern laws to old ones without resort to

extrinsic aids. This Court should ensure that lower

courts are not tempted to abandon the task of

interpreting historical laws to the competing

testimony of academics and scholars.

After all, Bruen itself never advanced past

pleadings in the district court. There was no discovery,

no battle of the experts, and no diatribes from history

professors speculating about why the Founders

refrained from passing restrictions on public carry

with the regularity or topographic scope coveted by

modern legislatures. Still, this Court had no difficulty

evaluating the historical laws the government

presented without remanding the case for further

development. It simply held that New York’s modern

carry law was not “consistent with this Nation’s

historical tradition of firearm regulation.” Bruen, 597

U.S. at 17, 70-71. It was Justice Breyer’s dissent, not

the majority, that proposed a briar patch of competing

experts. Id. at 83-85.

B. The historical inquiry must be limited to

actual laws and the societal problems they

addressed.

The historical inquiry begins (and ends) with the

laws of the relevant period and the societal problems

they were enacted to address. Testimony from

government experts claiming that “the world has

changed since the founding era, therefore laws from

that period must be given a nuanced interpretation”

should be declared inadmissible. The public spaces at

issue when Wolford, May, and Carralero return to

their respective district courts—banks, zoos, parking

lots, public transit, taverns, liquor stores, casinos,

stadiums, amusement parks, churches, playgrounds,

museums, parks, libraries, beaches, and hospitals, as

well as the private spaces open to the public at issue

here—do not transform the inquiry into an

architectural or sociological comparison of 1790s and

2025.

Yet Hawaii and California have already tipped

their hand and revealed that their strategy will be just

that: To argue that these spaces have “evolved” so

dramatically from their founding era analogues that

Bruen compels a “more nuanced approach.” And we all

know that, in practice, “nuanced interpretation” is

code for intermediate scrutiny.

Thankfully, Bruen provides a roadmap. None of it

depends on “expert” narratives about how different

colonial taverns were from modern sports bars. The

Court held:

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. And if

some jurisdictions actually attempted to

enact analogous regulations during this

timeframe, but those proposals were

rejected on constitutional grounds, that

rejection surely would provide some

probative evidence of unconstitutionality.

Bruen, 597 U.S. at 26. Here, the Court instructs lower

courts to analyze founding-era and modern

regulations in the context of the societal problems

these laws seek to address. The analysis is not—as

suggested by the government’s experts—focused on

contrived analogies or dissimilarities to colonial and

modern public spaces. The above passage from Bruen

essentially poses three questions in which historical

analogies are to be employed.

First, does the modern regulation target a societal

problem that has persisted into modern times since

the 18th Century? The question turns not on how a

modern library compares to an 18th-century library,

but rather (1) whether the founding generation

understood that assault, battery, mayhem, and

murder were committed with firearms in public

places? And (2) whether they responded by banning

guns in those places? The answer is “no.”

Secondly, did the founding generation address this

societal problem, which has persisted since the 18th

century, in a materially different way from the

modern regulation? If the founders addressed the

same societal problem using different tools, that

divergence may matter. But again, the societal

problem is still public violence, while the remedy, via

the Second Amendment, has consistently been

upholding an individual’s right to defend against that

violence. The founders did not enact “gun-free zones”

in public spaces in the hope that violent criminals

would obey them. Modern attempts to do so cannot be

justified by claiming that modern playgrounds and

museums somehow pose new “societal problems.”

Finally, were any analogous regulations from the

founding rendered unconstitutional on other grounds?

Some

historical

regulations—such

slave

disarmament laws—were rooted in preventing the

revolt of enslaved people and preserving an

unconstitutional hierarchy. But no one would contend

today that such a revolt would not constitute lawful

self-defense, the raison d’etre of the Second

Amendment. The solution to the “societal problem” of

the conflict between master and slave was not

banning enslaved people from having guns, but

banning slavery, and subsequently all race-based gun

laws.

Nothing in Bruen gives legislatures (and judges)

license to treat modern laws as though they are

presumptively valid simply because modern libraries,

museums, zoos, parks, taverns, hospitals, and sports

venues look different today than they did during the

founding era. Why? Because such an inquiry is exactly

backward.

The historical inquiry is not to determine whether

modern public spaces resemble their counterparts

from the founding era. It is to determine whether the

“societal problem” the modern law purports to target

has persisted since the 18th century. And that inquiry

is straightforward. Is there still a risk today of being

unarmed in a confrontation with an armed criminal

who will not obey laws against violence in public

spaces? This is the penultimate test on whether

banning firearms in public spaces is constitutional or

not.

