Amicus Curiae Brief — National Rifle Association, Incorporated, Petitioner v. Mark Glass, Commissioner, Florida Department of Law Enforcement

No. 24-1185

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC.,

Petitioner,

v.

MARK GLASS, in his Official Capacity as

Commissioner of the Florida Department of Law

Enforcement, Respondent.

____________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

____________________

Brief Amicus Curiae of Gun Owners of

America, Gun Owners Fdn., Gun Owners of CA,

Firearms Regulatory Accountability Coalition,

Coalition of NJ Firearm Owners, Grass Roots

NC, TN Firearms Association, TN Firearms

Fdn., VA Citizens Defense League, VA Citizens

Defense Fdn., Rights Watch Int’l, America’s

Future, U.S. Constitutional Rights Legal

Defense Fund, and Conservative Legal Defense

and Education Fund in Support of Petitioners

____________________

JOHN I. HARRIS III

Nashville, TN 37203

ROBERT J. OLSON*

WILLIAM J. OLSON

JEREMIAH L. MORGAN

OLIVER M. KRAWCZYK

WILLIAM J. OLSON, P.C.

Carlisle, PA 17013

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

*Counsel of Record

wjo@mindspring.com

June 20, 2025

Attorneys for Amici Curiae

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

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

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

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

ARGUMENT

I.

THIS CASE PRESENTS A CRITICAL

OPPORTUNITY TO CLARIFY THE SECOND

AMENDMENT’S TEXTUAL PROTECTION OF THE

ANCILLARY AND CONCOMITANT RIGHTS OF

FIREARM ACQUISITION AND PURCHASE . . . . . . . 5

II. THIS COURT SHOULD GRANT CERTIORARI TO

CLARIFY THAT A HISTORICAL TRADITION OF

FIREARM REGULATION MUST BE GROUNDED IN

ACTUAL “FIREARM REGULATIONS” . . . . . . . . . . 15

III. THIS COURT SHOULD REPUDIATE THE

JUDICIAL APPEALS TO EMOTION THAT

PERMEATED THE DECISION BELOW AND ARE

CLOUDING THE LOWER COURTS’ BRUEN

ANALYSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF AUTHORITIES

Page

CONSTITUTION

Amendment II . . . . . . . . . . . . . . 2-9, 11, 13-17, 19-21

Amendment IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES

Fla. Stat. § 790.065(13) . . . . . . . . . . . . . . . . . . . . 1, 2

Militia Act of May 8, 1792, ch. 33,

§ 1, 1 Stat. 271. . . . . . . . . . . . . . . . . . . . . . . . . . 18

CASES

Andrews v. State, 50 Tenn. 165 (1871) . . . . . . . . . . 8

B & L Prods., Inc. v. Newsom, 104 F.4th 108

(9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bezet v. United States, 276 F. Supp. 3d 576

(E.D. La. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Chavez v. Bonta, 2025 U.S. Dist. LEXIS 56624

(S.D. Cal. Mar. 26, 2025) . . . . . . . . . . . . . . 12, 13

Coal. for TJ v. Fairfax Cnty. Sch. Bd.,

218 L. Ed. 2d 71 (2024) . . . . . . . . . . . . . . . . . . . 14

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . 3, 5, 12, 13, 15, 17-19

Ezell v. City of Chicago, 651 F.3d 684

(7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Griswold v. Connecticut, 381 U.S. 479 (1965) . 13, 14

Ill. Ass’n of Firearms Retailers v. City of Chicago,

961 F. Supp. 2d 928 (N.D. Ill. 2014). . . . . . . . . . 8

Jackson v. City & County of San Francisco,

576 U.S. 1013 (2015) . . . . . . . . . . . . . . . . . . . . . 12

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) . . . . 18

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . . 15

iii

Kyllo v. United States, 533 U.S. 27 (2001) . . . . . . 16

Luis v. United States, 578 U.S. 5 (2016) . . . . . . . . . 6

McCoy v. BATFE, 2025 U.S. App. LEXIS 15056

(4th Cir. June 18, 2025) . . . . . . . . . . . . . . . . 7, 17

McRorey v. Garland, 99 F.4th 831

(5th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . 11, 12

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

597 U.S. 1 (2022) . . . . . . 3-5, 7-9, 11-15, 17, 19-22

NRA v. BATFE, 714 F.3d 334 (5th Cir. 2013) 10, 17

Ortega v. Grisham, 741 F. Supp. 3d 1027

(D.N.M. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Reese v. BATFE, 127 F.4th 583 (5th Cir. 2025) 10-12

Rigby v. Jennings, 630 F. Supp. 3d 602

(D. Del. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Rocky Mountain Gun Owners v. Polis,

