Amicus Curiae Brief — United States, Petitioner v. Ali Danial Hemani
Supreme Court briefDec 19, 2025
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No. 24-1234
IN THE
UNITED STATES OF AMERICA,
Petitioner,
v.
ALI DANIAL HEMANI,
Respondent.
On Writ of Certiorari to the United States Court
of Appeals for the Fifth Circuit
BRIEF OF BRADY CENTER TO PREVENT
GUN VIOLENCE AND GIFFORDS LAW
CENTER TO PREVENT GUN VIOLENCE AS
AMICI CURIAE IN SUPPORT OF
PETITIONER
KATHLEEN R. HARNETT
Counsel of Record
MIRANDA LI
COOLEY LLP
3 Embarcadero Center
San Francisco, CA 94111
(415) 693-2000
kharnett@cooley.com
CARLTON FORBES
ELISSA LOWENTHAL
COOLEY LLP
1299 Pennsylvania Ave. NW
Washington, DC 20004
(202) 842-7800
HANNAH DUNCAN
COOLEY LLP
55 Hudson Yards
New York, NY 10001
(212) 479-6000
DOUGLAS N. LETTER
SHIRA LAUREN FELDMAN
TESS M. FARDON
BRADY CENTER TO PREVENT
GUN VIOLENCE
840 First Street, NE
Washington DC 20002
(202) 370-8100
J. ADAM SKAGGS
LEIGH ROME
GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE
244 Madison Ave, Ste. 147
New York, NY 10016
(415) 433-2062
TABLE OF CONTENTS
Page
STATEMENT OF INTEREST ................................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT .................................................... 2
ARGUMENT ............................................................... 3
I.
II.
Legislatures May Enact Categorical
Limitations on Firearm Possession. ................ 3
A.
History and Tradition Support
Laws That Categorically Limit
Firearm Possession to Protect
Against Threats to Public Safety. ......... 3
B.
Courts Have Consistently Upheld
Legislatures’ Ability to Define
Certain Categorical Limitations
on Gun Possession. ................................ 6
Categorical Limitations on Firearms
Possession Significantly Advance Public
Safety. ............................................................... 9
A.
The Brady Act and the ModernDay Background Check System.......... 10
B.
Public Safety Would Be Severely
Compromised Without
Categorical Prohibitions. .................... 14
CONCLUSION ......................................................... 18
(i)
ii
TABLE OF AUTHORITIES
Page(s)
Cases:
Abramski v. United States,
573 U.S. 169 (2014) .............................................. 10
Bondi v. VanDerStok,
604 U.S. 458 (2025) .......................................... 2, 10
District of Columbia v. Heller,
554 U.S. 570 (2008) .............................. 2, 3, 7, 9, 10
Ferguson v. Skrupa,
372 U.S. 726 (1963) ................................................ 9
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) .............................. 5, 8
McDonald v. City of Chicago,
561 U.S. 742 (2010) ................................................ 2
N.Y. State Rifle & Pistol Ass’n, Inc. v.
Bruen,
597 U.S. 1 (2022) .................................. 2, 3, 7, 8, 10
New York v. United States,
505 U.S. 144 (1992) .............................................. 18
Printz v. United States,
521 U.S. 898 (1997) ......................................... 17-18
Schrader v. Holder,
704 F.3d 980 (D.C. Cir. 2013),
cert. denied, 571 U.S. 989 (2013) ........................... 9
iii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Alvarez,
567 U.S. 709 (2012) ................................................ 8
United States v. Carolene Prods. Co.,
304 U.S. 144 (1938) ................................................ 8
United States v. Gailes,
118 F.4th 822 (6th Cir. 2024) ................................. 8
United States v. Hayes,
555 U.S. 415 (2009) ................................................ 2
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024)
cert. denied, 145 S. Ct. 2708 (2025) ........... 4, 5, 6, 8
United States v. Rahimi,
602 U.S. 680 (2024) ................................ 2, 3, 4, 6, 7
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) ........................ 6-7, 8-9
United States v. VanDyke,
157 F.4th 1082 (9th Cir. 2025) ........................... 6, 8
Statutes, Acts, Regulations, House Reports:
18 U.S.C. § 922........................................................... 10
An Act Declaring the Rights & Liberties
of the Subject & Settling the
Succession of the Crown, 1 W. & M.,
Sess. 2, c. 2 (1689) .................................................. 4
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Act of Feb. 16, 1787, 1 Private & Special
Statutes of the Commonwealth of
Mass. (Wright & Potter, State
Printers 1805) ........................................................ 5
Act of Feb. 23, 1867, 1867 Kan. Sess.