It is no surprise that, in a post-Bruen world,

governments hope to steer the analysis to the “more

nuanced approach.” That is where advocates of

expansive gun restriction can make the most hay by

threading the eye of the needle created by Bruen,

obscuring the passage above and overwhelming the

analysis with credentialed pablum. But Bruen bars

this move. Historical analogy requires a comparison of

laws enacted to address shared societal problems; it is

not a license to reinvent intermediate scrutiny under

the guise of historical inquiry.

III.

The Court Should

Reaffirm That

Interpretation of Historical Law Is a

Judicial Function, Not an Academic One

There is obviously a place for experts in the history

of arms laws in America. Amicus like Mr. Cramer

provide invaluable work by conducting archaeological

research to uncover ancient laws that have not been

indexed in modern search engines and legal

databases. But these found statutes, regulations, and

ordinances ultimately must be argued by lawyers and

interpreted by judges. In this way, they are valuable

consulting experts and, on the rare occasion (e.g.,

interpreting an arcane term that has fallen out of

common usage), as testimonial experts. Such

historians should be encouraged to submit amicus

briefs on any point of law that turns on a historical

fact. But what the government defendants have

sought to do in post-Bruen litigation is push past that

limited role and have their historical experts

commandeer the role reserved for judges—

interpretation of founding era law.

It is a “false notion that lawyers and judges, not

being historians, are unqualified to do the historical

research that originalism requires.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 399 (2012). That text goes on:

“Lawyers are . . . necessarily historians .

. . . If they do not take this task seriously,

they will not cease to be historians. They

merely will be bad historians.” Max

Radin, The Law and You 188-89 (1948).

Originalism admittedly requires

lawyers and judges to engage in

historical semantics. It is often charged

that they are ill equipped for the task: “It

is quite true that lawyers are for the

most part extremely bad historians.

They often make up an imaginary

history and use curiously unhistorical

methods.” The leveler of that charge,

Max Radin, cited a British example of a

1939 judicial misinterpretation of

sources dating back to 1215—in a

different language altogether (medieval

Latin and Law French). The example

serves as a useful admonition. But note

that Radin was an originalist:

We have thus imposed a new

burden on the lawyer on the

bench. Besides all the other

things asked of him, he is also to

be a historian. But there is no

help for it. There is simply no way

by which the law can be made

either simple or easy.

Nor is it a valid refutation of

originalism that “no one can

reconstruct original understanding precisely.” Our charge is to

try.

Id. at 399-400 (footnotes omitted). To illustrate this

point, Reading Law references Heller,

which upheld the individual right to

possess firearms, one of the significant

aspects of the Second Amendment was

that it did not purport to confer a right to

keep and bear arms. It did not say that

“the people shall have the right to keep

and bear arms,” or even that “the

government shall not prevent the people

from keeping and bearing arms,” but

rather that “the right of the people to

keep and bear arms” (implying a

preexisting right) “shall not be

infringed.” This triggered historical

inquiry showing that the right to have

arms for personal use (including selfdefense) was regarded at the time of the

framing as one of the fundamental rights

of Englishmen. Once the history was

understood, it was difficult to regard the

guarantee of the Second Amendment as

no more than a guarantee of the right to

join a militia. Moreover, the prefatory

clause of the Second Amendment (“A well

regulated militia being necessary for the

defense of a free state”) could not be

logically reconciled with a personal right

to keep and bear arms without the

historical knowledge (possessed by the

framing generation) that the Stuart

kings had destroyed the people’s militia

by disarming those whom they

disfavored. Here the opinion was dealing

with history in a broad sense.

It is reasonable to ask whether

lawyers and judges can adequately

perform historical inquiry of this sort.

Those

who

oppose

originalism

exaggerate the task. In some cases, to be

sure, it is difficult, and originalists will

differ among themselves on the correct

answer. But that is the exception, not the

rule. In most cases—and especially the

most controversial ones—the originalist

answer is entirely clear.…

Today’s lawyers and judges, when

analyzing historical questions, have

more tools than ever before. They can

look to an evergrowing body of

scholarship produced by the legions of

academic legal historians populating law

and history faculties at our leading

universities. No history faculty of any

note would consider itself complete

without legal experts; and no law faculty

would consider itself complete without

its share of expert historians.

Id. at 400-01. What cannot happen, and what this

Court should make clear, is that expert historians

may not usurp the role of judges. This Court should

ensure that lower court judges seeking to masquerade

a judicial interest-balancing test as a historical

inquiry under Bruen are not defying this Court.

CONCLUSION

The Ninth Circuit’s effort to smuggle intermediate

scrutiny back into Second Amendment doctrine must

fail. Bruen requires courts to ground their analysis in

text and history—not “expert” speculation. Adhering

to that mandate is essential to preserving the right to

keep and bear arms that the People enshrined.

For these reasons, Amici respectfully ask this

Court to reverse the judgment below and, in so doing,

clarify when, if ever, it is appropriate to rely on expert

opinion in Second Amendment cases.