121 F.4th 96 (10th Cir. 2024) . . . . . . . . . . . . . . 13

Teixeira v. County of Alameda, 873 F.3d 670

(9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Gore, 118 F.4th 808

(6th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Hicks, 649 F. Supp. 3d 357

(W.D. Tex. 2023) . . . . . . . . . . . . . . . . . . . . . . 9, 10

United States v. King, 646 F. Supp. 3d 603

(E.D. Pa. 2022) . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

United States v. Knipp, 2025 U.S. App. LEXIS

12054 (6th Cir. May 19, 2025) . . . . . . . . . . . . . 11

United States v. Miller, 307 U.S. 174 (1939). . . . . 18

United States v. Rahimi, 602 U.S. 680

(2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15-17

Virginia v. Moore, 553 U.S. 164 (2008) . . . . . . . . . 16

Worth v. Jacobson, 108 F.4th 677

(8th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

MISCELLANEOUS

A. Scalia & B.A. Garner, Reading Law: The

Interpretation of Legal Texts

(Thomson/West: 2012). . . . . . . . . . . . . . . . . . . . 14

INTEREST OF THE AMICI CURIAE1

Amici Gun Owners of America, Inc., Gun Owners

Foundation, Gun Owners of California, Firearms

Regulatory Accountability Coalition, Inc., Coalition of

New Jersey Firearm Owners, Grass Roots North

Carolina, Tennessee Firearms Association, Tennessee

Firearms Foundation, Virginia Citizens Defense

League, Virginia Citizens Defense Foundation, Rights

Watch International, America’s Future, U.S.

Constitutional Rights Legal Defense Fund, and

Conservative Legal Defense and Education Fund are

nonprofit organizations, exempt from federal income

tax under sections 501(c)(3), 501(c)(4), or 501(c)(6) of

the Internal Revenue Code. These entities, inter alia,

participate in the public policy process, including

conducting research, and informing and educating the

public on the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law.

STATEMENT OF THE CASE

In 2018, after a tragic school shooting perpetrated

by a lone 19-year-old, the Florida legislature enacted

Fla. Stat. § 790.065(13). This statute violates the

rights of all adults from ages 18 to 20 in the State of

1

It is hereby certified that counsel of record for all parties

received timely notice of the intention to file this brief; that no

counsel for a party authored this brief in whole or in part; and

that no person other than these amici curiae, their members, or

their counsel made a monetary contribution to its preparation or

submission.

2

Florida, flatly prohibiting that entire class of persons

from purchasing firearms, as follows:

A person younger than 21 years of age may not

purchase a firearm. The sale or transfer of a

firearm to a person younger than 21 years of

age may not be made or facilitated by a

licensed importer, licensed manufacturer, or

licensed dealer. A person who violates this

subsection commits a felony of the third

degree, punishable as provided in § 775.082,

§ 775.083, or § 775.084. The prohibitions of

this subsection do not apply to the purchase of

a rifle or shotgun by a law enforcement officer

or correctional officer, as those terms are

defined in § 943.10(1), (2), (3), (6), (7), (8), or

(9), or a servicemember as defined in § 250.01.

[Fla. Stat. § 790.065(13) (emphasis added).]

Petitioners filed suit alleging violations of their

right to keep and bear arms under the Second and

Fourteenth Amendments. Following years of litigation

and an intervening clarification in the applicable

constitutional standard from this Court, the Eleventh

Circuit en banc upheld the challenged statute,

concluding that it “is consistent with our historical

tradition of firearm regulation.” Pet.App.3a. Yet, the

Eleventh Circuit identified not one relevant “firearm

regulation” in support of its decision. Rather, the en

banc court relied almost exclusively on Founding-era

common-law principles regarding legal infancy, some

of which applied to those under the age of 21, but none

of which prohibited the purchase or possession of

firearms.

Pet.App.14a-19a.

Nevertheless, the

3

Eleventh Circuit upheld Florida’s prohibition on the

purchase of firearms by adults based on little more

than an assumption that persons classified as infants

in a prior era “lacked cash and the capacity to

contract.”

Pet.App.28a.

It was not until the

Reconstruction era that the Eleventh Circuit could find

express restrictions on the sale of weapons to those

under 21. Pet.App.24a. This approach drew sharp

criticism, as four circuit judges dissented in three

different opinions, with each calling into question the

majority’s faithfulness to this Court’s methodological

approach to Second Amendment cases. Pet.App.2a.

SUMMARY OF ARGUMENT

If the years since this Court’s decisions in District

of Columbia v. Heller, 554 U.S. 570 (2008), and N.Y.