Laws ....................................................................... 5
Act of Feb. 24, 1796, 1796 N.J. Laws 179 ................... 5
Act of June 10, 1798, 1798 N.J. Laws
561 ........................................................................... 5
Act of June 13, 1777, 1777 Pa. Laws 110 ................... 5
Act of June 1776, 7 Records of the
Colony of R.I. & Providence
Plantations in New England (1862) ...................... 5
Act of Mar. 14, 1776, 1775-76 Mass. Acts ................... 5
Act of May 1777, 9 The Statutes at
Large; Being a Collection of all the
Laws of Va. (1821) .................................................. 5
Act of Nov. 15, 1777, 1777 N.C. Sess.
Laws. ....................................................................... 5
Act of Sep. 20, 1777, 1777 N.J. Laws .......................... 5
Brady Handgun Violence Prevention
Act, Pub. L. No. 103–159, 107 Stat.
1536 (1993) ........................................................... 14
v
TABLE OF AUTHORITIES—Continued
Page(s)
Health Insurance Portability &
Accountability Act (HIPAA) Privacy
Rule & the National Instant
Criminal Background Check System
(NICS), 81 Fed. Reg. 382 (Jan. 6,
2016)................................................................ 12, 17
H.R. Rep. No. 103-344 (1993) .................................... 10
Militia Act of 1662, 13 & 14 Car. 2 c. 3 ....................... 4
Omnibus Consolidated Appropriations
Act, Pub. L. No. 104–208, 110 Stat.
3009 (1996) ........................................................... 15
Violent Crime Control & Law
Enforcement Act of 1994, Pub. L. No.
103–322, 108 Stat. 1796 .................................. 14-15
Other Authorities
4 Journals of the Continental Congress,
1774-1789 (Worthington Chauncey
Ford ed., 1906) ........................................................ 5
4 W. Blackstone, Commentaries on the
Laws of England (10th ed. 1787) ........................... 6
Background Checks: NICS & Reporting
Procedures, Giffords L. Ctr. to
Prevent Gun Violence......................... 12, 13, 14, 15
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Saul Cornell & Nathan DeDino, A Well
Regulated Right: the Early American
Origins of Gun Control, 73 Fordham
L. Rev. 487 (2004) ................................................ 4-5
Fed. Bureau of Investigation, Federal
Denials .................................................................. 11
Fed. Bureau of Investigation, Crim.
Just. Info. Servs. Div., National
Instant Criminal Background Check
System 2022 Operations Report .......................... 11
Fed. Bureau of Investigation, Crim.
Just. Info. Servs. Div., National
Instant Criminal Background Check
System (NICS) 2023 Operations
Report ................................................................... 11
Fed. Bureau of Investigation, Crim.
Just. Info. Servs. Div., National
Instant Criminal Background Check
System (NICS) 2024 Operations
Report ................................................. 11, 14, 15, 16
Press Release, Justice Department
Reaches Multimillion Dollar Civil
Settlement in Principle in
Sutherland Springs Mass Shooting,
U.S. Dep’t of Just., Off. of Pub. Affs.
(Feb. 6, 2025) ........................................................ 17
vii
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Dep’t of Just., Bureau of Just. Stat.,
Background Checks for Firearm
Transfers, 2016-2017, (2021) ............................... 11
U.S. Dep’t of Just., Bureau of Just. Stat.,
Background Checks for Firearm
Transfers, 2018, (2021) ........................................ 11
U.S. Dep’t of Just., Bureau of Just. Stat.,
Background Checks for Firearm
Transfers, 2019-2020, (2023) ............................... 11
U.S. Dep’t of Just., Bureau of Just. Stat.,
Background Checks for Firearm
Transfers, 2021, (2025) ........................................ 11
U.S. Dep’t of Just., Crim. Just. Info.
Servs. Div., National Instant
Criminal Background Check System
(NICS) Law Enforcement Guide .................... 13, 14
Pete Williams & Halimah Abdullah, FBI
Says Dylann Roof Should Not Have
Been Sold Gun, NBC News (July 10,
2015, at 13:10 ET) ................................................ 16
1
STATEMENT OF INTEREST 1
The Brady Center to Prevent Gun Violence
(“Brady”) and Giffords Law Center to Prevent Gun
Violence (“Giffords Law Center”) submit this brief as
amici curiae in support of the United States.
Amici work to reduce gun violence through
education, research, legal advocacy, and political
action. Founded in 1974, Brady is the nation’s most
longstanding nonpartisan, nonprofit organization
dedicated to reducing gun violence. Brady works to
free America from gun violence by passing and
defending gun violence prevention laws, reforming the
gun industry, and educating the public about
responsible gun ownership. Brady has a substantial
interest in ensuring that the Constitution is construed
to protect Americans’ fundamental right to live and to
recognize the authority of democratically elected
officials to address the nation’s gun violence epidemic.