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

have revealed anything, it is that the lower courts

resist this Court’s textualist and originalist approach

in increasingly inventive ways. Pre-Heller, the courts

reasoned that a right which belongs to “the people” in

fact does not protect people at all. Post-Heller, almost

all lower courts interest-balanced the Second

Amendment into oblivion, despite this Court’s explicit

warning not to do so. And post-Bruen, interest

balancing only went underground. Indeed, some

courts have contrived convoluted tests to deny

challengers even a presumption of constitutional

protection for obvious Second Amendment conduct.

Others claimed that 1791’s Second Amendment is best

understood according to a public meaning that

postdates the Civil War. But the Eleventh Circuit

below devised an entirely new approach — upholding

4

a firearm regulation not according to a historical

tradition of firearm regulation, but rather based on an

assumption about the application of contract law to

Founding-era economic activity. Without this Court’s

regular intervention in Second Amendment cases, it

appears that the lower courts will continue to exercise

increasing creativity to narrow the right to keep and

bear arms, as old habits die hard.

This Court should grant certiorari for all the

reasons advanced in the Petition, and, in addition,

three further reasons. First, this case will allow the

Court to clarify that the Second Amendment’s plain

text obviously covers those acts necessary to the right’s

exercise, such as the acquisition of firearms, a

predicate and necessary act deserving of constitutional

protection, yet which the lower courts nevertheless

dispute. Some courts rightly hold that acquisition is

an ancillary and concomitant right to “keeping” and

“bearing” that the Second Amendment must protect;

other courts deny this right altogether; others engage

in convoluted interest balancing; and some avoid the

question entirely.

Second, this Court should clarify that Bruen meant

what it said — a historical tradition of firearm

regulation means the government must proffer firearm

regulations, not a historical hodgepodge of vague

principles and assumptions entirely untethered to the

firearm prohibition the Eleventh Circuit upheld.

Indeed, to uphold a prohibition on the ability of legal

adults to purchase firearms, the Eleventh Circuit

should have required a true analogue — one that

explicitly prohibited purchases of firearms. It failed to

5

do so, and leaving this error uncorrected will only

inspire more deviation from Bruen, not less.

Third, the Eleventh Circuit’s indulgent exposition

detailing a mass-shooting tragedy deserves a response.

The role of courts is to say what the law is, and then

apply it to facts. When judicial opinions devolve into

emotion-laden narratives rationalizing the

reasonableness of the firearm regulations they then

strain to uphold, the public loses confidence that

judges are deciding constitutional cases objectively.

This Court should reiterate that Heller, Bruen, and

Rahimi call for an objective textual and historical

standard applied by neutral and detached judges —

nothing more.

ARGUMENT

I.

THIS CASE PRESENTS A CRITICAL

OPPORTUNITY TO CLARIFY THE SECOND

AMENDMENT’S TEXTUAL PROTECTION OF

THE ANCILLARY AND CONCOMITANT

RIGHTS OF FIREARM ACQUISITION AND

PURCHASE.

The Second Amendment guarantees “the right of

the people to keep and bear Arms.” Analyzing the

common meaning of these terms in District of

Columbia v. Heller, 554 U.S. 570 (2008), this Court

explained that to “keep Arms” means to “have” or own

them, while to “bear Arms” means to “carry” them

“upon the person or in the clothing or in a pocket.” Id.

at 582, 584 (cleaned up). Thus, according to its plain

text, the Second Amendment clearly protects the act of

6

possessing weapons. But in order for the right to have

any force, it also must protect those “closely related

acts necessary to [its] exercise,” Luis v. United States,

578 U.S. 5, 26 (2016) (Thomas, J., concurring in the

judgment), such as the threshold act of acquisition,

whether by purchase, manufacture, gift, or bequest.

Indeed, “[w]ithout protection for these closely

related rights, the Second Amendment would be

toothless,” as the government could simply ban all

acquisitions of firearms, so long as it left undisturbed

the literal acts of keeping and bearing existing

weapons. Id. at 27. In that case, firearms would go to

the grave with their owners, as the only part of “the

people” entitled to “keep and bear Arms” would be

those gun owners at the time of the Second

Amendment’s adoption in 1791. Clearly, the Founders

did not intend the right to keep and bear arms to be

snuffed out in just a few generations.

For its part, the Eleventh Circuit rightly observed

— albeit on an implicit basis — that the Second

Amendment’s text covers the purchase of firearms,

whether via commercial transaction or private sale.

Pet.App.9a. This was true even though the Second

Amendment’s text says nothing of “purchase” or

“acquisition” on its face. Rather, the Eleventh Circuit

understood that these threshold acts constitute

“arms-bearing conduct” as this Court has used the

term, and that a regulation of such conduct requires

examination of “the historical tradition of firearm

regulation in our nation to delineate the contours of

the right.” Pet.App.9a (cleaned up) (quoting United

States v. Rahimi, 602 U.S. 680, 691 (2024)).