Giffords Law Center is a nonprofit law and
policy organization serving lawmakers, advocates,
legal professionals, gun violence survivors, and others
who seek to reduce gun violence and improve the
safety of their communities. Through partnerships
with gun violence researchers, public health experts,
and community organizations, Giffords Law Center
researches, drafts, and defends the laws, policies, and
programs proven to effectively reduce gun violence.
Together with its partner organization, Giffords,
Giffords Law Center also advocates for the interests of
gun owners and law enforcement officials who
No counsel for a party authored this brief in whole or in part,
and no person other than amici or their counsel made a monetary
contribution to this brief’s preparation and submission.
1
2
understand that Second Amendment rights have
always been consistent with gun safety legislation and
community violence prevention strategies.
Brady and Giffords Law Center have filed
amicus briefs in many cases involving the regulation
of firearms. See, e.g., Bondi v. VanDerStok, 604 U.S.
458 (2025); United States v. Rahimi, 602 U.S. 680
(2024); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022); McDonald v. City of Chicago, 561
U.S. 742 (2010); United States v. Hayes, 555 U.S. 415
(2009); District of Columbia v. Heller, 554 U.S. 570
(2008).
INTRODUCTION AND SUMMARY OF
ARGUMENT
Since the Founding, legislatures have exercised
their power to protect against potential threats to
public safety by restricting certain categories of people
from accessing firearms. Courts have routinely upheld
these categorical restrictions, recognizing that the
individual right to bear arms is not absolute and that
these reasonable public safety regulations are entirely
consistent with this Nation’s historical regulatory
tradition.
Such prohibitions serve important purposes in
the broader framework of modern gun safety
regulations.
Through
enacting
categorical
prohibitions, legislatures provide clear lines to
effectively mitigate potential risks.
And today’s
regulatory systems, such as the federal Brady
background check system, depend on these
prohibitions for clear and timely determinations on
firearm eligibility. Were the background check system
to be compromised—as it would be without categorical
3
prohibitions—more individuals who should not be
permitted to possess firearms would be given access to
them, a demonstrated direct threat to public safety. In
resolving this appeal, the Court need not, and should
not, call into question the centuries-old national
practice of allowing legislatures to enact such
prohibitions and regulators to rely on them to advance
public safety.
ARGUMENT
I.
Legislatures May Enact Categorical Limitations
on Firearm Possession.
For centuries, legislatures in this Nation have
permissibly imposed categorical limitations on the
possession of firearms. This is illustrated both by the
longstanding history of such regulations and by
consistent judicial approval of such an approach.
A. History and Tradition Support Laws That
Categorically Limit Firearm Possession to
Protect Against Threats to Public Safety.
As this Court has explained, “[l]ike most rights,
. . . the right secured by the Second Amendment is not
unlimited,” United States v. Rahimi, 602 U.S. 680, 690
(2024) (quoting District of Columbia v. Heller, 554 U.S.
570, 626 (2008) (internal marks omitted)), and “was
never thought to sweep indiscriminately,” id. at 691.
To the contrary, the historical record confirms that
“[f]rom Blackstone through the 19th-century cases,
commentators and courts routinely explained that the
right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for
whatever purpose.” N.Y. State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1, 21 (2022) (quoting Heller,
554 U.S. at 626). Because the Second Amendment
4
“codified a pre-existing right, . . . pre-existing limits on
that right are part and parcel” of our regulatory
tradition. Rahimi, 602 U.S. at 737 (Barrett, J.,
concurring) (emphasis added).
Those “pre-existing limits” include legislative
and constitutional restrictions on the possession of
firearms by certain groups. Consider, for example,
England in the late 1600s, when the English Bill of
Rights set forth the authority of Parliament to
determine which citizens could “have arms . . . by law.”
An Act Declaring the Rights & Liberties of the Subject
& Settling the Succession of the Crown, 1 W. & M.,
Sess. 2, c. 2, § 7 (1689).
Under English law,
restrictions
on
firearm
possession
included
government disarmament of those who were
“dangerous to the Peace of the Kingdom.” United
States v. Jackson, 110 F.4th 1120, 1126 (8th Cir. 2024)
(citing Militia Act of 1662, 13 & 14 Car. 2 c. 3, § 13),
cert. denied, 145 S. Ct. 2708 (2025).
In drafting our foundational documents, the
Framers embraced this longstanding historical
tradition of restricting access to firearms to promote
public safety. During the Revolutionary War era, the
Continental Congress “prohibited possession of
firearms by people who refused to declare an oath of
loyalty.” Id. At the same time, states—including
Massachusetts, Virginia, Pennsylvania, Rhode Island,
North Carolina, and New Jersey—affirmatively
confiscated weapons from those who would not swear
loyalty to the United States. 2 Under the Constitution,
See Saul Cornell & Nathan DeDino, A Well Regulated Right: the
Early American Origins of Gun Control, 73 Fordham L. Rev. 487,
2
506 (2004) (“During the American Revolution, several states
passed laws providing for the confiscation of weapons owned by
5
“[i]n 1791—and for well more than a century
afterward—legislatures disqualified categories of
people from the right to bear arms” when those
legislatures “judged that doing so was necessary to
protect the public safety.” Kanter v. Barr, 919 F.3d
437, 451 (7th Cir. 2019) (Barrett, J., dissenting). For
example, Massachusetts required rebels or those “who
have been or may be guilty of Treason” to surrender
their firearms. See Act of Feb. 16, 1787, §§ 1-3, 1
Private & Special Statutes of the Commonwealth of
Mass. 145-47 (Wright & Potter, State Printers 1805).
And, in 1867, Kansas likewise restricted the sale of
firearms to “any person who has ever borne arms
against the Government of the United States.” Act of
Feb. 23, 1867, ch. 12, § 1, 1867 Kan. Sess. Laws 25; see
also Act of June 10, 1798, ch. DCCCVI, § 2, 1798 N.J.
Laws 561, 562 (punishing disorderly persons who were
apprehended while carrying offensive weapons such as
pistols); Act of Feb. 24, 1796, ch. DCXXXVII, § 1, 1796
N.J. Laws 179, 179 (punishing rioters who were armed
with “guns . . . or other weapons”). As this record
shows, the Nation’s history and tradition is replete
with restrictions that include “prohibitions on
possession by certain groups of people.” Jackson, 110
F.4th at 1126.
persons refusing to swear an oath of allegiance to the state or the
United States”); 4 Journals of the Continental Congress, 17741789, at 205 (Worthington Chauncey Ford ed., 1906); Act of Mar.
14, 1776, ch. 21, 1775-76 Mass. Acts 479; Act of May 1777, ch. III,
9 The Statutes at Large; Being a Collection of all the Laws of
Va. 281-82 (1821); Act of June 13, 1777, ch. 756 §§ 2-4, 1777 Pa.
Laws 110, 111-13; Act of June 1776, 7 Records of the Colony of
R.I. & Providence Plantations in New England 567 (1862); Act of
Nov. 15, 1777, ch. 6, 1777 N.C. Sess. Laws 231; Act of Sep. 20,
1777, ch. XL, 1777 N.J. Laws 90.
6
Notably, the historical tradition confirms that
regulations may restrict a category of individuals from
possessing firearms. A potential or proclivity for
future dangerousness by a particular category of
persons has long been deemed a sufficient basis for
disarmament,
without
any
individualized
determination of dangerousness. See Rahimi, 602
U.S. at 695-96 (recognizing that founding-era surety
laws were a form of “preventive justice,” which
“targeted the misuse of firearms,” and applied to
“those persons, [of] whom there is a probable ground
to suspect of future misbehavior” (alterations in
original) (quoting 4 W. Blackstone, Commentaries on
the Laws of England 251 (10th ed. 1787))).
Accordingly,
categorical
prohibitions
on
firearms possession, including those based on future
dangerousness, are well-supported by historical
tradition and the pre-existing rights that the Second
Amendment is understood to codify. That historical
practice is “consistent with common sense: it
demonstrates that legislatures have the power to
prohibit dangerous people from possessing guns.”
Rahimi, 602 U.S. at 740 (Barrett, J., concurring)
(citation omitted).
B. Courts
Have
Consistently
Upheld
Legislatures’ Ability to Define Certain
Categorical Limitations on Gun Possession.
Federal courts have repeatedly upheld these
categorical restrictions on firearm possession, see, e.g.,
United States v. VanDyke, 157 F.4th 1082, 1088 (9th
Cir. 2025) (collecting cases), and have made clear that
“statutory prohibitions on the possession of weapons
by some persons are proper—and, importantly for
7
current purposes, that the legislative role did not end
in 1791.” United States v. Skoien, 614 F.3d 638, 64041 (7th Cir. 2010).
That includes this Court, which has affirmed
that legislatures have the authority to define
categorical circumstances under which Second
Amendment rights may be limited. In Heller, for
instance, this Court made clear that “longstanding
prohibitions on the possession of firearms” by certain
groups were “presumptively lawful regulatory
measures.” 554 U.S. at 626, 627 n.26. Heller also
emphasized that Second Amendment exceptions were
only “examples” of “presumptively lawful” regulations,
not an exclusive catalog. Id. at 627 n.26.