7

What the Eleventh Circuit assumed implicitly,2

this Court should declare explicitly. Although the

Eleventh Circuit’s implicit finding was correct — the

Second Amendment’s text obviously protects the right

to acquire firearms — it highlights where many other

lower courts have gone off the rails. Indeed, even after

Bruen, the lower courts are in disarray with respect to

what sort of textual analysis this Court requires.

Thus, in addition to resolving the question presented,

this case presents a critical opportunity for this Court

to set the record straight and explain that the Second

Amendment’s text necessarily covers those ancillary

and concomitant rights that give effect to its

enumerated acts.

Curiously, pre-Bruen interest-balancing decisions

seemed far more open to recognizing the ancillary

right to acquire arms — perhaps because judges still

believed they retained the wiggle room to uphold all

manner of firearm regulation. See, e.g., Ezell v. City of

Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (“The right

2

Recently, the Fourth Circuit, like the Eleventh Circuit below,

simply assumed without deciding the question. In McCoy v.

BATFE, 2025 U.S. App. LEXIS 15056 (4th Cir. June 18, 2025),

that court noted that “the parties do not dispute that appellees’

intended action — purchasing a handgun for lawful purposes —

is part of the ‘conduct’ protected by the Amendment,” and merely

“assume[d] without deciding that appellees are part of ‘the people’

and are therefore covered by the Amendment’s text.” Id. at *11.

The Fourth Circuit ultimately upheld the federal prohibition on

the commercial sale of handguns to legal adults under the age of

21 for much the same reason as the Eleventh Circuit below. Id.

at *13 (“The infancy doctrine imposed a severe burden on a

minor’s ability to purchase goods, including firearms, during the

founding era.”).

8

to possess firearms for protection implies a

corresponding right to acquire and maintain

proficiency in their use; the core right wouldn’t mean

much without the training and practice that make it

effective.”); Ill. Ass’n of Firearms Retailers v. City of

Chicago, 961 F. Supp. 2d 928, 930 (N.D. Ill. 2014)

(“This right must also include the right to acquire a

firearm....”); Bezet v. United States, 276 F. Supp. 3d

576, 605 (E.D. La. 2017) (noting that restrictions on

the “importation of firearms or the use of imported

parts to assemble a firearm … likely impinge on the

rights of law-abiding, responsible citizens under the

Second Amendment to possess and carry firearms

because they inhibit the ability to acquire such

weapons”), aff’d, 714 F. App’x 336 (5th Cir. 2017);

Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th

Cir. 2017) (noting the “right to keep and bear arms for

self-defense ‘wouldn’t mean much’ without the ability

to acquire arms”). So uncontroversial was this

pre-Bruen consensus that, in 1871, the Tennessee

Supreme Court explained that “[t]he right to keep

arms[] necessarily involves the right to purchase

them.” Andrews v. State, 50 Tenn. 165, 178 (1871).

Yet suddenly, following this Court’s explication of

its Second Amendment standard in N.Y. State Rifle &

Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), the lower

courts have failed to reach a consensus as to whether

the Second Amendment even presumptively protects

the basic acquisition of a firearm. Indeed, shortly after

Bruen was decided, one district court triumphantly

declared that this “Court looks at the Second

Amendment’s plain text; it does not consider ‘implicit’

rights that may be lurking beneath the surface of the

9

plain text.” United States v. King, 646 F. Supp. 3d

603, 607 (E.D. Pa. 2022). With this misunderstanding

of this Court’s methodology, the King court held that

the Second Amendment does not protect “buying and

selling firearms” at all. Id. Another district court

recently reiterated this startling proposition,

purporting to consider the “‘normal and ordinary’

meaning of the Second Amendment’s language” to

conclude that “‘the Second Amendment’s plain text’

does not cover purchasing firearms.” Ortega v.

Grisham, 741 F. Supp. 3d 1027, 1072 (D.N.M. 2024)

(cleaned up). And, having latched onto this restrictive

approach, the Ortega court then went one step further,

claiming that “to possess or carry does not mean to

obtain or acquire.” Id. (emphasis added).

In contrast with the Pennsylvania and New Mexico

district courts, a Delaware district court succinctly

observed that “the right to keep and bear arms implies

a corresponding right to manufacture arms.” Rigby v.

Jennings, 630 F. Supp. 3d 602, 615 (D. Del. 2022).

Thus, the Rigby court found that the private

manufacture of “untraceable firearms” was “protected

by the Second Amendment,” and proceeded to the

historical analysis that Bruen instructed.

Id.

Likewise, a Texas district court exposed the absurdity

of arguments to the contrary with the following

hypothetical:

[I]f buying (receiving) a gun is not covered by

the Second Amendment’s plain text, neither

would selling one. So according to the

Government, Congress could throttle gun

ownership without implicating Second

10

Amendment scrutiny by just banning the

buying and selling of firearms. What a

marvelous, Second Amendment loophole!

[United States v. Hicks, 649 F. Supp. 3d 357,

360 (W.D. Tex. 2023).]

And in Reese v. BATFE, 127 F.4th 583 (5th Cir. 2025),

the Fifth Circuit recently adopted a similar approach,

explaining that “the right to ‘keep and bear arms’

surely implies the right to purchase them.” Id. at 590.

As that court explained:

The threshold textual question is not whether

the laws and regulations impose reasonable or

historically grounded limitations, but whether

the Second Amendment “covers” the conduct

(commercial purchases) to begin with.

Because constitutional rights impliedly protect

corollary acts necessary to their exercise, we

hold that it does. To suggest otherwise

proposes a world where citizens’ constitutional

right to “keep and bear arms” excludes the

most prevalent, accessible, and safe market

used to exercise the right.3 The baleful

implications of limiting the right at the outset

by means of narrowing regulations not implied

3

Indeed, by leaving 18-to-20-year-old Floridians at the mercy of

others’ good graces in order to lawfully acquire firearms via gift,

the Florida statute “perversely assures that when such young

adults obtain handguns, they do not do so through licensed

firearms dealers, where background checks are required, but they

go to the unregulated market.” NRA v. BATFE, 714 F.3d 334, 346

(5th Cir. 2013) (Jones, J., dissenting from denial of rehearing en

banc) (citation omitted).

11

in the text are obvious; step by step, other

limitations on sales could easily displace the

right altogether. [Id.]

The Sixth Circuit is in accord, having explained on

more than one occasion that “[r]eceiving a firearm, of

course, is protected because it is a logical antecedent to

‘keep[ing]’ a firearm.” United States v. Gore, 118 F.4th

808, 813 (6th Cir. 2024); see also United States v.

Knipp, 2025 U.S. App. LEXIS 12054, at *7 (6th Cir.

May 19, 2025) (“[A]lthough the Second Amendment’s

text does not spell out the right to obtain firearms, it

nonetheless ‘covers’ that right.”).

But if a simple split on the acquisition question

was not enough, other courts have devolved into

interest-balancing away the Second Amendment’s

plain text, employing a convoluted “it depends”

approach to presumptive protection under Bruen. For

example, the Fifth Circuit is internally fractured on

the issue, seemingly adopting whatever standard

reaches the desired result. Indeed, in an earlier

pre-Reese opinion, a prior panel of the Fifth Circuit

claimed that, “on its face[,] ‘keep and bear’ does not

include purchase.” McRorey v. Garland, 99 F.4th 831,

838 (5th Cir. 2024). But rather than finding no

presumptive right to purchase firearms, the McRorey

court acknowledged that “[t]he right to ‘keep and bear’

can implicate the right to purchase,” and so it would

“prohibit[] shoehorning restrictions on purchase,” but

only if they resulted in “functional prohibitions on

keeping.” Id. at 838 (emphasis added). In other

words, McRorey would acknowledge a right to

12

purchase only if the right was destroyed entirely.4 In

contrast, a mere “burden” on the right apparently

would be unworthy of historical analysis — a stunning

conclusion that a subsequent Fifth Circuit panel swept

under the rug in a footnote. See Reese at 590 n.2.

Restating the Fifth Circuit’s McRorey approach in

far more “judge-empowering” terms (Bruen at 22), the

Ninth Circuit recently claimed that “the Second

Amendment only prohibits meaningful constraints on

the right to acquire firearms.” B & L Prods., Inc. v.

Newsom, 104 F.4th 108, 118 (9th Cir. 2024) (emphasis

added). Thus, under the Ninth Circuit’s approach,

judges once again become arbiters of such amorphous

notions as “meaningfulness” and “severity,” even

though analysis of “‘the severity of the law’s burden on

that right’” was the ubiquitous “second step” that

Bruen repudiated. Bruen at 18. And yet for some

courts, it seems that all roads lead to “a

judge-empowering ‘interest-balancing inquiry’” (Heller

at 634), in spite of this Court’s repeated rejection of

just such an approach. See Chavez v. Bonta, 2025 U.S.

Dist. LEXIS 56624, at *12 (S.D. Cal. Mar. 26, 2025)

(“[A] ban on all sales of a certain type of gun in a

region is a meaningful constraint implicating the

Second Amendment, but a ‘minor constraint on the

4

But see Jackson v. City & County of San Francisco, 576 U.S.

1013, 1016 (2015) (Thomas, J., dissenting from denial of

certiorari) (“[N]othing in our decision in Heller suggested that a

law must rise to the level of the absolute prohibition at issue in

that case to constitute a ‘substantial burden’ on the core of the

Second Amendment right.”).