Post-Heller, this Court has reaffirmed that the
Second Amendment permits legislative enactment of a
“variety” of gun regulations. Bruen, 597 U.S. at 80
(Kavanaugh, J., concurring) (quoting Heller, 554 U.S.
at 636). As this Court recognized in Rahimi, for
example, “[f]rom the earliest days of the common law,
firearm regulations have included provisions barring
people from misusing weapons to harm or menace
others.” 602 U.S. at 693. Thus, in Rahimi, this Court
relied on Heller and Bruen, upholding the categorical
prohibition found in 18 U.S.C. § 922(g)(8), which
prohibits individuals subject to a qualifying domestic
violence restraining order from possessing a firearm.
See id. at 690 (explaining that “Section 922(g)(8) fits
comfortably within this [nation’s history and]
tradition” of gun regulation). And, in Bruen, this
Court did not disturb the “shall-issue” licensing
regimes employed in 43 states, which often require
applicants to undergo, inter alia, fingerprinting, a
background check, a mental health records check, and
8
training in firearms handling prior to being issued a
license.
597 U.S. at 79-80 (Kavanaugh, J.,
concurring). 3
Categorical prohibitions also have been
repeatedly upheld by Courts of Appeals. See, e.g.,
VanDyke, 157 F.4th at 1088 (“Detention and
disarmament were within the power of the legislature
even when the group in question was not defined by
past violence.”); United States v. Gailes, 118 F.4th 822,
828 (6th Cir. 2024) (holding that “Section 922(g)(9),
which categorically disarms individuals with valid,
domestic-violence convictions, fits well within this
historical tradition”); Jackson, 110 F.4th at 1128
(“Legislatures historically prohibited possession by
categories of persons based on a conclusion that the
category as a whole presented an unacceptable risk of
danger if armed.”); Kanter, 919 F.3d at 454 (Barrett,
J., dissenting) (“Heller’s reference endorses the
proposition that the legislature can impose some
categorical bans on the possession of firearms.”);
Skoien, 614 F.3d at 640 (“That some categorical limits
3
These cases did not raise constitutional questions beyond the
Second Amendment or present any arguments that the
categorical determinations at issue implicated protected
expression or race, religion, or other protected classes—situations
in which courts rightfully engage in a “more searching judicial
inquiry” and do not defer to categorical legislative judgments.
United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4
(1938); see also, e.g., United States v. Alvarez, 567 U.S. 709, 717
(2012) (noting that categorical “content-based restrictions on
speech have been permitted, as a general matter, only when
confined to the few historic and traditional categories of
expression long familiar to the bar” (cleaned up)); Kanter, 919
F.3d at 458 n.7 (Barrett, J., dissenting) (“It should go without
saying that such race-based exclusions would be unconstitutional
today.”).
9
are proper is part of the original meaning, leaving to
the people’s elected representatives the filling in of
details.”).
As these decisions reflect, and as this Court has
made clear, legislators—in contrast to courts—are
accountable to the voters and are therefore in the best
position to deliberate on public policy decisions. See
Ferguson v. Skrupa, 372 U.S. 726, 729 (1963) (“Under
the system of government created by our Constitution,
it is up to legislatures, not courts, to decide on the
wisdom and utility of legislation.”). This principle has
been recognized in the context of the Second
Amendment in particular. See, e.g., Heller, 554 U.S.
at 624 (rejecting any reading of the Second
Amendment that “would mean that the National
Firearms Act’s restrictions on machineguns . . . might
be unconstitutional”); Schrader v. Holder, 704 F.3d
980, 989-91 (D.C. Cir. 2013) (“In the context of firearm
regulation, the legislature is far better equipped than
the judiciary to make sensitive public policy judgments
(within constitutional limits) concerning the dangers
in carrying firearms and the manner to combat those
risks.”) (cleaned up), cert. denied, 571 U.S. 989 (2013).
In short, legislatures necessarily and lawfully may
enact categorical rules to protect public safety.
II. Categorical Limitations on Firearms Possession
Significantly Advance Public Safety.
In addition to their historical pedigree,
categorical prohibitions undergird many of the
modern-day mechanisms used to mitigate the risk that
firearms will be wielded by those who would pose a
threat to public safety. These mechanisms include,
most notably, the congressionally mandated federal
10
background check system, which has been in place for
over thirty years. Absent categorical prohibitions, the
background check system could not operate
successfully, which would severely threaten public
safety.
A. The Brady Act and the
Background Check System.
Modern-Day
Since its enactment in 1993, the Brady
Handgun Violence Prevention Act (“Brady Act”) has
required federally licensed firearm importers,
manufacturers, and dealers to conduct background
checks on would-be firearm purchasers. 18 U.S.C.