13

precise locations within a geographic area where one

can acquire firearms [is] not.’”) (emphasis added).

Finally, one circuit has supplanted constitutional

text with dicta, concluding that it may rely on this

Court’s prior untested assumptions to decide Second

Amendment questions at their threshold, and without

resort to Bruen’s historical framework. In Rocky

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

2024), the Tenth Circuit ducked the question of

whether “purchasing a firearm is a necessary

concomitant of the right to ‘keep and bear,’” on the

theory that certain unnamed “‘longstanding’ …

‘conditions and qualifications on the commercial sale

of arms’ — are ‘presumptively lawful.’” Id. at 118

(quoting Heller at 626-27 & n.26). Rejecting this

Court’s warning that “we do not undertake an

exhaustive historical analysis today of the full scope of

the Second Amendment” and “there will be time

enough to expound upon the historical justifications …

if and when those exceptions come before us,” Heller at

626, 635, the Tenth Circuit found that such

preliminary statements in fact constitute a “safe

harbor” from consideration of the Second Amendment’s

textual scope. Rocky Mountain Gun Owners at 119.

These divergent approaches denying a Second

Amendment right to even acquire firearms fail to

comport with this Court’s approach to constitutional

rights. In Griswold v. Connecticut, 381 U.S. 479

(1965), this Court explained that:

[t]he right of freedom of speech and press

includes not only the right to utter or to print,

14

but the right to distribute, the right to receive,

the right to read and freedom of inquiry,

freedom of thought, and freedom to teach indeed the freedom of the entire university

community. Without those peripheral rights

the specific rights would be less secure. [Id. at

482-83 (citations omitted).]

See also Bruen at 70 (“The [Second Amendment] is not

‘a second-class right, subject to an entirely different

body of rules than the other Bill of Rights

guarantees.’”). Indeed, it is axiomatic that, “when a

text authorizes a certain act, it implicitly authorizes

whatever is a necessary predicate of that act.” A.

Scalia & B.A. Garner, Reading Law: The

Interpretation of Legal Texts at 96 (Thomson/West:

2012). The Second Amendment therefore must protect

such “peripheral rights” — such as the acquisition of

firearms, and more specifically their purchase — to

allow “the people” to exercise the enumerated acts of

keeping and bearing. This case presents an excellent

opportunity for this Court to state just that. Such

guidance is critically important to repudiating the

untenable approaches courts have begun to employ

below. Such “reasoning is a virus that may spread if

not promptly eliminated.” Coal. for TJ v. Fairfax Cnty.

Sch. Bd., 218 L. Ed. 2d 71, 75 (2024) (Alito, J.,

dissenting from denial of certiorari).

15

II. T H I S

COURT

SHOULD

GRANT

CERTIORARI TO CLARIFY THAT A

HISTORICAL TRADITION OF FIREARM

REGULATION MUST BE GROUNDED IN

ACTUAL “FIREARM REGULATIONS.”

When this Court reaffirmed Heller’s textual and

historical standard in Bruen, it declared in no

uncertain terms that the “government must

demonstrate that [its] regulation is consistent with

this Nation’s historical tradition of firearm regulation.”

Bruen, 597 U.S. at 17 (emphasis added). So central

was the notion of requiring historical gun laws to

uphold a modern gun law that this Court reiterated

variations of the term “firearm regulation” seven more

times throughout its majority opinion. See id. at

17-67. And this Court’s most recent pronouncement on

the Second Amendment did not deviate. Rahimi

upheld a federal statute temporarily disarming those

“who threaten physical harm to others” because,

“[s]ince the founding, our Nation’s firearm laws have

included provisions preventing individuals” from doing

just that. Rahimi, 602 U.S. at 690 (emphasis added).

Mano a mano, firearm law to firearm law.

Contrast this Court’s logical approach to

constitutional analysis with the head-scratching

approach of the opinion below. When this Court seeks

to ascertain the original meaning of the Establishment

Clause, it “analyz[es] certain historical elements of

religious establishments” and “look[s] to their ‘place …

in the First Amendment’s history.’” Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 536 (2022)

(emphases added). When this Court analyzes the

16

original meaning of the Second Amendment, it

“review[s] the history of American gun laws

extensively,” just as it did “in Heller and Bruen.”

Rahimi, 602 U.S. 693 (emphasis added). And even

when this Court consults the common law to

accomplish this task, it still seeks relevant regulations,

such as “surety laws,” which “targeted the misuse of

firearms,” and “prohibitions on going armed and

affrays.” Id. at 695-97. The same is true when this

Court consults the “common law of the founding era”

when analyzing searches and seizures under the

Fourth Amendment. Virginia v. Moore, 553 U.S. 164,

168 (2008). Indeed, such inquiry into “common-law

trespass” looks to the norms of how people treated

property in order to determine the boundaries of the

Fourth Amendment vis-à-vis the police. Kyllo v.