§ 922(t). As Congress recognized, background checks
block illegal gun sales and keep deadly weapons out of
the hands of people who are more likely to pose a
heightened risk with access to firearms. See H.R. Rep.
No. 103-344, at 7 (1993) (“The purpose of [the Brady
Act] is to prevent . . . persons who are barred by law
from purchasing guns from licensed gun dealers,
manufacturers or importers.”); see also Bondi v.
VanDerStok, 604 U.S. 458, 462 (2025) (“The
background-check requirement seeks to keep ‘guns out
of the hands of criminals.’” (quoting Abramski v.
United States, 573 U.S. 169, 180 (2014))); Bruen, 597
U.S. at 38 n.9 (“[I]t appears that . . . shall-issue
regimes, which often require applicants to undergo a
background check or pass a firearms safety course, are
designed to ensure only that those bearing arms in the
jurisdiction are, in fact, ‘law-abiding, responsible
citizens.’” (quoting Heller, 554 U.S. at 635)).
The congressionally mandated background
check system is a fundamental part of modern gun
safety regulation—and has been for over three
11
decades.
Since the federal background check
requirement was adopted, more than 5.1 million
people who are legally prohibited from possessing a
gun have been either prevented from purchasing a gun
or denied a permit to purchase one. 4 At least a third
of the denials since 1998 involved people convicted of
felony offenses. 5
The federal background check system has
proven workable, among other reasons, because
officials rely on legislatively imposed categorical
restrictions to quickly assess whether a buyer or
transferee can legally possess a firearm. In particular,
U.S. Dep’t of Just., Bureau of Just. Stat., Background Checks
for Firearm Transfers, 2021, 1 (2025), https://perma.cc/59F54
LWF4 (“2021 Background Checks Report”); Fed. Bureau of
Investigation, Crim. Just. Info. Servs. Div., National Instant
Criminal Background Check System 2022 Operations Report, 1415, https://perma.cc/UD5A-WEF3 (last visited Dec. 19, 2025);
Fed. Bureau of Investigation, Crim. Just. Info. Servs. Div.,
National Instant Criminal Background Check System (NICS)
2023 Operations Report, 9, https://perma.cc/JB84-EGHQ (last
visited Dec. 19, 2025); Fed. Bureau of Investigation, Crim. Just.
Info. Servs. Div., National Instant Criminal Background Check
8,
System
(NICS)
2024
Operations
Report,
https://perma.cc/BZB5-4JVM (last visited Dec. 19, 2025) (“2024
NICS Operational Report”).
5
U.S. Dep’t of Just., Bureau of Just. Stat., Background Checks
10-11
(2021),
for
Firearm
Transfers,
2016-2017,
https://perma.cc/MGJ6-QDT4; U.S. Dep’t of Just., Bureau of Just.
Stat., Background Checks for Firearm Transfers, 2018, 8 (2021),
https://perma.cc/7NSE-B6EF; U.S. Dep’t of Just., Bureau of Just.
Stat., Background Checks for Firearm Transfers, 2019-2020, 7-8
(2023), https://perma.cc/EE7C-7NEP; 2021 Background Checks
Report, supra note 4, at 7; Fed. Bureau of Investigation, Federal
Denials, https://perma.cc/PGT8-P7GW (last visited Dec. 19,
2025).
12
for a licensed dealer to transfer a firearm, the process
proceeds as follows.
First, a potential purchaser (“transferee”)
completes a Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) Firearms Transaction Record, also
referred to as ATF Form 4473. This form details the
transferee’s
name,
address,
and
identifying
information to compare against records in the
National Instant Criminal Background Check System
(“NICS”), a centralized catalog of records comprising
three separate national databases maintained by the
FBI to facilitate these background checks. 6 NICS
includes information from local and state law
enforcement entities and federal agencies, which share
disqualifying information to be entered into the
systems, including information about individuals’
criminal and mental health histories, and any civil
orders entered against them that might affect their
eligibility to purchase or possess a gun, such as
domestic violence restraining orders. 7
Law
enforcement entities providing information to NICS
enter an ineligible individual’s name, date of birth,
and sex, as well as, in certain circumstances, codes
indicating the applicable prohibition, submitting
agency, and type of agency record supporting the
prohibition to create an entry. 8 This centralized and
Background Checks: NICS & Reporting Procedures, Giffords L.
Ctr. to Prevent Gun Violence, https://perma.cc/RL7C-DCFJ (last
visited Dec. 19, 2025) (“NICS & Reporting Procedures”).
6
7
Id.
Health Insurance Portability & Accountability Act (HIPAA)
Privacy Rule & the National Instant Criminal Background Check
System (NICS), 81 Fed. Reg. 382, 383 (Jan. 6, 2016). While not
required to enter the documentation underlying each entry into
NICS, the law enforcement entity must maintain the
8
13
streamlined data in NICS allows law enforcement to
quickly ascertain whether a potential purchaser is
legally eligible to buy a gun and relay that information
back to the licensed dealer. 9
Once the licensed dealer has a potential
transferee’s ATF Form 4473, it contacts the FBI’s
NICS Operation Center to determine whether the
purchaser’s information matches any records in the
NICS databases. 10 If no matches are found, the dealer
can proceed with the transfer of the firearm. 11
If a potential match is returned, however, a
NICS examiner will conduct a more thorough search
of the records and will instruct the dealer to take one
of three actions: (1) proceed with the transfer because
either the hit was not a valid match to the transferee,
or there was no disqualifying record; (2) deny the
transfer because there was information found that
indicated the transferee is prohibited from possessing
the firearm under federal or state law; or (3) delay the
transfer for further inquiry. 12 In the case of a delayed
determination, the NICS examiner has, in most cases,
three business days to further investigate the
transferee and come to a determination regarding the
documentation in the event of further inquiries. U.S. Dep’t of
Just., Crim. Just. Info. Servs. Div., National Instant Criminal
Background Check System (NICS) Law Enforcement Guide, 8,
https://perma.cc/LB8W-KXJE (last visited Dec. 19, 2025).
9
NICS & Reporting Procedures, supra note 6. Nineteen states
rely on state or local authorities to conduct background checks in
local databases, as well as the NICS database, for firearm
transfers. Id.
Id.
Id.
12
Id.
10
11
14
transferee’s eligibility.
If the dealer has not been
notified after those three business days that the
transfer would violate federal or state law, the transfer
can proceed by default. 14
13
B. Public
Safety
Compromised
Prohibitions.
Would
Without
Be
Severely
Categorical
As noted above, the background check system
protects public safety by relying upon categorical
prohibitions to quickly determine whether a firearms
purchase would be unlawful and should be disallowed.
Indeed, Congress required the establishment of a
background check system against the backdrop of the
longstanding use and legality of categorical
prohibitions. See, e.g., Brady Handgun Violence
Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536,
1540 (1993) (providing that the background check
system shall “assign a unique identification number to
the transfer” (e.g., authorize the transfer) only if
“receipt of a firearm would not violate section 922(g),”
among other laws); id. at 1536, 1538 (requiring, for any
firearm transfer, confirmation that the transferor has
received a statement by the transferee confirming that
the transferee does not meet descriptions similar to
those used in 18 U.S.C. § 922(g)(1)-(7)). 15
Id. If the transferee is less than twenty-one years old and has
a potentially disqualifying record, the examiner has ten business
days rather than three to make a determination. Id. Individuals
under twenty-one comprised less than one percent of background
checks conducted in 2024. See 2024 NICS Operational Report,
supra note 4, at iii, 13.
14
NICS & Reporting Procedures, supra note 6.
15
Sections 922(g)(8) and (9) were added to this list of prohibitions
after the Brady Act’s enactment in 1993. See Violent Crime
13
15
Absent these prohibitions, the system would be
unworkable and thus fail to advance the public safety
interests that the background check system was
enacted to protect. Notably, the NICS system returns
a search “within seconds to minutes” of the initial
request from the dealer. 16 The use of categories
enables an efficient means of determining which
individuals are prohibited from possessing firearms.
Absent reliance on categorical prohibitions, the
background check system would fail to function
effectively and as Congress required. For example, in
lieu of categorical determinations, presumably
individual determinations would be required. This
raises many questions, including what the standard
would be to determine an individual’s eligibility, who
would be charged with making such individual
determinations, how they could be made efficiently
and effectively, and what information would be needed
to make them. One theoretical option would be for
NICS examiners to make determinations on a case-bycase basis, given their proximity to the initial request
and access to the databases of information. But this
would involve wading through judicial opinions, court
orders, and other voluminous law enforcement
materials. Even assuming NICS examiners were
qualified to engage in such analysis (which is highly
questionable), it would result in a quagmire of delays
of indeterminate and unpredictable length in the
background check process.
Control & Law Enforcement Act of 1994, Pub. L. No. 103–322,
§ 110401, 108 Stat. 1796, 2014-15 (adding Section 922(g)(8));
Omnibus Consolidated Appropriations Act, Pub. L. No. 104–208,
§ 658, 110 Stat. 3009, 3009–372 (1996) (adding Section 922(g)(9)).