United States, 533 U.S. 27, 31 (2001) (collecting cases).

The Eleventh Circuit’s opinion respected none of

these constitutional guideposts. In the apparent

absence of an affirmative Founding-era tradition of

firearm regulations prohibiting 18-to-20-year-olds from

purchasing firearms, the opinion below latched onto

the common law of contract. Pet.App.17a. Theorizing

that, because “a person was an ‘infant[]’ or a ‘minor[]’

in the eyes of the law until age 21,” and that those

under 21 were subject to “many legal disabilities” for

their own protection, the lower court invoked the

“‘general rule’” that such “contracts for the purchase of

‘personal property’” would be “‘voidable.’” Pet.App.14a,

17a. But “voidable” does not mean “void” and, in order

to square this circle, the Eleventh Circuit cited a

secondary source for the proposition that, “[b]y the

early nineteenth century, … ‘it became almost

17

impossible for children to form any contracts.’”

Pet.App.17a (quoting Holly Brewer, By Birth or

Consent: Children, Law, and the Anglo-American

Revolution in Authority 271 (2005)). Finally seeking

to relate this “almost impossibility” to firearms, the

Eleventh Circuit theorized that “‘contracts were more

important for the basic transactions of society’ than

today,” speculating that the purchase of firearms

“required the ability to contract because people often

bought goods on credit,” and that Founding-era

18-to-20-year-olds must have “lacked cash.”

Pet.App.17a, 18a, 28a (emphasis added). In other

words, the Eleventh Circuit’s historical tradition was

not grounded in an explicit firearm regulation, but

rather an assumption based on a purportedly common

economic practice. See also McCoy at *13 (applying

contract/infancy doctrine). Of course, “[t]he members

of the first Congress were ignorant of thermal heat

imaging devices; with late teenage males, they were

familiar.” NRA at 342 (Jones, J., dissenting from

denial of rehearing en banc). Young adults have

always “lacked cash,” but that is no reason to deny

them Second Amendment rights.

Not only does this mode of analysis bear no

resemblance to the robust collection of actual gun laws

that this Court demanded in Heller, Bruen, and

Rahimi, but it also fails one of Bruen’s most central

analytical precepts. As Bruen made clear, “the text

controls” over even contradictory history. Bruen at 36.

Accordingly, because the Second Amendment’s

prefatory militia clause “announces a purpose,” the

operative term “the people” must include, at minimum,

those who belonged to the militia at the Founding.

18

Heller at 577. And the militia always included

18-to-20-year-olds, each of whom had to “provide

himself, at his own Expense, with a good Musket or

Firelock.” United States v. Miller, 307 U.S. 174, 181

(1939). See also Militia Act of May 8, 1792, ch. 33, § 1,

1 Stat. 271, 271 (defining the militia to include persons

“who [are] or shall be of the age of eighteen years....”).

The historical tradition therefore supports Petitioners.

And in any case, irrespective of whether those

under the age of 21 were considered “infants” with

various legal disabilities at the Founding, that is no

longer true today. Indeed, individuals ages 18 to 20

are adult members of “the people” today, and suffer

from none of the legal disabilities that inhered in

common-law infancy. Rejecting the Eleventh Circuit’s

reliance on “[a]rguments of this type,” the Eighth

Circuit recently explained that, “focusing on the

original contents of a right instead of the original

definition — i.e., that only those people considered to

be in the political community in 1791 ‘are protected by

the Second Amendment,’ instead of those meeting the

original definition of being within the political

community — [is] ‘bordering on the frivolous.’” Worth

v. Jacobson, 108 F.4th 677, 690 (8th Cir. 2024).

Taken to its logical conclusion, the Eleventh

Circuit’s reasoning would allow purported history to

reign supreme over constitutional text. For instance,

at the Founding, “slaves and Native Americans” were

“‘distrusted,’” “thought to pose more immediate threats

to public safety and stability[,] and were disarmed as

a matter of course.” Kanter v. Barr, 919 F.3d 437, 458

(7th Cir. 2019) (Barrett, J., dissenting). In other

19

words, these disfavored groups were not considered to

belong to “the people” at the time of the Second

Amendment’s enactment. But as time has passed,

American society’s notion of who constitutes “the

people” has expanded to include many disenfranchised

groups that originally were not protected at the

Founding.

And no one would claim that a

Founding-era historical tradition of racist

disarmament would justify similar race-based

regulation today. Contrary historical practice “‘cannot

overcome or alter that text.’” Bruen at 36.