16
2024 NICS Operational Report, supra note 4, at 6.
16
Such a quagmire would be simply untenable for
a system that, in 2024 alone, involved more than 28
million background checks—almost 77,000 per day. 17
And these kinds of delays would be highly problematic
because in the current system, most firearms transfers
can occur by default if a determination is not made
within three business days. Requiring case-by-case
examination of individual records by NICS
investigators under this timeline would all but
guarantee a massive increase in the number of
transfers allowed by default—i.e., without a
determination that transfer is consistent with federal
law and public safety. Any increase in defaults would
almost certainly allow prohibited individuals to
unlawfully possess firearms, which is a direct threat
to public safety. For example, the shooter who killed
nine people in the 2015 Charleston church massacre
obtained the weapon he used by way of a default
transfer. 18
And delay would not be the only destructive
consequence of a background check system that did
not rely on categorical prohibitions. Among other
things, requiring NICS examiners (for example) to
make case-by-case determinations regarding whether
a transferee should be eligible for a transfer would
inject subjectivity into the process, thereby increasing
the possibility of inaccurate or disparate eligibility
determinations. Such a system would also substitute
individual examiners’ determinations about firearm
eligibility for the considered judgment of legislatures
17
Id. at iii.
Pete Williams & Halimah Abdullah, FBI Says Dylann Roof
Should Not Have Been Sold Gun, NBC News (July 10, 2015, 19:12
18
ET), https://perma.cc/SN65-FPG3.
17
as represented by categorical prohibitions. This is
directly contrary to the widespread understanding
that the legislature is the proper branch of government
to make such important policy decisions. See infra,
Section I.B.
Were categorical prohibitions no longer the
backbone of the background check system, there would
also be the need for a comprehensive central repository
or easily accessible network of information to which
examiners had access for case-by-case determinations.
Absent the ability to rely on categorical prohibitions,
states would need to provide, for each submitted
individual, voluminous information needed for those
case-by-case determinations—a stark contrast to the
current minimal burden of providing an individual’s
identifying information and a code for which category
makes the individual’s purchase of a firearm illegal. 19
Such an increased burden also could lead to increased
mistakes—which can have fatal consequences. For
example, the U.S. Air Force’s failure to transmit
information to NICS allowed an otherwise prohibited
individual to purchase a firearm and kill twenty-six
individuals and injure another twenty-two people in a
Texas church in 2017. 20
Even if NICS could instead rely on courts to
make individualized determinations of eligibility to
possess a firearm at the time of adjudication, state
courts could not be compelled to make such
determinations. See, e.g., Printz v. United States, 521
19
20
See 81 Fed. Reg. 382, supra note 8, at 383.
Press Release, Justice Department Reaches Multimillion Dollar
Civil Settlement in Principle in Sutherland Springs Mass
Shooting, U.S. Dep’t of Just., Off. of Pub. Affs. (Feb. 6, 2025),
https://perma.cc/54KN-F2G7.
18
U.S. 898, 926 (1997) (“‘The Federal Government,’ we
held, ‘may not compel the States to enact or administer
a federal regulatory program.’” (quoting New York v.
United States, 505 U.S. 144, 188 (1992)). Moreover,
setting aside any variations among states, at a
minimum, any transformation of the background
check system from the current foundation on
categorical prohibitions would require massive new
investment, including in technology, data transfers,
processes, and personnel. This itself could prove cost
prohibitive, casting significant doubt on this
alternative.
CONCLUSION
Legislatures have long made categorical policy
determinations about what groups of people may be
prohibited from possessing firearms, consistent with
the Second Amendment, and nothing in the Second
Amendment bars such determinations.
Such
determinations are essential to public safety,
including under the federal Brady background check
system that Congress enacted to ensure that
prohibited individuals do not have access to firearms.
The judgment below should be reversed.
19
Respectfully submitted,
KATHLEEN R. HARNETT
Counsel of Record
MIRANDA LI
COOLEY LLP
3 Embarcadero Center
San Francisco, CA 94111
(415) 693-2000
kharnett@cooley.com
CARLTON FORBES
ELISSA LOWENTHAL
COOLEY LLP
1299 Pennsylvania Ave. NW
Washington, DC 20004
(202) 842-7800
HANNAH DUNCAN
COOLEY LLP
55 Hudson Yards
New York, NY 10001
(212) 479-6000
DOUGLAS N. LETTER
SHIRA LAUREN FELDMAN
TESS M. FARDON
BRADY CENTER TO PREVENT
GUN VIOLENCE
840 First Street, NE
Washington DC 20002
(202) 370-8100
J. ADAM SKAGGS
LEIGH ROME
GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE
244 Madison Ave, Ste. 147
New York, NY 10016
(415) 433-2062
Counsel for Amici Curiae
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