By relying on so few firearm regulations, the

Eleventh Circuit’s errors were manifold. In addition to

answering the question presented, this Court should

grant certiorari to clarify that Bruen’s requirement of

a “historical tradition of firearm regulation” means

just that — firearm regulations are required.

III. THIS COURT SHOULD REPUDIATE THE

JUDICIAL APPEALS TO EMOTION THAT

PERMEATED THE DECISION BELOW AND

ARE CLOUDING THE LOWER COURTS’

BRUEN ANALYSES.

As this Court explained in Heller, the “very

enumeration” of a constitutional right “takes out of the

hands of government — even the Third Branch of

Government — the power to decide on a case-by-case

basis whether the right is really worth insisting upon.”

Heller at 634. In other words, analysis of a provision

of the Bill of Rights must be an objective inquiry into

original meaning — one that is devoid of personal

predilections or the influence of policy preferences. It

20

is such “reliance on history to inform the meaning of

constitutional text” that is “more legitimate, and more

administrable, than asking judges to ‘make difficult

empirical judgments’ about ‘the costs and benefits of

firearms restrictions,’ especially given their ‘lack [of]

expertise’ in the field.” Bruen at 25. Indeed, when left

to their own devices, judges engaging in deferential

interest balancing inevitably will decide cases not

according to higher principle, but rather their own

preferences.

Perhaps one of the greatest indicators of this sort

of prohibited subjectivity is the use of emotionally

charged language in legal opinion writing. Consider

its analytical purpose — none. Judicial tugs on

proverbial heartstrings do not advance a court’s

mission of elucidating the meaning of legal terms. Nor

do they aid in applying law to facts. To the contrary,

appeals to emotion serve only to justify seemingly

predetermined results.

The Eleventh Circuit’s introduction to its opinion

all but gave away how the court would rule. Rather

than beginning with a simple recitation of the

procedural facts and legal standard — or even the text

of the Second Amendment — the court opted instead to

begin with an indulgent eight-paragraph narration of

a mass shooting that had precipitated the enactment

of the challenged statute. The details were macabre.

See Pet.App.3a-6a. The court seemed to impute the

actions of the tragedy’s sole perpetrator on an entire

class of people — 18-to-20-year-old adults. Having

thus painted Florida’s purchase ban as reasonable —

it might have stopped a mass shooting, after all — only

21

then did the opinion actually begin its purported

constitutional analysis. But see Bruen at 72 (Alito, J.,

concurring) (“Why, for example, does the dissent think

it is relevant to recount the mass shootings that have

occurred in recent years? … Does the dissent think

that laws like New York’s prevent or deter such

atrocities?”).

The introduction to the opinion below employed no

principled approach to analyzing the right to keep and

bear arms. According to the Second Amendment’s

text, and as elucidated by this Court in Bruen, if a

member of “the people” wishes to “keep” or “bear” a

protected “Arm,” then the ability to do so “shall not be

infringed.” Period. There are no “ifs, ands, or buts,”

and it does not matter (even a little bit) how

important, significant, compelling, or overriding is the

government’s justification for or interest in infringing

the right. It does not matter whether a government

restriction “minimally” versus “severely” burdens

(infringes) the Second Amendment. There are no

relevant statistical studies to be consulted. There are

no sociological arguments to be considered. “Modern

medical research” is entirely inapposite. Pet.App.84a

(Rosenbaum, J., concurring). And the ubiquitous

problems of crime or the density of population do not

affect the equation. The only appropriate inquiry

then, according to Bruen, is what the “public

understanding of the right to keep and bear arms” was

during the ratification of the Second Amendment in

1791. Bruen at 36-38.

This Court should clarify that the objective textual

and historical framework it endorsed in Heller and

22

Bruen leaves no room for emotional decisionmaking or

backdoor interest balancing. To that end, this Court

should direct the lower courts to “center[] on

constitutional text and history” (Bruen at 22), and to

leave storytelling for other creative outlets. The

“traditions of the American people … demand[] our

unqualified deference” (id. at 26), and modern appeals

to emotion serve only to distract from the historical

deference that is owed.

CONCLUSION

For the foregoing reasons, the petition for

certiorari should be granted.

Respectfully submitted,

JOHN I. HARRIS III

SCHULMAN, LEROY &

BENNETT, PC

3310 West End Ave.

Suite 460

Nashville, TN 37203

ROBERT J. OLSON*

WILLIAM J. OLSON

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

OLIVER M. KRAWCZYK

wjo@mindspring.com

AMBLER LAW OFFICES, LLC *Counsel of Record

115 S. Hanover St., Ste.100 Attorneys for Amici Curiae

Carlisle, PA 17013

June 20, 2025